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United States securities and exchange commission logo
March 7, 2022
John F. Erhard
Chief Executive Officer
ArcLight Clean Transition Corp. II
200 Clarendon Street, 55th Floor
Boston, Massachusetts 02116
Re: ArcLight Clean
Transition Corp. II
Registration
Statement on Form S-4
Filed February 8,
2022
File No. 333-262583
Dear Mr. Erhard:
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.
Form S-4 filed February 8, 2022
Questions and Answers about the Business Combination and the Special
Meeting
Q. What Equity Stake Will Current ArcLight Equityholders and OPAL
Fuels..., page 14
1. Please disclose the
sponsor and its affiliates total potential ownership interest in the
combined company,
assuming exercise and conversion of all securities.
Q. Do Any of Arclight's Directors or Officers Have Interests in the
Business Combination...,
page 22
2. We note your reference
here to your section about interests of ArcLight's directors and
officers in the
Business Combination beginning on page 140 and also your reference to a
risk factor on this
topic which we note begins on page 75. We also note your disclosure in
the summary on page 35.
In the risk factor you disclose the value of the Class B ordinary
John F. Erhard
FirstName LastNameJohn
Transition F. Erhard
ArcLight Clean Corp. II
Comapany
March NameArcLight Clean Transition Corp. II
7, 2022
March2 7, 2022 Page 2
Page
FirstName LastName
shares by ArcLight's sponsor and independent directors, but we note
that your sponsor
also purchased an aggregate of 9,223,261 ArcLight private placement
warrants, and that at
the closing of the business combination, ArcLight s sponsor,
directors and officers, and
their respective affiliates will be reimbursed for any out-of-pocket
expenses incurred in
connection with activities on ArcLight s behalf such as identifying
potential target
businesses and performing due diligence on suitable targets for
business
combinations. 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.
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.
Summary, page 26
4. As part of this transaction, we note that you have entered into a
subscription agreement
with affiliates of Nextera Energy, Inc. to sell 1,000,000 Series A
preferred units of OPAL
Fuels for $100 million, and that such additional securities will be
used to satisfy the
Aggregate Transaction Proceeds required to complete the business
combination
transaction after returning funds to redeeming stockholders. Revise
the disclosure to
discuss the key terms of these securities and to disclose the
potential impact of those
securities on non-redeeming shareholders.
Simplified Post-Combination New OPAL Structure, page 28
5. Please quantify the ownership levels and voting interests of the
entities in this chart in
New OPAL and OPAL Fuels, and the redemption level assumed.
Risk Factors, page 47
6. 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.
Some of ArcLight's officers and directors may have conflicts of interest...,
page 75
7. 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.
John F. Erhard
FirstName LastNameJohn
Transition F. Erhard
ArcLight Clean Corp. II
Comapany
March NameArcLight Clean Transition Corp. II
7, 2022
March3 7, 2022 Page 3
Page
FirstName LastName
Pre-existing relationships between participants in the Business Combination and
the related
transactions..., page 76
8. You disclose that certain of the participants in the Business
Combination and the PIPE
Financing or their affiliates have pre-existing relationships that
could give rise to conflicts
of interest in connection with the Business Combination and related
transactions. For
example, you disclose that certain of the PIPE Investors (including
one of the lead PIPE
Investors) have interests in or are affiliated with investors in OPAL
Fuels, as well as
certain other contractual relationships with OPAL Fuels. We also note
your disclosure on
page 264 that an affiliate of ArcLight is participating in the PIPE.
Please clarify if
ArcLight's sponsor or its affiliates have any ownership interest in
OPAL Fuels or any
contractual relationship with OPAL Fuels. If so, please disclose the
approximate dollar
value of the interest based on the transaction value and recent
trading prices as compared
to the price paid, and also clarify how the board considered those
conflicts in negotiating
and recommending the business combination.
If the Business Combination is consummated, ArcLight's shareholders will
experience dilution.,
page 77
9. 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. Please also provide disclosure of the impact of
each significant source
of dilution, including the amount of equity held by founders,
convertible securities,
including warrants retained by redeeming shareholders, at each of the
redemption levels
detailed in your sensitivity analysis, including any needed
assumptions. Also include
disclosure regarding your underwriting fees on a percentage basis for
shares at each
redemption level presented in your sensitivity analysis related to
dilution. It appears that
underwriting fees remain constant and are not adjusted based on
redemptions.
OPAL Fuels' current majority stockholder is expected, following the Business
Combination, to
have control over all stockholder decisions , page 86
10. We note your disclosure on page 86 that Mr. Mark Comora will hold in
the aggregate a
substantial majority of the voting power of your capital stock and
will control a majority
of the combined voting power of New OPAL Common Stock, and therefore
be able to
control most matters submitted to New OPAL stockholders for approval.
Please revise to
quantify the voting power to be held by Mr. Comora.
The Background of the Business Combination Agreement, page 101
11. Your charter waived the corporate opportunities doctrine under certain
circumstances.
Please address this potential conflict of interest and whether it
impacted your search for an
acquisition target.
John F. Erhard
FirstName LastNameJohn
Transition F. Erhard
ArcLight Clean Corp. II
Comapany
March NameArcLight Clean Transition Corp. II
7, 2022
March4 7, 2022 Page 4
Page
FirstName LastName
Negotiations with OPAL Fuels, page 103
12. Throughout this section, you disclose meetings and discussions among
ArcLight, OPAL
Fuels, and each side's respective advisors. Please revise to make
clear the persons
involved in negotiations or other activities..
PIPE Financing (Private Placement), page 125
13. Please highlight material differences in the terms and price of
securities issued at the time
of the IPO as compared to private placements contemplated at the time
of the
business combination.
Certain Opal Fuels Projected Financial Information, page 129
14. Please clarify the extent to which the projected items represent the
most probable specific
amount for each financial item projected, and reconcile your statement
indicating you do
not intend to provide any update or revision to the prospective
information, with Item
10(b)(3)(iii) of Regulation S-K, as it may pertain to circumstances
under which you would
know or have reason to know that your previously disclosed projections
no longer have a
reasonable basis.
15. Please revise to clarify that the key elements of the projections
summarized on page 131
do not reflect certain expenses and impacts associated with the terms
of the business
combination agreement. For example, the projections do not reflect i)
the potential
expense or dilutitive effect associated with the issuance of 10
million incremental shares
to the extent that New OPAL s annual EBITDA for the calendar year
2023 and 2024
exceeds the amounts of Adjusted EBITDA depicted in the projections,
ii) the calculation
of earnings attrituable to New Opal resulting from the legacy
shareholders' retention of
their majority interests of Opal Fuels, or iii) the use of cash
necessary to fulfill the
potential obligations resulting from the Tax Receivable Agreement.
16. We note your disclosure regarding the financial forecasts provided by
OPAL Fuels to
ArcLight and the estimates and assumptions used in preparing the
forecasts. Please revise
to qualitatively and quantitatively discuss all material assumptions
underlying the
projections. For example, we note the financial forecast information
provided in Slide 39
of your December investor presentation filed as Exhibit 99.2 to a Form
8-K filed on
December 2, 2021. Please also provide additional details and
quantitative support, as
appropriate, for the material assumptions that account for the
projected significant revenue
growth through 2025.
17. We note that a significant amount of projected RNG supply and
increases in EBITDA
from 2021-2025 described on slides 40 and 41 of the December investor
presentation
appears to be from in-development "controlled" projects. Please
discuss if such
"controlled" projects are disclosed in the business section under
"OPAL s Projects"
beginning on page 217 or otherwise revise to disclose these
"controlled" projects and the
assumptions as to their development over the next five years.
John F. Erhard
FirstName LastNameJohn
Transition F. Erhard
ArcLight Clean Corp. II
Comapany
March NameArcLight Clean Transition Corp. II
7, 2022
March5 7, 2022 Page 5
Page
FirstName LastName
18. We note your disclosure cautioning investors "not to rely on the
OPAL Fuels projected
financial information. While it may be appropriate to caution
investors not to place undue
reliance upon prospective financial information, it is not appropriate
to tell readers to not
rely upon them as you have included the disclosures. Please revise
your disclosures
accordingly.
Forum Selection (Proposal 4D), page 152
19. We note your disclosure regarding your exclusive forum provision for
certain actions and
claims. Please revise your disclosure in this section to identify
such actions and claims,
and to clarify the courts selected in your exclusive forum provision.
In addition, please
disclose that the provision does not apply to suits brought to enforce
a duty or liability
created by the Exchange Act or any other claim for which federal
courts have exclusive
jurisdiction. We note the related statement in Section 12.1 of your
proposed charter, and
your disclosure on page 276. In addition, please disclose the
provision in Section 12.3 of
your proposed charter that selects the U.S. federal district courts as
the exclusive forum
for the resolution of any complaint asserting a cause of action
arising under the Securities
Act, and revise your prospectus to state that there is uncertainty as
to whether a court
would enforce such provision. Please ensure that you make conforming
changes
throughout your prospectus.
Material U.S. Federal Income Tax Considerations , page 166
20. Please provide an opinion of counsel as to the tax consequences of the
Domestication. For
example, you disclose that the U.S. federal income tax consequences of
the
Domestication will depend primarily upon whether the Domestication
qualifies as a
reorganization within the meaning of Section 368 of the Code,
and you disclose that the
transaction should qualify as a reorganization under Section
368(a)(1)(F) of the Code.
See Item 601(b)(8) of Regulation S-K, and for further guidance,
Section III of Staff Legal
Bulletin 19 (October 14, 2011).
Unaudited Pro Forma Combined Financial Information
Note 3 - Accounting for the Transactions
Earnout, page 190
21. We note disclosure that the accounting treatment of the earnout
arrangements are being
evaluated to assess if the arrangements qualify as equity classified
instruments or liability
classified instruments. Please tell us how you considered the guidance
in ASC 805-10-
55-24 through 25 in determining the appropriate accounting treatment
for these earnout
arrangements.
Note 6 - Adjustments to Unaudited Pro Forma Condensed Combined Balance Sheet,
page 193
22. In note 6 (l) you discuss the Tax Receivable Agreement (TRA), and the
potential for
significant cash payments related to such agreement. Please revise to
quantify in this
John F. Erhard
FirstName LastNameJohn
Transition F. Erhard
ArcLight Clean Corp. II
Comapany
March NameArcLight Clean Transition Corp. II
7, 2022
March6 7, 2022 Page 6
Page
FirstName LastName
disclosure the estimated maximum payment that you may be required to
make under the
TRA if there were a redemption of all of the OPAL Common Units by TRA
participants,
or if there were a change of control, or termination of the TRA as
discussed on pages 127
and 265 of the document.
Information about OPAL Fuels
Overview of Dispensing and Monetization Business, page 213
23. We note your disclosure that in November 2021 OPAL signed a five-year
agreement with
a leading renewable energy company who will purchase a substantial
majority of OPAL s
Environmental Attributes (RINs and LCFS credits). Please file this
agreement as a
material contract under Item 601(b)(10) of Regulation S-K, or provide
your analysis why
such agreement is not material.
Opal Fuels' Management's Discussion and Analysis of Financial Condition and
Results of
Operations, page 234
24. We note that you discuss some of the reasons for changes in various
line items of your
statements of operations although there appear to be instances where
the overall change is
not sufficiently addressed. When there is more than one reason for a
significant change,
you should quantify the impact of each reason having a material impact
on the overall
change in the line item. For example, you indicate that the increase
in revenue from RNG
Fuel for the nine months ended September 30, 2021 compared to the nine
months ended
September 30, 2020 was attributable primarily to acquiring the
remaining 56% interest in
Beacon and the execution of a new customer sales agreement for
Environmental
Attributes. With regard to your revenue variances, disclose the extent
to which such
changes are attributable to changes in prices or to changes in the
volume or amount of
goods or services being sold or to the introduction of new products or
services. Refer
to Item 303 of Regulation S-K.
Index to Financial Statements, page F-1
25. Please revise to provide updated financial statements and related
disclosures for Arclight
Clean Transition Corp II and OPAL Fuels LLC as required by Item 8-08
of Regulation S-
X.
Opal Fuels LLC Financial Statements
Note 2 Summary of Significant Accounting Policies, page F-75
26. We note disclosure on page 235 that in December 2020, Fortistar and
certain of its
affiliated entities contributed their respective ownership interests
in the following legal
entities to OPAL in a common-control reorganization: TruStar Energy
Holdings LLC,
Fortistar RNG LLC, Fortistar Methane 3 Holdings LLC, Fortistar Methane
3 LLC,
Fortistar Contracting LLC, and Fortistar Methane 4 LLC. OPAL accounted
for its receipt
of these interests as a transfer under common control, and accordingly
retained the
John F. Erhard
ArcLight Clean Transition Corp. II
March 7, 2022
Page 7
historical basis of accounting by its parent company as if the entities
had always been held
by OPAL. Please disclose the nature of and describe the accounting policy
for this
December 2020 transaction in the notes to your financial statements. In
doing so, refer to
ASC 805-50-45-5 and tell us how you considered the requirement to
disclose that the
financial data of previously separate entities are combined for periods
prior to December
2020.
Exhibits and Financial Statements Schedules, page II-1
27. Please file the senior secured credit facility, the Administrative
Services Agreement with
Fortistar Services 2 LLC, the Indemnification and Hold Harmless Agreement
with
Fortistar, and the Flue Gas Offtake and Preferred Partner Agreement, or
provide your
analysis as to why such agreements are not required to be filed. Refer to
Item 601(b)(10)
of Regulation S-K.
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 Mark Wojciechowski at (202) 551-3759 or John Cannarella
at (202)
551- 3337 if you have questions regarding comments on the financial statements
and related
matters. Please contact Kevin Dougherty at (202) 551-3271 or Laura Nicholson,
Special
Counsel, at (202) 551-3584 with any other questions.
Sincerely,
FirstName LastNameJohn F. Erhard
Division of
Corporation Finance
Comapany NameArcLight Clean Transition Corp. II
Office of Energy &
Transportation
March 7, 2022 Page 7
cc: Julian Seiguer
FirstName LastName