S-4/A

As filed with the Securities and Exchange Commission on July 13, 2022

Registration No. 333-262287         

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

AMENDMENT NO. 3 TO
FORM S-4
REGISTRATION STATEMENT

UNDER
THE SECURITIES ACT OF 1933

BROADSCALE ACQUISITION CORP.

(Exact name of registrant as specified in its charter)

Delaware	6770	85-3814555
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)

1845 Walnut Street
Suite 1111
Philadelphia, PA 19103
Telephone: (646) 849-9975
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

Andrew L. Shapiro
Chairman and Chief Executive Officer
c/o Broadscale Acquisition Corp.
1845 Walnut Street, Suite 1111
Philadelphia, PA 19103
Telephone: (646) 849-9975
(Name, address, including zip code, and telephone number, including area code, of agent for service)

Copies to:

Howard L. Ellin
C. Michael Chitwood
Skadden, Arps, Slate, Meagher &
Flom LLP
One Manhattan West
New York, NY 10001
Telephone: (212) 735-3000 Shagufa R. Hossain
Spencer B. Ricks
Ryan J. Maierson
Latham & Watkins LLP
200 Clarendon Street
Boston, MA 02116 Telephone: (617) 880-4524 Laurie Harrison
Chief Legal Officer and Secretary
Voltus, Inc.
2443 Fillmore Street, #380-3427
San Francisco, CA 94115
Telephone: (415) 463-4236

Approximate date of commencement of proposed sale of the securities to the public: As soon as practicable after this registration statement becomes effective and upon completion of the merger described herein.

If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box: ☐

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or emerging growth company. See the definitions of “large accelerated filer”, “accelerated filer”, “smaller reporting company”, and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):

Large accelerated filer	☐	Accelerated filer	☐
Non-accelerated filer	☒	Smaller reporting company	☒
		Emerging growth company	☒

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐

If applicable, place an ☒ in the box to designate the appropriate rule provision relied upon in conducting this transaction:

Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) ☐

Exchange Act Rule 14d-1(d) (Cross Border Third-Party Tender Offer) ☐  

The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

EXPLANATORY NOTE

Broadscale Acquisition Corp. is filing this Amendment No. 3 to the Registration Statement on Form S-4 (File No. 333-262287) as an exhibits-only filing. Accordingly, this amendment consists only of the facing page, this explanatory note, Item 21 of Part II of the Registration Statement, the signature pages to the Registration Statement and the filed exhibits. The remainder of the Registration Statement is unchanged and has therefore been omitted.

PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 21. Exhibits.

(a) Exhibits

Exhibit Number	Description
2.1**	Agreement and Plan of Merger, dated as of November 30, 2021, by and among Broadscale Acquisition Corp., Velocity Merger Sub Inc. and Voltus, Inc. (included as Annex A to the proxy statement/prospectus)
3.1(1)	Amended and Restated Certificate of Incorporation of Broadscale Acquisition Corp., filed with the Secretary of State of the State of Delaware on February 12, 2021
3.2(2)	Amended and Restated Bylaws of Broadscale Acquisition Corp.
3.3**	Form of Certificate of Incorporation of Voltus Technologies, Inc. to become effective upon the Closing (included as Annex B to the proxy statement/prospectus)
3.4**	Form of Bylaws of Voltus Technologies, Inc. to become effective upon the Closing (included as Annex C to the proxy statement/prospectus)
4.1(3)	Warrant Agreement, dated February 11, 2021, between Continental Stock Transfer & Trust Company and Broadscale Acquisition Corp.
4.2(4)	Broadscale Acquisition Corp. Specimen Unit Certificate
4.3(5)	Broadscale Acquisition Corp. Specimen Class A Common Stock Certificate
4.4**	Form of Closing Warrant Agreement (included as Annex J to the proxy statement/prospectus)
4.5(6)	Broadscale Acquisition Corp. Specimen Warrant Certificate (included in Exhibit 4.4)
4.6	Specimen Common Stock Certificate of Voltus Technologies, Inc.
5.1**	Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
8.1	Tax Opinion of Latham & Watkins LLP
10.1**	Sponsor Letter Agreement, dated as of November 30, 2021, by and among Broadscale Acquisition Corp., Nokomis ESG Sponsor, LLC and Voltus, Inc. (included as Annex F to the proxy statement/prospectus)
10.2**	Form of PIPE Subscription Agreement (included as Annex I to the proxy statement/prospectus)
10.3(7)	Letter Agreement, dated February 11, 2021, by and among Broadscale Acquisition Corp., its officers, its directors and Nokomis ESG Sponsor, LLC
10.4(8)	Investment Management Trust Agreement, dated February 11, 2021, between Continental Stock Transfer & Trust Company and Broadscale Acquisition Corp.
10.5(9)	Warrant Purchase Agreement, dated February 11, 2021, between Broadscale Acquisition Corp. and Nokomis ESG Sponsor, LLC
10.6(10)	Registration Rights Agreement, dated February 11, 2021, among Broadscale Acquisition Corp. and certain security holders
10.7(11)	Administrative Services Agreement, dated February 11, 2021, between Broadscale Acquisition Corp. the and Nokomis ESG Sponsor, LLC
10.8(12)	Form of Indemnity Agreement
10.9**  +	Form of Amended and Restated Registration Rights Agreement (included as Annex G to the proxy statement/prospectus)
10.10**+	Form of Lock-Up Agreement (included as Annex H to the proxy statement/prospectus)
10.11**	Voltus Technologies, Inc. 2022 Incentive Award Plan (included as Annex D to the proxy statement/prospectus)
10.12**	Voltus Technologies, Inc. 2022 Employee Stock Purchase Plan (included as Annex E to the proxy statement/prospectus)
10.13**	Form of Global Stock Option Agreement of Voltus Technologies, Inc.
10.14**	Form of Global Restricted Stock Unit Award Agreement of Voltus Technologies, Inc.
10.15**	Employment Agreement for Gregg Dixon
10.16**	Employment Agreement for Matthew Plante
10.17**	Employment Agreement for Laurie Harrison
10.18**	Voltus, Inc. 2016 Equity Incentive Plan
10.19**	Form of RSU Agreement of Voltus, Inc.

II-1

10.20**	Form of Option Agreement of Voltus, Inc.
10.21**	Form of Restricted Stock Purchase Agreement of Voltus, Inc.
10.22** ++	Loan and Security Agreement, dated as of March 23, 2022, between Voltus, Inc., the other Loan Parties party hereto and HSBC Ventures USA Inc.
10.23**	Offer Letter, dated September 9, 2021, by and between Ashley Johnson
10.24**	Offer Letter, dated April 30, 2021, by and between Selina Tobaccowala
10.25**	Form of Indemnification Agreement of Voltus Technologies, Inc.
14.1(13)	Code of Business Conduct and Ethics
21.1**	List of subsidiaries of Broadscale Acquisition Corp.
23.1**	Consent of WithumSmith+Brown, PC, independent registered public accounting firm of Broadscale Acquisition Corp.
23.2**	Consent of Ernst & Young LLP, independent registered public accounting firm of Voltus, Inc.
23.3**	Consent of Skadden, Arps, Slate, Meagher & Flom LLP (including in Exhibit 5.1)
23.4	Consent of Latham & Watkins LLP (including in Exhibit 8.1)
24.1**	Power of Attorney (including on signature page to the initial filing of the Registration Statement)
99.1**	Form of Proxy Card for the Broadscale Special Meeting
99.2**	Consent of Dan Leff to be named as a director
99.3**	Consent of Gregg Dixon to be named as a director
99.4**	Consent of Matthew Plante to be named as a director
99.5**	Consent of Veery Maxwell to be named as a director
99.6**	Consent of Tim Woodward to be named as a director
99.7**	Consent of Philip Deutch to be named as a director
99.8**	Consent of Selina Tobaccowala to be named as a director
99.9**	Consent of Ashley Johnson to be named as a director
99.10**	Consent of Rajesh Atluru to be named as a director
101.INS	XBRL Instance Document
101.SCH	XBRL Taxonomy Extension Schema Document
101.CAL	XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF	XBRL Taxonomy Extension Definition Linkbase Document
101.LAB	XBRL Taxonomy Extension Label Linkbase Document
101.PRE	XBRL Taxonomy Extension Presentation Linkbase Document
107**	Filing Fee Table

** Filed previously.

+ Schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. Broadscale Acquisition Corp. agrees to furnish supplementally a copy of any omitted schedule or exhibit to the SEC upon request.

++ Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit.

(1) Incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K (File No. 001-40057) filed by Broadscale Acquisition Corp. on February 18, 2021.

(2) Incorporated by reference to Exhibit 3.2(b) to Amendment No. 1 to the Registration Statement on Form S-1 filed by the Registrant on February 3, 2021.

(3) Incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-40057) filed by Broadscale Acquisition Corp. on February 18, 2021.

(4) Incorporated by reference to Exhibit 4.2 to the Current Report on Form 8-K (File No. 001-40057) filed by Broadscale Acquisition Corp. on February 18, 2021.

(5) Incorporated by reference to Exhibit 4.3 to the Current Report on Form 8-K (File No. 001-40057) filed by Broadscale Acquisition Corp. on February 18, 2021.

(6) Incorporated by reference to Exhibit 4.4 to the Current Report on Form 8-K (File No. 001-40057) filed by Broadscale Acquisition Corp. on February 18, 2021.

(7) Incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-40057) filed by Broadscale Acquisition Corp. on February 18, 2021.

(8) Incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K (File No. 001-40057) filed by Broadscale Acquisition Corp. on February 18, 2021.

(9) Incorporated by reference to Exhibit 10.4 to the Current Report on Form 8-K (File No. 001-40057) filed by Broadscale Acquisition Corp. on February 18, 2021.

(10) Incorporated by reference to Exhibit 10.3 to the Current Report on Form 8-K (File No. 001-40057) filed by Broadscale Acquisition Corp. on February 18, 2021.

(11) Incorporated by reference to Exhibit 10.5 to the Current Report on Form 8-K (File No. 001-40057) filed by Broadscale Acquisition Corp. on February 18, 2021.

(12) Incorporated by reference to Exhibit 10.5 to Amendment No. 1 to the Registration Statement on Form S-1 filed by the Registrant on February 3, 2021.

(13) Incorporated by reference to Exhibit 14.1 to Amendment No. 1 to the Registration Statement on Form S-1 filed by the Registrant on February 3, 2021.

II-3

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in City of Philadelphia, Commonwealth of Pennsylvania, on the 13th day of July, 2022.

BROADSCALE ACQUISITION CORP.
By:	/s/ Andrew L. Shapiro
Name:	Andrew L. Shapiro
Title:	Chairman of the Board of Directors and Chief Executive Officer

POWER OF ATTORNEY

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

Name	Title	Date
/s/ Andrew L. Shapiro Andrew L. Shapiro	Chairman of the Board of Directors and Chief Executive Officer (Principal Executive Officer)	July 13, 2022
* Edward E. Cohen	Vice Chairman of the Board of Directors	July 13, 2022
/s/ John P. Hanna John P. Hanna	Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)	July 13, 2022
* Georgia Levenson Keohane	Director	July 13, 2022
* Alexander Karsner	Director	July 13, 2022
* Lisa Coca	Director	July 13, 2022

*By:	/s/ Andrew L. Shapiro
Name:	Andrew L. Shapiro
Title:	Attorney-in-fact

II-4

EX-4.6

EXHIBIT 4.6

 

The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:

TEN COM	–	as tenants in common	UNIF GIFT MIN ACT–		Custodian
TEN ENT	–	as tenants by the entireties		(Cust)		(Minor)
IT TEN	–	as joint tenants with right of survivorship and not as tenants in common		under Uniform Gifts to Minors Act _________________
TTEE	–	trustee under Agreement dated			(State)

Additional abbreviations may also be used though not in the above list.

For value received, _______________ hereby sell, assign and transfer unto

PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE

PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE.

___________________________________________________________________________________________Shares of the common stock represented by this certificate and do hereby irrevocably constitute and appoint ________________________________________________________________________________________________

________________________________________________________________________________________________, attorney, to transfer the said stock on the books of the within-named corporation with full power of substitution in the premises.

DATED

NOTICE:The signature to this assignment must correspond with the name as written upon the face of the ceniticate in every panicular without alteration or enlargement or any change whatever.

SIGNATURE GUARANTEED:

THE SIGNATURE (S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION, (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.

EX-8.1

EXHIBIT 8.1 AND 23.4

	555 Eleventh Street, N.W., Suite 1000
	Washington, D.C.  20004-1304
	Tel: +1.202.637.2200  Fax: +1.202.637.2201
	www.lw.com
	FIRM / AFFILIATE OFFICES
	Austin	Moscow
	Beijing	Munich
July 13, 2022	Boston	New York
	Brussels	Orange County
	Century City	Paris
	Chicago	Riyadh
	Dubai	San Diego
	Düsseldorf	San Francisco
	Frankfurt	Seoul
	Hamburg	Shanghai
	Hong Kong	Silicon Valley
	Houston	Singapore
	London	Tel Aviv
Voltus, Inc.	Los Angeles	Tokyo
2443 Fillmore Street, #308-3427	Madrid	Washington, D.C.
San Francisco, California 94115	Milan

Re: Agreement and Plan of Merger dated November 30, 2021

To the addressees set forth above:

We have acted as special tax counsel to Voltus, Inc., a Delaware corporation (the “Company”), in connection with the Agreement and Plan of Merger, dated as of November 30, 2021 (the “Merger Agreement”), by and among Broadscale Acquisition Corp., a Delaware corporation (“Acquiror”), Velocity Merger Sub Inc., a Delaware corporation and a direct wholly owned subsidiary of Acquiror (“Merger Sub”), and the Company. This opinion is being delivered in connection with the Registration Statement on Form S-4 initially filed on January 21, 2022 (as amended and supplemented through the date hereof, the “Registration Statement”) of Acquiror, including the proxy statement/prospectus forming a part thereof, relating to the transactions contemplated by the Merger Agreement. Capitalized terms not defined herein have the meanings specified in the Merger Agreement unless otherwise indicated.

In rendering our opinion, we have examined and, with your consent, are expressly relying upon (without any independent investigation or review thereof) the truth and accuracy of the factual statements, representations, and warranties contained in (i) the Merger Agreement (including any Exhibits thereto), (ii) the Registration Statement, (iii) the respective tax representation letters of Acquiror and Merger Sub and of the Company, each dated as of the date hereof and delivered to us for purposes of this opinion, and (iv) such other documents and corporate records as we have deemed necessary or appropriate for purposes of our opinion.

July 13, 2022
Page 2

 

In addition, we have assumed, with your consent, that:

1. Original documents (including signatures) are authentic, documents submitted to us as copies conform to the original documents, and there has been (or will be by the Effective Time) execution and delivery of all documents where execution and delivery are prerequisites to the effectiveness thereof;

2. The Merger will be consummated in the manner contemplated by, and in accordance with the provisions of, the Merger Agreement and the Registration Statement, and the Merger will be effective under the laws of the State of Delaware;

3. All factual statements, descriptions, and representations contained in any of the documents referred to herein or otherwise made to us are true, complete, and correct in all respects and will remain true, complete, and correct in all respects up to and including the Effective Time, and no actions have been taken or will be taken which are inconsistent with such factual statements, descriptions, or representations or which make any such factual statements, descriptions, or representations untrue, incomplete, or incorrect at the Effective Time;

4. Any statements made in any of the documents referred to herein that are qualified by phrases such as “to the knowledge of,” “it is expected that” or any other similar qualifications are true, complete, and correct in all respects and will continue to be true, complete, and correct in all respects at all times up to and including the Effective Time, in each case, without such qualification; and

5. The parties have complied with and, if applicable, will continue to comply with the covenants contained in the Merger Agreement (and any agreement between Acquiror and the Company ancillary thereto) and the Registration Statement.

Under the terms of the Merger Agreement, holders of Company Capital Stock are eligible to receive Earnout Shares based on the occurrence of certain contingencies at any time during the seven (7) years following the Closing Date. In Revenue Procedure 84-42, the IRS issued guidance setting forth the conditions under which it will issue rulings that stock received in connection with contingent stock arrangements as part of a reorganization may be received on a tax-deferred basis. The contingent stock arrangements contemplated in connection with the Earnout Shares meet the conditions set forth in Revenue Procedure 84-42, with one exception – the condition that all stock in the transaction be issued within 5 years from the date of the transfer of assets in connection with the applicable reorganization. However, Revenue Procedure 84-42 does not purport to establish legal requirements for contingent stock arrangements to qualify for tax-deferred treatment, and available case law supports the position that the Earnout Shares should be eligible to be received on a tax-deferred basis in connection with the Merger. For example, in Carlberg v. United States, 281 F.2d 507 (8th Cir. 1960), the Eighth Circuit Court of Appeals ruled in favor of the taxpayer in connection with a contingent stock arrangement that had a term of 10 years. In Hamrick v. Commissioner, 43 T.C. 21 (Tax Court 1964), the court ruled in favor of the taxpayer in a contingent stock arrangement with a term of 7 years. See also Letter Ruling 9024006 (ruling favorably on escrow arrangement with a 10-year escrow term).

Based upon and subject to the foregoing, we are of the opinion that, under currently applicable United States federal income tax law, the Merger should qualify as a “reorganization” within the meaning of Section 368(a) of the Code.

July 13, 2022
Page 3

 

In addition to the matters set forth above, this opinion is subject to the exceptions, limitations, and qualifications set forth below.

1. This opinion represents our best judgment regarding the application of United States federal income tax laws arising under the Code, judicial decisions, administrative regulations, and published rulings and procedures, but does not address all of the United States federal income tax consequences of the Merger. We express no opinion as to United States federal, state, local, foreign, or other tax consequences, other than as set forth herein. Our opinion is not binding upon the IRS or the courts, and there is no assurance that the IRS will not assert a contrary position. Furthermore, no assurance can be given that future legislative, judicial, or administrative changes, on either a prospective or retroactive basis, would not adversely affect the validity of the conclusions stated herein. Nevertheless, we undertake no responsibility to advise you of any new developments in the application or interpretation of the United States federal income tax laws. In addition, this opinion is being delivered prior to the consummation of the Merger and therefore is prospective and dependent on future events.

2. No opinion is expressed as to any transaction other than the Merger as described in the Merger Agreement, or to any transaction whatsoever, including the Merger, if, to the extent relevant to our opinion, either all the transactions described in the Merger Agreement are not consummated in accordance with the terms of the Merger Agreement and without waiver or breach of any provisions thereof or all of the factual statements, representations, warranties, and assumptions upon which we have relied are not true and accurate at all relevant times.

We are furnishing this opinion in connection with the filing of the Registration Statement, and this opinion is not to be relied upon for any other purpose without our prior written consent. We consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to our firm name therein under the caption “Material U.S. Federal Income Tax Consequences of the Merger to Holders of Voltus Capital Stock.” In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules or regulations of the Securities and Exchange Commission promulgated thereunder.

Sincerely,

/s/ Latham & Watkins LLP

XML

Document And Entity Information	3 Months Ended
	Mar. 31, 2022
Document Information Line Items
Entity Registrant Name	Broadscale Acquisition Corp.
Document Type	S-4/A
Amendment Flag	true
Amendment Description	AMENDMENT NO. 3
Entity Central Index Key	0001838697
Entity Filer Category	Non-accelerated Filer
Entity Small Business	true
Entity Emerging Growth Company	true
Entity Ex Transition Period	false
Entity Incorporation, State or Country Code	DE