Correspondence 0001104659-23-087917 from Envoy Medical, Inc. (COCH, COCHW) (CIK 0001840877) (COCH)
Envoy Medical, Inc. (COCH, COCHW) (CIK 0001840877)
Date: Aug. 4, 2023 · CIK: 0001840877 · Accession: 0001104659-23-087917
AI Filing Summary & Sentiment
File numbers found in text: 333-271920
Referenced dates: July 28, 2023
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filename1.htm
2100
L Street, NW
Suite 900
Washington
DC 20037
TELEPHONE:
202.887.1500
FACSIMILE:
202.887.0763
www.mofo.com
morrison &
foerster llp
austin,
beijing, berlin, boston,
brussels, denver, hong kong, london,
los angeles, miami,
new york, palo alto, san diego,
san francisco, shanghai, singapore,
tokyo, washington, d.c.
August 4, 2023
VIA EDGAR
U.S. Securities and Exchange Commission
Division of Corporation Finance
Office of Industrial Applications and Services
100 F Street, N.E.
Washington, D.C. 20549
Attention:
Benjamin Richie, Katherine Bagley, Christie Wong and Terence O’Brien
Re: Anzu Special Acquisition Corp I
Amendment No. 1 to Registration Statement on Form S-4
Filed June 30, 2023
File No. 333-271920
To Whom It May Concern:
On behalf of our client, Anzu Special Acquisition Corp I (the “Registrant”),
we submit this response to comments from the staff (the “Staff”) of the Division of Corporation Finance of the U.S.
Securities and Exchange Commission (the “Commission”) set forth in the Staff’s comment letter, dated July 28,
2023, related to the Registrant’s Amendment No. 1 (“Amendment No. 1”) to its registration statement
on Form S-4 (the “Registration Statement”), which was filed on June 30, 2023.
For your convenience, the Staff’s comments have been produced
in bold and italics herein with the Registrant’s response immediately following each comment. The below responses are also reflected,
to the extent applicable, in the Registrant’s Amendment No. 2 to the Registration Statement (“Amendment No. 2”),
which was filed on the date hereof. In addition, we are also delivering a copy of Amendment No. 2 to the Staff marked to show changes
from Amendment No. 1 to Amendment No. 2. Unless otherwise indicated, page references in the Staff’s comments and
headings below refer to Amendment No. 1, the Registrant’s responses below refer to Amendment No. 2 and capitalized terms
have the same meaning as contained in Amendment No. 2.
U.S. Securities and Exchange Commission
August 4, 2023
Page Two
Amendment No. 1 to Registration Statement on Form S-4
Filed June 30, 2023
Q. Will Anzu enter into any financing arrangements in connection
with the Business Combination?, page xiv
1. We note your amended disclosure in response to comment 2. Please briefly describe the “certain customary adjustments in
the event of certain events affecting the price of the New Envoy Class A Common Stock."
Response:
In response to the Staff’s comment, the Registrant respectfully advises the Staff that it has revised
its disclosure on pages xvii, 65, 104 and 277 of Amendment No. 2 to describe the customary adjustments and any material events
that would affect the price of the New Envoy Class A Common Stock.
Interests of the Sponsor and Anzu’s Directors and Officers
in the Business Combination, page 11
2. We note your response to previous comment 25, but we are not persuaded by your response. Please provide your analysis of how
purchases under your forward purchase agreement will comply, and how the extension support agreements described at the bottom of page 11
comply, with Rule 14e-5. Specifically, please provide additional detail explaining how the agreement satisfies the requirement in
the exemption in 14e-5(b)(7)(ii) that the agreement is "unconditional and binding on both parties," given your disclosure
that "[p]ursuant to the terms of the Forward Purchase Agreement, Seller intends, but is not obligated, to purchase . . . shares
of Anzu Class A Common Stock" (emphasis added). Alternatively, please provide the disclosure required by Tender Offer Compliance
and Disclosure Interpretation 166.01 (March 22, 2022), and ensure that the required conditions are met.
Response:
In response to the Staff’s comment, Registrant respectfully advises the Staff that it has revised its disclosure on pages xvii,
10, 11 and 178 of Amendment No. 2 in relation to the Forward Purchase Agreement to confirm compliance with the conditions set forth
in Tender Offer Compliance and Disclosure Interpretation 166.01.
The Registrant acknowledges the Staff’s
comment regarding compliance with Rule 14e-5 of the Exchange Act with respect to the Extension Support Agreements and respectfully
submits that the Extension Support Agreements are not subject to Rule 14e-5. Neither the Registrant nor an affiliate of the Registrant
is offering to purchase or redeem any securities of the Registrant pursuant to the Extension Support Agreements; rather, the Extension
Support Agreements involve a transaction in which the Sponsor has agreed to transfer a portion of its Anzu Class B Common Stock to
the counterparties as consideration for their agreement not to redeem their respective shares of Anzu Class A Common Stock at the
February Special Meeting, which occurred on February 28, 2023.
U.S. Securities and Exchange Commission
August 4, 2023
Page Three
Risk Factors
Certain of our directors, director nominees and/or officers . .
., page 36
3. We note your amended disclosure in response to comment 13. Please amend your disclosure to briefly describe the duties or obligations
of the relevant directors with respect to the entities discussed, including fiduciary duties or contractual obligations.
Response:
In response to the Staff’s comment, the Registrant notes that Dave Fabry and Envoy have mutually agreed
that Mr. Fabry will not serve on the New Envoy Board of Directors following closing of the Business Combination. Mr. Fabry is
an executive officer of another hearing health company, which was the primary reason for the prior risk factor addressing service to other
entities with competing interests. The Registrant advises the Staff that it has revised its disclosure on pages 40 and 121 to describe
the risks related to interests of directors and officers of Envoy that differ from the interests of holders of Envoy Common Stock and
to remove Mr. Fabry from the Director Election Proposal.
The Proposed Charter will provide that the Court of Chancery…,
page 80
4. Please revise this risk factor, and your discussion of the warrant agreement exclusive forum provision on page 251, to
disclose the risks that the exclusive forum provision may both limit a warrant holder's ability to bring a claim and potentially increase
costs for investors to bring a claim.
Response:
In response to the Staff’s comment, the Registrant respectfully advises the Staff that it has revised
its disclosure on pages 93 and 286 of Amendment No. 2.
Unaudited Pro Forma Condensed Combined Financial Statements, page 129
5. We note your response to comment 19. Please expand your disclosure to discuss the impact to the financial statements on a pro
forma basis should the working capital loan be converted into warrants.
Response:
The Registrant respectfully directs the Staff to pages 61 and 263 of Amendment No. 2, which states that the Sponsor has agreed
to forego its right to convert up to $1,500,000 of the Working Capital Loans that may be convertible into warrants. However, the Registrant
has revised its disclosure on pages 16, 157 and 198 of Amendment No. 2 in response to the Staff’s comment to clarify that,
pursuant to the Sponsor Support Agreement, the Sponsor agreed to forego its right to convert up to $1,500,000 of such loans that may be
convertible into warrants.
U.S. Securities and Exchange Commission
August 4, 2023
Page Four
6. We note your response to comment 20, please clarify the reason that the $10 million convertible promissory note with the shareholder
is not presented as a liability on the pro forma balance sheets, given the note will be funded prior to the merger and the maturity date
is December 31, 2025.
Response:
In response to the Staff’s comment, the Registrant respectfully advises the Staff that it has revised its disclosure on pages 155
and 157 of Amendment No. 2 to clarify why the promissory note is not presented as a liability on the pro forma balance sheets.
Representations, Warranties and Covenants, page 144
7. We note your amended disclosure in response to comment 22, including "material representations and warranties: …
litigation and actions pending or threated against… Envoy or any settlements related thereto." Given your risk factor disclosure
that Envoy is currently a party to litigation, please clarify the representation or warranty related to litigation and the potential impact,
if any, of the disclosed litigation on the merger agreement.
Response:
In response to the Staff’s comment, the Registrant respectfully advises the Staff that it has revised its disclosure on page 165
of Amendment No. 2.
8. We note your amended disclosure on page 144 that the representations and warranties included a representation by Anzu that
there would be at least $43,913,470 in the trust account. Please amend your filing, including your risk factors and background of the
business combination, to disclose this minimum cash condition. In your background discussion, please disclose how the parties arrived
at this minimum cash condition, including any negotiations and relative positions of each party to the merger.
Response:
In response to the Staff’s comment, the Registrant respectfully advises the Staff that it has revised its disclosure on page 166
of Amendment No. 2 to clarify that Anzu's representation that there would be at least $43,913,470 in the Trust Account was made only
as of the date of the Business Combination Agreement. Anzu has made no representations in the Business Combination Agreement with respect
to amounts in the Trust Account as of the Closing. The Registrant respectfully advises the Staff that there is no minimum cash condition.
U.S. Securities and Exchange Commission
August 4, 2023
Page Five
Background of the Business Combination, page 159
9. We note your revisions in response to previous comment number 28 and reissue the comment. Please revise your disclosure throughout
this section to include detailed descriptions of negotiations relating to material terms of the business combination and related transactions,
including, but not limited to, the key terms of the PIPE Transaction; the Sponsor Support Agreement, including the Sponsor agreeing to
forfeit certain securities; the proposed Envoy Conversions and the cancellation of outstanding Envoy options for nominal consideration;
the determination to enter into the Forward Purchase Agreement and the key terms of the agreement, including the Shortfall Warrants; the
determination to enter into the Envoy Bridge note and the key terms of the note, including the purpose of the note and any conflicts of
interest considered; the initial valuation for Envoy of $150.0 million and any related negotiations; the agreements with Key Shareholders;
and the Exchange Offer. In your revised disclosure, please explain the reasons for such agreements and terms, each party's position on
such issues, and how you reached agreement on the final terms and agreements. For example, where you disclose statements such as "[p]rincipal
terms were discussed, including what terms would be acceptable to shareholders for Envoy and Anzu," describe the terms, negotiations,
each party's position on these issues, and ultimately how the parties came to a final agreement. This is one example only, and changes
should be made to your discussion throughout this section.
Response:
In response to the Staff’s Comment, the Registrant advises the staff that it has revised its disclosure on pages 185, 186,
187, 188, 189 190 and 192 to Amendment No. 2.
10. We note your disclosure in response to comment 33 that Anzu engaged MCRA to conduct diligence with respect to the Acclaim implant
device and its potential for insurance reimbursement. Please disclose whether the Anzu board received a due diligence report from MCRA,
and if so, please provide the information required by Item 4(b) of Form S-4 and Item 1015(b) of Regulation M-A, or tell
us why you do not believe you are required to do so.
Response:
In response to the Staff’s comment, the Registrant respectfully advises the Staff that MCRA’s due diligence review of the
Acclaim implant device and its potential for reimbursement was undertaken in connection with the Registrant’s broader due diligence
review of Envoy. MCRA’s review did not constitute, nor has the Registrant disclosed in the Registration Statement that MCRA delivered,
a report, opinion or appraisal within the meaning of Item 1015(b) of Regulation M-A or Item 4(b) of Form S-4.
U.S. Securities and Exchange Commission
August 4, 2023
Page Six
In connection with its broader due diligence review of Envoy,
the Registrant engaged MCRA for the limited purposes of reviewing the likelihood and potential timing of FDA approval for the Acclaim
implant device and its eligibility for insurance reimbursement based on materials provided by Envoy. Although MCRA produced a summary
of its review in connection therewith, which was shared by Anzu Management with the Anzu Board, MCRA was not engaged to deliver, nor did
it deliver, any report, opinion or appraisal relating to the value of Envoy, the value of the consideration offered in connection with
the business combination or the fairness of the consideration offered in the business combination to the Registrant, any affiliate or
any security holder of the Registrant. Moreover, given the limited nature of MCRA’s engagement, MCRA did not review, and was not
informed of the terms of, the Business Combination Agreement entered into in connection with the business combination or the implied valuation
of Envoy. MCRA made no recommendations regarding the value of Envoy, whether the Registrant should or should not proceed with the business
combination with Envoy, or otherwise produce any materials relating to the fairness of the business combination. As a result of the foregoing,
the Registrant respectfully submits that the requirements of Item 1015(b) of Regulation M-A and Item 4(b) of Form S-4 are
not applicable to the summary diligence materials prepared by MCRA. Accordingly, the Registrant respectfully advises that, although the
MCRA diligence summary was delivered to the Board, it is not required to provide the disclosure requested by the Staff.
Side Letters with Legacy Forward Purchasers, page 159
11. We note your amended disclosure in response to comment 27, including that "[n]otwithstanding the termination of the Legacy
Forward Purchase Agreements described above, the side letter agreements between Anzu and the Legacy Forward Purchasers remain in full
force and effect as of the date of this proxy statement/prospectus." Please clarify the purpose of the side letter agreements, including
why these agreements remain in full force and effect notwithstanding the termination of the Legacy Forward Purchase Agreements. Please
also file the side letter agreements as exhibits to your registration statement or tell us why you believe you are not required to do
so.
Response:
The Registrant respectfully advises the Staff that the Registrant’s Sponsor, not the Registrant itself, is a party to the side letters
executed in connection with the Legacy Forward Purchase Agreements. Accordingly, the Registrant respectfully submits to the Staff that
it is not required to file the side letter agreements with the Registration Statement. The Registrant has revised its disclosure on pages 16,
180, 181 and 182 of Amendment No. 2 to clarify that the Registrant is not a party to the Legacy Forward
Purchase Agreements.
U.S. Securities and Exchange Commission
August 4, 2023
Page Seven
The Anzu Board's Reasons for the Business Combination, page 167
12. We note your response to previous comment 34 and