UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 


 

FORM 8-K

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

 

Date of Report (Date of earliest event reported): March 20, 2018

 

M III ACQUISITION CORP.

(Exact Name of Registrant as Specified in Charter)

 

Delaware

 

001-37796

 

47-4787177

(State or Other Jurisdiction
of Incorporation)

 

(Commission
File Number)

 

(IRS Employer
Identification No.)

 

3 Columbus Circle
15th Floor
New York, New York

 

10019

(Address of Principal Executive Offices)

 

(Zip Code)

 

Registrant’s telephone number, including area code: (212) 716-1491

 

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):

 

o    Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

x   Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o    Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o    Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e 4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company   x

 

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 13(a) of the Exchange Act.   o

 

 

 



 

Reference is made to the Agreement and Plan of Merger, dated as of November 3, 2017 (as amended, the “Merger Agreement”), by and among IEA Energy Services LLC (together with its subsidiaries, “IEA”), M III Acquisition Corp. (the “Company”), Wind Merger Sub I, Inc. (“Merger Sub I”), Wind Merger Sub II, LLC (together with Merger Sub I, the “Merger Subs”), Infrastructure and Energy Alternatives, LLC (“Seller”), Oaktree Power Opportunities Fund III Delaware, L.P., solely in its capacity as the representative of the Seller (“Seller’s Representative”), and, solely for purposes of Section 10.3 thereof, and, to the extent related thereto, Article 12 thereof, M III Sponsor I LLC and M III Sponsor I LP (together, the “Sponsors”).  Capitalized terms used in this Current Report on Form 8-K and not defined have the meanings assigned in the Merger Agreement.

 

Item 1.01 Entry into a Material Definitive Agreement

 

Waiver, Consent and Agreement to Forfeit Founder Shares

 

On March 20, 2018, the Company, the Seller, IEA, the Seller’s Representative, the Merger Subs and the Sponsors entered into a Waiver, Consent and Agreement to Forfeit Founder Shares (the “Waiver”), pursuant to which, among other things, the Seller and IEA agreed to waive the condition to Closing set forth in Section 9.14 of the Merger Agreement and the termination right set forth in Section 10.1(g)(ii) of the Merger Agreement; provided, in each case that (i) Available Cash is not less than $72.0 million (and if Available Cash is less than $72.0 million, the Seller’s Representative can terminate the Merger Agreement in accordance with Section 10.1(g)(ii) thereof), (ii) the transactions contemplated by the Advisor Commitment Agreements (as defined below) have been consummated (or will be consummated substantially concurrently with Closing) and (iii) the amount available to be drawn on the date on which the Closing occurs (the “Closing Date”) is not less than (x) the amount required to pay Transaction Expenses and any Working Capital Overage plus (y) an amount equal to the amount by which Available Cash is less than $100.0 million.  The Seller and IEA also consented to the transactions contemplated by the Advisor Commitment Agreements, as well as certain additional agreements with advisors to the Company and Seller that may be entered into prior to Closing.  In connection therewith, Seller and IEA agreed that: (a) all shares of common stock of the Company, par value $0.0001 per share (“Common Stock”) issued to or acquired by the advisors party to the Advisor Commitment Agreements shall be “Registrable Securities” for all purposes of the Buyer A&R Registration Rights Agreement to be executed and delivered at Closing, (b) the number of shares of Common Stock referenced as outstanding on the date of the Investor Rights Agreement in the definition of the Sponsor Higher Condition and the Sponsor Minimum Condition in the Investor Rights Agreement to be executed and delivered at Closing shall be reduced by the number of Founder Shares forfeited in accordance with the terms of the Waiver; and (c) the number of “Founder Shares” and “Earnout Shares” set forth opposite the name of each Sponsor on Exhibit A to the Founder Shares Amendment Agreement shall be reduced by the number of Founder Shares and “Earnout Shares”, respectively, that the Sponsors have forfeited pursuant to the Waiver (and after giving effect to any forfeiture of Founder Shares at Closing pursuant to the Forfeiture Agreement entered into prior to the date of this Current Report on Form 8-K and referenced in Amendment No. 5 to the Merger Agreement).

 

The Company agreed to waive the condition to Closing set forth in Section 8.11 of the Merger Agreement; provided, that (i) Available Cash is not less than $72.0 million, (ii) the transactions contemplated by the Advisor Commitment Agreements have been consummated (or will be consummated substantially concurrently with Closing) in accordance with the terms thereof, unless the failure of such transactions to be so consummated arises out of or in connection with a breach by the Company of its obligations under the Waiver, in which case the condition shall be waived and (iii) the aggregate amount of commitments available to the Company on the Closing Date under the Replacement Credit Facility is not less than $100.0 million and the amount available to be drawn on the Closing Date is not less than (x) the amount required to pay Transaction Expenses and any Working Capital Overage plus (y) an amount equal to the amount by which Available Cash is less than $100.0 million.

 

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The Sponsors agreed to forfeit at Closing to the Buyer an aggregate of 425,000 Founder Shares, of which 106,250 Founder Shares shall be comprised of “Earnout Shares” described in Section 1(a) of the Founder Shares Amendment Agreement (“$12 Earnout Shares”) and 106,250 Founder Shares shall be comprised of the “Earnout Shares” described in Section 1(b) of the Founder Shares Amendment Agreement (“$14 Earnout Shares”). The Buyer agreed to issue to Seller at Closing 425,000 shares of Common Stock, of which (i) 106,250 shares shall be subject to the same vesting terms applicable to the $12 Earnout Shares and (ii) 106,250 shares of Common Stock shall be subject to the same vesting and forfeiture terms applicable to the $14 Earnout Shares. The number of shares constituting $12 Earnout Shares and $14 Earnout Shares may be changed by mutual agreement of the Parties.

 

The Parties agree that an additional 525,000 Founder Shares held by the Sponsors in the aggregate (twenty-five percent (25%) of which shall be comprised of $12 Earnout Shares and twenty-five percent (25%) of which shall be comprised of $14 Earnout Shares) (collectively, the “Transfer Restricted Shares”) shall be subject to certain transfer restrictions. Upon the determination of Final 2018 EBITDA and the determination of the number of shares of Common Stock issuable to Seller pursuant to Section 3.6(f) of the Merger Agreement, such number of Transfer Restricted Shares (twenty-five percent (25%) of which shall be comprised of $12 Earnout Shares and twenty-five percent (25%) of which shall be comprised of $14 Earnout Shares) shall be released from such transfer restrictions that is equal to  (x) 525,000 multiplied by (y) the quotient of the aggregate number of Earnout Shares issued to Seller pursuant to Section 3.6(f) of the Merger Agreement divided by 9,000,000; provided that any $12 Earnout Shares or $14 Earnout Shares that would otherwise have vested in accordance with the terms of the Founder Shares Amendment Agreement shall be deemed vested upon release from such transfer restrictions. Upon the determination of Final 2019 EBITDA and the determination of the number of shares of Common Stock issuable to Seller pursuant to Section 3.6(g) of the Merger Agreement, such number of Transfer Restricted Shares (twenty-five percent (25%) of which shall be comprised of $12 Earnout Shares and twenty-five percent (25%) of which shall be comprised of $14 Earnout Shares) shall be released from such transfer restrictions, in an aggregate amount that, together with the Founder Shares released pursuant to foregoing sentence, is equal to  (x) 525,000 multiplied by (y) the quotient of the aggregate number of Earnout Shares issued to the Seller pursuant to Section 3.6(g) of the Merger Agreement divided by 9,000,000; provided that any $12 Earnout Shares or $14 Earnout Shares that would otherwise have vested in accordance with the terms of the Founder Shares Amendment Agreement shall be deemed vested upon release from such transfer restrictions. Following the determination of Final 2019 EBITDA, any Transfer Restricted Shares that have not been released in accordance with foregoing sentences shall be automatically forfeited without any action by any party hereto or any other person, and the Company shall cancel such Transfer Restricted Shares for no consideration.  The Company shall issue to the Seller a number of shares of Common Stock equal to the number of Transfer Restricted Shares so cancelled.  Twenty-five percent (25%) of such Common Stock shall be comprised of $12 Earnout Shares and twenty-five percent (25%) of such Common Stock shall be comprised of $14 Earnout Shares; provided that to the extent any of the Transfer Restricted Shares would otherwise have vested in accordance with the terms of the Founder Share Amendment Agreement the $12 Earnout Shares and $14 Earnout Shares that would otherwise have been issued to Seller shall be deemed vested upon issuance to the Seller.  The percentage of shares constituting $12 Earnout Shares and $14 Earnout Shares may be changed by mutual agreement of the Parties.

 

The Waiver is filed with this Current Report on Form 8-K as Exhibit 10.1, and is incorporated herein by reference, and the foregoing description is qualified in its entirety by reference thereto.

 

Item 3.02 Unregistered Sale of Equity Securities.

 

The disclosure set forth in Item 8.01 of this Current Report on Form 8-K is incorporated by reference herein. The shares of Common Stock to be issued in connection with the Advisor Commitment Agreements will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), and will be issued in reliance upon the exemption from registration provided in Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder.

 

Item 8.01 Other Events

 

The Company issued a press release on March 20, 2018 announcing the postponement of the special meeting of stockholders to approve the proposed business combination to March 21, 2018 at 10:00 a.m., Eastern time.

 

On March 19, 2018, the Company entered into a commitment agreement with one of its advisors (an “Advisor Commitment Agreement” and, together with the agreement in principle described in subsequent paragraph, “Advisor Commitment Agreements”) pursuant to which such advisor will purchase shares of Common Stock from stockholders that have validly delivered such Common Stock for redemption against the Trust Account who have agreed to rescind their withdrawal requests or, to the extent not so purchased, the issuance by the Company of Common Stock.

 

The Company also has an agreement in principal with one of its advisors, subject to documentation, pursuant to which such advisor will purchase  Common Stock from stockholders that have validly delivered such Common Stock for redemption against the Trust Account and that have agreed to rescind their redemption requests.  The amount of Common Stock to be so purchased, together with the amount of Common Stock to be purchased or issued in accordance with the

 

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agreement described in the foregoing paragraph, is approximately $14,000,000.

 

On March 20, 2018, the Company issued a press release announcing the transactions otherwise described in this Current Report on Form 8-K. The full text of the press release is attached hereto as Exhibit 99.1 and incorporated in its entirety herein by reference.

 

Additional Information

 

The proposed business combination has been submitted to stockholders of the Company for their approval. In connection with that approval, the Company has filed with the SEC on February 9, 2018 (as supplemented by the proxy supplement filed with the SEC on March 8, 2018, and as it may be further supplemented from time to time, the “Proxy Supplement”) containing information about the proposed business combination and the respective businesses of the Company and IEA. Stockholders are urged to read the Proxy Statement because it contains important information. Stockholders will be able to obtain a free copy of the Proxy Statement, as well as other filings containing information about the Company, without charge, at the SEC’s website (www.sec.gov) or by calling 1-800-SEC-0330. Copies of the Proxy Statement and other filings with the SEC can also be obtained, without charge, by directing a request to M III Acquisition Corp., 3 Columbus Circle, 15th Floor, New York, NY 10019, (212) 716-1491.

 

The Company, IEA and their respective directors and executive officers may be deemed to be participants in the solicitations of proxies from the Company’s stockholders in respect of the proposed transaction. Information regarding the Company’s directors and executive officers, additional participants in the proxy solicitation and a description of their direct and indirect interests is contained in the Proxy Statement.

 

Item 9.01 Financial Statements and Exhibits.

 

(d)  Exhibits:

 

Exhibit

 

Description

10.1

 

Waiver, Consent and Agreement to Forfeit Founder Shares, dated as of March 20, 2018, by and among IEA Energy Services LLC, Infrastructure and Energy Alternatives, LLC, Oaktree Power Opportunities Fund III Delaware, L.P., M III Acquisition Corp., Wind Merger Sub I, Inc., Wind Merger Sub II, LLC, M III Sponsor I LLC and M III Sponsor I LP.

99.1

 

Press Release, dated March 20, 2018.

 

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SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

Dated: March 20, 2018

 

 

M III ACQUISITION CORP.

 

 

 

By:

/s/ Mohsin Meghji

 

Name:

Mohsin Y. Meghji

 

Title:

Chairman and Chief Executive Officer

 

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Exhibit 10.1

 

WAIVER, CONSENT AND AGREEMENT TO FORFEIT FOUNDER SHARES

 

This Waiver, Consent and Agreement to Forfeit Founder Shares (this “ Agreement ”), dated as of March 20, 2018, is entered into by and among the parties listed on the signature pages hereto.

 

WHEREAS, reference is made to the Agreement and Plan of Merger, dated as of November 3, 2017 (as amended, the “ Merger Agreement ”), by and among IEA Energy Services LLC, a Delaware limited liability company (the “ Company ”), M III Acquisition Corp., a Delaware corporation (the “ Buyer ”), Wind Merger Sub I, Inc., a Delaware corporation and a wholly owned subsidiary of the Buyer (“ Merger Sub I ”), Wind Merger Sub II, LLC, a Delaware limited liability company and a wholly owned subsidiary of the Buyer (“ Merger Sub II ”), Infrastructure and Energy Alternatives, LLC, a Delaware limited liability company (the “ Seller ”), Oaktree Power Opportunities Fund III Delaware, L.P., a Delaware limited partnership, solely in its capacity as the representative of the Seller (“ Seller’s Representative ”), and, solely for purposes of Section 10.3 thereof, and, to the extent related thereto, Article 12 thereof, M III Sponsor I LLC (“ Sponsor I ”), a Delaware limited liability company, and M III Sponsor I LP, a Delaware limited partnership (together with Sponsor I, the “ Sponsors ”).  Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Merger Agreement;

 

WHEREAS, subject to the terms and conditions described herein, pursuant to and in accordance with Section 12.2 of the Merger Agreement, the parties wish to provide certain waivers and consents and agree to certain amendments, in each case as set forth herein;

 

WHEREAS, the Sponsors have agreed to forfeit to the Buyer (i) 425,000 Founder Shares upon the closing of the transactions contemplated by the Merger Agreement (the “ Closing ”) and (ii) following the determination of Final 2019 EBITDA, a number of additional Founder Shares depending upon the number of Earnout Shares issued to the Seller in accordance with Section 3.6 of the Merger Agreement; and

 

WHEREAS, the Buyer has agreed to issue to the Seller a number of Buyer Common Shares equal to the number of Founder Shares forfeited hereunder at such time as such Founder Shares are forfeited.

 

NOW, THEREFORE, in consideration of the rights and obligations contained herein, and for other good and valuable consideration, the adequacy of which is hereby acknowledged, the parties agree as follows:

 

Section 1.                                      Representations and Warranties of the Buyer .  The Buyer hereby represents and warranties to the Seller and the Company that  prior to the date hereof, the Buyer has delivered to the Seller and the Company true, correct and complete copies of the Required Commitment Agreements (as defined below) to the extent executed prior to the date hereof, and any other agreements or understandings (whether written or oral) entered into after the date of the Merger Agreement by any of the Sponsors, the Buyer, IEA Intermediate Holdco, LLC, Merger Sub I or Merger Sub II with any Person with respect to any equity interests of the Buyer or any options, warrants, convertible or

 



 

exchangeable securities, subscriptions, derivatives, rights, calls, commitments or agreements relating to the equity interests of the Buyer, in each case  as in effect on the date hereof and no amendments thereto are pending.

 

Section 2.                                      Waivers and Consents by Seller and the Company .  Seller and the Company:

 

(a)                                  hereby waive the condition to Closing set forth in Section 9.14 of the Merger Agreement and the termination right set forth in Section 10.1(g)(ii) of the Merger Agreement; provided , in each case that (i) Available Cash is not less than $72,000,000 (and the Seller’s Representative shall be entitled to terminate the Merger Agreement pursuant to Section 10.1(g)(ii) thereof (subject to the time periods set forth therein) if Available Cash is less than $72,000,000), (ii) any agreements (the “ Required Commitment Agreements ”) providing for the issuance by the Company of shares of Common Stock have been approved by the Seller’s Representative and (iii) the amount available to be drawn on the Closing Date under the Replacement Credit Facility shall not be less than (x) the amount required by Section 3.4(c) of the Merger Agreement plus (y) an amount equal to the amount by which Available Cash is less than $100,000,000;

 

(b)                                  notwithstanding Section 7.2(b) of the Merger Agreement, consent to (i) the issuance by the Company at or prior to the Closing of Buyer Common Shares (valued at the redemption price per share) to one or more financial advisors to the Company or the Seller (each, an “ Advisor ”) in lieu of the payment of up to $5,000,000 in cash fees payable to such Advisors in the aggregate (which, for the avoidance of doubt, shall include any issuance of Buyer Common Shares by the Company pursuant to the Required Commitment Agreement described in clause (ii)(B) of Section 2(a) hereof); provided that (x) such fees would have otherwise constituted Transaction Expenses and (y) the terms of such issuance are consistent in all material respects with terms previously disclosed to the Seller’s Representative or otherwise are satisfactory to the Seller’s Representative (such fees, “ Advisor Fees ”); and (ii) the issuance by the Company of up to 217,256 Buyer Common Shares to persons to whom the Sponsors have otherwise agreed to transfer Founder Shares on or prior to the date of this Agreement in exchange for the forfeiture by the Sponsors of an equal number of Founder Shares  (the “ Replacement Shares ”);

 

(c)                                   agree that the amount of “Available Cash” in Section 1.1 of the Merger Agreement shall be increased by the amount of any Advisor Fees paid in Buyer Common Shares rather than cash in accordance with the terms hereof and the applicable Required Commitment Agreement, if any;

 

(d)                                  consent to the transactions contemplated by the Required Commitment Agreements for all purposes of Section 7.2 of the Merger Agreement, the conditions in Section 9.1 and 9.2 of the Merger Agreement and for purposes of the certificate to be delivered by Buyer pursuant to Section 9.3 of the Merger Agreement and acknowledge that notwithstanding clause (z) of Section 7.2(b) of the Merger Agreement, there shall be no increase in Cash Consideration as a result of the transactions contemplated by the Required Commitment Agreements; and

 

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(e)                                   acknowledge and agree that (i) all Buyer Common Shares issued to or acquired by the parties to the Required Commitment Agreements shall be “Registrable Securities” for all purposes of the Buyer A&R Registration Rights Agreement to be executed and delivered at Closing, (ii) the number of Buyer Common Shares referenced as outstanding on the date of the Investor Rights Agreement in the definition of “Sponsor Higher Condition” and “Sponsor Minimum Condition” in the Investor Rights Agreement to be executed and delivered at Closing shall be reduced by the Founder Shares forfeited in accordance with Section 4 below and (iii) the number of “Founder Shares” and “Earnout Shares” set forth opposite the name of each Sponsor on Exhibit A to the Founder Shares Amendment Agreement shall be reduced by the number of Founder Shares and “Earnout Shares”, respectively, that the Sponsors have forfeited pursuant to Section 4 below (and after giving effect to any forfeiture of Founder Shares at Closing pursuant to the Forfeiture Agreement entered into prior to the date hereof and referenced in Amendment No. 5 to the Merger Agreement).

 

Section 3.                                      Waivers and Agreements by Buyer and Merger Subs .  Buyer, Merger Sub I and Merger Sub II hereby:

 

(a)                                  waive the condition to closing set forth in Section 8.11 of the Merger Agreement; provided , that (i) Available Cash is not less than $72,000,000 million; (ii) the transactions contemplated by the Required Commitment Agreements have been consummated (or will be consummated substantially concurrently with Closing) in accordance with the terms thereof, unless the failure of such transactions to be so consummated arises out of or in connection with a breach by the Buyer of its obligations under Section 3(c) hereof, in which case the condition shall be waived; and (iii) the aggregate amount of commitments available to the Company on the Closing Date under the Replacement Credit Facility shall not be less than $100,000,000 and the amount available to be drawn on the Closing Date thereunder shall not be less than (x) the amount required by Section 3.4(c) of the Merger Agreement plus (y) an amount equal to the amount by which Available Cash is less than $100,000,000;

 

(b)                                  agree that the amount of “Available Cash” in Section 1.1 of the Merger Agreement shall be increased by the amount of any Advisor Fees paid in Buyer Common Shares rather than cash in accordance with the terms hereof and the applicable Required Commitment Agreement, if any; and

 

(c)                                   agree (i) to use reasonable best efforts to consummate the transactions contemplated by the Required Commitment Agreements and (ii) not to amend, waive or otherwise modify the Required Commitment Agreements without the prior written consent of the Seller’s Representative.

 

Section 4.                                      Forfeiture of Founder Shares and Issuance of Buyer Common Shares to the Seller .

 

(a)                                  At the Closing, (i) the Sponsors shall forfeit to the Buyer for no consideration an aggregate of 425,000 Founder Shares, of which 106,250 Founder Shares shall be comprised of the “Earnout Shares” described in Section 1(a) of the Founder Share

 

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Amendment Agreement (“ $12 Earnout Shares ”) and 106,250 Founder Shares shall be comprised of the “Earnout Shares” described in Section 1(b) of the Founder Share Amendment Agreement (“ $14 Earnout Shares ”), and (ii) the Buyer shall issue to Seller  an aggregate of 425,000 Buyer Common Shares, of which (x) 106,250 Buyer Common Shares shall be subject to the same vesting and forfeiture terms applicable to the $12 Earnout Shares in accordance with the Founder Share Amendment Agreement and (y) 106,250 Buyer Common Shares shall be subject to the same vesting and forfeiture terms applicable to the $14 Earnout Shares in accordance with the Founder Share Amendment Agreement.

 

(b)                                  An additional 525,000 Founder Shares in the aggregate held by the Sponsors (twenty-five percent (25%) of which shall be comprised of $12 Earnout Shares and twenty-five percent (25%) of which shall be comprised of $14 Earnout Shares) (collectively, the “ Transfer Restricted Shares ”) shall be subject to the  transfer restrictions set forth in this Section 4(b).  Each Sponsor hereby irrevocably and unconditionally agrees that, from and after the Closing until the consummation of the transactions contemplated by Sections 4(d) and 4(e) hereof, such Sponsor shall not Transfer (as defined below) all or any portion of such Sponsor’s Transfer Restricted Shares, other than any Transfer Restricted Shares released to the Sponsors in accordance with Section 4(c) or 4(d) below.  “ Transfer ” shall mean any direct or indirect offer, sale, assignment, Encumbrance, disposition, loan or other transfer (by operation of Law or otherwise), either voluntary or involuntary, or entry into any contract, option or other arrangement or understanding with respect to any offer, sale, assignment, Encumbrance, disposition, loan or other transfer (by operation of Law or otherwise), of any Transfer Restricted Shares or interest in any Transfer Restricted Shares.  The Buyer shall be entitled to, without any further action by the Sponsors or any other Person, give effect to the forfeitures contemplated by this Section 4, and the Seller’s Representative shall be entitled to enforce the rights of the Buyer under this Section 4.

 

(c)                                   Upon the determination of Final 2018 EBITDA and the determination of the number of Buyer Common Shares issuable to Seller pursuant to Section 3.6(f) of the Merger Agreement, such number of Transfer Restricted Shares (twenty-five percent (25%) of which shall be comprised of $12 Earnout Shares and twenty-five percent (25%) of which shall be comprised of $14 Earnout Shares) shall be released from the transfer restrictions described in Section 4(b) hereof that is equal to  (x) 525,000 multiplied by (y) the quotient of the aggregate number of Earnout Shares issued to Seller pursuant to Section 3.6(f) of the Merger Agreement divided by 9,000,000; provided that any $12 Earnout Shares or $14 Earnout Shares that would otherwise have vested in accordance with the terms of the Founder Shares Amendment Agreement shall be deemed vested upon release from such transfer restrictions.

 

(d)                                  Upon the determination of Final 2019 EBITDA and the determination of the number of Buyer Common Shares issuable to Seller pursuant to Section 3.6(g) of the Merger Agreement, such number of Transfer Restricted Shares (twenty-five percent (25%) of which shall be comprised of $12 Earnout Shares and twenty-five percent (25%) of which shall be comprised of $14 Earnout Shares) shall be released from the transfer restrictions described in Section 4(b) hereof, in an aggregate

 

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amount that, together with the Founder Shares released pursuant to Section 4(b), is equal to  (x) 525,000 multiplied by (y) the quotient of the aggregate number of Earnout Shares issued to the Seller pursuant to Section 3.6(g) of the Merger Agreement divided by 9,000,000; provided that any $12 Earnout Shares or $14 Earnout Shares that would otherwise have vested in accordance with the terms of the Founder Shares Amendment Agreement shall be deemed vested upon release from such transfer restrictions.

 

(e)                                   Following the determination of Final 2019 EBITDA and the release from the transfer restrictions described in Section 4(b) hereof of the Transfer Restricted Shares (if any) pursuant to Section 4(d) above, any Transfer Restricted Shares that have not been released in accordance with Section 4(c) or Section 4(d) above to the Buyer shall be automatically forfeited without any action by any party hereto or any other Person, and the Buyer shall cancel such Transfer Restricted Shares for no consideration.  The Buyer shall issue to the Seller a number of Buyer Common Shares equal to the number of Transfer Restricted Shares so cancelled.  Twenty-five percent (25%) of such Buyer Common Shares shall be comprised of $12 Earnout Shares and twenty-five percent (25%) of such Buyer Common Shares shall be comprised of $14 Earnout Shares; provided that to the extent any of the Transfer Restricted Shares would otherwise have vested in accordance with the terms of the Founder Share Amendment Agreement the $12 Earnout Shares and $14 Earnout Shares that would otherwise have been issued to Seller shall be deemed vested upon issuance to the Seller.

 

(f)                                    At Closing, Seller shall become a party to the Founder Shares Amendment Agreement with respect to the $12 Earnout Shares and $14 Earnout Shares received at Closing and, with respect to any additional $12 Earnout Shares and $14 Earnout Shares received pursuant to Section 4(e) above that have not vested in accordance with the Founder Share Amendment Agreement prior to the date of receipt, and such $12 Earnout Shares and $14 Earnout Shares, shall be subject to the same vesting and forfeiture terms applicable to the Sponsors, which vesting and forfeiture terms shall not be shortened or otherwise favorably amended without similarly shortening or amending the terms of Founder Shares subject to the Founder Shares Amendment Agreement.

 

Section 5.                                      Further Assurances .  Each of the parties hereto shall execute such documents and perform such further acts as may be reasonably required to carry out the provisions hereof and the transactions contemplated hereby.

 

Section 6.                                      Miscellaneous .  Except as expressly modified by this Agreement, nothing contained herein is intended to or shall be deemed to limit, restrict, modify, alter, amend or otherwise change in any manner the rights and obligations of the parties under the Merger Agreement. The “Miscellaneous” provisions set forth in Article 12 of the Merger Agreement are incorporated herein by reference, mutatis mutandis, as if set forth in full herein; provided , however , that for purposes of Section 12.3, and for all other purposes, each reference to the Merger Agreement shall refer to the Merger Agreement, as amended.  Neither the Buyer (nor its Affiliates) nor the Sponsors shall issue a IRS Form 1099, Form 1042 or any other tax or information reporting to Seller in connection with the transactions contemplated by this Agreement.

 

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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first written above.

 

 

IEA ENERGY SERVICES LLC

 

 

 

 

 

 

 

By:

/s/ David Bostwick

 

 

Name: David E. Bostwick

 

 

Title: Secretary

 

 

 

 

 

 

 

INFRASTRUCTURE AND ENERGY ALTERNATIVES, LLC

 

 

 

 

 

 

 

By:

/s/ Andrew D. Layman

 

 

Name: Andrew D. Layman

 

 

Title: Chief Financial Officer

 

 

 

 

 

 

 

OAKTREE POWER OPPORTUNITIES FUND III DELAWARE, L.P.

 

 

 

 

By: Oaktree Fund GP, LLC

 

Its: General Partner

 

 

 

 

By: Oaktree Fund GP I, L.P.

 

Its: Managing Member

 

 

 

 

 

 

 

By:

/s/ Ian Schapiro

 

 

Name: Ian Schapiro

 

 

Title: Authorized Signatory

 

 

 

 

 

 

 

By:

/s/ Peter Jonna

 

 

Name: Peter Jonna

 

 

Title: Authorized Signatory

 

[ Signature Page to Waiver ]

 



 

 

M III ACQUISITION CORP.

 

 

 

 

 

 

 

By:

/s/ Mohsin Meghji

 

 

Name: Mohsin Y. Meghji

 

 

Title: Chief Executive Officer

 

 

 

 

 

 

 

WIND MERGER SUB I, INC.

 

 

 

 

 

 

 

By:

/s/ Mohsin Meghji

 

 

Name: Mohsin Y. Meghji

 

 

Title: Chief Executive Officer

 

 

 

 

 

 

 

WIND MERGER SUB II, LLC

 

 

 

 

 

 

 

By:

/s/ Mohsin Meghji

 

 

Name: Mohsin Y. Meghji

 

 

Title: Chief Executive Officer

 

 

 

 

 

 

 

M III SPONSOR I LLC,

 

 

 

 

 

 

 

By:

/s/ Mohsin Meghji

 

 

Name: Mohsin Y. Meghji

 

 

Title: Managing Member

 

 

 

 

 

 

 

M III SPONSOR I LP

 

By: M III Acquisition Partners I Corp., the general partner

 

 

 

 

 

 

 

By:

/s/ Mohsin Meghji

 

 

Name: Mohsin Y. Meghji

 

 

Title: Chief Executive Officer

 

[ Signature Page to Waiver ]

 


Exhibit 99.1

 

M III Acquisition Corp. Announces New Meeting Date for the Special Meeting of Stockholders to Approve Proposed Business Combination with IEA Energy Services LLC and Entry into Certain Agreements

 

New York, NY March 20, 2018 — M III Acquisition Corp. (NASDAQ: MIII) (the “Company”) announced today that it has entered into several additional financing agreements to offset redemptions in anticipation of the special meeting of the Company’s stockholders to approve the Company’s proposed business combination with IEA Energy Services LLC (“IEA”).

 

The Company has entered into commitment agreements or backstop agreements with a total of 11 investors who have agreed to support the transaction by either not redeeming shares of common stock of the Company (“Common Stock”) owned by such investors, rescinding their election to redeem shares of Common Stock owned by such investors, purchasing shares of Common Stock from other stockholders that elected to redeem and causing the redemption election to be rescinded or purchasing shares directly from the Company.  In addition, the Company has negotiated and expects to enter into an additional agreement in principal with an additional party who has agreed to purchase shares of Common Stock from stockholders that have elected to redeem and who will withdraw their redemption elections, resulting in approximately $11.0 million of additional proceeds in the trust account of the Company.  Giving effect to these transactions, investors have agreed to purchase new shares of Common Stock or not redeem shares of Common Stock in connection with the closing of the business combination resulting in cash available to fund the purchase price in the proposed business combination of approximately $73.0 million.  Certain of these transactions have previously been disclosed in the Company’s or the Sponsors’ filings with the Securities and Exchange Commission.

 

Pursuant to certain of these commitment agreements and backstop agreements, M III Sponsor I LLC and M III Sponsor I LP (the “Sponsors”) have agreed to transfer approximately 217,256 founder shares to certain investors and  have also agreed with certain existing investors in the Sponsors to allocate additional equity interests in the Sponsor to such investors.  The Company has also agreed to issue an aggregate of 1.5 million warrants to purchase 0.75 million shares of Common Stock (and the Sponsors will forfeit a number of founder shares with an approximate economically equivalent value).  Certain of these transactions have previously been disclosed in the Company’s or the Sponsors’ filings with the Securities and Exchange Commission.

 

Both the Seller and the Company have waived the condition to closing of the business combination that at least $100.0 million of cash be available from the trust account or sales of additional equity at closing, subject to certain limitations further described in the Company’s supplement to the Proxy Statement filed today.

 

The Sponsors have agreed with Infrastructure and Energy Alternatives, LLC (the “Seller”) that they will forfeit to the Company for cancellation 425,000 founder shares at closing.  The Sponsors have agreed to forfeit up to an additional 525,000 founder shares in the future to the extent the Seller does not receive the full 9,000,000 “earnout shares” pursuant to the terms of the Merger Agreement based upon the combined company achieving its EBITDA targets for 2018 and 2019.  The Company will issue to the Seller a number of new shares of Common Stock equal to the number of founder shares forfeited by the Sponsors at closing or in the future.

 

In addition, at the closing of the business combination, the combined company expects to borrow approximately $21 million under the revolving credit facility and $24 million under the term loan facility.

 



 

Mohsin Y. Meghji, the Company’s Chief Executive Officer, remarked, “We are grateful for the support of the investors who have expressed their confidence in the long-term growth prospects of the Company and we look forward to moving forward with the completion of our business combination with IEA now that we have all of the required capital in place.  We believe overall business trends in the renewable energy markets remain strong and we continue to believe that IEA is on track to meet its financial targets for 2018.”

 

The Company has decided to postpone the special meeting until Wednesday, March 21, 2018 at 10:00 a.m., Eastern Time to allow sufficient time to finalize these agreements.  The record date for the meeting has not changed.  The special meeting will be held at the offices of Ellenoff Grossman & Schole LLP, located at 1345 Avenue of the Americas, 11th Floor, New York, New York 10105.  Assuming that the Company’s stockholders vote to approve the business combination, we expect that all conditions to closing will be satisfied or waived and that the business combination will close within one week thereafter.

 

No action is required by any Company stockholder who has previously delivered a proxy and who does not wish to revoke or change such proxy. Information about voting or revoking a proxy appears on page 100 of the proxy statement filed by the Company with the Securities and Exchange Commission (“SEC”) on February 9, 2018 (as supplemented by the proxy supplement filed with the SEC on March 8, 2018, and as it may be further supplemented from time to time, the “Proxy Statement”).

 

Forward-Looking Statements

 

Certain statements in this Press Release are “forward-looking statements” made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. These forward-looking statements relate to expectations for future financial performance, business strategies or expectations and the timing and ability for us to complete the business combination. Specifically, forward-looking statements include statements relating to the benefits of the business combination; the future financial performance of the post-combination company following the business combination; changes in the market for IEA’s customers; expansion plans and opportunities; and other statements preceded by, followed by or that include the words “may,” “believe,” “look,” “will” or similar expressions. Additional information concerning these and other factors can be found in the Company’s filings with the SEC, including other risks, relevant factors and uncertainties identified in the “Risk Factors” section of the Proxy Statement or subsequent filings with the SEC.

 

These forward-looking statements are based on information available as of the date of this Press Release and the current expectations, forecasts and assumptions of the management of the Company and IEA, and involve a number of judgments, risks and uncertainties. Accordingly, forward-looking statements should not be relied upon as representing the Company’s views as of any subsequent date. The Company does not undertake any obligation to update forward-looking statements to reflect events or circumstances after the date they were made, whether as a result of new information, future events or otherwise, except as may be required under applicable securities laws.

 

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Stockholders of the Company should not place undue reliance on these forward-looking statements in deciding how to cast votes on the proposals set forth in the Proxy Statement. As a result of a number of known and unknown risks and uncertainties, actual results or performance of the post-combination company may be materially different from those expressed or implied by these forward-looking statements.

 

About M III Acquisition Corp.

 

The Company is a special purpose acquisition company (SPAC) founded by Mohsin Y. Meghji and formed for the purpose of effecting business combination(s) with one or more businesses. The Company’s long-term strategy is to leverage the experience and expertise of its management team and advisors to identify and acquire a company with long term growth potential and then to work with management of that company to realize this potential.

 

Additional Information And Where To Find It.

 

The Company’s stockholders and other interested persons are advised to read the Proxy Statement, as it contains important information about the Company, IEA and the proposed transaction. Stockholders of the Company can obtain free copies of the Proxy Statement and other documents filed with the SEC by the Company through the web site maintained by the SEC at www.sec.gov. In addition, investors and stockholders of the Company can obtain free copies of the Proxy Statement from the Company by writing to M III Acquisition Corp. at 3 Columbus Circle, 15th Floor, New York, New York 10019, Attention: Investor Relations.

 

Participants in the Solicitation

 

The Company, funds managed by Oaktree Capital Management, L.P. (“Oaktree”) and IEA, and their respective directors and executive officers, may be deemed participants in the solicitation of proxies of the Company’s stockholders in respect of the proposed transaction.  Information about the directors and executive officers of the Company, Oaktree and IEA and more detailed information regarding the identity of all potential participants, and their direct and indirect interests, by security holdings or otherwise, are set forth in the Proxy Statement. Investors may obtain additional information about the interests of such participants by reading such Proxy Statement.

 

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