Sec Form 13D Filing - INCLUSIVE CAPITAL PARTNERS L.P. filing for AppHarvest Inc. (APPH) - 2021-02-05

AppHarvest, Inc.

Common Stock, par value $0.0001 per share

03783T103

(212) 756-2000

January 29, 2021

NAME OF REPORTING PERSON

Inclusive Capital Partners, L.P.

(a) ¨

(b) ¨

SOURCE OF FUNDS

OO

CITIZENSHIP OR PLACE OF ORGANIZATION

Delaware

SOLE VOTING POWER

0

SHARED VOTING POWER

11,798,704

SOLE DISPOSITIVE POWER

0

SHARED DISPOSITIVE POWER

11,798,704

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

11,798,704

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

12.0%

TYPE OF REPORTING PERSON

PN, IA

NAME OF REPORTING PERSON

Jeffrey W. Ubben

(a) ¨

(b) ¨

SOURCE OF FUNDS

OO

CITIZENSHIP OR PLACE OF ORGANIZATION

United States

SOLE VOTING POWER

0

SHARED VOTING POWER

11,798,704

SOLE DISPOSITIVE POWER

0

SHARED DISPOSITIVE POWER

11,798,704

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

11,798,704

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

12.0%

TYPE OF REPORTING PERSON

IN

This Schedule 13D is being jointly filed by (i) Inclusive Capital Partners, L.P., a Delaware limited partnership ("In-Cap") and (ii) Mr. Jeffrey W. Ubben, a United States citizen ("Mr. Ubben"). In-Cap and Mr. Ubben are sometimes also referred to herein individually as a "Reporting Person" and collectively as the "Reporting Persons".

In-Cap and Inclusive Capital Partners Spring Fund Manager, L.L.C., a Delaware limited liability company ("In-Cap Spring Fund Manager"), have been granted investment and voting discretion over the investments, including the Shares, held by Inclusive Capital Partners Spring Master Fund, L.P., a British Virgin Islands limited partnership ("In-Cap Spring Master Fund"). In-Cap acts as investment manager to In-Cap Spring Master Fund. The managing member of In-Cap Spring Fund Manager is Inclusive Capital Partners Holdco, L.P., a Delaware limited partnership ("In-Cap Holdco"). In-Cap is the GP of In-Cap Holdco. Inclusive Capital Partners, L.L.C., a Delaware limited liability company ("In-Cap LLC"), is the GP of In-Cap. Mr. Ubben is the controlling member of the management committee of In-Cap LLC.

In-Cap Spring Fund Manager, In-Cap Holdco and In-Cap LLC are sometimes also referred to herein individually as an "Instruction C Person" and collectively as the "Instruction C Persons". To the best of each of the Reporting Person's knowledge, none of the Instruction C Persons owns any Shares, has transacted in the Shares in the past 60 days, or is party to any contract or agreement that would require disclosure in this Schedule 13D.

On January 29, 2021, the transactions contemplated by the Business Combination Agreement and Plan of Reorganization (the "BCA"), dated as of September 28, 2020, by and among Novus Capital Corporation ("Novus"), ORGA Inc., a direct, wholly-owned subsidiary of Novus ("Merger Sub"), and AppHarvest Operations, Inc. (f/k/a AppHarvest, Inc.)("Legacy AppHarvest") were consummated (the "Closing"). Pursuant to the BCA, through a merger between Legacy AppHarvest and Merger Sub (the "Business Combination"), Legacy AppHarvest became a direct, wholly-owned subsidiary of Novus, which subsequently changed its name to AppHarvest, Inc. (the "Issuer").

In connection with the Closing, In-Cap Spring Master Fund received (i) 6,556,368 Shares in the Business Combination in exchange for shares of Legacy AppHarvest, (ii) 3,242,336 Shares pursuant to the automatic conversion of principal and unpaid and accrued interest on certain convertible notes (the "Convertible Promissory Notes") issued by Legacy AppHarvest and assumed by the Issuer immediately prior to the Closing and (iii) 2,000,000 shares pursuant to the Subscription Agreement (as defined and described in Item 6 below).

Mr. Ubben was appointed to the board of directors of the Issuer in connection with the Business Combination.

The Reporting Persons have had and anticipate having further discussions with officers and directors of the Issuer in connection with the Reporting Persons' investment in the Issuer. The topics of these conversations have covered and will cover a range of issues, including those relating to the business of the Issuer, management, board composition, investor communications, operations, capital allocation, dividend policy, financial condition, mergers and acquisitions strategy, overall business strategy, executive compensation, corporate governance and environmental and social matters related to the Issuer's business and stakeholders. The Reporting Persons may also have similar conversations with other stockholders or other interested parties, such as industry analysts, existing or potential strategic partners or competitors, investment professionals and other investors and may exchange information with any such persons or the Issuer pursuant to appropriate confidentiality or similar agreements (which may contain customary standstill provisions). The Reporting Persons may at any time reconsider and change their intentions relating to the foregoing. The Reporting Persons may also take one or more of the actions described in subsections (a) through (j) of Item 4 of Schedule 13D and may discuss or propose such actions with the Issuer's management and the board of directors of the Issuer, other stockholders of the Issuer, and other interested parties, such as those set out above. The Reporting Persons intend to review their investments in the Issuer on a continuing basis. Depending on various factors, including, without limitation, the Issuer's financial position and strategic direction, the outcome of the discussions and actions referenced above, actions taken by the Issuer's board of directors, price levels of the Shares, liquidity requirements and other investment opportunities available to the Reporting Persons, conditions in the securities market and general economic and industry conditions, the Reporting Persons may in the future take actions with respect to their investment position in the Issuer as they deem appropriate, including, without limitation, purchasing additional Shares or other instruments that are based upon or relate to the value of the Shares or the Issuer in the open market or otherwise, selling some or all of the securities reported herein, and/or engaging in hedging or similar transactions with respect to the Shares.

On September 28, 2020, In-Cap Spring Master Fund entered into a Subscription Agreement with the Issuer (the "Subscription Agreement"), the form of which is attached as Exhibit B hereto and is incorporated herein by reference, pursuant to which it agreed to purchase 2,000,000 Shares at a price of $10.00 per Share.

Under the terms of the Convertible Promissory Note, upon the Closing and the assumption of the Convertible Promissory Note by the Issuer, In-Cap Spring Master Fund became entitled to the same registration rights with respect to the Shares issued with respect to the Convertible Promissory Note as it is entitled to pursuant to the Subscription Agreement.

On January 29, 2021, In-Cap Spring Master Fund entered into an Amended and Restated Registration Rights Agreement with the Issuer and the other parties thereto (the "Registration Rights Agreement"), the form of which is attached as Exhibit C hereto and is incorporated herein by reference.

On January 29, 2021, In-Cap Spring Master Fund and Mr. Ubben each entered into a lock-up agreement with the Issuer (the "Lock-Up Agreements"), the form of which is attached as Exhibit D hereto and is incorporated herein by reference.

The foregoing descriptions of the Subscription Agreement, Registration Rights Agreement and Lock-Up Agreements do not purport to be complete and are qualified in their entirety by reference to the full text of the Subscription Agreement, Registration Rights Agreement and Lock-Up Agreements which are attached as Exhibit B, C and D, respectively.

Except as otherwise described in this Schedule 13D, there are no contracts, arrangements, understandings or similar relationships with respect to the securities of the Issuer between any of the Reporting Persons or Instruction C Persons and any other person or entity.

Subscription Agreement (incorporated herein by reference to the form of Subscription Agreement which is attached as Exhibit 10.1 of the Issuer's Current Report on Form 8-K filed with the SEC on February 2, 2021 (the "Issuer Form 8-K")).

Registration Rights Agreement (incorporated herein by reference to the Amended and Restated Registration Rights Agreement which is attached as Exhibit 10.3 of the Issuer Form 8-K).