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 26, 2018

 

Infrastructure and Energy Alternatives, Inc.

(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.)

 

2647 Waterfront Parkway East Drive
Suite 100
Indianapolis, Indiana

 

46214

(Address of Principal Executive Offices)

 

(Zip Code)

 

Registrant’s telephone number, including area code: (765) 828-2580

 

M III Acquisition Corp. 3 Columbus Circle, 15th Floor, New York, New York 10019

(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)

 

o     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

 

 

 



 

Introductory Note

 

On March 26, 2018 (the “Closing Date”), the registrant consummated the previously announced business combination pursuant to that certain Agreement and Plan of Merger, dated November 3, 2017 (as amended, the “Merger Agreement”), by and among Infrastructure and Energy Alternatives, Inc. (f/k/a M III Acquisition Corp.), a Delaware corporation (the “Company”), IEA Energy Services LLC, a Delaware limited liability company (“IEA Services”), Wind Merger Sub I, Inc., a Delaware corporation and a wholly-owned subsidiary of the Company (“Merger Sub I”), Wind Merger Sub II, LLC, a Delaware limited liability company and a wholly-owned subsidiary of the Company (“Merger Sub II”), Infrastructure and Energy Alternatives, LLC, a Delaware limited liability company (“IEA Parent” or “Seller”), Oaktree Power Opportunities Fund III Delaware, L.P., a Delaware limited partnership (“Oaktree”), solely in its capacity as the seller’s representative and, solely for purposes of certain sections therein, M III Sponsor I LLC, a Delaware limited liability company (“Sponsor I LLC”), and M III Sponsor I LP, a Delaware limited partnership (“Sponsor I LP”), which provided for, among other things, the merger of Merger Sub I with and into IEA Services with IEA Services surviving such merger and, immediately thereafter, merging with and into Merger Sub II with Merger Sub II surviving such merger as an indirect, wholly-owned subsidiary of the Company (the “Mergers”) and, the issuances in connection therewith of shares of the registrant’s common stock, par value $0.0001 per share (“Common Stock”), and shares of the registrant’s Series A preferred stock, par value $0.0001 per share (“Series A Preferred Stock”) (together with the other transactions contemplated by the Merger Agreement, the “Business Combination”).

 

Upon the closing of the Business Combination (the “Closing”), the registrant changed its name from “M III Acquisition Corp.” to “Infrastructure and Energy Alternatives, Inc.”  Unless the context otherwise requires, “we,” “us,” “our” and the “Company” refer to the registrant and its subsidiaries. “M III” refers to the registrant prior to the Closing, and “IEA” refers to the business of IEA Services before it became a subsidiary of Company upon the Closing.

 

Item 1.01 Entry into a Material Definitive Agreement

 

2018 Equity Incentive Plan

 

Our board of directors (“Board”) approved the Infrastructure and Energy Alternatives, Inc. 2018 Equity Incentive Plan (the “Incentive Plan”) on February 6, 2018, subject to the consummation of the Business Combination, and stockholders of M III approved the Incentive Plan at the Special Meeting (as defined below). The purpose of the Incentive Plan is to further align the interests of eligible participants with those of the Company’s stockholders post-Business Combination by providing long-term incentive compensation opportunities tied to the performance of the Company and its Common Stock. The Incentive Plan is intended to advance the interests of the Company and increase stockholder value by attracting, retaining and motivating key personnel through the granting of stock options, stock appreciation rights, restricted stock awards, restricted stock unit awards and/or other stock-based awards consistent with the terms of the Incentive Plan.  Pursuant to the Incentive Plan, an aggregate of 2,157,765 shares of Common Stock immediately following consummation of the Business Combination are reserved for issuance under the Incentive Plan.

 

The description of the Incentive Plan set forth in M III’s definitive proxy statement filed with the Securities and Exchange Commission (the “SEC”) on February 9, 2018 (as supplemented, the “Proxy Statement”) in the section entitled “Proposal No. 7—Approval of the Incentive Plan, Including Authorization of the Initial Share Reserve Under the Incentive Plan—Summary of the Incentive Plan” on pages 195 to 200 is incorporated herein by reference.   The foregoing description of the Incentive Plan does not purport to be complete and is also qualified in its entirety by the terms and conditions of the Incentive Plan, which is attached hereto as Exhibit 10.5 and is incorporated herein by reference.

 

Investor Rights Agreement

 

At the Closing, the Company entered into an Investor Rights Agreement with Sponsor I LLC, on the one hand, and with Seller and Oaktree, in its capacity as the representative of the Selling Stockholders, on the other hand. The “Selling Stockholders” include Oaktree, any affiliate of Oaktree and any executive officer, director or member of the Seller as of immediately prior to Closing (or any affiliate or family member thereof or any trust formed for the benefit of any of the foregoing persons).

 

Pursuant to the Investor Rights Agreement, each of Seller and any affiliated transferee thereof has granted to Oaktree a power of attorney to vote such person’s Common Stock and to act on such person’s behalf under the Investor Rights Agreement.

 

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The Investor Rights Agreement grants consent rights to Oaktree over certain matters for so long as the Selling Stockholders directly or indirectly beneficially own at least fifty percent (50%) of the Common Stock beneficially owned by the Selling Stockholders as of Closing (the “Seller Higher Condition”). Additionally, Oaktree has the right to nominate two directors so long as the Seller Higher Condition is met or nominate one director so long as Selling Stockholders directly or indirectly beneficially own at least twenty five percent (25%) of the Common Stock beneficially owned by the Selling Stockholders as of Closing.  In the case of an increase in the size of the Board or an increase in their ownership percentage, the Selling Stockholders may nominate additional directors proportional to their ownership.

 

The Investor Rights Agreement grants consent rights to Sponsor I LLC over certain matters for so long as Sponsor I LLC (together with Mr. Mohsin Meghji, Sponsor I LP (for so long as such entity is controlled by the entity listed on Schedule A-1 of the Investor Rights Agreement), and the persons listed on Schedule A-2 of the Investor Rights Agreement), directly or indirectly, beneficially own at least fifty percent (50%) of the Common Stock (including Earnout Shares (as defined below)) beneficially owned by such persons as of Closing (the “Sponsor Higher Condition”). Additionally, Sponsor I LLC has the right to nominate two directors so long as the Sponsor Higher Condition is met or nominate one director so long as such persons directly or indirectly beneficially own at least twenty five percent (25%) of the Common Stock beneficially owned by such persons as of Closing.   In the case of an increase in the size of the Board or an increase in their ownership percentage, Sponsor I LLC may appoint additional directors proportional to its ownership.

 

Seller has agreed under the Registration Rights Agreement that the shares of Common Stock it received at Closing will not be transferable, assignable or salable by it (in each case, subject to certain agreed exceptions) until the date that is 180 days after the Closing Date (and, to the extent distributed to certain members of management, such shares shall not be transferable until the second anniversary of the Closing Date).

 

The description of the Investor Rights Agreement set forth in the section of the Proxy Statement entitled “Proposal No. 1—Approval of the Business Combination—Related Agreements—Investor Rights Agreement” on pages 135 to 139 is incorporated herein by reference.   The foregoing description of the Investor Rights Agreement does not purport to be complete and is also qualified in its entirety by the terms and conditions of the Investor Rights Agreement, which is attached hereto as Exhibit 10.3 and is incorporated herein by reference.

 

Registration Rights Agreement

 

In connection with the Closing, Seller, Sponsor I LLC, Sponsor I LP, Cantor Fitzgerald & Co., two of M III’s independent directors, Mr. Osbert Hood and Mr. Philip Marber, and their respective transferees were granted certain rights pursuant to the Registration Rights Agreement (the “Registration Rights Agreement”). Purchasers of warrants from the Company under the Subscription and Backstop Agreement , dated March 7, 2018, by and among the Company, Sponsor I LLC, Sponsor I LP and the subscribers identified on the signature pages thereto will also have certain benefits under the Registration Rights Agreement upon execution of a joinder thereto (the “Backstop Agreement”). The Company has agreed to use reasonable best efforts to file and make effective as soon as practicable, a shelf registration statement for the resale of the Common Stock and warrants held by the parties to the Registration Rights Agreement, subject to certain conditions. Certain of the parties to the Registration Rights Agreement have customary demand registration rights at any time the shelf registration statement referred to in the preceding sentence is not effective, and all of the parties have certain “piggyback” registration rights with respect to registration statements filed subsequent to the Business Combination.

 

The foregoing description of the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Registration Rights Agreement, which is attached hereto as Exhibit 10.2 and is incorporated herein by reference.

 

Founder Shares Amendment Agreement

 

At the Closing, the Company, Sponsor I LLC, Messrs. Hood and Marber and the Seller entered into a Founder Shares Amendment Agreement (the “Founder Shares Amendment Agreement”) with respect to, among other things, the vesting, transfer and forfeiture of (i) 3,750,000 shares of Common Stock owned by our Initial Stockholders (the “Founder Shares”) and (ii) 212,500 shares of Common Stock issued to Seller as of the Closing, together with 50% of any additional shares of Common Stock issued to Seller in the future under the Waiver, Consent and Agreement to Transfer Shares, dated March 20, 2018, among the parties to the Merger Agreement (the “Waiver Agreement”), to the extent such shares would not otherwise have vested prior to issuance.  The shares of Common Stock subject to the Founder Shares Amendment Agreement are referred to as “Earnout Shares.”

 

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The parties to the Founder Shares Amendment Agreement have agreed that half of the Earnout Shares will vest on the first day upon which the closing sale price of the Common Stock on NASDAQ has equaled or exceeded $12.00 per share (as adjusted for stock splits, dividends, reorganizations, recapitalizations and the like) for any 20 trading day period in a 30 consecutive day trading period and the other half will vest on the first day upon which the closing sale price of the Common Stock on NASDAQ has equaled or exceeded $14.00 per share (as adjusted for stock splits, dividends, reorganizations, recapitalizations and the like) for any 20 trading day period in a 30 consecutive day trading period.  Prior to vesting, the Earnout Shares may not be transferred other than to certain permitted transferees but such Earnout Shares will continue to be beneficially owned by such persons for all purposes, including voting; provided that any dividends paid on Earnout Shares shall be withheld until such time as such Earnout Shares vest and will be forfeited in the event the Earnout Shares are forfeited. On or prior to the tenth anniversary of the Closing, vesting of such Earnout Shares will accelerate upon specified events, including a change of control or liquidation of the Company that results in all of the Company’s stockholders having the right to exchange their Common Stock for consideration in cash, securities or other property which equals or exceeds $10.00 per share (as adjusted for stock splits, dividends, reorganizations, recapitalizations and the like). Earnout Shares that have not vested on or prior to the tenth anniversary of Closing will be forfeited.

 

The foregoing description of the Founder Shares Amendment Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Founder Shares Amendment Agreement, which is attached hereto as Exhibit 10.4 and is incorporated herein by reference.

 

Credit Facility

 

At Closing, Merger Sub I, as initial borrower, IEA Services, in its capacity following Closing as borrower (“post-Closing IEA Services” or “Borrower”), and its subsidiaries entered into a credit facility (the “Credit Facility”) with Bank of America, N.A., as administrative and collateral agent, and a syndicate of commercial lenders from time to time party thereto (the “Credit Agreement”).  A recently formed intermediate holding company wholly owned by the Company (“Intermediate Holdings”), which owns 100% of Borrower, is also party to the Credit Facility as a guarantor thereunder. The Credit Facility initially provides for aggregate revolving borrowings of up to $50.0 million and a $50.0 million delayed-draw term loan facility, each maturing on the third anniversary of Closing. On the Closing Date, $19.0 million was drawn under the revolving credit facility, and $24.0 million under the term loan facility, to refinance existing indebtedness (including backstopping existing letters of credit) and pay transaction expenses and cash consideration.

 

Obligations under the Credit Facility are guaranteed by Intermediate Holdings and each existing and future, direct and indirect wholly-owned material domestic subsidiary of Intermediate Holdings, other than post-Closing IEA Services (together with post-Closing IEA Services, the “Credit Parties”), and are secured by all of the present and future assets of the Credit Parties, subject to customary carve-outs. Interest on the replacement credit facility will accrue at an interest rate of (x) LIBOR plus a margin of 3.00% or (y) an alternate base rate plus a margin of 2.00%.

 

The remainder of the term loan facility may be drawn down for a period of two years following Closing (in not more than four drawdowns) and matures three years following Closing. Each draw under the term loan facility will be subject to quarterly amortization of principal, commencing on the last day of the first fiscal quarter ending after such draw, in an amount equal to 3.5% of the initial amount of such draw (“Scheduled Amortization”). The proceeds of the term loan may be used for capital expenditures and to finance permitted acquisitions.

 

In addition to the Scheduled Amortization, and subject to exceptions and baskets, (a) 100% of all net cash proceeds, subject to reinvestment rights, from (i) sales of property and assets of Intermediate Holdings and its subsidiaries (excluding sales of inventory and equipment in the ordinary course of business and other exceptions set forth in the loan documentation) and (ii) any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of Intermediate Holdings and its subsidiaries and (b) 100% of all net cash proceeds from the issuance or incurrence of additional debt for borrowed money of Intermediate Holdings and its subsidiaries not otherwise permitted under the loan documentation, are required to be applied to the prepayment of the Credit Facility in the following manner: first, to the outstanding term loans and, second, to the revolving credit facility (without a reduction of the commitments under the Credit Facility).

 

With respect to any draw of the term loan facility and subject to customary conditions to extensions of credit, after giving effect to such draw on a pro forma basis: (i) the Consolidated Leverage Ratio (as defined below) must not exceed the amount that is 0.25:1.0 lower than the maximum Consolidated Leverage Ratio permitted in the Credit Agreement and (ii) Borrower must have liquidity (defined as unrestricted cash and revolver availability) of at least $20.0 million. Subject to customary conditions to extensions of credit, the revolving credit facility may be used for working capital, capital expenditures and other

 

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lawful corporate purposes.

 

The Borrower may from time to time add one or more tranches of term loans to the credit facility (each an “Incremental Term Loan Facility”) and/or increase the aggregate commitments under the revolving credit facility (a “Revolving Credit Facility Increase” and collectively with each Incremental Term Loan Facility, an “Incremental Facility”) with consent required only from those Lenders that participate in such Incremental Facility; provided that, among other things, the aggregate principal amount of all Incremental Facilities may not exceed $25.0 million. No existing lender shall be under any obligation to provide any commitment to an Incremental Facility, and any such decision whether to provide a commitment to an Incremental Facility shall be in such Lender’s sole and absolute discretion.

 

Under the Credit Agreement, the Credit Parties are subject to affirmative and negative covenants. The financial covenants include (i) a Maximum Consolidated Leverage Ratio (to be defined as total funded debt / EBITDA), which may not exceed 3.00:1.0, and (ii) a Minimum EBITDA requirement of at least $35.0 million as of the end of each of our four fiscal quarter periods.  Each of the covenants referred to above will be calculated on a consolidated basis for each consecutive four fiscal quarter period, commencing with the first full fiscal quarter following the Closing Date.

 

In addition, the Credit Parties are subject to affirmative covenants requiring (i) delivery of financial statements, budgets and forecasts; (ii) delivery of certificates and other information; (iii) delivery of notices (of any default, material adverse condition, ERISA event, material change in accounting or financial reporting practices); (iv) payment of tax obligations; (v) preservation of existence; (vi) maintenance of properties; (vii) maintenance of insurance; (viii) compliance with laws; (ix) maintenance of books and records; (x) inspection rights; (xi) use of proceeds; (xii) covenants to guarantee obligations and give security; (xiii) compliance with environmental laws; and (xiv) further assurances.

 

The Credit Parties are subject to negative covenants including restrictions (subject to certain exceptions) on (i) liens; (ii) indebtedness (including guarantees and other contingent obligations) (provided that the loan documents permit, among other items, purchase money indebtedness, subject to pro forma compliance with the financial covenants); (iii) investments (including loans, advances and acquisitions); (iv) mergers and other fundamental changes; (v) sales and other dispositions of property or assets; (vi) payments of dividends and other distributions and share repurchases (provided, that the loan documents shall permit (x) distributions to Intermediate Holdings or any of its subsidiaries, (y) tax distributions and (z) certain other distributions by Intermediate Holdings (including distributions for customary public company expenses and for payments on preferred equity of the post-combination company subject to terms and conditions set forth in the loan documentation); (vii) changes in the nature of the business; (viii) transactions with affiliates; (ix) burdensome agreements; (x) use of proceeds; (xi) capital expenditures, provided that (A) unfinanced capital expenditures will be permitted in an aggregate amount up to $20.0 million per annum and (B) unlimited financed capital expenditures, subject to pro forma compliance with the financial covenants; (xii) amendments of organizational documents; (xiii) changes in accounting policies, reporting practices, fiscal year, legal name, state of formation or form of entity; (xiv) sale and lease-back transactions; (xv) payment of credit support and similar fees to affiliates; (xvi) ownership of subsidiaries; (xvii) sanctions and (xviii) use of proceeds in violation of anti-corruption laws.

 

The foregoing description of the Credit Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Credit Agreement, which is attached hereto as Exhibit 10.1 and is incorporated herein by reference.

 

Indemnification Agreements

 

On the Closing Date, we entered into indemnification agreements with each of our directors and executive officers. Each indemnification agreement provides for indemnification and advancements by the Company of certain expenses and costs relating to claims, suits or proceedings arising from his or her service to the Company or, at our request, service to other entities, as officers or directors to the maximum extent permitted by Delaware law.

 

The foregoing description of the indemnification agreements does not purport to be complete and is qualified in its entirety by the terms and conditions of the form of indemnification agreement, which is attached hereto as Exhibit 10.15 and is incorporated by reference.

 

Amended and Restated Warrant Agreement

 

On the Closing Date, we entered into an Amended and Restated Warrant Agreement with Continental Stock Transfer & Trust Company, as Warrant Agent (the “Warrant Agreement”).  The amendment and restatement provided for the issuance of additional public warrants and reflected the change in name of the issuer.

 

4



 

The foregoing description of the Warrant Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Warrant Agreement, which is attached hereto as Exhibit 4.4 and is incorporated herein by reference.

 

Item 1.02 Termination of a Material Definitive Agreement

 

In connection with the Closing and the entry into the Registration Rights Agreement, the prior registration rights agreement, dated as of July 7, 2016, by and among the Company, the Sponsors and Cantor Fitzgerald & Co. was terminated.

 

Item 2.01 Completion of Acquisition of Assets

 

The disclosure set forth in the “Introductory Note” above is incorporated into this Item 2.01 by reference. On March 21, 2018, the Business Combination was approved by M III’s shareholders. The Business Combination was completed on March 26, 2018.

 

The consideration paid to Seller at Closing consisted of a combination of cash and stock consideration as follows: approximately $81.4 million, plus 10,003,500 shares of Common Stock, plus 34,965 shares of Series A Preferred Stock. The Seller received an additional 425,000 shares of Common Stock pursuant to the terms of the Waiver Agreement.  Additionally, Seller may be entitled to receive up to an additional 9,000,000 shares of Common Stock in the aggregate (the “Earn-Out Shares”), with the number of shares of Common Stock to be issued to Seller (if any) by the Company depending on the EBITDA of the Company as calculated pursuant to the terms of the Merger Agreement for the 2018 and/or 2019 fiscal years plus up to 525,000 shares of Common Stock to be issued to Seller (if any) with such amount to be equal to 525,000 less the product of (x) the quotient of the aggregate number of Earn-Out Shares issued to the Seller pursuant to Section 3.6(g) of the Merger Agreement divided by 9,000,000 and (y) 525,000.

 

The material terms and conditions of the Merger Agreement are described on pages 113 to 134 of the Proxy Statement in the section entitled “Proposal No. 1—Approval of the Business Combination—The Merger Agreement,” which is incorporated herein by reference.

 

Forward Looking Statements

 

This Current Report on Form 8-K contains forward-looking statements within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of words such as “forecast,” “intend,” “seek,” “target,” “anticipate,” “believe,” “expect,” “estimate,” “plan,” “outlook,” and “project” and other similar expressions that predict or indicate future events or trends or that are not statements of historical matters. Such forward looking statements with respect to projections, revenues, earnings, performance, strategies, prospects and other aspects of our business are based on current expectations that are subject to risks and uncertainties. A number of factors could cause actual results or outcomes to differ materially from those indicated by such forward looking statements. These factors include, but are not limited to: (1) the ability to meet NASDAQ’s continued listing standards following the Business Combination; (2) the inability to recognize the anticipated benefits of the Business Combination, which may be affected by, among other things, competition, and our ability to grow and manage growth profitably; (3) the incurrence of costs related to the Business Combination; (4) changes in applicable laws or regulations, including the impact of the Tax Cuts and Jobs Act of 2017; (5) the possibility that we may be adversely affected by other economic, business, and/or competitive factors; and (6) other risks and uncertainties indicated in our Proxy Statement, including those under “Risk Factors” therein, and other documents to be filed with the SEC by the Company. You are cautioned not to place undue reliance upon any forward-looking statements, which speak only as of the date made. We do not undertake to update or revise the forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.

 

Business

 

The information set forth in Exhibit 99.1 hereto is incorporated herein by reference.

 

Risk Factors

 

The risks associated with the Company’s business are described in the Proxy Statement in the section entitled “ Risk Factors ” beginning on page 56 and are incorporated herein by reference.

 

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Selected Consolidated Historical Financial and Other Information

 

The information set forth in Exhibit 99.2 hereto is incorporated herein by reference.

 

Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

The information set forth in Exhibit 99.3 hereto is incorporated herein by reference.

 

Properties

 

The Company’s principal executive office is located at 2647 Waterfront Parkway East Drive, Suite 100, Indianapolis, IN 46214. Our principal operating locations are described in the Proxy Statement in the section entitled “Information About IEA—Properties” on page 229 of the Proxy Statement, which is incorporated herein by reference.

 

Security Ownership of Certain Beneficial Owners and Management

 

The following table sets forth information regarding the beneficial ownership of Common Stock as of the date hereof:

 

·                                           each person who is known to us to be the beneficial owner of more than five percent (5%) of the outstanding shares of our Common Stock;

 

·                                           each of our current officers and directors; and

 

·                                           all officers and directors of the Company, as a group.

 

Beneficial ownership is determined according to the rules of the SEC, which generally provide that a person has beneficial ownership of a security if he, she or it possesses sole or shared voting or investment power over that security, including options and warrants that are currently exercisable or exercisable within 60 days.

 

The following table gives effect to the distribution by Sponsor I LLC of shares of Common Stock to certain of its members on the Closing Date and the sale by Mohsin Y. Meghji of the general partner of Sponsor I LP to an affiliate of its sole limited partner.

 

Executive Officers and directors

 

Number of Shares of
Common Stock

 

 Percentage of Outstanding
Common Stock

 

Mohsin Y. Meghji(1)

 

1,962,682

 

8.8

%

John Paul Roehm(2)

 

 

 

Charles Garner

 

 

 

Derek Glanvill(2)

 

 

 

Peter Jonna(2)

 

 

 

Philip Kassin

 

 

 

Terence Montgomery(2)

 

 

 

Ian Schapiro(2)

 

 

 

Andrew Layman(2)

 

 

 

All current directors and executive officers as a group (9 individuals)

 

1,962,682

 

8.8

%

 

 

 

 

 

 

5% or Greater Beneficial Owners

 

 

 

 

 

M III Sponsor I LLC(1)

 

1,285,781

 

5.9

%

IEA Parent(3)

 

10,428,500

 

48.3

%

Glazer Capital, LLC(4)

 

1,548,987

 

7.18

%

Polar Asset Management(5)

 

1,919,700

 

8.90

%

Weiss Asset Management LP(6)

 

1,084,186

 

5.02

%

 

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(1)          Mohsin Meghji is the managing member of M III Acquisition Partners I LLC (“M III Partners”), the sole managing member of M III Sponsor I LLC.  Consequently, he may be deemed the beneficial owner of the Common Stock held by our Sponsor I LLC and have sole voting and dispositive control over such shares. Mr. Meghji disclaims beneficial ownership over any Common Stock owned by our Sponsor I LLC in which he does not have a pecuniary interest. Includes 190,000 private warrants exercisable for 95,000 shares of Common Stock, and in the case of Mr. Meghji, 1,353,803 public warrants exercisable for 676,901 shares of Common Stock. On the Closing Date, M III Sponsor I LLC distributed a portion of the Common Stock and Warrants held by it (subject to applicable transfer restrictions on such shares) to certain of its members.  The business address of Sponsor I LLC and M III Partners is c/o M-III Partners, LP, 3 Columbus Circle, New York, New York 10019.

 

(2)          Messrs. Roehm, Layman, Glanvill, Jonna, Montgomery and Schapiro do not beneficially own any shares of our Common Stock, but each has an indirect pecuniary interest through their direct or indirect interests in IEA Parent.

 

(3)          Includes 10,428,500 shares of Common Stock issued as consideration in the Business Combination (including 425,000 issued pursuant to the terms of the Waiver Agreement). IEA Parent is controlled by Oaktree. The following entities may be deemed to have indirect beneficial ownership of the shares owned directly by IEA Parent: (i) Oaktree, (ii) Oaktree Fund GP, LLC (“GP LLC”), in its capacity as general partner of Oaktree, (iii) Oaktree Fund GP I, L.P. (“GP LP”), in its capacity as managing member of GP LLC, (iv) Oaktree Capital I, L.P. (“Capital I”), in its capacity as general partner of GP LP, (v) OCM Holdings I, LLC (“Holdings I”), in its capacity as general partner of Capital I, (vi) Oaktree Holdings, LLC (“Holdings LLC”), in its capacity as managing member of Holdings I, (vii) Oaktree Capital Group, LLC (“OCG”), in its capacity as managing member of Holdings LLC, and (viii) Oaktree Capital Group Holdings GP, LLC (“OCGH GP”), in its capacity as manager of OCG. OCGH GP is managed by an executive committee, the members of which are Howard S. Marks, Bruce A. Karsh, Jay S. Wintrob, John B. Frank and Sheldon M. Stone. Each of Oaktree, GP LLC, GP LP, Capital I, Holdings I, Holdings LLC, OCG, OCGH GP (collectively, the “Oaktree entities”) and the individual members of OCGH GP disclaim beneficial ownership of the shares reported herein as beneficially owned by each except to the extent of their respective pecuniary interest therein. The business address of IEA Parent and the Oaktree entities is 11611 San Vicente Boulevard, Suite 710 Los Angeles, CA 90049.

 

(4)          Based solely on Amendment No. 1 to Schedule 13G filed with the SEC on February 14, 2018. The business address of Glazer Capital, LLC (“GCL”) is 250 West 55th street, Suite 30A, New York, New York 10019.

 

(5)  Based solely on an Amendment No. 1 to Schedule 13G filed with the SEC on February 9, 2018. The business address of Polar Asset Management Partners, Inc. is 401 Bay Street, Suite 1900, PO Box 19, Toronto, Ontario M5H 2Y4, Canada. Polar Asset Management Partners Inc., a company incorporated under the laws of Ontario, Canada, serves as the investment manager to Polar Multi Strategy Master Fund, a Cayman Islands exempted company (“PMSMF”) and certain managed accounts (together with PMSMF, the “Polar Vehicles”), with respect to the shares directly held by the Polar Vehicles.

 

(6)  Based solely on Amendment No. 1 to Schedule 13G filed with the SEC on February 14, 2018. Weiss Asset Management is the sole investment manager to a private investment partnership (the “Weiss Partnership”) and a private investment fund (the “Weiss Fund”). WAM GP LLC (“WAM GP”) is the sole general partner of Weiss Asset Management LP (“Weiss Asset Management”). Mr. Andrew Weiss is the managing member of WAM GP. Shares reported for WAM GP, Andrew Weiss and Weiss Asset Management include shares beneficially owned by the Weiss Partnership and the Weiss Fund. Each of WAM GP, Weiss Asset Management, and Andrew Weiss disclaims beneficial ownership of the shares reported herein as beneficially owned by each except to the extent of their respective pecuniary interest therein. The address of the principal place of business of each of Weiss Asset Management, WAP GP and Mr. Weiss is 222 Berkeley St., 16th floor, Boston Massachusetts 02116.

 

7



 

Directors and Executive Officers

 

Information with respect to the Company’s directors and executive officers immediately after the Closing is set forth in the Proxy Statement in the section entitled “ Management After the Business Combination ” beginning on page 258 of the Proxy Statement, which is incorporated herein by reference.

 

Effective as of Closing, each of John Paul Roehm, Charles Garner, Derek Glanvill, Peter Jonna, Philip Kassin, Terence Montgomery and Ian Schapiro were appointed to serve as directors of the Company and Mr. Meghji is continuing to serve as a director and Chairman of the Board.  Biographical information for these individuals is set out in the Proxy Statement in the section entitled “ Management After the Business Combination ” beginning on page 258 of the Proxy Statement, which is incorporated herein by reference.

 

The Board appointed Messrs. Garner, Kassin and Meghji to serve on the Audit Committee, with Mr. Kassin serving as its Chairman. The Board appointed Messrs. Meghji and Schapiro to serve on the Compensation Committee, with Mr. Schapiro serving as its Chairman. The Board appointed Messrs. Meghji and Schapiro to serve on the Nominating & Governance Committee, with Mr. Mehji as its Chairman. The Board appointed Messrs. Glanvill, Jonna, Kassin and Meghji to serve on the Investment Committee, with Mr. Meghji serving as its Chairman. The Board appointed Messrs. Glanvill, Schapiro, Montgomery and Kassin to serve on the Bid Review Committee, with Mr. Glanvill serving as its Chairman. The Board has also approved Mr. Montgomery to be appointed as the Chairman of the Audit Committee upon the determination that he independent for purposes of the listing standards of NASDAQ and Section 10A-3 of the Securities Exchange Act of 1934, as amended. At such time, we anticipate that Mr. Garner will resign from the Board.

 

Information with respect to each of the Company’s Audit Committee, Compensation Committee, Nominating & Governance Committee, Investment Committee and Bid Review Committee is set forth in the Proxy Statement in the section entitled “Management After the Business Combination—Committees of the Board of Directors” beginning on page 261 of the Proxy Statement, which is incorporated herein by reference.

 

Executive Compensation

 

The compensation for the Company’s executive officers after the Closing of the Business Combination is set forth in the section entitled “ Management After the Business Combination—Post-Combination Company Executive Compensation ” beginning on page 264 of the Proxy Statement, which is incorporated herein by reference.

 

Determination of Cash Bonus Awards for Fiscal Year 2017

 

As of the filing of the Proxy Statement, the amounts of the cash bonus awards for fiscal year 2017 for the named executive officers identified therein (the “Named Executive Officers”) had not been determined and, therefore, were not included in the 2017 Summary Compensation Table included in the Proxy Statement.  After the date of the filing of the Proxy Statement the Board approved cash bonus awards for the fiscal year ended December 31, 2017, for the Company’s Named Executive Officers identified in the Company’s Proxy Statement.  All other compensation for the Named Executive Officers for fiscal year 2017 was previously reported by the Company in the 2017 Summary Compensation Table beginning on page 252 of the Proxy Statement.  Pursuant to Item 5.02(f) of Form 8-K, the amounts of the cash bonus awards for fiscal year 2017 and the total compensation for fiscal year 2017 for the Named Executive Officers, recalculated to include the cash bonus awards for fiscal year 2017, are set forth below.

 

 

 

Bonus

 

Total

 

Name and Principal Position

 

($)

 

($)

 

JP Roehm  CEO

 

410,478

 

805,336

 

Andrew Layman CFO

 

207,602

 

538,841

 

 

8



 

Transaction Bonuses

 

In recognition of our Named Executive Officers extraordinary efforts in connection with the consummation of the Business Combination, the Company will pay a one-time bonus of $381,190 and $277,229 to each of Messrs. Roehm and Layman, respectively, within 15 days of the Closing.

 

Employment Agreements

 

In connection with the Closing, the Company entered into employment agreements with Messrs. John Paul Roehm, Chris Hanson and Andrew Layman, as described under the section entitled “ Executive Compensation—IEA Executive Officer and Director Compensation—Employment Agreements Following the Business Combination ” beginning on page 255 of the Proxy Statement, which is incorporated herein by reference.

 

Incentive Plan

 

On March 21, 2018, the stockholders of M III approved the Incentive Plan. The description of the Incentive Plan is included in Item 1.01 of this Current Report and set forth in the Proxy Statement in the section entitled “Proposal No. 7—Approval of the Incentive Plan, Including the Authorization of the Initial Share Reserve under the Incentive Plan” beginning on page 195 of the Proxy Statement, which is incorporated herein by reference. A copy of the full text of the Incentive Plan is filed as Exhibit 10.5 to this Current Report and is incorporated herein by reference.

 

Certain Relationships and Related Transactions

 

The description of certain relationships and related transactions is included in the Proxy Statement in the section entitled “Certain Relationships and Related Transactions” beginning on page 285 of the Proxy Statement, which is incorporated herein by reference.

 

Director Independence

 

NASDAQ listing standards require that a majority of our Board be independent. An “independent director” is defined generally as a person other than an officer or employee of the company or its subsidiaries or any other individual having a relationship which in the opinion of the company’s Board, would interfere with the director’s exercise of independent judgment in carrying out the responsibilities of a director.

 

All of our directors are independent pursuant to the rules of the NASDAQ except Mr. Roehm, our Chief Executive Officer, and Mr. Glanvill .

 

Legal Proceedings

 

Information about legal proceedings is set forth in the Proxy Statement in the section entitled “Information About IEA—Legal Proceedings” on page 229 of the Proxy Statement, which is incorporated herein by reference

 

Market Price of and Dividends on the Registrant’s Common Equity and Related Stockholder Matters

 

Information about the market price, number of stockholders and dividends for the Company’s securities is set forth in the Proxy Statement in the section entitled “Price Range of Securities and Dividends” on page 291 of the Proxy Statement, which is incorporated herein by reference.

 

For the quarter ended March 31, 2018 through the Closing Date, the high and low sales prices per share of Common Stock as reported on NASDAQ were $10.33 and $8.71, respectively.

 

Following the Closing, our Common Stock and warrants are quoted on NASDAQ under the symbols “IEA” and “IEAWW,” respectively.  Our public units automatically separated into their constituent securities upon consummation of the Business Combination and, as a result, no longer trade as a separate security.

 

Recent Sales of Unregistered Securities

 

The description of sale of our unregistered securities set forth in M III’s Registration of Form S-1 (333-210817) under Item 15 is incorporated herein by reference.

 

9



 

In connection with the Closing, we issued (i) to Seller 10,428,500 shares of Common Stock and 34,965 shares of Series A Preferred Stock, (ii) to financial advisors of the Company and Seller in payment of advisory fees an aggregate of 469,968 shares of Common Stock and (iii) to the subscribers party to the Backstop Agreement 1,500,000 warrants.

 

All of such shares were issued pursuant to transactions exempt from registration under Section 4(a)(2) of the Securities Act of 1933, as amended.

 

Description of the Company’s Securities

 

A description of the Company’s common stock and the Company’s warrants is included in the Proxy Statement in the section entitled “Description of Securities” beginning on page 266 of the Proxy Statement, which is incorporated by reference herein.

 

Pursuant to our second amended and restated certificate of incorporation (“Charter”), our authorized capital stock consists of 100,000,000 shares of Common Stock and 1,000,000 shares of preferred stock. The outstanding shares of our common stock are duly authorized, validly issued, fully paid and non-assessable. As of the Closing, there were 21,577,650 shares of common stock outstanding, held of record by approximately 28 holders of common stock, 34,965 shares of preferred stock outstanding, held of record by 1 holder of preferred stock, and 16,960,000 warrants outstanding held of record by approximately 15 holders of warrants.

 

Indemnification of Directors and Officers

 

Information about the indemnification of the Company’s directors and officers is set forth in the Proxy Statement in the section entitled “Information About the Company Prior to the Business Combination—Limitation on Liability and Indemnification of Officers and Directors” on page 213 of the Proxy Statement, which is incorporated herein by reference.

 

Financial Statements and Supplementary Data

 

The information set forth under Item 9.01 of this Current Report on Form 8-K is incorporated herein by reference.

 

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of the Registrant.

 

The information regarding our Credit Facility under Item 1.01 of this Current Report on Form 8-K is incorporated by reference herein.

 

Item 3.02 Unregistered Sales of Equity Securities

 

The description under “Recent Sales of Unregistered Securities” under Item 2.01 of this Current Report on Form 8-K is incorporated by reference herein. The securities issued to Seller in the Business Combination, to certain of M III’s and Seller’s financial advisors and to the subscribers party to the Backstop Agreement were not registered under the Securities Act, in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933, as amended.

 

Item 3.03 Material Modification to Rights of Security Holders

 

On March 26, 2018, the Company filed our Charter with the Secretary of State of the State of Delaware. The material terms of the Charter and the general effect upon the rights of holders of the Company’s capital stock are included in the Proxy Statement under the sections entitled “Proposal No. 2—Approval of Amendments to Current Certificate to Authorize Additional Shares of Common Stock” beginning on page 167 of the Proxy Statement, “Proposal No. 3—Classification of the Board of Directors” beginning on page 169 of the Proxy Statement, “Proposal No. 4—Approval of Amendments to Current Certificate to Change the Stockholder Vote Required to Amend the Certificate of Incorporation of the Company” beginning on page 171 of the Proxy Statement, “Proposal No. 5—Approval of Amendments to Current Certificate to Elect Not to be Governed by Section 203 of DGCL” beginning on page 174 of the Proxy Statement and “Proposal No. 6—Approval of Additional Amendments to Current Certificate in Connection with the Business Combination” beginning on page 183 of the Proxy Statement, which are incorporated by reference herein.

 

A copy of the Charter is attached as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated by reference herein.

 

10



 

In addition, upon the Closing, pursuant to the terms of the Merger Agreement, the Company amended and restated its bylaws. The material terms of the Amended and Restated Bylaws and the general effect upon the rights of holders of the Company’s capital stock are included in the Proxy Statement under the section entitled “Proposal No.4—Approval of Amendments to Current Certificate to Change the Stockholder Vote Required to Amend the Certificate of Incorporation of the Company” beginning on page 171 of the Proxy Statement, which is incorporated by reference herein.

 

A copy of our Amended and Restated Bylaws is attached as Exhibit 3.2 to this Current Report on Form 8-K and is incorporated by reference herein.

 

Item 4.01 Change in Registrant’s Certifying Accountant

 

Change of the Company’s Independent Registered Public Accounting Firm

 

On March 26, 2018, the Board approved the engagement of Crowe Horwath LLP (“Crowe”) as the Company’s independent registered public accounting firm to audit the Company’s consolidated financial statements following the Business Combination.  Crowe served as the independent registered public accounting firm of IEA prior to the Business Combination.  Accordingly, Marcum LLP (“Marcum”), the Company’s independent registered public accounting firm prior to the Business Combination, was informed that it would be dismissed as the Company’s independent registered public accounting firm.

 

Marcum’s report on the Company’s consolidated financial statements as of December 31, 2017 and 2016, and the related statements of operations, changes in stockholders’ equity and cash flows for each of the two years in the period ended December 31, 2017, did not contain any adverse opinion or disclaimer of opinion, nor were they qualified or modified as to uncertainty, audit scope or accounting principles.

 

During the period from January 1, 2016 to December 31, 2017, and the subsequent period through March 26, 2018, there were no: (i) disagreements with Marcum on any matter of accounting principles or practices, financial statement disclosure or auditing scope or procedures, which disagreements if not resolved to their satisfaction would have caused them to make reference to the subject matter of the disagreement in connection with its report or (ii) reportable events as defined in Item 304(a)(1)(v) of Regulation S-K.

 

During the period from January 1, 2016 to December 31, 2017, and subsequent period through March 26, 2018, the Company has not consulted with Crowe regarding the application of accounting principles to a specified transaction, either contemplated or proposed, or the type of audit opinion that might be rendered on the financial statements of the Company.

 

A letter from Marcum is attached as Exhibit 16.1 to this Form 8-K.

 

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Arrangements of Certain Officers.

 

Directors and Executive Officers

 

On the Closing Date, each of the current executive officers and directors of the Company, excluding Mr. Meghji, delivered his resignation. A description of each person appointed as an executive officer or director in connection with the Closing is set forth in the sections entitled “Directors and Executive Officers” in Item 2.01 of this Current Report is incorporated in this Item 5.02 by reference.

 

Incentive Plan

 

The disclosure set forth in the section entitled “Incentive Plan” in Item 1.01 of this Current Report is incorporated in this Item 5.02 by reference.

 

11



 

Indemnification Agreements

 

The disclosure set forth in the section entitled “Indemnification Agreements” in Item 1.01 of this Current Report is incorporated in this Item 5.02 by reference.

 

Assumption of Employment Agreements

 

On the Closing Date, the Company and IEA Energy Services entered into an Assignment and Assumption Agreement, pursuant to which the Company assumed the employment agreements of the employees listed on Schedule I thereto.

 

Item 9.01 Financial Statements and Exhibits.

 

(a)  Financial statements of businesses acquired

 

The audited consolidated financial statements of IEA Services and its subsidiaries as of December 31, 2017 and 2016 and for each of the three year periods ended December 31, 2017, December 31, 2016 and December 31, 2015, respectively are included in this Current Report on Form 8-K as Exhibit 99.4.

 

(b)  Pro Forma Financial Information

 

The unaudited pro forma combined statement of operations for the year ended December 31, 2017 gives pro forma effect to the Business Combination as if it had occurred on January 1, 2017. The unaudited pro forma combined balance sheet as of December 31, 2017 assumes that the Business Combination was completed on December 31, 2017.

 

The unaudited pro forma combined financial information is attached to this Current Report on Form 8-K as Exhibit 99.5.

 

12



 

(d)  Exhibits:

 

Exhibit

 

Description

2.1

 

Agreement and Plan of Merger, dated as of November 3, 2017, by and among the Company, IEA Energy Services LLC, Wind Merger Sub I, Inc., Wind Merger Sub II, LLC, Infrastructure and Energy Alternatives, LLC, Oaktree Power Opportunities Fund III Delaware, L.P., solely in its capacity as the representative of the seller, 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 (incorporated by reference to Exhibit 2.1 to the Company’s Amendment No. 1 to its Current Report on Form 8-K filed November 8, 2017).

2.2

 

Amendment No. 1 to the Agreement and Plan of Merger, dated as of November 15, 2017, by and among IEA Energy Services LLC, M III Acquisition Corp., Wind Merger Sub I, Inc., Wind Merger Sub II, LLC, Infrastructure and Energy Alternatives, LLC, Oaktree Power Opportunities Fund III Delaware, L.P., solely in its capacity as the representative of the seller, 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 (incorporated by reference to Exhibit 2.2 to the Company’s Current Report on Form 8-K filed November 21, 2017).

2.3

 

Amendment No. 2 to the Agreement and Plan of Merger, dated as of December 27, 2017, by and among IEA Energy Services LLC, M III Acquisition Corp., Wind Merger Sub I, Inc., Wind Merger Sub II, LLC, Infrastructure and Energy Alternatives, LLC, Oaktree Power Opportunities Fund III Delaware, L.P., solely in its capacity as the representative of the seller, 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 (incorporated by reference to Exhibit 2.3 to the Company’s Current Report on Form 8-K filed January 2, 2018).

2.4

 

Amendment No. 3 to the Agreement and Plan of Merger, dated as of January 9, 2018, by and among IEA Energy Services LLC, M III Acquisition Corp., Wind Merger Sub I, Inc., Wind Merger Sub II, LLC, Infrastructure and Energy Alternatives, LLC, Oaktree Power Opportunities Fund III Delaware, L.P., solely in its capacity as the representative of the seller, 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 (incorporated by reference to Exhibit 2.4 to the Company’s Current Report on Form 8-K filed January 10, 2018).

2.5

 

Amendment No. 4 to the Agreement and Plan of Merger, dated as of February 7, 2018, by and among IEA Energy Services LLC, M III Acquisition Corp., Wind Merger Sub I, Inc., Wind Merger Sub II, LLC, Infrastructure and Energy Alternatives, LLC, Oaktree Power Opportunities Fund III Delaware, L.P., solely in its capacity as the representative of the seller, 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 (incorporated by reference to Exhibit 2.5 to the Company’s Current Report on Form 8-K filed February 9, 2018).

2.6

 

Amendment No. 5 to the Agreement and Plan of Merger, dated as of March 8, 2018, by and among IEA Energy Services LLC, M III Acquisition Corp., Wind Merger Sub I, Inc., Wind Merger Sub II, LLC, Infrastructure and Energy Alternatives, LLC, Oaktree Power Opportunities Fund III Delaware, L.P., solely in its capacity as the representative of the seller, 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 (incorporated by reference to Exhibit 2.6 to the Company’s Current Report on Form 8-K filed March 8, 2018).

2.7

 

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 (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed March 20, 2018).

3.1

 

Second Amended and Restated Certificate of Incorporation of Infrastructure and Energy Alternatives, Inc.

3.2

 

Amended and Restated Bylaws of Infrastructure and Energy Alternatives, Inc.

3.3

 

Certificate of Designations of Series A Preferred Stock of Infrastructure and Energy Alternatives, Inc.

4.1

 

Specimen Common Stock Certificate

4.2

 

Specimen Preferred Stock Certificate

4.3

 

Specimen Warrant Certificate

4.4

 

Amended and Restated Warrant Agreement, dated as of March 26, 2018, by and between the Company and Continental Stock Transfer & Trust Company, as Warrant Agent.

10.1

 

Credit Agreement, dated as of March 26, 2018 among Wind Merger Sub I, Inc., as the Initial Borrower, IEA Energy Services LLC, as the Borrower, the Guarantors party thereto, Bank of America, N.A., as Administrative Agent, Swingline Lender and L/C Issuer, and the other Lenders party thereto.

10.2

 

Registration Rights Agreement dated as of March 26, 2018 by and among Infrastructure and Energy Alternatives, Inc., IEA Parent, M III Sponsor I LLC and M III Sponsor I LP, Cantor Fitzgerald & Co., Mr. Osbert Hood and Mr. Philip Marber.

10.3

 

Investor Rights Agreement, dated as of March 26, 2018, (i) by and among Infrastructure and Energy

 

 

13



 

 

 

Alternatives, Inc., M III Sponsor I LLC and any other Sponsor Affiliated Transferees who become a party to the agreement; and (ii) Infrastructure and Energy Alternatives, LLC, any other Seller Affiliated Transferees who become a party to the agreement and Oaktree Power Opportunities Fund III Delaware, L.P., in its capacity as the representatives of the Selling Stockholders.

10.4

 

Founder Shares Amendment Agreement, dated as of March 26, 2018, by and among M III Sponsor I LLC, M III Sponsor I LP, M III Acquisition Corp. and Infrastructure and Energy Alternatives, LLC.

10.5

 

Infrastructure and Energy Alternatives, Inc. 2018 Equity Incentive Plan.

10.6

 

Employment Agreement dated as of January 25, 2018, between IEA Energy Services LLC, a Delaware limited liability company, and John Paul Roehm.

10.7

 

Employment Agreement dated as of January 25, 2018, between IEA Energy Services LLC, a Delaware limited liability company, and Andrew D. Layman.

10.8

 

Lease Agreement between White Construction, Inc. and Clinton RE Holdings (Delaware) LLC, dated as of October 20, 2017.

10.9

 

Investment Management Trust Agreement between Continental Stock Transfer & Trust Company and the Company (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed July 13, 2016).

10.10

 

Letter Agreement by and between the Company, certain security holders and the officers and directors of the Company (incorporated by reference to Schedule A to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on November 8, 2017).

10.11

 

Second Amended and Restated Unit Subscription Agreement dated July 7, 2016 among the Company, M III Sponsor I LLC and M III Sponsor I LP (incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K filed July 13, 2016).

10.12

 

Amended and Restated Unit Subscription Agreement dated July 7, 2016 among the Company and Cantor Fitzgerald & Co. (incorporated by reference to Exhibit 10.5 to the Company’s Current Report on Form 8-K filed July 13, 2016).

10.13

 

Securities Subscription Agreement, dated August 4, 2015, among the Registrant and M III Sponsor I LLC (incorporated by reference to Exhibit 10.5 to the Company’s Registration of Form S-1 filed April 19, 2016).

10.14

 

Unit Subscription Agreement, dated April 14, 2016, by and between M III Acquisition Corp. and Cantor Fitzgerald & Co. (incorporated by reference to Exhibit 10.7 to the Company’s Registration Statement on Form S-1 filed April 19, 2016).

10.15

 

Form of Indemnification Agreement.

10.16

 

Subscription and Backstop Agreement, dated March 7, 2018, by and among the Company, the Sponsors and certain subscribers identified therein (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed March 8, 2018).

10.17

 

Forfeiture Agreement, dated March 7, 2018, between the Sponsors and the Company (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed March 8, 2018).

14.1

 

Code of Ethics.

16.1

 

Letter from Marcum LLP to the Securities and Exchange Commission dated March 29, 2018.

99.1

 

Description of the Company’s Business

99.2

 

Selected Historical Financial Data

99.3

 

IEA’s Management’s Discussion and Analysis of Financial Condition and Results of Operations.

99.4

 

Audited Consolidated Financial Information of IEA Services and its subsidiaries as of December 31, 2017 and 2016 and for each of the three year periods ended December 31, 2017, December 31, 2016 and December 31, 2015.

99.5

 

Unaudited Pro Forma Combined Financial Information as of and for the year ended December 31, 2017.

 

14



 

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 29, 2018

 

 

 

 

INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC.

 

 

 

By:

/s/ Andrew D. Layman

 

Name: Andrew D. Layman

 

Title:    Chief Financial Officer

 

15


Exhibit 3.1

 

SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
M III ACQUISITION CORP.

 

March 26, 2018

 

Infrastructure and Energy Alternatives, Inc., a corporation organized and existing under the laws of the State of Delaware (the “ Corporation ”), DOES HEREBY CERTIFY AS FOLLOWS:

 

1.            The name of the Corporation is “Infrastructure and Energy Alternatives, Inc.”. The original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on August 4, 2015 in the name of “M III Acquisition Corp.”. The Amended and Restated Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on July 6, 2016 (the “ Amended and Restated Certificate ”).

 

2.            This Second Amended and Restated Certificate of Incorporation (the “ Second Amended and Restated Certificate ”) was duly adopted by the Board of Directors of the Corporation (the “ Board ”) and the stockholders of the Corporation in accordance with Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware (the “ DGCL ”). The text of the Amended and Restated Certificate is hereby restated and amended in its entirety to read as set forth in Exhibit A , attached hereto and made a part hererof.

 

3.            This Second Amended and Restated Certificate amends and restates the provisions of the Amended and Restated Certificate. Certain capitalized terms used in this Second Amended and Restated Certificate are defined where appropriate herein.

 

IN WITNESS WHEREOF, the undersigned, being the Chief Executive Officer, herein above named, for the purpose of amending and restating the Certificate of Incorporation of the Corporation pursuant to the General Corporation Law of the State of Delaware, under penalties of perjury does hereby declare and certify that this is the act and deed of the Corporation and the facts stated herein are true, and accordingly has hereunto signed this Certificate of Amended and Restated Certificate of Incorporation this 26th day of March, 2018.

 

 

By:

/s/ Mohsin Y. Meghji

 

Name:

Mohsin Y. Meghji

 

Its:

Chief Executive Officer

 



 

EXHIBIT A

 

SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC.

 

ARTICLE I
NAME

 

The name of the corporation is Infrastructure and Energy Alternatives, Inc. (the “ Corporation ”).

 

ARTICLE II
PURPOSE

 

The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL. In addition to the powers and privileges conferred upon the Corporation by law and those incidental thereto, the Corporation shall possess and may exercise all the powers and privileges that are necessary or convenient to the conduct, promotion or attainment of the business or purposes of the Corporation.

 

ARTICLE III
REGISTERED AGENT

 

The address of the registered office of the Corporation in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, DE 19808, New Castle County, and the name of the Corporation’s registered agent at such address is Corporation Service Company.

 

ARTICLE IV
CAPITALIZATION

 

Section 4.1     Authorized Capital Stock.     The total number of shares of all classes of capital stock which the Corporation is authorized to issue is 101,000,000 shares, consisting of 100,000,000 shares of common stock, par value $0.0001 per share (the “ Common Stock ”), and 1,000,000 shares of preferred stock, par value $0.0001 per share (the “ Preferred Stock ”).

 

Section 4.2     Preferred Stock.     The Preferred Stock may be issued from time to time in one or more series. Subject to the rights of the holders of any outstanding series of Preferred Stock, the Board is hereby expressly authorized to provide for the issuance of shares of the Preferred Stock in one or more series and to establish from time to time the number of shares to be included in each such series and to fix the voting rights, if any, designations, powers, preferences and relative, participating, optional and other special rights, if any, of each such series and any qualifications, limitations and restrictions thereof, as shall be stated in the resolution or resolutions adopted by the Board providing for the issuance of such series and included in a certificate of designation (a “ Preferred Stock Designation ”) filed pursuant to the DGCL, and the Board is hereby expressly vested with the authority to the full extent provided by law, now or hereafter, to adopt any such resolution or resolutions.

 

Section 4.3     Common Stock.

 

(a)   The Board is hereby expressly authorized to provide for the issuance of shares of Common Stock from time to time. The holders of shares of Common Stock shall be entitled to one vote for each such share on each matter properly submitted to the stockholders on which the holders of the Common Stock are entitled to vote.

 

(b)   Except as otherwise required by law or this Second Amended and Restated Certificate (including any Preferred Stock Designation) at any annual or special meeting of the stockholders of the Corporation, the

 

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holders of the Common Stock shall have the exclusive right to vote for the election of directors and on all other matters properly submitted to a vote of the stockholders. Notwithstanding the foregoing, except as otherwise required by law or this Second Amended and Restated Certificate (including a Preferred Stock Designation), the holders of the Common Stock shall not be entitled to vote on any amendment to this Second Amended and Restated Certificate (including any amendment to any Preferred Stock Designation) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Second Amended and Restated Certificate (including any Preferred Stock Designation).

 

(c)   Subject to the rights, if any, of the holders of any outstanding series of the Preferred Stock, the holders of the Common Stock shall be entitled to receive such dividends and other distributions (payable in cash, property or capital stock of the Corporation) when, as and if declared thereon by the Board from time to time out of any assets or funds of the Corporation legally available therefor, and shall share equally on a per share basis in such dividends and distributions.

 

(d)   Subject to the rights, if any, of the holders of any outstanding series of Preferred Stock and any other provisions of this Second Amended and Restated Certificate, as it may be amended from time to time, in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation, the holders of the Common Stock shall be entitled to receive all the remaining assets of the Corporation available for distribution to its stockholders, ratably in proportion to the number of shares of Common Stock held by such holders.

 

Section 4.4     Rights and Options.     The Corporation has the authority to create and issue rights, warrants and options entitling the holders thereof to purchase shares of any class or series of the Corporation’s capital stock or other securities of the Corporation, and such rights, warrants and options shall be evidenced by instrument(s) approved by the Board. The Board is hereby expressly authorized to provide for the issuance of such rights, warrants and options and to establish from time to time the number of such rights, warrants and options to be issued and to fix the exercise price, duration, times for exercise and other terms and conditions of such rights, warrants or options;  provided however , that the consideration to be received for any shares of capital stock subject thereto may not be less than the par value thereof.

 

ARTICLE V
BOARD OF DIRECTORS

 

Section 5.1     Board Powers.     The business and affairs of the Corporation shall be managed by, or under the direction of, the Board. In addition to the powers and authority expressly conferred upon the Board by statute, this Second Amended and Restated Certificate or the Bylaws (“ Bylaws ”) of the Corporation, the Board is hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the DGCL and this Second Amended and Restated Certificate.

 

Section 5.2     Number, Election and Term.

 

(a)   The number of directors of the Corporation, other than those who may be elected by the holders of one or more series of the Preferred Stock voting separately by class or series, shall be fixed from time to time exclusively by the Board pursuant to a resolution adopted by a majority of the Board.

 

(b)   Subject to  Section 5.5  hereof, the Board shall be divided into three classes, as nearly equal in number as possible and designated Class I, Class II and Class III. The term of the initial Class I Directors shall expire at the annual meeting of the stockholders of the Corporation held in 2019, the term of the initial Class II Directors shall expire at the annual meeting of the stockholders of the Corporation held in 2020 and the term of the initial Class III Directors shall expire at the annual meeting of the stockholders of the Corporation held in 2021.(1) At each annual meeting of the stockholders of the Corporation, successors to the class of directors whose term expires at that annual meeting shall be elected for a three-year term. Subject to Section 5.5 hereof, if the number of directors is changed, any increase or decrease shall be apportioned by the Board among the classes so as to

 

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maintain the number of directors in each class as nearly equal as possible, but in no case shall a decrease in the number of directors shorten the term of any incumbent director.

 

(c)   Subject to  Section 5.5  hereof, a director shall hold office until the annual meeting for the year in which his or her term expires and until his or her successor has been elected and qualified, subject, however, to such director’s earlier death, resignation, retirement, disqualification or removal.

 

(d)   Unless and except to the extent that the Bylaws shall so require, the election of directors need not be by written ballot.

 

Section 5.3     Newly Created Directorships and Vacancies.     Subject to  Section 5.5  hereof and the Investor Rights Agreement, newly created directorships resulting from an increase in the number of directors and any vacancies on the Board resulting from death, resignation, retirement, disqualification, removal or other cause may be filled solely by a majority vote of the remaining directors then in office, even if less than a quorum, or by a sole remaining director (and not by stockholders), and any director so chosen shall hold office for the remainder of the full term of the class of directors to which the new directorship was added or in which the vacancy occurred and until his or her successor has been elected and qualified, subject, however, to such director’s earlier death, resignation, retirement, disqualification or removal.

 

Section 5.4     Removal.     Subject to  Section 5.5  hereof and the Investor Rights Agreement, any or all of the directors may be removed from office at any time, but only for cause and only by the affirmative vote of holders of a majority of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.

 

Section 5.5     Preferred Stock—Directors.     Notwithstanding any other provision of this  Article V , and except as otherwise required by law, whenever the holders of one or more series of the Preferred Stock shall have the right, voting separately by class or series, to elect one or more directors, the term of office, the filling of vacancies, the removal from office and other features of such directorships shall be governed by the terms of such series of the Preferred Stock as set forth in this Second Amended and Restated Certificate (including any Preferred Stock Designation) and such directors shall not be included in any of the classes created pursuant to this  Article V  unless expressly provided by such terms.

 

ARTICLE VI
BYLAWS

 

In furtherance and not in limitation of the powers conferred upon it by law, the Board shall have the power to adopt, amend, alter or repeal the Bylaws. The affirmative vote of a majority of the Board shall be required to adopt, amend, alter or repeal the Bylaws. The Bylaws also may be adopted, amended, altered or repealed by the stockholders;  provided however , that in addition to any vote of the holders of any class or series of capital stock of the Corporation required by law or by this Second Amended and Restated Certificate (including any Preferred Stock Designation), the affirmative vote of the holders of at least a majority of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required for the stockholders to adopt, amend, alter or repeal the Bylaws, other than Sections 2.5(d) and Section 9.15, which may be amended, altered or repealed only as set forth in Section 9.15 of the Bylaws; and provided further , however , that no Bylaws hereafter adopted by the stockholders shall invalidate any prior act of the Board that would have been valid if such Bylaws had not been adopted.

 

ARTICLE VII
MEETINGS OF STOCKHOLDERS; ACTION BY WRITTEN CONSENT

 

Section 7.1     Meetings.     Subject to the rights of the holders of any outstanding series of the Preferred Stock, and to the requirements of applicable law, special meetings of stockholders of the Corporation may be called only in the manner set forth in the Bylaws.

 

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Section 7.2     Advance Notice.     Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner provided in the Bylaws.

 

Section 7.3     Action by Written Consent.     Any action required or permitted to be taken by the stockholders of the Corporation must be effected by a duly called annual or special meeting of such holders and may not be effected by written consent of the stockholders.

 

ARTICLE VIII
LIMITED LIABILITY; INDEMNIFICATION

 

Section 8.1     Limitation of Director Liability.     A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

Section 8.2     Indemnification and Advancement of Expenses.

 

(a)   To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the Corporation shall indemnify and hold harmless each person (an “ indemnitee ”) who is or was made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “ proceeding ”) by reason of the fact that he or she is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee or agent, against all liability and loss suffered and expenses (including, without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred by such indemnitee in connection with such proceeding. The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by an indemnitee in defending or otherwise participating in any proceeding in advance of its final disposition;  provided however , that, to the extent required by applicable law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking, by or on behalf of the indemnitee, to repay all amounts so advanced if it shall ultimately be determined that the indemnitee is not entitled to be indemnified under this  Section 8.2  or otherwise. The rights to indemnification and advancement of expenses conferred by this  Section 8.2  shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators. Notwithstanding the foregoing provisions of this  Section 8.2(a) , except for proceedings to enforce rights to indemnification and advancement of expenses, the Corporation shall indemnify and advance expenses to an indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board.

 

(b)   The rights to indemnification and advancement of expenses conferred on any indemnitee by this  Section 8.2  shall not be exclusive of any other rights that any indemnitee may have or hereafter acquire under law, this Second Amended and Restated Certificate, the Bylaws, an agreement, vote of stockholders or disinterested directors, or otherwise.

 

(c)   Any repeal or amendment of this  Section 8.2  by the stockholders of the Corporation or by changes in law, or the adoption of any other provision of this Second Amended and Restated Certificate inconsistent with this  Section 8.2 , shall, unless otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the Corporation to provide broader indemnification rights on a retroactive basis than permitted prior thereto), and shall not in any way diminish or adversely affect any right or protection existing at the time of such repeal or amendment or adoption of such inconsistent provision in respect of any

 

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proceeding (regardless of when such proceeding is first threatened, commenced or completed) arising out of, or related to, any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision.

 

(d)   This Section 8.2 shall not limit the right of the Corporation, to the extent and in the manner authorized or permitted by law, to indemnify and to advance expenses to persons other than indemnitees.

 

(e)   In all events, the Corporation hereby agrees that (i) its obligation to an Indemnitee to provide advancement and/or indemnification to such Indemnitee is primary, (ii) any obligation of the Investor Holder (as defined below) or Sponsor Holder (as defined below) to provide advancement or indemnification hereunder or under any other indemnification agreement (whether pursuant to contract, by-laws or charter), or any obligation of an insurer of the Investor Holder or Sponsor Holder to provide insurance coverage, for the same expenses, liabilities, judgements, penalties, fines and amount paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such expenses, liabilities, judgements, penalties, fines and amounts paid in settlement) incurred by such Indemnitee are secondary and subsequent to the foregoing obligations of the Corporation and (iii) if the Investor Holder or Sponsor Holder pays or causes to be paid, for any reason, any amounts otherwise indemnifiable, hereunder or under any other indemnification agreement (whether pursuant to contract, by-laws or charter) with such Indemnitee, then (x) the Investor Holder or Sponsor Holder (as the case may be), shall be fully subrogated to all rights of such Indemnitee with respect to such payment and (y) the Corporation shall fully indemnify, reimburse and hold harmless the Investor Holder or Sponsor Holder (as the case may be), for all such payments actually made by the Investor Holder or Sponsor Holder (as the case may be).

 

ARTICLE IX
BUSINESS OPPORTUNITIES

 

Section 9.1     Opt out of DGCL 203.     The Corporation elects pursuant to this Second Amended and Restated Certificate to no longer be governed by Section 203 of the DGCL and this Section 9.1 shall become effective twelve months following the date of this Second Amended and Restated Certificate in accordance with Section 203(c) of the DGCL, at which time the provisions of Section 9.2 hereof shall become effective.

 

Section 9.2     Limitations on Business Combinations.     Twelve months following the date of this Second Amended and Restated Certificate this Section 9.2 shall become effective. Thereafter, the Corporation shall not engage in any business combination (as defined below), at any point in time at which the Corporation’s Common Stock is registered under Section 12(b) or 12(g) of the Exchange Act (as defined below), with any interested stockholder (as defined below) for a period of three years following the time that such stockholder became an interested stockholder, unless:

 

(a)   prior to such time, the Board approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder; or

 

(b)   upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock (as defined below) of the Corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned by (i) persons who are directors and also officers or (ii) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer, or

 

(c)   at or subsequent to such time, the business combination is approved by the Board and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 662/3% of the outstanding voting stock of the Corporation which is not owned by the interested stockholder.

 

Section 9.3     Definitions.     For the purposes of this  Article IX :

 

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(a)   “ affiliate ” means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, another person.

 

(b)   “ associate ,” when used to indicate a relationship with any person, means: (i) any corporation, partnership, unincorporated association or other entity of which such person is a director, officer or partner or is, directly or indirectly, the owner of 20% or more of any class of voting stock; (ii) any trust or other estate in which such person has at least a 20% beneficial interest or as to which such person serves as trustee or in a similar fiduciary capacity; and (iii) any relative or spouse of such person, or any relative of such spouse, who has the same residence as such person.

 

(c)   “ business combination ,” when used in reference to the Corporation and any interested stockholder, means:

 

(i)  any merger or consolidation of the Corporation or any direct or indirect majority-owned subsidiary of the Corporation (1) with the interested stockholder, or (2) with any other corporation, partnership, unincorporated association or other entity if the merger or consolidation is caused by the interested stockholder and as a result of such merger or consolidation Section 9.2 is not applicable to the surviving entity;

 

(ii)  any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), except proportionately as a stockholder of the Corporation, to or with the interested stockholder, whether as part of a dissolution or otherwise, of assets of any corporation or of any direct or indirect majority-owned subsidiary of the Corporation which assets have an aggregate market value equal to 10% or more of either the aggregate market value of all the assets of the Corporation determined on a consolidated basis or the aggregate market value of all the outstanding stock of the Corporation;

 

(iii)  any transaction which results in the issuance or transfer by the Corporation or by any direct or indirect majority-owned subsidiary of the Corporation of any stock of the Corporation or of such subsidiary to the interested stockholder, except: (1) pursuant to the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary which securities were outstanding prior to the time that the interested stockholder became such; (2) pursuant to a merger under Section 251(g) of the General Corporation Law; (3) pursuant to a dividend or distribution paid or made, or the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary which security is distributed, pro rata to all holders of a class or series of stock of the Corporation subsequent to the time the interested stockholder became such; (4) pursuant to an exchange offer by the Corporation to purchase stock made on the same terms to all holders of said stock; or (5) any issuance or transfer of stock by the Corporation;  provided however , that in no case under items (1)-(5) of this subsection 0 shall there be an increase in the interested stockholder’s proportionate share of the stock of any class or series of the Corporation or of the voting stock of the Corporation (except as a result of immaterial changes due to fractional share adjustments);

 

(iv)  any transaction involving the Corporation or any direct or indirect majority-owned subsidiary of the Corporation which has the effect, directly or indirectly, of increasing the proportionate share of the stock of any class or series, or securities convertible into the stock of any class or series, of the Corporation or of any such subsidiary which is owned by the interested stockholder, except as a result of immaterial changes due to fractional share adjustments or as a result of any purchase or redemption of any shares of stock not caused, directly or indirectly, by the interested stockholder; or

 

(v)  any receipt by the interested stockholder of the benefit, directly or indirectly (except proportionately as a stockholder of the Corporation), of any loans, advances, guarantees, pledges, or other financial benefits (other than those expressly permitted in subsections 0-0 above) provided by or through the Corporation or any direct or indirect majority-owned subsidiary.

 

(d)   “ control ,” including the terms “ controlling ,” “ controlled by ” and “ under common control with ,” means the possession, directly or indirectly, of the power to direct or cause the direction of the

 

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management and policies of a person, whether through the ownership of voting stock, by contract, or otherwise. A person who is the owner of 20% or more of the outstanding voting stock of the Corporation, partnership, unincorporated association or other entity shall be presumed to have control of such entity, in the absence of proof by a preponderance of the evidence to the contrary. Notwithstanding the foregoing, a presumption of control shall not apply where such person holds voting stock, in good faith and not for the purpose of circumventing this  Article IX , as an agent, bank, broker, nominee, custodian or trustee for one or more owners who do not individually or as a group have control of such entity.

 

(e)   “ interested stockholder ” means any person (other than the Corporation or any direct or indirect majority-owned subsidiary of the Corporation) that (i) is the owner of 15% or more of the outstanding voting stock of the Corporation, or (ii) is an affiliate or associate of the Corporation and was the owner of 15% or more of the outstanding voting stock of the Corporation at any time within the three year period immediately prior to the date on which it is sought to be determined whether such person is an interested stockholder, and the affiliates and associates of such person; provided , however , that the term “interested stockholder” shall not include (1) the Sponsor Holder (as defined below), the Investor Holder (as defined below) or their respective transferees (other than in connection with a public offering) and designated by the Investor Holder or Sponsor Holder, as applicable, as being excluded as an interested shareholder or (2) any person whose ownership of shares in excess of the 15% limitation set forth herein is the result of any action taken solely by the Corporation; provided that such person specified in this clause (2) shall be an interested stockholder if thereafter such person acquires additional shares of voting stock of the Corporation, except as a result of further corporate action not caused, directly or indirectly, by such person. For the purpose of determining whether a person is an interested stockholder, the voting stock of the Corporation deemed to be outstanding shall include stock deemed to be owned by the person through application of the definition of “owner” below but shall not include any other unissued stock of the Corporation which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise.

 

(f)    “ owner ,” including the terms “ own ” and “ owned ,” when used with respect to any stock, means a person that individually or with or through any of its affiliates or associates:

 

(i)  beneficially owns such stock, directly or indirectly; or

 

(ii)  has (1) the right to acquire such stock (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise;  provided however , that a person shall not be deemed the owner of stock tendered pursuant to a tender or exchange offer made by such person or any of such person’s affiliates or associates until such tendered stock is accepted for purchase or exchange; or (2) the right to vote such stock pursuant to any agreement, arrangement or understanding;  provided however , that a person shall not be deemed the owner of any stock because of such person’s right to vote such stock if the agreement, arrangement or understanding to vote such stock arises solely from a revocable proxy or consent given in response to a proxy or consent solicitation made to ten or more persons; or

 

(iii)  has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent as described in item (2) of subsection 0 above), or disposing of such stock with any other person that beneficially owns, or whose affiliates or associates beneficially own, directly or indirectly, such stock.

 

(g)   “ person ” means any individual, corporation, partnership, unincorporated association or other entity.

 

(h)   “ stock ” means, with respect to any corporation, capital stock and, with respect to any other entity, any equity interest.

 

(i)    “ voting stock ” means stock of any class or series entitled to vote generally in the election of directors.

 

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ARTICLE X
CORPORATE OPPORTUNITY

 

10.1     Scope.     The provisions of this  Article X  are set forth to define, to the extent permitted by applicable law, the duties of the Exempted Person (as defined below) to the Corporation with respect to certain classes or categories of business opportunities.

 

10.2     Competition and Allocation of Corporate Opportunities.     The Exempted Persons shall not have any fiduciary duty to refrain from engaging directly or indirectly in the same or similar business activities or lines of business as the Corporation or any of its subsidiaries. To the fullest extent permitted by applicable law, the Corporation, on behalf of itself and its subsidiaries, renounces any interest or expectancy of the Corporation and its subsidiaries in, or in being offered an opportunity to participate in, business opportunities that are from time to time presented to the Exempted Persons, even if the opportunity is one that the Corporation or its subsidiaries might reasonably be deemed to have pursued or has the ability or desire to pursue if granted the opportunity to do so, and each such Exempted Person shall have no duty to communicate or offer its subsidiaries for breach of any fiduciary or other duty, as a director or officer or otherwise, by reason of the fact that such Exempted Person pursues or acquires such business opportunity, directs such business opportunity to another person or fails to present such business opportunity, or information regarding such business opportunity, to the Corporation or its subsidiaries.

 

10.3     Certain Matters Deemed Not Corporate Opportunities.     In addition to and notwithstanding the foregoing provisions of this  Article X , a corporate opportunity shall not be deemed to belong to the Corporation if it is a business opportunity that the Corporation is not financially able or contractually permitted or legally able to undertake, or that is, from its nature, not in the line of the Corporation’s business or is of no practical advantage to it or that is one in which the Corporation has no interest or reasonable expectancy.

 

10.4     Amendment of this Article.     No amendment or repeal of this  Article X  in accordance with  Article XI  shall apply to or have any effect on the liability of any Exempted Person for or with respect to any activities or opportunities of which such Exempted Person becomes aware prior to such amendment or repeal. This  Article X  shall not limit any protections or defenses available to, or indemnification or advancement rights of, any director or officer of the Corporation under this Second Amended and Restated Certificate, the Bylaws or applicable law.

 

ARTICLE XI
AMENDMENT OF SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION

 

Subject to the Investor Rights Agreement, the Corporation reserves the right to amend, alter, change or repeal any provision contained in this Second Amended and Restated Certificate or any Preferred Stock Designation, in the manner now or hereafter prescribed by this Second Amended and Restated Certificate and the DGCL; and, except as set forth in  Article VIII , all rights, preferences and privileges herein conferred upon stockholders, directors or any other persons by and pursuant to this Second Amended and Restated Certificate in its present form or as hereafter amended are granted subject to the right reserved in this  Article XI . Notwithstanding the foregoing and/or anything contained in this Second Amended and Restated Certificate to the contrary, Sections 5.2, 7.1 and 7.3 and  Articles VI, VIII, IX, X  and this Article  XI may not be amended, altered, repealed or rescinded, in whole or in part, or any provision inconsistent therewith or herewith may be adopted, only by the affirmative vote of the holders of at least two-thirds of the voting power of the stock of the Corporation entitled to vote thereon, voting together as a single class.

 

ARTICLE XII
DEFINITIONS

 

As used in this Second Amended and Restated Certificate, unless the context otherwise requires or a set forth in another Article or Section of this Second Amended and Restated Certificate, the term:

 

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(a)   “ Affiliate ” means, with respect to any Person, any other Person, directly or indirectly controlling, controlled by, or under common control with such person;  provided  that neither the Corporation nor any of its subsidiaries will be deemed an Affiliate of any stockholder of the Corporation or any of such stockholders’ Affiliates.

 

(b)   “ Amended and Restated Certificate ” is defined in the preamble.

 

(c)   “ Board ” is defined in the preamble.

 

(d)   “ Bylaws ” is defined in  Article V .

 

(e)   “ Common Stock ” is defined in Section 4.1.

 

(f)    “ Corporation ” is defined in  Article I .

 

(g)   “ DGCL ” is defined in  Article II .

 

(h)   “ Exempted Person ” means the Investor Holder¸ the Sponsor Holder and all of their respective partners, principals, directors, officers, members, managers and/or employees, including of the foregoing who serve as officers or directors of the Corporation.

 

(i)    “ indemnitee ” is defined in Section 8.2 (a).

 

(j)    “ Investor Rights Agreement ” means the Investor Rights Agreement, dated as of March 26, 2018, by and among the Corporation, M III Acquisition Corp., M III Sponsor I LLC, M III Sponsor I LP, Infrastructure and Energy Alternatives LLC, as may be amended, restated, supplemented and/or otherwise modified, from time to time.

 

(k)   “ Investor Holder ” means Oaktree Capital Management, L.P, Infrastructure and Energy Alternatives, LLC and each of their successors and Affiliates (including any investment funds or entities managed by Oaktree Capital Management, L.P and its Affiliates).

 

(l)    “Person” means any individual, corporation, partnership, unincorporated association or other entity.

 

(m)  “ Preferred Stock ” is defined in Section 4.1.

 

(n)   “ Preferred Stock Designation ” is defined in Section 4.2.

 

(o)   “ proceeding ” is defined in Section 8.2(a).

 

(p)   “ Second Amended and Restated Certificate ” is defined in the preamble.

 

(q)   “ Sponsor Holder ” means M III Sponsor I LLC, M III Sponsor I LP and each of their respective successors and Affiliates.

 

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Exhibit 3.2

 

AMENDED AND RESTATED BY LAWS

OF

INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC. (THE “CORPORATION”)

 

ARTICLE I

OFFICES

 

Section 1.1. Registered Office . The registered office of the Corporation within the State of Delaware shall be located at either (a) the principal place of business of the Corporation in the State of Delaware or (b) the office of the corporation or individual acting as the Corporation’s registered agent in Delaware.

 

Section 1.2. Additional Offices . The Corporation may, in addition to its registered office in the State of Delaware, have such other offices and places of business, both within and outside the State of Delaware, as the Board of Directors of the Corporation (the “ Board ”) may from time to time determine or as the business and affairs of the Corporation may require.

 

ARTICLE II

STOCKHOLDERS MEETINGS

 

Section 2.1. Annual Meetings . The annual meeting of stockholders shall be held at such place and time and on such date as shall be determined by the Board and stated in the notice of the meeting, provided that the Board may in its sole discretion determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communication pursuant to Section 9.5(a) . At each annual meeting, the stockholders shall elect those directors of the Corporation to fill any term of a directorship that expires on the date of such annual meeting and may transact any other business as may properly be brought before the meeting.

 

Section 2.2. Special Meetings . Subject to the rights of the holders of any outstanding series of the Preferred Stock, and to the requirements of applicable law, special meetings of stockholders, for any purpose or purposes, may be called only by (i) the Chairman of the Board or the Chief Executive Officer, (ii) the Board pursuant to a resolution adopted by a majority of the Board, (iii) a Sponsor Designee (as defined in the Investor Rights Agreement (the “ Investor Rights Agreement ”), dated March 26, 2018, entered into by and among the Corporation, M III Sponsor I LLC, M III Sponsor I LP, and any other Sponsor Affiliated Transferees (as defined in the Investor Rights Agreement) thereunder who become party thereto and by and among the Corporation and each of Infrastructure and Energy Alternatives, LLC, any other Seller Affiliated Transferees (as defined in the Investor Rights Agreement) thereunder who become party thereto and Oaktree Power Opportunities Fund III Delaware, L.P., in its capacity as the representative of the Selling Stockholders (as defined in the Investor Rights Agreement)) so long as the Sponsor Minimum Condition (as defined in the Investor Rights Agreement) is satisfied or (iv) a GFI Designee (as defined in the Investor Rights Agreement) so long as the Seller Minimum Condition (as defined in the Investor Rights Agreement) is satisfied. Special meetings of stockholders shall be held at such place and time and on such date as shall be determined by the Board and stated in the Corporation’s notice of the meeting, provided that the Board may in its sole discretion determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communication pursuant to Section 9.5(a) .

 

Section 2.3. Notices. Notice of each stockholders meeting stating the place, if any, date, and time of the meeting, and the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, shall be given in the manner permitted by Section 9.3 to each stockholder entitled to vote thereat by the Corporation not less than 10 nor more than 60 days before the date of the meeting. If said notice is for a stockholders meeting other than an annual meeting, it shall in addition state the purpose or purposes for which the meeting is called, and the business transacted at such meeting shall be limited to the matters so stated in the Corporation’s notice of meeting (or any supplement thereto). Any meeting of stockholders as to which notice has been given may be postponed, and any special meeting of stockholders as to which notice has been given may be cancelled, by the Board upon public announcement (as defined in Section 2.7(c)) given before the date previously scheduled for such meeting.

 



 

Section 2.4. Quorum . Except as otherwise provided by applicable law, the Corporation’s Certificate of Incorporation, as the same may be amended or restated from time to time (the “ Certificate of Incorporation ”) or these By Laws, the presence, in person or by proxy, at a stockholders meeting of the holders of shares of outstanding capital stock of the Corporation representing a majority of the voting power of all outstanding shares of capital stock of the Corporation entitled to vote at such meeting shall constitute a quorum for the transaction of business at such meeting, except that when specified business is to be voted on by a class or series of stock voting as a class, the holders of shares representing a majority of the voting power of the outstanding shares of such class or series shall constitute a quorum of such class or series for the transaction of such business. If a quorum shall not be present or represented by proxy at any meeting of the stockholders of the Corporation, the chairman of the meeting may adjourn the meeting from time to time in the manner provided in Section 2.6 until a quorum shall attend. The stockholders present at a duly convened meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the voting power of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation or any such other corporation to vote shares held by it in a fiduciary capacity.

 

Section 2.5. Voting of Shares .

 

(a)    Voting Lists . The Secretary shall prepare, or shall cause the officer or agent who has charge of the stock ledger of the Corporation to prepare, at least 10 days before every meeting of stockholders, a complete list of the stockholders of record entitled to vote at such meeting and showing the address and the number of shares registered in the name of each stockholder. Nothing contained in this Section 2.5(a)  shall require the Corporation to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If a meeting of stockholders is to be held solely by means of remote communication as permitted by Section 9.5(a) , the list shall be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of meeting. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list required by this Section 2.5(a)  or to vote in person or by proxy at any meeting of stockholders.

 

(b)     Manner of Voting . At any stockholders meeting, every stockholder entitled to vote may vote in person or by proxy. If authorized by the Board, the voting by stockholders or proxy holders at any meeting conducted by remote communication may be effected by a ballot submitted by electronic transmission (as defined in Section 9.3 ), provided that any such electronic transmission must either set forth or be submitted with information from which the Corporation can determine that the electronic transmission was authorized by the stockholder or proxy holder. The Board, in its discretion, or the chairman of the meeting of stockholders, in such person’s discretion, may require that any votes cast at such meeting shall be cast by written ballot.

 

(c)     Proxies . Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed with the Secretary before being voted. Without limiting the manner in which a stockholder may authorize another person or persons to act for such stockholder as proxy, either of the following shall constitute a valid means by which a stockholder may grant such authority.

 

(i)       A stockholder may execute a writing authorizing another person or persons to act for such stockholder as proxy. Execution may be accomplished by the stockholder or such stockholder’s

 



 

authorized officer, director, employee or agent signing such writing or causing such person’s signature to be affixed to such writing by any reasonable means, including, but not limited to, by facsimile signature.

 

(ii)         A stockholder may authorize another person or persons to act for such stockholder as proxy by transmitting or authorizing the transmission of an electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the stockholder. Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission authorizing another person or persons to act as proxy for a stockholder may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used; provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission.

 

(d)     Required Vote . Subject to the rights of the holders of one or more series of preferred stock of the Corporation (“ Preferred Stock ”), voting separately by class or series, to elect directors pursuant to the terms of one or more series of Preferred Stock, the election of directors shall be determined by a plurality of the votes cast by the stockholders present in person or represented by proxy at the meeting and entitled to vote thereon. All other matters shall be determined by the vote of a majority of the votes cast by the stockholders present in person or represented by proxy at the meeting and entitled to vote thereon, unless the matter is one upon which, by applicable law, the Certificate of Incorporation, these By Laws or applicable stock exchange rules, a different vote is required, in which case such provision shall govern and control the decision of such matter.

 

(e)     Inspectors of Election . The Board may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more persons as inspectors of election, who may be employees of the Corporation or otherwise serve the Corporation in other capacities, to act at such meeting of stockholders or any adjournment thereof and to make a written report thereof. The Board may appoint one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspectors of election or alternates are appointed by the Board, the chairman of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall ascertain and report the number of outstanding shares and the voting power of each; determine the number of shares present in person or represented by proxy at the meeting and the validity of proxies and ballots; count all votes and ballots and report the results; determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors; and certify their determination of the number of shares represented at the meeting and their count of all votes and ballots. No person who is a candidate for an office at an election may serve as an inspector at such election. Each report of an inspector shall be in writing and signed by the inspector or by a majority of them if there is more than one inspector acting at such meeting. If there is more than one inspector, the report of a majority shall be the report of the inspectors.

 

Section 2.6. Adjournments . Any meeting of stockholders, annual or special, may be adjourned by the chairman of the meeting, from time to time, whether or not there is a quorum, to reconvene at the same or some other place. Notice need not be given of any such adjourned meeting if the date, time, and place, if any, thereof, and the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders, or the holders of any class or series of stock entitled to vote separately as a class, as the case may be, may transact any business that might have been transacted at the original meeting. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

Section 2.7. Advance Notice for Business .

 

(a)    Annual Meetings of Stockholders . No business may be transacted at an annual meeting of stockholders, other than business that is either (i) specified in the Corporation’s notice of meeting (or any supplement thereto) given by or at the direction of the Board, (ii) otherwise properly brought before the annual meeting by or at the direction of the Board or (iii) otherwise properly brought before the annual

 



 

meeting by any stockholder of the Corporation (x) who is a stockholder of record on the date of the giving of the notice provided for in this Section 2.7(a)  and on the record date for the determination of stockholders entitled to vote at such annual meeting and (y) who complies with the notice procedures set forth in this Section 2.7(a) . Notwithstanding anything in this Section 2.7(a)  to the contrary, only persons nominated for election as a director to fill any term of a directorship that expires on the date of the annual meeting pursuant to Section 3.2 will be considered for election at such meeting.

 

(i)       In addition to any other applicable requirements, for business (other than nominations) to be properly brought before an annual meeting by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation and such business must otherwise be a proper matter for stockholder action. Subject to Section 2.7(a)(iii) , a stockholder’s notice to the Secretary with respect to such business, to be timely, must be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the 90th day nor earlier than the opening of business on the 120th day before the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is called for a date that is not within 45 days before or after such anniversary date, notice by the stockholder to be timely must be so received not earlier than the opening of business on the 120th day before the meeting and not later than the later of (x) the close of business on the 90th day before the meeting or (y) the close of business on the 10th day following the day on which public announcement of the date of the annual meeting is first made by the Corporation. The public announcement of an adjournment of an annual meeting shall not commence a new time period for the giving of a stockholder’s notice as described in this Section 2.7(a).

 

(ii)        To be in proper written form, a stockholder’s notice to the Secretary with respect to any business (other than nominations) must set forth as to each such matter such stockholder proposes to bring before the annual meeting (A) a brief description of the business desired to be brought before the annual meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event such business includes a proposal to amend these By Laws, the language of the proposed amendment) and the reasons for conducting such business at the annual meeting, (B) the name and record address of such stockholder and the name and address of the beneficial owner, if any, on whose behalf the proposal is made, (C) the class or series and number of shares of capital stock of the Corporation that are owned beneficially and of record by such stockholder and by the beneficial owner, if any, on whose behalf the proposal is made, (D) a description of all arrangements or understandings between such stockholder and the beneficial owner, if any, on whose behalf the proposal is made and any other person or persons (including their names) in connection with the proposal of such business by such stockholder, (E) any material interest of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made in such business and (F) a representation that such stockholder intends to appear in person or by proxy at the annual meeting to bring such business before the meeting.

 

(iii)         The foregoing notice requirements of this Section 2.7(a)  shall be deemed satisfied by a stockholder as to any proposal (other than nominations) if the stockholder has notified the Corporation of such stockholder’s intention to present such proposal at an annual meeting in compliance with Rule 14a-8 (or any successor thereof) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), and such stockholder has complied with the requirements of such Rule for inclusion of such proposal in a proxy statement prepared by the Corporation to solicit proxies for such annual meeting. No business shall be conducted at the annual meeting of stockholders except business brought before the annual meeting in accordance with the procedures set forth in this Section 2.7(a) , provided, however, that once business has been properly brought before the annual meeting in accordance with such procedures, nothing in this Section 2.7(a)  shall be deemed to preclude discussion by any stockholder of any such business. If the Board or the chairman of the annual meeting determines that any stockholder proposal was not made in accordance with the provisions of this Section 2.7(a)  or that the information provided in a stockholder’s notice does not satisfy the information requirements of this Section 2.7(a), such proposal shall not be presented for action at the annual meeting. Notwithstanding the foregoing provisions of this Section 2.7(a), if the stockholder (or a qualified representative of the stockholder) does not appear at the annual meeting of stockholders of the Corporation to present the proposed business, such proposed business shall not be transacted, notwithstanding that proxies in respect of such matter may have been received by the Corporation.

 

(iv)       In addition to the provisions of this Section 2.7(a) , a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing in this Section 2.7(a)  shall be deemed to affect any rights of

 



 

stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a- 8 under the Exchange Act.

 

(b)     Special Meetings of Stockholders . Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting only pursuant to Section 3.2 .

 

(c)     Public Announcement . For purposes of these By Laws, “ public announcement ” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.

 

Section 2.8. Conduct of Meetings . The chairman of each annual and special meeting of stockholders shall be the Chairman of the Board or, in the absence (or inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) or, in the absence (or inability or refusal to act of the Chief Executive Officer or if the Chief Executive Officer is not a director, the President (if he or she shall be a director) or, in the absence (or inability or refusal to act) of the President or if the President is not a director, such other person as shall be appointed by the Board. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the chairman of the meeting. The Board may adopt such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with these By Laws or such rules and regulations as adopted by the Board, the chairman of any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board or prescribed by the chairman of the meeting, may include, without limitation, the following: (a) the establishment of an agenda or order of business for the meeting; (b) rules and procedures for maintaining order at the meeting and the safety of those present; (c) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (d) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (e) limitations on the time allotted to questions or comments by participants. Unless and to the extent determined by the Board or the chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure. The secretary of each annual and special meeting of stockholders shall be the Secretary or, in the absence (or inability or refusal to act) of the Secretary, an Assistant Secretary so appointed to act by the chairman of the meeting. In the absence (or inability or refusal to act) of the Secretary and all Assistant Secretaries, the chairman of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.9. Consents in Lieu of Meeting . Any action required or permitted to be taken by the stockholders of the Corporation must be effected by a duly called annual or special meeting of such stockholders and may not be effected by written consent of the stockholders.

 

ARTICLE III

DIRECTORS

 

Section 3.1. Powers . The business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these By Laws required to be exercised or done by the stockholders. Directors need not be stockholders or residents of the State of Delaware.

 



 

Section 3.2. Advance Notice for Nomination of Directors .

 

(a)     Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the Corporation, except as may be otherwise provided in the Investor Rights Agreement or provided by the terms of one or more series of Preferred Stock with respect to the rights of holders of one or more series of Preferred Stock to elect directors. Nominations of persons for election to the Board at any annual meeting of stockholders, or at any special meeting of stockholders called for the purpose of electing directors as set forth in the Corporation’s notice of such special meeting, may be made (i) by or at the direction of the Board or (ii) by any stockholder of the Corporation (x) who is a stockholder of record on the date of the giving of the notice provided for in this Section 3.2 and on the record date for the determination of stockholders entitled to vote at such meeting and (y) who complies with the notice procedures set forth in this Section 3.2 .

 

(b)     In addition to any other applicable requirements, for a nomination to be made by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation. To be timely, a stockholder’s notice to the Secretary must be received by the Secretary at the principal executive offices of the Corporation (i) in the case of an annual meeting, not later than the close of business on the 90th day nor earlier than the opening of business on the 120th day before the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is called for a date that is not within 45 days before or after such anniversary date, notice by the stockholder to be timely must be so received not earlier than the opening of business on the 120th day before the meeting and not later than the later of (x) the close of business on the 90th day before the meeting or (y) the close of business on the 10th day following the day on which public announcement of the date of the annual meeting was first made by the Corporation; and (ii) in the case of a special meeting of stockholders called for the purpose of electing directors, not later than the close of business on the 10th day following the day on which public announcement of the date of the special meeting is first made by the Corporation. In no event shall the public announcement of an adjournment of an annual meeting or special meeting commence a new time period for the giving of a stockholder’s notice as described in this Section 3.2 .

 

(c)        Notwithstanding anything in paragraph (b) to the contrary, in the event that the number of directors to be elected to the Board at an annual meeting is greater than the number of directors whose terms expire on the date of the annual meeting and there is no public announcement by the Corporation naming all of the nominees for the additional directors to be elected or specifying the size of the increased Board before the close of business on the 90th day prior to the anniversary date of the immediately preceding annual meeting of stockholders, a stockholder’s notice required by this Section 3.2 shall also be considered timely, but only with respect to nominees for the additional directorships created by such increase that are to be filled by election at such annual meeting, if it shall be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the 10th day following the date on which such public announcement was first made by the Corporation.

 

(d)       To be in proper written form, a stockholder’s notice to the Secretary must set forth (i) as to each person whom the stockholder proposes to nominate for election as a director (A) the name, age, business address and residence address of the person, (B) the principal occupation or employment of the person, (C) the class or series and number of shares of capital stock of the Corporation that are owned beneficially or of record by the person and (D) any other information relating to the person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; and (ii) as to the stockholder giving the notice (A) the name and record address of such stockholder and the name and address of the beneficial owner, if any, on whose behalf the nomination is made, (B) the class or series and number of shares of capital stock of the Corporation that are owned beneficially and of record by such stockholder and the beneficial owner, if any, on whose behalf the nomination is made, (C) a description of all arrangements or understandings relating to the nomination to be made by such stockholder among such stockholder, the beneficial owner, if any, on whose behalf the nomination is made, each proposed nominee and any other person or persons (including their names), (D) a representation that such stockholder intends to appear in person or by proxy at the meeting to nominate the persons named in its notice and (E) any other information relating to such stockholder and the beneficial owner, if any, on whose behalf the nomination is made that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder. Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected.

 



 

(e)     If the Board or the chairman of the meeting of stockholders determines that any nomination was not made in accordance with the provisions of this Section 3.2 , then such nomination shall not be considered at the meeting in question. Notwithstanding the foregoing provisions of this Section 3.2 , if the stockholder (or a qualified representative of the stockholder) does not appear at the meeting of stockholders of the Corporation to present the nomination, such nomination shall be disregarded, notwithstanding that proxies in respect of such nomination may have been received by the Corporation.

 

(f)     In addition to the provisions of this Section 3.2 , a stockholder shall also comply with all of the applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing in this Section 3.2 shall be deemed to affect any rights of the holders of Preferred Stock to elect directors pursuant to the Certificate of Incorporation.

 

Section 3.3. Compensation . Unless otherwise restricted by the Certificate of Incorporation or these By Laws, the Board shall have the authority to fix the compensation of directors. The directors may be reimbursed their expenses, if any, of attendance at each meeting of the Board and may be paid either a fixed sum for attendance at each meeting of the Board or other compensation as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of committees of the Board may be allowed like compensation and reimbursement of expenses for service on the committee.

 

ARTICLE IV

BOARD MEETINGS

 

Section 4.1. Annual Meetings . The Board shall meet as soon as practicable after the adjournment of each annual stockholders meeting at the place of the annual stockholders meeting unless the Board shall fix another time and place and give notice thereof in the manner required herein for special meetings of the Board. No notice to the directors shall be necessary to legally convene this meeting, except as provided in this Section 4.1 .

 

Section 4.2. Regular Meetings . Regularly scheduled, periodic meetings of the Board may be held without notice at such times, dates and places as shall from time to time be determined by the Board.

 

Section 4.3. Special Meetings . Special meetings of the Board (a) may be called by the Chairman of the Board or President and (b) shall be called by the Chairman of the Board, President or Secretary on the written request of at least a majority of directors then in office, or the sole director, as the case may be, and shall be held at such time, date and place as may be determined by the person calling the meeting or, if called upon the request of directors or the sole director, as specified in such written request. Notice of each special meeting of the Board shall be given, as provided in Section 9.3 , to each director (i) at least 24 hours before the meeting if such notice is oral notice given personally or by telephone or written notice given by hand delivery or by means of a form of electronic transmission and delivery; (ii) at least two days before the meeting if such notice is sent by a nationally recognized overnight delivery service; and (iii) at least five days before the meeting if such notice is sent through the United States mail. If the Secretary shall fail or refuse to give such notice, then the notice may be given by the officer who called the meeting or the directors who requested the meeting. Any and all business that may be transacted at a regular meeting of the Board may be transacted at a special meeting. Except as may be otherwise expressly provided by applicable law, the Certificate of Incorporation, or these By Laws, neither the business to be transacted at, nor the purpose of, any special meeting need be specified in the notice or waiver of notice of such meeting. A special meeting may be held at any time without notice if all the directors are present or if those not present waive notice of the meeting in accordance with Section 9.4 .

 

Section 4.4. Quorum; Required Vote . A majority of the Board shall constitute a quorum for the transaction of business at any meeting of the Board, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board, except as may be otherwise specifically provided by applicable law, the Certificate of Incorporation or these By Laws. If a quorum shall not be present at any meeting, a majority of the directors present may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present.

 

Section 4.5. Consent In Lieu of Meeting . Unless otherwise restricted by the Certificate of Incorporation or these By Laws, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or

 



 

electronic transmission or transmissions (or paper reproductions thereof) are filed with the minutes of proceedings of the Board or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

 

Section 4.6. Organization . The chairman of each meeting of the Board shall be the Chairman of the Board or, in the absence (or inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) or, in the absence (or inability or refusal to act) of the Chief Executive Officer or if the Chief Executive Officer is not a director, the President (if he or she shall be a director) or in the absence (or inability or refusal to act) of the President or if the President is not a director, a chairman elected from the directors present. The Secretary shall act as secretary of all meetings of the Board. In the absence (or inability or refusal to act) of the Secretary, an Assistant Secretary shall perform the duties of the Secretary at such meeting. In the absence (or inability or refusal to act) of the Secretary and all Assistant Secretaries, the chairman of the meeting may appoint any person to act as secretary of the meeting.

 

ARTICLE V

COMMITTEES OF DIRECTORS

 

Section 5.1. Establishment . Subject to the procedures set forth in Section 5.3 of the Investor Rights Agreement relating to the establishment of committees, the Board may by resolution passed by a majority of the Board designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Each committee shall keep regular minutes of its meetings and report the same to the Board when required. Subject to the Investor Rights Agreement, the Board shall have the power at any time to fill vacancies in, to change the membership of, or to dissolve any such committee.

 

Section 5.2. Available Powers . Any committee established pursuant to Section 5.1 hereof, to the extent permitted by applicable law and by resolution of the Board, shall have and may exercise all of the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers that may require it.

 

Section 5.3. Alternate Members . The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee.

 

Section 5.4. Procedures . Unless the Board otherwise provides, the time, date, place, if any, and notice of meetings of a committee shall be determined by such committee. At meetings of a committee, a majority of the number of members of the committee (but not including any alternate member, unless such alternate member has replaced any absent or disqualified member at the time of, or in connection with, such meeting) shall constitute a quorum for the transaction of business. The act of a majority of the members present at any meeting at which a quorum is present shall be the act of the committee, except as otherwise specifically provided by applicable law, the Certificate of Incorporation, these By Laws or the Board. If a quorum is not present at a meeting of a committee, the members present may adjourn the meeting from time to time, without notice other than an announcement at the meeting, until a quorum is present. Unless the Board otherwise provides and except as provided in these By Laws, each committee designated by the Board may make, alter, amend and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board is authorized to conduct its business pursuant to Article III and Article IV of these By Laws.

 

ARTICLE VI

OFFICERS

 

Section 6.1. Officers . The officers of the Corporation elected by the Board shall be a Chairman of the Board, a Chief Executive Officer, a President, a Chief Financial Officer, a Secretary and such other officers (including without limitation, Vice Presidents, Assistant Secretaries and a Treasurer) as, subject to the Investor Rights Agreement, the Board from time to time may determine. Officers elected by the Board shall each have such powers and duties as generally pertain to their respective offices, subject to the specific provisions of this Article VI . Such officers shall also have such powers and duties as from time to time may be conferred by the Board. The Chief Executive Officer or President may also appoint such other officers (including without limitation one or more Vice Presidents and Controllers) as may be

 



 

necessary or desirable for the conduct of the business of the Corporation. Such other officers shall have such powers and duties and shall hold their offices for such terms as may be provided in these By Laws or as may be prescribed by the Board or, if such officer has been appointed by the Chief Executive Officer or President, as may be prescribed by the appointing officer.

 

(a)    Chairman of the Board . The Chairman of the Board shall preside when present at all meetings of the stockholders and the Board. The Chairman of the Board shall have general supervision and control of the acquisition activities of the Corporation subject to the ultimate authority of the Board, and shall be responsible for the execution of the policies of the Board with respect to such matters. In the absence (or inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) shall preside when present at all meetings of the stockholders and the Board. The powers and duties of the Chairman of the Board shall not include supervision or control of the preparation of the financial statements of the Corporation (other than through participation as a member of the Board). The position of Chairman of the Board and Chief Executive Officer may be held by the same person.

 

(b)     Chief Executive Officer . The Chief Executive Officer shall be the chief executive officer of the Corporation, shall have general supervision of the affairs of the Corporation and general control of all of its business subject to the ultimate authority of the Board, and shall be responsible for the execution of the policies of the Board with respect to such matters, except to the extent any such powers and duties have been prescribed to the Chairman of the Board pursuant to Section 6.1(a)  above. In the absence (or inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) shall preside when present at all meetings of the stockholders and the Board. The position of Chief Executive Officer and President may be held by the same person.

 

(c)     President . The President shall make recommendations to the Chief Executive Officer on all operational matters that would normally be reserved for the final executive responsibility of the Chief Executive Officer. In the absence (or inability or refusal to act) of the Chairman of the Board and Chief Executive Officer, the President (if he or she shall be a director) shall preside when present at all meetings of the stockholders and the Board. The President shall also perform such duties and have such powers as shall be designated by the Board. The position of President and Chief Executive Officer may be held by the same person.

 

(d)     Vice Presidents . In the absence (or inability or refusal to act) of the President, the Vice President (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Board) shall perform the duties and have the powers of the President. Any one or more of the Vice Presidents may be given an additional designation of rank or function.

 

(e)     Secretary .

 

(i)        The Secretary shall attend all meetings of the stockholders, the Board and (as required) committees of the Board and shall record the proceedings of such meetings in books to be kept for that purpose. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board and shall perform such other duties as may be prescribed by the Board, the Chairman of the Board, Chief Executive Officer or President. The Secretary shall have custody of the corporate seal of the Corporation and the Secretary, or any Assistant Secretary, shall have authority to affix the same to any instrument requiring it, and when so affixed, it may be attested by his or her signature or by the signature of such Assistant Secretary. The Board may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing thereof by his or her signature.

 

(ii)         The Secretary shall keep, or cause to be kept, at the principal executive office of the Corporation or at the office of the Corporation’s transfer agent or registrar, if one has been appointed, a stock ledger, or duplicate stock ledger, showing the names of the stockholders and their addresses, the number and classes of shares held by each and, with respect to certificated shares, the number and date of certificates issued for the same and the number and date of certificates cancelled.

 

(f)    Assistant Secretaries . The Assistant Secretary or, if there be more than one, the Assistant Secretaries in the order determined by the Board shall, in the absence (or inability or refusal to act) of the Secretary, perform the duties and have the powers of the Secretary.

 

(g)      Chief Financial Officer . The Chief Financial Officer shall perform all duties commonly incident to that office (including, without limitation, the care and custody of the funds and securities of the Corporation, which from time to time may come into the Chief Financial Officer’s hands and the deposit

 



 

of the funds of the Corporation in such banks or trust companies as the Board, the Chief Executive Officer or the President may authorize).

 

(h)     Treasurer . The Treasurer shall, in the absence (or inability or refusal to act) of the Chief Financial Officer, perform the duties and exercise the powers of the Chief Financial Officer.

 

Section 6.2. Term of Office; Removal; Vacancies . The elected officers of the Corporation shall be appointed by the Board and shall hold office until their successors are duly elected and qualified by the Board or until their earlier death, resignation, retirement, disqualification, or removal from office. Subject to the Investor Rights Agreement, any officer may be removed, with or without cause, at any time by the Board. Subject to the Investor Rights Agreement, any officer appointed by the Chief Executive Officer or President may also be removed, with or without cause, by the Chief Executive Officer or President, as the case may be, unless the Board otherwise provides. Subject to the Investor Rights Agreement, any vacancy occurring in any elected office of the Corporation may be filled by the Board. Subject to the Investor Rights Agreement, any vacancy occurring in any office appointed by the Chief Executive Officer or President may be filled by the Chief Executive Officer, or President, as the case may be, unless the Board then determines that such office shall thereupon be elected by the Board, in which case the Board shall elect such officer.

 

Section 6.3. Other Officers . Subject to the Investor Rights Agreement, the Board may delegate the power to appoint such other officers and agents, and may also remove such officers and agents or delegate the power to remove same, as it shall from time to time deem necessary or desirable.

 

Section 6.4. Multiple Officeholders; Stockholder and Director Officers . Any number of offices may be held by the same person unless the Certificate of Incorporation or these By Laws otherwise provide. Officers need not be stockholders or residents of the State of Delaware.

 

ARTICLE VII

SHARES

 

Section 7.1. Certificated and Uncertificated Shares . The shares of the Corporation may be certificated or uncertificated, subject to the sole discretion of the Board.

 

Section 7.2. Multiple Classes of Stock . If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class, the Corporation shall (a) cause the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences or rights to be set forth in full or summarized on the face or back of any certificate that the Corporation issues to represent shares of such class or series of stock or (b) in the case of uncertificated shares, within a reasonable time after the issuance or transfer of such shares, send to the registered owner thereof a written notice containing the information required to be set forth on certificates as specified in clause (a) above; provided, however, that, except as otherwise provided by applicable law, in lieu of the foregoing requirements, there may be set forth on the face or back of such certificate or, in the case of uncertificated shares, on such written notice a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences or rights.

 

Section 7.3. Signatures . Each certificate representing capital stock of the Corporation shall be signed by or in the name of the Corporation by (a) the Chairman of the Board, Chief Executive Officer, the President or a Vice President and (b) the Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, such certificate may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar on the date of issue.

 

Section 7.4. Consideration and Payment for Shares .

 

(a)    Subject to applicable law and the Certificate of Incorporation, shares of stock may be issued for such consideration, having in the case of shares with par value a value not less than the par value thereof,

 



 

and to such persons, as determined from time to time by the Board. The consideration may consist of any tangible or intangible property or benefit to the Corporation including cash, promissory notes, services performed, contracts for services to be performed or other securities.

 

(b)     Subject to applicable law and the Certificate of Incorporation, shares may not be issued until the full amount of the consideration has been paid, unless upon the face or back of each certificate issued to represent any partly paid shares of capital stock or upon the books and records of the Corporation in the case of partly paid uncertificated shares, there shall have been set forth the total amount of the consideration to be paid therefor and the amount paid thereon up to and including the time said certificate representing certificated shares or said uncertificated shares are issued.

 

Section 7.5. Lost, Destroyed or Wrongfully Taken Certificates .

 

(a)       If an owner of a certificate representing shares claims that such certificate has been lost, destroyed or wrongfully taken, the Corporation shall issue a new certificate representing such shares or such shares in uncertificated form if the owner: (i) requests such a new certificate before the Corporation has notice that the certificate representing such shares has been acquired by a protected purchaser; (ii) if requested by the Corporation, delivers to the Corporation a bond sufficient to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, wrongful taking or destruction of such certificate or the issuance of such new certificate or uncertificated shares; and (iii) satisfies other reasonable requirements imposed by the Corporation.

 

(b)     If a certificate representing shares has been lost, apparently destroyed or wrongfully taken, and the owner fails to notify the Corporation of that fact within a reasonable time after the owner has notice of such loss, apparent destruction or wrongful taking and the Corporation registers a transfer of such shares before receiving notification, the owner shall be precluded from asserting against the Corporation any claim for registering such transfer or a claim to a new certificate representing such shares or such shares in uncertificated form.

 

Section 7.6. Transfer of Stock .

 

(a)     If a certificate representing shares of the Corporation is presented to the Corporation with an endorsement requesting the registration of transfer of such shares or an instruction is presented to the Corporation requesting the registration of transfer of uncertificated shares, the Corporation shall register the transfer as requested if:

 

(i)          in the case of certificated shares, the certificate representing such shares has been surrendered;

 

(ii)(A) with respect to certificated shares, the endorsement is made by the person specified by the certificate as entitled to such shares; (B) with respect to uncertificated shares, an instruction is made by the registered owner of such uncertificated shares; or (C) with respect to certificated shares or uncertificated shares, the endorsement or instruction is made by any other appropriate person or by an agent who has actual authority to act on behalf of the appropriate person;

 

(iii)            the Corporation has received a guarantee of signature of the person signing such endorsement or instruction or such other reasonable assurance that the endorsement or instruction is genuine and authorized as the Corporation may request;

 

(iv)      the transfer does not violate any restriction on transfer imposed by the Corporation that is enforceable in accordance with Section 7.8(a) ; and

 

(v)      such other conditions for such transfer as shall be provided for under applicable law have been satisfied.

 

(b)      Whenever any transfer of shares shall be made for collateral security and not absolutely, the Corporation shall so record such fact in the entry of transfer if, when the certificate for such shares is presented to the Corporation for transfer or, if such shares are uncertificated, when the instruction for registration of transfer thereof is presented to the Corporation, both the transferor and transferee request the Corporation to do so.

 

Section 7.7. Registered Stockholders . Before due presentment for registration of transfer of a certificate representing shares of the Corporation or of an instruction requesting registration of transfer of

 



 

uncertificated shares, the Corporation may treat the registered owner as the person exclusively entitled to inspect for any proper purpose the stock ledger and the other books and records of the Corporation, vote such shares, receive dividends or notifications with respect to such shares and otherwise exercise all the rights and powers of the owner of such shares, except that a person who is the beneficial owner of such shares (if held in a voting trust or by a nominee on behalf of such person) may, upon providing documentary evidence of beneficial ownership of such shares and satisfying such other conditions as are provided under applicable law, may also so inspect the books and records of the Corporation.

 

Section 7.8. Effect of the Corporation’s Restriction on Transfer .

 

(a)    A written restriction on the transfer or registration of transfer of shares of the Corporation or on the amount of shares of the Corporation that may be owned by any person or group of persons, if permitted by the DGCL and noted conspicuously on the certificate representing such shares or, in the case of uncertificated shares, contained in a notice, offering circular or prospectus sent by the Corporation to the registered owner of such shares within a reasonable time prior to or after the issuance or transfer of such shares, may be enforced against the holder of such shares or any successor or transferee of the holder including an executor, administrator, trustee, guardian or other fiduciary entrusted with like responsibility for the person or estate of the holder.

 

(b)       A restriction imposed by the Corporation on the transfer or the registration of shares of the Corporation or on the amount of shares of the Corporation that may be owned by any person or group of persons, even if otherwise lawful, is ineffective against a person without actual knowledge of such restriction unless: (i) the shares are certificated and such restriction is noted conspicuously on the certificate; or (ii) the shares are uncertificated and such restriction was contained in a notice, offering circular or prospectus sent by the Corporation to the registered owner of such shares prior to or within a reasonable time after the issuance or transfer of such shares.

 

Section 7.9. Regulations . The Board shall have power and authority to make such additional rules and regulations, subject to any applicable requirement of law, as the Board may deem necessary and appropriate with respect to the issue, transfer or registration of transfer of shares of stock or certificates representing shares. The Board may appoint one or more transfer agents or registrars and may require for the validity thereof that certificates representing shares bear the signature of any transfer agent or registrar so appointed.

 

ARTICLE VIII

INDEMNIFICATION

 

Section 8.1. Right to Indemnification . To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the Corporation shall indemnify and hold harmless each person (hereinafter an “ Indemnitee ”)who was or is made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “ proceeding ”), by reason of the fact that he or she is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee or agent, against all liability and loss suffered and expenses (including, without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred by such Indemnitee in connection with such proceeding; provided, however, that, except as provided in Section 8.3 with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify an Indemnitee in connection with a proceeding (or part thereof) initiated by such Indemnitee only if such proceeding (or part thereof) was authorized by the Board.

 

Section 8.2. Right to Advancement of Expenses . In addition to the right to indemnification conferred in Section 8.1 , an Indemnitee shall also have the right to be paid by the Corporation to the fullest extent not prohibited by applicable law the expenses (including, without limitation, attorneys’ fees) incurred in defending or otherwise participating in any such proceeding in advance of its final disposition (hereinafter an “ advancement of expenses ”); provided, however, that, if the Delaware General Corporation Law (“ DGCL ”) requires, an advancement of expenses incurred by an Indemnitee in his or

 



 

her capacity as a director or officer of the Corporation (and not in any other capacity in which service was or is rendered by such Indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon the Corporation’s receipt of an undertaking (hereinafter an “ undertaking ”), by or on behalf of such Indemnitee, to repay all amounts so advanced if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified under this Article VIII or otherwise.

 

Section 8.3. Right of Indemnitee to Bring Suit . If a claim under Section 8.1 or Section 8.2 is not paid in full by the Corporation within 60 days after a written claim therefor has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be 20 days, the Indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Indemnitee shall also be entitled to be paid the expense of prosecuting or defending such suit. In (a) any suit brought by the Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by an Indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (b) in any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final judicial decision from which there is no further right to appeal (hereinafter a “ final adjudication ”) that, the Indemnitee has not met any applicable standard for indemnification set forth in the DGCL. Neither the failure of the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including a determination by its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) that the Indemnitee has not met such applicable standard of conduct, shall create a presumption that the Indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the Indemnitee, shall be a defense to such suit. In any suit brought by the Indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article VIII or otherwise shall be on the Corporation.

 

Section 8.4. Non-Exclusivity of Rights . The rights provided to any Indemnitee pursuant to this Article VIII shall not be exclusive of any other right, which such Indemnitee may have or hereafter acquire under applicable law, the Certificate of Incorporation, these By Laws, an agreement, a vote of stockholders or disinterested directors, or otherwise.

 

Section 8.5. Insurance . The Corporation may maintain insurance, at its expense, to protect itself and/or any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL.

 

Section 8.6. Indemnitor of First Resort. In all events, the Corporation hereby agrees that (i) its obligation to an Indemnitee to provide advancement and/or indemnification to such Indemnitee is primary, (ii) any obligation of the Investor Holder (as defined in the Certificate of Incorporation) or Sponsor Holder (as defined in the Certificate of Corporation) to provide advancement or indemnification hereunder or under any other indemnification agreement (whether pursuant to contract, by-laws or charter), or any obligation of an insurer of the Investor Holder (as defined in the Certificate of Corporation) or Sponsor Holder (as defined in the Certificate of Corporation) to provide insurance coverage, for the same expenses, liabilities, judgements, penalties, fines and amount paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such expenses, liabilities, judgements, penalties, fines and amounts paid in settlement) incurred by such Indemnitee are secondary and subsequent to the foregoing obligations of the Corporation and (iii) if the Investor Holder (as defined in the Certificate of Corporation) or Sponsor Holder (as defined in the Certificate of Corporation) pays or causes to be paid, for any reason, any amounts otherwise indemnifiable, hereunder or under any other indemnification agreement (whether pursuant to contract, by-laws or charter) with such Indemnitee, then (x) the Investor Holder (as defined in the Certificate of Corporation) or Sponsor Holder (as defined in the Certificate of Corporation) (as the case may be), shall be fully subrogated to all rights of such Indemnitee with respect to such payment and (y) the Corporation

 



 

shall fully indemnify, reimburse and hold harmless the Investor Holder (as defined in the Certificate of Corporation) or Sponsor Holder (as defined in the Certificate of Corporation) (as the case may be), for all such payments actually made by the Investor Holder (as defined in the Certificate of Corporation) or Sponsor Holder (as defined in the Certificate of Corporation) (as the case may be).

 

Section 8.7. Indemnification of Other Persons . This Article VIII shall not limit the right of the Corporation to the extent and in the manner authorized or permitted by law to indemnify and to advance expenses to persons other than Indemnitees. Without limiting the foregoing, the Corporation may, to the extent authorized from time to time by the Board, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Corporation and to any other person who is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, to the fullest extent of the provisions of this Article VIII with respect to the indemnification and advancement of expenses of Indemnitees under this Article VIII .

 

Section 8.8. Amendments . Any repeal or amendment of this Article VIII by the Board or the stockholders of the Corporation or by changes in applicable law, or the adoption of any other provision of these By Laws inconsistent with this Article VIII , will, to the extent permitted by applicable law, be prospective only (except to the extent such amendment or change in applicable law permits the Corporation to provide broader indemnification rights to Indemnitees on a retroactive basis than permitted prior thereto), and will not in any way diminish or adversely affect any right or protection existing hereunder in respect of any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision; provided however, that amendments or repeals of this Article VIII shall require the affirmative vote of the stockholders holding at least 66.7% of the voting power of all outstanding shares of capital stock of the Corporation.

 

Section 8.9. Certain Definitions . For purposes of this Article VIII , (a) references to “other enterprise” shall include any employee benefit plan; (b) references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; (c) references to “serving at the request of the Corporation” shall include any service that imposes duties on, or involves services by, a person with respect to any employee benefit plan, its participants, or beneficiaries; and (d) a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interest of the Corporation” for purposes of Section 145 of the DGCL.

 

Section 8.10. Contract Rights . The rights provided to Indemnitees pursuant to this Article VIII shall be contract rights and such rights shall continue as to an Indemnitee who has ceased to be a director, officer, agent or employee and shall inure to the benefit of the Indemnitee’s heirs, executors and administrators.

 

Section 8.11. Severability . If any provision or provisions of this Article VIII shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Article VIII shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Article VIII (including, without limitation, each such portion of this Article VIII containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.

 

ARTICLE IX

MISCELLANEOUS

 

Section 9.1. Place of Meetings . If the place of any meeting of stockholders, the Board or committee of the Board for which notice is required under these By Laws is not designated in the notice of such meeting, such meeting shall be held at the principal business office of the Corporation; provided, however, if the Board has, in its sole discretion, determined that a meeting shall not be held at any place, but instead shall be held by means of remote communication pursuant to Section 9.5 hereof, then such meeting shall not be held at any place.

 



 

Section 9.2. Fixing Record Dates .

 

(a)     In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board may fix a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the business day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.

 

(b)     In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.

 

Section 9.3. Means of Giving Notice .

 

(a)    Notice to Directors . Whenever under applicable law, the Certificate of Incorporation or these By Laws notice is required to be given to any director, such notice shall be given either (i) in writing and sent by mail, or by a nationally recognized delivery service, (ii) by means of facsimile telecommunication or other form of electronic transmission, or (iii) by oral notice given personally or by telephone. A notice to a director will be deemed given as follows: (i) if given by hand delivery, orally, or by telephone, when actually received by the director, (ii) if sent through the United States mail, when deposited in the United States mail, with postage and fees thereon prepaid, addressed to the director at the director’s address appearing on the records of the Corporation, (iii) if sent for next day delivery by a nationally recognized overnight delivery service, when deposited with such service, with fees thereon prepaid, addressed to the director at the director’s address appearing on the records of the Corporation, (iv) if sent by facsimile telecommunication, when sent to the facsimile transmission number for such director appearing on the records of the Corporation, (v) if sent by electronic mail, when sent to the electronic mail address for such director appearing on the records of the Corporation, or (vi) if sent by any other form of electronic transmission, when sent to the address, location or number (as applicable) for such director appearing on the records of the Corporation.

 

(b)     Notice to Stockholders . Whenever under applicable law, the Certificate of Incorporation or these By Laws notice is required to be given to any stockholder, such notice may be given (i) in writing and sent either by hand delivery, through the United States mail, or by a nationally recognized overnight delivery service for next day delivery, or (ii) by means of a form of electronic transmission consented to by the stockholder, to the extent permitted by, and subject to the conditions set forth in Section 232 of the DGCL. A notice to a stockholder shall be deemed given as follows: (i) if given by hand delivery, when actually received by the stockholder, (ii) if sent through the United States mail, when deposited in the United States mail, with postage and fees thereon prepaid, addressed to the stockholder at the stockholder’s address appearing on the stock ledger of the Corporation, (iii) if sent for next day delivery by a nationally recognized overnight delivery service, when deposited with such service, with fees thereon prepaid, addressed to the stockholder at the stockholder’s address appearing on the stock ledger of the Corporation, and (iv) if given by a form of electronic transmission consented to by the stockholder to whom the notice is given and otherwise meeting the requirements set forth above, (A) if by facsimile transmission, when directed to a number at which the stockholder has consented to receive notice, (B) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice, (C) if by a posting on an electronic network together with separate notice to the stockholder of such specified posting, upon the later of (1) such posting and (2) the giving of such separate notice, and (D) if by any other form of electronic transmission, when directed to the stockholder. A stockholder may revoke such stockholder’s consent to receiving notice by means of electronic communication by giving written notice of such revocation to the Corporation. Any such consent shall be

 



 

deemed revoked if (1) the Corporation is unable to deliver by electronic transmission two consecutive notices given by the Corporation in accordance with such consent and (2) such inability becomes known to the Secretary or an Assistant Secretary or to the Corporation’s transfer agent, or other person responsible for the giving of notice; provided, however, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action.

 

(c)     Electronic Transmission . “ Electronic transmission ” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process, including but not limited to transmission by telex, facsimile telecommunication, electronic mail, telegram and cablegram.

 

(d)     Notice to Stockholders Sharing Same Address . Without limiting the manner by which notice otherwise may be given effectively by the Corporation to stockholders, any notice to stockholders given by the Corporation under any provision of the DGCL, the Certificate of Incorporation or these By Laws shall be effective if given by a single written notice to stockholders who share an address if consented to by the stockholders at that address to whom such notice is given. A stockholder may revoke such stockholder’s consent by delivering written notice of such revocation to the Corporation. Any stockholder who fails to object in writing to the Corporation within 60 days of having been given written notice by the Corporation of its intention to send such a single written notice shall be deemed to have consented to receiving such single written notice.

 

(e)     Exceptions to Notice Requirements . Whenever notice is required to be given, under the DGCL, the Certificate of Incorporation or these By Laws, to any person with whom communication is unlawful, the giving of such notice to such person shall not be required and there shall be no duty to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any action or meeting that shall be taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect as if such notice had been duly given. In the event that the action taken by the Corporation is such as to require the filing of a certificate with the Secretary of State of Delaware, the certificate shall state, if such is the fact and if notice is required, that notice was given to all persons entitled to receive notice except such persons with whom communication is unlawful.

 

Whenever notice is required to be given by the Corporation, under any provision of the DGCL, the Certificate of Incorporation or these By Laws, to any stockholder to whom (1) notice of two consecutive annual meetings of stockholders and all notices of stockholder meetings or of the taking of action by written consent of stockholders without a meeting to such stockholder during the period between such two consecutive annual meetings, or (2) all, and at least two payments (if sent by first-class mail) of dividends or interest on securities during a 12-month period, have been mailed addressed to such stockholder at such stockholder’s address as shown on the records of the Corporation and have been returned undeliverable, the giving of such notice to such stockholder shall not be required. Any action or meeting that shall be taken or held without notice to such stockholder shall have the same force and effect as if such notice had been duly given. If any such stockholder shall deliver to the Corporation a written notice setting forth such stockholder’s then current address, the requirement that notice be given to such stockholder shall be reinstated. In the event that the action taken by the Corporation is such as to require the filing of a certificate with the Secretary of State of Delaware, the certificate need not state that notice was not given to persons to whom notice was not required to be given pursuant to Section 230(b) of the DGCL. The exception in subsection (1) of the first sentence of this paragraph to the requirement that notice be given shall not be applicable to any notice returned as undeliverable if the notice was given by electronic transmission.

 

Section 9.4. Waiver of Notice . Whenever any notice is required to be given under applicable law, the Certificate of Incorporation, or these By Laws, a written waiver of such notice, signed before or after the date of such meeting by the person or persons entitled to said notice, or a waiver by electronic transmission by the person entitled to said notice, shall be deemed equivalent to such required notice. All such waivers shall be kept with the books of the Corporation. Attendance at a meeting shall constitute a waiver of notice of such meeting, except where a person attends for the express purpose of objecting to the transaction of any business on the ground that the meeting was not lawfully called or convened.

 



 

Section 9.5. Meeting Attendance via Remote Communication Equipment.

 

(a)    Stockholder Meetings . If authorized by the Board in its sole discretion, and subject to such guidelines and procedures as the Board may adopt, stockholders and proxy holders not physically present at a meeting of stockholders may, by means of remote communication:

 

(i)      participate in a meeting of stockholders; and

 

(ii)       be deemed present in person and vote at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by means of remote communication, provided that (A) the Corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxy holder, (B) the Corporation shall implement reasonable measures to provide such stockholders and proxy holders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (C) if any stockholder or proxy holder votes or takes other action at the meeting by means of remote communication, a record of such votes or other action shall be maintained by the Corporation.

 

(b)     Board Meetings . Unless otherwise restricted by applicable law, the Certificate of Incorporation or these By Laws, members of the Board or any committee thereof may participate in a meeting of the Board or any committee thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other. Such participation in a meeting shall constitute presence in person at the meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting was not lawfully called or convened.

 

Section 9.6. Dividends . The Board may from time to time declare, and the Corporation may pay, dividends (payable in cash, property or shares of the Corporation’s capital stock) on the Corporation’s outstanding shares of capital stock, subject to applicable law and the Certificate of Incorporation.

 

Section 9.7. Reserves . The Board may set apart out of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may abolish any such reserve.

 

Section 9.8. Contracts and Negotiable Instruments . Except as otherwise provided by applicable law, the Certificate of Incorporation or these By Laws, any contract, bond, deed, lease, mortgage or other instrument may be executed and delivered in the name and on behalf of the Corporation by such officer or officers or other employee or employees of the Corporation as the Board may from time to time authorize. Such authority may be general or confined to specific instances as the Board may determine. The Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, the Treasurer or any Vice President may execute and deliver any contract, bond, deed, lease, mortgage or other instrument in the name and on behalf of the Corporation. Subject to any restrictions imposed by the Board, the Chairman of the Board Chief Executive Officer, President, the Chief Financial Officer, the Treasurer or any Vice President may delegate powers to execute and deliver any contract, bond, deed, lease, mortgage or other instrument in the name and on behalf of the Corporation to other officers or employees of the Corporation under such person’s supervision and authority, it being understood, however, that any such delegation of power shall not relieve such officer of responsibility with respect to the exercise of such delegated power.

 

Section 9.9. Fiscal Year . The fiscal year of the Corporation shall be fixed by the Board.

 

Section 9.10. Seal . The Board may adopt a corporate seal, which shall be in such form as the Board determines. The seal may be used by causing it or a facsimile thereof to be impressed, affixed or otherwise reproduced.

 

Section 9.11. Books and Records . The books and records of the Corporation may be kept within or outside the State of Delaware at such place or places as may from time to time be designated by the Board.

 

Section 9.12. Resignation . Any director, committee member or officer may resign by giving notice thereof in writing or by electronic transmission to the Chairman of the Board, the Chief Executive Officer, the President or the Secretary. The resignation shall take effect at the time specified therein, or at the time of receipt of such notice if no time is specified or the specified time is earlier than the time of such receipt. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

 



 

Section 9.13. Surety Bonds . Such officers, employees and agents of the Corporation (if any) as the Chairman of the Board, Chief Executive Officer, President or the Board may direct, from time to time, shall be bonded for the faithful performance of their duties and for the restoration to the Corporation, in case of their death, resignation, retirement, disqualification or removal from office, of all books, papers, vouchers, money and other property of whatever kind in their possession or under their control belonging to the Corporation, in such amounts and by such surety companies as the Chairman of the Board, Chief Executive Officer, President or the Board may determine. The premiums on such bonds shall be paid by the Corporation and the bonds so furnished shall be in the custody of the Secretary.

 

Section 9.14. Securities of Other Corporations . Powers of attorney, proxies, waivers of notice of meeting, consents in writing and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chairman of the Board, Chief Executive Officer, President or any Vice President. Any such officer, may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities, or to consent in writing, in the name of the Corporation as such holder, to any action by such corporation, and at any such meeting or with respect to any such consent shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed. The Board may from time to time confer like powers upon any other person or persons.

 

Section 9.15. Amendments . The Board shall have the power to adopt, amend, alter or repeal the By Laws. the affirmative vote of a majority of the Board shall be required to adopt, amend, alter or repeal the By Laws. Subject to the Investor Rights Agreement, the By Laws also may be adopted, amended, altered or repealed by the stockholders; provided, however, that in addition to any vote of the holders of any class or series of capital stock of the Corporation required by applicable law or the Certificate of Incorporation, the affirmative vote of the holders of at least a majority of the voting power of all outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required for the stockholders to adopt, amend, alter or repeal the By Laws. Notwithstanding the foregoing, the affirmative vote of the holders of at least two-thirds of the voting power of all outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required for the stockholders to adopt, amend, alter or repeal Section 2.5(d)  and this Section 9.15 of the By Laws, provided, however, that so long as the Investor Rights Agreement, is in effect with respect to M III Sponsor I LLC and M III I LP, any adoption, amendment, alteration or repeal of Section 2.5(d)  or this Section 9.15 of the By Laws shall require the affirmative vote of the holders of 80% of the voting power of all outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.

 


Exhibit 3.3

 

CERTIFICATE OF DESIGNATIONS

 

OF

 

SERIES A PREFERRED STOCK

 

OF

 

INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC.

 


 

pursuant to Section 151 of the

 

General Corporation Law of the State of Delaware

 


 

INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC., a Delaware corporation (the “ Corporation ”), hereby certifies that:

 

1.     The Second Amended and Restated Certificate of Incorporation of the Corporation (the “ Certificate of Incorporation ”) fixes the total number of shares of all classes of capital stock that the Corporation shall have the authority to issue at 100,000,000 shares of common stock, par value $0.0001 per share, and 1,000,000 shares of preferred stock, par value $0.0001 per share.

 

2.     The Certificate of Incorporation expressly grants to the Board authority to provide for the issuance of the shares of preferred stock in series, and to establish from time to time the number of shares to be included in each such series and to fix the designations, powers, preferences and rights of the shares of each such series and the qualifications, limitations or restrictions thereof.

 

3.     Pursuant to the authority conferred upon the Board by the Certificate of Incorporation, the Board, by action duly taken on March 23, 2018, adopted resolutions (which resolutions have not been modified and are in full force and effect on the date hereof) (i) authorizing the issuance of 34,965 shares of the Corporation’s preferred stock, (ii) approving the final form of the Certificate of Designations of Series A Preferred Stock, and (iii) fixing the designations, powers, preferences and rights of the shares of this Series A Preferred Stock and the qualifications, limitations or restrictions thereof as follows:

 

Section 1.     Designation.     The designation of this series of preferred stock shall be “Series A Preferred Stock” (the “ Series A Preferred Stock ”). Series A Preferred Stock will rank (a) equally in right of payment with Parity Stock, if any, with respect to the payment of dividends and the distribution of assets in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, (b) senior in right of payment to Junior Stock, with respect to the payment of dividends and the distribution of assets in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, and (c) junior in right of payment to Senior Stock, if any, with respect to the payment of dividends or the distribution of assets in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation.

 

Section 2.     Number of Shares.     The number of authorized shares of Series A Preferred Stock shall be 34,965. Such number of authorized shares may, from time to time, be increased (subject to  Section 6 ) or decreased (but not below the number of shares of Series A Preferred Stock then outstanding) by further resolution duly adopted by the Board and by the filing of a certificate pursuant to the provisions of the General Corporation Law of the State of Delaware (the “ DGCL ”) stating that such increase or reduction has been so authorized. The Corporation shall have the authority to issue fractional shares of Series A Preferred Stock. The date on which the Corporation initially issues any share of Series A Preferred Stock shall be deemed to be the “date of issuance” for such share of Series A Preferred Stock, in each case regardless of the number of times transfer of such share is made on the stock records

 



 

maintained by or for the Corporation and regardless of the number of certificates which may be issued to evidence such share of Series A Preferred Stock.

 

Section 3.     Definitions .

 

Affiliate ” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the Person in question.

 

Board ” means the Corporation’s Board of Directors.

 

Business Day ” means any day except a Saturday, a Sunday or other day on which the U.S. Securities and Exchange Commission or banking institutions in New York, New York are authorized or required by law, regulation or executive order to be closed.

 

Bylaws ” means the bylaws of the Corporation.

 

Capital Stock ” means, without duplication, (i) the Common Stock, (ii) the Series A Preferred Stock, (iii) any other equity or equity-linked securities issued by the Corporation or its Subsidiaries, and (iv) any other shares of securities convertible into, or exchangeable or exercisable for, or options, warrants or other rights to acquire, directly or indirectly, any equity or equity-linked security issued by the Corporation or its Subsidiaries, whether at the time of issuance, upon the passage of time, or the occurrence of some future event.

 

Change of Control ” has the meaning given to such term in the Merger Agreement (as defined below).

 

Closing Date ” means the date of the closing of the issuance of Series A Preferred Stock pursuant to Section 2.2 of the Merger Agreement.

 

Common Stock ” means the common stock of the Corporation, par value $0.0001 per share, or any other shares of the Capital Stock of the Corporation into which such shares of common stock shall be reclassified or changed.

 

Competitor ” means (i) any Person that is an operating company that primarily engages in the engineering, procurement and construction sector for renewable energy generation or (ii) any controlled Affiliate of the foregoing.

 

control ” means, with respect to any Person, the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise.

 

Conversion Agent ” means, prior to the conversion date, such Person as the Company will appoint or such other person as determined by the Board, acting in its capacity as conversion agent for the Series A Preferred Stock, and its successors and assigns.

 

Default Event ” means any material breach by the Corporation of its obligations under this Certificate of Designations, other than a Non-Payment Event, which, if curable, is not cured on or prior to the 30th day after receipt of written notice from the Stockholders’ Representative after such default.

 

Dividend Payment Date ” means, to the extent that any shares of Series A Preferred Stock are then outstanding, each of March 31, June 30, September 30 and December 31 or, to the extent any of the foregoing is not a Business Day, the first Business Day following such date.

 

Dividend Rate ” means (i) six percent (6%) per annum during the period from the Closing Date until the date (the “ 18 Month Anniversary Date ”) that is 18 months from the Closing Date and (ii) ten percent (10%) per annum during the period from and after the 18 Month Anniversary Date;  provided  that, from and after the occurrence of any Non-Payment Event or Default Event and until the cure, resolution or waiver of such Non-Payment Event or Default Event, as the case may be, the Dividend Rate shall be the Dividend Rate as otherwise determined pursuant to the foregoing clause (i) or (ii) plus 2% per annum.

 

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GFI ” means Oaktree Power Opportunities Fund III Delaware, L.P., a Delaware limited partnership.

 

Investor Rights Agreement ” means that certain Investor Rights Agreement, dated as of March 26, 2018, by and among, Infrastructure and Energy Alternatives, Inc., M III Sponsor I LLC, M III Sponsor I LP, Infrastructure and Energy Alternatives, LLC and GFI.

 

Junior Stock ” means the Common Stock and any other class or series of Capital Stock of the Corporation, other than Parity Stock, now existing or hereafter authorized not expressly ranking senior to the Series A Preferred Stock with respect to the payment of dividends or the distribution of assets in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation.

 

Liquidation Event ” means (i) effecting any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, (ii) any voluntary or involuntary filing for bankruptcy, insolvency, receivership or any similar proceedings by or against the Corporation or any of its Subsidiaries that holds, directly or indirectly, all or substantially all of the assets of the Corporation and its Subsidiaries on a consolidated basis, (iii) a receiver or trustee is appointed for all or substantially all of the assets of the Corporation and its Subsidiaries on a consolidated basis, or (iv) the Corporation or any Subsidiary of the Corporation that owns all or substantially all of the assets of the Corporation and its Subsidiaries on a consolidated basis makes an assignment for the benefit of its creditors.

 

Merger Agreement ” means that Agreement and Plan of Merger, dated as of November 3, 2017, by and among IEA Energy Services LLC, the Corporation, Wind Merger Sub I, Inc., Wind Merger Sub II, LLC, Infrastructure and Energy Alternatives, LLC, Oaktree Power Opportunities Fund III Delaware, L.P., solely in its capacity as the representative of the seller, and M III Sponsor I LLC and M III Sponsor I LP, solely for the limited purposes set forth therein.

 

Net Cash Proceeds ” means the excess of (a) the aggregate cash proceeds received by the Corporation and/or its Subsidiaries in connection with a Qualifying Equity Sale or Significant Disposition, as applicable,  minus  (b) the sum of (i) any out-of-pocket fees, commissions and expenses paid or payable by the Corporation and/or its Subsidiaries, (ii) any federal, state, local or other taxes paid or reasonably estimated to be payable by the Corporation, and (iii) any indebtedness which, by its terms, is required to be paid or prepaid by the Corporation or the applicable Subsidiary, and is paid or prepaid, in each case of the foregoing clauses (i) - (iii), in connection with such Qualifying Equity Sale or Significant Disposition (to the extent such amounts have not been deducted in calculating the cash proceeds received by the Corporation and/or its Subsidiaries in connection with such Significant Disposition), as applicable;  provided  that proceeds received by a non-wholly owned Subsidiary in connection with a Qualifying Equity Sale or Significant Disposition shall constitute “Net Cash Proceeds” only to the extent that such proceeds may be distributed up to the Corporation without breaching any agreements with, or fiduciary duties owing to (upon advice of independent counsel), such Subsidiary’s minority shareholder(s) by which such Subsidiary is bound or any law to which such Subsidiary is subject.

 

Non-Payment Event ” means failure of the Corporation to (i) make, on any Dividend Payment Date, any dividend payments the Corporation is obligated to make on such Dividend Payment Date pursuant to  Section 4(a)  of this Certificate of Designations, or (ii) redeem any shares of Series A Preferred Stock as and when required in accordance with  Section 7  of this Certificate of Designations, in either case which is not cured within five (5) days after written notice from the Stockholders’ Representative after such default.

 

Parity Stock ” means any class or series of Capital Stock of the Corporation hereafter authorized that expressly ranks equally with the Series A Preferred Stock with respect to the payment of dividends and in the distribution of assets in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation.

 

Person ” means any individual, corporation, estate, partnership, joint venture, association, joint-stock company, limited liability company, governmental authority, trust, or other entity.

 

Qualifying Equity Sale ” means the sale by the Corporation or any of its Subsidiaries of any Capital Stock of the Corporation or such Subsidiary, including the sale of such Capital Stock upon the cash exercise of any warrants

 

3



 

issued by the Corporation;  provided  that “Qualifying Equity Sale” shall not include (i) sales of any Common Stock of the Corporation or derivatives thereof (such as options) to management, consultants or directors of the Corporation or any of its Subsidiaries pursuant to a stock incentive plan approved by the Board, (ii) sales of Capital Stock to the extent the proceeds thereof are used to maintain the Corporation’s solvency (as reasonably determined by the Board as of the date of issuance) or to avoid a default under any bona-fide credit agreement to which the Corporation or any of its Subsidiaries are subject (e.g., an equity cure) with any lender or (iii) issuances of Capital Stock of the Corporation to any Person as consideration for any bona-fide acquisition by the Corporation or any of its Subsidiaries approved by the Board (including any Board member nominated by GFI) and the primary purpose of which is not to obtain financing.

 

Senior Stock ” means any class or series of Capital Stock of the Corporation hereafter authorized which expressly ranks senior to the Series A Preferred Stock and has preference or priority over the Series A Preferred Stock as to the payment of dividends or in the distribution of assets in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation.

 

Significant Disposition ” means any direct or indirect sale, lease, license, exchange, mortgage, transfer or other disposition, in a single transaction or series of related transactions, of any assets or businesses of the Corporation and/or its Subsidiaries outside the ordinary course of business for which the Company and/or its Subsidiaries receives consideration having a value in excess of $5,000,000.

 

Sponsors ” means M III Sponsor I LLC, a Delaware limited liability company, and M III Sponsor I LP, a Delaware limited partnership.

 

Stated Value ” means, in respect of each share of Series A Preferred Stock, an amount equal to $1,000 per share, as equitably adjusted for any stock dividend (including any dividend of securities convertible into or exchangeable for Series A Preferred Stock), stock split (including a reverse stock split), stock combination, reclassification or similar transaction with respect to the Series A Preferred Stock after the date of issuance of such share of Series A Preferred Stock.

 

Subsidiary ” means, with respect to any Person, any corporation or other entity of which a majority of (i) the voting power of the voting equity securities or (ii) the outstanding equity interests is owned, directly or indirectly, by such Person.

 

Trading Day ” shall mean a day during which trading in the Common Stock generally occurs on The Nasdaq Stock Market or, if the Common Stock is not listed on The Nasdaq Stock Market, on the principal other national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not listed on a national or regional securities exchange, on the principal other market on which the Common Stock is then listed or admitted for trading. If the Common Stock is not so listed or traded, Trading Day means a Business Day.

 

VWAP ” shall mean for any security as of any Trading Day, the per share volume-weighted average price for such security as displayed under the heading “Bloomberg VWAP” on Bloomberg page Ticker <IEA> VWAP (or its equivalent successor if such page is not available) in respect of the period from 9:30:01 a.m. to 4:00:00 p.m., New York City time, on such Trading Day or, if no weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported in the OTC Link or “pink sheets” by OTC Markets Group Inc. (formerly Pink OTC Markets Inc.). If the VWAP cannot be calculated for a security on a particular date on any of the foregoing bases, the “VWAP” of such security on such date shall be the fair market value as mutually determined by the Company and holders of a majority of the issued and outstanding shares of Series A Preferred Stock. All such determinations are to be equitably adjusted for any stock dividend (including any dividend of securities convertible into or exchangeable for Series A Preferred Stock or Common Stock), stock split (including a reverse stock split), stock combination, reclassification or similar transaction during the applicable calculation period.

 

Section 4.     Dividends .

 

(a)     Payment.     Until the Dividend Cessation Date (as defined in  Section 4(c)  below), dividends on each share of Series A Preferred Stock shall accrue on a daily basis at the Dividend Rate on the Stated Value of such

 

4



 

share of Series A Preferred Stock. Any dividends payable on the Series A Preferred Stock, including dividends payable for any partial dividend period, will be computed on the basis of a 360-day year consisting of twelve 30-day months. On each Dividend Payment Date, accrued and unpaid dividends from the prior Dividend Payment Date (or, in the case of the Dividend Payment Date first occurring after the issuance of such share, the period from such date of issuance) shall be paid in cash to the holders of Series A Preferred Stock.

 

(b)     Distribution of Partial Dividend Payments.     For so long as any share of Series A Preferred Stock remains outstanding, if dividends are not declared and paid in full upon the shares of Series A Preferred Stock and any Parity Stock with the same dividend payment date or with a dividend payment date which arises during the dividend period ending on a Dividend Payment Date, all dividends declared upon shares of Series A Preferred Stock and any such Parity Stock will be declared on a proportional basis, with the effect that the amount of dividends declared per share will be declared and paid among them in the same ratio as the amount of all accrued but unpaid dividends as of the Dividend Payment Date for the applicable dividend period per share of Series A Preferred Stock is to the amount of all accrued and unpaid dividends as of the end of the applicable dividend period per share of any Parity Stock.

 

(c)     Dividends After Redemption or Conversion.     Notwithstanding anything to the contrary in this  Section 4 , no share of Series A Preferred Stock shall accrue any dividends after the date on which (i) such share has been redeemed or purchased by the Corporation in accordance with the terms hereof, (ii) the Corporation has validly sought to redeem or purchase such share in accordance with  Section 7  but has been unable to do so because of the failure of the holder thereof to return the certificate representing such share, so long as the Corporation has set aside funds for such redemption or payment in accordance with Section 7(f) , or (iii) such share has been converted in accordance with  Section 8  below; provided, that, in the case of the foregoing clauses (i), (ii) and (iii), all accrued and unpaid dividends as of such date shall be paid (or, in the case of clause (ii), set aside for payment in accordance with  Section 7(f) ) to the holder of such share on such date. For each share of Series A Preferred Stock, the date that is the earliest of the dates specified in clauses (i), (ii) and (iii) of this  Section 4(c)  is referred to herein as such share’s “ Dividend Cessation Date .”

 

(d)     Restrictions.     Until the Dividend Cessation Date of all shares of Series A Preferred Stock, neither the Corporation nor any of its Subsidiaries shall declare, pay or set aside any dividends on shares of any other class or series of Capital Stock of the Corporation or any of its Subsidiaries, other than (i) dividends payable on (A) Senior Stock, (B) Parity Stock in compliance, to the extent applicable, with the provisions of  Section 4(b) , and (C) Common Stock payable solely in the form of additional shares of Common Stock, and (ii) dividends or distributions by a Subsidiary. Until the Dividend Cessation Date of all Series A Preferred Stock, neither the Corporation nor any of its Subsidiaries shall redeem, purchase or otherwise acquire directly or indirectly any (x) Junior Stock, other than repurchases of Common Stock of departing directors and officers of the Corporation, (y) Parity Stock, other than in compliance, to the extent applicable, with the provisions of  Section 7(d) .

 

(e)     Record Date.     The Board may fix a record date for the determination of holders of shares of the Series A Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than 60 days and no less than ten days prior to the date fixed for the payment thereof.

 

Section 5.     Liquidation Event .

 

(a)     Distributions.     Subject to the rights of the holders of any Senior Stock or Parity Stock in connection therewith, upon any Liquidation Event, each holder of Series A Preferred Stock shall be entitled to be paid, out of the assets of the Corporation legally available therefor, before any distribution or payment out of the assets of the Corporation may be made to or set aside for the holders of any Junior Stock in connection with such Liquidation Event, an amount per share of Series A Preferred Stock held by such holder equal to the sum of (i) the Stated Value  plus  (ii) all accrued and unpaid dividends, if any, with respect to such share calculated through the day prior to such payment. Other than as expressly set forth in the immediately foregoing sentence, upon receipt of the aggregate amount owed to such holder upon a Liquidation Event (as determined in accordance with the immediately foregoing sentence), no holder of Series A Preferred Stock, in its capacity as such, shall be entitled to any further payments upon the occurrence of any Liquidation Event. All shares of Series A Preferred Stock which have received the full amount to which they are entitled under this Certificate

 

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of Designations upon the occurrence of a Liquidation Event or for which the full amount to which they are entitled has been made available by the Corporation in accordance with  Section 7(f)  shall, automatically and without further action on the part of the Corporation or any holder thereof, be cancelled effective upon receipt or the making available by the Corporation of such amount in accordance with  Section 7(f) ; provided that such cancellation shall not impair the right of a holder of such shares of Series A Preferred Stock to subsequently receive the amount that has been made available.

 

(b)     Partial Distributions.     If, upon any such Liquidation Event, the assets of the Corporation to be distributed in respect of the Series A Preferred Stock and any Parity Stock are insufficient to permit payment in respect thereof of the aggregate amount to which they are entitled under this Certificate of Designations upon such Liquidation Event, then the entire assets available to be distributed to the holders of Series A Preferred Stock and the Parity Stock shall be distributed  pro rata  among such holders of Series A Preferred Stock and Parity Stock based upon the aggregate amounts to which they would otherwise be entitled upon such Liquidation Event with respect to such Series A Preferred Stock or Parity Stock, as applicable.

 

(c)     Notice of Liquidation Event.     The Corporation shall provide written notice to the Stockholders’ Representative and each holder of Series A Preferred Stock at least 10 days prior to the consummation of a Liquidation Event.

 

Section 6.     Voting Rights .

 

(a)     Voting Rights Generally.     Other than any voting rights provided by law or as expressly provided by this Certificate of Designations, the holders of the Series A Preferred Stock (in their capacities as such) shall not have voting rights of shareholders under this Certificate of Designations, the Certificate of Incorporation, the Bylaws and the Securities Act of 1933, as amended, on account of the shares of Series A Preferred Stock from time to time held by such holders.

 

(b)     Stockholders’ Representative.

 

(i)  Each holder of Series A Preferred Stock hereby irrevocably constitutes and appoints GFI as the sole and exclusive attorney-in-fact and proxy of such holder of Series A Preferred Stock (the “ Stockholders’ Representative ”), with full power of substitution and resubstitution, to exercise or abstain from exercising the rights granted to the holders of Series A Preferred Stock pursuant to  Section 4(d) , this  Section 6  and  Section 8  to the fullest extent permitted by law. Any action taken or not taken by the Stockholders’ Representative pursuant to this  Section 6(b)  shall not be subject to challenge or input from any such holder of Series A Preferred Stock. Each holder of Series A Preferred Stock hereby revokes any and all previous proxies with respect to such holder’s Series A Preferred Stock and no subsequent proxies (whether revocable or irrevocable) shall be given (and if given, such subsequent proxies shall not be effective) by such holder with respect to the Series A Preferred Stock that conflict with this proxy. This proxy and power of attorney is intended to be irrevocable and is coupled with an interest sufficient in law to support an irrevocable proxy and is granted for good and valuable consideration the receipt and sufficiency of which is hereby acknowledged and shall be valid and binding on any person to whom the holder of Series A Preferred Stock may transfer any of its Series A Preferred Stock. The power of attorney granted herein is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of each holder of Series A Preferred Stock. The provisions of this  Section 6(b)  shall terminate with respect to a holder of Series A Preferred Stock once such holder no longer owns any Series A Preferred Stock. The Stockholders’ Representative may appoint one or more successor representatives to the Stockholders’ Representative, subject to the approval of holders of a majority of the Series A Preferred Stock then outstanding.

 

(ii)  Each holder of Series A Preferred Stock hereby irrevocably delegates all power and authority to the Stockholders’ Representative to exercise, on behalf of such holder of Series A Preferred Stock, any and all rights of such holder in respect of such Series A Preferred Stock pursuant to  Section 4(d) , this  Section 6  and  Section 8 , including the granting of any waivers or the exercise of any consent, approval or voting rights or powers on behalf of such holder.

 

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(iii)  The Stockholders’ Representative shall not, in the absence of bad faith, willful misconduct or gross negligence, have any liability to the holders of Series A Preferred Stock whatsoever with respect to its actions, decisions and determinations, and shall be entitled to assume that all actions, decisions and determinations are fully authorized by each and every one of the holders of Series A Preferred Stock. The Corporation hereby agrees that the Stockholders’ Representative shall not, in its capacity as such, have any liability to the Corporation or any of its Affiliates whatsoever with respect to its actions, decisions or determinations.

 

(c)     Consent Rights.     Notwithstanding the foregoing, until the Dividend Cessation Date of all Series A Preferred Stock, the Corporation shall not, and shall cause its Subsidiaries not to, directly or indirectly (whether by merger, consolidation, amendment of this Certificate of Designations or otherwise), without the prior written approval of the Stockholders’ Representative:

 

(i)  create, or authorize the creation of, or issue or obligate itself to issue any shares of, (A) Senior Stock, (B) Parity Stock (including any Series A Preferred Stock, other than the Series A Preferred Stock issued pursuant to the Merger Agreement), (C) any Capital Stock that votes as a single class with the Series A Preferred Stock on any of the matters which require the consent of the holders of a majority of the Series A Preferred Stock pursuant to this  Section 6 , or (D) any Capital Stock of a Subsidiary of the Corporation, other than a wholly owned Subsidiary of the Corporation;  provided that , this clause (D) shall not apply to Capital Stock of a Subsidiary of the Corporation issued as consideration for a bona-fide acquisition by the Corporation or any of its Subsidiaries approved by the Board and the primary purpose of which is not to obtain financing;

 

(ii)  reclassify, alter or amend any Capital Stock of the Corporation or its Subsidiaries if such reclassification, alteration or amendment would render such other Capital Stock senior to or pari passu with the Series A Preferred Stock in respect of the distribution of assets on the liquidation, dissolution or winding up of the Corporation or the payment of dividends;

 

(iii)  enter into any agreement with respect to, or consummate, any merger, consolidation or similar transaction with any other Person pursuant to which the Corporation or such Subsidiary would not be the surviving entity in such transaction, if as a result of such transaction, any capital stock or equity or equity-linked securities of such Person would rank senior to or pari passu with the Series A Preferred Stock as to the payment of dividends or in the distribution of assets in the event of any voluntary or involuntary liquidation, dissolution or winding up of the surviving entity or such Subsidiary;

 

(iv)  assume, incur or guarantee, or authorize the creation, assumption, incurrence or guarantee of, any indebtedness for borrowed money (specifically excluding letters of credit, performance or payment bonds, and capitalized lease obligations) if, after taking into account such assumption, incurrence or guarantee of such indebtedness for borrowed money, the aggregate outstanding amount of such indebtedness for borrowed money of the Company and its Subsidiaries would exceed $5,000,000 on a consolidated basis, other than (x) any indebtedness for borrowed money under the credit facility being executed and delivered in connection with the closing of the Merger Agreement (the “ Existing Facility ”), or (y) any refinancing thereof in a principal amount not to exceed the available amount under the Existing Facility;

 

(v)  authorize or consummate any Change of Control or Liquidation Event unless on or prior to the consummation of such Change of Control or Liquidation Event, all shares of Series A Preferred Stock will be redeemed, paid or purchased in full at the Redemption Price; or

 

(vi)  alter, amend, supplement, restate, waive or otherwise modify any provision of this Certificate of Designations or any other governing document of the Corporation (including any other Certificate of Designations) in a manner that would reasonably be expected to be materially adverse to the rights or obligations of the holders of the Series A Preferred Stock.

 

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Section 7.     Redemption Rights .

 

(a)     Redemption Events .

 

(i)  The Corporation may, at any time and from time to time, redeem all or any portion of the shares of Series A Preferred Stock then outstanding;  provided , that any such redemption shall be on a  pro rata  basis among the holders of Series A Preferred Stock in accordance with the number of shares of Series A Preferred Stock then held by such holders.

 

(ii)  Concurrently with and as a condition to the consummation of a Change of Control, the Corporation shall repurchase all Series A Preferred Stock then outstanding.

 

(iii)  In the event of a Qualifying Equity Sale, the Corporation shall, as promptly as practicable (but in any event within three (3) Business Days of the consummation of such Qualifying Equity Sale), use all of the Net Cash Proceeds from such Qualifying Equity Sale to redeem the maximum number of shares of Series A Preferred Stock that are redeemable from such Net Cash Proceeds from such Qualifying Equity Sale at the Redemption Price (as defined below) per share; provided that any such redemption shall be on a  pro rata  basis among the holders of Series A Preferred Stock in accordance with the number of shares of Series A Preferred Stock then held by such holders.

 

(iv)  In the event of a Significant Disposition, the Corporation shall, as promptly as practicable (but in any event within three (3) Business Days of the consummation of such Significant Disposition), use all of the Net Cash Proceeds from such Significant Disposition to redeem the maximum number of shares of Series A Preferred Stock that are redeemable from such Net Cash Proceeds from such Significant Disposition at the Redemption Price per share; provided that (x) any such redemption shall be on a  pro rata basis among the holders of Series A Preferred Stock in accordance with the number of shares of Series A Preferred Stock then held by such holders and (y) if any portion of the consideration from such Significant Disposition is not in the form of cash consideration, then for purposes of this clause (iv) any such non-cash consideration shall be included in the calculation of Net Cash Proceeds as and when converted to cash.

 

(b)     Redemption Price.     In connection with any redemption, the Corporation shall pay a price per share of Series A Preferred Stock equal to the Stated Value thereof plus all accrued and unpaid dividends thereon calculated through the day prior to such redemption (the “ Redemption Price ”). There shall be no premium or penalty payable in connection with any redemption. To the fullest extent permitted by law, if the Corporation pays or makes available in accordance with  Section 7(f)  to the holder of a share of Series A Preferred Stock the Redemption Price in respect of such share of Series A Preferred Stock when and as required, such share of Series A Preferred Stock shall be cancelled notwithstanding failure of the holder thereof to return the certificate representing such share; provided that such cancellation shall not impair the right of the holder of such share to subsequently receive the amount that has been made available.

 

(c)     Notice of Redemption.     Except as otherwise provided herein, the Corporation shall provide written notice (a “ Redemption Notice ”) to the Stockholders’ Representative and each record holder of Series A Preferred Stock of any redemption not more than 60 nor less than 10 days prior to the date on which such redemption is to be made. Such notice shall set forth in reasonable detail the date on which such redemption is to be made (the “ Redemption Date ”) and a calculation specifying the amount owed to such holder by the Corporation in respect of each share of Series A Preferred Stock held by such holder as of the Redemption Date. To the extent that any redemption is being made in connection with the occurrence of one or more events, the Corporation may make the redemption contingent upon consummation of such event.

 

(d)     Redemptions of Less than All Shares.     If the Corporation is redeeming less than all of the shares of Series A Preferred Stock then outstanding, the Corporation shall redeem such number of shares of Series A Preferred Stock and each class or series of Parity Stock required to be redeemed, if any, such that the amount payable to each holder of Series A Preferred Stock and Parity Stock in respect of such shares of Series A Preferred Stock and/or Parity Stock, as the case may be, upon a Liquidation Event immediately after consummation of such redemption (and after giving effect to any conversion in connection with such

 

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redemption) bears, as nearly as practicable, the same proportion to the total amount payable to holders of Series A Preferred Stock and Parity Stock upon a Liquidation Event in respect of such shares immediately prior to consummation of such redemption (and after giving effect to any conversion in connection with such redemption). In the event that, for any holder of Series A Preferred Stock, fewer than the total number of shares of Series A Preferred Stock represented by any certificate are redeemed, a new certificate representing the number of unredeemed shares of Series A Preferred Stock shall be issued to the holder thereof without cost to such holder within five Business Days after surrender of the certificate representing the redeemed shares of Series A Preferred Stock.

 

(e)     Other Redemptions or Acquisitions.     The Series A Preferred Stock shall have no maturity date or scheduled redemption date. Nothing herein shall be deemed to limit the right of the Corporation to purchase such Series A Preferred Stock from time to time.

 

(f)     Effectiveness of Redemption.     If a Redemption Notice has been duly given and if, on or before the Redemption Date specified in the Redemption Notice, all funds necessary for the redemption have been set aside by the Corporation, separate and apart from its other assets, in trust or escrow for the pro rata benefit of the holders of shares of Series A Preferred Stock called for redemption, so as to be and continue to be available therefor (subject to applicable escheat laws), or deposited by the Corporation with a bank or trust company in trust or escrow for the pro rata benefit of the holders of the shares of Series A Preferred Stock called for redemption, then, notwithstanding that any certificate for any share so called for redemption has not been surrendered for cancellation, on and after the Redemption Date, all shares of Series A Preferred Stock so called for redemption shall be cancelled and shall cease to be outstanding, all dividends with respect to such shares shall cease to accrue on such Redemption Date, and all rights with respect to such shares shall forthwith on such Redemption Date cease and terminate without further liability to, or obligation of, the Corporation, except only the right of the holders thereof to receive the Redemption Price without interest.

 

Section 8.     Conversion .

 

(a)     Upon Election by Holders.     Any holder of Series A Preferred Stock may elect, by written notice to the Corporation (x) at any time and from time to time on or after the third anniversary of the Closing Date or (y) at any time and from time to time on or after the occurrence of a Non-Payment Event or Default Event until such Non-Payment Event or Default Event is cured by the Corporation, to cause the Corporation to convert, without the payment of additional consideration by such holder, all or any portion of the issued and outstanding shares of Series A Preferred Stock held by such holder, as specified by such holder in such notice, into a number of shares of Common Stock determined in accordance with  Section 8(b)  on the terms described below. Notwithstanding any other provision hereof, if a conversion of Series A Preferred Stock pursuant to this  Section 8(a)  is to be made in connection with a transaction involving the Corporation, the conversion of any shares of Series A Preferred Stock may, at the election of the holder thereof, be conditioned upon the consummation of such transaction, in which case such conversion shall not be deemed to be effective until such transaction has been consummated. A holder of Series A Preferred Stock must do each of the following in order to convert shares of Series A Preferred Stock: (i) complete the conversion notice provided by the Conversion Agent, and deliver an executed copy of such notice to the Conversion Agent; (ii) deliver a certificate or certificates representing the shares of Series A Preferred Stock to be converted to the Conversion Agent, or, if such certificates have been lost, mutilated or destroyed, an affidavit of loss; (iii) if reasonably required by the Conversion Agent, furnish appropriate endorsements and transfer documents; and (iv) if required, pay any stock transfer, documentary, stamp or similar taxes. The date on which a holder of Series A Preferred Stock complies with the procedures in this  Section 8(a)  with regard to the conversion of shares of Series A Preferred Stock is referred to as the “Conversion Date” applicable to such shares. The Conversion Agent shall, on behalf of the holder of such Series A Preferred Stock, convert the Series A Preferred Stock into shares of Common Stock, in accordance with the terms of the notice delivered by such holder described above and this Certificate of Designations. On the Conversion Date, the shares of Series A Preferred Stock so converted will be canceled and will cease to be issued and outstanding (and all rights of the holder of such Series A Preferred Stock (in its capacity as such and only with respect to the shares of Series A Preferred Stock so converted) shall terminate without further liability to, or obligation of, the Corporation effective as of the

 

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Conversion Date) and the Common Stock issued upon such conversion in respect thereof shall be issued and outstanding (and no holder of shares of Series A Preferred Stock to be converted shall have any rights prior to the Conversion Date in respect of such Common Stock issued upon conversion). Upon the conversion of Series A Preferred Stock in connection with the occurrence of a Non-Payment Event, the holders of such Series A Preferred Stock shall have no other remedies available for such Non-Payment Event and the Corporation shall have no further liability for, or obligation to, the holders of such Series A Preferred Stock in respect of such Non-Payment Event.

 

(b)     Effect of Conversion.     Subject to compliance by a holder of Series A Preferred Stock with the requirements of  Section 8(a) , the Corporation shall issue to such holder a number of shares of Common Stock determined by dividing (i) the Stated Value plus accrued and unpaid dividends as of the Conversion Date for the share(s) of Series A Preferred Stock to be converted by (ii) the VWAP per share of Common Stock for the 30 consecutive Trading Days ending on the Trading Day immediately prior to the Conversion Date;  provided however , that if a Non-Payment Event or Default Event has occurred and has not been cured by the Corporation as of the Conversion Date, the Corporation shall issue to such holder a number of shares of Common Stock determined by dividing (1) the Stated Value plus accrued and unpaid dividends as of the Conversion Date for the share(s) of Series A Preferred Stock to be converted by (2) the product of (x) 90% multiplied by (y) the VWAP per share of Common Stock for the 30 consecutive Trading Days ending on the Trading Day immediately prior to the Conversion Date.

 

(c)     Obligations of Corporation on Conversion.     As promptly as practicable (but in any event within three (3) Business Days) after a conversion has been effected, the Corporation shall, or shall cause the Conversion Agent to, mail to the converting holder:

 

(i)  a certificate or certificates representing the number of shares of Common Stock issuable by reason of such conversion in such name or names and such denomination or denominations as the converting holder has specified or, upon the request of the converting holder, evidence of the issuance of such shares in book-entry form; and

 

(ii)  a certificate representing any shares of Series A Preferred Stock which were represented by the certificate or certificates delivered to the Corporation in connection with such conversion but which were not converted.

 

(d)     Reservation of Common Stock.     The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of issuance upon the conversion of the Series A Preferred Stock, such number of shares of Common Stock issuable upon the conversion of all outstanding shares of Series A Preferred Stock, and shall take all action required to increase the authorized number of shares of Common Stock if at any time there shall be insufficient authorized but unissued shares of Common Stock to permit such reservation or to permit the conversion of all outstanding shares of Series A Preferred Stock, including engaging in best efforts to obtain the requisite stockholder consent of any necessary amendment to the Certificate of Incorporation.

 

(e)     Taxes and Governmental Matters .

 

(i)  The issuance of certificates for shares of Common Stock pursuant to this  Section 8  shall be made without charge to the holders of such Series A Preferred Stock for any issuance tax in respect thereof or other cost incurred by the Corporation in connection with such conversion and the related issuance of shares of Common Stock;  provided  that the Corporation shall not, however, be required to pay any such tax that may be payable in respect of any transfer involved in the issuance or delivery of shares of Series A Preferred Stock, Common Stock or other securities in a name other than that in which the shares of Series A Preferred Stock with respect to which such shares or other securities are issued or delivered were registered, or in respect of any payment to any Person other than a payment to the registered holder thereof, and shall not be required to make any such issuance, delivery, or payment unless and until the Person otherwise entitled to such issuance, delivery or payment has paid to the Corporation the amount of any such tax or has established, to the Corporation’s satisfaction, that such tax has been paid or is not payable.

 

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(ii)  The Corporation and the holders of the Series A Preferred Stock shall treat any conversion of the Series A Preferred Stock into Common Stock as a transaction described in Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as amended, and the Treasury regulations promulgated thereunder, unless otherwise required pursuant to a change in applicable law occurring after the date hereof.

 

(f)     Other Obligations of the Corporation in Respect of Conversions.     Upon any conversion of any share of Series A Preferred Stock, the Corporation shall take all such actions as are necessary in order to assure that the Common Stock issuable upon such conversion shall be validly issued, fully paid and nonassessable, free and clear of all taxes, liens, charges and encumbrances with respect to the issuance thereof. The Corporation shall use reasonable best efforts to assist the holder of Series A Preferred Stock to ensure that shares of Common Stock issuable upon conversion may be so issued without violation of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Common Stock may be listed (except for official notice of issuance which shall be delivered as promptly as practicable by the Corporation upon each such issuance).

 

(g)     Fractional Shares.     The Corporation may not issue fractional interests in shares of Common Stock and, instead, shall pay to the holder in cash the then-current market value of any fraction of a share as promptly as practicable (and in any event no later than the date on which the certificate or certificates representing the Common Stock are issued) following the relevant Conversion Date.

 

(h)     Record Holder of Underlying Securities as of Conversion Date.     The Person or Persons entitled to receive the Common Stock issuable and/or cash payable upon conversion of Series A Preferred Stock on a Conversion Date shall be treated for all purposes as the record holder(s) of such shares of Common Stock as of the close of business on such Conversion Date. In the event that a holder of Series A Preferred Stock shall not by written notice designate the name in which shares of Common Stock to be issued (and/or cash payments in lieu of fractional shares to be paid) upon conversion of shares of Series A Preferred Stock should be registered or paid or the manner in which such shares should be delivered, the Corporation shall be entitled to register and deliver such shares, and make such payment, in the name of the holder shown on the records of the Corporation in any manner the Corporation in good faith deems reasonable.

 

Section 9.     Status of Converted, Redeemed or Otherwise Reacquired Shares.     Shares of Series A Preferred Stock converted, or redeemed or otherwise purchased or acquired by the Corporation, in accordance with this Certificate of Designations, shall be canceled and retired and shall not be reissued, sold or transferred, and the Corporation may thereafter take such appropriate action (without the need for stockholder action) as may be necessary to retire such shares and reduce the authorized number of shares of Series A Preferred Stock accordingly.

 

Section 10.     Preemptive Rights.     Holders of Series A Preferred Stock, in their capacities as such, shall not have any preemptive rights.

 

Section 11.     Transfers.     Notwithstanding anything to the contrary in this Certificate of Designations, a holder of Series A Preferred Stock may transfer all or any portion of shares of such Series A Preferred Stock to any Person who is not, at the time of such transfer, a Competitor. For the avoidance of doubt, the restrictions, conditions, and obligations contained in this Certificate of Designations to which such holder of Series A Preferred Stock is subject shall continue to be applicable to and binding upon the transferee(s) of such Series A Preferred Stock and the transferee(s) of such Series A Preferred Stock shall have agreed in writing to be bound by the provisions of this Certificate of Designations. To the extent any shares of Series A Preferred Stock transferred pursuant to this  Section 11  are converted into shares of Common Stock, such shares of Common Stock shall be entitled to all rights and remain subject to all restrictions, conditions, and obligations that are binding upon Common Stock at the time of such conversion.

 

Section 12.     Replacement.     Upon receipt of evidence reasonably satisfactory to the Corporation (an affidavit of the registered holder shall be satisfactory) of the ownership and the loss, theft, destruction or mutilation of any certificate evidencing one or more shares of any Series A Preferred Stock (or any Common Stock issued upon conversion thereof), and in the case of any such loss, theft or destruction, upon receipt of indemnity reasonably satisfactory to the Corporation (provided that if the holder is a financial institution or other institutional investor, its

 

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own agreement shall be satisfactory), or, in the case of any such mutilation upon surrender of such certificate, the Corporation shall (at its expense) execute and deliver in lieu of such certificate a new certificate of like kind representing the number of shares of such Capital Stock represented by such lost, stolen, destroyed or mutilated certificate and dated the date of such lost, stolen, destroyed or mutilated certificate. Dividends shall accrue on any Series A Preferred Stock represented by such new certificate from the date with respect to which dividends have been fully paid on such lost, stolen, destroyed or mutilated certificate.

 

Section 13.     Withholding.     All payments and distributions (or deemed payments and distributions) on the shares of Series A Preferred Stock (and on the shares of Common Stock received upon the conversion of the Series A Preferred Stock), including, without limitation, issuance of shares of Common Stock upon conversion of the Series A Preferred Stock, shall be subject to withholding and backup withholding of tax to the extent required by law, subject to applicable exemptions, and amounts withheld, if any, shall be treated as received by holders. The Corporation shall cooperate as reasonably requested by the holders to avoid or minimize any withholding taxes that may become due in connection with any payment or distribution (or deemed payment or distribution) on the Series A Preferred Stock (or on shares of Common Stock received upon the conversion of the Series A Preferred Stock);  provided  that such cooperation does not cause material detriment to the Corporation or any of its Subsidiaries. The Corporation shall not withhold any U.S. federal income taxes with respect to a holder if such holder provides a properly completed and executed Internal Revenue Service Form W-9, unless otherwise required pursuant to a change in applicable law occurring after the date hereof. Any payments by the Corporation in respect of the Series A Preferred Stock shall be made out of funds legally available for payment thereof and shall only be made to the extent that the payment thereof would not cause the Corporation to be rendered insolvent or to violate any law to which the Corporation is subject.

 

Section 14.     Record Holders.     To the fullest extent permitted by applicable law, the Corporation may deem and treat the record holder of any share of the Series A Preferred Stock as the true and lawful owner thereof for all purposes, and the Corporation shall not be affected by any notice to the contrary.

 

Section 15.     Notices .

 

(a)     To Holders.     All public announcements, notices or communications to the holders of, or otherwise in respect of, the Series A Preferred Stock shall be given or delivered for purposes of this Certificate of Designations if given in writing and delivered in person or by first class mail, postage prepaid. All notices or communications shall also be given or delivered for purposes of this Certificate of Designations if given or delivered in such manner as may be permitted in this Certificate of Designations, in the Certificate of Incorporation or Bylaws or by applicable law or regulation. Furthermore, if the Series A Preferred Stock is issued in book-entry form through The Depository Trust Company or any similar facility, such notices may be given or delivered to the holders of the Series A Preferred Stock in any manner permitted by such facility and such notices will be deemed given and delivered in compliance with this Certificate of Designations.

 

(b)     To the Corporation.     All notices or communications to the Corporation shall be deemed given and delivered to the Corporation if given in writing and delivered in person or by first class mail, postage prepaid to the Corporation’s principal place of business.

 

Section 16.     Other Rights.     The shares of Series A Preferred Stock shall not have any rights, preferences, privileges or voting powers or relative, participating, optional or other special rights, or qualifications, limitations or restrictions thereof, other than as expressly set forth herein, in the Certificate of Incorporation or as provided by applicable law and regulation.

 

Section 17.     Remedies.     Except as set forth in the last sentence of  Section 8(a)  of this Certificate of Designations, the remedies available to the holders of Series A Preferred Stock under this Certificate of Designations shall be in addition to any other remedy to which such holders are entitled at law or in equity, and the election to pursue any such remedy shall not restrict, impair or otherwise limit the holders of Series A Preferred Stock from seeking to pursue any other remedy to which it is entitled under this Certificate of Designations, at law or in equity. Prior to conversion, payment of the Redemption Price in respect of a share of Series A Preferred Stock shall be in full satisfaction of any claim or remedy of a holder thereof in respect of such share of Series A Preferred Stock.

 

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Section 18.     Tax Treatment of Series A Preferred Stock.     The Corporation and the holders shall treat the Series A Preferred Stock as equity for all applicable U.S. federal income, state and local income tax purposes, unless otherwise required by a change in applicable law occurring after the date hereof.

 

Section 19.     Non-Circumvention.     The Corporation shall not seek to avoid the observance or performance of any of the terms of this Certificate of Designations, including, without limitation, by amending its Certificate of Incorporation or Bylaws or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities.

 

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IN WITNESS WHEREOF, this Certificate of Designations has been executed on behalf of the Corporation by its Chief Executive Officer this 26th day of March, 2018.

 

INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC.,

formerly M III ACQUISITION CORP.

 

 

 

 

 

By:

/s/ Mohsin Y. Meghji

 

Name:

Mohsin Y. Meghji

 

Title:

Chief Executive Officer

 

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Exhibit 4.1

 

NUMBER

 

 

 

C

NUMBER

 

SHARES

 

SEE REVERSE FOR

 

CERTAIN DEFINITIONS

 

CUSIP 45686J104

 

INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC.

INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE

COMMON STOCK

 

This Certifies that                                                                                                                                                                                

 

is the owner of                                                                                                                                                                                        

 

FULLY PAID AND NON-ASSESSABLE SHARES OF THE PAR VALUE OF $0.0001 EACH OF THE COMMON STOCK OF

 

INFRASTRUCTURE AND ENERGY ALTERNATIVES,  INC.

(THE “CORPORATION”)

 

transferable on the books of the Corporation in person or by duly authorized attorney upon surrender of this certificate properly endorsed.

 

The Corporation will be forced to redeem all of its shares of common stock if it is unable to complete a business combination within the time frame set forth in the Corporation’s Amended and Restated Certificate of Incorporation, as the same may be amended from time to time, as more fully described in the Corporation’s final prospectus dated [                        ], 2016.

 

This certificate is not valid unless countersigned by the Transfer Agent and registered by the Registrar.

 

Witness the seal of the Corporation and the facsimile signatures of its duly authorized officers.

 

 

 

 

 

 

 

 

[Corporate Seal]

 

 

Secretary

 

Delaware

 

President

 



 

INFRASTRUCTURE AND ENERGY ALTERNATIVES,  INC.

 

The Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof of the Corporation and the qualifications, limitations, or restrictions of such preferences and/or rights. This certificate and the shares represented thereby are issued and shall be held subject to all the provisions of the Certificate of Incorporation and all amendments thereto and resolutions of the Board of Directors providing for the issue of securities (copies of which may be obtained from the secretary of the Corporation), t o all of which the holder of this certificate by acceptance hereof assents. 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)

JT TEN

as joint tenants with right of survivorship and not as tenants in common

 

under Uniform Gifts to Minors

 

 

 

 

 

 

 

 

Act

                                                

 

 

 

 

(State)

 

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

 

For va lue received,                                                                      hereby sells, assigns and transfers unto

 

(PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER(S) OF ASSIGNEE(S))

 

(PLEASE PRINT OR TYPEWRITE NAME(S) AND ADDRESS(ES), INCLUDING ZIP CODE, OF ASSIGNEE(S))

 

 

Shares of the capital stock represented by the within Certificate, and do hereby irrevocably constitutes and appoints

 

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(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.

 

Signature(s) Guaranteed:

 

 

By

 

 

 

 

 

 

 

 

 



 

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

 

In each case, as more fully described in the Corporation’s final prospectus dated [                  ], 2016, the holder(s) of this certificate shall be entitled to receive a pro-rata portion of certain funds held in the trust account established in connection with its initial public offering only in the event that the Corporation redeems the shares of common stock represented by this certificate and liquidates because it does not consummate an initial business combination by the date set forth in the Corporation’s Amended and Restated Certificate of Incorporation, as the same may be amended from time to time, or if the holder(s) seek(s) to redeem for cash his, her or its respective shares of common stock in connection with a tender offer (or proxy solicitation, solely in the event the Corporation seeks stockholder approval of the proposed initial business combination) setting forth the details of a proposed initial business combination or in connection with certain amendments to the Corporation’s Amended and Restated Certificate of Incorporation. In no other circumstances shall the holder(s) have any right or interest of any kind in or to the trust account.

 


Exhibit 4.2

 

NUMBER

 

 

 

C

NUMBER

 

SHARES

 

SEE REVERSE FOR

 

CERTAIN DEFINITIONS

 

CUSIP 45686J104

 

INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC.

INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE

PREFERRED STOCK

 

This Certifies that                                                                                                                                                  

 

is the owner of                                                                                                                                                       

 

FULLY PAID AND NON-ASSESSABLE SHARES OF THE PAR VALUE OF $0.0001 EACH OF THE PREFERRED STOCK OF

 

INFRASTRUCTURE AND ENERGY ALTERNATIVES,  INC.

(THE “CORPORATION”)

 

transferable on the books of the Corporation in person or by duly authorized attorney upon surrender of this certificate properly endorsed.

 

The Corporation will be forced to redeem all of its shares of preferred stock if it is unable to complete a business combination within the time frame set forth in the Corporation’s Amended and Restated Certificate of Incorporation, as the same may be amended from time to time, as more fully described in the Corporation’s final prospectus dated [                         ], 2016.

 

This certificate is not valid unless countersigned by the Transfer Agent and registered by the Registrar.

 

Witness the seal of the Corporation and the facsimile signatures of its duly authorized officers.

 

 

 

 

 

 

 

 

[Corporate Seal]

 

 

Secretary

 

Delaware

 

President

 



 

INFRASTRUCTURE AND ENERGY ALTERNATIVES,  INC.

 

The Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof of the Corporation and the qualifications, limitations, or restrictions of such preferences and/or rights. This certificate and the shares represented thereby are issued and shall be held subject to all the provisions of the Certificate of Incorporation and all amendments thereto and resolutions of the Board of Directors providing for the issue of securities (copies of which may be obtained from the secretary of the Corporation), t o all of which the holder of this certificate by acceptance hereof assents. 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)

JT TEN

as joint tenants with right of survivorship and not as tenants in common

 

under Uniform Gifts to Minors

 

 

 

 

 

 

 

 

Act

                                                

 

 

 

 

(State)

 

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

 

For value received,                                  hereby sells, assigns and transfers unto

 

(PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER(S) OF ASSIGNEE(S))

 

(PLEASE PRINT OR TYPEWRITE NAME(S) AND ADDRESS(ES), INCLUDING ZIP CODE, OF ASSIGNEE(S))

 

 

Shares of the capital stock represented by the within Certificate, and do hereby irrevocably constitutes and appoints

 

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(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.

 

Signature(s) Guaranteed:

 

 

By

 

 

 

 

 

 

 

 

 



 

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

 

In each case, as more fully described in the Corporation’s final prospectus dated [                 ], 2016, the holder(s) of t his certificate shall be entitled to receive a pro-rata portion of certain funds held in the trust account established in connection with its initial public offering only in the event that the Corporation redeems the shares of preferred stock represented by this certificate and liquidates because it does not consummate an initial business combination by the date set forth in the Corporation’s Amended and Restated Certificate of Incorporation, as the same may be amended from time to time, or if the holder(s) seek(s) to redeem for cash his, her or its respective shares of preferred stock in connection with a tender offer (or proxy solicitation, solely in the event the Corporation seeks stockholder approval of the proposed initial business combination) setting forth the details of a proposed initial business combination or in connection with certain amendments to the Corporation’s Amended and Restated Certificate of Incorporation. In no other circumstances shall the holder(s) have  any right or interest of any kind in or to the trust account.

 


Exhibit 4.3

 

[Form of Warrant Certificate]

 

[FACE]

 

Number

 

Warrants

 

THIS WARRANT SHALL BE VOID IF NOT EXERCISED PRIOR TO

THE EXPIRATION OF THE EXERCISE PERIOD PROVIDED FOR

IN THE WARRANT AGREEMENT DESCRIBED BELOW

 

INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC.

 (F/K/A M III ACQUISITION CORP.)

Incorporated Under the Laws of the State of Delaware

 

CUSIP 45686J 112

 

Warrant Certificate

 

This Warrant Certificate certifies that                     , or registered assigns, is the registered holder of                warrant(s) evidenced hereby (the “Warrants” and each, a “Warrant”) to purchase shares of common stock, par value $0.0001 per share (the “Common Stock”), of Infrastructure and Energy Alternatives, Inc. (f/k/a M III Acquisition Corp.), a Delaware corporation (the “Company”). Each Warrant entitles the holder, upon exercise during the period set forth in the Warrant Agreement referred to below, to receive from the Company that number of fully paid and nonassessable shares of Common Stock as set forth below, at the exercise price (the “Exercise Price”) as determined pursuant to the Warrant Agreement, payable in lawful money (or through “cashless exercise” as provided for in the Warrant Agreement) of the United States of America upon surrender of this Warrant Certificate and payment of the Exercise Price at the office or agency of the Warrant Agent referred to below, subject to the conditions set forth herein and in the Warrant Agreement. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.

 

Each Warrant is initially exercisable for one half of one fully paid and non-assessable share of Common Stock. The number of the shares of Common Stock issuable upon exercise of the Warrants is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.

 

The initial Exercise Price per half share of Common Stock for any Warrant is equal to $5.75 per half share; provided, however, that a Warrant may not be exercised for a fractional share, so that only an even number of Warrants may be exercised at a given time. The Exercise Price is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.

 



 

Subject to the conditions set forth in the Warrant Agreement, the Warrants may be exercised only during the Exercise Period and to the extent not exercised by the end of such Exercise Period, such Warrants shall become void.

 

Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place.

 

This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement.

 

This Warrant Certificate shall be governed by and construed in accordance with the internal laws of the State of New York, without regard to conflicts of laws principles thereof.

 

 

INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC.

 

 

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

 

 

 

CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Warrant Agent

 

 

 

 

 

 

By:

 

 

Name:

 

 

Title:

 

 



 

[Form of Warrant Certificate]

 

[Reverse]

 

The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants entitling the holder on exercise to receive shares of Common Stock and are issued or to be issued pursuant to an Amended and Restated Warrant Agreement dated as of March 26, 2018 (the “Warrant Agreement”), duly executed and delivered by the Company to Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the “Warrant Agent”), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words “holders” or “holder” meaning the Registered Holders or Registered Holder) of the Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.

 

Warrants may be exercised at any time during the Exercise Period set forth in the Warrant Agreement. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering this Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Exercise Price as

 

specified in the Warrant Agreement (or through “cashless exercise” as provided for in the Warrant Agreement) at the principal corporate trust office of the Warrant Agent. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or his, her or its assignee, a new Warrant Certificate evidencing the number of Warrants not exercised.

 

Notwithstanding anything else in this Warrant Certificate or the Warrant Agreement, no Warrant may be exercised, except through “cashless exercise” as provided for in the Warrant Agreement, unless at the time of exercise (i) a registration statement covering the shares of Common Stock to be issued upon exercise is effective under the Securities Act, (ii) a prospectus thereunder relating to the shares of Common Stock is current, or (iii) in the case of any Additional Warrants, if, in the Company’s sole determination, an exemption from the registration requirements under the Securities Act of 1933, as amended, is available with respect thereto.

 

The Warrant Agreement provides that upon the occurrence of certain events the number of shares of Common Stock issuable upon exercise of the Warrants set forth on the face hereof may, subject to certain conditions, be adjusted. If, upon exercise of a Warrant, the holder thereof would be entitled to receive a fractional interest in a share of Common Stock, the Company shall, upon exercise, round down to the nearest whole number of shares of Common Stock to be issued to the holder of the Warrant.

 

Warrant Certificates, when surrendered at the principal corporate trust office of the Warrant Agent by the Registered Holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another

 



 

Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants.

 

Upon due presentation for registration of transfer of this Warrant Certificate at the office of the Warrant Agent, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith.

 

The Company and the Warrant Agent may deem and treat the Registered Holder(s) hereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone) for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate entitles any holder hereof to any rights of a stockholder of the Company.

 

Election to Purchase

 

(To Be Executed Upon Exercise of Warrant)

 

The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to receive shares of Common Stock and herewith tenders payment for such shares to the order of Infrastructure and Energy Alternatives, Inc. (the “Company”) in the amount of $[        ] in accordance with the terms hereof. The undersigned requests that a certificate for such shares be registered in the name of [                              ], whose address is [                               ] and that such shares be delivered to whose address is [                               ]. If said number of shares is less than all of the shares of Common Stock purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares be registered in the name of [                               ], whose address is [                               ], and that such Warrant Certificate be delivered to [                               ], whose address is [                               ].

 

In the event that the Warrant has been called for redemption by the Company pursuant to Section 6 of the Warrant Agreement and the Company has required cashless exercise pursuant to Section 6.3 of the Warrant Agreement, the number of shares that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(b) and Section 6.3 of the Warrant Agreement.

 

In the event that the Warrant is a Private Placement Warrant that is to be exercised on a “cashless” basis pursuant to subsection 3.3.1(c) of the Warrant Agreement, the number of shares that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(c) of the Warrant Agreement.

 

In the event that the Warrant is to be exercised on a “cashless” basis pursuant to Section 3.3.1 of the Warrant Agreement, the number of shares that this Warrant is exercisable for shall be determined in accordance with Section 3.3.1 of the Warrant Agreement.

 



 

In the event that the Warrant may be exercised, to the extent allowed by the Warrant Agreement, through cashless exercise (i) the number of shares that this Warrant is exercisable for would be determined in accordance with the relevant section of the Warrant Agreement which allows for such cashless exercise and (ii) the holder hereof shall complete the following: The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, through the cashless exercise provisions of the Warrant Agreement, to receive shares of Common Stock. If said number of shares is less than all of the shares of Common Stock purchasable hereunder (after giving effect to the cashless exercise), the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares be registered in the name of [                               ], whose address is [                               ], and that such Warrant Certificate be delivered to [                               ], whose address is [                               ].

 

[Signature Page Follows]

 



 

Date:                                            , 20

 

(Signature)

 

 

 

 

 

 

 

(Address)

 

 

 

 

 

 

 

 

 

(Tax Identification Number)

 

 

 

 

 

 

 

 

 

Signature Guaranteed:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

 


Exhibit 4.4

 

AMENDED AND RESTATED WARRANT AGREEMENT

 

THIS AMENDED AND RESTATED WARRANT AGREEMENT (“Agreement”) dated as of March 26, 2018 is between INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC., a Delaware corporation formerly known as M III Acquisition Corp. (“Company”), and Continental Stock Transfer & Trust Company, a New York corporation (“Warrant Agent”) and amends and restates the Warrant Agreement dated July 7, 2016 by and between Company and the Warrant Agent (the “Original Warrant Agreement”).

 

WHEREAS, the Company has entered into that certain Second Amended and Restated Sponsor Unit Subscription Agreement (the “Sponsor Unit Subscription Agreement”), dated July 7, 2016, between the Company and M III Sponsor I, LLC and M III Sponsor I, LP (collectively, the “Sponsor”), pursuant to which the Sponsor has agreed to purchase an aggregate of 340,000 units (the “Private Units”), each Private Unit consisting of one share of Company common stock, par value $0.0001 per share (“Common Stock”) and one warrant to purchase one-half of one share of Common Stock at a price of $5.75 per half share (the “Sponsor Private Placement Warrants”), simultaneously with the closing of the Public Offering (as defined below), at a purchase price of $10.00 per Private Unit; and

 

WHEREAS, the Company has entered into that certain Amended and Restated Unit Subscription Agreement (the “CF Unit Subscription Agreement”), dated July 7, 2016, between the Company and Cantor Fitzgerald & Co. (“CF & Co.”), pursuant to which CF & Co. has agreed to purchase an aggregate of 120,000 Private Units simultaneously with the closing of the Public Offering (as defined below), such warrants underlying these units referred to as the CF Private Placement Warrants (collectively with the Sponsor Private Placement Warrants, the “Private Placement Warrants”), at a purchase price of $10.00 per Private Unit; and

 

WHEREAS, the Company issued in a public offering (“Public Offering”) 15,000,000 units (the “Units”), each comprised of one share of Common Stock and one redeemable warrant (“Public Warrants” and together with the Private Placement Warrants, the “Warrants”); and

 

WHEREAS, the Company and the Warrant Agent wish to amend and restate the Original Warrant Agreement to reflect the change in the name of the Company upon consummation of the Business Combination (as defined herein) and reflect that the Company may issue additional warrants on the same terms as the Public Warrants in the future, including in connection with the consummation of the Business Combination, whether in registered offerings or in private placement transactions and such additional warrants shall be “Public Warrants” hereunder; and

 

WHEREAS, each Warrant evidences the right of the holder thereof to purchase one half of one share of Common Stock, for $5.75 per half share, subject to adjustment as described herein; and

 

WHEREAS, the Company has filed with the Securities and Exchange Commission a Registration Statement on Form S-1, No. 333-210817 (“Registration Statement”), for the registration, under the Securities Act of 1933, as amended (“Act”), of, among other securities, the Warrants issued in the Public Offering; and

 



 

WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration, transfer, exchange, redemption and exercise of the Warrants; and

 

WHEREAS, the Company desires to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights, limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of the Warrants; and

 

WHEREAS, all acts and things have been done and performed which are necessary to make the Warrants, when executed on behalf of the Company and countersigned by or on behalf of the Warrant Agent, as provided herein, the valid, binding and legal obligations of the Company, and to authorize the execution and delivery of this Agreement.

 

NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:

 

1.                                       Appointment of Warrant Agent . The Company hereby appoints the Warrant Agent to act as agent for the Company for the Warrants, and the Warrant Agent hereby accepts such appointment and agrees to perform the same in accordance with the terms and conditions set forth in this Agreement.

 

2.                                       Warrants .

 

2.1.                             Form of Warrant; Additional Warrants .

 

2.1.1.                          Each Warrant shall be issued in registered form only, shall be in substantially the form of Exhibit A hereto, the provisions of which are incorporated herein and shall be signed by, or bear the facsimile signature of, the Chairman of the Board of Directors or Chief Executive Officer and Treasurer, Secretary or Assistant Secretary of the Company and shall bear a facsimile of the Company’s seal. In the event the person whose facsimile signature has been placed upon any Warrant shall have ceased to serve in the capacity in which such person signed the Warrant before such Warrant is issued, it may be issued with the same effect as if he or she had not ceased to be such at the date of issuance.

 

2.1.2.                          From time to time, the Company may issue additional Warrants (“Additional Warrants”), which shall for all purposes constitute “Public Warrants” hereunder and shall have identical attributes to the Public Warrants (other than with respect to issue date and issue price and except as set forth in Section 7.4). With respect to any Additional Warrants, the Company shall set forth in a resolution of the Board of Directors of the Company the aggregate number of Warrants to be issued, a copy of which shall be delivered to the Warrant Agent, together with such other documentation as reasonably requested by the Warrant Agent.

 

2.2.                             Uncertificated Warrants . Notwithstanding anything herein to the contrary, any Warrant, or portion thereof, may be issued as part of, and be represented by, a Unit or a Private Unit, and any Warrant may be issued in uncertificated or book-entry form through the Warrant Agent and/or the facilities of The Depository Trust Company (the “Depositary”) or other book- entry depositary system, in each case as determined by the Board of Directors of the Company or by an authorized committee thereof. Any Warrant so issued shall have the same terms, force and

 

2



 

effect as a certificated Warrant that has been duly countersigned by the Warrant Agent in accordance with the terms of this Agreement

 

2.3.                             Effect of Countersignature . Except with respect to uncertificated Warrants as described above, unless and until countersigned by the Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and of no effect and may not be exercised by the holder thereof.

 

2.4.                             Registration .

 

2.4.1.                          Warrant Register . The Warrant Agent shall maintain books (“Warrant Register”) for the registration of original issuance and the registration of transfer of the Warrants. Upon the initial issuance of the Warrants in book-entry form, the Warrant Agent shall issue and register the Warrants in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions delivered to the Warrant Agent by the Company. Ownership of beneficial interests in the Public Warrants issued in the Public Offering (and any other Warrants that are Public Warrants and not otherwise held in book entry or certificated form) shall be shown on, and the transfer of such ownership shall be effected through, records maintained by institutions that have accounts with the Depository Trust Company (the “Depository”) (such institution, with respect to a Warrant in its account, a “Participant”).

 

If the Depository subsequently ceases to make its book-entry settlement system available for the Public Warrants, the Company may instruct the Warrant Agent regarding making other arrangements for book-entry settlement. In the event that the Public Warrants are not eligible for, or it is no longer necessary to have the Public Warrants available in, book-entry form, the Warrant Agent shall provide written instructions to the Depository to deliver to the Warrant Agent for cancellation each book-entry Public Warrant, and the Company shall instruct the Warrant Agent to deliver to the Depository definitive certificates in physical form evidencing such Warrants which shall be in the form annexed hereto as Exhibit A.

 

2.4.2.                          Registered Holder . Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and treat the person in whose name such Warrant shall be registered upon the Warrant Register (“registered holder”) as the absolute owner of such Warrant and of each Warrant represented thereby (notwithstanding any notation of ownership or other writing on the Warrant certificate made by anyone other than the Company or the Warrant Agent), for the purpose of any exercise thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.

 

2.5.                             Detachability of Warrants . The Common Stock and Warrants comprising the Units and Private Units began separate trading on August 29, 2016.

 

2.6.                             Private Placement Warrant Attributes . The Private Placement Warrants will be issued in the same form as the Public Warrants but they (i) will not be redeemable by the Company and (ii) may be exercised for cash or on a cashless basis at the holder’s option pursuant to Section 3.3.1(c) below, in either case as long as the Private Placement Warrants are held by the initial purchasers or their affiliates and permitted transferees (as prescribed in Section 5.6 hereof). Prior to the 30th day after the Company consummates an initial Business Combination,

 

3



 

the Private Placement Warrants may only be transferred to permitted transferees (as defined in Section 5.6 hereof). Once a Private Placement Warrant is transferred to a holder other than an affiliate or permitted transferee, it shall be treated as a Public Warrant hereunder for all purposes.

 

3.                                       Terms and Exercise of Warrants .

 

3.1.                             Warrant Price . Each Warrant shall, when countersigned by the Warrant Agent, entitle the registered holder thereof, subject to the provisions of such Warrant and of this Warrant Agreement, to purchase from the Company the number of shares of Common Stock stated therein, at the price of $5.75 per half share, subject to the adjustments provided in Section 4 hereof and in the last sentence of this Section 3.1. The term “Warrant Price” as used in this Warrant Agreement refers to the price per share at which the shares of Common Stock may be purchased at the time a Warrant is exercised. The Company in its sole discretion may lower the Warrant Price at any time prior to the Expiration Date (as defined below) for a period of not less than twenty (20) Business Days; provided, that the Company shall provide at least twenty (20) days prior written notice of such reduction to registered holders of the Warrants and, provided further that any such reduction shall be applied consistently to all of the Warrants.

 

3.2.                             Duration of Warrants . A Warrant may be exercised only during the period (“Exercise Period”) commencing on the later of 30 days after the consummation by the Company of a merger, share exchange, asset acquisition, stock purchase, recapitalization, reorganization or other similar business combination with one or more businesses or entities (“Business Combination”) (as described more fully in the Registration Statement) or 12 months from the closing of the Public Offering, and terminating at 5:00 p.m., New York City time on the earlier to occur of (i) five years from the consummation of a Business Combination, (ii) the liquidation of the Company in accordance with the Company’s second amended and restated certificate of incorporation, as amended from time to time, if the Company fails to consummate a Business Combination and (iii) the Redemption Date as provided in Section 6.2 of this Agreement (“Expiration Date”). Except with respect to the right to receive the Redemption Price (as set forth in Section 6 hereunder), each Warrant not exercised on or before the Expiration Date shall become void, and all rights thereunder and all rights in respect thereof under this Agreement shall cease at the close of business on the Expiration Date. The Company in its sole discretion may extend the duration of the Warrants by delaying the Expiration Date; provided, however, that the Company will provide at least twenty (20) days prior written notice of any such extension to registered holders.

 

3.3.                      Exercise of Warrants .

 

3.3.1.                   Payment . Subject to the provisions of the Warrant and this Warrant Agreement, a Warrant, when countersigned by the Warrant Agent, may be exercised by the registered holder thereof by surrendering it, at the office of the Warrant Agent, or at the office of its successor as Warrant Agent, in the Borough of Manhattan, City and State of New York, with the subscription form, as set forth in the Warrant, duly executed, and by paying in full the Warrant Price for each full share of Common Stock as to which the Warrant is exercised and any and all applicable taxes due in connection with the exercise of the Warrant, as follows:

 

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(a)                           by good certified check or good bank draft payable to the order of the Company (or as otherwise agreed to by the Company); or

 

(b)                           in the event of redemption pursuant to Section 6 hereof in which the Company’s management has elected to force all holders of Warrants to exercise such Warrants on a “cashless basis,” by surrendering the Warrants for that number of shares of Common Stock equal to the quotient obtained by dividing (x) the product of the number of shares of Common Stock underlying the Warrants, multiplied by the difference between the Warrant Price and the “Fair Market Value” (defined below) by (y) the Fair Market Value; provided, however, that Warrants may not be exercised on a “cashless basis” unless the Fair Market Value is equal to or higher than the Warrant Price. Solely for purposes of this Section 3.3.1(b), the “Fair Market Value” shall mean the average reported last sale price of the Common Stock for the ten (10) trading days ending on the third trading day prior to the date on which the notice of redemption is sent to holders of Warrant pursuant to Section 6 hereof; or

 

(c)                            with respect to any Private Placement Warrants, so long as such Private Placement Warrants are held by the Sponsor, CF & Co. or their permitted transferees, by surrendering such Private Placement Warrants for that number of shares of Common Stock equal to the quotient obtained by dividing (x) the product of the number of shares of Common Stock underlying the Warrants, multiplied by the difference between the exercise price of the Warrants and the “Fair Market Value” by (y) the Fair Market Value; provided, however, that no cashless exercise shall be permitted unless the Fair Market Value is equal to or higher than the Warrant Price. Solely for purposes of this Section 3.3.1(c), the “Fair Market Value” shall mean the average reported last sale price of the Common Stock for the ten (10) trading days ending on the third trading day prior to the date of exercise; or

 

(d)                           in the event the registration statement required by Section 7.4 hereof is not effective and current within ninety (90) days after the closing of a Business Combination, then during the period beginning on the 91st day after the closing of a Business Combination and ending upon the effectiveness of such registration statement, and during any other period after such date of effectiveness when the Company shall fail to have maintained an effective registration statement covering the shares of Common Stock issuable upon exercise of the Warrants, by surrendering such Warrants for that number of shares of Common Stock equal to the quotient obtained by dividing (x) the product of the number of shares of Common Stock underlying the Warrants, multiplied by the difference between the exercise price of the Warrants and the “Fair Market Value” by (y) the Fair Market Value; provided, however, that no cashless exercise shall be permitted unless the Fair Market Value is equal to or higher than the Warrant Price. Solely for purposes of this Section 3.3.1(d), the “Fair Market Value” shall mean the average reported last sale price of the Common Stock for the ten (10) trading days ending on the day prior to the date of exercise.

 

3.3.2.            Issuance of Certificates . As soon as practicable after the exercise of any Warrant and the clearance of the funds in payment of the Warrant Price (if any), the Company shall issue to the registered holder of such Warrant a book-entry position or certificate, as

 

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applicable, for the number of full shares of Common Stock to which he is entitled, registered in such name or names as may be directed by him, her or it, and if such Warrant shall not have been exercised in full, a new book-entry position or countersigned Warrant, as applicable, for the number of shares as to which such Warrant shall not have been exercised. Notwithstanding the foregoing, in no event will the Company be required to net cash settle the Warrant exercise. No Warrant shall be exercisable and the Company shall not be obligated to issue shares of Common Stock upon exercise of a Warrant unless the Common Stock issuable upon such Warrant exercise has been registered, qualified or deemed to be exempt under the securities laws of the state of residence of the registered holder of the Warrants. In the event that the condition in the immediately preceding sentence is not satisfied with respect to a Warrant, the holder of such Warrant shall not be entitled to exercise such Warrant and such Warrant may have no value and expire worthless, in which case the purchaser of a Unit containing such Public Warrants shall have paid the full purchase price for the Unit solely for the shares of Common Stock underlying such Unit. Subject to Section 4.7 of this Agreement, a Registered Holder of Warrants may exercise its Warrants only for a whole number of shares of Common Stock (i.e., only an even number of Warrants may be exercised at any given time by a Registered Holder). If, by reason of any exercise of warrants on a “cashless basis”, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company shall round down to the nearest whole number, the number of shares to be issued to such holder. Warrants may not be exercised by, or securities issued to, any registered holder in any state in which such exercise would be unlawful.

 

3.3.3.                   Valid Issuance . All shares of Common Stock issued upon the proper exercise of a Warrant in conformity with this Agreement shall be validly issued, fully paid and nonassessable.

 

3.3.4.                   Date of Issuance . Each person in whose name any book-entry position or such certificate, as applicable, for shares of Common Stock is issued shall for all purposes be deemed to have become the holder of record of such shares on the date on which the Warrant, or book-entry position representing such Warrant, was surrendered and payment of the Warrant Price was made, irrespective of the date of delivery of such certificate in the case of a certificated Warrant, except that, if the date of such surrender and payment is a date when the share transfer books of the Company or book-entry system of the Warrant Agent are closed, such person shall be deemed to have become the holder of such shares at the close of business on the next succeeding date on which the share transfer books or book-entry system are open.

 

3.3.5.                   Maximum Percentage . A holder of a Warrant may notify the Company in writing in the event it elects to be subject to the provisions contained in this subsection 3.3.5; however, no holder of a Warrant shall be subject to this subsection 3.3.5 unless he, she or it makes such election. If the election is made by a holder, the Warrant Agent shall not affect the exercise of the holder’s Warrant, and such holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 9.8% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the Warrant with

 

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respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrant, in determining the number of outstanding shares of Common Stock, the holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent annual report on Form 10-K, quarterly report on Form 10-Q, current report on Form 8-K or other public filing with the Securities and Exchange Commission as the case may be, (2) a more recent public announcement by the Company or (3) any other more recent notice by the Company or the Warrant Agent setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two (2) Business Days, confirm orally and in writing to such holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company.

 

4.                                       Adjustments .

 

4.1.                             Stock Dividends - Split Ups . If after the date hereof, and subject to the provisions of Section 4.7 below, the number of outstanding shares of Common Stock is increased by a stock dividend payable in shares of Common Stock, or by a split up of shares of Common Stock, or other similar event, then, on the effective date of such stock dividend, split up or similar event, the number of shares of Common Stock issuable on exercise of each Warrant shall be increased in proportion to such increase in outstanding shares of Common Stock. A rights offering to holders of the Common Stock entitling holders to purchase shares of Common Stock at a price less than the “Fair Market Value” (as defined below) shall be deemed a stock dividend of a number of shares of Common Stock equal to the product of (i) the number of shares of Common Stock actually sold in such rights offering (or issuable under any other equity securities sold in such rights offering that are convertible into or exercisable for the Common Stock) multiplied by (ii) one (1) minus the quotient of (x) the price per share of Common Stock paid in such rights offering divided by (y) the Fair Market Value. For purposes of this subsection 4.1, (i) if the rights offering is for securities convertible into or exercisable for Common Stock, in determining the price payable for Common Stock, there shall be taken into account any consideration received for such rights, as well as any additional amount payable upon exercise or conversion and (ii) “Fair Market Value” means the volume weighted average price of the Common Stock as reported during the ten (10) trading day period ending on the trading day prior to the first date on

 

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which the shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive such rights.

 

4.2.                             Aggregation of Shares . If after the date hereof, the number of outstanding shares of Common Stock is decreased by a consolidation, combination, reverse stock split or reclassification of shares of Common Stock or other similar event, then, on the effective date of such consolidation, combination, reverse stock split, reclassification or similar event, the number of shares of Common Stock issuable on exercise of each Warrant shall be decreased in proportion to such decrease in outstanding shares of Common Stock.

 

4.3.                             Extraordinary Dividends . If the Company, at any time while the Warrants are outstanding and unexpired, shall pay a cash dividend or make a distribution in cash, securities or other assets to the holders of the shares of Common Stock or other shares of the Company’s capital stock into which the Warrants are convertible (an “Extraordinary Dividend”), then the Warrant Price shall be decreased, effective immediately after the effective date of such Extraordinary Dividend, by the amount of cash and the fair market value (as determined by the Company’s Board of Directors, in good faith) of any securities or other assets paid on each share of Common Stock in respect of such Extraordinary Dividend; provided, however, that none of the following shall be deemed an Extraordinary Dividend for purposes of this provision: (a) any adjustment described in subsection 4.1 above, (b) any cash dividends or cash distributions which, when combined on a per share basis with the per share amounts of all other cash dividends and cash distributions paid on the Common Stock during the 365-day period ending on the date of declaration of such dividend or distribution does not exceed $0.50 (as adjusted to appropriately reflect any of the events referred to in other subsections of this Section 4 and excluding cash dividends or cash distributions that resulted in an adjustment to the Warrant Price or to the number of shares of Common Stock issuable on exercise of each Warrant) but only with respect to the amount of the aggregate cash dividends or cash distributions equal to or less than $0.50, (c) any payment to satisfy the redemption rights of the holders of the shares of Common Stock in connection with a proposed initial Business Combination or (d) any payment in connection with the Company’s liquidation and the distribution of its assets upon its failure to consummate a Business Combination. Solely for purposes of illustration, if the Company, at a time while the Warrants are outstanding and unexpired, pays a cash dividend of $0.35 and previously paid an aggregate of $0.40 of cash dividends and cash distributions on the Common Stock during the 365-day period ending on the date of declaration of such $0.35 dividend, then the Warrant Price will be decreased, effectively immediately after the effective date of such $0.35 dividend, by $0.25 (the difference between $0.75 (the aggregate amount of all cash dividends and cash distributions paid or made in such 365-day period, including such $0.35 dividend) and $0.50 (the greater of (x) $0.50 and (y) the aggregate amount of all cash dividends and cash distributions paid or made in such 365-day period prior to such $0.35 dividend)).

 

4.4.                             Adjustments in Exercise Price . Whenever the number of shares of Common Stock purchasable upon the exercise of the Warrants is adjusted, as provided in Sections 4.1 and 4.2 above, the Warrant Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price immediately prior to such adjustment by a fraction (x) the numerator of which shall be the number of shares of Common Stock purchasable upon the exercise of the Warrants immediately prior to such adjustment, and (y) the denominator of which shall be the number of shares of Common Stock so purchasable immediately thereafter.

 

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4.5.                             Replacement of Securities upon Reorganization, etc . In case of any reclassification or reorganization of the outstanding shares of Common Stock (other than a change covered by Section 4.1, 4.2 or 4.3 hereof or that solely affects the par value of the Common Stock), or in the case of any merger or consolidation of the Company with or into another corporation (other than a consolidation or merger in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the outstanding Common Stock), or in the case of any sale or conveyance to another corporation or entity of the assets or other property of the Company as an entirety or substantially as an entirety in connection with which the Company is dissolved, the Warrant holders shall thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified in the Warrants and in lieu of the shares of Common Stock of the Company immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares of stock or other securities or property (including cash) receivable upon such reclassification, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer, that the Warrant holder would have received if such Warrant holder had exercised his, her or its Warrant(s) immediately prior to such event (the “Alternative Issuance” ); provided, however, that (i) if the holders of the Common Stock were entitled to exercise a right of election as to the kind or amount of securities, cash or other assets receivable upon such consolidation or merger, then the kind and amount of securities, cash or other assets constituting the Alternative Issuance for which each Warrant shall become exercisable shall be deemed to be the weighted average of the kind and amount received per share by the holders of the Common Stock in such consolidation or merger that affirmatively make such election, and (ii) if a tender, exchange or redemption offer shall have been made to and accepted by the holders of the Common Stock (other than a tender, exchange or redemption offer made by the Company in connection with redemption rights held by stockholders of the Company as provided for in the Company’s amended and restated certificate of incorporation or as a result of the repurchase of shares of Common Stock by the Company if a proposed initial Business Combination is presented to the stockholders of the Company for approval) under circumstances in which, upon completion of such tender or exchange offer, the maker thereof, together with members of any group (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) of which such maker is a part, and together with any affiliate or associate of such maker (within the meaning of Rule 12b-2 under the Exchange Act) and any members of any such group of which any such affiliate or associate is a part, own beneficially (within the meaning of Rule 13d-3 under the Exchange Act) more than 50% of the outstanding shares of Common Stock, the holder of a Warrant shall be entitled to receive as the Alternative Issuance, the highest amount of cash, securities or other property to which such holder would actually have been entitled as a stockholder if such Warrant holder had exercised the Warrant prior to the expiration of such tender or exchange offer, accepted such offer and all of the Common Stock held by such holder had been purchased pursuant to such tender or exchange offer, subject to adjustments (from and after the consummation of such tender or exchange offer) as nearly equivalent as possible to the adjustments provided for in this Section 4; provided, further, that if less than 70% of the consideration receivable by the holders of the Common Stock in the applicable event is payable in the form of common stock in the successor entity that is listed for trading on a national securities exchange or is quoted in an established over-the-counter market, or is to be so listed for trading or quoted immediately following such event, and if the Registered Holder properly exercises the Warrant within thirty (30) days following the public disclosure of the

 

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consummation of such applicable event by the Company pursuant to a Current Report on Form 8-K filed with the SEC, the Warrant Price shall be reduced by an amount (in dollars) equal to the difference (but in no event less than zero) of (i) the Warrant Price in effect prior to such reduction minus (ii) (A) the Per Share Consideration (as defined below) minus (B) the Black- Scholes Warrant Value (as defined below). The “Black-Scholes Warrant Value” means the value of a Warrant immediately prior to the consummation of the applicable event based on the Black- Scholes Warrant Model for a Capped American Call on Bloomberg Financial Markets (“Bloomberg”). For purposes of calculating such amount, (1) Section 6 of this Agreement shall be taken into account, (2) the price of each share of Common Stock shall be the volume weighted average price of the Common Stock as reported during the ten (10) trading day period ending on the trading day prior to the effective date of the applicable event, (3) the assumed volatility shall be the 90 day volatility obtained from the HVT function on Bloomberg determined as of the trading day immediately prior to the day of the announcement of the applicable event , and (4) the assumed risk-free interest rate shall correspond to the U.S. Treasury rate for a period equal to the remaining term of the Warrant. “Per Share Consideration” means (i) if the consideration paid to holders of the Common Stock consists exclusively of cash, the amount of such cash per share of Common Stock, and (ii) in all other cases, the amount of cash per share of Common Stock, if any, plus the volume weighted average price of the Common Stock as reported during the ten (10) trading day period ending on the trading day prior to the effective date of the applicable event. If any reclassification also results in a change in the Common Stock covered by Section 4.1, 4.2 or 4.3, then such adjustment shall be made pursuant to Sections 4.1, 4.2, 4.3, 4.4 and this Section 4.5. The provisions of this Section 4.5 shall similarly apply to successive reclassifications, reorganizations, mergers or consolidations, sales or other transfers.

 

4.6.                             Notices of Changes in Warrant . Upon every adjustment of the Warrant Price or the number of shares issuable upon exercise of a Warrant, the Company shall give written notice thereof to the Warrant Agent, which notice shall state the Warrant Price resulting from such adjustment and the increase or decrease, if any, in the number of shares purchasable at such price upon the exercise of a Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Upon the occurrence of any event specified in Sections 4.1, 4.2, 4.3, 4.4 or 4.5, then, in any such event, the Company shall give written notice to each Warrant holder, at the last address set forth for such holder in the Warrant Register, of the record date or the effective date of the event. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such event.

 

4.7.                             No Fractional Warrants or Shares . No fractional Warrants will be issued hereunder. Additionally, notwithstanding any provision contained in this Warrant Agreement to the contrary, the Company shall not issue fractional shares upon exercise of Warrants. If, by reason of any adjustment made pursuant to this Section 4, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company shall, upon such exercise, round down to the nearest whole number of shares of Common Stock to be issued to the Warrant holder.

 

4.8.                             Form of Warrant . The form of Warrant need not be changed because of any adjustment pursuant to this Section 4, and Warrants issued after such adjustment may state the same Warrant Price and the same number of shares as is stated in the Warrants initially issued pursuant to this Agreement. However, the Company may at any time in its sole discretion make

 

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any change in the form of Warrant that the Company may deem appropriate and that does not affect the substance thereof, and any Warrant thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant or otherwise, may be in the form as so changed.

 

4.9.                             Other Events . In case any event shall occur affecting the Company as to which none of the provisions of preceding subsections of this Section 4 are strictly applicable, but which would require an adjustment to the terms of the Warrants in order to (i) avoid an adverse impact on the Warrants and (ii) effectuate the intent and purpose of this Section 4, then, in each such case, the Company shall appoint a firm of independent public accountants, investment banking or other appraisal firm of recognized national standing, which shall give its opinion as to whether or not any adjustment to the rights represented by the Warrants is necessary to effectuate the intent and purpose of this Section 4 and, if they determine that an adjustment is necessary, the terms of such adjustment; provided, however, that under no circumstances shall the Warrants be adjusted pursuant to this Section 4 as a result of any issuance of securities in connection with the Business Combination. The Company shall adjust the terms of the Warrants in a manner that is consistent with any adjustment recommended in such opinion.

 

5.                                       Transfer and Exchange of Warrants .

 

5.1.                             Registration of Transfer . The Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant upon the Warrant Register, upon surrender of such Warrant for transfer, properly endorsed with signatures properly guaranteed and accompanied by appropriate instructions for transfer. Upon any such transfer, a new Warrant representing an equal aggregate number of Warrants shall be issued and the old Warrant shall be cancelled by the Warrant Agent. The Warrants so cancelled shall be delivered by the Warrant Agent to the Company from time to time upon request.

 

5.2.                             Procedure for Surrender of Warrants . Warrants may be surrendered to the Warrant Agent, together with a written request for exchange or transfer, and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrants as requested by the registered holder of the Warrants so surrendered, representing an equal aggregate number of Warrants; provided, however, that in the event that a Warrant surrendered for transfer bears a restrictive legend, the Warrant Agent shall not cancel such Warrant and issue new Warrants in exchange therefor until the Warrant Agent has received an opinion of counsel for the Company stating that such transfer may be made and indicating whether the new Warrants must also bear a restrictive legend.

 

5.3.                             Fractional Warrants . The Warrant Agent shall not be required to effect any registration of transfer or exchange which will result in the issuance of a warrant certificate or book-entry position for a fraction of a warrant.

 

5.4.                             Service Charges . No service charge shall be made for any exchange or registration of transfer of Warrants.

 

5.5.                             Warrant Execution and Countersignature . The Warrant Agent is hereby authorized to countersign and to deliver, in accordance with the terms of this Agreement, the Warrants required to be issued pursuant to the provisions of this Section 5, and the Company,

 

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whenever required by the Warrant Agent, will supply the Warrant Agent with Warrants duly executed on behalf of the Company for such purpose.

 

5.6.                             Private Placement Warrants . The Warrant Agent shall not register any transfer of Private Placement Warrants until the 31st day after the consummation by the Company of an initial Business Combination, except for transfers (a) to the Company’s officers or directors, any affiliates or family members of any of the Company’s officers or directors, any members or partners of the Sponsor, or any affiliates of the Sponsor or any of its members or partners, or CF & Co.’s officers, directors and direct and indirect equityholders; (b) in the case of an individual, by gift to a member of one of the members of the individual’s immediate family or to a trust, the beneficiary of which is a member of one of the individual’s immediate family, an affiliate of such person or to a charitable organization; (c) in the case of an individual, by virtue of laws of descent and distribution upon death of the individual; (d) in the case of an individual, pursuant to a qualified domestic relations order; (e) by private sales or transfers made in connection with the consummation of a Business Combination at prices no greater than the price at which the Private Placement Warrants were originally purchased; (f) in the event of a Company liquidation prior to a completion of a Business Combination; (g) to the Company for no value for cancellation; or (h) by virtue of the laws of Delaware or either of the Sponsors’ operating agreements; provided, however, that in the case of clauses (a) through (e) these permitted transferees must enter into a written agreement agreeing to be bound by these transfer restrictions.

 

6.                                       Redemption .

 

6.1.                             Redemption . Subject to Section 6.4 hereof, not less than all of the outstanding Public Warrants may be redeemed, at the option of the Company, at any time while they are exercisable and prior to their expiration (so long as there is a current registration statement in effect with respect to the shares of Common Stock underlying the Warrants), at the office of the Warrant Agent, upon the notice referred to in Section 6.2, at the price of $0.01 per Warrant (“Redemption Price”), provided that the last sales price of the Common Stock equals or exceeds $24.00 per share (subject to adjustment in accordance with Section 4 hereof), on each of twenty (20) trading days within any thirty (30) trading day period (“30-Day Trading Period”) ending on the third business day prior to the date on which notice of redemption is given and provided further that there is a current registration statement in effect with respect to the Common Stock underlying the Public Warrants commencing five business days prior to the 30-Day Trading Period and continuing each day thereafter until the Redemption Date (defined below); provided, however, in the event there was no actual trading of the Common Stock for any day within such 30-Day Trading Period, then the closing bid price on such day must exceed $24.00 per share to count.

 

6.2.                             Date Fixed for, and Notice of, Redemption . In the event the Company shall elect to redeem all of the Public Warrants, the Company shall fix a date for the redemption (the “Redemption Date”). Notice of redemption shall be mailed by first class mail, postage prepaid, by the Company not less than 30 days prior to the Redemption Date to the registered holders of the Warrants to be redeemed at their last addresses as they shall appear on the registration books. Any notice mailed in the manner herein provided shall be conclusively presumed to have been duly given whether or not the registered holder received such notice.

 

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6.3.                             Exercise After Notice of Redemption . The Public Warrants may be exercised, for cash (or on a “cashless basis” in accordance with Section 3 of this Agreement) at any time after notice of redemption shall have been given by the Company pursuant to Section 6.2 hereof and prior to the Redemption Date. In the event the Company determines to require all holders of Public Warrants to exercise their Warrants on a “cashless basis” pursuant to Section 3.3.1(b), the notice of redemption will contain the information necessary to calculate the number of shares of Common Stock to be received upon exercise of the Warrants, including the “Fair Market Value” in such case. On and after the Redemption Date, the record holder of the Warrants shall have no further rights except to receive, upon surrender of the Warrants, the Redemption Price.

 

6.4.                             Exclusion of Private Placement Warrants . The Company agrees that the redemption rights provided in this Section 6 shall not apply to the Private Placement Warrants if at the time of the redemption such Private Placement Warrants continue to be held by the Sponsor, CF & Co. or their permitted transferees. However, once such Private Placement Warrants are transferred (other than to permitted transferees under Section 5.6), the Company may redeem the Private Placement Warrants in the same manner as the Public Warrants.

 

7.                                       Other Provisions Relating to Rights of Holders of Warrants .

 

7.1.                             No Rights as Stockholder . A Warrant does not entitle the registered holder thereof to any of the rights of a stockholder of the Company, including, without limitation, the right to receive dividends, or other distributions, exercise any preemptive rights to vote or to consent or to receive notice as stockholders in respect of the meetings of stockholders or the election of directors of the Company or any other matter.

 

7.2.                             Lost, Stolen, Mutilated, or Destroyed Warrants . If any Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination, tenor, and date as the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall constitute a substitute contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable by anyone.

 

7.3.                             Reservation of Shares of Common Stock . The Company shall at all times reserve and keep available a number of its authorized but unissued shares of Common Stock that will be sufficient to permit the exercise in full of all outstanding Warrants issued pursuant to this Agreement.

 

7.4.                             Registration of Shares of Common Stock . The Company agrees that as soon as practicable after the closing of its initial Business Combination but in no event later than 30 days after the closing, it shall use its best efforts to file with the Securities and Exchange Commission a registration statement for the registration, under the Act, of the shares of Common Stock issuable upon exercise of the Warrants, and it shall use its best efforts to take such action as is necessary to register or qualify for sale, in those states in which the Warrants were initially offered by the Company, the shares of Common Stock issuable upon exercise of the Warrants, to the extent an exemption is not available. The Company will use its best efforts to cause the same to become effective and to maintain the effectiveness of such registration statement until the

 

13



 

expiration of the Warrants in accordance with the provisions of this Agreement. In addition, the Company agrees to use its best efforts to register such securities under the blue sky laws of the states of residence of the exercising warrant holders (in those states in which the Warrants were initially offered by the Company) to the extent an exemption is not available. If any such registration statement has not been declared effective by the 90th day following the closing of the Business Combination, holders of the Warrants shall have the right, during the period beginning on the 91st day after the closing of the Business Combination and ending upon such registration statement being declared effective by the Securities and Exchange Commission, and during any other period when the Company shall fail to have maintained an effective registration statement covering the shares of Common Stock issuable upon exercise of the Warrants, to exercise such Warrants on a “cashless basis” as determined in accordance with Section 3.3.1(d). The Company shall provide the Warrant Agent with an opinion of counsel for the Company (which shall be an outside law firm with securities law experience) stating that (i) the exercise of the Warrants on a cashless basis in accordance with this Section 7.4 is not required to be registered under the Act and (ii) the shares of Common Stock issued upon such exercise will be freely tradable under U.S. federal securities laws by anyone who is not an affiliate (as such term is defined in Rule 144 under the Act) of the Company and, accordingly, will not be required to bear a restrictive legend. For the avoidance of any doubt, unless and until all of the Warrants have been exercised on a cashless basis, the Company shall continue to be obligated to comply with its registration obligations under the first three sentences of this Section 7.4. The provisions of this Section 7.4 may not be modified, amended or deleted without the prior written consent of CF & Co. Notwithstanding anything herein to the contrary, any Additional Warrants shall not be entitled to the rights set forth in this Section 7.4 and any rights to registration of the shares of Common Stock upon exercise of Additional Warrants shall be set forth in a separate agreement between the holders of such Additional Warrants and the Company.

 

8.                                       Concerning the Warrant Agent and Other Matters .

 

8.1.                             Payment of Taxes . The Company will from time to time promptly pay all taxes and charges that may be imposed upon the Company or the Warrant Agent in respect of the issuance or delivery of shares of Common Stock upon the exercise of Warrants, but the Company shall not be obligated to pay any transfer taxes in respect of the Warrants or such shares.

 

8.2.                             Resignation, Consolidation, or Merger of Warrant Agent .

 

8.2.1.                   Appointment of Successor Warrant Agent . The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder after giving sixty (60) days’ notice in writing to the Company. If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation or incapacity by the Warrant Agent or by the holder of the Warrant (who shall, with such notice, submit his Warrant for inspection by the Company), then the holder of any Warrant may apply to the Supreme Court of the State of New York for the County of New York for the appointment of a successor Warrant Agent at the Company’s cost. Any successor Warrant Agent, whether appointed by the Company or by such court, shall be a

 

14



 

corporation organized and existing under the laws of the State of New York, in good standing and having its principal office in the Borough of Manhattan, City and State of New York, and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent all the authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent the Company shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties, and obligations.

 

8.2.2.                   Notice of Successor Warrant Agent . In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof to the predecessor Warrant Agent and the transfer agent for the shares of Common Stock not later than the effective date of any such appointment.

 

8.2.3.                   Merger or Consolidation of Warrant Agent . Any corporation into which the Warrant Agent may be merged or with which it may be consolidated or any corporation resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor Warrant Agent under this Agreement without any further act.

 

8.3.                      Fees and Expenses of Warrant Agent .

 

8.3.1.                   Remuneration . The Company agrees to pay the Warrant Agent reasonable remuneration for its services as such Warrant Agent hereunder and will reimburse the Warrant Agent upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of its duties hereunder.

 

8.3.2.                   Further Assurances . The Company agrees to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged, and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.

 

8.4.                      Liability of Warrant Agent .

 

8.4.1.                   Reliance on Company Statement . Whenever in the performance of its duties under this Warrant Agreement, the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement signed by the Chief Executive Officer or Chairman of the Board of Directors of the Company and delivered to the Warrant Agent. The Warrant Agent may rely upon such statement for any action taken or suffered in good faith by it pursuant to the provisions of this Agreement.

 

15



 

8.4.2.                   Indemnity . The Warrant Agent shall be liable hereunder only for its own gross negligence, willful misconduct or bad faith. The Company agrees to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, costs and reasonable counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement except as a result of the Warrant Agent’s gross negligence, willful misconduct, or bad faith.

 

8.4.3.                   Exclusions . The Warrant Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or execution of any Warrant (except its countersignature thereof); nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Warrant; nor shall it be responsible to make any adjustments required under the provisions of Section 4 hereof or responsible for the manner, method, or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any shares of Common Stock to be issued pursuant to this Agreement or any Warrant or as to whether any shares of Common Stock will, when issued, be valid and fully paid and nonassessable.

 

8.5.                             Acceptance of Agency . The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth and among other things, shall account promptly to the Company with respect to Warrants exercised and concurrently account for, and pay to the Company, all monies received by the Warrant Agent for the purchase of shares of Common Stock through the exercise of Warrants.

 

9.                                       Miscellaneous Provisions .

 

9.1.                             Successors . All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns.

 

9.2.                             Notices . Any notice, statement or demand authorized by this Warrant Agreement to be given or made by the Warrant Agent or by the holder of any Warrant to or on the Company shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Company with the Warrant Agent), as follows:

 

Infrastructure and Energy Alternatives, Inc.
2647 Waterfront Parkway East Drive, Suite 100
Indianapolis, Indiana 46214
Attn: Chief Financial Officer

 

Any notice, statement or demand authorized by this Agreement to be given or made by the holder of any Warrant or by the Company to or on the Warrant Agent shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier

 

16



 

service within five days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Warrant Agent with the Company), as follows:

 

Continental Stock Transfer & Trust Company
17 Battery Place
New York, New York 10004
Attn: Compliance Department

 

9.3.                             Applicable Law . The validity, interpretation, and performance of this Agreement and of the Warrants shall be governed in all respects by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The Company hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Any such process or summons to be served upon the Company may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in Section 9.2 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding or claim.

 

9.4.                             Persons Having Rights under this Agreement . Nothing in this Agreement expressed and nothing that may be implied from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the parties hereto and the registered holders of the Warrants and, for purposes of Sections 2.5, 6.4, 7.4, 9.4 and 9.8 hereof, CF & Co., any right, remedy, or claim under or by reason of this Warrant Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. CF & Co. shall be deemed to be a third party beneficiary of this Agreement with respect to Sections 2.5, 6.4, 7.4, 9.4 and 9.8 hereof. All covenants, conditions, stipulations, promises, and agreements contained in this Warrant Agreement shall be for the sole and exclusive benefit of the parties hereto (and CF & Co. with respect to Sections 2.5, 6.4, 7.4, 9.4 and 9.8 hereof) and their successors and assigns and of the registered holders of the Warrants.

 

9.5.                             Examination of the Warrant Agreement . A copy of this Agreement shall be available at all reasonable times at the office of the Warrant Agent in the Borough of Manhattan, City and State of New York, for inspection by the registered holder of any Warrant. The Warrant Agent may require any such holder to submit his Warrant for inspection by it.

 

9.6.                             Counterparts . This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.

 

9.7.                             Effect of Headings . The Section headings herein are for convenience only and are not part of this Warrant Agreement and shall not affect the interpretation thereof.

 

17



 

9.8.                                    Amendments . This Agreement may be amended by the parties hereto without the consent of any registered holder for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein or adding or changing any other provisions with respect to matters or questions arising under this Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the interest of the registered holders. All other modifications or amendments, including any amendment to increase the Warrant Price or shorten the Exercise Period, shall require the written consent or vote of the registered holders of at least 65% of the then outstanding Public Warrants. Notwithstanding the foregoing, the Company may lower the Warrant Price or extend the duration of the Exercise Period pursuant to Sections 3.1 and 3.2, respectively, without the consent of the registered holders. The provisions of this Section 9.8 may not be modified, amended or deleted without the prior written consent of CF & Co.

 

9.9.                                    Trust Account Waiver . The Warrant Agent acknowledges and agrees that it shall not make any claims or proceed against the trust account established by the Company in connection with the Public Offering (as more fully described in the Registration Statement) (“Trust Account”), including by way of set-off, and shall not be entitled to any funds in the Trust Account under any circumstance. In the event that the Warrant Agent has a claim against the Company under this Agreement, the Warrant Agent will pursue such claim solely against the Company and not against the property held in the Trust Account.

 

9.10.                             Severability . This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Warrant Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.

 

IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day and year first above written.

 

18



 

 

INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC.

 

 

 

 

By:

/s/ John P. Roehm

 

 

Name: John P. Roehm

 

 

Title: President

 

 

 

 

 

CONTINENTAL STOCK TRANSFER & TRUST COMPANY

 

 

 

 

By:

/s/ Henry Farrell

 

 

Name: Henry Farrell

 

 

Title: Vice President

 

[Signature Page to Amended and Restated Warrant Agreement]

 



 

EXHIBIT A

 

[Form of Warrant Certificate]

 

[FACE]

 

Number

 

Warrants

 

THIS WARRANT SHALL BE VOID IF NOT EXERCISED PRIOR TO THE EXPIRATION OF THE EXERCISE PERIOD PROVIDED FOR IN THE WARRANT AGREEMENT DESCRIBED BELOW

 

INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC.

(F/K/A M III ACQUISITION CORP.)

Incorporated Under the Laws of the State of Delaware

 

CUSIP 45686J 112

 

Warrant Certificate

 

This Warrant Certificate certifies that                                             , or registered assigns, is the registered holder of        warrant(s) evidenced hereby (the “Warrants” and each, a “Warrant”) to purchase shares of common stock, par value $0.0001 per share (the “Common Stock”), of Infrastructure and Energy Alternatives, Inc. (f/k/a M III Acquisition Corp.), a Delaware corporation (the “Company”). Each Warrant entitles the holder, upon exercise during the period set forth in the Warrant Agreement referred to below, to receive from the Company that number of fully paid and nonassessable shares of Common Stock as set forth below, at the exercise price (the “Exercise Price”) as determined pursuant to the Warrant Agreement, payable in lawful money (or through “cashless exercise” as provided for in the Warrant Agreement) of the United States of America upon surrender of this Warrant Certificate and payment of the Exercise Price at the office or agency of the Warrant Agent referred to below, subject to the conditions set forth herein and in the Warrant Agreement. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.

 

Each Warrant is initially exercisable for one half of one fully paid and non-assessable share of Common Stock. The number of the shares of Common Stock issuable upon exercise of the Warrants is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.

 

The initial Exercise Price per half share of Common Stock for any Warrant is equal to $5.75 per half share; provided, however, that a Warrant may not be exercised for a fractional share, so that only an even number of Warrants may be exercised at a given time. The Exercise Price is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.

 

A- 1



 

Subject to the conditions set forth in the Warrant Agreement, the Warrants may be exercised only during the Exercise Period and to the extent not exercised by the end of such Exercise Period, such Warrants shall become void.

 

Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place.

 

This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement.

 

This Warrant Certificate shall be governed by and construed in accordance with the internal laws of the State of New York, without regard to conflicts of laws principles thereof.

 

 

INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC.

 

 

 

 

By:

/s/ John P. Roehm

 

Name:

John P. Roehm

 

Title:

President

 

 

 

CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Warrant Agent

 

 

 

 

By:

/s/ Henry Farrell

 

Name:

Henry Farrell

 

Title:

Vice President

 

A- 2



 

[Form of Warrant Certificate]

 

[Reverse]

 

The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants entitling the holder on exercise to receive shares of Common Stock and are issued or to be issued pursuant to an Amended and Restated Warrant Agreement dated as of March 26, 2018 (the “Warrant Agreement”), duly executed and delivered by the Company to Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the “Warrant Agent”), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words “holders” or “holder” meaning the Registered Holders or Registered Holder) of the Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.

 

Warrants may be exercised at any time during the Exercise Period set forth in the Warrant Agreement. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering this Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Exercise Price as specified in the Warrant Agreement (or through “cashless exercise” as provided for in the Warrant Agreement) at the principal corporate trust office of the Warrant Agent. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or his, her or its assignee, a new Warrant Certificate evidencing the number of Warrants not exercised.

 

Notwithstanding anything else in this Warrant Certificate or the Warrant Agreement, no Warrant may be exercised, except through “cashless exercise” as provided for in the Warrant Agreement, unless at the time of exercise (i) a registration statement covering the shares of Common Stock to be issued upon exercise is effective under the Securities Act, (ii) a prospectus thereunder relating to the shares of Common Stock is current, or (iii) in the case of any Additional Warrants, if, in the Company’s sole determination, an exemption from the registration requirements under the Securities Act of 1933, as amended, is available with respect thereto.

 

The Warrant Agreement provides that upon the occurrence of certain events the number of shares of Common Stock issuable upon exercise of the Warrants set forth on the face hereof may, subject to certain conditions, be adjusted. If, upon exercise of a Warrant, the holder thereof would be entitled to receive a fractional interest in a share of Common Stock, the Company shall, upon exercise, round down to the nearest whole number of shares of Common Stock to be issued to the holder of the Warrant.

 

Warrant Certificates, when surrendered at the principal corporate trust office of the Warrant Agent by the Registered Holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another

 

A- 3



 

Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants.

 

Upon due presentation for registration of transfer of this Warrant Certificate at the office of the Warrant Agent, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith.

 

The Company and the Warrant Agent may deem and treat the Registered Holder(s) hereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone) for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate entitles any holder hereof to any rights of a stockholder of the Company.

 

Election to Purchase

 

(To Be Executed Upon Exercise of Warrant)

 

The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to receive shares of Common Stock and herewith tenders payment for such shares to the order of Infrastructure and Energy Alternatives, Inc. (the “Company”) in the amount of $[    ] in accordance with the terms hereof. The undersigned requests that a certificate for such shares be registered in the name of [                       ], whose address is [                                      ] and that such shares be delivered to whose address is [                            ]. If said number of shares is less than all of the shares of Common Stock purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares be registered in the name of [                            ], whose address is [                                       ], and that such Warrant Certificate be delivered to [                             ], whose address is [                                        ].

 

In the event that the Warrant has been called for redemption by the Company pursuant to Section 6 of the Warrant Agreement and the Company has required cashless exercise pursuant to Section 6.3 of the Warrant Agreement, the number of shares that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(b) and Section 6.3 of the Warrant Agreement.

 

In the event that the Warrant is a Private Placement Warrant that is to be exercised on a “cashless” basis pursuant to subsection 3.3.1(c) of the Warrant Agreement, the number of shares that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(c) of the Warrant Agreement.

 

In the event that the Warrant is to be exercised on a “cashless” basis pursuant to Section 3.3.1 of the Warrant Agreement, the number of shares that this Warrant is exercisable for shall be determined in accordance with Section 3.3.1 of the Warrant Agreement.

 

A- 4



 

In the event that the Warrant may be exercised, to the extent allowed by the Warrant Agreement, through cashless exercise (i) the number of shares that this Warrant is exercisable for would be determined in accordance with the relevant section of the Warrant Agreement which allows for such cashless exercise and (ii) the holder hereof shall complete the following: The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, through the cashless exercise provisions of the Warrant Agreement, to receive shares of Common Stock. If said number of shares is less than all of the shares of Common Stock purchasable hereunder (after giving effect to the cashless exercise), the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares be registered in the name of [                                      ], whose address is [                                      ], and that such Warrant Certificate be delivered to [                                      ], whose address is [                                                              ].

 

[Signature Page Follows]

 

A- 5



 

Date:                                   , 20

 

(Signature)

 

 

 

 

 

(Address)

 

 

 

 

 

(Tax Identification Number)

 

 

 

Signature Guaranteed:

 

 

 

 

 

 

 

 

 

 

 

 

 

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

 

A- 6


Exhibit 10.1

 

Published CUSIP Numbers:

Deal: 44949EAA9

Revolver: 44949EAB7

Term Loan: 44949EAC5

 

CREDIT AGREEMENT

 

Dated as of March 26, 2018

 

among

 

WIND MERGER SUB I, INC.,

as the Initial Borrower,

 

IEA ENERGY SERVICES LLC,

as the Borrower after giving effect to the Closing Date Merger,

 

THE GUARANTORS PARTY HERETO,

 

BANK OF AMERICA, N.A.,

as Administrative Agent, Swingline Lender and L/C Issuer,

 

and

 

THE OTHER LENDERS PARTY HERETO

 

Arranged By:

 

BANK OF AMERICA MERRILL LYNCH and

CADENCE BANK, N.A.,

as Joint Lead Arrangers and Joint Bookrunners

 



 

TABLE OF CONTENTS

 

ARTICLE I DEFINITIONS AND ACCOUNTING TERMS

1

 

 

 

1.01

Defined Terms

1

1.02

Other Interpretive Provisions

32

1.03

Accounting Terms

33

1.04

Rounding

34

1.05

Times of Day; Rates

34

1.06

Letter of Credit Amounts

34

1.07

Limited Condition Acquisitions

34

 

 

 

ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS

36

 

 

2.01

Revolving Loans and Term Loan

36

2.02

Borrowings, Conversions and Continuations of Loans

37

2.03

Letters of Credit

38

2.04

Swingline Loans

47

2.05

Prepayments

49

2.06

Termination or Reduction of Aggregate Revolving Commitments

52

2.07

Repayment of Loans

53

2.08

Interest

53

2.09

Fees

54

2.10

Computation of Interest and Fees

55

2.11

Evidence of Debt

55

2.12

Payments Generally; Administrative Agent’s Clawback

56

2.13

Sharing of Payments by Lenders

57

2.14

Cash Collateral

58

2.15

Defaulting Lenders

59

2.16

Incremental Facility Loans

61

 

 

 

ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY

63

 

 

3.01

Taxes

63

3.02

Illegality

68

3.03

Inability to Determine Rates

68

3.04

Increased Costs; Reserves on Eurodollar Rate Loans

69

3.05

Compensation for Losses

70

3.06

Mitigation Obligations; Replacement of Lenders

71

3.07

Successor LIBOR

71

3.08

Survival

72

 

 

 

ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

73

 

 

4.01

Conditions of Initial Credit Extension

73

4.02

Conditions to all Credit Extensions

76

 

 

 

ARTICLE V REPRESENTATIONS AND WARRANTIES

76

 

 

5.01

Existence, Qualification and Power

76

5.02

Authorization; No Contravention

77

5.03

Governmental Authorization; Other Consents

77

5.04

Binding Effect

77

5.05

Financial Statements; No Material Adverse Effect

77

5.06

Litigation

78

 

i



 

5.07

No Default

78

5.08

Ownership of Property

78

5.09

Environmental Compliance

78

5.10

Insurance

79

5.11

Taxes

79

5.12

ERISA Compliance

79

5.13

Subsidiaries

80

5.14

Margin Regulations; Investment Company Act

80

5.15

Disclosure

81

5.16

Compliance with Laws

81

5.17

Intellectual Property; Licenses, Etc.

81

5.18

Solvency

82

5.19

Perfection of Security Interests in the Collateral

82

5.20

Business Locations; Taxpayer Identification Number

82

5.21

OFAC

82

5.22

Anti-Corruption Laws

82

5.23

Use of Proceeds

82

5.24

No EEA Financial Institution

82

 

 

 

ARTICLE VI AFFIRMATIVE COVENANTS

83

 

 

6.01

Financial Statements

83

6.02

Certificates; Other Information

84

6.03

Notices

85

6.04

Payment of Taxes

86

6.05

Preservation of Existence, Etc.

86

6.06

Maintenance of Properties

86

6.07

Maintenance of Insurance

86

6.08

Compliance with Laws

87

6.09

Books and Records

87

6.10

Inspection Rights

87

6.11

Use of Proceeds

88

6.12

ERISA Compliance

88

6.13

Additional Guarantors

88

6.14

Pledged Assets

88

6.15

Anti-Corruption Laws

89

 

 

 

ARTICLE VII NEGATIVE COVENANTS

89

 

 

7.01

Liens

89

7.02

Investments

91

7.03

Indebtedness

91

7.04

Fundamental Changes

92

7.05

Dispositions

93

7.06

Restricted Payments

93

7.07

Change in Nature of Business

94

7.08

Transactions with Affiliates

94

7.09

Burdensome Agreements

94

7.10

Use of Proceeds

94

7.11

Financial Covenants

95

7.12

Restrictions on Payment of Earn-Out Obligations

95

7.13

Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of Entity

95

 

ii



 

7.14

Ownership of Subsidiaries

95

7.15

Sale Leasebacks

95

7.16

Capital Expenditures

95

7.17

Restrictions on Holdings

96

7.18

Sanctions

96

7.19

Anti-Corruption Laws

96

 

 

 

ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES

96

 

 

8.01

Events of Default

96

8.02

Remedies Upon Event of Default

98

8.03

Application of Funds

99

8.04

Right to Cure Financial Covenant Defaults

100

 

 

 

ARTICLE IX ADMINISTRATIVE AGENT

101

 

 

9.01

Appointment and Authority

101

9.02

Rights as a Lender

101

9.03

Exculpatory Provisions

101

9.04

Reliance by Administrative Agent

102

9.05

Delegation of Duties

103

9.06

Resignation of Administrative Agent

103

9.07

Non-Reliance on Administrative Agent and Other Lenders

104

9.08

No Other Duties; Etc.

105

9.09

Administrative Agent May File Proofs of Claim; Credit Bidding

105

9.10

Collateral and Guaranty Matters

106

9.11

Secured Cash Management Agreements and Secured Hedge Agreements

107

9.12

ERISA Matters

107

 

 

 

ARTICLE X GUARANTY

109

 

 

10.01

The Guaranty

109

10.02

Obligations Unconditional

109

10.03

Reinstatement

110

10.04

Certain Additional Waivers

110

10.05

Remedies

110

10.06

Rights of Contribution

111

10.07

Guarantee of Payment; Continuing Guarantee

111

10.08

Keepwell

112

 

 

 

ARTICLE XI MISCELLANEOUS

112

 

 

11.01

Amendments, Etc.

112

11.02

Notices; Effectiveness; Electronic Communications

114

11.03

No Waiver; Cumulative Remedies; Enforcement

116

11.04

Expenses; Indemnity; Damage Waiver

117

11.05

Payments Set Aside

119

11.06

Successors and Assigns

119

11.07

Treatment of Certain Information; Confidentiality

123

11.08

Rights of Setoff

124

11.09

Interest Rate Limitation

125

11.10

Counterparts; Integration; Effectiveness

125

11.11

Survival of Representations and Warranties

125

11.12

Severability

126

11.13

Replacement of Lenders

126

 

iii



 

11.14

Governing Law; Jurisdiction; Etc.

127

11.15

Waiver of Jury Trial

128

11.16

No Advisory or Fiduciary Responsibility

128

11.17

Electronic Execution of Assignments and Certain Other Documents

128

11.18

USA PATRIOT Act Notice

129

11.19

Subordination of Intercompany Indebtedness

129

11.20

Acknowledgement and Consent to Bail-In of EEA Financial Institutions

129

11.21

Assumption and Acknowledgment

130

11.22

ENTIRE AGREEMENT

130

 

iv



 

SCHEDULES

 

 

2.01

Commitments and Applicable Percentages

5.13

Subsidiaries

5.17

IP Rights

5.20(a)

Locations of Real Property

5.20(b)

Location of Chief Executive Office, Taxpayer Identification Number, Etc.

5.20(c)

Changes in Legal Name, State of Formation and Structure

7.01

Liens Existing on the Closing Date

7.02

Investments Existing on the Closing Date

7.03-1

Indebtedness Existing on the Closing Date

7.03-2

Purchase Money Indebtedness Existing on the Closing Date

7.03-3

Backstopped Letters of Credit

11.02

Certain Addresses for Notices

 

 

EXHIBITS

 

 

1.01

Form of Secured Party Designation Notice

2.02

Form of Loan Notice

2.04

Form of Swingline Loan Notice

2.05

Form of Notice of Loan Prepayment

2.11

Form of Note

3.01

Forms of U.S. Tax Compliance Certificates

6.02

Form of Compliance Certificate

6.13

Form of Joinder Agreement

11.06(b)

Form of Assignment and Assumption

11.06(b)(iv)

Form of Administrative Questionnaire

 

v



 

CREDIT AGREEMENT

 

This CREDIT AGREEMENT is entered into as of March 26, 2018 among WIND MERGER SUB I, INC., a Delaware corporation (prior to consummation of the Closing Date Merger, the “ Initial Borrower ”), IEA ENERGY SERVICES LLC, a Delaware limited liability company (f/k/a WIND MERGER SUB II, LLC; after giving effect to the Closing Date Merger, the “ Borrower ”), IEA INTERMEDIATE HOLDCO, LLC, a Delaware limited liability company (“ Holdings ”), the other Guarantors, the Lenders and BANK OF AMERICA, N.A., as Administrative Agent, Swingline Lender and L/C Issuer.

 

The Borrower has requested that the Lenders provide credit facilities for the purposes set forth herein, and the Lenders are willing to do so on the terms and conditions set forth herein.

 

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

 

ARTICLE I

 

DEFINITIONS AND ACCOUNTING TERMS

 

1.01         Defined Terms.

 

As used in this Agreement, the following terms shall have the meanings set forth below:

 

Acquisition ”, by any Person, means the acquisition by such Person, in a single transaction or in a series of related transactions, of either (a) all or any substantial portion of the property of, or a line of business, division of or other business unit of, another Person or (b) at least a majority of the Voting Stock of another Person, in each case whether or not involving a merger or consolidation with such other Person.

 

Administrative Agent ” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

 

Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02 or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.

 

Administrative Questionnaire ” means an Administrative Questionnaire in substantially the form of Exhibit 11.06(b)(iv)  or any other form approved by the Administrative Agent.

 

Affiliate ” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

 

Affiliate Real Property Lease ” means that certain Amended and Restated Lease Agreement, dated October 20, 2017, between Clinton RE Holdings (Delaware), LLC and White Construction, Inc.

 

Agent Fee Letter ” the letter agreement, dated as of November 3, among IEA, Bank of America and MLPFS.

 

Aggregate Revolving Commitments ” means the Revolving Commitments of all the Lenders.  The initial amount of the Aggregate Revolving Commitments in effect on the Closing Date is $50,000,000.

 



 

Agreement ” means this Credit Agreement.

 

All-In Yield ” means, as to any Indebtedness, the yield thereof, whether in the form of interest rate, margin, original issue discount, upfront fees, a Eurodollar Rate or Base Rate floor or otherwise, in each case, incurred or payable by Holdings or any of its Subsidiaries generally to all lenders of such Indebtedness; provided that original issue discount and upfront fees shall be equated to interest rate assuming a 4-year life to maturity (or, if less, the stated life to maturity at the time of incurrence of the applicable Indebtedness); and provided, further, that “All-In Yield” shall not include arrangement, structuring, commitment, underwriting or other similar fees (regardless of whether paid in whole or in part to any lenders) not paid generally to all lenders of such Indebtedness.

 

Applicable Percentage ” means with respect to any Lender at any time, (a) with respect to such Lender’s Revolving Commitment at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Revolving Commitments represented by such Lender’s Revolving Commitment at such time; provided that if the commitment of each Lender to make Revolving Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02 or if the Aggregate Revolving Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments, and (b) with respect to such Lender’s Term Loan Commitment and outstanding portion of the outstanding Term Loan at any time, the percentage (carried out to the ninth decimal place) of the aggregate amount of the Term Loan Commitments and the aggregate outstanding principal amount of the Term Loan represented by such Lender’s Term Loan Commitment and outstanding principal amount of the Term Loan held by such Lender at such time; provided that if the Term Loan Commitments have been terminated pursuant to Section 8.02 or if the Term Loan Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the outstanding amount of the Term Loan, giving effect to any subsequent assignments.  The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption or other documentation pursuant to which such Lender becomes a party hereto, as applicable.  The Applicable Percentages shall be subject to adjustment as provided in Section 2.15 .

 

Applicable Period ” means, as of any date of determination, the period of four fiscal quarters most recently ended for which the Loan Parties have delivered or were required to deliver financial statements pursuant to Section 6.01(a)  or (b) ; provided that, prior to the first date that financial statements have been or are required to be delivered pursuant to Section 6.01(a)  or (b) , the Applicable Period in effect shall be the period of four consecutive fiscal quarters of IEA ended December 31, 2017.

 

Applicable Rate ” means (i) with respect to Eurodollar Rate Loans, 3.00% per annum and (ii) with respect to Base Rate Loans, 2.00% per annum.

 

Approved Fund ” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

Arrangers ” means Bank of America (an affiliate of MLPFS) and Cadence Bank, each in its capacity as joint lead arranger and joint bookrunner.

 

Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b) ), and accepted by the Administrative Agent, in substantially the form of Exhibit 11.06(b)  or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent and the Borrower.

 

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Attributable Indebtedness ” means, with respect to any Person on any date, (a) in respect of any capital lease, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease, (c) in respect of any Securitization Transaction, the outstanding principal amount of such financing, after taking into account reserve accounts and making appropriate adjustments, determined by the Administrative Agent in its reasonable judgment and (d) in respect of any Sale and Leaseback Transaction, the present value (discounted in accordance with GAAP at the debt rate implied in the applicable lease) of the obligations of the lessee for rental payments during the term of such lease.

 

Audited Financial Statements ” means the audited consolidated balance sheet of IEA and its Subsidiaries for the fiscal year ended December 31, 2017 , and the related consolidated statements of income or operations, shareholders’ equity and cash flows of IEA and its Subsidiaries for such fiscal year, including the notes thereto.

 

Availability Period ” means, (a) with respect to the Revolving Commitments, the period from and including the Closing Date to the earliest of (i) the Maturity Date, (ii) the date of termination of the Aggregate Revolving Commitments pursuant to Section 2.06 , and (iii) the date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02 and (b) with respect to the Term Loan Commitments, the period from the Closing Date to the earliest of (i) the Maturity Date, (ii) the date of termination of the Term Loan Commitments pursuant to Section 2.06 and (iii) the date of termination of the commitment of each Lender to make Loans pursuant to Section 8.02 .

 

Bail-In Action ” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

 

Bail-In Legislation ” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

 

Bank of America ” means Bank of America, N.A. and its successors.

 

Base Rate ” means for any day a fluctuating rate of interest per annum equal to the highest of (a) the Federal Funds Rate plus 0.50%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate” and (c) the Eurodollar Rate plus 1.0%; provided that if the Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.  The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any change in such “prime rate” announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

 

Base Rate Loan ” means a Loan that bears interest based on the Base Rate.

 

Benefit Plan ” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Internal Revenue Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal Revenue Code) the assets of any such “employee benefit plan” or “plan”.

 

3



 

Borrower ” has the meaning specified in the introductory paragraph hereto.

 

Borrower Materials ” has the meaning specified in Section 6.02 .

 

Borrowing ” means a borrowing consisting of simultaneous Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01 .

 

Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan, means any such day that is also a day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

 

Cadence Bank ” means Cadence Bank, N.A.

 

Cash Collateralize ” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuer or the Lenders, as collateral for L/C Obligations or obligations of the Lenders to fund participations in respect of L/C Obligations, (a) cash or deposit account balances, (b) backstop letters of credit entered into on terms, from issuers and in amounts satisfactory to the Administrative Agent and the L/C Issuer and/or (c) if the Administrative Agent and the L/C Issuer shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuer. “ Cash Collateral ” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

 

Cash Equivalents ” means, as at any date, (a) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) (or, in the case of any Foreign Subsidiary, by any foreign government having an investment grade rating from either S&P or Moody’s (or the equivalent thereof)) having maturities of not more than twelve months from the date of acquisition, (b) Dollar (or, in the case of any Foreign Subsidiary, such local currencies held by it from time to time in the ordinary course of its business) denominated time deposits and certificates of deposit of any commercial bank that (i) is a Lender or (ii) (A) is organized under the laws of the United States, any state thereof, the District of Columbia or any member nation of the Organization for Economic Cooperation and Development or is the principal banking Subsidiary of a bank holding company organized under the laws of the United States, any state thereof, the District of Columbia or any member nation of the Organization for Economic Cooperation and Development, and is a member of the Federal Reserve System and (B) has capital and surplus in excess of $500,000,000 or (iii) any bank whose short term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof (any such bank being an “Approved Bank”), in each case with maturities of not more than 270 days from the date of acquisition, (c) commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and maturing within six months of the date of acquisition, (d) repurchase agreements entered into by any Person with a bank or trust company (including any of the Lenders) or recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States (or, in the case of any Foreign Subsidiary, Canada or any member nation of the European Union) in which such Person shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase obligations and (e) investments, classified in accordance with GAAP as current assets, in money market investment

 

4



 

programs registered under the Investment Company Act of 1940 which are administered by reputable financial institutions having capital of at least $500,000,000 and the portfolios of which are limited to Investments of the character described in the foregoing subdivisions (a) through (d).

 

Cash Management Agreement ” means any agreement that is not prohibited by the terms hereof to provide treasury or cash management services, including deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services.

 

Cash Management Bank ” means any Person that (a) at the time it enters into a Cash Management Agreement, is a Lender or the Administrative Agent or an Affiliate of a Lender or the Administrative Agent, (b) in the case of any Cash Management Agreement in effect on or prior to the Closing Date, is, as of the Closing Date or within 30 days thereafter, a Lender or the Administrative Agent or an Affiliate of a Lender or the Administrative Agent and a party to a Cash Management Agreement or (c) within 30 days after the time it enters into the applicable Cash Management Agreement, becomes a Lender, the Administrative Agent or an Affiliate of a Lender or the Administrative Agent, in each case, in its capacity as a party to such Cash Management Agreement.

 

Change in Law ” means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any Law, (b) any change in any Law or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of Law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

Change of Control ” means an event or series of events by which:

 

(a)           any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) (other than Oaktree and its Controlled Investment Affiliates) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all Equity Interests that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of Voting Stock of Pubco representing the greater of (i) 35% and (ii) more than Oaktree and its Controlled Investment Affiliates of the combined voting power of all Voting Stock of Pubco on a fully diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or

 

(b)           during any period of 24 consecutive months, a majority of the members of the board of directors or other equivalent governing body of Pubco cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to

 

5



 

that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; or

 

(c)           Pubco shall cease to own and control, of record and beneficially, directly or indirectly, 100% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the Borrower on a fully diluted basis (which for this purpose shall exclude all Equity Interests that have not yet vested); or

 

(d)           Pubco shall cease to have the ability to elect (either through share ownership or contractual voting rights) a majority of the board of directors or equivalent governing body of the Borrower.

 

Closing Date ” means the date hereof.

 

Closing Date Merger ” means the Acquisition by Pubco of all the Equity Interests of IEA pursuant to the Closing Date Merger Documents whereby the Initial Borrower will merge with and into IEA, with IEA as the surviving entity (the “ First Merger ”), and then immediately after the First Merger, IEA will merge with and into the Borrower, with the Borrower as the surviving entity.

 

Closing Date Merger Agreement ” means that certain Agreement and Plan of Merger, dated as of November 3, 2017, by and among IEA, Pubco, the Initial Borrower, the Borrower, Infrastructure and Energy Alternatives, LLC (the “ Seller ”), and Oaktree Opportunities Fund III Delaware, L.P., a Delaware limited partnership, as the Seller’s representative in the Closing Date Merger .

 

Closing Date Merger Documents ” means the Closing Date Merger Agreement, and all other documents, agreements and instruments relating to the Closing Date Merger in each case including all schedules and exhibits thereto.

 

Collateral ” means a collective reference to all property with respect to which Liens in favor of the Administrative Agent, for the benefit of itself and the other holders of the Obligations, are purported to be granted pursuant to and in accordance with the terms of the Collateral Documents.

 

Collateral Documents ” means a collective reference to the Security Agreement, the Mortgages and other security documents as may be executed and delivered by any Loan Party pursuant to the terms of Section 6.14 or any of the Loan Documents.

 

Commitment ” means, as to each Lender, the Revolving Commitment of such Lender and/or the Term Loan Commitment of such Lender.

 

Commitment Fees has the meaning specified in Section 2.09(a)(ii) .

 

Commodity Exchange Act ” means the Commodity Exchange Act (7 U.S.C. § 1 et seq. ).

 

Company Material Adverse Effect ” means any change, event, circumstance, development or effect that, individually or in the aggregate, has had, or would reasonably be expected to have, a material adverse effect on (1) the business, condition (financial or otherwise), assets, liabilities (actual or contingent) or results of operations of IEA and its Subsidiaries, taken as a whole or (2) the ability of IEA and its Subsidiaries to consummate the transactions contemplated by the Closing Date Merger Agreement when required pursuant to the Closing Date Merger Agreement and in any event prior to April 30, 2018; provided , however , that “Company Material Adverse Effect” shall not include the impact on such business, condition,

 

6



 

assets, liabilities or results of operations arising out of or attributable to (a) conditions or effects that generally affect the industries in which IEA and its Subsidiaries operate, (b) seasonal fluctuations of the businesses of IEA and its Subsidiaries, (c) any regional, national or international economic, financial, social or political conditions (including changes therein), (d) effects resulting from changes in the financial, banking or securities markets, (e) any effects or conditions resulting from an outbreak or escalation of hostilities, disease, acts of terrorism, cyber terrorism, political instability or other national or international calamity, crisis or emergency, an act of God or any governmental or other response to any of the foregoing, in each case whether or not involving the United States or any other region where IEA or any of its Subsidiaries conducts business or operations, (f) effects arising from changes or proposed changes in Laws or accounting principles or requirements, including any changes or proposed changes in standards, interpretations or enforcement thereof, (g) effects relating to the announcement, execution or consummation of the Closing Date Merger Agreement or the transactions contemplated thereby, including the fact that the prospective owner of IEA and its Subsidiaries is Pubco or any affiliate of Pubco or related to the identity of any of Pubco’s directors, managers, officers, agents, employees, partners, members, equityholders, advisors or representatives, (h) effects resulting from compliance with the terms and conditions of the Closing Date Merger Agreement by Infrastructure and Energy Alternatives, LLC, IEA and its Subsidiaries (including the failure to take any action restricted by the Closing Date Merger Agreement) or otherwise consented to in writing by Pubco, or (i) any failure by IEA or any of its Subsidiaries to meet any projections, forecasts or estimates in and of itself (although this clause (i) shall not apply to the facts and circumstances that may have given rise or contributed to any such failure), except that in the case of sub-clauses (a), (b), (c), (d), (e) and (f), to the extent that such conditions or effects disproportionately impact the businesses of IEA and its Subsidiaries, taken as a whole, relative to other participants in the industry in which IEA and its Subsidiaries operate (in which case, only the incremental disproportionate effect shall be taken into account in the determination of Company Material Adverse Effect hereunder).  For the avoidance of doubt, a Company Material Adverse Effect shall be measured only against past performance of IEA and its Subsidiaries, taken as a whole, and not against any forward-looking statements, financial projections or forecasts of IEA or its Subsidiaries.

 

Compliance Certificate ” means a certificate substantially in the form of Exhibit 6.02 .

 

Connection Income Taxes ” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

 

Consolidated Capital Expenditures ” means, for any period, for Holdings and its Subsidiaries on a consolidated basis, all capital expenditures.

 

Consolidated EBITDA ” means, for any period, for Holdings and its Subsidiaries on a consolidated basis, an amount equal to the sum of (a) Consolidated Net Income for such period plus (b) the following, in each case without duplication, to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges for such period; (ii) the provision for federal, state, local and non-U.S. income taxes payable for such period; (iii) depreciation and amortization expense for such period; (iv) non-cash charges, expenses or losses, including (A) non-cash compensation expense and other non-cash expenses or charges arising from the granting of stock options, stock appreciation rights or similar arrangements, (B) any non-cash accounting adjustments and (C) non-cash exchange or translation losses arising from foreign currency hedging transactions or currency fluctuations; (v) charges and expenses incurred as a result of the entering into and funding of the Transaction within ninety (90) days of the Closing Date in an aggregate amount not to exceed $30,000,000 less any amounts accrued prior to December 31, 2017 and included in the calculation of the deemed amount of Consolidated EBITDA in any period set forth below; (vi) restructuring costs, integration costs, business optimization expenses or costs, retention, recruiting, relocation and signing bonuses and expenses, severance costs, transaction fees; (vii) fees, costs and expenses related to any Permitted Acquisition, Investment, Restricted Payment, Disposition, the

 

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issuance or amendment of Indebtedness or Equity Interests (each a “ Permitted Transaction ”) (A) for Permitted Transactions consummated, in an aggregate amount not to exceed $5,000,000 per Permitted Transaction and (B) for not consummated Permitted Transactions, the amount added back shall be subject to the aggregate cap set forth below; (viii) charges, losses, or expenses to the extent indemnified or insured or reimbursed by an unaffiliated third party (including business interruption insurance) to the extent such indemnification, insurance or reimbursement is (A) actually received in cash for such period or (B) is reasonably expected to be received in cash; provided that amounts added back pursuant to this clause (B)  will be subtracted in any subsequent period for which it is determined such amounts will not be received; (ix) to the extent not already excluded pursuant to the definition of Consolidated Net Income, extraordinary losses during such period, net of related tax effects; and (x) the Enterprise Expansion Addback, minus (c) the following, without duplication, to the extent included in calculating such Consolidated Net Income, (i) non-cash income or gains arising from foreign currency hedging transactions or currency fluctuations, (ii) to the extent not already excluded per the definition of Consolidated Net Income, extraordinary gains during such period, net of related tax effects and (iii) cash payments made during such period with respect to non-cash charges, expenses or losses that were added back pursuant to clause (b)(iv)  above in a prior period; provided , that , the aggregate amount added back to Consolidated EBITDA pursuant to clauses (vi) , (vii)(B) , (ix)  and (x)  hereof shall not exceed 25% of Consolidated EBITDA in the aggregate in any Applicable Period (calculated before giving effect to such add back).  Notwithstanding the foregoing, Consolidated EBITDA shall be deemed to be the following amounts for the following fiscal quarters (in each case subject to Section 1.03(d)  for any Acquisition (other than the Closing Date Merger) or Disposition occurring after the Closing Date): (1) the fiscal quarter ending March 31, 2017, $6,151,418; (2) the fiscal quarter ending June 30, 2017, $10,876,385; (3) the fiscal quarter ending September 30, 2017, $19,269,712 and (4) the fiscal quarter ending December 31, 2017, $16,247,645.

 

Consolidated Funded Indebtedness ” means, as of any date of determination with respect to Holdings and its Subsidiaries on a consolidated basis, without duplication, the sum of:  (a) the outstanding principal amount of all obligations for borrowed money (including Obligations) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b) the maximum amount available to be drawn under issued and outstanding letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties and similar instruments (other than surety bonds); (c) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business), including any Earn-Out Obligations but only to the extent such obligation would be recognized as a liability on the consolidated balance sheet of Holdings in accordance with GAAP; (d) all purchase money Indebtedness; (e) all Attributable Indebtedness; (f) all obligations to purchase, redeem, retire, defease or otherwise make any payment prior to the Maturity Date in respect of any Equity Interests or any warrant, right or option to acquire such Equity Interest, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; (g) all Guarantees with respect to Indebtedness of the types specified in clauses (a) through (f) above of another Person; and (h) all Indebtedness of the types referred to in clauses (a) through (g) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which any Loan Party or any Subsidiary is a general partner or joint venturer, except to the extent that Indebtedness is expressly made non-recourse to such Person.

 

Consolidated Interest Charges ” means, for any period, for Holdings and its Subsidiaries on a consolidated basis, the sum of (a) all interest (including capitalized interest), premium payments (including in connection with any voluntary prepayment of Indebtedness), debt discount, fees, charges and related expenses in connection with borrowed money (including in respect of guarantees and letters of credit) or the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, plus (b) the portion of rent expense with respect to such period under capital leases that is treated as interest in accordance with GAAP, plus (c) commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing, plus (d) net costs associated with any Swap Contract

 

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with respect to any Indebtedness (including the amortization or payment of fees but excluding (i) unrealized gains or losses with respect thereto and (ii) any termination payments related to such Swap Contract), plus (e) the portion of any payments made in connection with Synthetic Lease Obligations to the extent treated as interest in accordance with GAAP.

 

Consolidated Leverage Ratio ” means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the Applicable Period then most recently ended.

 

Consolidated Net Income ” means, for any period, for Holdings and its Subsidiaries on a consolidated basis, net income (or loss) for such period; provided that Consolidated Net Income shall exclude (a) gains and losses for such period that are “unusual” and “infrequently occurring items” as defined by FASB ASC 225-20, (b) the net income of any Subsidiary during such period to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of such income is not permitted by operation of the terms of its Organization Documents or any agreement, instrument or Law applicable to such Subsidiary during such period, and (c) any income (or loss) for such period of any Person if such Person is not a Subsidiary, except that Holdings’ equity in the net income of any such Person for such period shall be included in Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such period to Holdings or a Subsidiary as a dividend or other distribution (and in the case of a dividend or other distribution to a Subsidiary, such Subsidiary is not precluded from further distributing such amount to Holdings as described in clause (b) of this proviso).

 

Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

 

Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.  “ Controlling ” and “ Controlled ” have meanings correlative thereto.  Without limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another Person if such other Person possesses, directly or indirectly, power to vote 10% or more of the securities having ordinary voting power for the election of directors, managing general partners or the equivalent.

 

Controlled Investment Affiliate ” means, with respect to Oaktree, any other Person that is (a) controlled by, or is under common control with, Oaktree and (b) engaged in the business of making equity or debt investments in the ordinary course of business.

 

Credit Extension ” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.

 

Cure Amount ” has the meaning specified in Section 8.04 .

 

Cure Notice ” has the meaning specified in Section 8.04 .

 

Cure Notice Date ” has the meaning specified in Section 8.04 .

 

Cure Right ” has the meaning specified in Section 8.04 .

 

Debt Issuance ” means the issuance by any Loan Party or any Subsidiary of any Indebtedness other than Indebtedness permitted under Section 7.03 .

 

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Debtor Relief Laws ” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.

 

Default ” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

 

Default Rate ” means (a) with respect to any Obligation for which a rate is specified, a rate per annum equal to two percent (2%) in excess of the rate otherwise applicable thereto and (b) with respect to any Obligation for which a rate is not specified or available, a rate per annum equal to the Base Rate plus the Applicable Rate for Revolving Loans that are Base Rate Loans plus two percent (2%), in each case, to the fullest extent permitted by applicable Law.

 

Defaulting Lender ” means, subject to Section 2.15(d) , any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the L/C Issuer, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two (2) Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, the L/C Issuer or the Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder ( provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(d) ) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower, the L/C Issuer, the Swingline Lender and each other Lender promptly following such determination.

 

Designated Jurisdiction ” means any country or territory to the extent that such country or territory is the subject of any Sanction.

 

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Disposition ” or “ Dispose ” means the sale, transfer, license, lease or other disposition of any property by any Loan Party or any Subsidiary, including any Sale and Leaseback Transaction and any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith, but excluding any Recovery Event.

 

Dollar ” and “ $ ” mean lawful money of the United States.

 

Domestic Subsidiary ” means any Subsidiary that is organized under the Laws of any state of the United States or the District of Columbia other than a Subsidiary that constitutes a FSHCO.

 

Earn-Out Obligations ” means any deferred purchase price obligations (including earn-out obligations) in connection with an Acquisition but excluding (a) indemnification obligations, holdbacks, purchase price adjustments or any similar obligations or (b) any earn-out obligations paid in equity of Pubco.

 

EEA Financial Institution ” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

 

EEA Member Country ” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

 

EEA Resolution Authority ” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

Eligible Assignee ” means any Person that meets the requirements to be an assignee under Sections 11.06(b)  (subject to such consents, if any, as may be required under Section 11.06(b)(iii) ).

 

Enterprise Expansion Addback ” means, for any entity, division, operation or line of business commenced or started within the twelve (12) months prior to the last day of the Applicable Period, the amount by which expenses exceed revenues in an amount not to exceed $7,500,000 in the aggregate for such period.

 

Environmental Laws ” means any and all federal, state, local and foreign statutes, laws, regulations, ordinances, rules, or legally binding judgments, orders, decrees and governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and wastewater discharges.

 

Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, or penalties), of any Loan Party or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any written contract or agreement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

 

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Equity Interests ”  means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

 

ERISA ” means the Employee Retirement Income Security Act of 1974.

 

ERISA Affiliate ” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to Section 412 of the Internal Revenue Code).

 

ERISA Event ” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or receipt by the Borrower of notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA, (e) the institution by the PBGC of proceedings to terminate a Pension Plan or Multiemployer Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan or Multiemployer Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Internal Revenue Code or Sections 303, 304 and 305 of ERISA, (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate or (i) a failure by the Borrower or any ERISA Affiliate to meet all applicable requirements under the Pension Funding Rules in respect of a Pension Plan, whether or not waived, or the failure by the Borrower or any ERISA Affiliate to make any required contribution to a Multiemployer Plan.

 

EU Bail-In Legislation Schedule ” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

 

Eurodollar Rate ”  means:

 

(a)           for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the London Interbank Offered Rate (“ LIBOR ”) or a comparable or successor rate, which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) (in such case, the “ LIBOR Rate ”) at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; and

 

(b)           for any interest rate calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the LIBOR Rate, at approximately 11:00 a.m., London time determined

 

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two (2) Business Days prior to such date for Dollar deposits with a term of one month commencing that day;

 

provided that (i) to the extent a comparable or successor rate is approved by the Administrative Agent in connection herewith, the approved rate shall be applied in a manner consistent with market practice; provided , further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied as otherwise reasonably determined by the Administrative Agent and (ii) if the Eurodollar Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.

 

Eurodollar Rate Loan ” means a Loan that bears interest at a rate based on clause (a) of the definition of “Eurodollar Rate.”

 

Event of Default ” has the meaning specified in Section 8.01 .

 

Excluded Property ” means, with respect to any Loan Party, (a) any owned or leased real property which is located outside of the United States, (b any fee-owned real property which is located within the United States with a fair market value of less than $3,750,000, (c) any leasehold interest of any Loan Party in real property, (d) any IP Rights for which a perfected Lien thereon is not effected either by filing of a Uniform Commercial Code financing statement or by appropriate evidence of such Lien being filed in either the United States Copyright Office or the United States Patent and Trademark Office, (e) any IP Rights consisting of any intent-to-use trademark applications for which a verified statement of use or any amendment to allege use has not been filed with the United States Patent and Trademark Office only to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark applications, (f) any personal property (other than personal property described in clause (d)  above) for which the attachment or perfection of a Lien thereon is not governed by the Uniform Commercial Code, (g) motor vehicles, airplanes and other assets subject to certificates of title, (h) any commercial tort claims or letter of credit rights with a value of less than $1,500,000, (i) the Equity Interests of any direct Foreign Subsidiary or FSHCO of any Loan Party to the extent not required to be pledged to secure the Obligations pursuant to Section 6.13(a) , (j) any property which is subject to a Lien of the type described in Section 7.01(i)  pursuant to documents which prohibit such Loan Party from granting any other Liens in such property, (k) any general intangible, permit, lease, license, contract or other instrument of a Loan Party to the extent the grant of a security interest in such general intangible, permit, lease, license, contract or other instrument in the manner contemplated by the Collateral Documents, under the terms thereof or under applicable Law, is prohibited and would result in the termination thereof or give the other parties thereto the right to terminate, accelerate or otherwise alter such Loan Party’s rights, titles and interests thereunder (including upon the giving of notice or the lapse of time or both), (l) any assets or property to the extent that the grant of a security interest or Lien therein is prohibited under applicable Law; provided , that (A) the foregoing exclusions of set forth in clauses (k)  and (l)  shall in no way be construed to apply to (1) the extent that any described prohibition or restriction is ineffective under the UCC or any other applicable Law (including Debtor Relief Laws) or principles of equity, or (2) the extent that any such prohibition or the requirement for any consent contained in any applicable Law, general intangible, permit, lease, license, contract or other instrument, is terminated or eliminated to the extent sufficient to permit any such item to become Collateral, or to the extent that any such consent is granted, or any requirement for such consent is waived or terminated, and (B) the foregoing exclusions set forth in clauses (k)  through (l)  shall in no way be construed to limit, impair, or otherwise affect any of the Administrative Agent’s continuing security interests in and Liens upon any rights or interests of any Loan Party in or to (1) monies due or to become due under or in connection with any described contract, lease, permit, license, license agreement, governmental licenses, state or local franchises, charters or authorizations, or Equity Interests, or (2) any proceeds from the sale, license, lease, or other dispositions of any such contract, lease, permit, license, license agreement, governmental licenses,

 

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state or local franchises, charters or authorizations, or Equity Interests, and (m) any real or personal property as to which the Administrative Agent and the Borrower reasonably agree in writing that the costs or other consequences of obtaining a security interest or perfection thereof are excessive in view of the benefits to be obtained by the Lenders and the other holders of the Obligations.

 

Excluded Swap Obligation ” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a Lien to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Future Trading Commission (or the application or official interpretation thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 10.08 and any other “keepwell”, support or other agreement for the benefit of such Guarantor and any and all guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the time the Guaranty of such Guarantor, or grant by such Guarantor of a Lien, becomes effective with respect to such Swap Obligation.  If a Swap Obligation arises under a Master Agreement governing more than one Swap Contract, such exclusion shall apply to only the portion of such Swap Obligation that is attributable to Swap Contracts for which such Guaranty or Lien is or becomes excluded in accordance with the first sentence of this definition.

 

Excluded Taxes ” means any of the following Taxes imposed on or with respect to any Recipient  or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the Laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a Law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 11.13 ) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii) , 3.01(a)(iii)  or 3.01(c) , amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e)  and (d) any withholding Taxes imposed pursuant to FATCA.

 

Facility Termination Date ” means the date as of which all of the following shall have occurred:  (a) all Commitments have terminated, (b) all Obligations arising under the Loan Documents have been paid in full (other than contingent indemnification obligations), and (c) all Letters of Credit have terminated or expired (other than Letters of Credit that have been Cash Collateralized).

 

FASB ASC ” means the Accounting Standards Codification of the Financial Accounting Standards Board.

 

FATCA ” means Sections 1471 through 1474 of the Internal Revenue Code, as of the Closing Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Internal Revenue Code.

 

FCPA ” has the meaning set forth in Section 5.22 .

 

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Federal Funds Rate ” means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent and (c) if the Federal Funds Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.

 

Fee Letters ” means the Agent Fee Letter and the Joint Fee Letter.

 

Financial Covenant Default ” has the meaning specified in Section 8.04 .

 

Flood Hazard Property ” means any real property subject to a Mortgage that is in an area designated by the Federal Emergency Management Agency as having special flood or mudslide hazards.

 

Foreign Lender ” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the Laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.  For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

 

Foreign Subsidiary ” means any Subsidiary that is not a Domestic Subsidiary.

 

FRB ” means the Board of Governors of the Federal Reserve System of the United States.

 

Fronting Exposure ” means, at any time there is a Defaulting Lender, (a) with respect to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting Lender’s Applicable Percentage of Swingline Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders in accordance with the terms hereof.

 

FSHCO ” means any Subsidiary that owns no material assets other than the Equity Interests of one or more Foreign Subsidiaries and/or of one or more FSHCOs.

 

Funding Indemnity Letter ” means a funding indemnity letter, in form and substance reasonably satisfactory to the Administrative Agent.

 

Fund ” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

 

GAAP ” means generally accepted accounting principles in the United States set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the accounting profession) including, without limitation, the FASB Accounting Standards Codification, that are applicable to the circumstances as of the date of determination, consistently applied and subject to Section 1.03 .

 

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Governmental Authority ” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

 

Guarantee ” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien).  The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.  The term “Guarantee” as a verb has a corresponding meaning.

 

Guarantors ” means, collectively, (a) Holdings, (b) each Domestic Subsidiary of Holdings identified as a “Guarantor” on the signature pages hereto, (c) each Person that joins as a Guarantor pursuant to Section 6.13 or otherwise, (d) with respect to (i) Obligations under any Secured Hedge Agreement, (ii) Obligations under any Secured Cash Management Agreement and (iii) any Swap Obligation of a Specified Loan Party (determined before giving effect to Sections 10.01 and 10.08 ) under the Guaranty, the Borrower, and (e) the successors and permitted assigns of the foregoing; provided , that, in no event shall a Foreign Subsidiary or a FSHCO be required to become a Guarantor.

 

Guaranty ” means the Guaranty made by the Guarantors in favor of the Administrative Agent and the other holders of the Obligations pursuant to Article X .

 

Hazardous Materials ” means all substances, wastes, or chemicals defined, listed or regulated by any Environmental Law as “hazardous”, “toxic”, a “pollutant”, a “contaminant”, explosive or radioactive or words of similar import or meaning, including petroleum or petroleum distillates, natural gas, natural gas liquids, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, toxic mold, infectious or medical wastes.

 

Hedge Bank ” means any Person that (i) at the time it enters into a Swap Contract, is a Lender or the Administrative Agent or an Affiliate of a Lender or the Administrative Agent, (ii) in the case of any Swap Contract in effect on or prior to the Closing Date, is, as of the Closing Date or within 30 days thereafter, a Lender or the Administrative Agent or an Affiliate of a Lender or the Administrative Agent and a party to a Swap Contract or (iii) within 30 days after the time it enters into the applicable Swap Contract, becomes a Lender, the Administrative Agent or an Affiliate of a Lender or the Administrative Agent, in each case, in its capacity as a party to such Swap Contract; provided , in the case of a Secured Hedge Agreement with a Person who is no longer a Lender (or Affiliate of a Lender), such Person shall be

 

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considered a Hedge Bank only through the stated termination date (without extension or renewal) of such Secured Hedge Agreement.

 

Holdings ” has the meaning specified in the introductory paragraph.

 

Honor Date ” has the meaning set forth in Section 2.03(c) .

 

IEA ” means IEA Energy Services LLC, a Delaware limited liability company, prior to giving effect to the Closing Date Merger.

 

IFRS ” means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements delivered under or referred to herein.

 

Immaterial Subsidiary ” means any Domestic Subsidiary that accounts for less than (a) 2.5% of total revenues of Holdings and its Subsidiaries on a consolidated basis for the Applicable Period or (b) 2.5% of total assets of Holdings and its Subsidiaries on a consolidated basis as of the end of the Applicable Period; provided that if at any time all Domestic Subsidiaries that are not Guarantors account in the aggregate for greater than (i) 5% of Consolidated EBITDA for the Applicable Period, (ii) 5% of total revenues of Holdings and its Subsidiaries on a consolidated basis for the Applicable Period or (iii) 5% of total assets of Holdings and its Subsidiaries on a consolidated basis as of the end of the Applicable Period, then the Borrower shall cause one or more of such Domestic Subsidiaries to become Guarantors pursuant to Section 6.13 such that immediately thereafter the remaining Domestic Subsidiaries that are not Guarantors shall not exceed any of the thresholds in clauses (i), (ii) or (iii) of this proviso.

 

Incremental Facility Amendment ” has the meaning specified in Section 2.16 .

 

Incremental Facility Loans ” has the meaning specified in Section 2.16 .

 

Incremental Request ” has the meaning specified in Section 2.16 .

 

Incremental Revolving Commitments ” has the meaning specified in Section 2.16 .

 

Incremental Revolving Loans ” has the meaning specified in Section 2.16 .

 

Incremental Term Facility ” has the meaning specified in Section 2.16 .

 

Incremental Term Loans ” has the meaning specified in Section 2.16 .

 

Indebtedness ” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

 

(a)           all obligations for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

 

(b)           the maximum amount of all direct or contingent obligations arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;

 

(c)           the Swap Termination Value of any Swap Contract;

 

(d)           all obligations to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business);

 

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(e)           indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

 

(f)            all Attributable Indebtedness;

 

(g)           all obligations to purchase, redeem, retire, defease or otherwise make any payment prior to the Maturity Date in respect of any Equity Interests or any warrant, right or option to acquire such Equity Interest, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends;

 

(h)           all Guarantees of such Person in respect of any of the foregoing; and

 

(i)            all Indebtedness of the types referred to in clauses (a) through (h) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to such Person.

 

Indemnified Taxes ” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

 

Indemnitee ” has the meaning specified in Section 11.04(b) .

 

Information ” has the meaning specified in Section 11.07 .

 

Initial Borrower ” has the meaning specified in the introductory paragraph.

 

Interest Payment Date ” means (a) as to any Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided , however , that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swingline Loan), the last Business Day of each March, June, September and December and the Maturity Date.

 

Interest Period ” means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter (in each case, subject to availability), as selected by the Borrower in its Loan Notice, or upon consent of all of the Lenders under the applicable facility, such other period that is twelve months or less (in each case, subject to availability); provided that:

 

(a)           any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

 

(b)           any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

 

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(c)           no Interest Period shall extend beyond the Maturity Date.

 

Internal Revenue Code ” means the Internal Revenue Code of 1986.

 

Investment ” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person, or (c) an Acquisition.  For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.

 

IP Rights ” has the meaning specified in Section 5.17 .

 

IRS ” means the United States Internal Revenue Service.

 

ISP ” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).

 

Issuer Documents ” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.

 

Joinder Agreement ” means a joinder agreement substantially in the form of Exhibit 6.13 executed and delivered by a Domestic Subsidiary in accordance with the provisions of Section 6.13 or any other documents as the Administrative Agent shall deem appropriate for such purpose.

 

Joint Fee Letter ” the letter agreement, dated as of November 3, 2017, among IEA, the Administrative Agent, MLPFS and Cadence Bank.

 

Laws ” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of Law.

 

L/C Advance ” means, with respect to each Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.

 

L/C Borrowing ” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing of Revolving Loans.

 

L/C Credit Extension ” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.

 

L/C Issuer ” means Bank of America in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.

 

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L/C Obligations ” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings.  For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06 .  For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

 

LCA Action ” has the meaning set forth in Section 1.07 .

 

LCA Election ” has the meaning set forth in Section 1.07 .

 

LCA Test Date ” has the meaning set forth in Section 1.07 .

 

Lenders ” means each of the Persons identified as a “Lender” on the signature pages hereto, each other Person that becomes a “Lender” in accordance with this Agreement and their successors and assigns and, unless the context requires otherwise, includes the Swingline Lender.

 

Lending Office ” means, as to the Administrative Agent, the L/C Issuer or any Lender, the office or offices of such Person described as such in such Person’s Administrative Questionnaire, or such other office or offices as such Person may from time to time notify the Borrower and the Administrative Agent, which office may include any Affiliate of such Person or any domestic or foreign branch of such Person or such affiliate.

 

Letter of Credit ” means any standby letter of credit issued hereunder providing for the payment of cash upon the honoring of a presentation thereunder.

 

Letter of Credit Application ” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.

 

Letter of Credit Expiration Date ” means the day that is seven days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).

 

Letter of Credit Fee ” has the meaning specified in Section 2.03(h) .

 

Letter of Credit Sublimit ” means an amount equal to the lesser of (a) $25,000,000 and (b) the Aggregate Revolving Commitments.  The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.

 

LIBOR Screen Rate ” means the LIBOR quote on the applicable screen page the Administrative Agent designates to determine LIBOR (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time).

 

LIBOR Successor Rate ” has the meaning specified in Section 3.08 .

 

LIBOR Successor Rate Conforming Changes ” means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definition of Base Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption of such LIBOR Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of

 

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any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as the Administrative Agent determines in consultation with the Borrower).

 

Lien ” means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).

 

Limited Condition Acquisition ” means any Acquisition by Holdings or one or more of its Subsidiaries permitted pursuant to this Agreement whose consummation is not conditioned on the availability of, or on obtaining, third-party financing and which is designated as a Limited Condition Acquisition by the Borrower in writing to the Administrative Agent.

 

Liquidity ” means, as of any date of determination, the sum of (a)  availability existing under the Aggregate Revolving Commitments as of the date of such determination and (b) Qualified Cash.

 

Loan ” means an extension of credit by a Lender to the Borrower under Article II in the form of a Revolving Loan, Swingline Loan or the Term Loan, and shall include as the context requires, any Incremental Facility Loan.

 

Loan Documents ” means this Agreement, each Note, each Issuer Document, each Joinder Agreement, the Collateral Documents, each Incremental Facility Amendment, each Term Loan Tranche Amendment and the Fee Letters (but specifically excluding Secured Hedge Agreements and any Secured Cash Management Agreements).

 

Loan Notice ” means a notice of (a) a Borrowing of Revolving Loans or the Term Loan, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, in each case pursuant to Section 2.02(a) , which shall be substantially in the form of Exhibit 2.02 or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent) appropriately completed and signed by a Responsible Officer of the Borrower.

 

Loan Parties ” means, collectively, the Borrower and each Guarantor.

 

Master Agreement ” has the meaning specified in the definition of “Swap Contract.”

 

Material Adverse Effect ” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, assets, properties, liabilities (actual or contingent), condition (financial or otherwise) of Holdings and its Subsidiaries taken as a whole; (b) a material impairment of the rights and remedies of the Administrative Agent or any Lender or the ability of the Loan Parties, taken as a whole, to perform their obligations under the Loan Documents; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party.

 

Maturity Date ” means March 26, 2021; provided , however , that if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.

 

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Minimum Collateral Amount ” means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during any period when a Lender constitutes a Defaulting Lender, an amount equal to 100% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time, (b) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.14(a)(i) , (a)(ii)  or (a)(iii) , an amount equal to 100% of the Outstanding Amount of all L/C Obligations, and (c) otherwise, an amount determined by the Administrative Agent and the L/C Issuer in their sole discretion.

 

MLPFS ” means Merrill Lynch, Pierce, Fenner & Smith Incorporated (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement).

 

Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.

 

Mortgages ” means the mortgages, deeds of trust or deeds to secure debt that purport to grant to the Administrative Agent, for the benefit of the holders of the Obligations, a security interest in the fee interests of any Loan Party in any real property.

 

Multiemployer Plan ” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

 

Multiple Employer Plan ” means a Plan which has two or more contributing sponsors (including the Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.

 

Net Cash Proceeds ” means the aggregate cash or Cash Equivalents proceeds received by any Loan Party or any Subsidiary in respect of any Disposition, Debt Issuance or Recovery Event, net of (a) direct costs incurred in connection therewith (including legal, accounting and investment banking fees, and sales commissions), (b) taxes paid or payable as a result thereof (including any amounts to be included in Permitted Tax Distributions attributable to such transaction) and (c) in the case of any Disposition or any Recovery Event, the amount necessary to retire any Indebtedness secured by a Permitted Lien (ranking senior to any Lien of the Administrative Agent) on the related property; it being understood that “Net Cash Proceeds” shall include any cash or Cash Equivalents received upon the sale or other disposition of any non-cash consideration received by any Loan Party or any Subsidiary in any Disposition, Debt Issuance or Recovery Event.

 

Non-Consenting Lender ” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 11.01 and (b) has been approved by the Required Lenders.

 

Non-Defaulting Lender ” means, at any time, each Lender that is not a Defaulting Lender at such time.

 

Note ” has the meaning specified in Section 2.11(a) .

 

Notice of Loan Prepayment ” means a notice of prepayment with respect to a Loan, which shall be substantially in the form of Exhibit 2.05 or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved

 

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by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.

 

Oaktree ” means Oaktree Capital Management L.P., a Delaware limited partnership.

 

Obligations ” means with respect to each Loan Party (i) all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, and (ii) all obligations of any Loan Party or any Subsidiary owing to a Cash Management Bank or a Hedge Bank in respect of Secured Cash Management Agreements or Secured Hedge Agreements, in each case identified in clauses (i) and (ii) whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided , however , that the “Obligations” of a Loan Party shall exclude any Excluded Swap Obligations with respect to such Loan Party.

 

OFAC ” means the Office of Foreign Assets Control of the United States Department of the Treasury.

 

Organization Documents ” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement or limited liability company agreement (or equivalent or comparable documents with respect to any non-U.S. jurisdiction); (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization (or equivalent or comparable documents with respect to any non-U.S. jurisdiction) and (d) with respect to all entities, any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization (or equivalent or comparable documents with respect to any non-U.S. jurisdiction).

 

Other Connection Taxes ” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

 

Other Taxes ” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06 ).

 

Other Term Loans ” has the meaning specified in Section 2.16 .

 

Outstanding Amount ” means (a) with respect to any Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of any Loans occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any

 

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other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.

 

Participant ” has the meaning specified in Section 11.06(d) .

 

Participant Register ” has the meaning specified in Section 11.06(d) .

 

PATRIOT Act ” has the meaning set forth in Section 11.19 .

 

PBGC ” means the Pension Benefit Guaranty Corporation.

 

Pension Act ” means the Pension Protection Act of 2006.

 

Pension Funding Rules ” means the rules of the Internal Revenue Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Internal Revenue Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Internal Revenue Code and Sections 302, 303, 304 and 305 of ERISA.

 

Pension Plan ” means any employee pension benefit plan (excluding any Multiemployer Plan) that is maintained or is contributed to by the Borrower and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Internal Revenue Code.

 

Permitted Acquisition ” means an Investment consisting of an Acquisition by Holdings or any Subsidiary of Holdings, provided , that , (a) subject to Section 1.07 , no Default shall have occurred and be continuing or would result from such Acquisition, (b) the property acquired (or the property of the Person acquired) in such Acquisition is used or useful in the same or a similar line of business as the Borrower and its Subsidiaries were engaged in on the Closing Date (or any reasonable extensions or expansions thereof, including for the avoidance of doubt, infrastructure and industrials construction and alternative energy), (c) in the case of an Acquisition of the Equity Interests of another Person, the board of directors (or other comparable governing body) of such other Person shall have duly approved such Acquisition, (d) subject to Section 1.07 , the Loan Parties shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, after giving effect to such Acquisition on a Pro Forma Basis, (i) the Loan Parties would be in compliance with the financial covenants set forth in Section 7.11 recomputed as of the end of the Applicable Period and (ii) the Consolidated Leverage Ratio recomputed as of the end of the Applicable Period would not exceed the amount that is 0.25:1.0 lower than the Consolidated Leverage Ratio permitted under Section 7.11(a)  as of the end of the Applicable Period, (e) subject to Section 1.07 , the representations and warranties made by the Loan Parties in each Loan Document shall be true and correct in all material respects at and as if made as of the date of such Acquisition (after giving effect thereto), (f) if such transaction involves the purchase of an interest in a partnership between any Loan Party as a general partner and entities unaffiliated with the Borrower as the other partners, such transaction shall be effected by having such equity interest acquired by a corporate holding company directly or indirectly wholly owned by such Loan Party newly formed for the sole purpose of effecting such transaction, (g) subject to Section 1.07 , the Loan Parties shall have Liquidity of at least $20,000,000 after giving effect to such Acquisition on a Pro Forma Basis, and (h) the aggregate cash and non-cash consideration (including assumed Indebtedness, the good faith estimate by the Borrower of the maximum amount of any Earn-Out Obligation) for all such Acquisitions occurring during the term of this Agreement shall not exceed $150,000,000 (excluding consideration funded with capital contributions to Holdings (including cash proceeds from the initial public offering of Pubco) or paid in common stock of Pubco); provided , that the aggregate amount

 

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of Earn-Out Obligations expected to be paid with respect to all Acquisitions in the aggregate, as determined by the Borrower in good faith, shall not exceed $30,000,000.

 

Permitted Equity ” has the meaning specified in Section 8.04 .

 

Permitted Liens ” means, at any time, Liens in respect of property of any Loan Party or any Subsidiary permitted to exist at such time pursuant to the terms of Section 7.01 .

 

Permitted Tax Distributions ” means with respect to each taxable period, distributions by Holdings to holders of membership or other equity interests of Holdings in an amount not to exceed the amount of any U.S. federal, state, local and/or non-U.S. taxes that Holdings and/or its Subsidiaries, as applicable, would have paid had Holdings and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate consolidated, combined, affiliated, unitary or similar group (without duplication, for the avoidance of doubt, of any amount of such taxes actually directly paid by Holdings and/or any of its Subsidiaries to the relevant taxing authorities).

 

Permitted Transfers ” means (a) Dispositions of inventory in the ordinary course of business; (b) Dispositions of property to Holdings or any Subsidiary; provided , that if the transferor of such property is a Loan Party then either (i) the transferee thereof shall be a Loan Party or (ii) such Disposition shall constitute an Investment permitted by Section 7.02 ; (c) Dispositions of accounts receivable in connection with the collection or compromise thereof; (d) Dispositions of machinery and equipment that are Disposed of in the ordinary course of business; (e) licenses, sublicenses, leases or subleases granted to others not interfering in any material respect with the business of Holdings and its Subsidiaries; and (f) the sale or disposition of Cash Equivalents for fair market value.

 

Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

 

Plan ” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including any Pension Plan and excluding any Multiemployer Plans), maintained for employees of any Loan Party or any ERISA Affiliate or any such Plan to which the any Loan Party or any ERISA Affiliate is required to contribute on behalf of any of its employees.

 

Platform ” has the meaning specified in Section 6.02 .

 

Pro Forma Basis ” means, with respect to any transaction, that for purposes of calculating the financial covenants set forth in Section 7.11 , such transaction (including the incurrence of any Indebtedness therewith) shall be deemed to have occurred as of the first day of the Applicable Period.  In connection with the foregoing, (a) with respect to any Disposition or Recovery Event, (i) income statement and cash flow statement items (whether positive or negative) attributable to the property disposed of shall be excluded to the extent relating to any period occurring prior to the date of such transaction and (ii) Indebtedness which is retired shall be excluded and deemed to have been retired as of the first day of the applicable period and (b) with respect to any Acquisition, (i) income statement and cash flow statement items attributable to the Person or property acquired shall be included to the extent relating to any period applicable in such calculations to the extent (A) such items are not otherwise included in such income statement and cash flow statement items for Holdings and its Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in Section 1.01 and (B) such items are supported by (x) financial statements or (y) other information reasonably satisfactory to the Administrative Agent and (ii) any Indebtedness incurred or assumed by any Loan Party or any Subsidiary (including the Person or property acquired) in connection with such transaction and any Indebtedness of the Person or property acquired which is not retired in connection with such transaction (A) shall be deemed to have been incurred as of the first day of the

 

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applicable period and (B) if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination.

 

Pro Forma Compliance Certificate ” means a certificate of a Responsible Officer of Holdings containing reasonably detailed calculations of the financial covenants set forth in Section 7.11 recomputed as of the end of the Applicable Period after giving effect to the applicable transaction on a Pro Forma Basis.

 

PTE ” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

 

Pubco ” means Infrastructure and Energy Alternatives, Inc. (f/k/a M III Acquisition Corp.) a Delaware corporation.

 

Public Lender ” has the meaning specified in Section 6.02 .

 

“Qualified Cash” means cash or Cash Equivalents of the Loan Parties that (a) are maintained in a deposit account with the Administrative Agent or in a deposit account that is subject to an account control agreement in form and substance reasonably satisfactory to the Administrative Agent, (b) do not appear (or would not be required to appear) as “restricted” on a consolidated balance sheet of Holdings and (c) are not subject to a Lien (other than Liens of the type described in Sections 7.01(a) , (c) , (m)  and (n) ).

 

Qualified ECP Guarantor ” means, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

Real Property Security Documents ” means with respect to the fee interest of any Loan Party in any real property:

 

(a)                                  a fully executed and notarized Mortgage encumbering the fee interest of such Loan Party in such real property;

 

(b)                                  if requested by the Administrative Agent in its reasonable discretion, an as-built survey of the sites of such real property certified to the Administrative Agent and the title insurance company issuing the policies referred to in clause (c) of this definition in a manner satisfactory to each of the Administrative Agent and such title insurance company, dated a date satisfactory to each of the Administrative Agent and such title insurance company by an independent professional licensed land surveyor, which survey shall be sufficient to delete any standard printed survey exception contained in the applicable title policy and be made in accordance with the Minimum Standard Detail Requirements for Land Title Surveys jointly established and adopted by the American Land Title Association and the American Congress on Surveying and Mapping as such requirements are in effect on the date of preparation of such survey;

 

(c)                                   an ALTA mortgagee title insurance policy or marked up unconditional binder of title insurance issued by a title insurance company reasonably acceptable to the Administrative Agent with respect to such real property, in an amount reasonably acceptable to the Administrative Agent (not to exceed 110% of the fair market value of the applicable property, as determined in good faith by the Borrower) assuring the Administrative Agent that the Mortgage covering such real property creates a valid and enforceable first priority mortgage lien on such real property, free and clear of all defects and encumbrances except Permitted Liens, which title insurance policies

 

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shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent and shall include such endorsements as are reasonably requested by the Administrative Agent and which are available at commercially reasonable rates in the jurisdiction where the applicable real property is located;

 

(d)                                  (i) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to such real property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by each Loan Party relating thereto) and (ii) if such real property is a Flood Hazard Property, (A)  notices to (and confirmations of receipt by) such Loan Party as to the existence of a special flood hazard and, if applicable, the unavailability of flood hazard insurance under the National Flood Insurance Program and (A) evidence of applicable flood insurance, if available, in each case in such form, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 or as otherwise reasonably required by the Administrative Agent;

 

(e)                                   if requested by the Administrative Agent in its sole discretion, an environmental assessment report, as to such real property, in form and substance and from professional firms reasonably acceptable to the Administrative Agent;

 

(f)                                    if requested by the Administrative Agent in its reasonable discretion, evidence reasonably satisfactory to the Administrative Agent that such real property, and the uses of such real property, are in compliance in all material respects with all applicable zoning Laws (the evidence submitted as to which should include the zoning designation made for such real property, the permitted uses of such real property under such zoning designation and, if available, zoning requirements as to parking, lot size, ingress, egress and building setbacks); and

 

(g)                                   if requested by the Administrative Agent in its sole discretion, an opinion of legal counsel to the Loan Party granting the Mortgage on such real property regarding the enforceability, due authorization, execution and delivery of the Mortgage and such other matters customarily covered in real estate counsel opinions, addressed to the Administrative Agent and each Lender, in form and substance reasonably acceptable to the Administrative Agent.

 

Recipient ” means the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder.

 

Recovery Event ” means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of any Loan Party or any Subsidiary.

 

Register ” has the meaning specified in Section 11.06(c) .

 

Related Parties ” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.

 

Relevant Quarter ” has the meaning specified in Section 8.04 .

 

Reportable Event ” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty-day notice period has been waived.

 

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Request for Credit Extension ” means (a) with respect to a Borrowing, conversion or continuation of Loans, a Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swingline Loan, a Swingline Loan Notice.

 

Required Lenders ” means, at any time, Lenders having Total Credit Exposures representing more than 50% of the Total Credit Exposures of all Lenders; provided , however , that Required Lenders shall require at least two unaffiliated Lenders so long as there are at least two unaffiliated Lenders that are not Defaulting Lenders.  The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time; provided that the amount of any participation in any Swingline Loan and Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swingline Lender or L/C Issuer, as the case may be, in making such determination.

 

Resignation Effective Date ” has the meaning specified in Section 9.06 .

 

Responsible Officer ” means the chief executive officer, president, chief financial officer, treasurer, assistant treasurer or controller of a Loan Party, and, solely for purposes of the delivery of incumbency certificates, the secretary or any assistant secretary of a Loan Party and, solely for purposes of notices given pursuant to Article II , any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent.  Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.  To the extent requested by the Administrative Agent, each Responsible Officer will provide an incumbency certificate and appropriate authorization documentation, in form and substance reasonably satisfactory to the Administrative Agent.

 

Restricted Payment ” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests of any Person, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity Interests or on account of any return of capital to such Person’s stockholders, partners or members (or the equivalent Person thereof), or any option, warrant or other right to acquire any such dividend or other distribution or payment.

 

Revolving Commitment ” means, as to each Lender, its obligation to (a) make Revolving Loans to the Borrower pursuant to Section 2.01 , (b) purchase participations in L/C Obligations, and (c) purchase participations in Swingline Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption or any other documentation pursuant to which such Lender becomes a party hereto, as applicable as such amount may be adjusted from time to time in accordance with this Agreement.  Revolving Commitments shall include any Incremental Revolving Commitment.

 

Revolving Commitment Fee has the meaning specified in Section 2.09(a)(i) .

 

Revolving Credit Exposure ” means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Loans and such Lender’s participation in L/C Obligations and Swingline Loans at such time.

 

Revolving Loan ” has the meaning specified in Section 2.01(a) .

 

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S&P ” means Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw Hill Companies, Inc. and any successor thereto.

 

Sale and Leaseback Transaction ” means, with respect to any Person, any arrangement, directly or indirectly, whereby such Person shall sell or transfer any property used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred.

 

Sanction(s) ” means any sanction administered or enforced by the United States Government, including OFAC, the United Nations Security Council, the European Union, Her Majesty’s Treasury (“ HMT ”) or other relevant sanctions authority.

 

Scheduled Unavailability Date ” has the meaning specified in Section 3.08 .

 

SEC ” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

 

Secured Cash Management Agreement means any Cash Management Agreement that is entered into by and between any Loan Party or any Subsidiary and any Cash Management Bank with respect to such Cash Management Agreement for which such Cash Management Bank has delivered a Secured Party Designation Notice in accordance with Section 9.11 .  For the avoidance of doubt, a holder of Obligations in respect of Secured Cash Management Agreements shall be subject to the last paragraph of Section 8.03 and Section 9.11 .

 

Secured Hedge Agreement means any Swap Contract that is entered into by and between any Loan Party or any Subsidiary and any Hedge Bank for which such Hedge Bank has delivered a Secured Party Designation Notice in accordance with Section 9.11 .  For the avoidance of doubt, a holder of Obligations in respect of Secured Hedge Agreements shall be subject to the last paragraph of Section 8.03 and Section 9.11 .

 

Secured Party Designation Notice ” means a notice delivered with the consent of the Borrower (such consent not to be unreasonably withheld, delayed or conditioned) by any Lender or an Affiliate of a Lender that is a party to a Secured Cash Management Agreement or a Secured Hedge Agreement substantially in the form of Exhibit 1.01 .

 

Securitization Transaction ” means, with respect to any Person, any financing transaction or series of financing transactions (including factoring arrangements) pursuant to which such Person or any Subsidiary of such Person may sell, convey or otherwise transfer, or grant a security interest in, accounts, payments, receivables, rights to future lease payments or residuals or similar rights to payment to a special purpose subsidiary or affiliate of such Person.

 

Security Agreement ” means the security and pledge agreement, dated as of the Closing Date, executed in favor of the Administrative Agent for the benefit of the holders of the Obligations by each of the Loan Parties.

 

Solvent ” or “ Solvency ” means, with respect to any Person as of a particular date, that on such date (a) such Person is able to pay its debts and other liabilities, contingent obligations and other commitments as they mature in the ordinary course of business, (b) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature in the ordinary course of business, (c) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s property would constitute

 

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unreasonably small capital, (d) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person and (e) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured.  The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

 

Specified Closing Date Merger Representations ” means such of the representations made by or with respect to IEA and its Subsidiaries in the Closing Date Merger Documents to the extent that the accuracy of any such representation is a condition to Pubco’s obligations to consummate the Closing Date Merger pursuant to the Closing Date Merger Documents or is material to the interests of the Lenders, but only to the extent that Pubco has the right to terminate its obligations under the Closing Date Merger Documents or decline to consummate the Closing Date Merger as a result of a breach of such representations.

 

Specified Loan Party ” has the meaning specified in Section 10.08 .

 

Specified Representations ” means the representations and warranties made in Sections 5.01(a)  (as to valid existence), Section 5.01(b)(ii) , Section 5.02(a) , Section 5.02(b)(i) , Section 5.02(b)(iii) , Section 5.04 , Section 5.14 , Section 5.18 (after giving effect to the Transaction), Section 5.19 (but subject to the last paragraph of Section 4.01 ), Section 5.21 and Section 5.22 .

 

Subsidiary ” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of Voting Stock is at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of Holdings.

 

Swap Contract ” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “ Master Agreement ”), including any such obligations or liabilities under any Master Agreement.

 

Swap Obligation ” means with respect to any Guarantor any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

 

Swap Termination Value ” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s) and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based

 

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upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

 

Swingline Lender ” means Bank of America in its capacity as provider of Swingline Loans, or any successor Swingline lender hereunder.

 

Swingline Loan ” has the meaning specified in Section 2.04(a) .

 

Swingline Loan Notice ” means a notice of a Borrowing of Swingline Loans pursuant to Section 2.04(b) , which shall be substantially in the form of Exhibit 2.04 or such other form as approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.

 

Swingline Sublimit ” means an amount equal to the lesser of (a) $10,000,000 and (b) the Aggregate Revolving Commitments.  The Swingline Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.

 

Synthetic Lease Obligation ” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).

 

Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

Term Loan ” has the meaning specified in Section 2.01(b)(i)  and includes any Term Loan Tranche and any Incremental Term Loan increasing such Term Loan.

 

Term Loan Commitment ” means, as to each Lender, its obligation to make its portion of the Term Loan to the Borrower pursuant to Section 2.01(b) , in the principal amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption or other document pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement . The aggregate principal amount of the Term Loan Commitments of all of the Lenders as in effect on the Closing Date is $50,000,000.

 

Term Loan Commitment Fee has the meaning specified in Section 2.09(a)(ii) .

 

Term Loan Draw ” has the meaning specified in Section 2.01(b)(i) .

 

Term Loan Tranche Amendment ” has the meaning specified in Section 2.01(b)(iii) .

 

Term Loan Tranche ” has the meaning specified in Section 2.01(b)(ii) .

 

Threshold Amount ” means $5,000,000.

 

Total Credit Exposure ” means, as to any Lender at any time, the unused Commitments of such Lender at such time, the outstanding Loans of such Lender at such time and such Lender’s participation in L/C Obligations and Swingline Loans at such time.

 

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Total Revolving Outstandings ” means the aggregate Outstanding Amount of all Revolving Loans, all Swingline Loans and all L/C Obligations.

 

Transaction ” means, collectively, the Closing Date Merger, the Closing Date Refinancing, the making of the Credit Extensions on the Closing Date, the payment of the fees, premiums, expenses and other transaction costs in connection with each of the foregoing transactions and all related transactions.

 

Type ” means, with respect to any Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.

 

UCP ” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (“ ICC ”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).

 

United States ” and “U.S.” mean the United States of America.

 

Unreimbursed Amount ” has the meaning specified in Section 2.03(c)(i) .

 

U.S. Person ” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Internal Revenue Code.

 

U.S. Tax Compliance Certificate ” has the meaning specified in Section 3.01(e)(ii)(B)(3) .

 

Voting Stock ” means, with respect to any Person, Equity Interests issued by such Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even though the right so to vote has been suspended by the happening of such a contingency.

 

Weighted Average Life to Maturity ” means, when applied to any Indebtedness at any date, the number of years (and/or portion thereof) obtained by dividing:  (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.

 

Write-Down and Conversion Powers ” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

 

1.02                         Other Interpretive Provisions.

 

With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

 

(a)                                  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “ include ,” “ includes ” and “ including ” shall be deemed to be followed by the phrase “without limitation.”  The word “ will ” shall be construed to have the same meaning and effect as the word “ shall .”  Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other

 

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document (including any Loan Document or Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, amended and restated, modified, extended, restated, replaced or supplemented from time to time (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “ hereto ,” “ herein ,” “ hereof ” and “ hereunder ,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Preliminary Statements, Exhibits and Schedules shall be construed to refer to Articles and Sections of, Preliminary Statements of and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any Law shall include all statutory and regulatory rules, regulations, orders and provisions consolidating, amending, replacing or interpreting such Law and any reference to any Law or regulation shall, unless otherwise specified, refer to such Law or regulation as amended, modified, extended, restated, replaced or supplemented from time to time, and (vi) the words “ asset ” and “ property ” shall be construed to have the same meaning and effect and to refer to any and all assets and properties, tangible and intangible, real and personal, including cash, securities, accounts and contract rights.

 

(b)                                  In the computation of periods of time from a specified date to a later specified date, the word “ from ” means “ from and including ;” the words “ to ” and “ until ” each mean “ to but excluding ;” and the word “ through ” means “ to and including .”

 

(c)                                   Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

 

1.03                         Accounting Terms.

 

(a)                                  Generally .  All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.  Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Loan Parties and their Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.

 

(b)                                  Changes in GAAP .  If at any time any change in GAAP or the application thereof (including the adoption of IFRS) would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Loan Parties or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Loan Parties shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP or the application thereof (subject to the approval of the Required Lenders); provided that , until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Loan Parties shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.  Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that

 

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reflected in the Audited Financial Statements for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above.

 

(c)           Consolidation of Variable Interest Entities .  All references herein to consolidated financial statements of Holdings and its Subsidiaries or to the determination of any amount for Holdings and its Subsidiaries on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that Holdings is required to consolidate pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary as defined herein.

 

(d)           Calculations .  Notwithstanding the above, the parties hereto acknowledge and agree that all calculations of the Consolidated Leverage Ratio (including for the financial covenants in Section 7.11 and for purposes of determining the Applicable Rate) shall be made on a Pro Forma Basis with respect to (i) any Disposition of all of the Equity Interests of, or all or substantially all of the assets of, a Subsidiary, (ii) any Disposition of a line of business or division of any Loan Party or Subsidiary, or (iii) any Acquisition, in each case, occurring during the applicable period.

 

1.04         Rounding.

 

Any financial ratios required to be maintained by the Loan Parties pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

 

1.05         Times of Day; Rates.

 

Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).  The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition of “Eurodollar Rate” or with respect to any comparable or successor rate thereto.

 

1.06         Letter of Credit Amounts.

 

Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided , however , that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

 

1.07         Limited Condition Acquisitions.

 

(a)           In connection with the incurrence of any Indebtedness or Liens or the making of any Investments, in each case, in connection with a Limited Condition Acquisition (any of the foregoing, an “ LCA Action ” and collectively, the “ LCA Actions ”), for purposes of determining compliance with any provision of this Agreement which requires that no Default has occurred, is continuing or would result from any such LCA Action or that the representations and warranties shall be true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects), as applicable, such condition shall, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Acquisition,

 

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an “ LCA Election ”), be deemed satisfied, so long as no Default exists and the representations and warranties are true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) on and as of the date the definitive agreements for such Limited Condition Acquisition are entered into (the “ LCA Test Date ”) and no Event of Default under Section 8.01(a) , (f)  or (g)  shall have occurred and is continuing on the effective date of such LCA Action.  For the avoidance of doubt, if the Borrower has exercised the LCA Election, and any Default occurs (including as a result of the representations and warranties not being true and correct) following the LCA Test Date and prior to the consummation of such Limited Condition Acquisition, any such Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition is permitted hereunder.

 

(b)           In connection with any LCA Action, for purposes of:

 

(i)            determining compliance with any provision of this Agreement which requires the calculation of the financial covenants set forth in Section 7.11 ; or

 

(ii)           testing baskets set forth in this Agreement;

 

in each case, upon the LCA Election, the date of determination of whether any such action is permitted hereunder, shall be the LCA Test Date, and if, after giving effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) on a Pro Forma Basis as if they had occurred at the beginning of the Applicable Period then most recently ended prior to the LCA Test Date for which consolidated financial statements of Holdings are available, the Loan Parties could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with.  For the avoidance of doubt, if the Borrower has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA of Holdings or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations.  If the Borrower has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to the incurrence of any Indebtedness or Liens or the making of any Investments, Restricted Payments, prepayments of Indebtedness, Dispositions, fundamental changes or any other purpose, in each case on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated both (y) on a Pro Forma Basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (z) assuming such Limited Condition Acquisition and other transactions in connection therewith have not been consummated.

 

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ARTICLE II

 

THE COMMITMENTS AND CREDIT EXTENSIONS

 

2.01         Revolving Loans and Term Loan.

 

(a)           Revolving Loans .  Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans (each such loan, a “ Revolving Loan ”) to the Borrower in Dollars from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Commitment; provided , however , that after giving effect to any Borrowing of Revolving Loans, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, and (ii) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Revolving Commitment.  Within the limits of each Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01 , prepay under Section 2.05 , and reborrow under this Section 2.01 .  Revolving Loans may be Base Rate Loans or Eurodollar Rate Loans, or a combination thereof, as further provided herein ; provided , however , that any Borrowing of Revolving Loans made on the Closing Date or any of the three (3) Business Days following the Closing Date shall be made as Base Rate Loans unless the Borrower delivers a Funding Indemnity Letter not less than three (3) Business Days prior to the date of such Borrowing of Revolving Loans .

 

(b)           Term Loan .

 

(i)            Subject to the terms and conditions set forth herein, each Lender severally agrees to make its portion of a term loan (the “ Term Loan ”) to the Borrower in Dollars during the Availability Period in one or more Borrowings (each such Borrowing of the Term Loan, a “ Term Loan Draw ”), not to exceed four Term Loan Draws, in an aggregate amount not to exceed such Lender’s Term Loan Commitment.  Each Term Loan Draw shall be in a principal amount of at least $5,000,000. Amounts repaid on the Term Loan may not be reborrowed.  The Term Loan may consist of Base Rate Loans or Eurodollar Rate Loans, or a combination thereof, as further provided herein ; provided , however , that any Term Loan Draw made on the Closing Date or any of the three (3) Business Days following the Closing Date shall be made as Base Rate Loans unless the Borrower delivers a Funding Indemnity Letter not less than three (3) Business Days prior to the date of such Term Loan Draw .

 

(ii)           Notwithstanding anything to the contrary in this Agreement, any Term Loan Draw made for the purpose of funding a Limited Condition Acquisition may be subject to Section 1.07 provided that (A) the Borrower shall deliver written notice of such request to the Administrative Agent at least ten (10) Business Days prior to the LCA Test Date (or such shorter period as the Administrative Agent may designate in its sole discretion), together with: (I) a quality of earnings with respect to the target of such Limited Condition Acquisition, (II) a management presentation if prepared with respect to such Limited Condition Acquisition, (III) the most recently completed audit for the target of such Limited Condition Acquisition, (IV) a five year income statement forecast of Holdings and its Subsidiaries after giving effect to such Limited Condition Acquisition on a Pro Forma Basis and (V) a sources and uses table with respect to such Limited Condition Acquisition and (B) each Lender shall be afforded five (5) Business Days from receipt of such notice to consent to such request.  If any Lender does not respond in such period, such Lender shall be deemed to have rejected such request.  If less than all Lenders holding a Term Loan Commitment consent to funding the Term Loan Draw subject to Section 1.07 , the Term Loan Draw requested by the Borrower may be funded by the consenting Lenders only in an amount equal to the lesser of (x) the requested amount of such Term Loan Draw and (y) the aggregate amount of the undrawn Term Loan Commitments of such consenting Lenders, and the portion of the Term Loan to be drawn pursuant to such Term Loan Draw shall thereafter constitute a separate tranche of Loans (a “ Term Loan Tranche ”).

 

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(iii)          Each Term Loan Tranche shall be evidenced by an amendment (a “ Term Loan Tranche Amendment ”) to this Agreement, giving effect to the modifications permitted by this Section 2.01 (and subject to the limitations set forth in the immediately preceding paragraph), executed by the Loan Parties, the Administrative Agent and each Lender providing a portion of the Term Loan Tranche, which such amendment, when so executed, shall amend this Agreement as provided therein.  Each Term Loan Tranche Amendment shall also require such amendments to the Loan Documents, and such other new Loan Documents, as the Administrative Agent reasonably deems necessary or appropriate to effect the modifications and credit extensions permitted by this Section 2.01 .  Neither any Term Loan Tranche Amendment, nor any such amendments to the other Loan Documents or such other new Loan Documents, shall be required to be executed or approved by any Lender, other than the Lenders providing such Term Loan Tranche and the Administrative Agent, in order to be effective.  The Administrative Agent shall give notice to the Loan Parties and the Lenders of the effectiveness of any Term Loan Tranche Amendment.

 

2.02         Borrowings, Conversions and Continuations of Loans.

 

(a)           Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by (A) telephone or (B) a Loan Notice; provided that any telephonic notice must be confirmed immediately by delivery to the Administrative Agent of a Loan Notice.  Each such Loan Notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three (3) Business Days prior to the requested date of any Borrowing of, conversion to or continuation of, Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans.  Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof (or, in connection with any conversion or continuation of the Term Loan, if less, the entire principal thereof then outstanding).  Except as provided in Sections 2.03(c)  and 2.04(c) , each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof (or, in connection with any conversion or continuation of the Term Loan, if less, the entire principal thereof then outstanding).  Each Loan Notice shall specify (i) whether the Borrower is requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto.  If the Borrower fails to specify a Type of Loan in a Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans.  If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.

 

(b)           Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in the preceding subsection.  In the case of a Borrowing, each Lender shall make the

 

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amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Loan Notice.  Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01 ), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower; provided , however , that if, on the date the Loan Notice with respect to a Borrowing of Revolving Loans is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings and second , shall be made available to the Borrower as provided above.

 

(c)           Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of the Interest Period for such Eurodollar Rate Loan.  During the existence of an Event of Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without the consent of the Required Lenders, and the Required Lenders may demand that any or all of the outstanding Eurodollar Rate Loans be converted immediately to Base Rate Loans.

 

(d)           Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the absence of manifest error.

 

(e)           After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than ten Interest Periods in effect.

 

(f)            Notwithstanding anything to the contrary in this Agreement, any Lender may exchange, continue or rollover all or a portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Borrower, the Administrative Agent and such Lender.

 

(g)           This Section 2.02 shall not apply to Swingline Loans.

 

2.03         Letters of Credit.

 

(a)           The Letter of Credit Commitment .

 

(i)            Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03 , (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit in Dollars for the account of the any Loan Party or any Subsidiary, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of any Loan Party or any Subsidiary and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (y) the Revolving Credit Exposure of any Lender shall not exceed such

 

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Lender’s Revolving Commitment and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit.  Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence.  Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.

 

(ii)           The L/C Issuer shall not issue any Letter of Credit if:

 

(A)          subject to Section 2.03(b)(iii) , the expiry date of the requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Lenders (other than Defaulting Lenders) holding a majority of the Revolving Credit Exposure have approved such expiry date; or

 

(B)          the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders that have Revolving Commitments have approved such expiry date.

 

(iii)          The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:

 

(A)          any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of Law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;

 

(B)          the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;

 

(C)          except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000;

 

(D)          such Letter of Credit is to be denominated in a currency other than Dollars;

 

(E)           any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Borrower or such Defaulting Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.15(b) ) with respect to the Defaulting

 

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Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or

 

(F)           such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.

 

(iv)          The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.

 

(v)           The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.

 

(vi)          The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.

 

(b)           Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit .

 

(i)            Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower.  Such Letter of Credit Application may be sent by fax transmission, by United States mail, by overnight courier, by electronic transmission using the system provided by the L/C Issuer, by personal delivery or by any other means acceptable to the L/C Issuer.  Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two (2) Business Days (or such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be.  In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as the L/C Issuer may require.  In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may require.  Additionally, the

 

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Borrower shall furnish to the L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may require.

 

(ii)           Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof.  Unless the L/C Issuer has received written notice from any Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower or the applicable Subsidiary or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices.  Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Letter of Credit.

 

(iii)          If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “ Auto-Extension Letter of Credit ”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “ Non-Extension Notice Date ”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued.  Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension.  Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided , however , that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a)  or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such extension or (2) from the Administrative Agent, any Lender or any Loan Party that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each case directing the L/C Issuer not to permit such extension.

 

(iv)          If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder (each, an “ Auto-Reinstatement Letter of Credit ”).  Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer to permit such reinstatement.  Once an Auto-Reinstatement Letter of Credit has been

 

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issued, except as provided in the following sentence, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance with the provisions of such Letter of Credit.  Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits the L/C Issuer to decline to reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving notice of such non-reinstatement within a specified number of days after such drawing (the “ Non-Reinstatement Deadline ”), the L/C Issuer shall not permit such reinstatement if it has received a notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Reinstatement Deadline (A) from the Administrative Agent that the Required Lenders have elected not to permit such reinstatement or (B) from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied (treating such reinstatement as an L/C Credit Extension for purposes of this clause) and, in each case, directing the L/C Issuer not to permit such reinstatement.

 

(v)           Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.

 

(c)           Drawings and Reimbursements; Funding of Participations .

 

(i)            Upon receipt from the beneficiary of any Letter of Credit of any notice of drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the Administrative Agent thereof.  Not later than 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of Credit (each such date, an “ Honor Date ”), the Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing.  If the Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the “ Unreimbursed Amount ”), and the amount of such Lender’s Applicable Percentage thereof.  In such event, the Borrower shall be deemed to have requested a Borrowing of Revolving Loans that are Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Revolving Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Loan Notice).  Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i)  may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

 

(ii)           Each Lender shall upon any notice pursuant to Section 2.03(c)(i)  make funds available (and the Administrative Agent may apply Cash Collateral provided for this purpose) for the account of the L/C Issuer at the Administrative Agent’s Office in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii) , each Lender that so makes funds available shall be deemed to have made a Revolving Loan that is a Base Rate Loan to the Borrower in such amount.  The Administrative Agent shall remit the funds so received to the L/C Issuer.

 

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(iii)          With respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing of Revolving Loans that are Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate.  In such event, each Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii)  shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03 .

 

(iv)          Until each Lender funds its Revolving Loan or L/C Advance pursuant to this Section 2.03(c)  to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of the L/C Issuer.

 

(v)           Each Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c) , shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, any Loan Party, any Subsidiary or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided , however , that each Lender’s obligation to make Revolving Loans pursuant to this Section 2.03(c)  is subject to the conditions set forth in Section 4.02 (other than delivery by the Borrower of a Loan Notice).  No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.

 

(vi)          If any Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c)  by the time specified in Section 2.03(c)(ii) , then, without limiting the other provisions of this Agreement, the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing.  If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan included in the relevant Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be.  A certificate of the L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.

 

(d)           Repayment of Participations .

 

(i)            At any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Lender such Lender’s L/C Advance in respect of such

 

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payment in accordance with Section 2.03(c) , if the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof in the same funds as those received by the Administrative Agent.

 

(ii)           If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i)  is required to be returned under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect.  The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

 

(e)           Obligations Absolute .  The obligation of the Borrower to reimburse the L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:

 

(i)            any lack of validity or enforceability of such Letter of Credit, this Agreement or any other Loan Document;

 

(ii)           the existence of any claim, counterclaim, setoff, defense or other right that any Loan Party or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;

 

(iii)          any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;

 

(iv)          waiver by the L/C Issuer of any requirement that exists for the L/C Issuer’s protection and not the protection of any Loan Party or any waiver by the L/C Issuer which does not in fact materially prejudice any Loan Party;

 

(v)           honor of a demand for payment presented electronically even if such Letter of Credit requires that demand be in the form of a draft;

 

(vi)          any payment made by the L/C Issuer in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under such Letter of Credit if presentation after such date is authorized by the UCC, the ISP or the UCP, as applicable;

 

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(vii)         any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or

 

(viii)        any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Loan Party or any Subsidiary.

 

The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will immediately notify the L/C Issuer.  The Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.

 

(f)            Role of L/C Issuer .  Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight or time draft, certificates and documents expressly required by such Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document.  None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document.  The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided , however , that this assumption is not intended to, and shall not, preclude the Borrower from pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement.  None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable or responsible for any of the matters described in Section 2.03(e) ; provided , however , that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves, as determined by a final nonappealable judgment of a court of competent jurisdiction, were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight or time draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit.  In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring, endorsing or assigning or purporting to transfer, endorse or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.  The L/C Issuer may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (“ SWIFT ”)

 

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message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.

 

(g)           Applicability of ISP and UCP; Limitation of Liability .  Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued, the rules of the ISP shall apply to each Letter of Credit.  Notwithstanding the foregoing, the L/C Issuer shall not be responsible to the Borrower for, and the L/C Issuer’s rights and remedies against the Borrower shall not be impaired by, any action or inaction of the L/C Issuer required or permitted under any Law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where the L/C Issuer or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such Law or practice.

 

(h)           Letter of Credit Fees .  The Borrower shall pay to the Administrative Agent for the account of each Lender in accordance, subject to Section 2.15 , with its Applicable Percentage a Letter of Credit fee (the “ Letter of Credit Fee ”) for each Letter of Credit equal to the Applicable Rate for Eurodollar Rate Loans times the daily amount available to be drawn under such Letter of Credit.  For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06 .  Letter of Credit Fees shall be (i) due and payable on the first Business Day after the end of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in arrears.  If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.  Notwithstanding anything to the contrary contained herein, upon the request of the Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.

 

(i)            Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer . The Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect to each Letter of Credit, at the rate per annum specified in the Agent Fee Letter, computed on the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears.  Such fronting fee shall be due and payable on the tenth Business Day after the end of each March, June, September and December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand.  For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06 .  In addition, the Borrower shall pay directly to the L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect.  Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.

 

(j)            Conflict with Issuer Documents .  In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.

 

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(k)           Letters of Credit Issued for Holdings and its Subsidiaries .  Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, Holdings or a Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and all drawings under such Letter of Credit.  The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Holdings or any Subsidiary inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.

 

2.04         Swingline Loans.

 

(a)           Swingline Facility .  Subject to the terms and conditions set forth herein, the Swingline Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.04 , may in its sole discretion make loans (each such loan, a “ Swingline Loan ”) to the Borrower in Dollars from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swingline Sublimit, notwithstanding the fact that such Swingline Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Revolving Loans and L/C Obligations of the Lender acting as Swingline Lender, may exceed the amount of such Lender’s Revolving Commitment; provided , however , that (i) after giving effect to any Swingline Loan, (A) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments and (B) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Revolving Commitment, (ii) the Borrower shall not use the proceeds of any Swingline Loan to refinance any outstanding Swingline Loan and (iii) the Swingline Lender shall not be under any obligation to make any Swingline Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Credit Extension may have, Fronting Exposure.  Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.04 , prepay under Section 2.05 , and reborrow under this Section 2.04 .  Each Swingline Loan shall be a Base Rate Loan.  Immediately upon the making of a Swingline Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Swingline Loan.

 

(b)           Borrowing Procedures .

 

(i)            E ach Borrowing of Swingline Loans shall be made upon the Borrower’s irrevocable notice to the Swingline Lender and the Administrative Agent, which may be given by (A) telephone or (B) by a Swingline Loan Notice; provided that any telephonic notice must be confirmed promptly by delivery to the Swingline Lender and the Administrative Agent of a Swingline Loan Notice.  Each such Swingline Loan Notice must be received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum principal amount of $100,000, and (ii) the requested borrowing date, which shall be a Business Day.  Promptly after receipt by the Swingline Lender of any Swingline Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof.  Unless the Swingline Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Borrowing of Swingline Loans (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(a) , or (B)

 

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that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the Swingline Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swingline Loan Notice, make the amount of its Swingline Loan available to the Borrower.

 

(c)           Refinancing of Swingline Loans .

 

(i)            The Swingline Lender at any time in its sole discretion may request, on behalf of the Borrower (which hereby irrevocably authorizes the Swingline Lender to so request on its behalf), that each Lender make a Revolving Loan that is a Base Rate Loan in an amount equal to such Lender’s Applicable Percentage of the amount of Swingline Loans then outstanding.  Such request shall be made in writing (which written request shall be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02 , without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Revolving Commitments and the conditions set forth in Section 4.02 .  The Swingline Lender shall furnish the Borrower with a copy of the applicable Loan Notice promptly after delivering such notice to the Administrative Agent.  Each Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Loan Notice available to the Administrative Agent in immediately available funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swingline Loan) for the account of the Swingline Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to Section 2.04(c)(ii) , each Lender that so makes funds available shall be deemed to have made a Revolving Loan that is a Base Rate Loan to the Borrower in such amount.  The Administrative Agent shall remit the funds so received to the Swingline Lender.

 

(ii)           If for any reason any Swingline Loan cannot be refinanced by such a Borrowing of Revolving Loans in accordance with Section 2.04(c)(i) , the request for Revolving Loans that are Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the Lenders fund its risk participation in the relevant Swingline Loan and each Lender’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(c)(i)  shall be deemed payment in respect of such participation.

 

(iii)          If any Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c)  by the time specified in Section 2.04(c)(i) , the Swingline Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swingline Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing.  If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan included in the relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may be.  A certificate of the Swingline Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.

 

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(iv)          Each Lender’s obligation to make Revolving Loans or to purchase and fund risk participations in Swingline Loans pursuant to this Section 2.04(c)  shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided , however , that each Lender’s obligation to make Revolving Loans pursuant to this Section 2.04(c)  is subject to the conditions set forth in Section 4.02 (other than delivery by the Borrower of a Loan Notice).  No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swingline Loans, together with interest as provided herein.

 

(d)           Repayment of Participations .

 

(i)            At any time after any Lender has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives any payment on account of such Swingline Loan, the Swingline Lender will distribute to such Lender its Applicable Percentage thereof in the same funds as those received by the Swingline Lender.

 

(ii)           If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the Swingline Lender under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the Swingline Lender in its discretion), each Lender shall pay to the Swingline Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate.  The Administrative Agent will make such demand upon the request of the Swingline Lender.  The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

 

(e)           Interest for Account of Swingline Lender .  The Swingline Lender shall be responsible for invoicing the Borrower for interest on the Swingline Loans.  Until each Lender funds its Revolving Loans that are Base Rate Loans or risk participation pursuant to this Section 2.04 to refinance such Lender’s Applicable Percentage of any Swingline Loan, interest in respect of such Applicable Percentage shall be solely for the account of the Swingline Lender.

 

(f)            Payments Directly to Swingline Lender .  The Borrower shall make all payments of principal and interest in respect of the Swingline Loans directly to the Swingline Lender.

 

2.05         Prepayments.

 

(a)           Voluntary Prepayments of Loans .

 

(i)            Revolving Loans and Term Loan .  The Borrower may, upon delivery of a Notice of Loan Prepayment to the Administrative Agent, at any time or from time to time voluntarily prepay Revolving Loans and the Term Loan in whole or in part without premium or penalty; provided that, unless otherwise agreed by the Administrative Agent, (A) such notice must be received by the Administrative Agent not later than 11:00 a.m. (1) three (3) Business Days prior to any date of prepayment of Eurodollar Rate Loans and (2)

 

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on the date of prepayment of Base Rate Loans; (B) any such prepayment of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding); (C) any prepayment of Base Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding); and (D) any prepayment of the Term Loan shall be applied to the remaining principal amortization payments in direct order of maturity (provided, such prepayment shall be applied ratably to all outstanding Term Loan Tranches).  Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans.  The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment.  If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that such notice may state that such notice is conditional upon the consummation of an acquisition or sale transaction or upon the effectiveness of other credit facilities or the receipt of the proceeds from the issuance of other Indebtedness or the occurrence of any other specified event, in which case such notice of prepayment may, subject to Section 3.05 , be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied.  Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05 .  Subject to Section 2.15 , each such prepayment shall be applied to the Loans of the applicable Lenders in accordance with their respective Applicable Percentages.

 

(ii)           Swingline Loans .  The Borrower may, upon notice to the Swingline Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swingline Loans in whole or in part without premium or penalty; provided that, unless otherwise agreed by the Swingline Lender, (i) such notice must be received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000 or a whole multiple of $100,000 in excess thereof (or, if less, the entire principal thereof then outstanding).  Each such notice shall specify the date and amount of such prepayment.  If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that such notice may state that such notice is conditional upon the consummation of an acquisition or sale transaction or upon the effectiveness of other credit facilities or the receipt of the proceeds from the issuance of other Indebtedness or the occurrence of any other specified event, in which case such notice of prepayment may, subject to Section 3.05 , be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied.  Any prepayment of a Swingline Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05 .

 

(b)           Mandatory Prepayments of Loans .

 

(i)            Revolving Commitments .  If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Swingline Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided , however , that the Borrower shall not be required to Cash Collateralize the L/C Obligations

 

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pursuant to this Section 2.05(b)(i)  unless after the prepayment in full of the Revolving Loans and Swingline Loans the Total Revolving Outstandings exceed the Aggregate Revolving Commitments then in effect.

 

(ii)           Dispositions and Recovery Events .  The Borrower shall prepay the Loans and/or Cash Collateralize the L/C Obligations as hereafter provided in an aggregate amount equal to 100% of the Net Cash Proceeds received by any Loan Party or any Subsidiary from all Dispositions (other than Permitted Transfers) and Recovery Events to the extent such Net Cash Proceeds (A) exceed $500,000 in the aggregate in any fiscal year and (B) are not reinvested in assets (excluding current assets as classified by GAAP) that are useful in the business of Holdings and its Subsidiaries within 365 days of the date of such Disposition or Recovery Event (it being understood that such prepayment shall be due immediately upon the expiration of such reinvestment period to the extent not reinvested).  Notwithstanding any other provisions of this Section 2.05(b)(ii)  to the contrary, (A) to the extent that any or all of the Net Cash Proceeds of any Disposition by a Foreign Subsidiary or any Recovery Event of a Foreign Subsidiary would otherwise be required to be applied pursuant to this Section 2.05(b)  but is prohibited, restricted or delayed by applicable local law from being repatriated to the United States (as determined in good faith by the Borrower), the portion of such Net Cash Proceeds so affected will not be required to be applied to prepay Loans and/or Cash Collateralize the L/C Obligations at the times provided in this Section 2.05(b)  but may be retained by the applicable Foreign Subsidiary and (B) to the extent that the Borrower has determined in good faith that repatriation of any or all of such Net Cash Proceeds that would otherwise be required to be applied pursuant to this Section 2.05(b)  would have a material adverse tax consequence with respect to such Net Cash Proceeds, the Net Cash Proceeds so affected may be retained by the applicable Foreign Subsidiary (the Borrower hereby agreeing to cause the applicable Subsidiary to promptly use commercially reasonable efforts to take all actions within the reasonable control of the Borrower that are reasonably required to eliminate such tax effects).

 

(iii)          Debt Issuances .  Immediately upon receipt by any Loan Party or any Subsidiary of the Net Cash Proceeds of any Debt Issuance, the Borrower shall prepay the Loans and/or Cash Collateralize the L/C Obligations as hereafter provided in an aggregate amount equal to 100% of such Net Cash Proceeds.

 

(iv)          Equity Cure Proceeds .  Immediately upon the receipt by any Loan Party or any Subsidiary of cash proceeds from the issuance of any Equity Interests or contribution of additional equity pursuant to the exercise of a Cure Right, the Borrower shall prepay the Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to 100% of the Cure Amount.

 

(v)           Application of Mandatory Prepayments .  All amounts required to be paid pursuant to this Section 2.05(b)  shall be applied as follows:

 

(A)          with respect to all amounts prepaid pursuant to Section 2.05(b)(i) , first, ratably to the L/C Borrowings and the Swingline Loans, second , to the outstanding Revolving Loans, and, third , to Cash Collateralize the remaining L/C Obligations; and

 

(B)          with respect to all amounts prepaid pursuant to Sections 2.05(b)(ii) , (iii)  and (iv) , first to the Term Loan (ratably to the remaining principal

 

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amortization payments (and ratably to all outstanding Term Loan Tranches)), second , ratably to the L/C Borrowings and the Swingline Loans, third , to the outstanding Revolving Loans, and, fourth , to Cash Collateralize the remaining L/C Obligations (without a corresponding reduction in the Aggregate Revolving Commitments in the cases of clauses second through fourth ).

 

Within the parameters of the applications set forth above, prepayments shall be applied first to Base Rate Loans and then to Eurodollar Rate Loans in direct order of Interest Period maturities.  All prepayments under this Section 2.05(b)  shall be subject to Section 3.05 , but otherwise without premium or penalty, and shall be accompanied by interest on the principal amount prepaid through the date of prepayment.

 

2.06         Termination or Reduction of Aggregate Revolving Commitments.

 

(a)           Optional Reductions .

 

(i)          The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate Revolving Commitments, the Letter of Credit Sublimit or the Swingline Sublimit, or from time to time permanently reduce the Aggregate Revolving Commitments, the Letter of Credit Sublimit or the Swingline Sublimit; provided that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m. five (5) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not terminate or reduce the Aggregate Revolving Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Outstandings would exceed the Aggregate Revolving Commitments, (iv) the Borrower shall not terminate or reduce the Letter of Credit Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit, (v) the Borrower shall not terminate or reduce the Swingline Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Swingline Loans would exceed the Swingline Sublimit and (vi) if, after giving effect to any reduction of the Aggregate Revolving Commitments, the Letter of Credit Sublimit or the Swingline Sublimit exceeds the amount of the Aggregate Revolving Commitments, such sublimit shall be automatically reduced by the amount of such excess.  The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction.  Any reduction of the Aggregate Revolving Commitments shall be applied to the Revolving Commitment of each Lender according to its Applicable Percentage.  All fees accrued until the effective date of any termination of the Aggregate Revolving Commitments shall be paid on the effective date of such termination.

 

(ii)           The Borrower may, upon notice to the Administrative Agent, terminate the undrawn portion of the Term Loan Commitments, or from time to time permanently reduce the undrawn portion of the Term Loan Commitments; provided that (A) any such notice shall be received by the Administrative Agent not later than 11:00 a.m. five (5) Business Days prior to the date of termination or reduction and (B) any such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof.  Notwithstanding anything to the contrary contained herein, any notice of termination or reduction may be revocable (or conditional or extendable) in the event of a termination or reduction in connection with a transaction in the event that such transaction does not close.

 

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(b)           Mandatory Reductions .

 

(i)            The Term Loan Commitments shall be automatically and permanently reduced on a dollar-for-dollar basis by the amount of each Term Loan Draw, on the date of such Term Loan Draw, and

 

(ii)           all undrawn Term Loan Commitments shall be automatically and permanently reduced to zero on March 26, 2020.

 

2.07         Repayment of Loans.

 

(a)           Revolving Loans .  The Borrower shall repay to the Lenders on the Maturity Date the aggregate principal amount of all Revolving Loans outstanding on such date.

 

(b)           Swingline Loans .  The Borrower shall repay each Swingline Loan on the earlier to occur of (i) the date ten (10) Business Days after such Swingline Loan is made and (ii) the Maturity Date.

 

(c)           Term Loan .  The Borrower shall repay the outstanding principal amount of the Term Loan in quarterly installments in an amount equal to 3.5% of the initial amount of each Term Loan Draw commencing on the last day of the first full fiscal quarter ending after such Term Loan Draw (as such installments may hereafter be adjusted as a result of prepayments made pursuant to Section 2.05 and increases with respect to any increase to the Term Loan pursuant to Section 2.16 ), unless accelerated sooner pursuant to Section 8.02 ; provided , that , the Borrower shall repay to the Lenders on the Maturity Date the aggregate principal amount of the Term Loan outstanding on such date.

 

provided , however , that (i) if any principal repayment installment to be made by the Borrower (other than principal repayment installments on Eurodollar Rate Loans) shall come due on a day other than a Business Day, such principal repayment installment shall be due on the next succeeding Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be and (ii) if any principal repayment installment to be made by the Borrower on a Eurodollar Rate Loan shall come due on a day other than a Business Day, such principal repayment installment shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such principal repayment installment into another calendar month, in which event such principal repayment installment shall be due on the immediately preceding Business Day.

 

2.08         Interest.

 

(a)           Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the sum of the Eurodollar Rate for such Interest Period plus the Applicable Rate; (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the sum of the Base Rate plus the Applicable Rate; and (iii) each Swingline Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the sum of the Base Rate plus the Applicable Rate.  To the extent that any calculation of interest or any fee required to be paid under this Agreement shall be based on (or result in) a calculation that is less than zero, such calculation shall be deemed zero for purposes of this Agreement.

 

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(b)           (i)            If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

 

(ii)           If any amount (other than principal of any Loan) payable by the Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

 

(iii)          Upon the request of the Required Lenders, while any Event of Default exists (other than as set forth in clauses (b)(i) and (b)(ii) above), the Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

 

(iv)        Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

 

(c)           Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein.  Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

 

2.09         Fees.

 

In addition to certain fees described in subsections (h) and (i) of Section 2.03 :

 

(a)           Commitment Fee .

 

(i)            The Borrower shall pay to the Administrative Agent, for the account of each Lender in accordance with its Applicable Percentage, a commitment fee (the “ Revolving Commitment Fee ”) at a rate per annum equal to the product of (A) 0.50% times (B) the actual daily amount by which the Aggregate Revolving Commitments exceed the sum of (1) the Outstanding Amount of Revolving Loans and (2) the Outstanding Amount of L/C Obligations, subject to adjustment as provided in Section 2.15 .  For the avoidance of doubt, the Outstanding Amount of Swingline Loans shall not be counted towards or considered usage of the Aggregate Revolving Commitments for purposes of determining the Revolving Commitment Fee.  The Revolving Commitment Fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period.

 

(ii)           The Borrower shall pay to the Administrative Agent, for the account of each Lender in accordance with its Applicable Percentage, a commitment fee (the “ Term Loan Commitment Fee ” and together with the Revolving Credit Commitment Fee, the “ Commitment Fees ”) at a rate per annum equal to the product of (A) 1.00% ( provided , that , such percentage shall be decreased to 0.50% on the date when the Term Loan

 

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Commitments of all the Lenders as in effect on such date are less than or equal to $25,000,000 times (B) the actual daily amount of the Term Loan Commitments, subject to adjustment as provided in Section 2.15 .  For the avoidance of doubt, the Outstanding Amount of Swingline Loans shall not be counted towards or considered usage of the Aggregate Revolving Commitments for purposes of determining the Term Loan Commitment Fee.  The Term Loan Commitment Fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period.

 

(b)           Other Fees .

 

(i)            The Borrower shall pay to the Arrangers and the Administrative Agent for their own respective accounts fees in the amounts and at the times specified in the Fee Letters.  Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.

 

(ii)           The Borrower shall pay to the Lenders such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified.  Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.

 

2.10         Computation of Interest and Fees.

 

All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to the Eurodollar Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year).  Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a) , bear interest for one day.  Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

 

2.11         Evidence of Debt.

 

(a)           The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business.  The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon.  Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations.  In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.  Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a promissory note, which shall evidence such Lender’s Loans in addition to such accounts or records.  Each such promissory note shall be in the form of Exhibit 2.11 (a “ Note ”).  Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.

 

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(b)           In addition to the accounts and records referred to in subsection (a) above, each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swingline Loans.  In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.

 

2.12         Payments Generally; Administrative Agent’s Clawback.

 

(a)           General .  All payments to be made by the Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 3:00 p.m. on the date specified herein.  The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office.  All payments received by the Administrative Agent after 3:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.  Subject to Section 2.07(b)  and as otherwise specifically provided for in this Agreement, if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.

 

(b)           (i)            Funding by Lenders; Presumption by Administrative Agent .  Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02 ) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans.  If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period.  If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing.  Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

 

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(ii)           Payments by Borrower; Presumptions by Administrative Agent .  Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the amount due.  In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

 

A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.

 

(c)           Failure to Satisfy Conditions Precedent .  If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II , and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

 

(d)           Obligations of Lenders Several .  The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and Swingline Loans and to make payments pursuant to Section 11.04(c)  are several and not joint.  The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 11.04(c)  on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 11.04(c) .

 

(e)           Funding Source .  Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

 

2.13         Sharing of Payments by Lenders.

 

If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans made by it, or the participations in L/C Obligations or in Swingline Loans held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and subparticipations in L/C Obligations and Swingline Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them, provided that:

 

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(i)            if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

 

(ii)           the provisions of this Section shall not be construed to apply to (A) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (B) the application of Cash Collateral provided for in Section 2.14 , or (C) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations or Swingline Loans to any assignee or participant, other than an assignment to any Loan Party or any Subsidiary (as to which the provisions of this Section shall apply).

 

Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.

 

2.14         Cash Collateral.

 

(a)           Certain Credit Support Events .  If (i) the L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, (ii) as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, (iii) the Borrower shall be required to provide Cash Collateral pursuant to Section 2.05 or 8.02(c)  or (iv) there shall exist a Defaulting Lender, the Borrower shall immediately (in the case of clause (iii) above) or within one Business Day (in all other cases) following any request by the Administrative Agent or the L/C Issuer provide Cash Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (iv) above, after giving effect to Section 2.15(b)  and any Cash Collateral provided by the Defaulting Lender).

 

(b)           Grant of Security Interest .  The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the Lenders, and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.14(c) .  If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent or the L/C Issuer as herein provided (other than Liens permitted under Sections 7.01(a) , (m)  and (n) ), or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.  All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit accounts at Bank of America.  The Borrower shall pay on demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral.

 

(c)           Application .  Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.14 or Sections 2.03 , 2.05 , 2.15 or

 

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8.02 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.

 

(d)           Release .  Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 11.06(b)(vi)) ) or (ii) the determination by the Administrative Agent and the L/C Issuer that there exists excess Cash Collateral; provided , however , (x) any such release shall be without prejudice to, and any disbursement or other transfer of Cash Collateral shall be and remain subject to, any other Lien conferred under the Loan Documents and the other applicable provisions of the Loan Documents, and (y) the Person providing Cash Collateral and the L/C Issuer may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.

 

2.15         Defaulting Lenders.

 

(a)           Adjustments .  Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:

 

(i)            Waivers and Amendments .  Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of “Required Lenders” and Section 11.01 .

 

(ii)           Defaulting Lender Waterfall .  Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 11.08 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first , to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second , to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the L/C Issuer or Swingline Lender hereunder; third , to Cash Collateralize the L/C Issuer’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.14 ; fourth , as the Borrower may request (so long as no Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth , if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the L/C Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.14 ; sixth , to the payment of any amounts owing to the Lenders, the L/C Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh , so long as no Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment

 

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of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth , to such Defaulting Lender or as otherwise as may be required under the Loan Documents in connection with any Lien conferred thereunder or directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.15(b) . Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.15(a)(ii)  shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

 

(iii)          Certain Fees .

 

(A)          No Defaulting Lender shall be entitled to receive any Commitment Fee payable pursuant to Section 2.09(a)  for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

 

(B)          Each Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Applicable Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.14 .

 

(C)          With respect to any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause (B) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations that has been reallocated to such Non-Defaulting Lender pursuant to clause (b) below, (y) pay to the L/C Issuer the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such L/C Issuer’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.

 

(b)           Reallocation of Applicable Percentages to Reduce Fronting Exposure .  All or any part of such Defaulting Lender’s participation in L/C Obligations and Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Commitment.  Subject to Section 11.20 , no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting

 

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Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

 

(c)           Cash Collateral, Repayment of Swingline Loans .  If the reallocation described in clause (b)  above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under applicable Law, (x)  first , prepay Swingline Loans in an amount equal to the Swingline Lenders’ Fronting Exposure and (y)  second , Cash Collateralize the L/C Issuer’s Fronting Exposure in accordance with the procedures set forth in Section 2.14 .

 

(d)           Defaulting Lender Cure .  If the Borrower, the Administrative Agent, the Swingline Lender and the L/C Issuer agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.15(b) ), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided , further , that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

 

2.16         Incremental Facility Loans .

 

Subject to the terms and conditions set forth herein, the Borrower shall have the right, from time to time and upon at least ten (10) Business Days’ prior written notice to the Administrative Agent (an “ Incremental Request ”), to request to incur additional term loans under a then existing tranche and/or add one or more additional tranches of term loans (“ Other Term Loans ” and, together with any additional term loans under a then existing tranche incurred pursuant to this Section 2.16 , the “ Incremental Term Loans ”; and any credit facility for providing for any Incremental Term Loans being referred to as an “ Incremental Term Facility ”) and/or increase the Aggregate Revolving Commitments (the “ Incremental Revolving Commitments ”; and revolving loans made thereunder the “ Incremental Revolving Loans ”); the Incremental Revolving Loans, together with the Incremental Term Loans are referred to herein as the “ Incremental Facility Loans ”) subject , however , in any such case, to satisfaction of the following conditions precedent:

 

(a)           the aggregate amount of all Incremental Revolving Commitments and Incremental Term Loans effected pursuant to this Section 2.16 shall not exceed $25,000,000;

 

(b)           on the date on which any Incremental Facility Amendment is to become effective, both immediately prior to and immediately after giving effect to the incurrence of such Incremental Facility Loans (assuming that the full amount of the Incremental Facility Loans shall have been funded on such date) and any related transactions, no Default shall have occurred and be continuing;

 

(c)           after giving effect to the incurrence of such Incremental Facility Loans (assuming the full amount of the Incremental Facility Loans have been funded) and any related transactions, on a Pro Forma Basis, the Loan Parties shall be in compliance with the financial covenants set forth in Section 7.11 ;

 

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(d)           the representations and warranties of each Loan Party contained in this Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) on and as of the date on which such Incremental Facility Amendment is to become effective, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or if such representation and warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct) as of such earlier date;

 

(e)           such Incremental Facility Loans shall be in a minimum amount of $10,000,000 and in integral multiples of $5,000,000 in excess thereof (or such lesser amounts as agreed by the Administrative Agent);

 

(f)            any Incremental Revolving Commitments shall be made on the same terms and provisions (other than upfront fees) as apply to the existing Revolving Commitments, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from the existing revolving credit facility set forth in Section 2.01(a) ;

 

(g)           any Incremental Term Loans that constitute additional term loans under a then existing tranche of term loans shall be made on the same terms and provisions (other than upfront fees) as apply to such outstanding term loans, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from such term loans;

 

(h)           in the case of any Other Term Loans, such Other Term Loans shall:  (A) rank pari passu in right of payment priority with the existing term loans, (B) share ratably in rights in the Collateral and the Guaranty, (C) have a maturity date that is no earlier than the Maturity Date of any other existing Term Loan, (D) have a Weighted Average Life to Maturity that is no shorter than the Weighted Average Life to Maturity of any other existing Term Loan (it being understood that, subject to the foregoing, the amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders of such Incremental Term Loans) and (E) otherwise be on terms reasonably satisfactory to the Administrative Agent, provided that, such terms and documentation relating to such Other Term Loans shall be on terms not materially more onerous, taken as a whole, to the Borrower than any other existing Term Loan (except to the extent permitted above with respect to the maturity date, amortization and interest rate and other than terms which are applicable only after the Maturity Date of any other existing Term Loan);

 

(i)            in the case of any Incremental Term Loans, such Incremental Term Loans shall not have an All-In Yield that is greater than the All-In Yield payable pursuant to the terms of this Agreement (as amended through the date of such calculation) with respect to any other existing Term Loan plus 50 basis points per annum, unless the interest rate with respect to any other existing Term Loan shall be increased (pursuant to the applicable Incremental Facility Amendment) so as to cause the then applicable All-In Yield under this Agreement on any other existing Term Loan to equal the All-In Yield then applicable to such Incremental Term Loans minus 50 basis points per annum;

 

(j)            the Administrative Agent shall have received additional commitments in a corresponding amount of such requested Incremental Facility Loans from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an additional commitment);

 

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(k)           the Administrative Agent shall have received customary closing certificates and legal opinions and all other documents (including resolutions of the board of directors of the Loan Parties) it may reasonably request relating to the corporate or other necessary authority for such Incremental Facility Loans and the validity of such Incremental Facility Loans, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent; and

 

(l)            the Administrative Agent shall have received all flood hazard determination certifications, acknowledgements and evidence of flood insurance and other flood-related documentation as required by applicable Law and as reasonably required by the Administrative Agent.

 

Notwithstanding anything to the contrary in this Section 2.16 , in the case of any Incremental Term Facility to be provided in connection with a Limited Condition Acquisition, at the sole option of the Borrower, the conditions in clauses (b) , (c)  and/or (d)  above may be subject to Section 1.07 .

 

Each Incremental Term Facility and any Incremental Revolving Commitments shall be evidenced by an amendment (an “ Incremental Facility Amendment ”) to this Agreement, giving effect to the modifications permitted by this Section 2.16 (and subject to the limitations set forth in the immediately preceding paragraph), executed by the Loan Parties, the Administrative Agent and each Lender providing a portion of the Incremental Term Facility and/or Incremental Revolving Commitments, as applicable; which such amendment, when so executed, shall amend this Agreement as provided therein.  Each Incremental Facility Amendment shall also require such amendments to the Loan Documents, and such other new Loan Documents, as the Administrative Agent reasonably deems necessary or appropriate to effect the modifications and credit extensions permitted by this Section 2.16 .  Neither any Incremental Facility Amendment, nor any such amendments to the other Loan Documents or such other new Loan Documents, shall be required to be executed or approved by any Lender, other than the Lenders providing such Incremental Term Loans and/or Incremental Revolving Commitments, as applicable, and the Administrative Agent, in order to be effective.  The effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth above and as such other conditions as requested by the Lenders under the Incremental Facility Loans established in connection therewith.

 

ARTICLE III

 

TAXES, YIELD PROTECTION AND ILLEGALITY

 

3.01         Taxes.

 

(a)           Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes .

 

(i)            Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Laws.  If any applicable Laws (as determined in the good faith discretion of the Administrative Agent) require the deduction or withholding of any Tax from any such payment by the Administrative Agent or a Loan Party, then the Administrative Agent or such Loan Party shall be entitled to make such deduction or withholding, upon the basis of the information and documentation to be delivered pursuant to subsection (e)  below.

 

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(ii)           If any Loan Party or the Administrative Agent shall be required by the Internal Revenue Code to withhold or deduct any Taxes, including both United States Federal backup withholding and withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or make such deductions as are determined by the Administrative Agent to be required based upon the information and documentation it has received pursuant to subsection (e)  below, (B) the Administrative Agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with the Internal Revenue Code, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section 3.01 ) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.

 

(iii)          If any Loan Party or the Administrative Agent shall be required by any applicable Laws other than the Internal Revenue Code to withhold or deduct any Taxes from any payment, then (A) such Loan Party or the Administrative Agent, as required by such Laws, shall withhold or make such deductions as are determined by it to be required based upon the information and documentation it has received pursuant to subsection (e)  below, (B) such Loan Party or the Administrative Agent, to the extent required by such Laws, shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with such Laws, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section 3.01 ) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.

 

(b)           Payment of Other Taxes by the Loan Parties .  Without limiting the provisions of subsection (a) above, the Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable Laws, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

 

(c)           Tax Indemnifications .  (i) Each of the Loan Parties shall, and does hereby, jointly and severally indemnify each Recipient, and shall make payment in respect thereof within ten days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01 ) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or the L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest error.  Each of the Loan Parties shall, and does hereby, jointly and severally indemnify the Administrative Agent, and shall make payment in respect thereof within ten days after demand therefor, for any amount which a Lender or the L/C Issuer for any reason fails to pay indefeasibly to the Administrative Agent as required pursuant to Section 3.01(c)(ii)  below.

 

(ii)           Each Lender and the L/C Issuer shall, and does hereby, severally indemnify, and shall make payment in respect thereof within 10 days after demand therefor,

 

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(x) the Administrative Agent against any Indemnified Taxes attributable to such Lender or the L/C Issuer (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (y) the Administrative Agent and the Loan Parties, as applicable, against any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.06(d)  relating to the maintenance of a Participant Register and (z) the Administrative Agent and the Loan Parties, as applicable, against any Excluded Taxes attributable to such Lender or the L/C Issuer, in each case, that are payable or paid by the Administrative Agent or a Loan Party in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender and the L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or the L/C Issuer, as the case may be, under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this clause (ii) .

 

(d)           Evidence of Payments .  As soon as practicable, after any payment of Taxes by any Loan Party to a Governmental Authority as provided in this Section 3.01 , such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

 

(e)           Status of Lenders; Tax Documentation .

 

(i)            Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A) , 3.01(e)(ii)(B)  and 3.01(e)(ii)(D)  below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

 

(ii)           Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person,

 

(A)          any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS

 

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Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

 

(B)          any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

 

(1)           in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

 

(2)           executed copies of IRS Form W-8ECI;

 

(3)           in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate substantially in the form of Exhibit 3.01-A to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code (a “ U.S. Tax Compliance Certificate ”) and (y) executed copies of IRS Form W-8BEN-E (or W-8BEN, as applicable); or

 

(4)           to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN-E (or W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit 3.01-B or Exhibit 3.01-C , IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit 3.01-D on behalf of each such direct and indirect partner;

 

(C)          any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies (or originals, as required) of any other form prescribed by

 

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applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and

 

(D)          if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by Law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the Closing Date.

 

(iii)          Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

 

(f)            Treatment of Certain Refunds .  Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such Lender or the L/C Issuer, as the case may be.  If any Recipient determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 3.01 , it shall pay to the Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by a Loan Party under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Loan Party, upon the request of the Recipient, agrees to repay the amount paid over to the Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this subsection, in no event will the applicable Recipient be required to pay any amount to the Loan Party pursuant to this subsection the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.  This subsection shall not be construed to require any Recipient to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Loan Party or any other Person.

 

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(g)           Survival .  Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender or the L/C Issuer, the termination of the Aggregate Revolving Commitments and the repayment, satisfaction or discharge of all other Obligations.

 

3.02         Illegality.

 

If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its Lending Office to perform any of its obligations hereunder or to make, maintain or fund or charge interest with respect to any Credit Extension or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (i) any obligation of such Lender to issue, make, maintain, fund or charge interest with respect to any such Credit Extension or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender, shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, (x) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal  for such Lender to determine or charge interest rates based upon the Eurodollar Rate.  Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.

 

3.03         Inability to Determine Rates.

 

(a)           If in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof, (i) the Administrative Agent determines that (A) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, or (B) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan (in each case with respect to clause (i), “ Impacted Loans ”), or (ii) the Administrative Agent or the Required Lenders determine that for any reason the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurodollar Rate Loan, the Administrative Agent will promptly so notify the Borrower and each Lender.  Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended (to the extent of the affected Eurodollar Rate Loans or Interest Periods), and (y) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate

 

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component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice.  Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.

 

(b)           Notwithstanding the foregoing, if the Administrative Agent has made the determination described in clause (a)(i) of this Section, the Administrative Agent, in consultation with the Borrower and the affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (a)(i) of this Section, (2) the Administrative Agent or the Required Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (3) any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrower written notice thereof.

 

3.04         Increased Costs; Reserves on Eurodollar Rate Loans.

 

(a)           Increased Costs Generally .  If any Change in Law shall:

 

(i)            impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement contemplated by Section 3.04(e) ) or the L/C Issuer;

 

(ii)           subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b)  through (d)  of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

 

(iii)          impose on any Lender or the L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Rate Loans made by such Lender or any Letter of Credit or participation therein;

 

and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.

 

(b)           Capital Requirements .  If any Lender or the L/C Issuer determines that any Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such

 

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Lender’s or the L/C Issuer’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction suffered.

 

(c)           Certificates for Reimbursement .  A certificate of a Lender or the L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to the Borrower shall be conclusive absent manifest error.  The Borrower shall pay such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate within ten days after receipt thereof.

 

(d)           Delay in Requests .  Failure or delay on the part of any Lender or the L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

 

(e)           Reserves on Eurodollar Rate Loans .  The Borrower shall pay to each Lender, as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which shall be due and payable on each date on which interest is payable on such Loan, provided the Borrower shall have received at least ten (10) days’ prior notice (with a copy to the Administrative Agent) of such additional interest or costs from such Lender.  If a Lender fails to give notice ten (10) days prior to the relevant Interest Payment Date, such additional interest shall be due and payable ten (10) days from receipt of such notice.

 

3.05         Compensation for Losses.

 

Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:

 

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(a)           any continuation, conversion, payment or prepayment of any Eurodollar Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);

 

(b)           any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Eurodollar Rate Loan on the date or in the amount notified by the Borrower; or

 

(c)           any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section 11.13 ;

 

excluding any loss of anticipated profits, but including any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained.  The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.  Notwithstanding the foregoing, this Section 3.05 shall not apply with respect to Excluded Taxes.

 

For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05 , each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Rate used in determining the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.

 

3.06         Mitigation Obligations; Replacement of Lenders.

 

(a)           Designation of a Different Lending Office .  If any Lender requests compensation under Section 3.04 , or requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender, the L/C Issuer, or any Governmental Authority for the account of any Lender or the L/C Issuer pursuant to Section 3.01 , or if any Lender gives a notice pursuant to Section 3.02 , then at the request of the Borrower such Lender or the L/C Issuer, as applicable, shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender or the L/C Issuer, as applicable, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04 , as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02 , as applicable, and (ii) in each case, would not subject such Lender or the L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or the L/C Issuer, as the case may be.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or the L/C Issuer in connection with any such designation or assignment.

 

(b)           Replacement of Lenders .  If any Lender requests compensation under Section 3.04 , or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 3.06(a) , the Borrower may replace such Lender in accordance with Section 11.13 .

 

3.07         Successor LIBOR.

 

Notwithstanding anything to the contrary in this Agreement or any other Loan Documents (including Section 11.01 hereof), if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrower or Required Lenders notify the Administrative Agent

 

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(with, in the case of the Required Lenders, a copy to the Borrower) that the Borrower or Required Lenders (as applicable) have determined, that:

 

(a)           adequate and reasonable means do not exist for ascertaining LIBOR for any requested Interest Period because the LIBOR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary;

 

(b)           the administrator of the LIBOR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which LIBOR or the LIBOR Screen Rate shall no longer be made available, or used for determining the interest rate of loans (such specific date, the “ Scheduled Unavailability Date ”); or

 

(c)           syndicated loans currently being executed, or that include language similar to that contained in this Section 3.08 , are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR;

 

then, reasonably promptly after such determination by the Administrative Agent or receipt by the Administrative Agent of such notice, as applicable,  the Administrative Agent and the Borrower may amend this Agreement to replace LIBOR with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due consideration to any evolving or then existing convention for similar Dollar denominated syndicated credit facilities for such alternative benchmarks (any such proposed rate, a “ LIBOR Successor Rate ”), together with any proposed LIBOR Successor Rate Conforming Changes (as defined below) and any such amendment shall become effective at 5:00 p.m. (New York time) on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders do not accept such amendment.

 

If no LIBOR Successor Rate has been determined and the circumstances under clause (i) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent will promptly so notify the Borrower and each Lender.  Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended, (to the extent of the affected Eurodollar Rate Loans or Interest Periods), and (y) the Eurodollar Rate component shall no longer be utilized in determining the Base Rate.  Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans (subject to the foregoing clause (y)) in the amount specified therein.

 

Notwithstanding anything else herein, any definition of LIBOR Successor Rate shall provide that in no event shall such LIBOR Successor Rate be less than zero for purposes of this Agreement.

 

3.08         Survival.

 

All of the Loan Parties’ obligations under this Article III shall survive termination of the Aggregate Revolving Commitments, repayment of all other Obligations hereunder, resignation of the Administrative Agent and the Facility Termination Date.

 

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ARTICLE IV

 

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

 

4.01         Conditions of Initial Credit Extension.

 

This Agreement shall become effective upon, and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to, the satisfaction of the following conditions precedent:

 

(a)           Receipt by the Administrative Agent of the following, each in form and substance satisfactory to the Administrative Agent and each Lender:

 

(i)            Loan Documents .  Executed counterparts of this Agreement and the other Loan Documents, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of this Agreement, by each Lender.

 

(ii)           Opinions of Counsel .  Favorable opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, dated as of the Closing Date.

 

(iii)          Organization Documents, Resolutions, Etc .

 

(A)          copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Loan Party to be true and correct as of the Closing Date;

 

(B)          such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; and

 

(C)          such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its state of organization or formation.

 

(iv)          Personal Property Collateral .

 

(A)          searches of Uniform Commercial Code filings in the jurisdiction of formation of each Loan Party and each other jurisdiction reasonably deemed appropriate by the Administrative Agent;

 

(B)          UCC financing statements for each appropriate jurisdiction as is necessary, in the Administrative Agent’s discretion, to perfect the Administrative Agent’s security interest in the Collateral;

 

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(C)          all certificates evidencing any certificated Equity Interests pledged to the Administrative Agent pursuant to the Security Agreement, together with duly executed in blank, undated stock powers attached thereto (unless, with respect to the pledged Equity Interests of any Foreign Subsidiary, such stock powers are deemed unnecessary by the Administrative Agent in its reasonable discretion under the Law of the jurisdiction of organization of such Person);

 

(D)          searches of ownership of, and Liens on, United States registered intellectual property of each Loan Party in the appropriate United States governmental offices; and

 

(E)           duly executed notices of grant of security interest in the form required by the Security Agreement as are necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative Agent’s security interest in the United States registered intellectual property of the Loan Parties; and

 

(v)           Evidence of Insurance .  Copies of insurance policies or certificates of insurance of the Loan Parties evidencing liability and casualty insurance meeting the requirements set forth in the Loan Documents, including naming the Administrative Agent and its successors and assigns as additional insured (in the case of liability insurance) or lenders loss payee (in the case of property insurance) on behalf of the Lenders.

 

(vi)          Solvency Certificate .  A certification from (i) the chief executive officer or chief financial officer of the Borrower as to the solvency of the Borrower, on a standalone basis and (ii) the chief executive officer or chief financial officer of Holdings as to the solvency of Holdings and its Subsidiaries, on a consolidated basis, in each case, after giving effect to the Transaction.

 

(vii)         Closing Certificate .  A certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.02(a)  and 4.02(b)  have been satisfied. Notwithstanding the foregoing, (A) the only representations the accuracy of which shall be a condition to the availability of the Revolving Loans on the Closing Date shall be the Specified Representations and the Specified Closing Date Merger Representations and (B)  Section 4.02(b)  shall not be a condition to the availability of the Revolving Loans on the Closing Date.

 

(b)           No Company Material Adverse Effect There shall not have occurred since November 3, 2017 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Company Material Adverse Effect.

 

(c)           Closing Date Merger .  The Closing Date Merger has been consummated (or shall be consummated, substantially concurrently with the funding of the Loans) substantially in accordance with the Closing Date Merger Documents. The Closing Date Merger Agreement shall not have been amended or waived, and no consent shall have been given thereunder, in any manner materially adverse to the interests of the Lenders without the prior written consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) .  For purposes of the foregoing condition, it is hereby understood and agreed that (i) amendments, waivers and other changes to the definition of “Company Material Adverse Effect”, and consents and requests given or made pursuant to such definition shall in each case be deemed to be materially adverse to the interests of the Lenders, (ii) any reduction in the purchase price in connection with the Closing Date Merger shall not be deemed to be materially adverse to the interests of the Lenders so long as such

 

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reduction is allocated to reduce the amount of the Term Loans, on the one hand, and the other consideration to be used to effect the Acquisition, on the other hand, on a pro rata basis, (iii) any reduction in the purchase price in connection with the Closing Date Merger shall not be deemed to be materially adverse to the interests of the Lenders so long as such reduction (other than pursuant to any purchase price or similar adjustment provision set forth in the Closing Date Merger Agreement) does not decrease the purchase price by more than ten percent (10%) (cumulative for all such reductions) without the prior written consent of the Arrangers (not to be unreasonably withheld, conditioned or delayed) and (iv) any increase in the purchase price in connection with the Closing Date Merger shall not be deemed to be material and adverse to the interests of the Lenders to the extent that such increase is funded with proceeds from issuance of common equity of Holdings.

 

(d)           Financial Statements .  Receipt by the Administrative Agent and the Lenders of the unaudited consolidated balance sheets and related statements of income and cash flows of IEA and its Subsidiaries for each month ended after September 30, 2017 and at least 45 days prior to the Closing Date.

 

(e)           Minimum Liquidity .  After giving effect to the Transaction, the Loan Parties shall have Liquidity of at least $20,000,000.

 

(f)            Refinance of Existing Indebtedness .  Holdings and its Subsidiaries shall have repaid all outstanding indebtedness (the “ Existing Indebtedness ”) and terminated all commitments to extend credit with respect to the Existing Indebtedness, and all Liens securing the Existing Indebtedness shall have been released (the “ Closing Date Refinancing ”).

 

(g)           Fees and expenses .  Receipt by the Administrative Agent, the Arrangers and the Lenders of any fees and expenses (including the fees and expenses of counsel required to be paid on or before the Closing Date.

 

(h)           Attorney Costs .  The Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).

 

Without limiting the generality of the provisions of the last paragraph of Section 9.03 , for purposes of determining compliance with the conditions specified in this Section 4.01 , each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

 

Notwithstanding anything herein to the contrary or any Collateral Document, it is understood that to the extent that any Liens in any Collateral (other than Liens perfected by the filing of a Uniform Commercial Code financing statement, the filing of short form security agreements with the United States Patent and Trademark Office or United States Copyright Office or the delivery of certificates evidencing Equity Interests (and related stock powers) of any Loan Party or any Domestic Subsidiary (other than an Immaterial Subsidiary)) is not provided on the Closing Date (a) without undue burden or expense to the Loan Parties or (ii) after the use of commercially reasonable efforts by the Loan Parties to do so, then the

 

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provision of such perfected Liens shall not constitute a condition precedent for purposes of this Section 4.01 but shall be required to be delivered within 30 days after the Closing Date (or such later date as agreed by the Administrative Agent) in accordance with Section 6.13 .

 

4.02         Conditions to all Credit Extensions.

 

The obligation of each Lender and the L/C Issuer to honor any Request for Credit Extension (other than a Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of Eurodollar Rate Loans) is (subject to Sections 1.07 and 2.16 ) subject to the following conditions precedent:

 

(a)           The representations and warranties of each Loan Party contained in this Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) on the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or if such representation and warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct) as of such earlier date.

 

(b)           No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.

 

(c)           With respect to any Term Loan Draw (other than a Term Loan Draw on the Closing Date the proceeds of which are used in accordance with Section 6.11(b)(i) ), after giving effect to such Term Loan Draw on a Pro Forma Basis, (i) the Consolidated Leverage Ratio shall not exceed the amount that is 0.25:1.0 less than the maximum Consolidated Leverage Ratio permitted under Section 7.11(a)  and (ii) the Loan Parties shall have Liquidity of at least $20,000,000.

 

(d)           The Administrative Agent and, if applicable, the L/C Issuer or the Swingline Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.

 

Each Request for Credit Extension (other than a Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of Eurodollar Rate Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a)  and (b)  have been satisfied on and as of the date of the applicable Credit Extension.

 

ARTICLE V

 

REPRESENTATIONS AND WARRANTIES

 

The Loan Parties represent and warrant to the Administrative Agent and the Lenders that:

 

5.01         Existence, Qualification and Power.

 

Each Loan Party and each Subsidiary (a) is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation

 

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of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

5.02         Authorization; No Contravention.

 

The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party (a) have been duly authorized by all necessary corporate or other organizational action, and (b) do not (i) contravene the terms of any of such Person’s Organization Documents; (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (A) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or  (B) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (iii) violate any Law.

 

5.03         Governmental Authorization; Other Consents.

 

No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document other than (a) those that have already been obtained and are in full force and effect and (b) filings to perfect the Liens created by the Collateral Documents.

 

5.04         Binding Effect.

 

Each Loan Document has been duly executed and delivered by each Loan Party that is party thereto.  Each Loan Document constitutes a legal, valid and binding obligation of each Loan Party that is party thereto, enforceable against each such Loan Party in accordance with its terms.

 

5.05         Financial Statements; No Material Adverse Effect.

 

(a)           The financial statements delivered pursuant to Sections 6.01(a)  and 6.01(b)  (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (ii) fairly present the financial condition of Holdings and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein (subject, in the case of unaudited financial statements, to the absence of footnotes and to normal year-end audit adjustments).

 

(b)           The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (ii) fairly present the financial condition of IEA and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby (subject, in the case of unaudited financial statements, to the absence of footnotes and to normal year-end audit adjustments).

 

(c)           From the date of the Audited Financial Statements to and including the Closing Date, there has been no Disposition or any Recovery Event of any material part of the business or property of the Loan Parties and their Subsidiaries, taken as a whole, and no purchase or other acquisition by any of them of any business or property (including any Equity Interests of any other Person) material in relation to the consolidated financial condition of the Loan Parties and their

 

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Subsidiaries, taken as a whole, in each case, which is not reflected in the foregoing financial statements or in the notes thereto and has not otherwise been disclosed in writing to the Lenders on or prior to the Closing Date.

 

(d)           Since the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.

 

5.06         Litigation.

 

There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Loan Parties after due and diligent investigation, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against any Loan Party or any Subsidiary or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or (b) either individually or in the aggregate could reasonably be expected to have a Material Adverse Effect.

 

5.07         No Default.

 

(a)           No Loan Party nor any Subsidiary is in default under or with respect to any Contractual Obligation that individually or in the aggregate could reasonably be expected to have a Material Adverse Effect.

 

(b)           No Default has occurred and is continuing.

 

5.08         Ownership of Property.

 

Each Loan Party and each of its Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, subject to Permitted Liens and to such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

5.09         Environmental Compliance.

 

(a)           To the knowledge of the Loan Parties there are no facts or circumstances that would reasonably be expected to result in capital expenditures required for compliance with Environmental Laws or claims alleging potential liability or responsibility for violation of any Environmental Law with respect to their respective businesses, operations and properties, in each case except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

(b)           Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (i) none of the properties currently or, to the knowledge of the Loan Parties, formerly owned or operated by any Loan Party or any Subsidiary is listed or proposed for listing on the National Priorities List under CERCLA or on the CERCLIS or any analogous foreign, state or local list or is adjacent to any such property; (ii) there are no and never have been any underground or above-ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned or operated by any Loan Party or any Subsidiary or, to the knowledge of the Loan Parties, on any property formerly owned or operated by any Loan Party or any Subsidiary; (iii) there is no asbestos or asbestos-containing material on any property currently owned or

 

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operated by any Loan Party or any Subsidiary; and (iv) Hazardous Materials have not been released, discharged or disposed of on any property currently or formerly owned or operated by any Loan Party or any Subsidiary.

 

(c)           No Loan Party nor any Subsidiary is undertaking, and has not completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of any Governmental Authority or the requirements of any Environmental Law; and all Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property currently or formerly owned or operated by any Loan Party or any Subsidiary have been disposed of in a manner not reasonably expected to result in material liability to any Loan Party or any Subsidiary, in each case except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

5.10         Insurance.

 

(a)           The properties of the Loan Parties and their Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of the Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the applicable Loan Party or the applicable Subsidiary operates.

 

(b)           Each Loan Party and its Subsidiaries maintain, if available, fully paid flood hazard insurance on all real property that is located in a special flood hazard area and that constitutes Collateral, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 or as otherwise required by the Administrative Agent.

 

5.11         Taxes.

 

Each Loan Party and its Subsidiaries have filed all U.S. federal and state income and other material tax returns and reports required to be filed, and have paid all federal and state income and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP.  There is no proposed tax assessment against any Loan Party or any Subsidiary that would, if made, have a Material Adverse Effect.  No Loan Party nor any Subsidiary is party to any tax sharing agreement with any Person other than another Loan Party; provided , that, the term “tax sharing agreement” shall not include customary commercial leases or any contracts, in each case entered into in the ordinary course of business, that are not primarily related to taxes.

 

5.12         ERISA Compliance.

 

(a)           Except as could not reasonably be expected to have a Material Adverse Effect, each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Internal Revenue Code and other federal or state Laws.  Except as could not reasonably be expected to have a Material Adverse Effect, each Pension Plan that is intended to be a qualified plan under Section 401(a) of the Internal Revenue Code has received a favorable determination letter or is subject to a favorable opinion letter from the IRS to the effect that the form of such Plan is qualified under Section 401(a) of the Internal Revenue Code and the trust related thereto has been determined by the IRS to be exempt from federal income tax under Section 501(a) of the Internal Revenue

 

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Code, or an application for such a letter is currently being processed by the IRS.  To the best knowledge of the Loan Parties, nothing has occurred that would reasonably be expected to prevent or cause the loss of such tax-qualified status.

 

(b)           There are no pending or, to the best knowledge of the Loan Parties, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect.  There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.

 

(c)           (i)  No ERISA Event has occurred, and no Loan Party nor any ERISA Affiliate is aware of any fact, event or circumstance that could reasonably be expected to constitute or result in an ERISA Event with respect to any Pension Plan or Multiemployer Plan; (ii) as of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Internal Revenue Code) is 60% or higher and no Loan Party nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage for any such plan to drop below 60% as of the most recent valuation date; (iii) no Loan Party nor any ERISA Affiliate has incurred any liability to the PBGC other than for the payment of premiums, and there are no premium payments which have become due that are unpaid; (iv) no Loan Party nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; and (v) no Pension Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan; and in the case of each of clauses (i)  to (v)  above, such event or conditions, if any, would reasonably be expected to result in a Material Adverse Effect.

 

(d)           The Borrower represents and warrants as of the Closing Date that the Borrower is not and will not be using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments.

 

5.13         Subsidiaries.

 

Set forth on Schedule 5.13 is a complete and accurate list as of the Closing Date of each Subsidiary of any Loan Party (and a designation of any Subsidiary that is an Immaterial Subsidiary), together with (i) jurisdiction of organization, (ii) number of shares of each class of Equity Interests outstanding, and (iii) number and percentage of outstanding shares of each class owned (directly or indirectly) by any Loan Party or any Subsidiary.  The outstanding Equity Interests of each Subsidiary of any Loan Party are validly issued, fully paid and non-assessable.

 

5.14         Margin Regulations; Investment Company Act.

 

(a)           The Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock.  Following the application of the proceeds of each Borrowing or drawing under each Letter of Credit, not more than 25% of the value of the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a consolidated basis) subject to the provisions of Section 7.01 or Section 7.05 or subject to any restriction contained in any agreement or instrument between the

 

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Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness and within the scope of Section 8.01(e)  will be margin stock.

 

(b)           None of the Borrower, any Person Controlling the Borrower, or any Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940.

 

5.15         Disclosure.

 

Each Loan Party has disclosed to the Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.  No report, financial statement, certificate or other information furnished (whether in writing or orally) by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case, as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, the Loan Parties represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.

 

5.16         Compliance with Laws.

 

Each Loan Party and Subsidiary is in compliance with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.

 

5.17         Intellectual Property; Licenses, Etc.

 

Each Loan Party and each Subsidiary owns, or possesses the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, “ IP Rights ”) that are reasonably necessary for the operation of their respective businesses, except as would not reasonably be expected to have a Material Adverse Effect.  Set forth on Schedule 5.17 is a list of all IP Rights registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office that, as of the date hereof, are owned by a Loan Party.  Except for such claims and infringements that could not reasonably be expected to have a Material Adverse Effect, as of the date hereof: (i) no claim has been asserted and is pending by any Person challenging or questioning the use of any IP Rights owned by a Loan Party or the validity or effectiveness of any IP Rights owned by a Loan Party, nor does any Loan Party know of any such claim, and (ii) to the knowledge of the Responsible Officers of the Loan Parties, the use of any IP Rights by any Loan Party or any Subsidiary or the granting of a right or a license in respect of any IP Rights from any Loan Party or any Subsidiary does not infringe on the rights of any Person.  As of the date hereof, none of the IP Rights owned by any Loan Party is subject to any licensing agreement, other than in the ordinary course of business, except as set forth on Schedule 5.17 .

 

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5.18         Solvency.

 

The Borrower is Solvent on a standalone basis, and Holdings and its Subsidiaries are Solvent on a consolidated basis, in each case, after giving effect to the Transaction.

 

5.19         Perfection of Security Interests in the Collateral.

 

The Collateral Documents create valid security interests in, and Liens on, the Collateral purported to be covered thereby, which security interests and Liens are currently perfected security interests and Liens, prior to all other Liens other than Permitted Liens.

 

5.20         Business Locations; Taxpayer Identification Number.

 

Set forth on Schedule 5.20(a)  is a list of all real property located in the United States that is owned or leased by any Loan Party as of the Closing Date.  Set forth on Schedule 5.20(b)  is the jurisdiction of organization, chief executive office, exact legal name, U.S. tax payer identification number and organizational identification number of each Loan Party as of the Closing Date.  Except as set forth on Schedule 5.20(c) , as of the Closing Date no Loan Party has during the five years preceding the Closing Date (i) changed its legal name, (ii) changed its state of formation or (iii) been party to a merger, consolidation or other change in structure.

 

5.21         OFAC .

 

None of the Loan Parties, nor any of their Subsidiaries, nor, to the knowledge of the Loan Parties and their Subsidiaries, any director, officer, employee, agent, affiliate or representative thereof, is an individual or entity that is, or is owned or controlled by any individual or entity that is (i) currently the subject or target of any Sanctions, (ii) included on OFAC’s List of Specially Designated Nationals, HMT’s Consolidated List of Financial Sanctions Targets and the Investment Ban List, or any similar list enforced by any other relevant sanctions authority or (iii) located, organized or resident in a Designated Jurisdiction.

 

5.22         Anti-Corruption Laws.

 

The Loan Parties and their Subsidiaries have conducted their businesses in compliance with the United States Foreign Corrupt Practices Act of 1977 (“ FCPA ), the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.

 

5.23         Use of Proceeds.

 

The Borrower has used proceeds of all Credit Extensions in accordance with Section 6.11 .

 

5.24         No EEA Financial Institution.

 

No Loan Party is an EEA Financial Institution.

 

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ARTICLE VI

 

AFFIRMATIVE COVENANTS

 

Until the Facility Termination Date, each Loan Party shall and shall cause each Subsidiary to:

 

6.01         Financial Statements.

 

Deliver to the Administrative Agent and each Lender, in form and detail reasonably satisfactory to the Administrative Agent ( provided , that the Audited Financial Statements are in form and detail satisfactory to the Administrative Agent):

 

(a)           as soon as available, but in any event within 120 days after the end of each fiscal year of Holdings (or, if earlier, 30 days after the date required to be filed with the SEC (without giving effect to any extension permitted by the SEC)), commencing with the fiscal year ending December 31, 2017, a consolidated balance sheet of Holdings and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, and in the case of such consolidated statements audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification (other than as a result of the impending Maturity Date) or exception or any qualification or exception as to the scope of such audit; and

 

(b)           as soon as available, but in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year of Holdings (or, if earlier, 30 days after the date required to be filed with the SEC (without giving effect to any extension permitted by the SEC)), commencing with the fiscal quarter ending March 31, 2018, a consolidated balance sheet of Holdings and its Subsidiaries as at the end of such fiscal quarter, the related consolidated statements of income or operations for such fiscal quarter and for the portion of Holdings’ fiscal year then ended, and the related consolidated statements of changes in shareholders’ equity and cash flows for such fiscal quarter and for the portion of Holdings’ fiscal year then ended, in each case setting forth in comparative form, as applicable, the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and, in the case of such consolidated statements, certified by the chief executive officer, chief financial officer, treasurer or controller of Holdings as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of Holdings and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.

 

As to any information contained in materials furnished pursuant to Section 6.02(c) , Holdings shall not be separately required to furnish such information under Section 6.01(a)  or 6.01(b) , but the foregoing shall not be in derogation of the obligation of Holdings to furnish the information and materials described in Section 6.01(a)  or 6.01(b)  at the times specified therein.

 

Notwithstanding the foregoing, the obligations in paragraphs (a)  and (b)  of this Section 6.01 may be satisfied with respect to any financial statements of Holdings, at the option of Holdings, by furnishing the applicable financial statements of Pubco’s Form 10-K or 10-Q, as applicable, filed with the SEC or any securities exchange, in each case, within the time periods specified in such paragraphs; provided , that (i) such financial statements shall be accompanied by consolidating information that summarizes in reasonable detail any material differences between the information related to Pubco, on the one hand, and the information relating solely to Holdings and its Subsidiaries on a consolidated basis, on the other hand and (ii) to the extent such statements are in lieu of the statements required to be provided under Section 6.01(a) , such statements shall be accompanied by a report and opinion of an independent certified public account of nationally recognized standing, which report and opinion shall satisfy the applicable requirements set forth in Section 6.01(a) .

 

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6.02         Certificates; Other Information.

 

Deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:

 

(a)           concurrently with the delivery of the financial statements referred to in Sections 6.01(a)  and 6.01(b) , a duly completed Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of Holdings which shall include such supplements to Schedule 5.17 , as are necessary such that, as supplemented, such Schedule would be accurate and complete as of the date of such Compliance Certificate (which delivery may be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes);

 

(b)           not later than 60 days after the beginning of each fiscal year of Holdings, commencing with the fiscal year beginning January 1, 2019, an annual business plan and budget of Holdings and its Subsidiaries containing, among other things, pro forma financial statements for each quarter of such fiscal year;

 

(c)           promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the equityholders of any Loan Party or any Subsidiary, and copies of all annual, regular, periodic and special reports and registration statements which a Loan Party or any Subsidiary may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;

 

(d)           promptly after any request by the Administrative Agent or any Lender, copies of any detailed final audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of Holdings by independent accountants in connection with the accounts or books of Holdings or any Subsidiary, or any audit of any of them;

 

(e)           promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of any Loan Party or any Subsidiary pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02 ;

 

(f)            promptly, and in any event within five (5) Business Days after receipt thereof by any Loan Party or any Subsidiary, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary; and

 

(g)           promptly, such additional information regarding the business, financial or corporate affairs of any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or Required Lenders may from time to time reasonably request.

 

Documents required to be delivered pursuant to Section 6.01(a)  or 6.01(b)  or Section 6.02(c)  (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Holdings posts such documents, or provides a link thereto on Holdings’ website on the Internet at the website address

 

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listed on Schedule 11.02 ; or (ii) on which such documents are posted on Holdings’ behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third party website or whether sponsored by the Administrative Agent); provided that: Holdings shall notify the Administrative Agent and each Lender (by facsimile or e-mail) of the posting of any such documents and provide to the Administrative Agent by e-mail electronic versions ( i.e. , soft copies) of such documents.  The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by Holdings any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

 

Each Loan Party hereby acknowledges that (a) the Administrative Agent and/or an Affiliate thereof may, but shall not be obligated to, make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of such Loan Party hereunder (collectively, “ Borrower Materials ”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar or a substantially similar electronic transmission system (the “ Platform ”) and (b) certain of the Lenders (each a “ Public Lender ”) may have personnel who do not wish to receive material non-public information with respect to such Loan Party or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities.  Each Loan Party hereby agrees that so long as such Loan Party is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” such Loan Party shall be deemed to have authorized the Administrative Agent, any Affiliate thereof, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to such Loan Party or its securities for purposes of United States federal and state securities Laws ( provided , however , that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07 ); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent and any Affiliate thereof shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated as “Public Side Information.”  Notwithstanding the foregoing, the Loan Parties shall be under no obligation to mark any Borrower Materials “PUBLIC.”

 

6.03         Notices.

 

Promptly notify the Administrative Agent and each Lender of:

 

(a)           the occurrence of any Default;

 

(b)           any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect;

 

(c)           the occurrence of any ERISA Event;

 

(d)           any material change in accounting policies or financial reporting practices by any Loan Party or any Subsidiary; and

 

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(e)           any draw on any surety or performance bond or any beneficiary in respect of any surety or performance bond shall have elected to have the bonding company assume or provide for the assumption of the performance obligations covered thereby.

 

Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a Responsible Officer of Holdings setting forth details of the occurrence referred to therein and stating what action the Loan Parties have taken and proposes to take with respect thereto.  Each notice pursuant to Section 6.03(a)  shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.

 

6.04         Payment of Taxes.

 

Pay and discharge, as the same shall become due and payable, all federal and state income and other material tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by such Loan Party or such Subsidiary.

 

6.05         Preservation of Existence, Etc.

 

(a)           Preserve, renew and maintain in full force and effect its legal existence under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 7.04 or 7.05 .

 

(b)           Preserve, renew and maintain in full force and effect its good standing under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 7.04 or 7.05 .

 

(c)           Take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

(d)           Maintain or renew all of its registered IP Rights, the non-preservation or non-renewal of which could reasonably be expected to have a Material Adverse Effect.

 

6.06         Maintenance of Properties.

 

(a)           Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted.

 

(b)           Make all necessary repairs thereto and renewals and replacements thereof, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

(c)           Use the standard of care typical in the industry in the operation and maintenance of its facilities.

 

6.07         Maintenance of Insurance.

 

(a)           Maintain in full force and effect insurance (including worker’s compensation insurance, liability insurance, casualty insurance and business interruption insurance) with

 

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financially sound and reputable insurance companies not Affiliates of the Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where such Loan Party or such Subsidiary operates.

 

(b)           Without limiting the foregoing, (i) maintain, if available, fully paid flood hazard insurance on all real property that is located in a special flood hazard area and that constitutes Collateral, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 or as otherwise required by the Administrative Agent, (ii) furnish to the Administrative Agent evidence of the renewal (and payment of renewal premiums therefor) of all such policies prior to the expiration or lapse thereof, and (iii) furnish to the Administrative Agent prompt written notice of any redesignation of any such improved real property into or out of a special flood hazard area of which it has knowledge.

 

(c)           Cause the Administrative Agent and its successors and assigns to be named as lender’s loss payee or mortgagee, as its interest may appear, and/or additional insured with respect to any such insurance providing liability coverage or coverage in respect of any Collateral, and cause each provider of any such insurance to agree, by endorsement upon the policy or policies issued by it or by independent instruments furnished to the Administrative Agent, that it will give the Administrative Agent thirty days (or such lesser amount as the Administrative Agent may agree) prior written notice before any such policy or policies shall be altered or canceled.

 

6.08         Compliance with Laws.

 

Comply with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.

 

6.09         Books and Records.

 

(a)           Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of such Loan Party or such Subsidiary, as the case may be.

 

(b)           Maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over such Loan Party or such Subsidiary, as the case may be.

 

6.10         Inspection Rights.

 

Permit representatives and independent contractors of the Administrative Agent to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the expense of the Borrower and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrower; provided , however , that (i) absent an Event of Default, the Borrower shall be required to pay for only one such visit and/or inspection per fiscal year and (ii) when an Event of Default exists, the Administrative Agent (or any of its representatives or independent contractors) may do any of the foregoing

 

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at the expense of the Borrower at any time during normal business hours and without advance notice, all at the expense of the Borrower.

 

6.11         Use of Proceeds.

 

(a)           Use the proceeds of the Revolving Loans (i) on the Closing Date, solely (x) to refinance the Existing Indebtedness (including replacing or backstopping existing letters of credit of IEA), (y) for Transaction Expenses (as defined in the Closing Date Merger Agreement), (z) for Cash Consideration (as defined in the Closing Date Merger Agreement); provided , that Revolving Loans shall only be used for the purposes described in clauses (y) and (z), so long as the maximum amount of the Term Loan permitted to be drawn pursuant to Section 6.11(b)(i)  is funded on the Closing Date and (ii) after the Closing Date, for working capital, capital expenditures and other lawful corporate purposes of Holdings (including distributions to Pubco to the extent permitted by this Agreement) and its Subsidiaries.

 

(b)           Use the proceeds of the Term Loan solely (i) on the Closing Date, for Cash Consideration (as defined in the Closing Date Merger Agreement) and Transaction Expenses (as defined in the Closing Date Merger Agreement) in an aggregate amount not to exceed $24,000,000 and (ii) after the Closing Date, for capital expenditures and/or to finance Permitted Acquisitions, in each case, including financing of related fees and expenses and distributions to Holdings to consummate such transactions, not in contravention of any law or the definitive loan documentation.

 

provided that in no event shall the proceeds of the Credit Extensions be used in contravention of any Law or of any Loan Document.

 

6.12         ERISA Compliance.

 

Do, and cause each of its ERISA Affiliates to do, each of the following: (a) maintain each Plan in compliance in all material respects with the applicable provisions of ERISA, the Internal Revenue Code and other federal or state Law; (b) cause each Plan that is qualified under Section 401(a) of the Internal Revenue Code to maintain such qualification; and (c) make all required contributions to any Plan subject to Section 412, Section 430 or Section 431 of the Internal Revenue Code, except in the cases of each of clauses (a) , (b)  and (c)  above, would not reasonably be likely to have a Material Adverse Effect.

 

6.13         Additional Guarantors.

 

Within thirty days (or such later date as the Administrative Agent may agree in its sole discretion) after any Person becomes a Domestic Subsidiary, cause such Person (other than any Immaterial Subsidiary) to (a) become a Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement or such other documents as the Administrative Agent shall deem appropriate for such purpose, and (b) upon the request of the Administrative Agent in its sole discretion, deliver to the Administrative Agent such Organization Documents, resolutions and favorable opinions of counsel, all in form, content and scope reasonably satisfactory to the Administrative Agent; provided , however , that any Immaterial Subsidiary ceasing to be an Immaterial Subsidiary shall be deemed to constitute the acquisition of a Subsidiary for all purposes of this Section 6.13 .

 

6.14         Pledged Assets.

 

(a)           Equity Interests .  Cause (i) 100% of the issued and outstanding Equity Interests of each Domestic Subsidiary and (ii) 65% (or such greater percentage that, due to a change in an

 

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applicable Law after the Closing Date, the Administrative Agent in consultation with the Borrower determines (A) could not reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary or FSHCO as determined for United States federal income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary’s or FSHCO’s United States parent and (B) could not reasonably be expected to cause any material adverse tax consequences) of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary or FSHCO directly owned by any Loan Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Collateral Documents, and, in connection with the foregoing, deliver to the Administrative Agent such other documentation as the Administrative Agent may request including, any filings and deliveries to perfect such Liens and favorable opinions of counsel all in form and substance reasonably satisfactory to the Administrative Agent.

 

(b)           Other Property .  Cause all property (other than Excluded Property) of each Loan Party to be subject at all times to first priority, perfected and, in the case of real property (other than Excluded Property), title insured Liens in favor of the Administrative Agent to secure the Obligations pursuant to the Collateral Documents (subject to Permitted Liens) and, in connection with the foregoing, deliver to the Administrative Agent such other documentation as the Administrative Agent may request including filings and deliveries necessary to perfect such Liens, Organization Documents, resolutions, and favorable opinions of counsel to such Person, all in form, content and scope reasonably satisfactory to the Administrative Agent.  With respect to real property (other than Excluded Property) acquired after the Closing Date, the Loan Parties shall have sixty (60) days (or such later time as agreed by the Administrative Agent) to deliver Real Property Security Documents with respect thereto.

 

6.15         Anti-Corruption Laws.

 

Conduct its businesses in compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and other similar anti-corruption legislation in other jurisdictions and maintain policies and procedures designed to promote and achieve compliance with such laws.

 

ARTICLE VII

 

NEGATIVE COVENANTS

 

Until the Facility Termination Date, no Loan Party shall, nor shall it permit any Subsidiary to, directly or indirectly:

 

7.01         Liens.

 

Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:

 

(a)           Liens pursuant to any Loan Document;

 

(b)           Liens existing on the Closing Date and listed on Schedule 7.01 and any renewals or extensions thereof, provided that the property covered thereby is not increased;

 

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(c)           Liens (other than Liens imposed under ERISA) for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;

 

(d)           Liens of carriers, warehousemen, mechanics, materialmen and repairmen or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person;

 

(e)           pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;

 

(f)            deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;

 

(g)           survey exceptions, minor title defects, easements, rights-of-way, covenants, restrictions and other non-monetary encumbrances affecting real property which do not in any case materially detract from the use and operation of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;

 

(h)           Liens securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments) not constituting an Event of Default under Section 8.01(h) ;

 

(i)            Liens securing Indebtedness permitted under Section 7.03(e) ; provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and (ii) such Liens attach to such property concurrently with or within ninety days after the acquisition thereof;

 

(j)            leases, subleases, licenses or sublicenses (including with respect to IP Rights) granted to others not interfering in any material respect with the business of any Loan Party or any Subsidiary;

 

(k)           any interest of title of a lessor under, and Liens arising from UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases permitted by this Agreement;

 

(l)            Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 7.02(a) ;

 

(m)          normal and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions;

 

(n)           Liens of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection; and

 

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(o)           Liens on an insurance policy of the Borrower or any Subsidiary and the identifiable cash proceeds thereof in favor of the issuer of such policy (or any of its affiliates) and securing Indebtedness permitted to finance the premiums of such policies.

 

7.02         Investments.

 

Make any Investments, except:

 

(a)           Investments held in the form of cash or Cash Equivalents;

 

(b)           Investments existing as of the Closing Date and set forth on Schedule 7.02 ;

 

(c)           Investments in any Person that is a Loan Party prior to or concurrently with giving effect to such Investment;

 

(d)           Investments by any Subsidiary that is not a Loan Party in any other Subsidiary that is not a Loan Party;

 

(e)           Investments in any Subsidiary that is not a Loan Party in an amount not to exceed $2,500,000 at any one time outstanding;

 

(f)            Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;

 

(g)           Guarantees permitted by Section 7.03 ;

 

(h)           Permitted Acquisitions; and

 

(i)            Investments of a nature not contemplated in the foregoing clauses in an amount not to exceed $10,000,000 in the aggregate at any time outstanding.

 

7.03         Indebtedness.

 

Create, incur, assume or suffer to exist any Indebtedness, except:

 

(a)           Indebtedness under the Loan Documents;

 

(b)           Indebtedness outstanding on the Closing Date set forth on Schedule 7.03-1 (and renewals, refinancings and extensions thereof); provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, renewal or extension are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the Lenders than the terms of the Indebtedness being refinanced, renewed or extended;

 

(c)           intercompany Indebtedness permitted under Section 7.02 ; provided that in the case of Indebtedness owing by a Loan Party to a Foreign Subsidiary (i) such Indebtedness shall be

 

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subordinated prior to the Obligations in a manner and to an extent reasonably acceptable to the Administrative Agent and (ii) such Indebtedness shall not be prepaid unless no Default exists immediately prior to or after giving effect to such prepayment;

 

(d)           obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;

 

(e)           purchase money Indebtedness (including obligations in respect of capital leases and Synthetic Lease Obligations) (i) outstanding on the Closing Date set forth on Schedule 7.03-2 and (ii) hereafter incurred to finance the purchase of fixed assets, and renewals, refinancings and extensions thereof, provided that (x) after giving effect to the incurrence of such Indebtedness on a Pro Forma Basis, the Loan Parties would be in compliance with the financial covenants set forth in Section 7.11 ; and (y) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed;

 

(f)            Indebtedness consisting of Earn-Out Obligations, indemnification obligations, purchase price adjustments, holdbacks or similar obligations and guarantee obligations, in each case in connection with Acquisitions, dispositions of property and Investments and indemnification obligations arising under Contractual Obligations incurred in the ordinary course of business; provided , that, with respect to such Indebtedness consisting of unsecured seller notes issued pursuant to the definitive documentation in connection with Permitted Acquisitions, the maximum amount of interest payable at the time of issuance of such notes shall not exceed $3,000,000 in the aggregate for all seller notes;

 

(g)           the letters of credit set forth on Schedule 7.03-3 issued on behalf of IEA; provided that such letters of credit are not extended or renewed beyond their existing maturities; and

 

(h)           Indebtedness incurred in connection with the financing of insurance premiums in an aggregate amount at any time outstanding not to exceed the premiums owed under such policy;

 

(i)            surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;

 

(j)            other unsecured Indebtedness in an aggregate principal amount not to exceed $10,000,000 at any one time outstanding; and

 

(k)           Guarantees with respect to Indebtedness permitted under this Section 7.03 .

 

7.04         Fundamental Changes.

 

Merge, dissolve, liquidate or consolidate with or into another Person, except that so long as no Default exists or would result therefrom, (a) any Subsidiary may merge or consolidate with any other Subsidiary provided that if the Borrower is a party to such transaction, the Borrower is the continuing or surviving Person, (b) any Subsidiary of the Borrower may merge or consolidate with any other Subsidiary of the Borrower provided that if a Guarantor is a party to such transaction, the continuing or surviving Person is a Guarantor, (c) the Borrower or any Subsidiary may merge with any other Person in connection with a Permitted Acquisition provided that (i) if the Borrower is a party to such transaction, the Borrower

 

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is the continuing or surviving Person and (ii) if the Borrower is not a party to such transaction and a Guarantor is a party to such transaction, the surviving Person is or becomes a Guarantor concurrently with such transaction and (d) any Subsidiary (other than the Borrower) may dissolve, liquidate or wind up its affairs at any time provided that such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect.

 

7.05         Dispositions.

 

Make any Disposition except:

 

(a)           Permitted Transfers;

 

(b)           Dispositions of non-core assets (including any Subsidiary, line of business or other assets) acquired in connection with a Permitted Acquisition so long as (i) such non-core assets are identified by Holdings in a written notice delivered to the Administrative Agent within thirty (30) days prior to the Disposition thereof, (ii) the fair market value of such non-core assets does not exceed 25% of the aggregate consideration for such Acquisition and (iii) at the time of such Disposition, no Event of Default shall have occurred and be continuing or would result from such Disposition;

 

(c)           other Dispositions so long as (i) at least 75% of the consideration paid in connection therewith shall be cash or Cash Equivalents paid contemporaneously with consummation of the transaction and shall be in an amount not less than the fair market value of the property disposed of, (ii) if such transaction is a Sale and Leaseback Transaction, such transaction is not prohibited by the terms of Section 7.15 , (iii) such transaction does not involve the sale or other disposition of a minority Equity Interest in any Subsidiary, (iv) such transaction does not involve a sale or other disposition of receivables other than receivables owned by or attributable to other property concurrently being disposed of in a transaction otherwise permitted under this Section 7.05 , and (v) the aggregate net book value of all of the assets sold or otherwise disposed of by the Loan Parties and their Subsidiaries in all such transactions (excluding Sale and Leaseback Transactions) in any fiscal year of Holdings shall not exceed $5,000,000.

 

7.06         Restricted Payments.

 

Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:

 

(a)           each Subsidiary may make Restricted Payments to Persons that own Equity Interests in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;

 

(b)           each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;

 

(c)           Holdings may make Permitted Tax Distributions;

 

(d)           Holdings may make distributions to Pubco to pay customary public company expenses;

 

(e)           Holdings may make Restricted Payments to Pubco to pay dividends, in an amount not to exceed the amount provided for in Section 4 of the certificate of designation in effect on the

 

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Closing Date, on the Series A Preferred Stock of Pubco that is outstanding on the Closing Date so long as no Event of Default shall have occurred and be continuing or would result from such payment; and

 

(f)            other Restricted Payments in an aggregate principal amount not to exceed $1,000,000.

 

7.07         Change in Nature of Business.

 

Engage in any material line of business substantially different from those lines of business conducted by the Loan Parties and their Subsidiaries on the Closing Date or any business substantially related or incidental thereto.

 

7.08         Transactions with Affiliates.

 

(a)           Enter into or permit to exist any transaction or series of transactions with any Affiliate of such Person, whether or not in the ordinary course of business, other than (i) advances of working capital to any Loan Party, (ii) transfers of cash and assets to any Loan Party, (iii) intercompany transactions expressly permitted by Section 7.02 , Section 7.03 , Section 7.04 , Section 7.05 or Section 7.06 , (iv) normal and reasonable compensation and reimbursement of expenses of officers and directors, (v) the Affiliate Real Property Lease ( provided the Affiliate Real Property Lease shall not be amended in any manner adverse to the Lenders) and (vi)  except as otherwise specifically limited in this Agreement, other transactions which are on terms and conditions substantially as favorable to such Person as would be obtainable by it in a comparable arms-length transaction with a Person other than an Affiliate.

 

(b)           Pay any credit support or similar fees to any Affiliate or to any manager, director, officer or employee of Holdings or any Subsidiary.

 

7.09         Burdensome Agreements.

 

Enter into, or permit to exist, any Contractual Obligation (except for the Loan Documents) that (a) encumbers or restricts the ability of any such Person to (i) make Restricted Payments to any Loan Party, (ii) pay any Indebtedness or other obligation owed to any Loan Party, (iii) make loans or advances to any Loan Party, (iv) transfer any of its property to any Loan Party, (v) pledge its property pursuant to the Loan Documents or any renewals, refinancings, exchanges, refundings or extension thereof  or (vi) act as a Loan Party pursuant to the Loan Documents or any renewals, refinancings, exchanges, refundings or extension thereof, except (in respect of any of the matters referred to in clauses (i) through (v) above) for (1) any document or instrument governing Indebtedness incurred pursuant to Section 7.03(e) , provided that any such restriction contained therein relates only to the asset or assets constructed or acquired in connection therewith, (2) any agreement in effect at the time any Subsidiary becomes a Subsidiary of Holdings, so long as such agreement was not entered into solely in contemplation of such Person becoming a Subsidiary of Holdings, or (3) customary restrictions and conditions contained in any agreement relating to the sale of any property permitted under Section 7.05 pending the consummation of such sale, or (b) requires the grant of any security for any obligation if such property is given as security for the Obligations.

 

7.10         Use of Proceeds.

 

Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the

 

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FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.

 

7.11         Financial Covenants.

 

(a)           Consolidated Leverage Ratio .  Permit the Consolidated Leverage Ratio as of the end of any fiscal quarter of the Borrower, commencing with the fiscal quarter ending June 30, 2018, to be greater than 3.00:1.0.

 

(b)           Consolidated EBITDA .  Permit Consolidated EBITDA as of the end of any fiscal quarter of the Borrower, commencing with the fiscal quarter ending June 30, 2018, to be less than $35,000,000.

 

7.12         Restrictions on Payment of Earn-Out Obligations.

 

Pay any Earn-Out Obligation unless, at the time of such payment, (i) no Event of Default shall have occurred and be continuing at the time of such payment and (ii) after giving effect to such payment Liquidity shall be at least $20,000,000.

 

7.13         Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of Entity.

 

(a)           Amend, modify or change its Organization Documents in a manner adverse to the Lenders.

 

(b)           Change its fiscal year.

 

(c)           Without providing ten days prior written notice to the Administrative Agent (or such lesser period as the Administrative Agent may agree), change its name, state of formation or form of organization.

 

7.14         Ownership of Subsidiaries.

 

Notwithstanding any other provisions of this Agreement to the contrary, (a) permit any Person (other than Holdings or any wholly-owned Subsidiary) to own any Equity Interests of any Subsidiary except (i) to qualify directors where required by applicable Law or to satisfy other requirements of applicable Law with respect to the ownership of Equity Interests of Foreign Subsidiaries or (ii) existing at the time of acquisition of such Subsidiary, or (b) permit any Subsidiary to issue or have outstanding any shares of preferred Equity Interests.

 

7.15         Sale Leasebacks.

 

Enter into any Sale and Leaseback Transaction unless (a) such Sale and Leaseback Transaction comprises real property acquired in a Permitted Acquisition, (b) after giving effect to such Sale and Leaseback Transaction on a Pro Forma Basis, the Loan Parties would be in compliance with the financial covenants set forth in Section 7.11 and (c) at the time of such Sale and Leaseback Transaction, no Event of Default shall have occurred and be continuing or would result from such Sale and Leaseback Transaction.

 

7.16         Capital Expenditures.

 

Permit Consolidated Capital Expenditures that are not financed with the proceeds of Indebtedness (other than revolving Indebtedness) to exceed $20,000,000 during any fiscal year.

 

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7.17         Restrictions on Holdings.

 

Notwithstanding anything to the contrary in this Agreement, Holdings shall not (a) hold any material property other than cash and Cash Equivalents and the Equity Interests of the Borrower, (b) have any material liabilities other than (i) obligations under the Loan Documents, its Organization Documents, the Closing Date Merger Documents and contracts and agreements (including with respect to indemnities) with officers, directors, consultants and employees of Holdings relating to their employment, services or directorships, (ii) tax liabilities in the ordinary course of business or incurred as a member of the consolidated group of Holdings and its Subsidiaries, and (iii) corporate, administrative and operating expenses incurred in the ordinary course of business, or (c) engage in any business other than (i) maintaining its existence and activities related thereto, (ii) owning the Equity Interests of the Borrower and activities incidental or related thereto, (iii) performing its obligations under the Loan Documents and contracts and agreements (including with respect to indemnities) with officers, directors, consultants and employees of Holdings relating to their employment, services or directorships and (iv) activities in the ordinary course reasonably related to the foregoing.

 

7.18         Sanctions.

 

Directly or indirectly, use any Credit Extension or the proceeds of any Credit Extension, or lend, contribute or otherwise make available such Credit Extension or the proceeds of any Credit Extension to any Person, to fund any activities of or business with any Person, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as Lender, Arranger, Administrative Agent, L/C Issuer, Swingline Lender, or otherwise) of Sanctions.

 

7.19         Anti-Corruption Laws.

 

Directly or indirectly use any Credit Extension or the proceeds of any Credit Extension for any purpose which would breach the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 or other similar anti-corruption legislation in other jurisdictions.

 

ARTICLE VIII

 

EVENTS OF DEFAULT AND REMEDIES

 

8.01         Events of Default.

 

Any of the following shall constitute an “Event of Default”:

 

(a)           Non-Payment .  Any Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan or any L/C Obligation or deposit any funds as Cash Collateral in respect of L/C Obligations, or (ii) within three days after the same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) within five days after the same becomes due, any other amount payable hereunder or under any other Loan Document; or

 

(b)           Specific Covenants .  Any Loan Party fails to perform or observe any term, covenant or agreement contained in any of Section 6.01 , 6.02 , 6.03(a) , 6.05(a) , 6.10 or 6.11 or Article VII (subject to, with respect to the financial covenants set forth in Section 7.11 , use of a Cure Right under Section 8.04 ); or

 

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(c)           Other Defaults .  Any Loan Party fails to perform or observe any other covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for thirty (30) days after the earlier of (i) a Responsible Officer of such Loan Party obtains actual knowledge of such default, or (ii) the date on which written notice thereof is delivered by the Administrative Agent to the Borrower; or

 

(d)           Representations and Warranties .  Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading when made or deemed made; or

 

(e)           Cross-Default .  (i) Any Loan Party or any Subsidiary (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which any Loan Party or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which any Loan Party or any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by such Loan Party or such Subsidiary as a result thereof is greater than the Threshold Amount; or

 

(f)            Insolvency Proceedings, Etc .  Any Loan Party or any Subsidiary institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for sixty calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for sixty calendar days, or an order for relief is entered in any such proceeding; or

 

(g)           Inability to Pay Debts; Attachment .  (i) Any Loan Party or any Subsidiary becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within thirty days after its issue or levy; or

 

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(h)           Judgments .  There is entered against any Loan Party or any Subsidiary (i) one or more final judgments or orders for the payment of money in an aggregate amount (as to all such judgments or orders) exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which the insurer has been notified of the claim and does not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of thirty (30) consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or

 

(i)            ERISA .  (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of any Loan Party under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or

 

(j)            Invalidity of Loan Documents .  Any provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect or ceases to give the Administrative Agent any material part of the Liens purported to be created thereby; or any Loan Party or any other Person contests in any manner the validity or enforceability of any provision of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any provision of any Loan Document, or purports to revoke, terminate or rescind any Loan Document; or

 

(k)           Change of Control .  There occurs any Change of Control.

 

8.02         Remedies Upon Event of Default.

 

If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:

 

(a)           declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;

 

(b)           declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;

 

(c)           require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the Minimum Collateral Amount with respect thereto); and

 

(d)           exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies available to it, the Lenders and the L/C Issuer under the Loan Documents or applicable Law or at equity;

 

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provided , however , that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.

 

8.03         Application of Funds.

 

After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02 ), any amounts received on account of the Obligations shall, subject to the provisions of Sections 2.14 and 2.15 , be applied by the Administrative Agent in the following order:

 

First , to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III ) payable to the Administrative Agent in its capacity as such;

 

Second , to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuer and amounts payable under Article III ), ratably among them in proportion to the respective amounts described in this clause Second payable to them;

 

Third , to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans and L/C Borrowings, ratably among the Lenders and the L/C Issuer in proportion to the respective amounts described in this clause Third payable to them;

 

Fourth , to (a) payment of that portion of the Obligations constituting unpaid principal of the Loans and L/C Borrowings, (b) payment of Obligations then owing under any Secured Hedge Agreements, (c) payment of Obligations then owing under any Secured Cash Management Agreements and (d) Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit, ratably among the Lenders, the L/C Issuer, the Hedge Banks and the Cash Management Banks in proportion to the respective amounts described in this clause Fourth payable to them; and

 

Last , the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.

 

Subject to Sections 2.03(c)  and 2.14 , amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fourth above shall be applied to satisfy drawings under such Letters of Credit as they occur.  If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.  Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts received from such Guarantor or such Guarantor’s assets, but appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the allocation to Obligations otherwise set forth above in this Section.

 

Notwithstanding the foregoing, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements shall be excluded from the application described above if the

 

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Administrative Agent has not received a Secured Party Designation Notice, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be (unless such Cash Management Bank or Hedge Bank is the Administrative Agent or an Affiliate thereof).  Each Cash Management Bank or Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX for itself and its Affiliates as if a “Lender” party hereto.

 

8.04         Right to Cure Financial Covenant Defaults.

 

In the event that the Loan Parties fail to comply with any financial covenant contained in Section 7.11 (a “ Financial Covenant Default ”) as of the end of any fiscal quarter of Holdings (the “ Relevant Quarter ”), Holdings shall have the right to cure such Event of Default on the following terms and conditions (the “ Cure Right ”):

 

(a)           Cure Notice .  In the event Holdings desires to cure a Financial Covenant Default for the Relevant Quarter, Holdings shall deliver to the Administrative Agent irrevocable written notice of its intent to cure (a “ Cure Notice ”) no later than the date on which financial statements and a Compliance Certificate are delivered pursuant to Section 6.01(a)  or (b)  for such Relevant Quarter (the “ Cure Notice Date ”); provided , however , that in no event shall the Cure Right be exercised (i) in consecutive fiscal quarters or (ii) more than three (3) times during the term of this Agreement.

 

(b)           Issuance of Equity Interests .  In the event Holdings delivers a Cure Notice, Holdings may (i) issue common Equity Interests not containing any requirement to make a cash payment (whether dividends, scheduled redemptions, mandatory redemptions or otherwise) for cash consideration (“ Permitted Equity ”) not later than ten (10) Business Days after the Cure Notice Date for such Relevant Quarter or (ii) designate any Permitted Equity issued after the first day of the Relevant Quarter, in each case, in an amount equal to (and not in excess of) the amount needed to cure the applicable Financial Covenant Defaults (the “ Cure Amount ”).  Such Cure Amount received by Holdings shall be included in the calculation of Consolidated EBITDA solely for the purposes of determining compliance with the financial covenants in Section 7.11 at the end of the Relevant Quarter and any subsequent period that includes such fiscal quarter, but shall be disregarded for purposes of the calculation of Consolidated EBITDA for all other purposes (including, without limitation, calculating borrowing availability, calculating basket levels and other items governed by reference to Consolidated EBITDA).  The principal amount of the Loans prepaid with the proceeds of the Cure Amount shall be deemed outstanding for purposes of determining compliance with the financial covenants for the Relevant Quarter and the next three (3) fiscal quarters thereafter.

 

(c)           Cure .  Upon timely receipt by the Borrower in cash of the Cure Amount and payment of the mandatory prepayment pursuant to Section 2.05(b) , the Loan Parties shall be deemed to have been in compliance with such financial covenant contained in Section 7.11 as of the relevant date of determination with the same effect as though there had been no Financial Covenant Default and the applicable Financial Covenant Default and any related Default or Event of Default resulting solely from such Financial Covenant Default shall be deemed cured.

 

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ARTICLE IX

 

ADMINISTRATIVE AGENT

 

9.01         Appointment and Authority.

 

Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.  The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and no Loan Party shall have rights as a third party beneficiary of any of such provisions.  It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.

 

The Administrative Agent shall also act as the “ collateral agent ” under the Loan Documents, and each of the Lenders (in its capacities as a Lender, Swingline Lender (if applicable), potential Hedge Banks and potential Cash Management Banks) and the L/C Issuer hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto.  In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all provisions of this Article IX and Article XI (including Section 11.04(c) , as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.

 

9.02         Rights as a Lender.

 

The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Loan Party or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or to provide notice to or consent of the Lenders with respect thereto.

 

9.03         Exculpatory Provisions.

 

The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature.  Without limiting the generality of the foregoing, the Administrative Agent and its Related Parties:

 

(a)           shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;

 

(b)           shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by

 

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the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and

 

(c)           shall not, except as expressly set forth herein and in the other Loan Documents, have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.

 

Neither the Administrative Agent nor any of its Related Parties shall be liable for any action taken or not taken by the Administrative Agent under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby or thereby (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 11.01 and 8.02 ) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment.  The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given in writing to the Administrative Agent by a Loan Party, a Lender or the L/C Issuer.

 

Neither the Administrative Agent nor any of its Related Parties have any duty or obligation to any Lender or participant or any other Person to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.

 

9.04         Reliance by Administrative Agent.

 

The Administrative Agent shall be entitled to rely upon, and shall be fully protected in relying and shall not incur any liability for relying upon, any notice, request, certificate, communication, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person.  The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall be fully protected in relying and shall not incur any liability for relying thereon.  In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit.  The Administrative Agent may consult with legal counsel (who may be counsel for the Loan

 

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Parties), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

 

9.05         Delegation of Duties.

 

The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub agents appointed by the Administrative Agent.  The Administrative Agent and any such sub agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties.  The exculpatory provisions of this Article shall apply to any such sub agent and to the Related Parties of the Administrative Agent and any such sub agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.  The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.

 

9.06         Resignation of Administrative Agent.

 

(a)           The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuer and the Borrower.  Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States.  If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “ Resignation Effective Date ”), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above, provided that in no event shall any such successor Administrative Agent be a Defaulting Lender.  Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.

 

(b)           If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable Law, by notice in writing to the Borrower and such Person remove such Person as Administrative Agent and, in consultation with the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty days (or such earlier day as shall be agreed by the Required Lenders) (the “ Removal Effective Date ”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.

 

(c)           With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and the L/C Issuer directly,

 

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until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above.  Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative Agent (other than as provided in Section 3.01(g)  and other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section).  The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.  After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 11.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them (i) while the retiring or removed Administrative Agent was acting as Administrative Agent and (ii) after such resignation or removal for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including (A) acting as collateral agent or otherwise holding any collateral security on behalf of any of the Lenders and (B) in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent.

 

(d)           Any resignation by or removal of Bank of America as Administrative Agent pursuant to this Section shall also constitute its resignation as L/C Issuer and Swingline Lender.  If Bank of America resigns as an L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto, including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c) .  If Bank of America resigns as Swingline Lender, it shall retain all the rights of the Swingline Lender provided for hereunder with respect to Swingline Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swingline Loans pursuant to Section 2.04(c) .  Upon the appointment by the Borrower of a successor L/C Issuer or Swingline Lender hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swingline Lender, as applicable, (ii) the retiring L/C Issuer and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (iii) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.

 

9.07         Non-Reliance on Administrative Agent and Other Lenders.

 

Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each Lender and the L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

 

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9.08         No Other Duties; Etc.

 

Anything herein to the contrary notwithstanding, none of the bookrunners, arrangers, syndication agents, documentation agents or co-agents shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.

 

9.09         Administrative Agent May File Proofs of Claim; Credit Bidding.

 

In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:

 

(a)           to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer and the Administrative Agent under Sections 2.03(h) , 2.03(i) , 2.09 and 11.04 ) allowed in such judicial proceeding; and

 

(b)           to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

 

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09 and 11.04 .

 

Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or the L/C Issuer in any such proceeding.

 

The holders of the Obligations hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code of the United States, including under Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any similar Laws in any other jurisdictions to which a Loan Party is subject, (b) at any other sale or foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable Law.  In connection with any such credit bid and purchase, the Obligations owed to the holders thereof shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with

 

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respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that would vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) in the asset or assets so purchased (or in the Equity Interests or debt instruments of the acquisition vehicle or vehicles that are used to consummate such purchase).  In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles to make a bid, (ii) to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or Equity Interests thereof shall be governed, directly or indirectly, by the vote of the Required Lenders, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in clauses (a)(i) through (a)(vi) of Section 11.01 , and (ii) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of debt credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Lenders pro rata and the Equity Interests and/or debt instruments issued by any acquisition vehicle on account of the Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled, without the need for any Lender or any acquisition vehicle to take any further action.

 

9.10         Collateral and Guaranty Matters.

 

Without limiting the provisions of Section 9.09 , each of the Lenders (including in its capacities as a potential Cash Management Bank and a potential Hedge Bank) and the L/C Issuer irrevocably authorize the Administrative Agent, at its option and in its discretion,

 

(a)           to release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon the Facility Termination Date, (ii) that is sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted hereunder or under any other Loan Document or any Recovery Event, or (iii) as approved in accordance with Section 11.01 ;

 

(b)           to subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 7.01(i) ; and

 

(c)           to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents.

 

Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty, pursuant to this Section 9.10 .

 

The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.

 

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9.11         Secured Cash Management Agreements and Secured Hedge Agreements.

 

Except as otherwise expressly set forth herein, no Cash Management Bank or Hedge Bank that obtains the benefit of Section 8.03 , the Guaranty or any Collateral by virtue of the provisions hereof or any Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) (or to notice of or to consent to any amendment, waiver or modification of the provisions hereof or of the Guaranty or any Collateral Document) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents.  Notwithstanding any other provision of this Article IX to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements except to the extent expressly provided herein and unless the Administrative Agent has received a Secured Party Designation Notice of such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be.  The Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements in the case of the Facility Termination Date.

 

9.12         ERISA Matters.

 

(a)           Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:

 

(i)          such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments,

 

(ii)         the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,

 

(iii)        (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or

 

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(iv)        such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.

 

(b)           In addition, unless subclause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in subclause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that:

 

(i)          none of the Administrative Agent or the Arrangers or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related to hereto or thereto),

 

(ii)         the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),

 

(iii)        the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations),

 

(iv)        the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under ERISA or the Internal Revenue Code, or both, with respect to the Loans, the Letters of Credit, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and

 

(v)         no fee or other compensation is being paid directly to the Administrative Agent, any of the Arrangers or any their respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Letters of Credit, the Commitments or this Agreement.

 

(c)           The Administrative Agent and each of the Arrangers hereby inform the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive

 

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fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.

 

ARTICLE X

 

GUARANTY

 

10.01       The Guaranty.

 

Each of the Guarantors hereby jointly and severally guarantees to each Lender, the L/C Issuer and each other holder of Obligations as hereinafter provided, as primary obligor and not as surety, the prompt payment of the Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly in accordance with the terms thereof.  The Guarantors hereby further agree that if any of the Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise), the Guarantors will, jointly and severally, promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) in accordance with the terms of such extension or renewal.

 

Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents or the other documents relating to the Obligations, the obligations of each Guarantor under this Agreement and the other Loan Documents shall not exceed an aggregate amount equal to the largest amount that would not render such obligations subject to avoidance under applicable Debtor Relief Laws.

 

10.02       Obligations Unconditional.

 

The obligations of the Guarantors under Section 10.01 are joint and several, absolute and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the Loan Documents or other documents relating to the Obligations, or any substitution, release, impairment or exchange of any other guarantee of or security for any of the Obligations, and, to the fullest extent permitted by applicable Law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 10.02 that the obligations of the Guarantors hereunder shall be absolute and unconditional under any and all circumstances.  Each Guarantor agrees that such Guarantor shall have no right of subrogation, indemnity, reimbursement or contribution against the Borrower or any other Loan Party for amounts paid under this Article X until such time as the Obligations have been paid in full and the Commitments have expired or terminated.  Without limiting the generality of the foregoing, it is agreed that, to the fullest extent permitted by Law, the occurrence of any one or more of the following shall not alter or impair the liability of any Guarantor hereunder, which shall remain absolute and unconditional as described above:

 

(a)           at any time or from time to time, without notice to any Guarantor, the time for any performance of or compliance with any of the Obligations shall be extended, or such performance or compliance shall be waived;

 

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(b)           any of the acts mentioned in any of the provisions of any of the Loan Documents or other documents relating to the Obligations shall be done or omitted;

 

(c)           the maturity of any of the Obligations shall be accelerated, or any of the Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Loan Documents or other documents relating to the Obligations shall be waived or any other guarantee of any of the Obligations or any security therefor shall be released, impaired or exchanged in whole or in part or otherwise dealt with;

 

(d)           any Lien granted to, or in favor of, the Administrative Agent or any other holder of the Obligations as security for any of the Obligations shall fail to attach or be perfected; or

 

(e)           any of the Obligations shall be determined to be void or voidable (including for the benefit of any creditor of any Guarantor) or shall be subordinated to the claims of any Person (including any creditor of any Guarantor).

 

With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Administrative Agent or any other holder of the Obligations exhaust any right, power or remedy or proceed against any Person under any of the Loan Documents or any other document relating to the Obligations, or against any other Person under any other guarantee of, or security for, any of the Obligations.

 

10.03       Reinstatement.

 

The obligations of each Guarantor under this Article X shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Person in respect of the Obligations is rescinded or must be otherwise restored by any holder of any of the Obligations, whether as a result of any Debtor Relief Law or otherwise, and each Guarantor agrees that it will indemnify the Administrative Agent and each other holder of the Obligations on demand for all reasonable costs and expenses (including the fees, charges and disbursements of counsel) incurred by the Administrative Agent or such holder of the Obligations in connection with such rescission or restoration, including any such costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any Debtor Relief Law.

 

10.04       Certain Additional Waivers.

 

Each Guarantor agrees that such Guarantor shall have no right of recourse to security for the Obligations, except through the exercise of rights of subrogation pursuant to Section 10.02 and through the exercise of rights of contribution pursuant to Section 10.06 .

 

10.05       Remedies.

 

The Guarantors agree that, to the fullest extent permitted by Law, as between the Guarantors, on the one hand, and the Administrative Agent and the other holders of the Obligations, on the other hand, the Obligations may be declared to be forthwith due and payable as specified in Section 8.02 (and shall be deemed to have become automatically due and payable in the circumstances specified in Section 8.02 ) for purposes of Section 10.01 notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the Obligations from becoming automatically due and payable) as against any other Person and that, in the event of such declaration (or the Obligations being deemed to have become automatically due and payable), the Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by the Guarantors for purposes of Section 10.01 .  The Guarantors

 

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acknowledge and agree that their obligations hereunder are secured in accordance with the terms of the Collateral Documents and that the holders of the Obligations may exercise their remedies thereunder in accordance with the terms thereof.

 

10.06       Rights of Contribution.

 

The Guarantors hereby agree as among themselves that, if any Guarantor shall make an Excess Payment (as defined below), such Guarantor shall have a right of contribution from each other Guarantor in an amount equal to such other Guarantor’s Contribution Share (as defined below) of such Excess Payment.  The payment obligations of any Guarantor under this Section 10.06 shall be subordinate and subject in right of payment to the Obligations until such time as the Obligations have been paid-in-full and the Commitments have terminated, and none of the Guarantors shall exercise any right or remedy under this Section 10.06 against any other Guarantor until such Obligations have been paid-in-full and the Commitments have terminated.  For purposes of this Section 10.06 , (a) “ Excess Payment ” shall mean the amount paid by any Guarantor in excess of its Ratable Share of any Obligations; (b) “ Ratable Share ” shall mean, for any Guarantor in respect of any payment of Obligations, the ratio (expressed as a percentage) as of the date of such payment of Obligations of (i) the amount by which the aggregate present fair salable value of all of its assets and properties exceeds the amount of all debts and liabilities of such Guarantor (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Guarantor hereunder) to (ii) the amount by which the aggregate present fair salable value of all assets and other properties of all of the Loan Parties exceeds the amount of all of the debts and liabilities (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of the Loan Parties hereunder) of the Loan Parties; provided , however , that, for purposes of calculating the Ratable Shares of the Guarantors in respect of any payment of Obligations, any Guarantor that became a Guarantor subsequent to the date of any such payment shall be deemed to have been a Guarantor on the date of such payment and the financial information for such Guarantor as of the date such Guarantor became a Guarantor shall be utilized for such Guarantor in connection with such payment; and (c) “ Contribution Share ” shall mean, for any Guarantor in respect of any Excess Payment made by any other Guarantor, the ratio (expressed as a percentage) as of the date of such Excess Payment of (i) the amount by which the aggregate present fair salable value of all of its assets and properties exceeds the amount of all debts and liabilities of such Guarantor (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Guarantor hereunder) to (ii) the amount by which the aggregate present fair salable value of all assets and other properties of the Loan Parties other than the maker of such Excess Payment exceeds the amount of all of the debts and liabilities (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of the Loan Parties) of the Loan Parties other than the maker of such Excess Payment; provided , however , that, for purposes of calculating the Contribution Shares of the Guarantors in respect of any Excess Payment, any Guarantor that became a Guarantor subsequent to the date of any such Excess Payment shall be deemed to have been a Guarantor on the date of such Excess Payment and the financial information for such Guarantor as of the date such Guarantor became a Guarantor shall be utilized for such Guarantor in connection with such Excess Payment.  This Section 10.06 shall not be deemed to affect any right of subrogation, indemnity, reimbursement or contribution that any Guarantor may have under Law against the Borrower in respect of any payment of Obligations.

 

10.07       Guarantee of Payment; Continuing Guarantee.

 

The guarantee in this Article X is a guaranty of payment and not of collection, is a continuing guarantee, and shall apply to the Obligations whenever arising.

 

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10.08       Keepwell.

 

Each Loan Party that is a Qualified ECP Guarantor at the time the Guaranty in this Article X by any Loan Party that is not then an “eligible contract participant” under the Commodity Exchange Act (a “ Specified Loan Party ”) or the grant of a security interest under the Loan Documents by any such Specified Loan Party, in either case, becomes effective with respect to any Swap Obligation, hereby  jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by such Specified Loan Party from time to time to honor all of its obligations under the Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Article X voidable under applicable Debtor Relief Laws, and not for any greater amount).  The obligations and undertakings of each Qualified ECP Guarantor under this Section shall remain in full force and effect until the Obligations have been indefeasibly paid and performed in full.  Each Loan Party intends this Section to constitute, and this Section shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each Specified Loan Party for all purposes of the Commodity Exchange Act.

 

ARTICLE XI

 

MISCELLANEOUS

 

11.01       Amendments, Etc.

 

Except as provided in Sections 2.01(b)  and 2.16 with respect to an Incremental Facility Amendment, no amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by any Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and the Borrower or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided , however , that

 

(a)           no such amendment, waiver or consent shall:

 

(i)            extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02 ) without the written consent of such Lender (it being understood and agreed that a waiver of any condition precedent set forth in Section 4.02 or of any Default or a mandatory reduction in Commitments is not considered an extension or increase in Commitments of any Lender);

 

(ii)           postpone any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due to the Lenders (or any of them) or any scheduled reduction of the Commitments hereunder or under any other Loan Document without the written consent of each Lender entitled to receive such payment or whose Commitments are to be reduced;

 

(iii)          reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (i) of the final proviso to this Section 11.01 ) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender entitled to receive such amount; provided , however , that (A) only the consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate and (B) an amendment to any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce

 

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the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder shall not be deemed to be a reduction of the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or any fees or other amounts payable hereunder or under any other Loan Document;

 

(iv)          change Section 8.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender directly and adversely affected thereby;

 

(v)           change any provision of this Section 11.01(a)  or the definition of “Required Lenders” without the written consent of each Lender directly and adversely affected thereby;

 

(vi)          release all or substantially all of the Collateral without the written consent of each Lender whose Obligations are secured by such Collateral;

 

(vii)         release the Borrower without the consent of each Lender, or, except in connection with a transaction permitted under Section 7.04 or Section 7.05 , all or substantially all of the value of the Guaranty without the written consent of each Lender whose Obligations are guarantied thereby, except to the extent such release is permitted pursuant to Section 9.10 (in which case such release may be made by the Administrative Agent acting alone); or

 

(b)           unless also signed by the L/C Issuer, no amendment, waiver or consent shall affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it;

 

(c)           unless also signed by the Swingline Lender, no amendment, waiver or consent shall affect the rights or duties of the Swingline Lender under this Agreement; and

 

(d)           unless also signed by the Administrative Agent, no amendment, waiver or consent shall affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document;

 

provided , further , that notwithstanding anything to the contrary herein, (i) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (ii) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein , (iii) the Required Lenders shall determine whether or not to allow a Loan Party to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Lenders and (iv) Incremental Facility Amendments may be effected in accordance with Section 2.16 .

 

No Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of such Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects such Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender.

 

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Notwithstanding any provision herein to the contrary, this Agreement may be amended with the written consent of the Required Lenders, the Administrative Agent and the Loan Parties (i) to add one or more additional revolving credit or term loan facilities to this Agreement and to permit the extensions of credit and all related obligations and liabilities arising in connection therewith from time to time outstanding to share ratably (or on a basis subordinated to the existing facilities hereunder) in the benefits of this Agreement and the other Loan Documents with the obligations and liabilities from time to time outstanding in respect of the existing facilities hereunder, and (ii) in connection with the foregoing, to permit, as deemed appropriate by the Administrative Agent and approved by the Required Lenders, the Lenders providing such additional credit facilities to participate in any required vote or action required to be approved by the Required Lenders or by any other number, percentage or class of Lenders hereunder.

 

Notwithstanding anything to the contrary herein, this Agreement may be amended and restated without the consent of any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated, such Lender shall have no other commitment or other obligation hereunder and shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement.

 

Notwithstanding any provision herein to the contrary (x) the Administrative Agent and the Borrower may amend, modify or supplement this Agreement or any other Loan Document to cure or correct administrative errors or omissions, any ambiguity, omission, defect or inconsistency or to effect administrative changes, and such amendment shall become effective without any further consent of any other party to such Loan Document so long as (i) such amendment, modification or supplement does not adversely affect the rights of any Lender or other holder of Obligations in any material respect and (ii) the Lenders shall have received at least five (5) Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five (5) Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment and (y) the Administrative Agent and the Borrower may make amendments contemplated by Section 3.07 .

 

11.02       Notices; Effectiveness; Electronic Communications.

 

(a)           Notices Generally .  Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:

 

(i)            if to any Loan Party, the Administrative Agent, the L/C Issuer or the Swingline Lender, to the address, facsimile number, e-mail address or telephone number specified for such Person on Schedule 11.02 ; and

 

(ii)           if to any other Lender, to the address, facsimile number, e-mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the Borrower).

 

Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal

 

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business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient).  Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b).

 

(b)           Electronic Communications .  Notices and other communications to the Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic communication (including e mail, FpML messaging, and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication.  The Administrative Agent, the Swingline Lender, the L/C Issuer or the Borrower may each, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.

 

Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement) and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i)  and (ii) , if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.

 

(c)           The Platform .  THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent or any of its Related Parties (collectively, the “ Agent Parties ”) have any liability to the Borrower, any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of any Loan Party’s or the Administrative Agent’s transmission of Borrower Materials or notices through the Platform, any other electronic platform or electronic messaging service, or through the Internet.

 

(d)           Change of Address, Etc .  Each of the Borrower, the Administrative Agent, the L/C Issuer and the Swingline Lender may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the other parties hereto.  Each other Lender may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swingline Lender.  In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, facsimile number and e-mail address to which notices and other communications may be sent and

 

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(ii) accurate wire instructions for such Lender.  Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States Federal or state securities Laws.

 

(e)           Reliance by Administrative Agent, L/C Issuer and Lenders .  The Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including telephonic or electronic notices, Loan Notices, Letter of Credit Applications and Swingline Loan Notices) purportedly given by or on behalf of any Loan Party even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof.  The Loan Parties shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of a Loan Party.  All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.

 

11.03       No Waiver; Cumulative Remedies; Enforcement.

 

No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder  or under any other Loan Document (including the imposition of the Default Rate) preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document are cumulative and not exclusive of any rights, remedies, powers and privileges provided by Law.

 

Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and the L/C Issuer; provided , however , that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) the L/C Issuer or the Swingline Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swingline Lender, as the case may be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 11.08 (subject to the terms of Section 2.13 ), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided , further , that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.13 , any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.

 

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11.04       Expenses; Indemnity; Damage Waiver .

 

(a)           Costs and Expenses .  The Loan Parties shall pay (i) all reasonable costs and expenses incurred by the Administrative Agent and its Affiliates (limited, in the case of legal fees and expenses, to the reasonable fees and disbursements and other charges of one counsel for the Administrative Agent, and, if reasonably necessary, of one local counsel for the Administrative Agent and in each relevant material jurisdiction) in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable costs and expenses incurred by the L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all costs and expenses incurred by the Administrative Agent, any Lender or the L/C Issuer (limited, in the case of legal fees and expenses, to the reasonable fees and disbursements and other charges of one counsel for the Administrative Agent, the Lenders and the L/C Issuer taken as a whole, and, if reasonably necessary, of one local counsel for the Administrative Agent, the Lenders and the L/C Issuer taken as a whole in each relevant material jurisdiction and, solely in the case of a conflict of interest, one additional counsel in each relevant jurisdiction for each group of similarly situated Persons), and shall pay all fees and time charges for attorneys who may be employees of the Administrative Agent, any Lender or the L/C Issuer, in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section 11.04 , or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such out of pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.

 

(b)           Indemnification by the Loan Parties .  The Loan Parties shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender, the L/C Issuer and each Arranger, and each Related Party of any of the foregoing Persons (each such Person being called an “ Indemnitee ”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (limited, in the case of legal fees and expenses, to the reasonable fees and disbursements and other charges of one counsel for the Indemnitees taken as a whole, and, if reasonably necessary, of one local counsel for all Indemnitees taken as a whole in each relevant material jurisdiction and, solely in the case of a conflict of interest, one additional counsel in each relevant material jurisdiction for each group of similarly situated Indemnitees), and shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any Person (including any Loan Party) arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.01) , (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by a Loan Party or any of its Subsidiaries, or any Environmental Liability related in any way to a Loan Party or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any

 

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other theory, whether brought by a third party or by any Loan Party, and regardless of whether any Indemnitee is a party thereto , IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE ; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or (2) a material breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document or (B) arise from any settlement of any claim, litigation, investigation or proceeding entered into by such Indemnitee without the Borrower’s consent (which consent shall not be unreasonably withheld, conditioned or delayed).  Without limiting the provisions of Section 3.01(c) , this Section 11.04(b)  shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.

 

(c)           Reimbursement by Lenders .  To the extent that the Loan Parties for any reason fail to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by them to the Administrative Agent (or any sub-agent thereof), the L/C Issuer, the Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the L/C Issuer, the Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Total Credit Exposures of all Lenders at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender), such payment to be made severally among them based on such Lenders’ Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought), provided , further that, the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent), the L/C Issuer or the Swingline Lender in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent), the L/C Issuer or the Swingline Lender in connection with such capacity.  The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.12(d) .

 

(d)           Waiver of Consequential Damages, Etc .  To the fullest extent permitted by applicable Law, no Loan Party shall assert, and each Loan Party hereby waives, and acknowledges that no other Person shall have, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.  No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.

 

(e)           Payments .  All amounts due under this Section shall be payable not later than ten (10) Business Days after demand therefor.

 

(f)            Survival .  The agreements in this Section and the indemnity provisions of Section 11.02(e)  shall survive the resignation of the Administrative Agent, the L/C Issuer and the Swingline Lender, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations.

 

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11.05       Payments Set Aside.

 

To the extent that any payment by or on behalf of any Loan Party is made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect.  The obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.

 

11.06       Successors and Assigns.

 

(a)           Successors and Assigns Generally .  The provisions of this Agreement and the other Loan Documents shall be binding upon and inure to the benefit of the parties hereto and thereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder or thereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (e) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

(b)           Assignments by Lenders .  Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including all or a portion of its Commitment and the Loans (including for purposes of this subsection (b), participations in L/C Obligations and in Swingline Loans) at the time owing to it); provided that any such assignment shall be subject to the following conditions:

 

(i)            Minimum Amounts .

 

(A)          in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the related Loans at the time owing to it or contemporaneous assignments to related Approved Funds (determined after giving effect to such assignments) that equal at least the amount specified in subsection (b)(i)(B)  of this Section in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and

 

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(B)          in any case not described in subsection (b)(i)(A)  of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 in the case of any assignment in respect of a Revolving Commitment (and the related Revolving Loans thereunder), $5,000,000 in the case of any assignment in respect of a Term Loan Commitment and $1,000,000 in the case of any assignment in respect of any funded Term Loan unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed).

 

(ii)           Proportionate Amounts .  Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s Loans and Commitments, and rights and obligations with respect thereto, assigned, except that this clause (ii) shall not (A) apply to the Swingline Lender’s rights and obligations in respect of Swingline Loans or (B) prohibit any Lender from assigning all or a portion of its rights and obligations in respect of its Revolving Commitment (and the related Revolving Loans thereunder) and its outstanding Term Loans on a non-pro rata basis.

 

(iii)          Required Consents .  No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:

 

(A)          the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default under Section 8.01(a) , (f)  or (g)  has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof;

 

(B)          the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of (1) any unfunded Term Loan Commitment or any Revolving Commitment if such assignment is to a Person that is not a Lender with a Commitment in respect of the applicable facility subject to such assignment, an Affiliate of such Lender or an Approved Fund with respect to such Lender or (2) any Term Loan to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund; and

 

(C)          the consent of the L/C Issuer and the Swingline Lender shall be required for any assignment in respect of Revolving Loans and Revolving Commitments.

 

(iv)          Assignment and Assumption .  The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided , however , that the Administrative Agent may, in its sole discretion, elect to waive such processing and

 

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recordation fee in the case of any assignment.  The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.

 

(v)           No Assignment to Certain Persons .  No such assignment shall be made to (A) Holdings, the Borrower or any of the Borrower’s Affiliates or Subsidiaries, (B) any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) a natural Person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural Person).

 

(vi)          Certain Additional Payments .  In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, the L/C Issuer or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swingline Loans in accordance with its Applicable Percentage.  Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

 

Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01, 3.04 , 3.05 and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment); provided , that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.  Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender.  Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section.

 

(c)           Register .  The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of

 

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the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “ Register ”).  The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement.  The Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.

 

(d)           Participations .  Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural Person), a Defaulting Lender or Holdings, the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swingline Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.  For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 11.04(c)  without regard to the existence of any participation.

 

Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in Section 11.01(a)  that affects such Participant.  The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01 , 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b)  of this Section (it being understood that the documentation required under Section 3.01(e)  shall be delivered to the Lender who sells the participation) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 3.06 and 11.13 as if it were an assignee under paragraph (b) of this Section and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04 , with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation.  Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 3.06 with respect to any Participant.  To the extent permitted by Law, each Participant also shall be entitled to the benefits of Section 11.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 as though it were a Lender.  Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “ Participant Register ”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register

 

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as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

 

(e)                                   Certain Pledges .  Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

 

(f)                                    Resignation as L/C Issuer or Swingline Lender after Assignment .  Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns all of its Revolving Commitment and Revolving Loans pursuant to subsection (b) above, Bank of America may, (i) upon thirty days’ notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon thirty days’ notice to the Borrower, resign as Swingline Lender.  In the event of any such resignation as L/C Issuer or Swingline Lender, the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swingline Lender hereunder; provided , however , that no failure by the Borrower to appoint any such successor shall affect the resignation of Bank of America as L/C Issuer or Swingline Lender, as the case may be.  If Bank of America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c) ).  If Bank of America resigns as Swingline Lender, it shall retain all the rights of the Swingline Lender provided for hereunder with respect to Swingline Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swingline Loans pursuant to Section 2.04(c) .  Upon the appointment of a successor L/C Issuer and/or Swingline Lender, (1) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swingline Lender, as the case may be, and (2) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.

 

11.07                  Treatment of Certain Information; Confidentiality.

 

Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates, its auditors and to its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement or any Eligible Assignee invited to become a Lender pursuant to Section 2.16 or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative

 

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or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder, (g) on a confidential basis to (i) any rating agency in connection with rating any Loan Party or its Subsidiaries or the credit facilities provided hereunder or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, (h) with the consent of the Borrower or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower.    In addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Agents and the Lenders in connection with the administration of this Agreement, the other Loan Documents, and the Commitments.

 

For purposes of this Section, “ Information ” means all information received from a Loan Party or any Subsidiary relating to the Loan Parties or any Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by such Loan Party or any Subsidiary, provided that, in the case of information received from a Loan Party or any Subsidiary after the Closing Date, such information is clearly identified at the time of delivery as confidential.  Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

 

Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the Information may include material non-public information concerning a Loan Party or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws.

 

The Loan Parties and their Affiliates agree that they will not in the future issue any press releases or other public disclosure using the name of the Administrative Agent or any Lender or their respective Affiliates or referring to this Agreement or any of the Loan Documents without the prior written consent of the Administrative Agent, unless (and only to the extent that) the Loan Parties or such Affiliate is required to do so under law and then, in any event the Loan Parties or such Affiliate will consult with such Person before issuing such press release or other public disclosure.

 

The Loan Parties consent to the publication by the Administrative Agent or any Lender of customary advertising material relating to the transactions contemplated hereby using the name, product photographs, logo or trademark of the Loan Parties.

 

11.08                  Rights of Setoff.

 

If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of any Loan Party against any and all of the obligations of such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or the L/C Issuer or their respective Affiliates, irrespective of whether or not such Lender, the L/C Issuer or such Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of such Loan Party may

 

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be contingent or unmatured or are owed to a branch or office or Affiliate of such Lender or the L/C Issuer different from the branch or office or Affiliate holding such deposit or obligated on such indebtedness; provided , that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.15 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the L/C Issuer and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.  The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have.  Each Lender and the L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.

 

11.09                  Interest Rate Limitation.

 

Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “ Maximum Rate ”).  If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower.  In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

 

11.10                  Counterparts; Integration; Effectiveness.

 

This Agreement and each of the other Loan Documents may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable to the Administrative Agent or the L/C Issuer constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.  Except as provided in Section 4.01 , this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto.  Delivery of an executed counterpart of a signature page of this Agreement or any other Loan Document, or any certificate delivered thereunder, by fax transmission or e-mail transmission (e.g., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement or such other Loan Document or certificate.  Without limiting the foregoing, to the extent a manually executed counterpart is not specifically required to be delivered under the terms of any Loan Document, upon the request of any party, such fax transmission or e-mail transmission shall be promptly followed by such manually executed counterpart.

 

11.11                  Survival of Representations and Warranties.

 

All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof.  Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the

 

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Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.

 

11.12                  Severability.

 

If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions.  The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.  Without limiting the foregoing provisions of this Section 11.12 , if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, the L/C Issuer or the Swingline Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.

 

11.13                  Replacement of Lenders.

 

If the Borrower is entitled to replace a Lender pursuant to the provisions of Section 3.06 , or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 11.06 ), all of its interests, rights (other than its existing rights to payments pursuant to Sections 3.01 and 3.04 ) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:

 

(a)                                  the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 11.06(b) ;

 

(b)                                  such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05 ) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);

 

(c)                                   in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01 , such assignment will result in a reduction in such compensation or payments thereafter;

 

(d)                                  such assignment does not conflict with applicable Laws; and

 

(e)                                   in the case of an assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.

 

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A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.

 

11.14                  Governing Law; Jurisdiction; Etc.

 

(a)                                  GOVERNING LAW .  THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

(b)                                  SUBMISSION TO JURISDICTION .  EACH LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER, THE L/C ISSUER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS  AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.  EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.  NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

 

(c)                                   WAIVER OF VENUE .  EACH LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

 

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(d)                                  SERVICE OF PROCESS .  EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02 .  NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

 

11.15                  Waiver of Jury Trial.

 

EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

 

11.16                  No Advisory or Fiduciary Responsibility.

 

In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), each of the Loan Parties acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Arrangers and the Lenders are arm’s-length commercial transactions between the Loan Parties and their respective Affiliates, on the one hand, and the Administrative Agent, the Arrangers and the Lenders, on the other hand, (B) each of the Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) each of the Loan Parties is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative Agent, the Arrangers and the Lenders each is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Loan Parties or any of their respective Affiliates, or any other Person and (B) neither the Administrative Agent, any Arranger nor any Lender has any obligation to the Loan Parties or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, the Arrangers, the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Loan Parties and their respective Affiliates, and neither the Administrative Agent, any Arranger nor any Lender has any obligation to disclose any of such interests to the Loan Parties and their respective Affiliates.  To the fullest extent permitted by Law, each of the Loan Parties hereby waives and releases any claims that it may have against the Administrative Agent, any Arranger or any Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

 

11.17                  Electronic Execution of Assignments and Certain Other Documents.

 

The words “execute,” “execution,” “signed,” “signature,” and words of like import in any Loan Document or any other document to be signed in connection with this Agreement, any other document executed in connection herewith and the transactions contemplated hereby shall be deemed to include

 

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electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary the Administrative Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it; provided further without limiting the foregoing, upon the request of the Administrative Agent, any electronic signature shall be promptly followed by such manually executed counterpart.

 

11.18                  USA PATRIOT Act Notice.

 

Each Lender that is subject to the PATRIOT Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Loan Parties that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “ PATRIOT Act ”), it is required to obtain, verify and record information that identifies the Loan Parties, which information includes the name and address of the Loan Parties and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Loan Parties in accordance with the PATRIOT Act.  The Loan Parties shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act.

 

11.19                  Subordination of Intercompany Indebtedness.

 

Each Loan Party (a “ Subordinating Loan Party ”) agrees that the payment of all obligations and indebtedness, whether principal, interest, fees and other amounts and whether now owing or hereafter arising, owing to such Subordinating Loan Party by any other Loan Party is expressly subordinated to the payment in full in cash of the Obligations.  If the Administrative Agent so requests, any such obligation or indebtedness shall be enforced and performance received by the Subordinating Loan Party as trustee for the holders of the Obligations and the proceeds thereof shall be paid over to the holders of the Obligations on account of the Obligations, but without reducing or affecting in any manner the liability of the Subordinating Loan Party under this Agreement or any other Loan Document.  Without limitation of the foregoing, so long as no Default has occurred and is continuing, the Loan Parties may make and receive payments with respect to any such obligations and indebtedness, provided , that in the event that any Loan Party receives any payment of any such obligations and indebtedness at a time when such  payment is prohibited by this Section, such payment shall be held by such Loan Party, in trust for the benefit of, and shall be paid forthwith over and delivered, upon written request, to the Administrative Agent.

 

11.20                  Acknowledgement and Consent to Bail-In of EEA Financial Institutions.

 

Solely to the extent any Lender or L/C Issuer that is an EEA Financial Institution is a party to this Agreement and notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender or L/C Issuer that is an EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

 

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(a)                                  the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender or L/C Issuer that is an EEA Financial Institution; and

 

(b)                                  the effects of any Bail-In Action on any such liability, including, if applicable:

 

(i)                                            a reduction in full or in part or cancellation of any such liability;

 

(ii)                                         a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

 

(iii)                                      the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.

 

11.21                  Assumption and Acknowledgment.

 

Effective immediately after the consummation of the Closing Date Merger, the execution and delivery by the Borrower of a counterpart hereto and the making of the initial Credit Extensions hereunder, IEA hereby assumes all of the Initial Borrower’s rights, title, interests, duties, liabilities and obligations (including the Obligations) under the Loan Documents as the “Borrower” hereunder (collectively, the “ Assumption ”), including, any claims, liabilities, or obligations arising from the Initial Borrower’s failure to perform any of its covenants, agreements, commitments or obligations under the Loan Documents to be performed prior to the Assumption.  The Initial Borrower hereby acknowledges the Assumption by the Borrower and its effectiveness immediately after the consummation of the Closing Date Merger, the execution and delivery by the Borrower of a counterpart hereto and the making of the initial Credit Extensions hereunder.  Without limiting the generality of the foregoing, upon its execution and delivery of a counterpart hereto, the Borrower hereby expressly agrees to observe and perform and be bound by all of the terms, covenants, representations, warranties, and agreements contained herein which are binding upon, and to be observed or performed by, the Borrower.  The Administrative Agent and each Lender hereby consents to the Assumption.

 

11.22                  ENTIRE AGREEMENT.

 

THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.

 

[SIGNATURE PAGES FOLLOW]

 

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

 

BORROWER:

WIND MERGER SUB I, INC.,

 

a Delaware corporation

 

as the Initial Borrower

 

 

 

 

By:

/s/ Mohsin Y. Meghji

 

Name: Mohsin Y. Meghji

 

Title: Chief Executive Officer

 

 

 

IEA ENERGY SERVICES LLC,

 

a Delaware limited liability company,

 

as the Borrower after giving effect to the Closing Date Merger

 

 

 

 

By:

/s/ John P. Roehm

 

Name: John P. Roehm

 

Title: President

 

 

GUARANTORS:

IEA INTERMEDIATE HOLDCO, LLC,

 

a Delaware limited liability company

 

 

 

 

By:

/s/ John P. Roehm

 

Name: John P. Roehm

 

Title: President

 

 

 

IEA EQUIPMENT MANAGEMENT, INC. ,

 

a Delaware corporation

 

 

 

 

By:

/s/ John P. Roehm

 

Name: John P. Roehm

 

Title: President

 

 

 

IEA MANAGEMENT SERVICES, INC. ,

 

a Delaware corporation

 

 

 

 

By:

/s/ John P. Roehm

 

Name: John P. Roehm

 

Title: President

 

 

 

IEA RENEWABLE ENERGY, INC. ,

 

a Wisconsin corporation

 

 

 

 

By:

/s/ William Douglas

 

Name: William Douglas

 

Title: Treasurer

 



 

 

WHITE CONSTRUCTION ENERGY SERVICES, LLC ,

 

a Delaware limited liability company

 

 

 

 

By:

/s/ David Berthelsen

 

Name: David Berthelsen

 

Title: President

 

 

 

WHITE CONSTRUCTION, INC. ,

 

an Indiana corporation

 

 

 

 

By:

/s/ David Berthelsen

 

Name: David Berthelsen

 

Title: President

 

 

 

WHITE ELECTRICAL CONSTRUCTORS, INC. ,

 

a Delaware corporation

 

 

 

 

By:

/s/ Derek Johnson

 

Name: Derek Johnson

 

Title: President

 

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ADMINISTRATIVE AGENT:

BANK OF AMERICA, N.A.,

 

as Administrative Agent

 

 

 

 

By:

/s/ Gerund Diamond

 

Name: Gerund Diamond

 

Title: Vice President

 

 

LENDERS:

BANK OF AMERICA, N.A.,

 

as a Lender, L/C Issuer and Swingline Lender

 

 

 

 

By:

/s/ Frank Byrne

 

Name: Frank Byrne

 

Title: Senior Vice President

 

 

 

CADENCE BANK, N.A.,

 

as a Lender

 

 

 

 

By:

/s/ Taylor Ducoff

 

Name: Taylor Ducoff

 

Title: Assistant Vice President

 

 

 

HSBC BANK USA, NATIONAL ASSOCIATION,

 

as a Lender

 

 

 

 

By:

/s/ Joanna London

 

Name: Joanna London

 

Title: Vice President

 

 

 

FIRST MERCHANTS BANK,

 

as a Lender

 

 

 

 

By:

/s/ Anthony Kaufman

 

Name: Anthony Kaufman

 

Title: Vice President

 


Exhibit 10.2

 

AMENDED AND RESTATED

REGISTRATION RIGHTS AGREEMENT

 

This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT dated March 26, 2018 (the “ Agreement ”) is entered into by and among Infrastructure and Energy Alternatives, Inc. (f/k/a M III Acquisition Corp.), a Delaware corporation (the “ Company ”), M III Sponsor I, LLC., a Delaware limited liability company (the “ Sponsor ”), M III Sponsor I LP, a Delaware limited partnership (“ M III LP ”), Infrastructure and Energy Alternatives, LLC (the “ Seller ), Oaktree Power Opportunities Fund III Delaware, L.P., a Delaware limited partnership, in its capacity as the representative of the Seller (“ GFI Representative ”), Cantor Fitzgerald & Co. (“ Cantor Fitzgerald ”), the parties set forth on Schedule I hereto, which shall become a party hereto upon execution of a counterpart signature page hereto and the Holders that from time to time after the date hereof, become a party hereto by executing a Joinder.

 

WHEREAS , the Initial Stockholders and the Company are parties to that certain Registration Rights Agreement, dated as of July 7, 2016 (the “ Existing Registration Rights Agreement ”);

 

WHEREAS , on November 3, 2017 the Company entered into to the Agreement and Plan of Merger, as amended from time to time, dated as of February 7, 2018 (as amended to date, the “ Merger Agreement ”), by and among IEA Energy Services LLC, a Delaware limited liability company (together with its subsidiaries, “ IEA ”), the Company, Wind Merger Sub I, Inc., a Delaware corporation, Wind Merger Sub II, LLC, a Delaware limited liability company, the Seller, Oaktree Power Opportunities Fund III, Delaware, L.P., a Delaware limited partnership (“ Oaktree ”), solely in its capacity as the representative of the Seller, and solely for purposes of Section 10.3 thereof, and, to the extent related thereto, Article 12 thereof, and the Sponsor and M III LP;

 

WHEREAS , it is a condition to the consummation of the transactions contemplated by the Merger Agreement that the parties hereto enter into this Agreement, pursuant to which the Company shall grant the Holders (as defined below) certain registration rights with respect to the Registrable Securities (as defined below), as set forth in this Agreement;

 

WHEREAS , in connection with the closing of the transactions contemplated by the Merger Agreement, certain investors purchased or received shares of Common Stock (as defined below) from the Company or its Affiliates and the Company has agreed that such shares of Common Stock will constitute Registrable Securities hereunder; and

 

NOW, THEREFORE , in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement hereby agree as follows:

 

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ARTICLE I

 

DEFINITIONS

 

1.1                                Defined Terms .  For purposes of this Agreement, the following terms shall have the meanings set forth below:

 

Affiliate ” means with respect to any Person, any other Person directly or indirectly controlling, controlled by or under direct or indirect common Control with, such specified Person (it being understood that (i) the parties to the Investor Rights Agreement shall not be deemed to be Affiliates of one another solely due to their being party to the Investor Rights Agreement, and (ii) the Company and its Subsidiaries shall not be deemed to be Affiliates of any Holder).  The terms “ affiliated ” and “ unaffiliated ” shall have correlative meaning.

 

Aggregate Basis ” means as to any calculation, such calculation made, aggregating the beneficial ownership of the Holders that are Affiliates of each other. “ Affiliate ” for purposes of this definition shall have the meaning set forth in Rule 144(a)(1) and shall include holders otherwise required to be aggregated pursuant to Rule 144.

 

Agreement ” has the meaning set forth in the Preamble.

 

Automatic Shelf Registration Statement ” means an “automatic shelf registration statement” as defined in Rule 405 promulgated under the Securities Act on Form S-3ASR.

 

beneficial ownership ” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act. The terms “beneficially own” and “beneficial owner” shall have correlative meanings.

 

Board of Directors ” means the Board of Directors of the Company.

 

Business Day ” means any day except Saturday, Sunday or other day on which banks are generally not open for business in the city of New York, New York.

 

Cantor Fitzgerald ” has the meaning set forth in the Preamble.

 

Certificate of Incorporation ” means the certificate of incorporate of the Company, as it may be amended, restated or otherwise modified from time to time.

 

Common Stock ” means the shares of the Company’s common stock, par value $0.0001 per share.

 

Company ” has the meaning set forth in the Preamble.

 

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Control ” (including the terms “ controlling ” and “ controlled ”), with respect to the relationship between or among two or more Persons, means the possession, directly or indirectly, of the power to direct or cause the direction of the affairs or management of such subject Person, whether through the ownership of voting securities, as trustee or executor, by contract or otherwise.

 

Demand Registration ” has the meaning set forth in Article II of this Agreement.

 

Earn-out Shares ” has the meaning set forth in the Founder Shares Amendment Agreement.

 

Exchange Act ” means the United States Securities Exchange Act of 1934, as it may be amended from time to time, together with all  the rules and regulations promulgated thereunder.

 

Existing Registration Rights Agreement ” has the meaning set forth in the Recitals.

 

FINRA ” means the Financial Industry Regulatory Authority or any successor agency.

 

‘‘ Founder Shares Amendment Agreement’’ means that certain Founder Shares Amendment Agreement, dated as of March 26, 2018, by and among the Company, Seller, the Sponsor and M III LP, Mr. Osbert Hood and Mr. Philip Marber.

 

Free Writing Prospectus ” means a free—writing prospectus, as defined in Rule 405 of the Securities Act.

 

GFI Representative ” has the meaning set forth in the Preamble.

 

Governmental Authority ” means the government of any nation, state, city, locality or other political subdivision thereof, any entity or self-regulatory organization exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government (including FINRA and any national or regional stock exchange on which the Common Stock is then listed or is proposed to be listed), and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing.

 

Holders ” means the holders of Seller Registrable Securities, Sponsor Registrable Securities and Other Registrable Securities, and the term “ Holder ” means any such Person .

 

‘‘ Initial Stockholders ’’ means the Sponsor, M III LP, Mr. Osbert Hood, Mr. Philip Marber, and Cantor Fitzgerald.

 

Investor Rights Agreement ” means that certain Investor Rights Agreement, dated as of March 23, 2018, by and among the Company, Seller, certain

 

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affiliated transferees of Seller who become party thereto and Oaktree, in its capacity as the representative of Seller.

 

Joinder ” means a joinder to this Agreement in the form of Exhibit A attached hereto.

 

Law ” means any United States federal, state or local or foreign law, rule, regulation, form, statute, Order or other legally enforceable requirement (including common law) issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Authority.

 

Listing ” means, with respect to a security, the listing of such security for trading on the relevant stock exchange in compliance with the rules and regulations of such stock exchange, which Listing may be subject to official notice of issuance.

 

Merger Agreement ” has the meaning set forth in the Recitals.

 

NASDAQ ” means the Nasdaq Capital Market.

 

Order ” means any judgment, decision, writ, order, injunction, award, decree or other determination of or by any Governmental Authority.

 

Other Registrable Securities ” means (i) the Common Stock and Warrants issued by the Company on a private placement basis in connection with its initial public offering (other than any Sponsor Registrable Securities) held by the Initial Stockholders (other than Sponsor and M III LP) and their Permitted Transferees, and (iii) all other securities issued in respect of such Common Stock or Warrants or into which such Common Stock or Warrants are later converted or reclassified, in each case of clauses (i)-(ii).

 

Permitted Transferee ” shall mean a Person or entity to whom a Holder of Registrable Securities transfers such Registrable Securities in accordance with this Agreement, to the extent such Registrable Securities remain Registrable Securities following such transfer.

 

Person ” means any individual, firm, corporation, partnership, trust, incorporated or unincorporated association, joint venture, joint stock company, limited liability company, Governmental Authority or other entity of any kind, and shall include any successor (by merger or otherwise) of such entity.

 

Piggyback Registration ” has the meaning set forth in Section 2.3 .

 

‘‘ Preferred Stock ” means shares of the Company’s preferred stock, par value $0.0001 per share.

 

Prospectus ” means the prospectus included in any Registration Statement, all amendments and supplements to such prospectus, including pre- and post-

 

4



 

effective amendments to such Registration Statement, and all other material incorporated by reference in such prospectus.

 

Public Offering ” means the offer for sale of securities pursuant to an effective Registration Statement filed under the Securities Act.

 

Registrable Securities ” means the Seller Registrable Securities, Sponsor Registrable Securities, Other Registrable Securities and Subscriber Registrable Securities; provided, however, that any such Registrable Securities shall cease to be Registrable Securities to the extent (a) a Registration Statement with respect to the sale of such Registrable Securities has been declared effective under the Securities Act and such Registrable Securities have been disposed of in accordance with the plan of distribution set forth in such Registration Statement, (b) such Registrable Securities have been disposed of pursuant to Rule 144(i) or Rule 145 of the Securities Act (or any successor rule) or (c) such securities may be sold pursuant to Rule 144 of the Securities Act (including, for the avoidance of doubt, Rule 144(i))(or any similar provisions in force) without regard to volume or manner of sale limitations and represent beneficial ownership of less than 1.0% of the outstanding Common Stock on an Aggregate Basis.

 

Registration ” means a registration with the SEC of the offer and sale of the securities of the Company to the public under a Registration Statement.  The term “ Register ” shall have a correlative meaning.

 

Registration Expenses ” means any and all expenses incident to the Company’s performance of or compliance with obligations under Article II (Registration Rights) to register the Registrable Securities, regardless of whether the applicable Registration Statement is declared effective, and with respect to any Underwritten Offering conducted in connection therewith, including, but not limited to, (i) all registration and filing fees, (ii) fees and expenses of compliance with securities or “blue sky” laws (including disbursements of counsel in connection with “blue sky” qualifications of Registrable Securities), (iii) expenses in connection with preparing, printing, mailing and delivering Registration Statements, prospectuses, any documents in connection therewith and any amendments or supplements to the forgoing, (iv) security engraving and printing expenses, (v) reasonable fees and expenses of any special experts retained by the Company in connection with such registration, (vi) costs of printing and producing any agreements among Underwriters, underwriting agreements, any “blue sky” or legal investment memoranda and any selling agreements and other documents in connection with the offering, sale or delivery of the Registrable Securities, (vii) expenses relating to any analyst or investor presentations or any “road shows” undertaken in connection with the registration, marketing or selling of the Registrable Securities, (viii) messenger and delivery expenses, (ix) fees and disbursements of custodians, counsel for the Company, and all independent certified public accountants (including the expenses relating to any comfort letters or costs associated with the delivery by independent certified public accountants of any “comfort” letters or any special audits incidental to or required by any registration or qualification), (x) fees and disbursements of Underwriters customarily paid by issuers of securities, including, if necessary, a “qualified independent

 

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underwriter” within the meaning of the rules of the FINRA (in each case, excluding underwriting discounts, commissions and transfer taxes), and other Persons retained by the Company, (xi) the Company’s internal expenses (including all salaries and expenses of its officers and employees performing legal or accounting duties), (xii) all out-of-pocket costs and expenses incurred by the Company or its appropriate officers in connection with their compliance with Article II, (xiii) the expense of any annual audit or quarterly review, (xiv) the expense of any liability insurance, (xv) fees and expenses in connection with any review by FINRA of the underwriting arrangements or other terms of the offering, (xvi) reasonable fees, out-of-pocket costs and out-of-pocket costs expenses of counsel to the Holders holding Registrable Securities covered by each Registration Statement (“ Holders’ Counsel ”), selected pursuant to Section 2.9 , (xvii) transfer agents’ and registrars’ fees and expenses and the fees and expenses of any other agent or trustee appointed in connection with such offering, (xviii) fees and expenses payable in connection with any ratings of the Registrable Securities, including expenses relating to any presentations to rating and (xix) the expenses and fees for listing the securities on any securities exchange or automated interdealer quotation system; provided , that Registration Expenses shall not include any underwriting discounts or commissions, or transfer taxes, if any, attributable to the sale of Registrable Securities by a Holder.

 

Registration Participant ” means, with respect to any Registration, including a public sale or shelf take-down, any holder of Registrable Securities participating as a selling stockholder in such Registration; provided , that a holder of Registrable Securities shall not be considered a Registration Participant in connection with a shelf registration unless and until such holder of Registrable Securities participates in a shelf take-down.

 

Registration Statement ” means any registration statement of the Company that covers the offer and sale of Registrable Securities pursuant to the provisions of this Agreement filed with, or to be filed with, the SEC under the rules and regulations promulgated under the Securities Act, including the related Prospectus, amendments and supplements to such registration statement, including pre- and post-effective amendments, and all exhibits and all material incorporated by reference in such registration statement.

 

Rule 144 ” means Rule 144 under the Securities Act, as amended.

 

S-3 Shelf Eligible ” means the Company is eligible to use Form S-3 in connection with a secondary public offering of its equity securities on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, in accordance with SEC Guidance.

 

SEC means the Securities and Exchange Commission or any similar agency having jurisdiction to enforce the Securities Act.

 

SEC Guidance ” means (i) any publicly available written or oral interpretations, questions and answers, guidance and forms of the SEC, (ii) any oral or

 

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written comments, requirements or requests of the SEC or its staff, (iii) the Securities Act and the Exchange Act and (iv) any other rules, bulletins, releases, manuals and regulations of the SEC.

 

Securities Act ” means the United States Securities Act of 193 3, as it may be amended from time to time, together with all  the rules and regulations promulgated thereunder.

 

Seller ” has the meaning set forth in the Preamble.

 

Seller Registrable Securities ” means (i) all Common Stock (including any shares of the Common Stock issued or issuable upon conversion of the Preferred Stock or exercise of the Warrants), (ii) Warrants and (iii) and all other securities issued in respect of such Common Stock or Warrants or into which such Common Stock or Warrants are later converted or reclassified, in each case of clauses (i)-(iii), in each case held by (a) the Seller, (b) any fund managed by or under common management with, the GFI Representative and (c) any Affiliate of the foregoing, whether now owned or hereafter acquired, and their respective Permitted Transferees.

 

Shelf Registration Statement ” means a Registration Statement filed with the SEC on Form S-3 for an offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act (or any successor provision) covering the offer and sale of all or any portion of the Registrable Securities, as applicable.

 

Shelf Registered Securities ” means any Registrable Securities whose offer and sale is registered pursuant to a Registration Statement filed in connection with a Shelf Registration (including an Automatic Shelf Registration Statement).

 

Sponsor ” has the meaning set forth in the Preamble.

 

Sponsor Registrable Securities ” means (i) all Common Stock (including any shares of the Common Stock issued or issuable upon conversion of the Preferred Stock or exercise of the Warrants), (ii) Warrants and (iii) and all other securities issued in respect of such Common Stock or Warrants or into which such Common Stock or Warrants are later converted or reclassified, in each case of clauses (i)-(iii), in each case held by the Sponsor, M III LP or any Affiliate of the foregoing (including for the avoidance of doubt Mohsin Y. Meghji and his Affiliates), whether now owned or hereafter acquired, and their respective Permitted Transferees.

 

Subscribers ” means the subscribers party to the Subscription and Backstop Agreement set forth on Schedule I hereto and which shall become a party hereto upon execution of a counterpart signature page hereto.

 

Subscriber Registrable Securities ” means (i) the Warrants issued pursuant to the Subscription and Backstop Agreement and the shares of Common Stock issuable upon exercise of the Warrants described on Schedule I hereto held by the Subscribers and their Permitted Transferees and (ii)  and all other securities issued in respect of such

 

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Common Stock or Warrants or into which such Common Stock or Warrants are later converted or reclassified, in the case of clauses (i).

 

Subscription and Backstop Agreement ” means that certain Subscription and Backstop Agreement, dated as of March 7, 2018, by and among the Sponsor, M III LP and the Subscribers.

 

Subsidiaries ” means, with respect to any Person, any Affiliate controlled by such Person, directly or indirectly through one or more intermediaries.

 

Underwriters ” means an underwriter or underwriters with respect to any any Underwritten Public Offering.

 

Underwritten Offering ” means a Public Offering in which securities of the Company are sold to Underwriters for reoffering to the public (including any  underwritten “block trade”).

 

Warrants ” means warrants to purchase shares of Common Stock.

 

Warrant Agreement ” means the Amended & Restated Warrant Agreement, dated as of the date of the consummation of the transactions contemplated by the Merger Agreement, between the Company and the warrant agent thereunder.

 

Well-Known Seasoned Issuer ” means a “well-known seasoned issuer” as defined in Rule 405 promulgated under the Securities Act and which (i) (a) is a “well-known seasoned issuer” under paragraph (1)(i)(A) of such definition or (b) is a “well-known seasoned issuer” under paragraph (1)(i)(B) of such definition and is also eligible to Register a primary offering of its securities relying on General Instruction I.B.1 of Form S-3 under the Securities Act and (ii) is not an “ineligible issuer” as defined in Rule 405 promulgated under the Securities Act.

 

ARTICLE II

 

REGISTRATION RIGHTS

 

2.1                                Demand Registration Rights .

 

(a)                                  Demand Rights .  Subject to the terms and conditions of this Agreement, including, without limitation, those in the next succeeding sentence, from and after the date that the Company consummates the transactions contemplated by the Merger Agreement, from time to time, at any time the Company is not in compliance with its obligations under Section 2.2 to file and maintain the effectiveness of a Shelf Registration Statement, if GFI Representative or the Sponsor provides notice (a “ Demand ”) requesting that the Company effect the Registration (a “ Demand Registration ”) under the Securities Act of any or all of the Seller Registrable Securities or Sponsor Registrable Securities, as the case may be, (the “ Demanding Holders ”), which

 

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Demand shall specify the number of such Registrable Securities to be registered by the Demanding Holders and the intended method or methods of disposition of such Registrable Securities, the Company shall use its commercially reasonable efforts to effect, as promptly as practicable, the registration of the offer and sale of such Registrable Securities under the Securities Act and applicable state securities laws, under a Registration Statement on such form as may be permitted under SEC Guidance (which shall be on Form S-3 or Form S-3ASR, to the extent permitted by SEC Guidance), and to keep such Registration Statement (the “ Demand Registration Statement ”) effective for so long as is necessary to permit the disposition of such Registrable Securities, in accordance with the intended method or methods of disposition stated in such Demand. At any time and from time to time after the date hereof, (i) the GFI Representative shall have the right to initiate up to six (6) Demand Registrations hereunder on behalf of the Holders of Seller Registrable Securities and (ii) the Sponsor shall have the right to initiate up to three (3) Demand Registration hereunder on behalf of the Holders of Sponsor Registrable Securities; provided, that in each case, (i) the gross proceeds reasonably anticipated to be generated from the offering subject to such Demand Registration (as determined in good faith by the relevant Demanding Holders and their Underwriters) equals or exceeds $15,000,000, unless such registration shall include all of the Sponsor Registrable Securities or Seller Registrable Securities, as the case may be, then owned by such Demanding Holder, as the case may be, and (ii) the Company will not be required to effect more than one Demand Registration in any consecutive 90-day period; provided however , that a Demand Registration shall not be counted for such purposes unless the Demand Registration Statement shall have been deemed effective in accordance with Section 2.1(b)  of this Agreement. A Demand Registration Statement may be for an offering of securities on a delayed or continuous basis under Rule 415 of the Securities Act and shall be on such appropriate form that the Company is eligible to use pursuant to SEC Guidance as shall be selected by the Company and as shall permit the intended method or methods of distribution specified by the Demanding Holders, including a distribution to, and resale by, the partners, equityholders or Affiliates of the Demanding Holders.  At the request of the Demanding Holders, the “Plan of Distribution” section of any Registration Statement filed in respect of a Demand Registration or Shelf Registration (as defined below) shall permit, in addition to firm commitment Underwritten Offerings, any other lawful means of disposition of Registrable Securities, including agented transactions, block trades, sales directly into the market, purchases or sales by brokers, derivative transactions, short sales, stock loan or stock pledge transactions and sales not involving a Public Offering (each, an “ Alternative Transaction ”).  The Underwriter or Underwriters selected for any Underwritten Offering registered pursuant to a Demand shall be selected in accordance with Section 2.7(f) .  Upon receipt of a Demand, the Company shall promptly give written notice of such Demand to each other Holder of Registrable Securities in the manner provided in Section 2.3 , and the Company shall, subject to Section 2.1(c) , use its commercially reasonable efforts to effect the registration on a Demand Registration Statement under the Securities Act of the offer and sale of the Registrable Securities that the Holders, whether in connection with the exercise of Demand rights pursuant to Section 2.1 or piggyback rights pursuant to Section 2.3 below, have requested the Company to register; provided , that the Company may also include in such Demand Registration Statement securities to

 

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be sold for its own account, subject to Section 2.1(c) .  The Holders of Subscriber Registrable Securities shall have no right to include Subscriber Registrable Securities in a Demand Registration to the extent such Subscriber Registrable Securities are subject to an effective registration statement filed in accordance with the terms of the Warrant Agreement. The rights of Holders with respect to a Demand shall be subject to Suspension Periods, as provided in Section 2.5 .  The terms and conditions of any customary underwriting or purchase arrangements pursuant to which Registrable Securities shall be sold in a Demand shall be approved by the Demanding Holders holding a majority of the Registrable Securities included in the Demand Registration Statement for the Demanding Holders.

 

(b)                                  Fulfillment of Registration Obligations .  Notwithstanding any other provision of this Agreement, a Demand Registration shall not be deemed to have been effected (A) if the Demand Registration Statement has not become effective; (B) if, after the Demand Registration Statement has become effective, such Demand Registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason (other than as a result of a misrepresentation or an omission by any Demanding Holders or another reason attributable to the Demanding Holders) and the Registrable Securities requested to be registered cannot legally be distributed pursuant to such Demand Registration Statement; (C) if such Demand Registration Statement does not remain effective for the period required under Section 2.7(a) ; (D) in the event of an Underwritten Offering or Alternative Transaction, if the conditions to closing specified in the relevant underwriting or other agreement entered into in connection with such Demand Registration are not satisfied or waived (other than by reasons primarily attributable to the Demanding Holders); and (E) if the Common Stock and Registrable Securities, as the case may be, have not been approved for Listing.

 

(c)                                   Priority .  In connection with an Underwritten Offering  registered pursuant to a Demand Registration, if the managing Underwriter advises the Company that, in its view, the number of Registrable Securities requested to be included in the Underwritten Offering registered under such Demand Registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of securities that can be sold without having a material and adverse effect on such offering, including the price at which such securities can be sold (with respect to any such offering, the “ Maximum Offering Size ”), the Company shall include in such offering the following securities, in the priority listed below, up to the Maximum Offering Size:

 

(i)                                      first , Registrable Securities that are requested to be included in such offering pursuant to Section 2.1 , on a pro rata basis based on the requesting Holders’ beneficial ownership of Registrable Securities; provided that to the extent a reduction in Registrable Securities included in such offering is so required, the calculation of the beneficial ownership of Registrable Securities shall not include any unvested Earn-out Shares and, for the avoidance of doubt, shall not include any Common

 

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Stock underlying the Preferred Stock prior to the date such Preferred Stock is convertible in accordance with the Certificate of Incorporation;

 

(ii)                                   second , any other securities that are requested to be included in such offering pursuant to the exercise of piggyback rights by any persons with rights to participate therein; and

 

(iii)                                third , all shares of Common Stock that are requested to be included in such offering by the Company for its own account.

 

2.2                                Shelf Registration Statements.

 

(a)                                  Initial Shelf Registration .  Provided (i) the Company is S-3 Shelf Eligible and (ii) a Shelf Registration on a Form S-3 registering Registrable Securities for resale is not then effective (subject to any applicable Suspension Period), the Company shall use its reasonable best efforts to file and make effective as soon as practicable, a Registration Statement on Form S-3 for an offering on a delayed or continuous basis pursuant to Rule 415 promulgated under the Securities Act (a “ Shelf Registration ”), with respect to all of the Registrable Securities. The Company shall promptly give notice (via facsimile or electronic transmission) at least 10 Business Days prior to the anticipated filing date of such Shelf Registration to all Holders of Registrable Securities, and offer such Holders the opportunity to register the number of Registrable Securities as each such Holder may request by written notice to the Company, given within five Business Days after such Holders are given the Company’s notice of the Shelf Registration.  The Holders of Subscriber Registrable Securities shall have no right to include Subscriber Registrable Securities to the extent such Subscriber Registrable Securities are subject to an effective registration statement filed in accordance with the terms of the Warrant Agreement.  The “Plan of Distribution” section of such Shelf Registration shall permit, in addition to firm commitment Underwritten Offerings, any other lawful means of disposition of Registrable Securities, including Alternative Transactions.  With respect to each Shelf Registration, the Company shall use its reasonable best efforts to cause such Registration Statement to remain effective until the date set forth in Section 2.7(a)(ii) .  No Holder shall be entitled to include any of its Registrable Securities in a Shelf Registration unless such Holder has complied with Section 2.8 .  The obligations set forth in this Section 2.2(a)  shall not apply if the Company has a currently effective Automatic Shelf Registration Statement covering all Registrable Securities in accordance with Section 2.7(f)  and has otherwise complied with its obligations pursuant to this Article II.  The rights of with respect to any Shelf Registration shall be subject to Suspension Periods, as provided in Section 2.5 .

 

(b)                                  Shelf Take-Downs . A Holder of Shelf Registered Securities  may sell pursuant to the Shelf Registration Statement from time to time in accordance with the plan of distribution set forth in the Shelf Registration Statement.  A Holder or Holders of Shelf Registered Securities (other than any Holder with respect to Subscriber Registrable Securities) may also request (the “ Shelf Public Offering Request ”) that a shelf take-down be in the form of an Underwritten Offering (a “ Shelf Public Offering ”) if the gross proceeds reasonably anticipated to be generated from the sale of the Shelf

 

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Registered Securities (as determined in good faith by the relevant Holders and their Underwriters) equals or exceeds $15,000,000.  Promptly upon receipt of a Shelf Public Offering Request, the Company shall provide notice (the “ Shelf Public Offering Notice ”) of such proposed Underwritten Offering (which notice shall state the material terms of such proposed Underwritten Offering, to the extent known, as well as the identity of the Shelf Public Offering Requesting Holder) to the other Holders holding Shelf Registered Securities (other than any Holder with respect to Subscriber Registrable Securities).  Such other Holders may, by written request to the Company and the Shelf Public Offering, within one Business Day after receipt of such Shelf Public Offering Notice, offer and sell up to all of their Shelf Registered Securities of the same class or series as the Shelf Registered Securities proposed to be sold in such Underwritten Offering.  No Holder shall be entitled to include any of its Registrable Securities in a Shelf Public Offering unless such Holder has complied with Section 2.8 .  The Underwriter or Underwriters selected for such Underwritten Offering shall be selected in accordance with Section 2.7(f).   The terms and conditions of any customary underwriting or purchase arrangements pursuant to which Registrable Securities shall be sold in a Shelf Public Offering shall be approved by the Shelf Public Offering Requesting Holder.  For the avoidance of doubt, (i) no Holder of Shelf Registered Securities shall have the right to participate in a shelf take-down by any other Holder other than in connection with a Shelf Public Offering and (ii) no Holder shall have the right to participate in a Shelf Public Offering with respect to Subscriber Registrable Securities.

 

(c)                                   Priority .  In a Shelf Public Offering, if the managing Underwriter advises the Company and the Shelf Public Offering Requesting Holder that, in its view, the number of Registrable Securities requested to be included in such Shelf Public Offering (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the Maximum Offering Size, the Company shall include in such Shelf Public Offering the following securities, in the priority listed below, up to the Maximum Offering Size:

 

(i)                                      first , Shelf Registrable Securities that are requested to be included in such Shelf Public Offering, on a pro rata basis on the basis of the Holders’ of Shelf Registrable Securities beneficial ownership of the Common Stock; provided that to the extent a reduction in Registrable Securities included in the Shelf Public Offering is so required, the calculation of the beneficial ownership of Registrable Securities shall not include any unvested Earn-out Shares and, for the avoidance of doubt, shall not include any Common Stock underlying the Preferred Stock prior to the date such Preferred Stock is convertible in accordance with the Certificate of Incorporation; and

 

(ii)                                   second , all securities that are registered on the applicable Shelf Registration Statement and are requested to be included in such Shelf Public Offering by the Company.

 

(d)                                  Expenses .  The Company shall bear all Registration Expenses in connection with any Shelf Registration or Shelf Public Offering pursuant to

 

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this Section 2.2 , whether or not such Shelf Registration becomes effective or such Shelf Public Offering or other transactions is completed.

 

(e)                                   Subsequent Shelf Registration .  After the Registration Statement with respect to a Shelf Registration is declared effective, upon written request by one or more Holders (which written request shall specify the amount of such Holders’ Registrable Securities to be registered), the Company shall, as permitted by SEC Guidance, (i) as promptly as practicable after receiving a request from a Holder that is  a Permitted Transferee of a former Holder of Shelf Registrable Securities, file a prospectus supplement to include such Permitted Transferee as a selling stockholder in such Registration Statement, (ii) if it is a Well-Known Seasoned Issuer and such Registration Statement is an unallocated Automatic Shelf Registration Statement to which additional selling stockholders may be added by means of a prospectus supplement under Rule 430B, as promptly as practicable after receiving such request, file a prospectus supplement to include such Holders as selling stockholders in such Registration Statement, or (iii) otherwise, as promptly as practicable after the date the Registrable Securities requested to be registered pursuant to this Section 2.2(e)  that have not already been so registered represent more than 1.5% of the outstanding Registrable Securities, file a post-effective amendment to the Registration Statement or a new Shelf Registration Statement, as applicable, to include such Holders in such Shelf Registration and use its commercially reasonable efforts to have such post-effective amendment or new Shelf Registration Statement declared effective.  To the extent that any Registration Statement with respect to a Shelf Registration is expected to no longer be usable for the resale of Registrable Securities registered thereon (“ Remaining Registrable Securities ”) pursuant to SEC Guidance, the Company shall, not later than 90 days prior to the date such Registration Statement is expected to no longer be usable, use its commercially reasonable efforts to prepare and file a new Registration Statement with respect to such Shelf Registration, as if the holders of such Remaining Registrable Securities had requested a Shelf Registration with respect thereto pursuant to Section 2.2(a)  and perform all actions required under this Agreement with respect to such Shelf Registration.

 

(f)                                    Automatic Shelf Registration Statements .  Upon the Company becoming a Well-Known Seasoned Issuer eligible to use an Automatic Shelf Registration Statement in accordance with SEC Guidance, (i) the Company shall give written notice to all of the Holders of Shelf Registrable Securities as promptly as practicable, but in no event later than ten Business Days thereafter, and such notice shall describe, in reasonable detail, the basis on which the Company has become a Well-Known Seasoned Issuer, and (ii) upon the request of the Holders of at least 25% of the Shelf Registrable Securities registered on such Shelf Registration Statement, the Company shall, as promptly as practicable, register such Shelf Registrable Securities under an Automatic Shelf Registration Statement, but in no event later than 15 Business Days thereafter, and to use commercially reasonable efforts to cause such Automatic Shelf Registration Statement to remain effective thereafter until the date set forth in Section 2.7(a)(ii) . At any time after the filing of an Automatic Shelf Registration Statement by the Company, if it is reasonably likely that it will no longer be a Well-Known Seasoned Issuer as of a future determination date (the “ Determination Date ”), as

 

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promptly as practicable and at least 30 days prior to such Determination Date, the Company shall (A) give written notice thereof to all of the Holders and (B) if the Company is S-3 Shelf Eligible, file a Registration Statement on Form S-3 with respect to a Shelf Registration in accordance with Section 2.2(a ) and use its commercially reasonable efforts to have such Registration Statement declared effective prior to the Determination Date. If the Company has filed an existing Automatic Shelf Registration Statement that is effective, and it is likely that such existing Automatic Shelf Registration Statement will no longer be effective pursuant to SEC Guidance as of a Determination Date, although the Company will remain a Well-Known Seasoned Issuer as of such Determination Date, the Company will use commercially reasonable efforts to file a new Automatic Shelf Registration Statement to replace such existing Automatic Shelf Registration Statement prior to such Determination Date and cause such Automatic Shelf Registration Statement to remain effective thereafter until the date set forth in Section 2.7(a)(ii) .

 

2.3                                Piggyback Registration Rights .

 

(a)                                  At any time the Company proposes to file a Registration Statement to register Common Stock under the Securities Act (other than pursuant to Section 2.1 or 2.2), or to conduct an Underwritten Offering from an existing Shelf Registration Statement, whether or not for its own account (other than pursuant to a Registration Statement on Form S-4 or Form S-8 or any similar or successor form under the Securities Act) or for the account of any person (other than a Holder pursuant to Section 2.1 or 2.2), the Company shall give written notice thereof to each Holder at least 10 Business Days before such filing or the commencement of such Underwritten Offering, as applicable, offering each Holder the opportunity to register on such Registration Statement or including in such Underwritten Offering, as applicable, such number of Registrable Securities as such Holder may request in writing not later than five Business Days after receiving such notice in writing from the Company (a “ Piggyback Registration ”). Upon receipt by the Company of any such request, the Company shall use its commercially reasonable efforts to, or in the case of an Underwritten Offering, use its commercially reasonable efforts to cause the Underwriters to, include such Registrable Securities in such Registration Statement (or in a separate Registration Statement concurrently filed) and to cause such Registration Statement to become effective with respect to such Registrable Securities.  If no request for inclusion from a Holder is received by the Company within the deadlines specified above, such Holder shall have no further right to participate in such Piggyback Registration. Notwithstanding the foregoing, if at any time after giving written notice of a registration in accordance with the first sentence of this paragraph (a) and before the effectiveness of the Registration Statement described in such notice, the Company determines for any reason either not to effect such registration or to delay such registration, the Company may, at its election, by delivery of written notice to each Holder exercising its rights to Piggyback Registration, (i) in the case of a determination not to effect registration, relieve itself of its obligation to effect a Piggyback Registration of the Registrable Securities in connection with such registration or (ii) in the case of a determination to delay registration, delay the Piggyback Registration of such Registrable Securities of the Holders for the same period as the delay in the registration of such other Registrable Securities; provided , that in the case of any such termination, withdrawal or delay, all expenses incurred in connection

 

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with such Piggyback Registration shall be borne entirely by the Company as set forth in Section 2.9 .  If any Holder requests inclusion in a registration pursuant to this Section 2.3 , he, she, or it may, at any time before the effective date of the Registration Statement relating to such registration, revoke such request by delivering written notice of such revocation to the Company (which notice shall be effective only upon receipt by the Company, notwithstanding the provisions of Article II); provided, however , that if the Company, in consultation with its financial and legal advisors, determines that such revocation would materially delay the registration or otherwise require a recirculation of the prospectus contained in the Registration Statement, then such Holder shall have no right to so revoke his, her, or its request. The Company shall keep the Holder reasonably informed as to the status or expected timing of the launch of any Public Offering registered pursuant to any such Piggyback Registration.  No registration of Registrable Securities effected under this Section 2.3 shall relieve the Company of its obligations to effect any Demand Registration pursuant to Section 2.1 or Shelf Registration pursuant to Section 2.2 .  The rights of Holders with respect to a Piggyback Registration shall be subject to Suspension Periods, as provided in Section 2.5 .  To the extent an Underwritten Offering is made under any such Registration Statement, all Holders exercising their right to Piggyback Registration must sell their Registrable Securities to the Underwriters selected as provided in Section  2.7(f)  on the same terms and conditions as apply to the other securityholders selling in such Underwritten Offering.

 

(b)                                  If a Piggyback Registration involves an Underwritten Offering (other than any Demand Registration, in which case the provisions with respect to priority of inclusion in such offering set forth in Section 2.1(c)  shall apply or a Shelf Public Offering, in which case the provisions with respect to priority of inclusion in such offering set forth in Section 2.2(c)  shall apply) and the managing Underwriter advises the Company that, in its view, the number of Registrable Securities that the Holders and the Common Stock that the Company intend to include in such Underwritten Offering exceeds the Maximum Offering Size, the Company shall include in such Underwritten Offering the following securities, in the following priority, up to the Maximum Offering Size:

 

(i)                                      first , all Common Stock that is requested to be included by the Company in the Underwritten Offering for its own account;

 

(ii)                                   second , Registrable Securities that are requested to be included in the Underwritten Offering pursuant to this Section 2.3 by any Holder on a pro rata basis on the basis of the requesting Holders’ beneficial ownership of the Common Stock; provided that to the extent a reduction in Registrable Securities included in the Underwritten Offering is so required, the calculation of the beneficial ownership of Registrable Securities shall not include any unvested Earn-out Shares and, for the avoidance of doubt, shall not include any Common Stock underlying the Preferred Stock prior to the date such Preferred Stock is convertible in accordance with the Certificate of Incorporation; and

 

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(iii)                                third , all other securities that are requested to be included in the Underwritten Offering for the account of any other Persons with such priorities among them as the Company shall determine.

 

2.4                                Underwritten Offering .  Notwithstanding anything herein to the contrary, no Holder may participate in any Underwritten Offering hereunder unless such Holder accurately completes and executes in a timely manner all questionnaires, powers of attorney, indemnities, custody agreements, underwriting agreements (as approved in accordance with the terms of this Agreement), and other documents reasonably requested under the terms of such underwriting arrangements; provided , that all Persons participating in such Underwritten Offering shall be required to complete and execute, on the same terms and conditions, such questionnaires, powers of attorney, indemnities, custody agreements, underwriting agreements, and other documents (if applicable). The right of a Holder to register and sell Registrable Securities in an Underwritten Offering shall also be subject to any restrictions, limitations or prohibitions on the sale of Registrable Securities (subject to the limitations in Section 2.6 ) as may be required by the Underwriters in the interests of the offering (and, without limiting the foregoing, each Holder shall in connection therewith agree to be bound by (and if requested, execute and deliver) a lock-up agreement with the Underwriter(s) of any such Underwritten Offering as provided in Section 2.6 ).

 

2.5                                Suspension .  Notwithstanding anything to the contrary contained in this Article II, but subject to the limitations set forth in this Section 2.5 , the Company shall be entitled to suspend its obligation to (a)  file or submit (but not to prepare) any Registration Statement in connection with any Demand Registration or Shelf Registration, (b) file or submit any amendment to such a Registration Statement, (c) file, submit or furnish any supplement or amendment to a prospectus included in such a Registration Statement, (d) make any other filing with the SEC, (e) cause such a Registration Statement or other filing with the SEC to become or remain effective or (f) take any similar actions or actions related thereto (including entering into agreements and actions related to the marketing of securities) (collectively, “ Registration Actions ”) upon (i) the issuance by the SEC of a stop order suspending the effectiveness of any such Registration Statement or the initiation of proceedings with respect to such a Registration Statement under Section 8(d) or 8(e) of the Securities Act, (ii) the Board of Directors’ determination, in its good faith judgment, that any such Registration Action should not be taken because it would reasonably be expected to materially interfere with or require the public disclosure of any material corporate development or plan, including any material financing, securities offering, acquisition, disposition, corporate reorganization or merger or other transaction involving the Company or any of its Subsidiaries or (iii) the Company possessing material non-public information the disclosure of which the Board of Directors determines, in its good faith judgment, would reasonably be expected to not be in the best interests of the Company. Upon the occurrence of any of the conditions described in clause (i), (ii) or (iii) above in connection with undertaking a Registration Action, the Company shall give prompt notice of such suspension (and whether such action is being taken pursuant to clause (i), (ii) or (iii) above) (a “ Suspension Notice ”) to the Holders.  Upon the termination of such condition, the Company shall give prompt

 

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notice thereof to the Holders and shall promptly proceed with all Registration Actions that were suspended pursuant to this paragraph.  The Company may only suspend Registration Actions pursuant to clause (ii) or (iii) above on two occasions during any period of 12 consecutive months for a reasonable time specified in the Suspension Notice but not exceeding an aggregate of 90 days (which period may not be extended or renewed) during such 12 consecutive month period (each such occasion, a “ Suspension Period ”).  Each Suspension Period shall be deemed to begin on the date the relevant Suspension Notice is given to the Holders and shall be deemed to end on the earlier to occur of (x) the date on which the Company gives the Holders a notice that the Suspension Period has terminated and (y) the date on which the number of days during which a Suspension Period has been in effect exceeds the 90-day limit during such 12 consecutive month period.  If the filing of any Demand Registration or Shelf Registration is suspended pursuant to this Section 2.5 , once the Suspension Period ends the Holders requesting such registration may request a new Demand Registration or Shelf Registration (and any such request for a Demand Registration shall not be counted as an additional Demand Registration for purposes of Section 2.1(a) ).  Notwithstanding anything to the contrary in this Article II, the Company shall not be in breach of, or have failed to comply with, any obligation under this Article II where the Company acts or omits to take any action in order to comply with applicable Law, any SEC Guidance or any Order.  Each Holder shall keep confidential the fact that a Suspension Period is in effect unless otherwise notified by the Company, except (a) for disclosure to the Registration Participants or Holders, as applicable, and their employees, agents and professional advisers who reasonably need to know such information for purposes of assisting such Registration Participants or Holders with respect to its investment in the Common Stock and agree to keep it confidential, (b) for disclosures to the extent required in order to comply with reporting obligations to its limited partners or other direct or indirect investors who are subject to confidentiality arrangements with such Holder, (c) if and to the extent such matters are publicly disclosed by the Company or any of its Subsidiaries or any other Person that, to the actual knowledge of such Holder, was not subject to an obligation or duty of confidentiality to the Company and its Subsidiaries, (d) as required by applicable Law ( provided , that the Holder gives prior written notice to the Company of such requirement and the contents of the proposed disclosure to the extent it is permitted to do so under applicable Law), and (e) for disclosure to any other Holder who is subject to the foregoing confidentiality requirement.

 

2.6                                Lockup Agreements .

 

(a)                                  Each Holder owning Registrable Securities representing beneficial ownership of 1% or more of the outstanding Common Stock (calculation of the beneficial ownership of Registrable Securities shall not include any unvested Earn-out Shares and, for the avoidance of doubt, shall not include any Common Stock underlying the Preferred Stock prior to the date such Preferred Stock is convertible in accordance with the Certificate of Incorporation) hereby agrees that, in connection with an Underwritten Offering, except for sales in such Underwritten Offering:

 

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(i)                                      it will not effect any public sale or distribution (including sales pursuant to Rule 144 and pursuant to derivative transactions) of Common Stock (1) in connection with an Underwritten Offering that is being made pursuant to a Demand Registration Statement, a Shelf Registration Statement or a Piggyback Registration, in each case in accordance with this Article II, during (A) the period commencing on the seventh day prior to the expected time of circulation of a preliminary prospectus with respect to such Underwritten Offering (or, if no preliminary prospectus is circulated, the commencement of any marketing efforts with respect to such Underwritten Offering) and ending on the 90th day following the date of the final prospectus covering such Registrable Securities in connection with such Underwritten Offering or (B) such shorter period as the Underwriters with respect to such Underwritten Offering may require; provided , that the duration of the restrictions described in this clause (i) shall be no longer than the duration of the shortest restriction generally imposed by the Underwriters on the chief executive officer and the chief financial officer of the Company (or Persons in substantially equivalent positions) in connection with such Underwritten Offering; and

 

(ii)                                   it will execute a lock-up agreement in favor of the Underwriters in form and substance reasonably acceptable to the Company and the Underwriters to such effect.

 

(b)                                  In connection with an Underwritten Offering, except for sales in such Underwritten Offering, the Company (and its directors and officers) agrees that it:

 

(i)                                      shall not effect any public sale or distribution of Common Stock or securities convertible into or exercisable for Common Stock (except pursuant to registrations on Form S-8 or Form S-4 or any similar or successor form under the Securities Act) during (A) the period commencing on the seventh day prior to the expected time of circulation of a preliminary prospectus with respect to such Underwritten Offering (or, if no preliminary prospectus is circulated, the commencement of any marketing efforts with respect to such Underwritten Offering) and ending on the 90th day following the date of the final prospectus covering such Registrable Securities in connection with such Underwritten Offering or (B) such shorter period as the Underwriters with respect to such Underwritten Offering may require; and

 

(ii)                                   to the extent requested by the Underwriters participating in such Underwritten Offering, it shall agree to include provisions in the relevant underwriting or other similar agreement giving effect to the restrictions described in clause (i) above, in form and substance reasonably acceptable to such Underwriters.

 

2.7                                Registration Procedures .  Whenever the Holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, subject to Section 2.5 , the Company shall use its commercially reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance

 

18



 

with the intended method of disposition thereof as soon as reasonably practicable, and, in connection with any such request:

 

(a)                                  The Company shall, as soon as practicable, prepare and file with the SEC a Registration Statement on the form required by the Section of this Article II under which such Registration Statement is required to be filed, which form shall be available, pursuant to SEC Guidance, for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its commercially reasonable efforts to cause such filed Registration Statement to become and remain effective, to the extent permitted by SEC Guidance, for a period of (i) not less than 180 days (or, if sooner, until all Registrable Securities have been sold under such Registration Statement), which duration shall not count any Suspension Period, or (ii) in the case of a Shelf Registration, until the earlier of the date (x) on which all of the securities covered by such Shelf Registration are no longer Registrable Securities and (y) on which the Company cannot extend the effectiveness of such Shelf Registration because it is no longer S-3 Shelf Eligible.

 

(b)                                  Prior to filing a Registration Statement or related prospectus or any amendment or supplement thereto (including any documents incorporated by reference therein), or before using any Free Writing Prospectus, the Company shall provide to each Holder, the Holders’ Counsel and each Underwriter, if any, with an adequate and appropriate opportunity to review and comment on such Registration Statement, each Prospectus included therein (and each amendment or supplement thereto) and each Free Writing Prospectus proposed to be filed with the SEC, and thereafter the Company shall furnish to such Holder, the Holders’ Counsel and Underwriter, if any, such number of copies of such Registration Statement, each amendment and supplement thereto filed with the SEC (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such Registration Statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424, Rule 430A, Rule 430B or Rule 430C under the Securities Act and such other documents as such Holder or Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder; provided, however , that in no event shall the Company be required to provide to any Person any materials, information or document required to be filed by the Company pursuant to the Exchange Act prior to its filing other than in connection with a Public Offering (other than as provided in the Agreement of which this Article II forms a part). In addition, the Company shall, as expeditiously as practicable, keep the Holders advised in writing as to the initiation and progress of any registration under Sections 2.1 , 2.2 or 2.3 and provide each Holder with copies of all correspondence (including any comment letter) with the SEC or any other Governmental Authority in connection with any such Registration Statement.  Each Holder shall have the right to request that the Company modify any information contained in such Registration Statement, amendment and supplement thereto pertaining to such Holder, and the Company shall use its commercially reasonable efforts to comply with such request; provided, however , that the Company shall not have any obligation so to modify any information if such modification the Company reasonably expects that so doing would cause the relevant document to contain an untrue statement of a material fact

 

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or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.

 

(c)                                   After the filing of the Registration Statement, the Company shall (i) cause the related prospectus to be supplemented by any required prospectus supplement, and, as so supplemented, to be filed pursuant to Rule 424 under the Securities Act, (ii) comply with the provisions of the Securities Act and other SEC Guidance applicable to the Company with respect to the disposition of all Registrable Securities covered by such Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holder thereof set forth in such Registration Statement or supplement to such prospectus and (iii) promptly notify each Holder holding Registrable Securities covered by such Registration Statement and the Holders’ Counsel any stop order issued or threatened by the SEC or any state securities commission with respect thereto and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.

 

(d)                                  The Company shall use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by such Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as any Holder holding such Registrable Securities reasonably (in light of such Holder’s intended plan of distribution) requests, and continue such registration or qualification in effect in such jurisdiction for the shortest of (A) as long as permissible pursuant to the Laws of such jurisdiction, (B) as long as any such Holder requests or (C) until all such Registrable Securities are sold and (ii) cause such Registrable Securities to be registered with or approved by such other  Governmental Authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable such Holder to consummate the disposition of the Registrable Securities owned by such Holder; provided , that the Company shall not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 2.7(d) , (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction.

 

(e)                                   The Company shall as promptly as practicable notify each Holder holding such Registrable Securities covered by such Registration Statement (i) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon the discovery that, or upon the occurrence of an event as a result of which, the preparation of a supplement or amendment to such prospectus is required so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements in light of the circumstances under which they were made not misleading and the Company shall promptly prepare and make available to each Holder and file with the SEC any such supplement or amendment, (ii) if the Company becomes aware of any request by the SEC or any other Governmental Authority for amendments or supplements to a Registration Statement or related prospectus covering Registrable Securities or for additional information relating thereto, (iii) if the Company becomes aware of the issuance or threatened issuance by the

 

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SEC of any stop order suspending or threatening to suspend the effectiveness of a Registration Statement covering the Registrable Securities or (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose.

 

(f)                                    (i) The Holders holding a majority of the Registrable Securities to be included in a Demand Registration or intended to be sold pursuant to a Shelf Public Offering pursuant to a “take down” under a Shelf Registration shall have the right to select Underwriters in connection with any Underwritten Offering resulting from the exercise of a Demand Registration or a Shelf Registration (which Underwriters may include any Affiliate of any Holder so long as including such Affiliate would not require that the separate engagement of a qualified independent underwriter with respect to such offering), subject to the Company’s approval (which shall not be unreasonably withheld, conditioned or delayed) and (ii) the Company shall select Underwriters in connection with any other Underwritten Offering. In connection with any Underwritten Offering, the Company shall enter into customary agreements (including an underwriting agreement in customary form) and take all other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities in any such Underwritten Offering, including, if required, the engagement of a “qualified independent underwriter” in connection with the qualification of the underwriting arrangements with FINRA.

 

(g)                                   Subject to confidentiality arrangements or agreements in form and substance reasonably satisfactory to the Board of Directors, the Company shall make available for inspection (upon reasonable notice and during normal business hours) by any Holder and any Underwriter participating in any disposition pursuant to a Registration Statement being filed by the Company pursuant to this Section 2.7 and any attorney, accountant or other professional retained by any such Holder or Underwriter (collectively, the “ Inspectors ”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “ Records ”) as shall be reasonably necessary or desirable to enable them to exercise their due diligence responsibility, and cause the officers and the employees of the Company to supply all information reasonably requested by any Inspectors in connection with such Registration Statement. Records that the Company determines, in good faith, to be confidential and that it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such Registration Statement, (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such Records is necessary to comply with SEC Guidance, Law or legal or administrative process, (iv) the information in such Records was known to the Inspectors on a non-confidential basis prior to its disclosure by the Company or has been made generally available to the public other than as a result of a violation of this Section 2.7(g)  or any other agreement or duty of confidentiality, (v) the information in such Records is or becomes available to the public other than as a result of disclosure by any Inspector in violation the confidentiality agreements or (vi) is or was independently developed by any Inspector without the benefit of the information in such Records. Each Holder agrees that information obtained by it as a result of such inspections shall be deemed confidential

 

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and shall not be used by it or its Affiliates for any other purpose, including as the basis for any market transactions in any securities of the Company, unless and until such information is made generally available to the public.  Each Holder further agrees that, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, it shall, to the extent permitted by applicable Law, give notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.

 

(h)                                  The Company shall furnish to each Holder and to each Underwriter, if any, a signed counterpart, addressed to such Underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a comfort letter or comfort letters from the Company’s independent public accountants, each in customary form and covering such matters of the kind customarily covered by opinions or comfort letters, as the case may be, any Holder or the managing Underwriter therefor reasonably requests.

 

(i)                                      The Company shall otherwise comply with all applicable SEC Guidance and make available to its security holders, as soon as reasonably practicable, an earnings statement or such other document that shall satisfy the provisions of Section 11(a) of the Securities Act and the requirements of Rule 158 thereunder.

 

(j)                                     The Company may require each Holder promptly to furnish in writing to the Company such information regarding the distribution of the Registrable Securities as the Company may from time to time reasonably request and such other information as may be reasonably required in connection with such registration.

 

(k)                                  Each Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 2.7(e) , such Holder shall forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statement (including any Shelf Registration) covering such Registrable Securities until such Holder’s receipt of (i) copies of the supplemented or amended prospectus from the Company or (ii) further notice from the Company that distribution can proceed without an amended or supplemented prospectus, and, in the circumstances described in clause (i) above, if so directed by the Company, such Holder shall deliver to the Company (or otherwise destroy and promptly certify in writing to such destruction) all copies, other than any file copies then in such Holder’s possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. If the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective (including the period referred to in Section 2.7(a) ) by the number of days during the period from and including the date of the giving of notice pursuant to Section 2.7(e)  to the date when the Company shall (x) make available to such Holder a prospectus supplemented or amended to conform with the requirements of Section 2.7(e)  or (y) deliver to such Holder the notice described in clause (ii) above.

 

(l)                                      The Company shall use its commercially reasonable efforts to maintain the listing of all Registrable Securities of any class or series covered by such Registration Statement on NASDAQ or another U.S. national securities exchange.

 

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(m)                              The Company shall have appropriate officers (i) upon reasonable request and at reasonable times prepare and make presentations at any “road shows” in connection with Underwritten Offerings and (ii) otherwise use their commercially reasonable efforts to cooperate as requested by the Underwriters in the offering, marketing or selling of the Registrable Securities.

 

(n)                                  The Company shall as soon as possible following its actual knowledge thereof, notify each Holder: (i) when a prospectus, any prospectus supplement, a Registration Statement or a post-effective amendment to a Registration Statement has been filed with the SEC, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or any other Governmental Authority for amendments or supplements to a Registration Statement, a related prospectus (including a Free Writing Prospectus) or for any other additional information; or (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose.

 

(o)                                  The Company shall reasonably cooperate with each Holder and each Underwriter participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made by FINRA.

 

(p)                                  The Company shall take all other steps reasonably necessary to effect the registration of such Registrable Securities and reasonably cooperate with the holders of such Registrable Securities to facilitate the disposition of such Registrable Securities.

 

(q)                                  The Company shall, within the deadlines specified by SEC Guidance, make all required filings of all prospectuses (including any Free Writing Prospectus) with the SEC and make all required filing fee payments in respect of any Registration Statement or related prospectus used under this Article II (and any offering covered hereby).

 

(r)                                     The Company shall, if such registration is pursuant to a Registration Statement on Form S-3 or any similar short-form registration, include in such Registration Statement such additional information for marketing purposes as the Underwriters reasonably request (which information may be provided by means of a prospectus supplement if permitted by SEC Guidance).

 

2.8                                Holder Obligations .

 

(a)                                  If Registrable Securities owned by any Holder are included in a Demand Registration Statement, a Shelf Registration Statement or a Piggyback Registration, such Holder shall furnish promptly to the Company such information regarding itself and the distribution of such Registrable Securities by such Holder as is required under SEC Guidance or as the Company may otherwise from time to time reasonably request in writing.

 

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(b)                                  Each Holder that has requested inclusion of its Registrable Securities in any Registration Statement shall (i) furnish to the Company (as a condition precedent to such Holder’s participation in such registration) in writing such information with respect to such Holder, its ownership of Common Stock and the intended method of disposition of its Registrable Securities as the Company may reasonably request or as may be required by SEC Guidance for use in connection with any related Registration Statement or prospectus (or amendment or supplement thereto) and any Free Writing Prospectus related thereto and all information required to be disclosed in order to make the information previously furnished to the Company by such Holder not cause such Registration Statement, prospectus or Free Writing Prospectus (A) to fail to comply with SEC Guidance or (B) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (ii) comply with SEC Guidance and all applicable state securities laws and comply with all applicable regulations in connection with the registration and the disposition of Registrable Securities.

 

(c)                                   Each Holder shall, as promptly as practicable, to the extent it is a Registration Participant in a Registration Statement, following its actual knowledge thereof, notify the Company of the occurrence of any event that would reasonably be expected to cause a Registration Statement or prospectus in which its Registrable Securities or any related Free Writing Prospectus are included, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.

 

(d)                                  Each Holder shall use commercially reasonable efforts to cooperate with the Company in preparing the applicable Registration Statement to the extent it is a Registration Participant and any related prospectus or Free Writing Prospectus.

 

(e)                                   Each Holder agrees that no Holder shall be entitled to sell any Registrable Securities pursuant to a Registration Statement or to receive a prospectus relating thereto unless such Holder has complied with its obligations under this Article II.

 

2.9                                Registration Expenses .  In connection with the Company performing its obligations under this Article II, the Registration Expenses of all Registrations shall be borne by the Company, regardless of whether the Registration Statement becomes effective or such offering or other transaction is completed. It is acknowledged by the Holders that the Holders shall bear incremental selling expenses relating to the sale of Registrable Securities, such as Underwriters’ commissions and discounts, in proportion to the number of Registrable Securities sold by each such selling Holder.

 

2.10                         Indemnification .

 

(a)                                  The Company agrees to indemnify, to the fullest extent permitted by law, each Holder holding Registrable Securities covered by a Registration Statement, its Affiliates, stockholders, employees, agents, officers, partners, members,

 

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and directors, and each Person who controls such Holder (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) (collectively the “ Holder Parties ”), for whom Registrable Securities are to be registered pursuant to this Article II against all losses, claims, damages, liabilities, and expenses (including reasonable expenses of investigation and reasonable attorneys’, accountants’ and experts’ fees and expenses) (“ Damages ”) caused by or relating to (A) any untrue or alleged untrue statement of material fact contained in any Registration Statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto, or any documents incorporated by reference therein, or any Free Writing Prospectus utilized in connection therewith; (B) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (C) any untrue statement or alleged untrue statement of a material fact in the information conveyed to any purchaser at the time of the sale to such purchaser, or the omission or alleged omission to state therein a material fact required to be stated therein, and will reimburse each such Holder Party for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such Damages or in related actions or proceedings, except, in each case, insofar as the same are caused by or contained in any information regarding such holder furnished in writing to the Company by such holder expressly for use therein.  The Company also agrees to indemnify and hold harmless any Underwriters of the Registrable Securities (including any Holders who is deemed to be an Underwriter within the meaning of Section 2(a)(11) of the Securities Act), their respective officers and directors and each Person who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act on substantially the same basis as that of the indemnification of the Holders provided in this Section 2.10 .

 

(b)                                  In connection with any Registration Statement in which a Holder for whom Registrable Securities are to be registered pursuant to this Article II is participating, each such Holder shall, to the fullest extent permitted by law, indemnify (i) the Company, (ii) each Person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, (iii) each other Holder participating in any offering of Registrable Securities and (iv) the respective partners, Affiliates, stockholders, members, officers, directors, employees and agents of each of the Persons specified in clauses (i) through (v), from and against all Damages to the same extent as the foregoing indemnity from the Company resulting from or relating to (A) any untrue or alleged untrue statement of material fact contained in the Registration Statement, prospectus, or preliminary prospectus or any amendment thereof or supplement thereto or any Free Writing Prospectus utilized in connection therewith; (B) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (C) any untrue statement or alleged untrue statement of a material fact in the information conveyed to any purchaser at the time of the sale to such purchaser, or the omission or alleged omission to state therein a material fact required to be stated therein, but only to the extent, in each such case, that such untrue statement or alleged untrue statement or omission or alleged omission is contained in any information or affidavit regarding such holder so furnished in writing by such Holder expressly for use therein; provided , that the obligation to indemnify shall be individual, not joint and several, for each Holder and shall be limited

 

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to the net amount of proceeds received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement. As a condition to including Registrable Securities in any Registration Statement filed in accordance with this Article II, the Company may require that it shall have received an undertaking reasonably satisfactory to it from any Underwriter to indemnify and hold it harmless to the extent customarily provided by Underwriters with respect to similar securities and offerings.  No Holder shall be liable under this Section 2.10 for any Damages in excess of the net proceeds realized by such Holder in the sale of Registrable Securities of such Holder to which such Damages relate.

 

(c)                                   If any proceeding (including any investigation by any Governmental Authority) shall be instituted involving any Person in respect of which indemnity may be sought pursuant to Section 2.10(a)  or 2.10(b) , such Person (an “ Indemnified Party ”) shall promptly notify the Person against whom such indemnity may be sought (the “ Indemnifying Party ”) in writing and the Indemnifying Party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such Indemnified Party, and shall assume the payment of all reasonable fees and expenses; provided , that the failure of any Indemnified Party so to notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party is materially prejudiced by such failure to notify. In any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (ii) in the reasonable judgment of such Indemnified Party (A) representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or (B) there would be rights or defenses that would be available to such Indemnified Party that are not available to the Indemnifying Party. It is understood that, in connection with any proceeding or related proceedings in the same jurisdiction, the Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all such Indemnified Parties, and that all such fees and expenses shall be reimbursed promptly after receipt of an invoice setting forth such fees and expenses in reasonable detail.  In the case of any such separate firm for the Indemnified Parties, such firm shall be designated in writing by the Indemnified Parties.  The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent, or if there be a final judgment for the plaintiff, the Indemnifying Party shall indemnify and hold harmless each Indemnified Party from and against any Damages (to the extent obligated herein) by reason of such settlement or judgment.  Without the prior written consent of each affected Indemnified Party, no Indemnifying Party shall effect any settlement of any pending or threatened proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability arising out of such proceeding.

 

(d)                                  If the indemnification provided for in Section 2.10(a)  or Section 2.10(b)  is held by a court of competent jurisdiction to be unavailable to the

 

26



 

Indemnified Parties or is insufficient in respect of any Damages, then each Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Damages in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and the Indemnified Parties in connection with such actions which resulted in such Damages, as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and the Indemnified Parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact has been made by, or relates to information supplied by, such Indemnifying Party or the Indemnified Parties and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The parties agree that it would not be just and equitable if contribution pursuant to this Section 2.10(d)  were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to above.  The amount paid or payable by a party as a result of the Damages referred to above shall be deemed to include, subject to the limitations set forth in Section 2.10(a)  or Section 2.10(b) , any legal or other expenses reasonably incurred by a party in connection with investigating or defending any such action or claim.  Notwithstanding the provisions of this Section 2.10 , no Holder shall be required to contribute any amount in excess of the net proceeds (after deducting the Underwriters’ discounts and commissions) received by such Holder in the offering.  No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.  Each Holder’s obligation to contribute pursuant to this Section 2.10 is several in the proportion that the proceeds of the offering received by such Holder bears to the total proceeds of the offering received by all such Holders and not joint.  The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, or controlling Person of such indemnified party and shall survive the transfer of securities.  The Company also agrees to make such provisions, as are reasonably requested by any indemnified party, for contribution to such party in the event the Company’s indemnification is unavailable for any reason.

 

2.11                         Rule 144 .  The Company shall use its commercially reasonable efforts  to file any reports required to be filed by it under the Securities Act and the Exchange Act, and it will use its commercially reasonable efforts to take such further action as any holder may reasonably request to make available adequate current public information with respect to the Company meeting the current public information requirements of Rule 144(c) under the Securities Act, to the extent required to enable such holder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144 under the Securities Act, as such Rule may be amended from time to time, or (ii) any similar rule or regulation hereafter adopted by the SEC. Notwithstanding the foregoing, nothing in this Section 2.11 shall be deemed to require the Company to register any of its securities pursuant to the Exchange Act.

 

27



 

2.12                         Inconsistent Agreements .  The Company and its controlled Affiliates shall not, without the prior written consent of the Holders of at least a majority of the Registrable Securities at the time in question, enter into any agreement with respect to the registration and/or sale of its securities that is inconsistent with or senior to the rights granted under this Article II; provided , that the grant of rights no more favorable to those in Section 2.2 and Section 2.3 shall be deemed consistent with and not senior to the rights granted in this Article II.

 

ARTICLE III

 

MISCELLANEOUS

 

3.1                                Notices .  All notices and other communications under this Agreement shall be in writing and shall be deemed given: (i) when delivered personally by hand (with written confirmation of receipt); (ii) when sent by facsimile or e-mail (with written confirmation of transmission); (iii) when received or rejected by the addressee if sent by registered or certified mail, postage prepaid, return receipt requested; or (iv) one Business Day following the day sent by overnight courier (with written confirmation of receipt), in each case at the following addresses and facsimile numbers (or to such other address or facsimile number as a party may have specified by notice given to the other party pursuant to this provision):

 

(a)                                  If the Company:

 

Infrastructure and Energy Alternatives, Inc.
2647 Waterfront Parkway East Drive, Suite 100
Indianapolis, Indiana 46214
Attention: Chief Financial Officer
Facsimile:

Email: andrew.layman@iea.net

 

(b)                                  If to the Sponsor, to:

 

c/o M-III Partners, LP
3 Columbus Circle
New York, New York 10019
Attention: Mohsin Y. Meghji
Facsimile: (212) 531-4532

Email: mmeghji@miiipartners.com

 

28



 

With a required copy to (which shall not constitute notice):

 

Kirkland & Ellis LLP

300 North LaSalle
Chicago, Illinois 60654
Attention: Carol Anne Huff
Facsimile: (312) 862-2200

Email: chuff@kirkland.com]

 

(c)                                   If to the Seller or the GFI Representative, to:

 

GFI Energy Group of Oaktree Capital Management, L.P.

11611 San Vicente Boulevard, Suite 710

Los Angeles, CA 90049

Attention: Peter Jonna
Facsimile: (310) 442-0540

Email: pjonna@oaktree.com

 

With a required copy to (which shall not constitute notice):

 

Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019-6064
Attention:  Larry Wee

Facsimile: (212) 492-0052

Email: lwee@paulweiss.com

 

(d)                                  if to the other Holders, to such address set forth on the signature pages hereto for such Holders.

 

3.2                                Amendments and Modifications . Upon the written consent of the Company and the Holders of at least a majority of the Registrable Securities at the time in question, compliance with any of the provisions, covenants and conditions set forth in this Agreement may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided , however , that notwithstanding the foregoing, any amendment hereto or waiver hereof that adversely affects one Holder or group of Holders, solely in its capacity as a holder of the shares of capital stock of the Company, in a manner that is materially different from the other Holders (in such capacity) shall require the consent of the Holders so affected. No course of dealing between any Holder or the Company and any other party hereto or any failure or delay on the part of a Holder or the Company in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies of any Holder or the Company. No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as a

 

29



 

waiver or preclude the exercise of any other rights or remedies hereunder or thereunder by such party.

 

3.3                                Enforcement of Remedies .  Notwithstanding anything contained in this Agreement to the contrary, each Holder hereby acknowledges and agrees that no Holder shall have any right to enforce this Agreement against any other Holder or compel or seek to compel any Holder to enforce this Agreement against any other Holder, and such right to enforce this Agreement against a Holder shall be solely and exclusively vested in the Company (and its successors and assigns).

 

3.4                                Specific Performance .  The parties hereto intend that each of the parties have the right to seek damages or specific performance in the event that any other party hereto fails to perform such party’s obligations hereunder.  Each party hereto agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief when expressly available pursuant to the terms of this Agreement, and hereby waives (i) any defenses in any legal proceeding for an injunction, specific performance or other equitable relief, including the defense that the other parties hereto have an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity and (ii) any requirement under law to post a bond, undertaking or other security as a prerequisite to obtaining equitable relief.

 

3.5                                Third Parties .  Except as expressly set forth herein, nothing expressed or implied in this Agreement is intended or shall be construed to confer on any Person, other than the Company and the Holders, any legal or equitable right, remedy or claim under or with respect to this Agreement or any provision of this Agreement.

 

3.6                                Severability .  If any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired, unless the provisions held invalid, illegal or unenforceable shall substantially impair the benefits of the remaining provisions hereof.

 

3.7                                Entire Agreement .  This Agreement constitutes the entire agreement among the parties hereto. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein or therein.  This Agreement, together with the exhibits hereto, supersede all prior agreements and understandings, whether written or oral, between the parties with respect to such subject matter.

 

3.8                                Termination . The provisions of this Agreement shall terminate and be of no further force or effect when there shall no longer be any Registrable Securities held by any Holder, provided , however , that Section 2. 9 and Section 2.10 shall survive the termination of this Agreement indefinitely. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.

 

(a)                                  THIS AGREEMENT AND ANY CLAIM OR CONTROVERSY HEREUNDER SHALL BE GOVERNED AND CONSTRUED IN

 

30



 

ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF, EXCEPT FOR MATTERS DIRECTLY IN THE PURVIEW OF THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE (THE “ DGCL ”), WHICH MATTERS SHALL BE GOVERNED BY THE DGCL.

 

(b)                                  THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF NEW YORK, IN THE STATE OF NEW YORK OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE AFFAIRS OF THE COMPANY.  TO THE FULLEST EXTENT THEY MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, THE PARTIES HERETO IRREVOCABLY WAIVE AND AGREE NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, ANY CLAIM THAT THEY ARE NOT SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

 

(c)                                   TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY, PROCEEDING OR INVESTIGATION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING.  EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER PARTIES HERETO THAT THIS SECTION 9.11 CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH THEY ARE RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT.  ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION  3 . 9 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.

 

3.28                         Successors and Assigns.

 

(a)                                  Except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors, assigns, heirs, legatees and legal representatives.  This Agreement and any rights hereunder are not assignable except in accordance with the terms of this Agreement.

 

31



 

(b)                                  The rights and obligations under this Agreement shall be automatically assignable by the Holders to any transferee of all or any portion of such Holder’s Registrable Securities if (i) the transferring Holder agrees in writing with the transferee to assign such rights and obligations, and a copy of such agreement is furnished to the Company within a reasonable time after such assignment, (ii) such transferee becomes a party to this Agreement by executing a joinder hereto, substantially in the form of Exhibit A , (iii) giving effect to such transfer, the Registrable Securities transferred to such transferee would be Registrable Securities, and (iv) such transfer shall have been made in accordance with the requirements of applicable Law and SEC Guidance.  Upon compliance with the foregoing sentence any such transferee shall become a Holder under this Agreement.

 

3.29                         Headings . The section headings of this Agreement are included for reference purposes only and shall not affect the construction or interpretation of any of the provisions of this Agreement.

 

3.30                         Counterparts .  This Agreement may be executed simultaneously in two or more counterparts, each of which will be deemed an original, but all of which will constitute one agreement.  Execution and delivery of this Agreement by exchange of electronically transmitted counterparts bearing the signature of a party hereto will be equally as effective as delivery of a manually executed counterpart of such party hereto.  This Agreement and any signed agreement entered into in connection herewith or contemplated hereby, and any amendments hereto or thereto, to the extent signed and delivered by means of a facsimile machine or scanned pages via electronic mail, will be treated in all manner and respect as an original contract and will be considered to have the same binding legal effects as if it were the original signed version thereof delivered in person.  At the request of any party hereto or to any such contract, each other party hereto or thereto will re-execute original forms thereof and deliver them to all other parties.  No party hereto or to any such contract will raise the use of a facsimile machine or email to deliver a signature or the fact that any signature or contract was transmitted or communicated through the use of facsimile machine or email as a defense to the formation of a contract and each such party forever waives any such defense.

 

3.31                         Certain Representations and Warranties; Covenants .  Each party hereby represents and warrants to the other parties as follows:  (i)(a) if such party is an entity, such party has all requisite authority to execute and deliver this Agreement and to perform its obligations hereunder and (b) if such party is an individual, such party has all requisite capacity to execute and deliver this Agreement and to perform his or her obligations hereunder, (ii) this Agreement has been duly executed and delivered by such party and constitutes a valid, legal and binding agreement of such party, enforceable against such party in accordance with its terms and (iii) neither the execution of this Agreement by such party nor the performance of such party’s obligations hereunder will conflict with or violate, or result in a breach or default under, any applicable law or legal requirement or any agreement to which such party is a party or is otherwise bound.

 

32



 

3.32                         Other Definitional and Interpretive Matters .

 

(a)                                  Rules of Interpretation .  The table of contents and the section and other headings and subheadings contained in this Agreement and the exhibits hereto are solely for the purpose of reference, are not part of the agreement of the parties, and will not in any way affect the meaning or interpretation of this Agreement or any Exhibit hereto.  All references to days (excluding Business Days) or months will be deemed references to calendar days or months.  All references to “$” will be deemed references to United States dollars.  Unless the context of this Agreement otherwise expressly requires, any reference to a “ Section ,” “ Exhibit ,” or “ Schedule ” will be deemed to refer to a section of this Agreement, an exhibit to this Agreement or a schedule to this Agreement, as applicable.  Unless the context of this Agreement otherwise clearly requires (i) the words “hereof,” “herein” and “hereunder” and words of similar import referring to this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; (ii) the word “including” or any variation thereof means “including, without limitation” and will not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it; (iii) any reference to any federal, state, local or foreign statute or other Law will be deemed also to refer to all rules and regulations promulgated thereunder; (iv) all terms defined in this Agreement will have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein; (v) the definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term; (vi) references herein to a Person in a particular capacity or capacities shall exclude such Person in any other capacity; (vii) with respect to the determination of any period of time, the word “from” or “since” means “from and including” or “since and including,” as applicable, and the words “to” and “until” each means “to and including”; (viii) references herein to any contract means such contract as amended, supplemented or modified (including any waiver thereto) in accordance with the terms thereof as of the applicable date of determination; (ix) if the last day for the giving of any notice or the performance of any act required or permitted under this Agreement is a day that is not a Business Day, then the time for the giving of such notice or the performance of such action shall be extended to the next succeeding Business Day; (x) references in this Agreement to a particular law means such law as amended, modified, supplemented or succeeded, from time to time and as of the applicable date of determination; (xi) “to the extent” means the degree to which and not simply “if”; and (xii) “or” is disjunctive but not exclusive.

 

(b)                                  Joint Drafting .  The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

 

33



 

3.33                         Effectiveness .  This Agreement shall become effective on the date hereof and shall thereupon amend and restate in full the Existing Registration Rights Agreement.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

34



 

IN WITNESS WHEREOF, the undersigned have executed, or have cause to be executed, this Agreement on the date first written above.

 

 

COMPANY:

 

 

 

 

 

INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC. (f/k/a M III ACQUISITION CORP.)

 

 

 

 

 

By:

/s/ John P. Roehm

 

 

Name:

John P. Roehm

 

 

Title:

President

 

 

 

 

 

SPONSOR:

 

 

 

M III SPONSOR I LLC

 

 

 

 

 

By:

/s/ Mohsin Y. Meghji

 

 

Name:

Mohsin Y. Meghji

 

 

Title:

Managing Member

 

[Signature Page to Registration Rights Agreement]

 



 

 

M III SPONSOR I LP

 

 

 

 

 

By:

/s/ Mohsin Y. Meghji

 

 

Name:

Mohsin Y. Meghji

 

 

Title:

Chief Executive Officer

 

[Signature Page to Registration Rights Agreement]

 



 

 

SELLER:

 

 

 

INFRASTRUCTURE AND ENERGY ALTERNATIVES, LLC

 

 

 

 

 

By:

/s/ John P. Roehm

 

 

Name:

John P. Roehm

 

 

Title:

President

 

 

 

 

 

GFI REPRESENTATIVE:

 

 

 

 

 

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 Registration Rights Agreement]

 



 

 

By:

/s/ Osbert Hood

 

 

Name: Osbert Hood

 

 

 

 

 

By:

/s/ Philip Marber

 

 

Name: Philip Marber

 

 

 

 

 

By:

/s/ Mohsin Y. Meghji

 

 

Name: Mohsin Y. Meghji

 

[Signature Page to Registration Rights Agreement]

 



 

 

CANTOR FITZGERALD &CO

 

 

 

 

 

By:

/s/ Shawn Matthews

 

 

Name: Shawn Matthews

 

 

Title: President & CEO

 

 

 

Address for Notices:

 

 

[Signature Page to Registration Rights Agreement]

 



 

Exhibit A

 

FORM OF JOINDER AGREEMENT TO REGISTRATION RIGHTS AGREEMENT
[   ], 2018

 

This JOINDER (the “ Joinder Agreement ”) to the Registration Rights Agreement, dated as of [ · ], 2018, by and among Infrastructure and Energy Alternatives, Inc. (f/k/a M III Acquisition Corp.), a Delaware corporation (the “ Company ”), M III Sponsor I, LLC., a Delaware limited liability company (“ Sponsor ”), M III Sponsor I LP, a Delaware limited partnership (“ M III LP ”), Infrastructure and Energy Alternatives, LLC (the “ Seller ), Oaktree Power Opportunities Fund III Delaware, L.P., a Delaware limited partnership, in its capacity as the representative of the Selling Stockholders (“ GFI Representative ”), Cantor Fitzgerald & Co. (“ Cantor Fitzgerald ”) and the other undersigned parties listed on the signature pages thereto (the “ Registration Rights Agreement ”), is made as of [ DATE ], by and between the Company and [ HOLDER ] (“ Holder ”).  Capitalized terms used herein but not otherwise defined shall have the meanings set forth in the Registration Rights Agreement.

 

WHEREAS, on the date hereof, Holder has acquired [ · ] [shares of Common Stock] [Warrants to purchase shares of Common Stock] [Preferred Stock] (the “ Holder Stock ”) from [ · ]  and the Registration Right Agreement and the Company require Holder, as a holder of such Common Stock, to become a party to the Registration Rights Agreement, and Holder agrees to do so in accordance with the terms hereof.

 

NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Joinder Agreement hereby agree as follows:

 

1.                                       Agreement to be Bound .  Holder hereby (i) acknowledges that it has received and reviewed a complete copy of the Registration Rights Agreement and (ii) agrees that upon execution of this Joinder Agreement, it shall become a party to the Registration Rights Agreement and shall be fully bound by, and subject to, all of the covenants, terms and conditions of the Registration Rights Agreement as though an original party thereto and shall be deemed a Holder for all purposes thereof.

 

2.                                       Successors and Assigns.   Except as otherwise provided herein, this Joinder Agreement shall bind and inure to the benefit of and be enforceable by the Company and its successors and assigns and Holder and any subsequent holders of any Holder Stock and the respective successors and assigns of each of them, so long as they hold any Holder Stock.

 

3.                                       Notices .  For purposes of Section 3.1 of the Registration Rights Agreement, all notices, demands or other communications to the Holder shall be directed to:

 



 

[Name]
[Address]
[Facsimile Number]

[Email]

 

4.                                       Governing Law .  This Joinder Agreement, and any claim, controversy or dispute arising under or related to this Joinder Agreement, shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflict of laws that would result in the application of any law other than the laws of the State of New York.  The parties hereto agree that any suit or proceeding arising in respect of this Joinder Agreement will be tried exclusively in the U.S. District Court for the Southern District of New York or, if that court does not have subject matter jurisdiction, in any state court located in The City and County of New York, and the parties hereto agree to submit to the jurisdiction of, and to venue in, such courts.  THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS JOINDER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.

 

5.                                       Counterparts .  This Joinder Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.  Delivery of an executed counterpart of a signature page to this Joinder Agreement by facsimile, email or other electronic transmission ( i.e ., “ pdf ”) shall be effective as delivery of a manually executed counterpart of this Joinder Agreement.

 

6.                                       Amendments .  No amendment or waiver of any provision of this Joinder Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.

 

7.                                       Headings .  The headings in this Joinder Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

 

[Signature Page Follows]

 


Exhibit 10.3

 

INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC.

 

(f/k/a M III ACQUISITION CORP.)

 

INVESTOR RIGHTS AGREEMENT

 

DATED AS OF

 

March 26, 2018

 



 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

ARTICLE I DEFINITIONS AND USAGE

2

Section 1.1

Definitions

2

Section 1.2

Interpretation

6

 

 

 

ARTICLE II GFI REPRESENTATIVE

7

Section 2.1

GFI Representative

7

 

 

 

ARTICLE III APPROVAL AND CONSULTATION OF CERTAIN MATTERS

9

Section 3.1

GFI Representative Approval Rights

9

Section 3.2

Sponsor Approval Rights

9

 

 

 

ARTICLE IV TRANSFER

10

Section 4.1

Selling Stockholder Transfers and Joinders

10

Section 4.2

Sponsor Transfers and Joinders

10

 

 

 

ARTICLE V BOARD REPRESENTATION

12

Section 5.1

Composition of Initial Board

12

Section 5.2

Nominees

13

Section 5.3

Committees

16

Section 5.4

Subsidiaries

17

 

 

 

ARTICLE VI INDEMNIFICATION

17

Section 6.1

Right to Indemnification

17

Section 6.2

Prepayment of Expenses

17

Section 6.3

Claims

17

Section 6.4

Nonexclusivity of Rights

18

Section 6.5

Other Sources

18

Section 6.6

Indemnitor of First Resort

18

 

 

 

ARTICLE VII TERMINATION

18

Section 7.1

Term

18

Section 7.2

Survival

19

 

 

 

ARTICLE VIII REPRESENTATIONS AND WARRANTIES

19

Section 8.1

Representations and Warranties of Stockholders

19

Section 8.2

Representations and Warranties of the Company

20

 

 

 

ARTICLE IX MISCELLANEOUS

20

Section 9.1

Entire Agreement

20

Section 9.2

Further Assurances

20

Section 9.3

Notices

20

Section 9.4

Governing Law

22

Section 9.5

Consent to Jurisdiction

22

Section 9.6

Equitable Remedies

23

 



 

Section 9.7

Construction

23

Section 9.8

Counterparts

23

Section 9.9

Third Party Beneficiaries

23

Section 9.10

Binding Effect

23

Section 9.11

Severability

24

Section 9.12

Adjustments Upon Change of Capitalization

24

Section 9.13

Amendments; Waivers

24

Section 9.14

Actions in Other Capacities

25

 

2



 

INVESTOR RIGHTS AGREEMENT

 

INVESTOR RIGHTS AGREEMENT (this “ Agreement ”), dated as of March 26, 2018, (i) by and between Infrastructure and Energy Alternatives, Inc. (f/k/a M III Acquisition Corp.), a Delaware corporation (the “ Company ”), M III Sponsor I LLC, a Delaware limited liability company (“ Sponsor ”), and any other Sponsor Affiliated Transferees hereunder who become party hereto in accordance with this Agreement; and (ii) by and among the Company and each of Infrastructure and Energy Alternatives, LLC, a Delaware limited liability company (“ Seller ”), any other Seller Affiliated Transferees hereunder who become party hereto in accordance with this Agreement (collectively the “ Selling Stockholders ”) and Oaktree Power Opportunities Fund III Delaware, L.P., a Delaware limited partnership, in its capacity as the representative of the Selling Stockholders (the “ GFI Representative ”).

 

WHEREAS, the Company and certain of its Affiliates (as defined herein) have consummated the Mergers (as defined in the Merger Agreement) and the other transactions (collectively, the “ Transactions ”) contemplated by the Agreement and Plan of Merger, by and among IEA Energy Services LLC, the Company, Wind Merger Sub I, Inc., Wind Merger Sub II, LLC, the Seller, the GFI Representative, as the representative of the Seller, and the Sponsor and M III Sponsor I LP (“ M III LP ”), solely for purposes of Section 10.3 thereof and, to the extent related thereto, Article 12 thereof (as amended, restated, modified or supplemented from time to time, the “ Merger Agreement ”);

 

WHEREAS, after giving effect to such Transactions, Seller owns shares of the Company’s common stock, par value $0.0001 per share (the “ Common Stock ”), and the Company’s preferred stock, par value $0.0001 per share (the “ Preferred Stock ”);

 

WHEREAS, after giving effect to such Transactions, the Sponsor will continue to own shares of the Company’s Common Stock and warrants to purchase shares of the Company’s Common Stock (the “ Warrants ”);

 

WHEREAS, the Company, the Selling Stockholders and the GFI Representative desire to provide the GFI Representative on behalf of the Selling Stockholders with certain governance rights and director nomination rights;

 

WHEREAS, the Selling Stockholders desire to grant a proxy to the GFI Representative; and

 

WHEREAS, the Company and the Sponsor desire to provide Sponsor with certain governance rights and director nomination rights.

 

NOW, THEREFORE, in consideration of the mutual covenants and undertakings contained herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

 



 

ARTICLE I

 

DEFINITIONS AND USAGE

 

Section 1.1                                     Definitions .  As used in this Agreement, the following terms shall have the following meanings:

 

Affiliate ” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person; provided , that any portfolio company of Oaktree Capital Management, L.P. or its Affiliates, that is not a portfolio company of the GFI Representative (or any parallel or successor funds) shall be deemed not to be an “Affiliate” of the GFI Representative to the extent neither the GFI Representative nor any of its portfolio companies nor any officer, director, general partner or managing member of any of the foregoing has any material economic interest in, or exercises any control with respect to, any such portfolio company.  For the purposes of this definition, “ control ” (including the terms “ controlling ” and “ controlled ”), with respect to the relationship between or among two or more Persons, means the possession, directly or indirectly, of the power to direct or cause the direction of the affairs or management of such subject Person, whether through the ownership of voting securities, as trustee or executor, by contract or otherwise.

 

Affiliate Transaction ” shall have the meaning assigned to such term in Section 3.1(a) .

 

Agreement ” shall have the meaning assigned to such term in the Preamble.

 

beneficial ownership ” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act.  The terms “ beneficially own ” and “ beneficial owner ” shall have correlative meanings.  With respect to the Selling Stockholders, beneficial ownership of Common Stock shall exclude any shares of Common Stock issuable upon conversion of the Preferred Stock beneficially owned by the Selling Stockholders, regardless of whether the Preferred Stock is convertible within 60 days of the date of calculation.  For the avoidance of doubt, with respect to the Sponsor and any Sponsor Affiliated Transferee, beneficial ownership shall include any Earnout Shares, regardless of whether vested or unvested.

 

Board of Directors ” means the board of directors of the Company.

 

By-Laws ” means the by-laws of the Company, as they may be amended, restated or otherwise modified from time to time.

 

Certificate of Incorporation ” means the certificate of incorporation of the Company, as it may be amended, restated or otherwise modified from time to time.

 

Claim ” shall have the meaning assigned to such term in Section 6.1 .

 

Common Stock ” shall have the meaning assigned to such term in the Recitals.

 

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Company ” shall have the meaning assigned to such term in the Preamble.

 

Covered Person ” shall have the meaning assigned to such term in Section 6.1 .

 

Designees ” shall have the meaning assigned to such term in Section 5.2(c) .

 

Exchange Act ” means the Securities Exchange Act of 1934, as amended, and any successor law or statute, in each case together with the rules and regulations promulgated thereunder.

 

GFI Designee ” shall have the meaning assigned to such term in Section 5.2(a) .

 

GFI Representative ” shall have the meaning assigned to such term in the Preamble.

 

Governmental Entity ” means any court, administrative agency, regulatory body, commission or other governmental authority, board, bureau or instrumentality, domestic or foreign and any subdivision thereof.

 

Initial Designees ” shall have the meaning assigned to such term in Section 5.1(a) .

 

Independent Designee ” shall have the meaning assigned to such term in Section 5.2(c) .

 

Lock-Up Period ” shall have the meaning assigned to such term in Section 4.3(a) .

 

Management Lock-Up Period ” shall have the meaning assigned to such term in Section 4.3(a) .

 

Other Indemnitors ” shall have the meaning assigned to such term in Section 6.6 .

 

Person ” means any individual, corporation, estate, partnership, joint venture, association, joint-stock company, limited liability company, governmental authority, trust or other entity.

 

Preferred Stock ” shall have the meaning assigned to such term in the Recitals.

 

Sale Transaction ” means any (i) direct or indirect acquisition (whether by a purchase, sale, transfer, exchange, issuance, merger, consolidation or other business combination) of shares of capital stock or other securities, in a single transaction or series of related transactions, representing more than fifty percent (50%) of the equity or voting interests of the Company (in each case, including by means of a spin-off, split-off or public offering), (ii) merger, consolidation or other business combination directly or indirectly involving the Company or any of its Subsidiaries representing assets or businesses that constitute or represent more than fifty percent (50%) of the consolidated revenue, consolidated operating income or consolidated assets of the Company and its Subsidiaries, taken as a whole, (iii) reorganization, recapitalization, liquidation or

 

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dissolution directly or indirectly involving the Company or any of its Subsidiaries representing more than (50%) of the consolidated revenue, consolidated operating income or consolidated assets of the Company and its Subsidiaries, taken as a whole, in each case which results in any one Person (other than Affiliates of Oaktree Capital Management, L.P.), or more than one Person that are Affiliates or that are acting as a group (as such term is defined in Section 13(d)(3) of the Exchange Act) (excluding Oaktree Capital Management, L.P. and its Affiliates), acquiring direct or indirect ownership of equity securities of the Company or any of its Subsidiaries which, together with the equity securities held by such Person, such Person and its Affiliates or such group, constitutes more than 50% of the total direct or indirect voting power or economic rights of the equity securities of the Company and its Subsidiaries, taken as a whole, (iv) direct or indirect sale, lease, license, exchange, mortgage, transfer or other disposition, in a single transaction or series of related transactions, of assets or businesses that constitute or represent more than fifty percent (50%) of the consolidated revenue, consolidated operating income or consolidated assets of the Company and its Subsidiaries, taken as a whole, or (v) other transaction having a similar effect to those described in clauses (i) through (iv).

 

SEC ” means the United States Securities and Exchange Commission or any similar agency then having jurisdiction to enforce the Securities Act.

 

SEC Guidance ” means ( a) any publicly available written or oral interpretations, questions and answers, guidance and forms of the SEC, (b) any oral or written comments, requirements or requests of the SEC or its staff, (c) the Securities Act and the Exchange Act and (d) any other rules, bulletins, releases, manuals and regulations of the SEC.

 

Securities Act ” means the Securities Act of 1933, as amended, supplemented or restated from time to time and any successor to such statute, and the rules and regulations promulgated thereunder.

 

Seller ” shall have the meaning assigned to such term in the Preamble.

 

Seller Affiliated Transferee ” means, with respect to any Selling Stockholder, (i) the GFI Representative, (ii) any Affiliate of the GFI Representative and (iii) any executive officer, director or member of the Seller as of immediately prior to the date hereof (or any Affiliate or family member thereof or any trust formed for the benefit of any of the foregoing persons) to whom any Selling Stockholder or any of the forgoing persons Transfers Common Stock, in each case other than the Company.

 

Seller Higher Condition ” means that the GFI Representative, together with the Seller Affiliated Transferees, directly or indirectly, beneficially owns at least fifty percent (50%) of the Common Stock beneficially owned by the Seller as of the date hereof, as adjusted for any stock split, stock dividend, reverse stock split, recapitalization, business combination, reclassification or similar event, in each case with such adjustment being determined in good faith by the Board of Directors.

 

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Seller Lock-Up Period ” shall have the meaning assigned to such term in Section 4.3(a) .

 

Seller Minimum Condition ” means that the GFI Representative, together with the Seller Affiliated Transferees, directly or indirectly, beneficially owns at least twenty-five percent (25%) of the Common Stock beneficially owned by the Seller as of the date hereof, as adjusted for any stock split, stock dividend, reverse stock split, recapitalization, business combination, reclassification or similar event, in each case with such adjustment being determined in good faith by the Board of Directors.

 

Selling Stockholders ” means Seller together with any Seller Affiliated Transferees to whom Seller or any Seller Affiliated Transferee has Transferred Common Stock in accordance with the terms hereof.

 

Sponsor Affiliated Transferee ” means Mohsin Y. Meghji and any of his Affiliates or family members or any trust formed for the benefit of any of the foregoing persons to whom the Sponsor Transfers Common Stock or Warrants, in each case other than the Company.

 

Sponsor Designee ” shall have the meaning assigned to such term in Section  5.2(b) .

 

Sponsor Higher Condition ” means that Mohsin Y. Meghji, M III LP (so long as such entity is controlled by the entity listed on Schedule A-1), Sponsor, and the persons listed on Schedule A-2, together with the Sponsor Affiliated Transferees, directly or indirectly, beneficially own at least fifty percent (50%) of the Common Stock (including Earnout Shares) beneficially owned by Mohsin Y. Meghji, M III LP (so long as such entity is controlled by the entity listed on Schedule A-1), the Sponsor and their respective Affiliates (other than Osbert Hood and Philip Marber) as of the date hereof after giving effect to any forfeiture of shares of Common Stock to the Company on the date hereof (prior to distribution of any shares of Common Stock by the Sponsor or M III LP to their respective members or partners, including the persons listed on Schedule A-2), as adjusted for any stock split, stock dividend, reverse stock split, recapitalization, business combination, reclassification or similar event, in each case with such adjustment being determined in good faith by the Board of Directors.

 

Sponsor Minimum Condition ” means that Mohsin Y. Meghji, M III LP (so long as such entity is controlled by the entity listed on Schedule A-1), Sponsor, and the persons listed on Schedule A-2, together with the Sponsor Affiliated Transferees, directly or indirectly, beneficially own at least twenty-five percent (25%) of the Common Stock (including Earnout Shares) held by the Mohsin Y. Meghji, M III LP (so long as such entity is controlled by the entity listed on Schedule A-1), the Sponsor, and their respective Affiliates (other than Osbert Hood and Philip Marber) as of the date hereof after giving effect to any forfeiture of shares of Common Stock to the Company on the date hereof (prior to distribution of any shares of Common Stock by the Sponsor or M III LP to their respective members or partners, including the persons listed on Schedule A-2), as adjusted for any stock split, stock dividend, reverse stock split, recapitalization,

 

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business combination, reclassification or similar event, in each case with such adjustment being determined in good faith by the Board of Directors.

 

Sponsor ” shall have the meaning assigned to such term in the Preamble.

 

Stockholders ” shall mean any of the following persons so long as any of them beneficially owns any Common Stock: the Selling Stockholders, the Seller Affiliated Transferees, the Sponsor and the Sponsor Affiliated Transferees.

 

Subsidiary ” means, with respect to any Person, any corporation or other entity of which a majority of (i) the voting power of the voting equity securities or (ii) the outstanding equity interests is owned, directly or indirectly, by such Person.

 

Transactions ” shall have the meaning assigned to such term in the Recitals.

 

Transfer ” means any sale, assignment, bequest, conveyance, devise, gift (outright or in trust), pledge, encumbrance, hypothecation, mortgage, exchange, transfer or other disposition or act of alienation, whether voluntary or involuntary or by operation of law.  The terms “ Transferred ” and “ Transferring ” have correlative meanings.

 

Voting Securities ” means the Common Stock and any other securities of the Company or any Subsidiary of the Company which would entitle the holders thereof to vote with the holders of Common Stock in the election of directors of the Company.

 

Warrants ” shall have the meaning assigned to such term in the Recitals.

 

Section 1.2                                     Interpretation .  In this Agreement and in the exhibits hereto, except to the extent that the context otherwise requires:

 

(a)                                  the headings are for convenience of reference only and shall not affect the interpretation of this Agreement;

 

(b)                                  defined terms include the plural as well as the singular and vice versa;

 

(c)                                   words importing gender include all genders;

 

(d)                                  a reference to any statute or statutory provision shall be construed as a reference to the same as it may have been or may from time to time be amended, extended, re-enacted or consolidated and to all statutory instruments or orders made thereunder;

 

(e)                                   any reference to a “day” shall mean the whole of such day, being the period of 24 hours running from midnight to midnight;

 

(f)                                    references to Articles, Sections, subsections, clauses and Exhibits are references to Articles, Sections, subsections, clauses and Exhibits of and to, this Agreement;

 

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(g)                                   the words “including” and “include” and other words of similar import shall be deemed to be followed by the phrase “without limitation”; and

 

(h)                                  unless otherwise specified, references to any party to this Agreement or any other document or agreement shall include its successors and permitted assigns.

 

ARTICLE II

 

GFI REPRESENTATIVE

 

Section 2.1                                     GFI Representative .  The GFI Representative and each of the Selling Stockholders agree as follows:

 

(a)                                  By virtue of the adoption of this Agreement, each Selling Stockholder hereby authorizes, directs and appoints the GFI Representative to act as its sole and exclusive agent, attorney-in-fact and representative, and grants a proxy to the GFI Representative over such Selling Stockholder’s Voting Securities, and hereby constitutes and appoints the GFI Representative as the proxy holder thereof, with full power of substitution with respect to all matters under this Agreement, including (i) determining, giving and receiving notices and processes hereunder, (ii) executing and delivering, on behalf of the Selling Stockholders, any and all documents or certificates to be executed by the Selling Stockholders in connection with this Agreement and the transactions contemplated hereby, (iii) granting any waiver, consent, approval or election, including exercising the consent rights set forth in Section 3.1 , (iv) nominating and electing the GFI Designees to the Board of Directors, (v) making any filings with any Governmental Entity, on behalf of the Selling Stockholders under this Agreement, (vi) appointing, in its sole discretion, one or more successor representatives to the GFI Representative, (vii) resolving any disputes hereunder between the Company and the Selling Stockholders, (viii) performing the duties expressly assigned to the GFI Representative hereunder, and (ix) engaging and employing agents and representatives and incurring such other expenses as the GFI Representative shall reasonably deem necessary or prudent in connection with the foregoing.  Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the GFI Representative consistent herewith, shall be absolutely and irrevocably binding on each Selling Stockholder as if such Selling Stockholder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Selling Stockholder’s individual capacity, and no Selling Stockholder shall have the right to object, dissent, protest or otherwise contest the same.

 

(b)                                  The appointment of the GFI Representative as each Selling Stockholder’s attorney-in-fact revokes any power of attorney or proxy heretofore granted that authorized any other Person or Persons to represent such Selling Stockholder with regard to this Agreement.  The appointment of the GFI Representative as attorney-in-fact and the grant to the GFI Representative of a proxy hereto is coupled with an interest and is irrevocable.  The obligations of each Selling Stockholder pursuant to this Agreement (i) will not be terminated by operation of law, death, mental or physical incapacity,

 

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liquidation, dissolution, bankruptcy, insolvency or similar event with respect to such Selling Stockholder or any proceeding in connection therewith, or in the case of a trust, by the death of any trustee or trustees or the termination of such trust, or any other event, and (ii) shall survive the delivery of an assignment by any Selling Stockholder of the whole or any fraction of its interest in any payment due to it under this Agreement.

 

(c)                                   The GFI Representative hereby accepts the foregoing appointment and agrees to serve as the GFI Representative, subject to the provisions hereof, for the period of time from and after the date hereof without compensation except for the reimbursement by the Selling Stockholders of fees and expenses incurred by the GFI Representative in its capacity as such.

 

(d)                                  For all purposes of this Agreement, the Company shall be entitled to rely conclusively on the instructions and decisions of the GFI Representative as to any other actions required or permitted to be taken by the GFI Representative hereunder or in connection with any of the transactions and other matters contemplated hereby.

 

(e)                                   The GFI Representative shall not have any liability to the Selling Stockholders whatsoever with respect to its actions, decisions and determinations, and shall be entitled to assume that all actions, decisions and determinations are fully authorized by each and every one of the Selling Stockholders.  The Selling Stockholders shall indemnify and hold harmless the GFI Representative, its Affiliates and all of their respective owners, representatives, successors or assigns from and against any and all losses incurred or suffered by any such Person resulting from, arising out of or relating or attributable to any and all actions, decisions and determinations taken or made by the GFI Representative in connection with this Agreement and the transactions contemplated hereby.

 

(f)                                    The GFI Representative shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof.  The GFI Representative may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the Person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.  The GFI Representative may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct the GFI Representative on behalf of that party unless written notice to the contrary is delivered to the GFI Representative.

 

(g)                                   The GFI Representative may act pursuant to the advice of counsel with respect to any matter relating to this Agreement, and shall not be liable for any action taken or omitted by it in good faith in accordance with such advice.

 

(h)                                  The Company hereby agrees that the GFI Representative shall not, in its capacity as such, have any liability to the Company, or any of its Affiliates whatsoever with respect to its actions, decisions or determinations.

 

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ARTICLE III

 

APPROVAL AND CONSULTATION OF CERTAIN MATTERS

 

Section 3.1                                     GFI Representative Approval Rights .  The Company agrees with the GFI Representative and the Selling Stockholders, that, for so long as the Seller Higher Condition is satisfied, the Company shall not, and shall cause its Subsidiaries not to, directly or indirectly (whether by merger, consolidation, amendment of this Agreement or otherwise) without the prior written approval of the GFI Representative,

 

(a)                                  enter, amend, supplement, waive or otherwise modify the terms of any transaction or agreement between the Company or any of its Subsidiaries, on the one hand, and any Sponsor, any Affiliate of any Sponsor (including any Sponsor Affiliated Transferee) or any Affiliate of the Company, on the other hand (an “ Affiliate Transaction ”), other than the exercise of any rights under any agreements as set forth on Schedule B attached hereto (without giving effect to any amendment, supplement, waiver or other modification executed after the date hereof);

 

(b)                                  hire or remove the Chief Executive Officer or any other executive officer of the Company or its Subsidiaries or

 

(c)                                   except as set forth in Section 5.2(d) , increase or decrease the size of the Board of Directors.

 

Section 3.2                                     Sponsor Approval Rights .  The Company agrees with Sponsor that, for so long as the Sponsor Higher Condition is satisfied, the Company shall not, and shall cause its Subsidiaries not to, directly or indirectly (whether by merger, consolidation, amendment of this Agreement or otherwise) without the prior written approval of the Sponsor:

 

(a)                                  enter into, amend, supplement, waive or otherwise modify the terms of any transaction or agreement between the Company or any of its Subsidiaries, on the one hand, and any Selling Stockholders described in clauses (i) and (ii) of the definition of Seller Affiliated Transferee, the GFI Representative or their respective Affiliates, on the other hand or any other Affiliate Transaction (provided that any transaction between the Company, on the one hand, and a Person that would be an Affiliate of the GFI Representative but for the proviso contained in the definition of “Affiliate” shall be deemed to be an Affiliate Transaction requiring such approval unless it meets the requirements in either the succeeding clause (x) or (y)), other than (x) transactions and agreements between the Company or any of its Subsidiaries and Affiliates of the GFI Representative who are engaged on an arm’s-length basis to provide goods or services on construction projects undertaken by the Company or any of its Subsidiaries for customers to the extent that such goods and services, in the reasonable judgment of the Company, could not be obtained from an unaffiliated third party at materially lower prices while maintaining at least the same quality and (y) the exercise of any rights under any agreements as set forth on Schedule C attached hereto (without

 

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giving effect to any amendment, supplement, waiver or other modification executed after the date hereof);

 

(b)                                  hire or remove the Chief Executive Officer or any other executive officer of the Company or its Subsidiaries or

 

(c)                                   except as set forth in Section 5.2(d) , increase or decrease the size of the Board of Directors.

 

ARTICLE IV

 

TRANSFER

 

Section 4.1                                     Selling Stockholder Transfers and Joinders .  The Selling Stockholders agree among themselves and with the GFI Representative that, unless waived in writing by the GFI Representative (in which case the holdings of such transferee shall not be included for purposes of determining whether the Seller Higher Condition or the Seller Minimum Condition is satisfied), if a Selling Stockholder effects any Transfer of Common Stock to a Seller Affiliated Transferee, such Seller Affiliated Transferee shall, if not a party hereto, within five (5) days of such Transfer, execute and deliver to the Company and the other parties hereto a joinder to this Agreement, in form and substance reasonably acceptable to the GFI Representative, in which such Seller Affiliated Transferee agrees to be an “Selling Stockholder” for all purposes of this Agreement, including Section 2.1 hereof, and which provides that such Seller Affiliated Transferee shall be bound by and shall fully comply with the terms of this Agreement.

 

Section 4.2                                     Sponsor Transfers and Joinders .  The Sponsor agrees unless waived in writing by the Sponsor (in which case the holdings of such transferee shall not be included for purposes of determining whether the Sponsor Higher Condition or the Sponsor Minimum Condition is satisfied), if the Sponsor or any Sponsor Affiliated Transferee effects any Transfer of Common Stock to a Sponsor Affiliated Transferee, such Sponsor Affiliated Transferee shall, if not a party hereto, within five (5) days of such Transfer, execute and deliver to the Company and the other parties hereto a joinder to this Agreement, in form and substance reasonably acceptable to the Sponsors, in which such Sponsor Affiliated Transferee agrees to be a “Sponsor Affiliated Transferee” for all purposes of this Agreement, and which provides that such Sponsor Affiliated Transferee shall be bound by and shall fully comply with the terms of this Agreement.  For the avoidance of doubt, the persons set forth on Schedule A and M III LP and their respective transferees shall not be deemed Sponsor Affiliated Transferees hereunder.

 

Section 4.3                                     Lock-Up .

 

(a)                                  Subject to Section 4.3(b ), (i) in the case of Seller (and any Seller Affiliated Transferee, other than the Persons set forth on Schedule D, and Fidelity Investments Charitable Gift Fund), during the period commencing on the effective date of this Agreement and ending 180 days after such date (the “ Seller Lock-Up Period ”), and (ii) in the case of any of the Persons set forth on Schedule D , during the period commencing on the effective date of this Agreement and ending on the second anniversary of such date (the “ Management Lock-Up Period ” and either the Seller Lock-

 

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Up Period or the Management Lock-Up Period, a “ Lock-Up Period ”), in each case, without the prior written consent of the Company, each such Person shall not (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder, with respect to any shares of Common Stock, Warrants or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock owned by it, if any or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Units, shares of Common Stock, Warrants or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock owned by it, if any, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise.

 

(b)                                  Notwithstanding the foregoing, Section 4.3(a)  shall not operate to restrict any (i) Transfer by any Person (A) in the case of an individual, by gift to one of the members of the individual’s immediate family or to a trust (provided, that the beneficiary of such trust is a member of one of the individual’s immediate family) or to an affiliate of such person, (B) in the case of an individual, by virtue of laws of descent and distribution upon death of the individual, (C) in the case of an individual, pursuant to a qualified domestic relations order, (D) to the Company for no value for cancellation, (E) to any Seller Affiliated Transferee in accordance with this Agreement or (F) of Preferred Stock, (ii) in the case of Seller and any Seller Affiliated Transferee, distribution of any shares of Common Stock, Warrants or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock owned by it, to limited partners, general partners, members, stockholders or other equityholders of such Person or to such Person’s affiliates or to any corporation, partnership, limited liability company, trust, business entity or investment fund, customer account or other entity controlled by or under common control or management with such Person; provided, that, in the case of clauses (i) and (ii), such Person shall, if not a party hereto, within five (5) days of such Transfer, execute and deliver to the Company and the other parties hereto a lock-up agreement agreeing to be bound by the provisions of this Section 4.3 as if a party hereto; provided, further, that if such Person is a Person set forth on Schedule D hereto, such Person shall be subject to the Management Lock-Up, (iii) Transfer by any member of management of the Company to Fidelity Investments Charitable Gift Fund (or an Affiliate thereof); provided, that all such Transfers in the aggregate shall not exceed 120,000 shares of Common Stock, (iv) a bona fide third party take-over bid made to all holders of Common Stock or any other acquisition transaction whereby all or substantially all of the Common Stock is acquired by a bona fide third party, or (v) making of bona fide pledges of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock by such Person pursuant to foreign exchange swap agreements and custody agreements entered into by such Person in the ordinary course of business.

 

(c)                                   Any Transfer made in contravention of this Section 4.3 shall be null and void.

 

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ARTICLE V

 

BOARD REPRESENTATION

 

Section 5.1                                     Composition of Initial Board .

 

(a)                                  The Company agrees with the Sponsor and the Company agrees with the GFI Representative that the Company shall take all reasonable actions within its control to cause the Board of Directors to be comprised of seven (7) directors, who shall be divided into three (3) classes of directors in accordance with the terms of the Certificate of Incorporation; provided that the Board of Directors shall be comprised of eight (8) directors until Terence Montgomery is determined by the Board of Directors to meet the requirements under SEC Guidance for service on the Company’s audit committee and is appointed to the Company’s audit committee, at which time the Company will cause Charles Garner to resign and the size of the Board of Directors shall be reduced to seven (7) directors.  As of the date hereof, the eight (8) directors shall be divided into three (3) classes as follows (such persons, the “ Initial Designees ”):

 

(i)                                      the Class I directors shall include (x) Mohsin Meghji, who shall be a Sponsor Designee hereunder, (y) Ian Schapiro, who shall be a GFI Designee hereunder, and (z) Charles Garner, in each case, whose term shall expire at the annual meeting of stockholders held in 2018, at which time Mohsin Meghji and Ian Schapiro shall be nominated to stand for re-election;

 

(ii)                                   the Class II directors shall include (x) John Paul Roehm (during such time as he serves as Chief Executive Officer of the Company), and (y) Terence Montgomery, whose term shall expire at the annual meeting of stockholders held in 2019; and

 

(iii)                                the Class III directors shall include (x) Derek Glanvill, (y) Philip Kassin, who shall be a Sponsor Designee hereunder, and (z) Peter Jonna, who shall be a GFI Designee hereunder, in each case, whose term shall expire at the annual meeting of stockholders held in 2020.

 

(b)                                  The Company agrees with the Sponsor and the Company agrees with the GFI Representative that the Company shall not, so long as either (i) the Sponsor and the GFI Representative, as applicable, are entitled to designate at least one Designee or (ii) the Sponsor or the GFI Representative, as applicable, have an Initial Designee who is serving such person’s Initial Term (as defined herein) without the Sponsor’s consent or the GFI Representative’s consent, as applicable, amend its Certificate of Incorporation or by-laws, pass any resolution or take any action with the effect of de-staggering the Company’s Board of Directors, providing for a voting standard in the election of directors other than plurality voting or providing for the establishment of any classes of directors inconsistent with Section 5.1(a) .

 

(c)                                   Subject to Section 7.1 , the Sponsor, each of the Sponsor Affiliated Transferees, the GFI Representative and each of the Selling Stockholders individually

 

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agrees with the Company, that such party will not take any action in their capacities as stockholders (including voting their Common Stock, granting proxies, providing written consents or proposing any stockholder proposal), to amend the Company’s Certificate of Incorporation or by-laws or take any action with the effect of de-staggering the Company’s Board of Directors, providing for a voting standard in the election of directors other than plurality voting or providing for the establishment of any classes of directors inconsistent with Section 5.1(a) .

 

(d)                                  For the avoidance of doubt, Section 5.1(a)  is applicable solely to the initial composition of the Board of Directors (the “ Initial Board ”) and the initial term with respect to which each director on the Initial Board serves (such director’s “Initial Term”), except that, subject to the Certificate of Incorporation, a director shall remain a member of the class of directors to which he or she was assigned in accordance with Section 5.1(a); provided that, with respect to Mohsin Meghji and Ian Schapiro, such directors’ Initial Term shall include the three-year term beginning with their re-election at the annual meeting of stockholders held in 2018.

 

Section 5.2                                     Nominees .

 

(a)                                  The Company agrees with the GFI Representative that the GFI Representative shall have the right to nominate the number of persons for election to the Board of Directors and the Company shall take all reasonable actions within its control to cause to be nominated for election to the Board of Directors, and to cause to continue in office, at any given time, unless waived by the GFI Representative, a number of individuals designated by the GFI Representative (each, a “ GFI Designee ”) equal to:

 

(i)                                      for so long as the Seller Higher Condition is satisfied, two directors (together with any additional designees pursuant to Section 5.2(g)) ; and

 

(ii)                                   for so long as the Seller Higher Condition is not satisfied but the Seller Minimum Condition is satisfied, one director.  No reduction in the beneficial ownership of the GFI Representative shall shorten the term of any GFI Designee during the applicable Initial Term and any such GFI Designee shall in any event be entitled to serve the remainder of such GFI Designee’s Initial Term.

 

(b)                                  The Company agrees with the Sponsor that the Sponsor shall have the right to nominate for election to the Board of Directors the number of individuals set forth below and the Company shall take all reasonable actions within its control to cause to be nominated for election to the Board of Directors, and to cause to continue in office, at any given time, unless waived by the Sponsor, a number of individuals designated by the Sponsor (each, a “ Sponsor Designee ”) equal to:

 

(i)                                      for so long as the Sponsor Higher Condition is satisfied, two directors (together with any additional designees pursuant to Section 5.2(g)) ; and

 

(ii)                                   for so long as either (A) the Sponsor Higher Condition is not satisfied but the Sponsor Minimum Condition is satisfied or (B) if (x) the Sponsor Minimum Condition is not satisfied and (y) all of the Earnout Shares (as defined in the

 

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Founder Shares Amendment Agreement) have not fully vested or expired without vesting, one director.  No reduction in the beneficial ownership of the Sponsor shall shorten the term of any Sponsor Designee during the applicable Initial Term and any such Sponsor Designee shall in any event be entitled to serve the remainder of such Sponsor Designee’s Initial Term.

 

(c)                                   The Company agrees with the Sponsor and the Company agrees with the GFI Representative that the Board of Directors shall include not less than three directors who shall qualify as independent directors pursuant to SEC Guidance and the rules of the applicable stock exchange (each, an “ Independent Designee ” and together with the GFI Designees and the Sponsor Designees, the “ Designees ”).

 

(d)                                  If at any time, the Board of Directors does not include three directors who qualify as independent directors pursuant to applicable SEC Guidance and the rules of the applicable stock exchange, the size of the Board of Directors shall be expanded so as to permit the appointment of the required Independent Designees and such vacancies shall be filled in accordance with Section 5.2(g) .

 

(e)                                   The Company agrees with the Sponsor and the Company agrees with the GFI Representative that, for so long as he serves as the Chief Executive Officer of the Company, John Paul Roehm shall be included as a member of the Board of Directors; provided that John Paul Roehm shall cease to be included as a member of the Board of Directors immediately upon his ceasing to serve as Chief Executive Officer of the Company (with it being understood that the Board of Directors may, in its sole discretion, elect to nominate John Paul Roehm to serve as his successor to the extent permissible under the By-Laws of the Company then in effect).

 

(f)                                    The Company agrees with the Sponsor that, (i) during his Initial Term, for so long as the Sponsor or any Sponsor Affiliated Transferee, directly or indirectly beneficially owns any Common Stock, and (ii) thereafter, for so long as the Sponsor has the right to designate any Sponsor Designees pursuant to this Section 5 , Mohsin Y. Meghji shall be the Chairman of the Board of Directors; provided that Mohsin Y. Meghji shall cease to be the Chairman of the Board of Directors immediately after the period described in the foregoing clause (i) or (ii), as applicable (with it being understood that the Board of Directors may, in its sole discretion, elect to nominate Mohsin Y. Meghji to serve as his successor to the extent permissible under the By-Laws of the Company then in effect).

 

(g)                                   The Company agrees with the Sponsor and the Company agrees with the GFI Representative that, in the event (i) the number of directors on the Board of Directors is increased (which increase shall be subject to Section 3.1(c)  and/or Section 3.2(c) ) or (ii) the Selling Stockholders’ or Sponsor’s (collectively with Mohsin Y. Meghji, M III LP (so long as such entity is controlled by the entity listed on Schedule A-1), the persons listed on Schedule A-2, and any Sponsor Affiliated Transferees), as applicable, aggregate direct or indirect beneficial ownership of Common Stock is increased after the date hereof, the number of directors the GFI Representative or Sponsor, as applicable, is entitled to designate pursuant to Section 5.2(a)  or Section 

 

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5.2(b) , as applicable shall be increased (but not decreased) proportionally so that the percentage of directors the GFI Representative or Sponsor, as applicable, is entitled to designate is proportional to the direct or indirect beneficial ownership of the GFI Representative and the Seller Affiliated Transferees or the Sponsor (collectively with Mohsin Y. Meghji, M III LP (so long as such entity is controlled by the entity listed on Schedule A-1), the persons listed on Schedule A-2, and any Sponsor Affiliated Transferees), as applicable  (for such purposes, rounding up to the next whole director); provided that, in no event, will either the GFI Representative or the Sponsor be entitled to nominate a majority of the Board of Directors unless the GFI Representative’s (including the Seller Affiliated Transferees) or the Sponsor’s (including Mohsin Y. Meghji, M III LP (so long as such entity is controlled by the entity listed on Schedule A-1), the persons listed on Schedule A-2, and any Sponsor Affiliated Transferees), as applicable, direct and indirect beneficial ownership constitutes a majority of the outstanding Voting Securities.  Any additional nominees to which such persons are entitled under this Section 5.2(g)  shall qualify as independent directors pursuant to SEC Guidance and the rules of the applicable stock exchange to the extent necessary for the Company to comply with such rules and regulations.

 

(h)                                  Without limiting the generality of the foregoing, the Company agrees with the Sponsor and the Company agrees with the GFI Representative and the Selling Stockholders to include the Designees in the slate of nominees recommended by the Board of Directors and to use its reasonable best efforts to cause the election of each such Designee to the Board of Directors, including nominating each such Designee to be elected as a director, recommending such Designee’s election and soliciting proxies or consents in favor thereof, in each case subject to applicable law.

 

(i)                                      Notwithstanding anything to the contrary in this ARTICLE V , (i) for so long as the Seller Minimum Condition is satisfied, each Sponsor Designee shall require the approval of the GFI Representative (which approval shall not be unreasonably withheld, conditioned or delayed), unless such nominee is an investment professional and a bona fide officer or employee of the Sponsor or its managing members, general partners or management companies,  and (ii) for so long as the Sponsor Minimum Condition is satisfied, each GFI Designee shall require the approval of the Sponsor (which approval shall not be unreasonably withheld, conditioned or delayed), unless such nominee is an investment professional and an officer or employee of Oaktree Capital Management, L.P.

 

(j)                                     In the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal of any director who was a GFI Designee or Sponsor Designee, the Company agrees to take at any time and from time to time all actions necessary to cause the vacancy created thereby to be filled as promptly as practicable by a new GFI Designee or Sponsor Designee, as applicable (with respect to the applicable Initial Term only, regardless of the GFI Representative’s or Sponsor’s beneficial ownership of the Company Common Stock at the time of such vacancy).

 

(k)                                  Unless waived by a majority of the Board of Directors excluding the GFI Designees (in the case of removal of a GFI Designee) or the Sponsor Designees (in the case of removal of a Sponsor Designee), as applicable, if the number of directors

 

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entitled to be designated as GFI Designees or Sponsor Designees, as applicable, pursuant to Section 5.2(a)  and/or Section 5.2(b) , as applicable, decreases, the Stockholders shall take reasonable actions to cause a sufficient number of GFI Designees or Sponsor Designees, as applicable, to resign from the Board of Directors as promptly as possible, such that the number of GFI Designees or Sponsor Designees, as applicable, after such resignation(s) equals the number of directors the GFI Representative or the Sponsor, as applicable, would have been entitled to designate pursuant to Section 5.2(a)  and/or Section 5.2(b) , as applicable.  Any vacancies created by such resignation may remain vacant until the next annual meeting of stockholders or filled by a majority vote of the remaining Board of Directors in accordance with the Certificate of Incorporation.  Notwithstanding the foregoing, such GFI Designee(s) or Sponsor Designee(s), as applicable, need not resign from the Board of Directors at or prior to the end of such director’s term if such director(s) is a member of the Initial Board and has not yet completed such director(s) Initial Term.

 

Section 5.3                                     Committees .

 

(a)                                  The Company agrees with the GFI Representative that it shall take all reasonable actions to cause to be appointed to any committee of the Board of Directors, unless waived by the GFI Representative, at least one GFI Designee (if any), to the extent such director is permitted to serve on such committees under SEC Guidance and the rules of any applicable stock exchange and for so long as the Seller Higher Condition is satisfied; and

 

(b)                                  The Company agrees with the Sponsor that it shall take all reasonable actions to cause to be appointed to any committee of the Board of Directors, unless waived by the Sponsor, at least one Sponsor Designee (if any), to the extent such director is permitted to serve on such committees under SEC Guidance and the rules of any applicable stock exchange, until such time as the Earnout Shares (as defined in the Founder Shares Amendment Agreement) have fully vested or expired without vesting, in each case pursuant to the Founder Shares Amendment Agreement, whichever is earlier.

 

(c)                                   It is understood by the parties hereto that the GFI Representative and the Sponsor shall not have any obligation to appoint a GFI Designee or Sponsor Designee, as applicable, to any committee of the Board of Directors and any failure to exercise such right in this section in a prior period shall not constitute any waiver of such right in a subsequent period.

 

(d)                                  The Company agrees with the GFI Representative and the Company agrees with the Sponsor that during the period from the date hereof until December 31, 2019, the Company shall establish and maintain an investment committee of the Board (the “ Investment Committee ”), the approval of which shall be required for the Company or its Subsidiaries to purchase, rent, license exchange or otherwise acquire any assets (including securities).  The Investment Committee shall consist of four Directors, including (so long as such designees are entitled to serve on the Board) two Sponsor Designees and one GFI Designee.

 

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Section 5.4                                     Subsidiaries .  The Company shall cause its Subsidiaries not to take any action that, if taken by the Company, would require the approval of the Board of Directors unless such action by such Subsidiary has been approved by the Board of Directors in accordance with the terms of this Agreement as would be applied to the Company.

 

ARTICLE VI

 

INDEMNIFICATION

 

Section 6.1                                     Right to Indemnification .  The Company shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, the GFI Representative, each Stockholder, their respective Affiliates (other than the Company and its Subsidiaries) and direct and indirect partners (including partners of partners and stockholders and members of partners), members, stockholders, managers, directors, officers, employees and agents and each Person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (the “ Covered Persons ”) from and against any and all losses, claims, damages, liabilities and expenses (including reasonable attorneys’ fees) sustained or suffered by any such Covered Person based upon, relating to, arising out of, or by reason of any third party or governmental claims relating to such Covered Person’s status as a stockholder or controlling person of the Company (including any and all losses, claims, damages or liabilities under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, which relate directly or indirectly to the registration, purchase, sale or ownership of any equity securities of the Company or to any fiduciary obligation owed with respect thereto), including in connection with any third party or governmental action or claim relating to any action taken or omitted to be taken or alleged to have been taken or omitted to have been taken by any Covered Person as a stockholder or controlling person, including claims alleging so-called control person liability or securities law liability (any such claim, a “ Claim ”).

 

Section 6.2                                     Prepayment of Expenses .  To the extent not prohibited by applicable law, the Company shall pay the expenses (including reasonable attorneys’ fees) incurred by a Covered Person in defending any Claim in advance of its final disposition; provided , however , that, to the extent required by applicable law, such payment of expenses in advance of the final disposition of such Claim shall be made only upon receipt of an undertaking by such Covered Person to repay all amounts advanced if it should be ultimately determined that such Covered Person is not entitled to be indemnified under this ARTICLE VI or otherwise.

 

Section 6.3                                     Claims .  If a claim for indemnification or advancement of expenses under this ARTICLE VI is not paid in full within 30 days after a written claim therefor by the Covered Person has been received by the Company, such Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim.  In any such action the Company shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

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Section 6.4                                     Nonexclusivity of Rights .  The rights conferred on any Covered Person by this ARTICLE VI shall not be exclusive of any other rights that such Covered Person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation or By-Laws or any agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5                                     Other Sources .  Subject to Section 6.6 , the Company’s obligation, if any, to indemnify or to advance expenses to any Covered Person shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from any other Person.

 

Section 6.6                                     Indemnitor of First Resort .  The Company hereby acknowledges that the Covered Persons may have certain rights to advancement and/or indemnification by the Selling Stockholders or their Affiliates or the Sponsor or their Affiliates, as applicable (in each case, other than the Company and collectively, the “ Other Indemnitors ”).  In all events, (i) the Company hereby agrees that it is the indemnitor of first resort (i.e., its obligation to a Covered Person to provide advancement and/or indemnification to such Covered Person are primary and any obligation of the Other Indemnitors (including any Affiliate thereof other than the Company) to provide advancement or indemnification hereunder or under any other indemnification agreement (whether pursuant to contract, by-laws or charter), or any obligation of any insurer of the Other Indemnitors to provide insurance coverage, for the same expenses, liabilities, judgments, penalties, fines and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such expenses, liabilities, judgments, penalties, fines and amounts paid in settlement) incurred by such Covered Person are secondary and (ii) if any Other Indemnitor (or any Affiliate thereof, other than the Company) pays or causes to be paid, for any reason, any amounts otherwise indemnifiable hereunder or under any other indemnification agreement (whether pursuant to contract, by-laws or charter) with such Covered Person, then (x) such Other Indemnitor (or such Affiliate, as the case may be) shall be fully subrogated to all rights of such Covered Person with respect to such payment and (y) the Company shall fully indemnify, reimburse and hold harmless such Other Indemnitor (or such other Affiliate, as the case may be) for all such payments actually made by such Other Indemnitor (or such other Affiliate, as the case may be).

 

ARTICLE VII

 

TERMINATION

 

Section 7.1                                     Term .  The terms of this Agreement shall terminate, and be of no further force and effect, upon notice to the Company and the other parties hereto:

 

(a)                                  other than with respect to Section 5.1(c) , with respect to all of the Sponsor and Sponsor Affiliated Transferees, (i) upon the consent of the Sponsor; or (ii) at such time as (A) the Sponsor ceases to have any rights pursuant to Section 3 hereof, (B) the Sponsor ceases to have the right to designate any Sponsor Designees pursuant to Section 5 hereof and (C) no Sponsor Designee remains on the Board of Directors;

 

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(b)                                  other than with respect to Section 5.1(c) , with respect to all of the Selling Stockholders and the GFI Representative, (i) upon the consent of the GFI Representative; or (ii) at such time as (A) the GFI Representative ceases to have any rights pursuant to Section 3 hereof, (B) the GFI Representative ceases to have the right to designate any GFI Designees pursuant to Section 5 hereof and (C) no GFI Designee remains on the Board of Directors;

 

(c)                                   with respect to each Selling Stockholder, (i) if such Selling Stockholder has Transferred all (but not less than all) of its Common Stock or has ceased to be a Seller Affiliated Transferee or (ii) upon termination pursuant to clause (b) above;

 

(d)                                  with respect to each Sponsor Affiliated Transferee,(i) if such Sponsor Affiliated Transferee has Transferred all (but not less than all) of its Common Stock or has ceased to be a Sponsor Affiliated Transferee or (ii) upon termination pursuant to clause (a) above;

 

(e)                                   with respect to Section 5.1(c) , (i) with respect to any party, with consent by each of the Company, the Sponsor and the GFI Representative, (ii) with respect to the GFI Representative, so long as the Sponsor is entitled to designate at least one Designee or any of their respective Initial Designees are serving their Initial Terms or (iii) with respect to the Sponsor, so long as the GFI Representative is entitled to designate at least one Designee or any of their respective Initial Designees are serving their Initial Terms; and

 

(f)                                    upon the consummation of a Sale Transaction.

 

Section 7.2                                     Survival .  If this Agreement is terminated pursuant to Section 7.1 , with respect to the applicable parties only, this Agreement shall become void and of no further force and effect with respect to such parties, except for:  (i) the provisions set forth in this Section 7.2 , ARTICLE VI , and ARTICLE IX and (ii) the rights of the Stockholders with respect to the breach of any provision hereof by the Company prior to such termination, which shall, in each case of clauses (i) and (ii), survive the termination of this Agreement.

 

ARTICLE VIII

 

REPRESENTATIONS AND WARRANTIES

 

Section 8.1                                     Representations and Warranties of Stockholders .  Each Stockholder individually represents and warrants to the Company that (a) such Stockholder is duly authorized to execute, deliver and perform this Agreement; (b) this Agreement has been duly executed by such Stockholder and is a valid and binding agreement of such Stockholder, enforceable against such Stockholder in accordance with its terms; and (c) the execution, delivery and performance by such Stockholder of this Agreement does not violate or conflict with or result in a breach of or constitute (or with notice or lapse of time or both would constitute) a default under any agreement to which

 

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such Stockholder is a party or, if such Stockholder is an entity, the organizational documents of such Stockholder.

 

Section 8.2                                     Representations and Warranties of the Company .  The Company represents and warrants to each of the Stockholders that (a) the Company is duly authorized to execute, deliver and perform this Agreement; (b) this Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms; and (c) the execution, delivery and performance by the Company of this Agreement does not violate or conflict with or result in a breach by the Company of or constitute (or with notice or lapse of time or both would constitute) a default by the Company under the Certificate of Incorporation or By-Laws, any existing applicable law, rule, regulation, judgment, order, or decree of any Governmental Entity exercising any statutory or regulatory authority of any of the foregoing, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or Affiliates or any of their respective properties or assets, or any agreement or instrument to which the Company or any of its Subsidiaries or Affiliates is a party or by which the Company or any of its Subsidiaries or Affiliates or any of their respective properties or assets may be bound.

 

ARTICLE IX

 

MISCELLANEOUS

 

Section 9.1                                     Entire Agreement .  This Agreement, together with documents contemplated hereby, constitute the entire agreement between the parties hereto pertaining to the subject matter hereof and fully supersede any and all prior or contemporaneous agreements or understandings between the parties hereto pertaining to the subject matter hereof.

 

Section 9.2                                     Further Assurances .  Each of the parties hereto does hereby covenant and agree on behalf of itself, its successors, and its assigns, without further consideration, to prepare, execute, acknowledge, file, record, publish, and deliver such other instruments, documents and statements, and to take such other actions as may be required by law or reasonably necessary to effectively carry out the intent and purposes of this Agreement.

 

Section 9.3                                     Notices .  Any notice, consent, payment, demand, or communication required or permitted to be given by any provision of this Agreement shall be in writing and shall be (a) delivered personally to the Person or to an officer of the Person to whom the same is directed, (b) sent by facsimile, overnight mail or registered or certified mail, return receipt requested, postage prepaid, or (c) sent by e-mail, with electronic or written confirmation of receipt, in each case addressed as follows:

 

(i)                                      if to the Company, the Sponsor or any Sponsor Affiliated Transferee, to:

 

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c/o M III Partners
3 Columbus Circle
New York, New York 10019
Attention: Mohsin Y. Meghji
Facsimile: (212) 531-4532
Email:  mmeghji@miiipartners.com

 

with a copy to:

 

Kirkland & Ellis LLP
300 North LaSalle
Chicago, Illinois 60654
Attention: Richard J. Campbell, P.C.

Carol Anne Huff
Facsimile: (312) 862-2200
Email:  richard.campbell@kirkland.com

chuff@kirkland.com

 

- and -

 

M III Partners, LP
3 Columbus Circle
New York, New York 10019
Attention: Charles Garner
Facsimile: (212) 531-4532

Email: cgarner@miiipartners.com

 

- and —

 

in the case of the Company, to the GFI Representative in the manner set forth in clause (ii) below.

 

(ii)                                if to the GFI Representative, to:

 

GFI Energy Group of Oaktree Capital Management, L.P.

11611 San Vicente Boulevard, Suite 710

Los Angeles, CA 90049

Attention:  Ian Schapiro

Peter Jonna

Facsimile:  (310) 442-0540

Email: ischapiro@oaktreecapital.com

pjonna@oaktreecapital.com

 

with a copy to:

 

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Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019-6064
Attention:  Kenneth M. Schneider

Ellen N. Ching

Facsimile: (212) 757-3990

Email: kschneider@paulweiss.com

eching@paulweiss.com

 

(iii)                                if to any Selling Stockholder, to:

 

the address and facsimile number of such Selling Stockholder set forth in the records of the Company.

 

with a copy to:

 

Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019-6064
Attention:  Kenneth M. Schneider

Ellen N. Ching

Facsimile: (212) 757-3990

Email: kschneider@paulweiss.com

eching@paulweiss.com

 

Any such notice shall be deemed to be delivered, given and received for all purposes as of:  (A) the date so delivered, if delivered personally, (B) upon receipt, if sent by facsimile or e-mail, or (C) on the date of receipt or refusal indicated on the return receipt, if sent by registered or certified mail, return receipt requested, postage and charges prepaid and properly addressed.

 

Section 9.4                                     Governing Law .  ALL ISSUES AND QUESTIONS CONCERNING THE APPLICATION, CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT AND THE EXHIBITS AND SCHEDULES TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, AND SPECIFICALLY THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.

 

Section 9.5                                     Consent to Jurisdiction .  ANY AND ALL SUITS, LEGAL ACTIONS OR PROCEEDINGS ARISING OUT OF THIS AGREEMENT (INCLUDING AGAINST ANY DIRECTOR OR OFFICER OF THE COMPANY) SHALL BE BROUGHT SOLELY IN THE COURT OF CHANCERY OF THE STATE

 

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OF DELAWARE AND EACH PARTY HERETO HEREBY SUBMITS TO AND ACCEPTS THE EXCLUSIVE JURISDICTION OF SUCH COURT FOR THE PURPOSE OF SUCH SUITS, LEGAL ACTIONS OR PROCEEDINGS.  IN ANY SUCH SUIT, LEGAL ACTION OR PROCEEDING, EACH PARTY HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS AND AGREES THAT SERVICE THEREOF MAY BE MADE BY CERTIFIED OR REGISTERED MAIL DIRECTED TO IT AT ITS ADDRESS SET FORTH IN THE BOOKS AND RECORDS OF THE COMPANY.  TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OR ANY SUCH SUIT, LEGAL ACTION OR PROCEEDING IN ANY SUCH COURT AND HEREBY FURTHER WAIVES ANY CLAIM THAT ANY SUIT, LEGAL ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

 

Section 9.6                                     Equitable Remedies .  The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with its specific terms or was otherwise breached.  It is accordingly agreed that the parties hereto shall be entitled to an injunction or injunctions and other equitable remedies to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in the Court of Chancery of the State of Delaware, this being in addition to any other remedy to which they are entitled at law or in equity.  Any requirements for the securing or posting of any bond with respect to such remedy are hereby waived by each of the parties hereto.  Each party further agrees that, in the event of any action for an injunction or other equitable remedy in respect of such breach or enforcement of specific performance, it will not assert the defense that a remedy at law would be adequate.

 

Section 9.7                                     Construction .  This Agreement shall be construed as if all parties hereto prepared this Agreement.

 

Section 9.8                                     Counterparts .  This Agreement may be executed in any number of counterparts, and each such counterpart shall for all purposes be deemed an original, and all such counterparts shall together constitute but one and the same agreement.

 

Section 9.9                                     Third Party Beneficiaries .  Except as set forth in ARTICLE VI nothing in this Agreement, express or implied, is intended or shall be construed to give any Person other than the parties hereto (or their respective legal representatives, successors, heirs and distributees) any legal or equitable right, remedy or claim under or in respect of any agreement or provision contained herein, it being the intention of the parties hereto that this Agreement is for the sole and exclusive benefit of such parties (or such legal representatives, successors, heirs and distributees) and for the benefit of no other Person.

 

Section 9.10                              Binding Effect .  Except as otherwise provided herein, all the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and

 

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shall be enforceable by the respective successors of the parties hereto. The rights of the GFI Representative and Sponsor hereunder are not assignable. Each Sponsor Affiliated Transferee and each Seller Affiliated Transferee shall be subject to all of the terms of this Agreement, and by taking and holding such shares such Person shall be entitled to receive the benefits of and be conclusively deemed to have agreed to be bound by and to comply with all of the terms and provisions of this Agreement.  Notwithstanding the foregoing, no successor or assignee of the Company shall have any rights granted under this Agreement until such Person shall acknowledge its rights and obligations hereunder by a signed written statement of such Person’s acceptance of such rights and obligations.

 

Section 9.11                              Severability .  In the event that any provision of this Agreement as applied to any party or to any circumstance, shall be adjudged by a court to be void, unenforceable or inoperative as a matter of law, then the same shall in no way affect any other provision in this Agreement, the application of such provision in any other circumstance or with respect to any other party, or the validity or enforceability of the Agreement as a whole.

 

Section 9.12                              Reporting . Each of the Selling Stockholders, the GFI Representative, the Sponsor and the Sponsor Affiliated Transferees acknowledge and agree that nothing in this Agreement shall be deemed to create a group between (i) the GFI Representative and Selling Stockholders, on the one hand, and (ii) the Sponsor and Sponsor Affiliated Transferees, on the other hand, and that the parties hereto shall not take a reporting position that is inconsistent with the foregoing without the prior consent of the Sponsor and the GFI Representative.

 

Section 9.13                              Adjustments Upon Change of Capitalization .  In the event of any change in the outstanding Common Stock, by reason of dividends, splits, reverse splits, spin-offs, split-ups, recapitalizations, combinations, exchanges of shares and the like, the term “Common Stock” shall refer to and include the securities received or resulting therefrom, but only to the extent such securities are received in exchange for or in respect of Common Stock.

 

Section 9.14                              Amendments; Waivers .

 

(a)                                  No provision of this Agreement may be amended or waived unless such amendment or waiver is in writing and signed, in the case of an amendment, by the Company, the Sponsor and the GFI Representative, or in the case of a waiver, by (i) the Company if such waiver is to be effective against the Company, (ii) the Sponsor if such waiver is to be effective against the Sponsor, or (iii) the GFI Representative if such waiver is to be effective against the GFI Representative or the Selling Stockholders; provided , that any amendment or waiver that affects the rights or obligations of any Stockholder hereunder in a manner disproportionately adverse to such Stockholder as compared to the other Stockholders shall require the written consent of such Stockholder.

 

(b)                                  No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right,

 

24



 

power or privilege.  The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.

 

Section 9.15                              Actions in Other Capacities .  Nothing in this Agreement shall limit, restrict or otherwise affect any actions taken by any Stockholder in its capacity as a stockholder, partner or member of the Company or any of its Subsidiaries or Affiliates.

 

25



 

IN WITNESS WHEREOF, the parties have caused this Investor Rights Agreement to be duly executed and delivered, all as of the date first set forth above.

 

 

COMPANY:

 

 

 

INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC. (f/k/a M III ACQUISITION CORP.)

 

 

 

By:

/s/ John P. Roehm

 

 

Name:

John P. Roehm

 

 

Title:

President

 

 

 

SPONSOR:

 

 

 

M III SPONSOR I LLC

 

 

 

By:

/s/ Mohsin Y. Meghji

 

 

Name:

Mohsin Y. Meghji

 

 

Title:

Managing Member

 



 

 

GFI REPRESENTATIVE:

 

 

 

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

 

 

 

SELLER:

 

 

 

INFRASTRUCTURE AND ENERGY ALTERNATIVES, LLC

 

 

 

By:

/s/ John P. Roehm

 

 

Name:

John P. Roehm

 

 

Title:

President

 



 

Exhibit A

 

FORM OF JOINDER AGREEMENT TO INVESTOR RIGHTS AGREEMENT
[date]

 

This JOINDER (the “ Joinder Agreement ”) is made as of [ DATE ], by and between the Company and undersigned, to the Investor Rights Agreement, dated as of March 26, 2018, (the “ Investor Rights Agreement ”) by and among Infrastructure and Energy Alternatives, Inc. (f/k/a M III Acquisition Corp.), a Delaware corporation (the “ Company ”), M III Sponsor I, LLC, a Delaware limited liability company (the “ Sponsor ”, any Sponsor Affiliated Transferees who become party thereto, Infrastructure and Energy Alternatives, LLC (the “ Seller ), any Seller Affiliated Transferees who become a party thereto, Oaktree Power Opportunities Fund III Delaware, L.P., a Delaware limited partnership, in its capacity as the representative of the Selling Stockholders (“ GFI Representative ”).  Capitalized terms used herein but not otherwise defined shall have the meanings set forth in the Investor Rights Agreement.

 

WHEREAS, on the date hereof, the undersigned has acquired [ · ] shares of Common Stock from [ · ]  and the Investor Rights Agreement requires, as a holder of such Common Stock, to become a party to the Investor Rights Agreement, and Holder agrees to do so in accordance with the terms hereof.

 

NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Joinder Agreement hereby agree as follows:

 

1.                                       Agreement to be Bound .  The undersigned hereby (i) acknowledges that it has received and reviewed a complete copy of the Investor Rights Agreement and (ii) agrees that upon execution of this Joinder Agreement, it shall become a party to the Investor Rights Agreement and shall be fully bound by, and subject to, all of the covenants, terms and conditions of the Investor Rights Agreement as though an original party thereto and shall be deemed a [Seller Affiliated Transferee] [Sponsor Affiliated Transferee] for all purposes thereof.

 

2.                                       Successors and Assigns.   Except as otherwise provided herein, this Joinder Agreement shall bind and inure to the benefit of and be enforceable by the Company and its successors and assigns.

 

3.                                       Notices .  For purposes of Section 9.3 of the Investor Rights Agreement, all notices, demands or other communications to the Holder shall be directed to the address or email set forth on the signature page hereto.

 

4.                                       Governing Law .  This Joinder Agreement, and any claim, controversy or dispute arising under or related to this Joinder Agreement, shall be governed by and construed in accordance with the laws of the State of Delaware without regard to

 



 

principles of conflict of laws that would result in the application of any law other than the laws of the State of Delaware.  THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS JOINDER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.

 

5.                                       Counterparts .  This Joinder Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.  Delivery of an executed counterpart of a signature page to this Joinder Agreement by facsimile, email or other electronic transmission ( i.e ., “ pdf ”) shall be effective as delivery of a manually executed counterpart of this Joinder Agreement.

 

6.                                       Amendments .  No amendment or waiver of any provision of this Joinder Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.

 

7.                                       Headings .  The headings in this Joinder Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

 

[Signature Page Follows]

 



 

IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement to the Investor Rights Agreement as of the date first written above.

 

 

[ · ]

 

 

 

By:

 

 

Name:

 

Title:

 

The foregoing Joinder Agreement to the Investor Rights Agreement is hereby confirmed and accepted as of the date first above written.

 

Infrastructure and Energy Alternatives, Inc.

 

(f/k/a M III Acquisition Corp.)

 

 

 

By:

 

 

Name:

 

Title:

 

 



 

Schedule A-1

 

Lark Investments Inc.

Schedule A-2

 

Charles Garner

Suleman Lunat

Chris Good

Enrique Acevedo

Main Street Global LLC/Jason Capone

Mohsin Meghji 2016 Gift Trust

M III Acquisition Employee Partnership I LLC

 



 

Schedule B

 

1.               Administrative Services Agreement, dated July 8, 2016, by and between the Company and M-III Partners, LLC.

 

2.               Registration Rights Agreement, dated as of July 7, 2016, by and among the Company, the Sponsors, Cantor Fitzgerald & Co., and the undersigned parties listed on the signature page thereto. This agreement shall be amended and restated in the manner set forth in the Agreement.

 

3.               Investment Management Trust Agreement, dated as of July 7, 2016, by and between the Company and Continental Stock Transfer & Trust Company. This agreement shall be terminated as of the date hereof.

 

4.               Amended and Restated Unit Subscription Agreement, dated July 7, 2016, by and between the Company and Cantor Fitzgerald & Co.

 

5.               Warrant Agreement, dated as of July 7, 2016, by and between the Company and Continental Stock Transfer & Trust Company.

 

6.               Letter Agreement (i.e., Insider Letter), dated July 7, 2016, by and among the Company, Cantor Fitzgerald & Co., the Sponsors, Mohsin Y. Meghji, Suleman E. Lunat, Brian Griffith, Andrew L. Farkas, Osbert Hood and Philip Marber.

 

7.               Indemnity Agreements, dated July 7, 2016, made by the Company in favor of each of Andrew L. Farkas, Osbert M. Hood, Philip Marber, Brian Griffith and Mohsin Y. Meghji.

 

8.               Underwriting Agreement, dated July 7, 2016, by and between the Company, Cantor Fitzgerald & Co. and other underwriters listed on Schedule A thereto.

 

9.               Letter Agreement, dated as of May 2, 2016, by and between the Company and M-III Partners, LLC pursuant to which M-III Partners, LLC agrees to provide the Company with a “first look” right on investment opportunities. By its terms, this Letter Agreement terminates as of the date hereof.

 



 

Schedule C

 

1.               Master Transaction Agreement dated October 20, 2017 between White Construction Inc., Clinton RE Holdings (Delaware), LLC, Clinton RE Holdings (Cayman), LLC, Infrastructure and Energy Alternatives, LLC and IEA Energy Services LLC.

 

2.               Lease Agreement between White Construction, Inc. and Clinton RE Holdings (Delaware), LLC, dated as of October 20, 2017.

 

3.               General Indemnity Agreement among Arch Insurance Company, Arch Reinsurance Company, Infrastructure and Energy Alternatives, LLC, IEA Energy Services, LLC, White Construction, Inc., and H.B. White Canada Corp. dated September 26, 2013, as amended by that certain Amendment to Agreement of Indemnity among Arch Insurance Company, Arch Reinsurance Company, Oaktree Power Opportunities Fund III, L.P., and Oaktree Power Opportunities Fund III (Parallel), L.P. dated February 22, 2016.

 

4.               General Indemnity Agreement among Arch Insurance Company, Arch Reinsurance Company, Infrastructure and Energy Alternatives, LLC, IEA Energy Services, LLC, IEA Renewable Energy, Inc., IEA Management Services, Inc., and IEA Equipment Management, Inc. dated September 26, 2013, as amended by that certain Amendment to Agreement of Indemnity among Arch Insurance Company, Arch Reinsurance Company, Oaktree Power Opportunities Fund III, L.P., and Oaktree Power Opportunities Fund III (Parallel), L.P. dated February 22, 2016.

 

5.               Construction Services Agreement dated November 1, 2015 between IEA Renewable Energy, Inc. and Shermco Industries and any orders or transaction entered into thereunder.

 

6.               Construction Services Agreement dated August 6, 2014 between IEA Renewable Energy, Inc. and World Wind Services, LLC. and any orders or transactions entered into thereunder.

 

7.               Parent Company Guaranty dated June 25, 2014 between Sun Edison Canadian Construction LP and Infrastructure and Energy Alternatives, LLC and IEA Energy Services, LLC (Bruining).

 

8.               Contractor Parent Guaranty dated May 13, 2013 between SunEdison Canadian Construction LP and Infrastructure and Energy Alternatives, LLC and Infrastructure and Energy Services, LLC (Alfred).

 

9.               Contractor Company Guarantee dated November 27, 2013 between Northland Power Solar Burks Falls West L.P. and White Construction, Inc.

 



 

10.        Contractor Parent Guaranty dated June 24, 2016 between Cimarron Bend Wind Project I, LLC and Infrastructure and Energy, Alternatives, LLC.

 

11.        Contractor Parent Guaranty dated June 24, 2016 between Cimarron Bend Wind Project II, LLC and Infrastructure and Energy Alternatives, LLC.

 

12.        Guarantee dated March 31, 2014 between Canadian Solar Solutions Inc. and White Construction, Inc. (CityLights).

 

13.        Company Guarantee dated April 11, 2014 between Northland Power Solar Abitibi L.P., Northland Power Solar Empire L.P., Northland Power Solar Martin’s Meadows L.P. and Northland Power Solare Long Lake L.P. and White Construction, Inc. (Cochrane).

 

14.        Contractors Parent Guaranty dated February 29, 2016 between Deerfield Wind Energy, LLC and Infrastructure and Energy Alternatives, LLC.

 

15.        Guarantee dated December 16, 2013 between Canadian Solar Solutions Inc. and White Construction, Inc. (Discovery Light).

 

16.        Contractor Parent Guaranty dated March 18, 2016 between Drift Sand Wind Project, LLC and Infrastructure and Energy Alternatives, LLC.

 

17.        Parent Company Guaranty dated March 19, 2015 between Fair Wind Power Partners, LLC and Infrastructure and Energy Alternatives, LLC.

 

18.        Acknowledgement and Consent Agreement (White Parent Indemnity) dated August 6, 2014 between Saturn Solar 2 LP, The Great West Life Assurance Company and Industrial Alliance Insurance and Financial Services, Inc. and Corpfinance International Limited and H.B. White Canada Corp. (David Brown).

 

19.        Guarantee dated March 4, 2014 between Canadian Solar Inc. and H.B. White Canada Corporation (Fotolight).

 

20.        Guarantee dated September 5, 2013 between Canadian Solar Solutions, Inc. and White Construction, Inc. (Goodlight).

 

21.        Subcontractor Parent Guaranty between Infrastructure and Energy Alternatives, LLC and Canadian Solar Solutions, Inc. dated June 20, 2014.

 

22.        Parent Company Guaranty dated May 14, 2014 between SunEdison Canadian Construction LP and IEA Energy Services, LLC and Infrastructure and Energy Alternatives, LLC (Lindsay).

 

23.        Guarantee dated June 28, 2013 between Canadian Solar Solutions Inc. and White Construction Inc. (Little Creek).

 



 

24.        Guarantee dated June 24, 2014 between Canadian Solar Inc. and H.B. White Canada Corporation (Lunar Light).

 

25.        Parent Company Guaranty dated June 30, 2014 between SunEdison Canadian Construction LP and IEA Energy Services, LLC and Infrastructure and Energy Alternatives, LLC (Marsh Hill).

 

26.        Company Guarantee dated January 22, 2013 between McLean’s Mountain Wind Limited Partnership and White Construction, Inc.

 

27.        Guarantee dated January 8, 2014 between Canadian Solar Inc. and H.B. White Canada Corporation (Oro 4th).

 

28.        Contractor Parent Guaranty dated April 11, 2013 between Osage Wind, LLC and IEA Energy Services, LLC.

 

29.        Contractor Parent Guaranty dated February 17, 2014 between Pockwock Wind Limited Partnership and White Construction, Inc.

 

30.        Guarantee dated September 30, 2014 between Canadian Solar Inc. and H.B. White Canada Corporation (Raylight).

 

31.        Contractor Parent Guaranty dated February 23, 2017 between EDF-RE US Development LLC and Infrastructure and Energy Alternatives, LLC (Red Pine).

 

32.        Contractor Parent Guaranty dated November 14, 2012 between Sandringham Solar Energy Partnership and Infrastructure and Energy Services, LLC 27.

 

33.        Parent Company Guaranty dated June 6, 2014 between Sun Edison Canadian Construction LP and Infrastructure and Energy Alternatives, LLC and IEA Energy Services, LLC (Solar Spirit).

 

34.        Guarantee dated December 13, 2013 between Canadian Solar Solutions Inc. and White Construction, Inc. (Sparkle Light).

 

35.        Contractor Parent Guaranty dated April 26, 2017 between Thunder Ranch Wind Project, LLC and Infrastructure and Energy Alternatives, LLC.

 

36.        Contractors Parent Guaranty dated February 17, 2014 between Truro Heights Wind Limited Partnership and White Construction, Inc.

 

37.        Contractors Parent Guaranty dated February 17, 2014 between Truro-Millbrook Wind Limited Partnership and White Construction, Inc.

 

38.        Parent Company Guaranty dated May 13, 2013 between Sun Edison Canadian Construction LP and Infrastructure and Energy Alternatives, LLC and IEA Energy Services, LLC (Unity).

 



 

39.        Parent Company Guaranty dated October 31, 2013 between Sun Edison Canadian Construction LP and Infrastructure and Energy Alternatives, LLC and IEA Energy Services, LLC (Welland).

 

40.        Guarantee dated October 24, 2013 between Canadian Solar, Inc. and H.B. White Canada Corporation (Westbrook).

 

41.        Contractors Parent Guaranty dated February 17, 2014 between Whynotts Wind Limited Partnership and White Construction, Inc.

 

42.        Guarantee dated September 17, 2012 between Woodville Solar Energy Partnership and Infrastructure and Energy Services, LLC (Woodville).

 



 

Schedule D

 

1.                                       H.B. White Investments, Inc. (Buddy White)

 

2.                                       Herman White II (Buddy White)

 

3.                                       Christopher L. Hanson Living Trust dated May 16, 2017

 

4.                                       Roehm Living Trust

 

5.                                       David E. Bostwick

 

6.                                       Brian K. Hummer Revocable Trust u/a/d December 15, 2017

 

7.                                       ADL Revocable Trust (Andy Layman)

 


Exhibit 10.4

 

FOUNDER SHARES AMENDMENT AGREEMENT

 

March 26, 2018

 

M III Acquisition Corp.
3 Columbus Circle, 15th Floor
New York, NY 10019

 

Infrastructure and Energy Alternatives, LLC
c/o GFI Energy Group of Oaktree Capital Management, L.P.
1611 San Vicente Boulevard, Suite 710
Los Angeles, CA 90049

 

Re:                              Agreement Relating to Founder Shares

 

Ladies and Gentlemen:

 

Reference is made to (i) that certain agreement and plan of merger (as amended, supplemented or otherwise modified from time to time, the “ Merger Agreement ”), dated as of November 3, 2017, by and among M III Acquisition Corp., a Delaware corporation (“ Buyer ”), Wind Merger Sub I, Inc., a Delaware corporation and a wholly owned subsidiary of Buyer, Wind Merger Sub II, LLC, a Delaware limited liability company and a wholly owned subsidiary of Buyer, IEA Energy Services LLC, a Delaware limited liability company (the “ Company ”), Infrastructure and Energy Alternatives, LLC, a Delaware limited liability company (the “ Seller ”), the seller representative party thereto, and for the limited purposes set forth therein, the Sponsor (as defined below), (ii) that certain letter agreement (the “ Insider Letter ”), dated July 7, 2016, between Buyer and Cantor Fitzgerald & Co. and each of M III Sponsor I LLC, a Delaware limited liability company (“ M III LLC ”), and M III Sponsor I LP, a Delaware limited partnership (“ M III LP ” and together with M III LLC, “ Sponsor ”), Mohsin Y. Meghji, Suleman E. Lunat, Brian Griffith, Andrew L. Farkas, Osbert Hood, and Philip Marber with respect to certain matters, including with respect to the persons listed on Exhibit A hereto, the transfer of shares of common stock of the Buyer (“ Common Stock ”) held of record by each of them (as further described on Exhibit A hereto, the “ Founder Shares ”), and (iii) that certain Waiver, Consent and Agreement to Forfeit Founder Shares, dated March 20, 2018, by and among the parties to the Merger Agreement (the “ Waiver Agreement ”). This letter agreement (this “ Agreement ”) represents the “Founder Shares Amendment” contemplated by the Merger Agreement. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Merger Agreement.

 

In order to induce the Buyer and the Seller to enter into the Merger Agreement and to proceed with the Mergers and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each holder of Founder Shares and the Seller, hereby agrees, for the benefit of the Buyer and the Seller, as follows:

 

1.                                       Each holder of Earnout Shares (as defined below) agrees that the Earnout Shares held by such holder shall be subject to vesting as follows:

 



 

(a)                                  50% of such holder’s Earnout Shares will irrevocably vest on the first day upon which the closing sale price of the Common Stock on the NASDAQ has equaled or exceeded $12.00 per share (as adjusted for stock splits, dividends, reorganizations, recapitalizations and the like) for any twenty (20) trading day period in a consecutive thirty (30) day trading period;

 

(b)                                  50% of such holder’s Earnout Shares will irrevocably vest on the first day upon which the closing sale price of the Common Stock on the NASDAQ has equaled or exceeded $14.00 per share (as adjusted for stock splits, dividends, reorganizations, recapitalizations and the like) for any twenty (20) trading day period in a consecutive thirty (30) day trading period; and

 

(c)                                   On or prior to the tenth anniversary of the date of this Agreement, all of such holder’s then-unvested Earnout Shares will immediately and irrevocably vest upon the occurrence of any of the following events that results in all of Buyer’s stockholders having the right to exchange their shares of Common Stock for consideration in cash, securities or other property which equals or exceeds $10.00 per share (as adjusted for stock splits, dividends, reorganizations, recapitalizations and the like):

 

(i)                                      a Change of Control (as defined below) shall occur; or

 

(ii)                                   Buyer shall engage in a “going private” transaction pursuant to Rule 13e-3 under the Exchange Act or otherwise cease to be subject to reporting obligations under Sections 13 or 15(d) of the Exchange Act.

 

2.                                       For purposes of this Agreement:

 

(a)                                  The term Earnout Shares shall mean (i) with respect to each holder of Founder Shares party hereto, the number of Founder Shares set forth on Exhibit A with respect to such holder indicated as Earnout Shares, which Exhibit A shall be amended to reflect any forfeiture to the Company of Founder Shares by such holder on the date hereof or thereafter pursuant to the terms of the Waiver Agreement,  and (ii) with respect to the Seller, (A) 212,500 shares out of the 425,000 shares of Common Stock issued to the Seller by the Buyer at Closing pursuant to the Waiver Agreement and (B) any additional shares of Common Stock issued to the Seller by the Buyer after the date hereof that constitute $12 Earnout Shares or $14 Earnout Shares pursuant to Section 4(e) of the Waiver Agreement that have not vested in accordance with the terms of this Agreement on or prior to the date of such issuance.

 

(b)                                  The term “ Change of Control ” means the occurrence of any of the following events after the date hereof:

 

(i)                                      there is consummated, in accordance with Buyer’s certificate of incorporation and applicable law, the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of Buyer’s assets (determined on a consolidated basis) to any Person

 

2



 

or “group” (as such term is used in Section 13(d)(3) of the Exchange Act, or any successor provisions thereto);

 

(ii)                                   any Person or any group of Persons acting together which would constitute a “group” for purposes of Section 13(d)(3) of the Exchange Act, or any successor provisions thereto, is or becomes the beneficial owner, directly or indirectly, of securities of Buyer representing more than fifty percent (50%) of the combined voting power of Buyer’s then outstanding Common Stock;

 

(iii)                                there is consummated a merger or consolidation of Buyer with any other corporation or other entity, and, immediately after the consummation of such merger or consolidation, either (x) the Board of Directors of Buyer immediately prior to the merger or consolidation does not constitute at least a majority of the board of directors of the Person surviving the merger or, if the surviving Person is a Subsidiary, the ultimate Buyer thereof, or (y) the Common Stock immediately prior to such merger or consolidation do not continue to represent or are not converted into more than fifty percent (50%) of the combined voting power of then outstanding voting securities of the Person resulting from such merger or consolidation or, if the surviving Person is a Subsidiary, the ultimate parent thereof; or

 

(iv)                               the stockholders of Buyer and the Board of Directors of Buyer approve a plan of liquidation or dissolution of Buyer;

 

provided , that no Change of Control shall be deemed to have occurred pursuant to the foregoing clauses (i) through (iv), if all of the Common Stock held by Buyer’s stockholders prior to the Change of Control remains outstanding and the Common Stock continues to be listed on a national securities exchange.

 

3.                                       Each holder of Earnout Shares hereby irrevocably and unconditionally agrees that, prior to the vesting thereof, such holder shall not Transfer (as defined below) all or any portion of such holder’s Earnout Shares, other than (i) in the case of each holder of Founder Shares, to a permitted transferee described in subclauses (a) through (d) of Section 7(c) of the Insider Letter and (ii) in the case of the Seller, to a Seller Affiliated Transferee (as defined in the Investor Rights Agreement, dated as of the date hereof, by and between the Seller and the Company and the other parties thereto), in each case of clauses (i) and (ii) who enters into a written agreement for the benefit of the parties to this Agreement pursuant to which such permitted transferee agrees to be bound by the provisions of this Agreement.

 

4.                                       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

 

3



 

other transfer (by operation of Law or otherwise), of any Earnout Shares or interest in any Earnout Shares.

 

5.                                       If the Earnout Shares have not vested on or prior to the ten-year anniversary of the date of the Merger Agreement, the Earnout Shares shall be forfeited to Buyer without consideration and with no further action required of any Person. Upon any such forfeiture, such Earnout Shares shall transfer to Buyer for cancellation and in exchange for no consideration.

 

6.                                       Prior to the vesting of any Earnout Shares hereunder, the holder of such Earnout Shares shall nevertheless retain the right to vote such Earnout Shares.

 

7.                                       Until all Earnout Shares have vested or been forfeited hereunder, an amount equal to any dividends or distributions that would have been payable to the holders of Earnout Shares if the Earnout Shares had vested prior to the record date for such dividends or distributions shall be withheld by the Buyer for the benefit of the holders of the Earnout Shares (the “ Withheld Amount ”).  If any securities of the Buyer or any other Person are included in the Withheld Amount, then any dividends or distributions in respect of or in exchange for any of such securities in the Withheld Amount, whether by way of stock splits or otherwise, shall be delivered to the Buyer and included in the “Withheld Amount”, and will be released to the Buyer or the holders of the Earnout Shares, as applicable, upon the release of the corresponding securities.  If and when the Earnout Shares vest in accordance with Section 1 , the Buyer shall release to the holders of the Earnout Shares, the aggregate amount of the Withheld Amount  attributable to the Earnout Shares that have vested and, if applicable, shall continue to withhold any remaining Withheld Amount that is attributable to the Earnout Shares that have not yet vested until such Earnout Shares vest, in which case such remaining Withheld Amount shall be released to the holders of Earnout Shares. If all or any portion of the Earnout Shares are forfeited to the Buyer in accordance with Section 5 , then the portion of the Withheld Amount attributable to the portion of the Earnout Shares that have been forfeited to the Buyer, as applicable, shall be forfeited to Buyer without consideration and with no further action required of any person.

 

8.                                       This Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof.  This Agreement may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by all parties hereto.

 

9.                                       No party hereto may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written consent of each of the other parties hereto. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Agreement shall be binding on each of the parties hereto and their respective successors and assigns.

 

10.                                This Agreement shall be construed and enforced in accordance with the internal laws of the State of Delaware without regard to the conflict of laws principles thereof. The parties hereto (a) all agree that any action, proceeding, claim or dispute arising out of, or relating in any way to, this Agreement shall be brought and enforced in the Court of Chancery of the

 

4



 

State of Delaware (or, if the Court of Chancery of the State of Delaware lacks jurisdiction, then in the applicable Delaware state court), or if under applicable Law exclusive jurisdiction of such action is vested in the federal courts, then the United States District Court for the District of Delaware, and irrevocably submits to such jurisdiction and venue, which jurisdiction and venue shall be exclusive, and (b) waive any objection to such exclusive jurisdiction and venue or that such courts represent an inconvenient forum.

 

11.                                The parties agree that irreparable damage would occur in the event that the parties hereto do not perform the provisions of this Agreement in accordance with its terms or otherwise breach such provisions.  Accordingly, the parties acknowledge and agree that the parties shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, this being in addition to any other remedy to which they are entitled at Law or in equity.  Each of the parties agrees that it will not oppose the granting of an injunction, specific performance or other equitable relief on the basis that the other parties have an adequate remedy at Law or an award of specific performance is not an appropriate remedy for any reason at Law or equity.  Any party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement shall not be required to provide any bond or other security in connection with any such order or injunction.

 

12.                                Any notice, consent or request to be given in connection with any of the terms or provisions of this Agreement shall be in writing and shall be sent by electronic mail (with recipient receipt acknowledgment), express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery or facsimile transmission to Buyer and Seller at the addresses specified in the Merger Agreement and to the holders of Founder Shares at the addresses set forth on Exhibit A.

 

13.                                This Agreement shall immediately terminate, without any further action by the parties hereto, at such time, if any, that the Merger Agreement is terminated in accordance with its terms.

 

[REMAINDER OF PAGE INTENTIONALLY BLANK]

 

5



 

Please indicate your agreement to the foregoing by signing in the space provided below.

 

 

M III SPONSOR I LLC

 

 

 

By: M III ACQUISITION PARTNERS I LLC, its managing member

 

 

 

By:

/s/ Mohsin Y. Meghji

 

Name:

Mohsin Y. Meghji

 

Title:

Managing Member

 

 

M III SPONSOR I LP

 

 

 

By: M III ACQUISITION PARTNERS I CORP., its general partner

 

 

 

By:

/s/ Mohsin Y. Meghji

 

Name:

Mohsin Y. Meghji

 

Title:

Managing Member

 

 

By:

/s/ Osbert Hood

 

Osbert Hood

 

 

By:

/s/ Philip Marber

 

Philip Marber

 

 

INFRASTRUCTURE AND ENERGY ALTERNATIVES, LLC

 

 

 

By:

/s/ John P. Roehm

 

Name:

John P. Roehm

 

Title:

President

 



 

M III ACQUISITION CORP.

 

 

 

By:

/s/ Mohsin Y. Meghji

 

Name:

Mohsin Y. Meghji

 

Title:

Chief Executive Officer

 

 

7



 

EXHIBIT A

 

Name and Address for Notices

 

Founder Shares*

 

Earnout Shares*

 

M III Sponsor I LLC

 

3,487,475

 

1,743,737

 

M III Sponsor I LP

 

222,525

 

111,262

 

Osbert Hood

 

20,000

 

10,000

 

Philip Marber

 

20,000

 

10,000

 

Seller

 

 

212,500

 

Total

 

3,750,000

 

2,087,499

 

 


* Such number of shares are calculated immediately prior to giving effect to the consummation of the Business Combination contemplated by (and as defined in) the Merger Agreement and are to be reduced by any forfeiture to the Company on the date hereof or thereafter pursuant to the Waiver Agreement.

 


Exhibi t 10.5

 

Infrastructure and Energy Alternatives, Inc. 2018 Equity Incentive Plan

 

1.        Purpose. The Infrastructure and Energy Alternatives, Inc. 2018 Equity Incentive Plan (the ‘‘ Plan ’’) is intended to help Infrastructure and Energy Alternatives Inc., a Delaware corporation (including any successor thereto, the ‘‘ Company ’’) and its Affiliates (i) attract and retain key personnel by providing them the opportunity to acquire an equity interest in the Company or other incentive compensation measured by reference to the value of Common Stock and (ii) align the interests of key personnel with those of the Company’s shareholders.

 

2.        Effective Date; Duration. The Plan shall be effective as of the date on which the Plan is approved by the shareholders of the Company (the ‘‘ Effective Date ’’). The expiration date of the Plan, on and after which date no Awards may be granted, shall be the tenth anniversary of the Effective Date; provided , however , that such expiration shall not affect Awards then outstanding, and the terms and conditions of the Plan shall continue to apply to such Awards.

 

3.        Definitions. The following definitions shall apply throughout the Plan.

 

(a)          ‘‘ Affiliate ’’ means (i) any person or entity that directly or indirectly controls, is controlled by or is under common control with the Company and/or (ii) to the extent provided by the Committee, any person or entity in which the Company has a significant interest. The term ‘‘control’’ (including, with correlative meaning, the terms ‘‘controlled by’’ and ‘‘under common control with’’), as applied to any person or entity, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person or entity, whether through the ownership of voting or other securities, by contract or otherwise.

 

(b)          ‘‘ Award ’’ means, individually or collectively, any Incentive Stock Option, Nonqualified Stock Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit, Deferred Stock Unit, Other Stock-Based Award and/or Performance Compensation Award granted under the Plan.

 

(c)           ‘‘ Award Agreement ’’ means the agreement (whether in written or electronic form) or other instrument or document evidencing any Award granted under the Plan.

 

(d)          ‘‘ Beneficial Ownership ’’ has the meaning set forth in Rule 13d-3 promulgated under Section 13 of the Exchange Act.

 

(e)           ‘‘ Board ’’ means the Board of Directors of the Company.

 

(f)            ‘‘ Cause ’’ in the case of a particular Award, unless the applicable Award agreement states otherwise, (i) shall have the meaning given such term in any employment, consulting, change-in-control, severance or any other agreement between the Participant and the Company or an Affiliate in effect at the time of such termination or (ii) if ‘‘cause’’ or term of similar import is not defined or, in the absence of, any such employment, consulting, change-in-control, severance or any other agreement, means the Participant’s (A) willful misconduct or gross neglect of the Participant’s duties; (B) having engaged in conduct harmful (whether financially, reputationally or otherwise) to the Company or an Affiliate; (C) failure or refusal to perform the Participant’s duties; (D) conviction of, or guilty or no contest plea to, a felony or any crime involving dishonesty or moral turpitude; (E) willful violation of the written policies of the Company or an Affiliate; (F) misappropriation or misuse of Company or Affiliate funds or property or other act of personal dishonesty in connection with the Participant’s employment; or (G) willful breach of fiduciary duty. The determination of whether Cause exists shall be made by the Committee in its sole discretion.

 

(g)           ‘‘ Change in Control ’’ shall mean, in the case of a particular Award, unless the applicable Award Agreement (or any employment, consulting, change-in-control, severance or other

 



 

agreement between the Participant and the Company or an Affiliate) states otherwise, the first to occur of any of the following events:

 

(i)              the acquisition by any Person or related ‘‘group’’ (as such term is used in Section 13(d) and Section 14(d) of the Exchange Act) of Persons, or persons acting jointly or in concert, of Beneficial Ownership (including control or direction) of 50% or more (on a fully diluted basis) of either (A) the then-outstanding shares of Common Stock, including Common Stock issuable upon the exercise of options or warrants, the conversion of convertible stock or debt, and the exercise of any similar right to acquire such Common Stock (the ‘‘ Outstanding Company Common Stock ’’); or (B) the combined voting power of the then-outstanding voting securities of the Company entitled to vote in the election of directors (the ‘‘ Outstanding Company Voting Securities ’’); but excluding any acquisition by the Company or any of its Affiliates, its Permitted Transferees or any of their respective Affiliates or by any employee benefit plan sponsored or maintained by the Company or any of its Affiliates;

 

(ii)           a change in the composition of the Board such that members of the Board during any consecutive 12-month period (the ‘‘ Incumbent Directors ’’) cease to constitute a majority of the Board. Any person becoming a director through election or nomination for election approved by a valid vote of at least two thirds of the Incumbent Directors shall be an Incumbent Director; provided , however , that no individual becoming a director as a result of an actual or threatened election contest, as such terms are used in Rule 14a-12  of Regulation 14A promulgated under the Exchange Act, or as a result of any other actual or threatened solicitation of proxies or consents by or on behalf of any person other than the Board, shall be an Incumbent Director;

 

(iii)        the approval by the shareholders of the Company of a plan of complete dissolution or liquidation of the Company; and

 

(iv)       the consummation of a reorganization, recapitalization, merger, amalgamation, consolidation, statutory share exchange or similar form of corporate transaction involving the Company (a ‘‘ Business Combination ’’), or sale, transfer or other disposition of all or substantially all of the business or assets of the Company to an entity that is not an Affiliate of the Company (a ‘‘ Sale ’’), unless immediately following such Business Combination or Sale:

 

(A)                                more than 50% of the total voting power of the entity resulting from such Business Combination or the entity that acquired all or substantially all of the business or assets of the Company in such Sale (in either case, the ‘‘ Surviving Company ’’), or the ultimate parent entity that has Beneficial Ownership of sufficient voting power to elect a majority of the board of directors (or analogous governing body) of the Surviving Company (the ‘‘ Parent Company ’’), is represented by the Outstanding Company Voting Securities that were outstanding immediately prior to such Business Combination or Sale (or, if applicable, is represented by shares into which the Outstanding Company Voting Securities were converted pursuant to such Business Combination or Sale), and such voting power among the holders thereof is in substantially the same proportion as the voting power of the Outstanding Company Voting Securities among the holders thereof immediately prior to the Business Combination or Sale, (B) no Person (other than any employee benefit plan sponsored or maintained by the Surviving Company or the Parent Company) is or becomes the beneficial owner, directly or indirectly, of 50% or more of the total voting power of the outstanding voting securities eligible to elect members of the board of directors (or the analogous governing body) of the Parent Company (or, if there is no Parent Company, the Surviving Company) and (C) at least a majority of the members of the board of directors (or the analogous governing body) of the Parent Company (or, if there is no Parent Company, the Surviving Company) following the consummation of the Business Combination or Sale were

 



 

Board members at the time of the Board’s approval of the execution of the initial agreement providing for such Business Combination or Sale.

 



 

(h)          ‘‘ Code ’’ means the U.S. Internal Revenue Code of 1986, as amended, and any successor thereto. References to any section of the Code shall be deemed to include any regulations or other interpretative guidance under such section, and any amendments or successors thereto.

 

(i)              ‘‘ Committee ’’ means the Compensation Committee of the Board or subcommittee thereof if required or to comply with Rule 16b-3 promulgated under the Exchange Act in respect of Awards or, if no such Compensation Committee or subcommittee thereof exists, or if the Board otherwise takes action hereunder on behalf of the Committee, the Board.

 

(j)             ‘‘ Common Stock ’’ means the common stock of the Company, par value $0.01 per share (and any stock or other securities into which such common stock may be converted or into which it may be exchanged).

 

(k)          ‘‘ Deferred Stock Unit ’’ means a right granted by the Company to a Participant to receive upon settlement, on a deferred basis, one share of Common Stock or the cash equivalent thereof on the terms contained herein.

 

(l)              ‘‘ Disability ’’ means cause for termination of the Participant’s employment or service due to a determination that the Participant is disabled in accordance with a long-term disability insurance program maintained by the Company or a determination by the U.S. Social Security Administration that the Participant is totally disabled.

 

(m)      ‘‘ $ ’’ shall refer to the United States dollars.

 

(n)          ‘‘ Eligible Director ’’ means a director who satisfies the conditions set forth in Section 4(a) of the Plan.

 

(o)          ‘‘ Eligible Person ’’ means any (i) individual employed by the Company or an Affiliate; provided , however , that no employee covered by a collective bargaining agreement shall be an Eligible Person; (ii) director or officer of the Company or an Affiliate; (iii) consultant or advisor to the Company or an Affiliate who may be offered securities registrable on Form S-8 under the Securities Act; or (iv) prospective employee, director, officer, consultant or advisor who has accepted an offer of employment or service from the Company or its Affiliates (and would satisfy the provisions of clause (i), (ii) or (iii) above once such Person begins employment with or providing services to the Company or an Affiliate).

 

(p)          ‘‘ Exchange Act ’’ means the U.S. Securities Exchange Act of 1934, as amended, and any successor thereto. References to any section of (or rule promulgated under) the Exchange Act shall be deemed to include any rules, regulations or other interpretative guidance under such section or rule, and any amendments or successors thereto.

 

(q)          ‘‘ Exercise Price ’’ has the meaning set forth in Section 7(b) of the Plan.

 

(r)             ‘‘ Fair Market Value ’’ means, (i) with respect to Common Stock on a given date, (x) if the Common Stock is listed on a national securities exchange, the closing sales price of the common shares of Common Stock reported on such exchange on such date, or if there is no such sale on that date, then on the last preceding date on which such a sale was reported; or (y) if the Common Stock is not listed on any national securities exchange, the amount determined by the Committee in good faith to be the fair market value of the Common Stock, or (ii) with respect to any other property on any given date, the amount determined by the Committee in good faith to be the fair market value of such other property as of such date.

 

(s)            ‘‘ Incentive Stock Option ’’ means an Option that is designated by the Committee as an incentive stock option as described in Section 422 of the Code and otherwise meets the requirements set forth in the Plan.

 

(t)             ‘‘ Immediate Family Members ’’ has the meaning set forth in Section 14(b)(ii) of the Plan.

 



 

(u)          ‘‘ Indemnifiable Person ’’ has the meaning set forth in Section 4(e) of the Plan.

 

(v)          ‘‘ ‘‘ Nasdaq ’’ means the Nasdaq Global Market.

 

(w)        ‘‘ Nonqualified Stock Option ’’ means an Option that is not designated by the Committee as an Incentive Stock Option.

 

(x)          ‘‘ Option ’’ means an Award granted under Section 7 of the Plan.

 

(y)          ‘‘ Option Period ’’ has the meaning set forth in Section 7(c) of the Plan.

 

(z)           ‘‘ Other Stock-Based Awards ’’ means an Award granted under Section 10 of the Plan.

 

(aa) ‘‘ Participant ’’ has the meaning set forth in Section 6 of the Plan.

 

(bb) ‘‘ Permitted Transferee ’’ has the meaning set forth in Section 15(b)(ii) of the Plan.

 

(hh) ‘‘ Person ’’ has the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) the Company or any of its subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its Affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of Common Stock of the Company.

 

(cc) ‘‘ Released Unit ’’ has the meaning set forth in Section 9(d)(ii) of the Plan.

 

(dd) ‘‘ Restricted Period ’’ has the meaning set forth in Section 9(a) of the Plan.

 

(ee) ‘‘ Restricted Stock ’’ means an Award of Common Stock, subject to certain specified restrictions, granted under Section 9 of the Plan.

 

(ff) ‘‘ Restricted Stock Unit ’’ means an Award of an unfunded and unsecured promise to deliver shares of Common Stock, cash, other securities or other property, subject to certain specified restrictions, granted under Section 9 of the Plan.

 

(gg) ‘‘ SAR Period ’’ has the meaning set forth in Section 8(c) of the Plan.

 

(hh) ‘‘ Securities Act ’’ means the U.S. Securities Act of 1933, as amended, and any successor thereto. Reference in the Plan to any section of (or rule promulgated under) the Securities Act shall be deemed to include any rules, regulations or other interpretative guidance under such section or rule, and any amendments or successor provisions to such section, rules, regulations or other interpretive guidance.

 

(ii)     ‘‘ Strike Price ’’ has the meaning set forth in Section 8(b) of the Plan.

 

(jj) ‘‘ Stock Appreciation Right ’’ or ‘‘ SAR ’’ means an Award granted under Section 8 of the Plan.

 

(kk) ‘‘ Substitute Awards ’’ has the meaning set forth in Section 5(e) of the Plan.

 

4.               Administration.

 

(a)          The Committee shall administer the Plan, and shall have the sole and plenary authority to: (i) designate Participants; (ii) determine the type, size, and terms and conditions of Awards to be granted and to grant such Awards; (iii) determine the method by which an Award may be settled, exercised, canceled, forfeited, suspended, or repurchased by the Company; (iv) determine the circumstances under which the delivery of cash, property or other amounts payable with respect to an Award may be deferred, either automatically or at the Participant’s or Committee’s election; (v) interpret and administer, reconcile any inconsistency in, correct any defect in and

 



 

supply any omission in the Plan and any Award granted under, the Plan; (vi) establish, amend, suspend, or waive any rules and regulations and appoint such agents as the Committee shall deem appropriate for the proper administration of the Plan; (vii) accelerate the vesting, delivery or exercisability of, or payment for or lapse of restrictions on, or waive any condition in respect of, Awards; and (viii) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan or to comply with any applicable law. To the extent required to comply with the provisions of Rule 16b-3 promulgated under the Exchange Act (if applicable and if the Board is not acting as the Committee under the Plan), or any exception or exemption under applicable securities laws or the applicable the rules of the NASDAQ or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, as applicable, it is intended that each member of the Committee shall, at the time such member takes any action with respect to an Award under the Plan, be (i)  a ‘‘non-employee director’’ within the meaning of Rule 16b-3 promulgated under the Exchange Act, (ii) an ‘‘independent director’’ under the rules of the NASDAQ or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, or a person meeting any similar requirement under any successor rule or regulation (‘‘ Eligible Director ’’). However, the fact that a Committee member shall fail to qualify as an Eligible Director shall not invalidate any Award granted or action taken by the Committee that is otherwise validly granted or taken under the Plan.

 

(b)                                  The Committee may allocate all or any portion of its responsibilities and powers to any person(s) selected by it, except for grants of Awards to persons who are non-employee members of the Board or are otherwise subject to Section 16 of the Exchange Act. Any such allocation or delegation may be revoked by the Committee at any time.

 

(c)                                   As further set forth in Section 14(f) of the Plan, the Committee shall have the authority to amend the Plan and Awards to the extent necessary to permit participation in the Plan by Eligible Persons who are located outside of the United States on terms and conditions comparable to those afforded to Eligible Persons located within the United States; provided , however , that no such action shall be taken without shareholder approval if such approval is required by applicable securities laws or regulation.

 

(d)                                  Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions regarding the Plan or any Award or any documents evidencing Awards granted pursuant to the Plan shall be within the sole discretion of the Committee, may be made at any time and shall be final, conclusive and binding upon all persons or entities, including, without limitation, the Company, any Affiliate, any Participant, any holder or beneficiary of any Award, and any shareholder of the Company.

 

(e)                                   No member of the Board or the Committee, nor any employee or agent of the Company (each such person, an ‘‘ Indemnifiable Person ’’), shall be liable for any action taken or omitted to be taken or any determination made with respect to the Plan or any Award hereunder (unless constituting fraud or a willful criminal act or willful criminal omission). Each Indemnifiable Person shall be indemnified and held harmless by the Company against and from any loss, cost, liability, or expense (including attorneys’ fees) that may be imposed upon or incurred by such Indemnifiable Person in connection with or resulting from any action, suit or proceeding to which such Indemnifiable Person may be involved as a party, witness or otherwise by reason of any action taken or omitted to be taken or determination made under the Plan or any Award Agreement and against and from any and all amounts paid by such Indemnifiable Person with the Company’s approval (not to be unreasonably withheld), in settlement thereof, or paid by such Indemnifiable Person in satisfaction of any judgment in any such action, suit or proceeding against such Indemnifiable Person, and the Company shall advance to such Indemnifiable Person any such expenses promptly upon written request (which request shall include an undertaking by the

 



 

Indemnifiable Person to repay the amount of such advance if it shall ultimately be determined as provided below that the Indemnifiable Person is not entitled to be indemnified); provided , that the Company shall have the right, at its own expense, to assume and defend any such action, suit or proceeding and once the Company gives notice of its intent to assume the defense, the Company shall have sole control over such defense with counsel of recognized standing of the Company’s choice. The foregoing right of indemnification shall not be available to an Indemnifiable Person to the extent that a final judgment or other final adjudication (in either case not subject to further appeal) binding upon such Indemnifiable Person determines that the acts or omissions or determinations of such Indemnifiable Person giving rise to the indemnification claim resulted from such Indemnifiable Person’s fraud or willful criminal act or willful criminal omission or that such right of indemnification is otherwise prohibited by law or by the Company’s certificate of incorporation or by-laws. The foregoing right of indemnification shall not be exclusive of or otherwise supersede any other rights of indemnification to which such Indemnifiable Persons may be entitled under the Company’s certificate of incorporation or by-laws, as a matter of law, individual indemnification agreement or contract or otherwise, or any other power that the Company may have to indemnify such Indemnifiable Persons or hold them harmless.

 

(f)                                    The Board may from time to time grant Awards and administer the Plan with respect to such Awards. In any such case, the Board shall have all the authority granted to the Committee under the Plan.

 

5.               Grant of Awards; Shares Subject to the Plan; Limitations.

 

(a)                                  The Committee may grant Awards to one or more Eligible Persons.

 

(b)                                  Subject to Section 11 of the Plan and subsection (e) below, the following limitations apply to the grant of Awards: (i) no more than 2,157,765 shares of Common Stock may be reserved for issuance and delivered in the aggregate pursuant to Awards granted under the Plan; and (ii) no more than 2,157,765 shares of Common Stock (1) may be delivered pursuant to the exercise of Incentive Stock Options granted under the Plan.

 

(c)                                   Shares of Common Stock shall be deemed to have been used in settlement of Awards whether or not they are actually delivered or the Fair Market Value on the date of issuance equivalent of such shares is paid in cash; provided , however , that if shares of Common Stock issued upon exercise, vesting or settlement of an Award, or shares of Common Stock owned by the Participant are surrendered or tendered to the Company in payment of the Exercise Price or any taxes required to be withheld in respect of an Award, in each case, in accordance with the terms and conditions of the Plan and any applicable Award Agreement, such surrendered or tendered shares shall again become available for other Awards; provided , further , that in no event shall such shares increase the number of shares of Common Stock that may be delivered pursuant to Incentive Stock Options. If and to the extent that all or any portion of an Award expires,  terminates or is canceled or forfeited for any reason without the Participant’s having received any benefit therefrom, the shares covered by such Award or portion thereof shall again become available for other Awards. For purposes of the foregoing sentence, the Participant shall not be deemed to have received any ‘‘benefit’’ (i) in the case of forfeited Restricted Stock by reason of having enjoyed voting rights and dividend rights prior to the date of forfeiture or (ii) in the case of an Award canceled by reason of a new Award being granted in substitution therefor.

 



 

(d)          Shares of Common Stock delivered by the Company in settlement of Awards may be authorized and unissued shares, shares held in the treasury of the Company, shares purchased on the open market or by private purchase, or a combination of the foregoing.

 

(e)           The Committee may grant Awards in assumption of, or in substitution for, outstanding awards previously granted by the Company or any Affiliate or an entity directly or indirectly acquired by the Company or with which the Company combines (‘‘ Substitute Awards ’’), and such Substitute Awards shall not be counted against the aggregate number of shares of Common Stock available for Awards; provided , that Substitute Awards issued or intended as ‘‘incentive stock options’’ within the meaning of Section 422 of the Code shall be counted against the aggregate number of Incentive Stock Options available under the Plan.

 

6.          Eligibility. Participation shall be limited to Eligible Persons who have been selected by the Committee and who have entered into an Award Agreement with respect to an Award granted to them under the Plan (each such Eligible Person, a ‘‘ Participant ’’).

 

7.               Options.

 

(a)                  Generally. Each Option shall be subject to the conditions set forth in the Plan and in the applicable Award Agreement. All Options granted under the Plan shall be Nonqualified Stock Options unless the Award Agreement expressly states otherwise. Incentive Stock Options shall be granted only subject to and in compliance with Section 422 of the Code, and only to Eligible Persons who are employees of the Company and its Affiliates and who are eligible to receive an Incentive Stock Option under the Code. If for any reason an Option intended to be an Incentive Stock Option (or any portion thereof) shall not qualify as an Incentive Stock Option, then, to the extent of such nonqualification, such Option or portion thereof shall be regarded as a Nonqualified Stock Option properly granted under the Plan.

 

(b)                  Exercise Price. The exercise price (‘‘ Exercise Price ’’) per share of Common Stock for each Option shall not be less than 100% of the Fair Market Value of such share, determined as of the date of grant. Any modification to the Exercise Price of an outstanding Option shall be subject to the prohibition on repricing set forth in Section 13(b).

 

(c)       Vesting, Exercise and Expiration. The Committee shall determine the manner and timing of vesting, exercise and expiration of Options. The period between the date of grant and the scheduled expiration date of the Option (‘‘ Option Period ’’) shall not exceed ten years, unless the Option Period (other than in the case of an Incentive Stock Option) would expire at a time when trading in the shares of Common Stock is prohibited by the Company’s insider trading policy or a Company-imposed ‘‘blackout period,’’ in which case the Option Period shall be automatically extended until the 30th day following the expiration of such prohibition (so long as such extension shall not violate Section 409A of the Code). The Committee may accelerate the vesting and/or exercisability of any Option, which acceleration shall not affect any other terms and conditions of such Option.

 

(d)                  Method of Exercise and Form of Payment. No shares of Common Stock shall be delivered pursuant to any exercise of an Option until the Participant has paid the Exercise Price to the Company in full, and an amount equal to any U.S. federal, state and local income and employment taxes and non-U.S. income and employment taxes, social contributions and any other tax-related items required to be withheld. Options may be exercised by delivery of written or electronic notice of exercise to the Company or its designee (including a third-party administrator) in accordance with the terms of the Option and the Award Agreement accompanied by payment of the Exercise Price and such applicable taxes. The Exercise Price and delivery of all applicable required withholding taxes shall be payable (i) in cash or by check, cash equivalent and/or shares of Common Stock valued at the Fair Market Value at the time the Option is exercised (including, pursuant to procedures approved by the Committee, by means of attestation of ownership of a sufficient number of shares of Common Stock in

 



 

lieu of actual delivery of such shares to the Company) (or any combination of the foregoing); provided , that such shares of Common Stock are not subject to any pledge or other security interest (or any combination of the foregoing); or (ii) by such other method as elected by the Participant and that the Committee may permit, in its sole discretion, including without limitation: (A) in the form of other property having a Fair Market Value on the date of exercise equal to the Exercise Price and all applicable required withholding taxes; (B) if there is a public market for the shares of Common Stock at such time, by means of a broker-assisted ‘‘cashless exercise’’ pursuant to which the Company or its designee (including third-party administrators) is delivered a copy of irrevocable instructions to a stockbroker to sell the shares of Common Stock otherwise deliverable upon the exercise of the Option and to deliver promptly to the Company an amount equal to the Exercise Price and all applicable required withholding taxes against delivery of the shares of Common Stock to settle the applicable trade; or (C) by means of a ‘‘net exercise’’ procedure effected by withholding the number of shares of Common Stock otherwise deliverable in respect of an Option that are needed to pay for the Exercise Price and all applicable required withholding taxes. Notwithstanding the foregoing, unless otherwise determined by the Committee or as set forth in an Award Agreement, if on the last day of the Option Period, the Fair Market Value of the Common Stock exceeds the Exercise Price, the Participant has not exercised the Option, and the Option has not previously expired, such Option shall be deemed exercised by the Participant on such last day by means of a ‘‘net exercise’’ procedure described above. In all events of cashless or net exercise, any fractional shares of Common Stock shall be settled in cash.

 

(e)                   Notification upon Disqualifying Disposition of an Incentive Stock Option. Each Participant awarded an Incentive Stock Option under the Plan shall notify the Company in writing immediately after the date on which the Participant makes a disqualifying disposition of any Common Stock acquired pursuant to the exercise of such Incentive Stock Option. A disqualifying disposition is any disposition (including, without limitation, any sale) of such Common Stock before the later of (i) two years after the date of grant of the Incentive Stock Option and (ii) one year after the date of exercise of the Incentive Stock Option. The Company may, if determined by the Committee and in accordance with procedures established by the Committee, retain possession, as agent for the applicable Participant, of any Common Stock acquired pursuant to the exercise of an Incentive Stock Option until the end of the period described in the preceding sentence, subject to complying with any instruction from such Participant as to the sale of such Common Stock.

 

(f)                    Compliance with Laws. Notwithstanding the foregoing, in no event shall the Participant be permitted to exercise an Option in a manner that the Committee determines would violate the Sarbanes-Oxley Act of 2002, or any other applicable law or the applicable rules and regulations of the Securities and Exchange Commission or the applicable rules and regulations of any securities exchange or inter-dealer quotation service on which the Common Stock of the Company is listed or quoted.

 

(g)                   Incentive Stock Option Grants to 10% Shareholders. Notwithstanding anything to the contrary in this Section 7, if an Incentive Stock Option is granted to a Participant who owns stock representing more than ten percent of the voting power of all classes of stock of the Company or of a subsidiary or a parent of the Company, the Option Period shall not exceed five years from the date of grant of such Option and the Option Price shall be at least 110% of the Fair Market Value (on the date of grant) of the shares subject to the Option.

 

(h)                  $100,000 Per Year Limitation for Incentive Stock Options.  To the extent that the aggregate Fair Market Value (determined as of the date of grant) of shares of Common Stock for which Incentive Stock Options are exercisable for the first time by any Participant during any calendar year (under all plans of the Company) exceeds $100,000, such excess Incentive Stock Options shall be treated as Nonqualified Stock Options.

 



 

8.              Stock Appreciation Rights (SARs).

 

(a)     Generally. Each SAR shall be subject to the conditions set forth in the Plan and the Award Agreement. Any Option granted under the Plan may include a tandem SAR. The Committee also may award SARs independent of any Option.

 

(b)     Strike Price. The strike price (‘‘ Strike Price ’’) per share of Common Stock for each SAR shall not be less than 100% of the Fair Market Value of such share, determined as of the date of grant; provided , however , that a SAR granted in tandem with (or in substitution for) an Option previously granted shall have a Strike Price equal to the Exercise Price of the corresponding Option. Any modification to the Strike Price of an outstanding SAR shall be subject to the prohibition on repricing set forth in Section  13(b).

 

(c)     Vesting and Expiration. A SAR granted in tandem with an Option shall become exercisable and shall expire according to the same vesting schedule and expiration provisions as the corresponding Option. A SAR granted independently of an Option shall vest and become exercisable and shall expire in such manner and on such date or dates determined by the Committee and shall expire after such period, not to exceed ten years, as may be determined by the Committee (the ‘‘ SAR Period ’’); provided , however , that notwithstanding any vesting or exercisability dates set by the Committee, the Committee may accelerate the vesting and/or exercisability of any SAR, which acceleration shall not affect the terms and conditions of such SAR other than with respect to vesting and/or exercisability. If the SAR Period would expire at a time when trading in the shares of Common Stock is prohibited by the Company’s insider trading policy or a Company-imposed ‘‘blackout period,’’ the SAR Period shall be automatically extended until the 30th day following the expiration of such prohibition (so long as such extension shall not violate Section 409A of the  Code).

 

(d)     Method of Exercise. SARs may be exercised by delivery of written or electronic notice of exercise to the Company or its designee (including a third-party administrator) in accordance with the terms of the Award, specifying the number of SARs to be exercised and the date on which such SARs were awarded. Notwithstanding the foregoing, if on the last day of the Option Period (or in the case of a SAR independent of an Option, the SAR Period), the Fair Market Value exceeds the Strike Price,      the Participant has not exercised the SAR or the corresponding Option (if applicable), and neither the SAR nor the corresponding Option (if applicable) has previously expired, such SAR shall be deemed to have been exercised by the Participant on such last day and the Company shall make the appropriate payment therefor.

 

(e)     Payment. Upon the exercise of a SAR, the Company shall pay to the holder thereof an amount equal to the number of shares subject to the SAR that are being exercised multiplied by the excess, if any, of the Fair Market Value of one share of Common Stock on the exercise date over the Strike Price, less an amount equal to any U.S. federal, state and local income and employment taxes and non-U.S. income and employment taxes, social contributions and any other tax-related items required to be withheld. The Company shall pay such amount in cash, in shares of Common Stock valued at Fair Market Value as determined on the date of exercise, or any combination thereof, as determined by the Committee. Any fractional shares of Common Stock shall be settled in cash.

 

9.              Restricted Stock; Restricted Stock Units; and Deferred Stock Units.

 

(a)     Generally.  Each Restricted Stock, Restricted Stock Unit, and Deferred Stock Unit Award   shall be subject to the conditions set forth in the Plan and the applicable Award Agreement. Subject to such rules, approvals, and conditions as the Committee may impose from time to time, an Eligible Person who is a non-employee director may elect to receive all or a portion of such Eligible Person’s cash director fees and other cash director compensation payable for director services provided to the Company by such Participant in any fiscal year, in whole or in part, in the form of Deferred Stock Units. The Committee shall establish restrictions applicable to Restricted Stock and Restricted Stock Units, including the period over which the restrictions shall apply (the ‘‘ Restricted Period ’’) (for the

 



 

avoidance of doubt, the restrictions may include service and/or performance vesting conditions), and the time or times at which Restricted Stock or Restricted Stock Units shall become vested. Deferred Stock Units shall be fully vested upon grant. The Committee may accelerate the vesting and/or the lapse of any or all of the restrictions on Restricted Stock and Restricted Stock Units, which  acceleration shall not affect any other terms and conditions of such Awards. No share of Common Stock shall be issued at the time an Award of Restricted Stock Units or Deferred Stock Units is made, and the Company will not be required to set aside a fund for the payment of any such Award.

 

(b)     Stock Certificates; Escrow or Similar Arrangement. Upon the grant of Restricted Stock, the Committee shall cause share(s) of Common Stock to be registered in the name of the Participant and held in book-entry form subject to the Company’s directions. The Committee may also cause a stock certificate registered in the name of the Participant to be issued. In such event, the Committee may provide that such certificates shall be held by the Company or in escrow rather than delivered to the Participant pending vesting and release of restrictions, in which case the Committee may require the Participant to execute and deliver to the Company or its designee (including third-party administrators) (i) an escrow agreement satisfactory to the Committee, if applicable, and (ii) the appropriate stock power (endorsed in blank) with respect to the Restricted Stock. If the Participant shall fail to execute and deliver the escrow agreement and blank stock power within the amount of time specified by the Committee, the Award shall be null and void. Subject to the restrictions set forth in this Section 9 and the Award Agreement, the Participant shall have the rights and privileges of a shareholder as to such Restricted Stock, including without limitation the right to vote such Restricted Stock.

 

(c)     Restrictions; Forfeiture.   Restricted Stock and Restricted Stock Units awarded to the   Participant shall be subject to forfeiture until the expiration of the Restricted Period and the attainment of any other vesting criteria established by the Committee, and shall be subject to the restrictions on transferability set forth in the Award Agreement. In the event of any forfeiture, all rights of the Participant to such Restricted Stock (or as a shareholder with respect thereto), and/or to such Restricted Stock Units, as applicable, including to any dividends and/or dividend equivalents that may have been accumulated and withheld during the Restricted Period in respect thereof, shall terminate without further action or obligation on the part of the Company. The Committee shall have the authority to remove any or all of the restrictions on the Restricted Stock and Restricted Stock Units whenever it may determine that, by reason of changes in applicable laws or other changes in circumstances arising after the date of grant of the Restricted Stock Award or Restricted Stock Unit Award, such action is appropriate.

 

(d)                 Delivery of Restricted Stock and Settlement of Restricted Stock Units.

 

(i)   Upon the expiration of the Restricted Period with respect to any shares of Restricted Stock and the attainment of any other vesting criteria, the restrictions set forth in the applicable Award Agreement shall be of no further force or effect, except as set forth in the Award Agreement. If an escrow arrangement is used, upon such expiration the Company shall deliver to the Participant or such Participant’s beneficiary (via book entry notation or, if applicable, in stock certificate form) the shares of Restricted Stock with respect to which the Restricted Period has expired (rounded down to the nearest full share). Dividends, if any, that may have been withheld by the Committee and attributable to the Restricted Stock shall be distributed to the Participant in cash or in shares of Common Stock having a Fair Market Value (on the date of distribution) (or a combination of cash and shares of Common Stock) equal to the amount of such dividends, upon the release of restrictions on such share.

 

(ii)    Unless otherwise provided by the Committee in an Award Agreement, upon the expiration of the Restricted Period and the attainment of any other vesting criteria established by the Committee, with respect to any outstanding Restricted Stock Units, the Company shall deliver to the Participant, or such Participant’s beneficiary (via book entry notation or, if applicable, in

 



 

stock certificate form), one share of Common Stock (or other securities or other property, as applicable) for each such outstanding Restricted Stock Unit that has not then been forfeited and with respect to which the Restricted Period has expired and any other such vesting criteria are attained (‘‘ Released Unit ’’); provided , however , that the Committee may elect to (A) pay cash or part cash and part Common Stock in lieu of delivering only shares of Common Stock in respect of such Released Units or (B) defer the delivery of Common Stock (or cash or part Common Stock and  part cash, as the case may be) beyond the expiration of the Restricted Period if such extension would not cause adverse tax consequences under Section 409A of the Code. If a cash payment is made in lieu of delivering shares of Common Stock, the amount of such payment shall be equal to the Fair Market Value of the Common Stock as of the date on which the shares of Common Stock would have otherwise been delivered to the Participant in respect of such Restricted Stock Units.

 

(iii)    Unless otherwise provided by the Committee in an Award Agreement, upon a Participant’s separation from service with the Company, the Company shall deliver to the Participant, or the Participant’s beneficiary (via book entry notation or, if applicable, in share certificate form), one share of Common Stock (or other securities or other property, as applicable) for each such outstanding Deferred Stock Unit then held by the Participant; provided , however , unless otherwise provided in the Award Agreement, that the Committee may elect to pay cash or part cash and part shares of Common Stock in lieu of delivering only shares of Common Stock in respect of such Deferred Stock Units. If a cash payment is made in lieu of delivering shares of Common Stock, the amount of such payment shall be equal to the Fair Market Value of the shares of Common Stock as of the date on which such shares would have otherwise been delivered to the Participant in respect of such Deferred Stock Units.

 

(iv)   To the extent provided in an Award Agreement, the holder of outstanding Restricted Stock Units or Deferred Stock Units shall be entitled to be credited with dividend equivalent payments (upon the payment by the Company of dividends on shares of Common Stock) either in cash or, if determined by the Committee, in shares of Common Stock having a Fair Market Value equal to the amount of such dividends as of the date of payment (or a combination of cash and shares of Common Stock) (and interest may, if determined by the Committee, be credited on the amount of cash dividend equivalents at a rate and subject to such terms as determined by the Committee), which accumulated dividend equivalents (and interest thereon, if applicable) shall be payable at the same time as the underlying Restricted Stock Units or Deferred Stock Units, as applicable, are settled (in the case of Restricted Stock Units, following the release of restrictions  on such Restricted Stock Units), and if such Restricted Stock Units are forfeited, the holder  thereof shall have no right to such dividend equivalent payments.

 

(e)     Legends on Restricted Stock. Each certificate representing Restricted Stock awarded under the Plan, if any, shall bear a legend substantially in the form of the following in addition to any other information the Company deems appropriate until the lapse of all restrictions with respect to such Common Stock:

 

TRANSFER OF THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY  IS RESTRICTED PURSUANT TO    THE TERMS OF THE INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC. 2018 EQUITY INCENTIVE PLAN AND A RESTRICTED STOCK AWARD AGREEMENT, DATED  AS OF, BETWEEN INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC. AND. A COPY OF SUCH PLAN AND AWARD AGREEMENT IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF INFRASTRUCTURE AND ENERGY ALTERNATIVES,  INC.

 

10.     Other Stock-Based Awards. The Committee may issue unrestricted Common Stock, rights to receive future grants of Awards, or other Awards denominated in Common Stock (including performance shares or performance units), or Awards that provide for cash payments based in whole or

 



 

in part on the value or future value of shares of Common Stock under the Plan to Eligible Persons, alone or in tandem with other Awards, in such amounts as the Committee shall from time to time determine (‘‘ Other Stock-Based Awards ’’). Each Other Stock-Based Award shall be evidenced by an Award Agreement, which may include conditions including, without limitation, the payment by the Participant of the Fair Market Value    of such shares of Common Stock on the date of grant.

 

11.     Changes in Capital Structure and Similar Events. In the event of (a) any dividend (other than regular cash dividends) or other distribution (whether in the form of cash, shares of Common Stock, other securities or other property), recapitalization, stock split, reverse stock split, reorganization, merger, amalgamation, consolidation, split-up, split-off, spin-off, combination, repurchase or exchange of shares of Common Stock or other securities of the Company, issuance of warrants or other rights to acquire shares of Common Stock or other securities of the Company, or other similar corporate transaction or event (including, without limitation, a Change in Control) that affects the shares of Common Stock, or (b) unusual or nonrecurring events (including, without limitation, a Change in Control) affecting the Company, any Affiliate, or the financial statements of the Company or any Affiliate, or changes in applicable rules, rulings, regulations or other requirements of any governmental body or securities exchange or inter-dealer quotation service, accounting principles or law, such that in any case an adjustment is determined by the Committee to be necessary or appropriate, then the Committee shall make any such adjustments in such manner as it may deem equitable, including without limitation any or all of the following:

 

(i)           adjusting any or all of (A) the number of shares of Common Stock or other securities of the Company (or number and kind of other securities or other property) that may be delivered in respect of Awards or with respect to which Awards may be granted under the Plan (including, without limitation, adjusting any or all of the limitations under Section 5 of the Plan) and (B) the terms of any outstanding Award, including, without limitation, (1) the number of shares of Common Stock or other securities of the Company (or number and kind of other securities or other property) subject to outstanding Awards or to which outstanding Awards relate, (2) the Exercise Price or Strike Price with respect to any Award and/or (3) any applicable performance measures (including, without limitation, Performance Criteria, Performance Formulae and Performance Goals);

 

(ii)           providing for a substitution or assumption of Awards (or awards of an acquiring company), accelerating the delivery, vesting and/or exercisability of, lapse of restrictions and/or other conditions on, or termination of, Awards or providing for a period of time (which shall not be required to be more than ten (10) days) for Participants to exercise outstanding Awards prior to the occurrence of such event (and any such Award not so exercised shall terminate or become no longer exercisable upon the occurrence of such event); and

 

(iii)            cancelling any one or more outstanding Awards (or awards of an acquiring company) and causing to be paid to the holders thereof, in cash, shares of Common Stock, other  securities or other property, or any combination thereof, the value of such Awards, if any, as determined by the Committee (which if applicable may be based upon the price per share of Common Stock received or to be received by other shareholders of the Company in such event), including without limitation, in the case of an outstanding Option or SAR, a cash payment in an amount equal to the excess, if any, of the Fair Market Value (as of a date specified by the Committee) of the shares of Common Stock subject to such Option or SAR over the     aggregate Exercise Price or Strike Price of such Option or SAR, respectively (it being understood that, in such event, any Option or SAR having a per share Exercise Price or Strike Price equal to, or in excess of, the Fair Market Value (as of the date specified by the  Committee) of a share of Common Stock subject thereto may be canceled and terminated without any payment or consideration therefor);

 



 

provided , however , that the Committee shall make an equitable or proportionate adjustment to outstanding Awards to reflect any ‘‘equity restructuring’’ (within the meaning of the Financial Accounting Standards Codification Topic 718 (or any successor pronouncement thereto)). Except as otherwise determined by the Committee, any adjustment in Incentive Stock Options under this Section 12 (other than any cancellation of Incentive Stock Options) shall be made only to the extent not constituting a ‘‘modification’’ within the meaning of Section 424(h)(3) of the Code, and any adjustments under this Section 11 shall be made in a manner which does not adversely affect the exemption provided pursuant to Rule 16b-3 promulgated under the Exchange Act. The Company shall give each Participant notice of an adjustment hereunder and, upon notice, such adjustment shall be conclusive and binding for all purposes. In anticipation of the occurrence of any event listed in the first sentence of this Section 11, for reasons of administrative convenience, the Committee in its sole discretion may refuse to permit the exercise of any Award during a period of up to 30 days prior to the anticipated occurrence of any such event.

 

12.     Effect of Change in Control. Except to the extent otherwise provided in an Award Agreement, or any applicable employment, consulting, change-in-control, severance or other agreement between the Participant and the Company or an Affiliate, in the event of a Change in Control, notwithstanding any provision of the Plan to the contrary:

 

(a)    the Committee may provide that all Options and SARs held by such Participant shall become immediately exercisable with respect to 100% of the shares subject to such Options and SARs, and that the Restricted Period (and any other conditions) shall expire immediately with respect to 100% of the shares of Restricted Stock and Restricted Stock Units and any other    Awards held by such Participant (including a waiver of any applicable Performance Goals); provided , that if the vesting or exercisability of any Award would otherwise be subject to the achievement of performance conditions, the portion of such Award that shall become fully vested and immediately exercisable shall be based on the assumed achievement of target performance as determined by the Committee and prorated for the number of days elapsed from the grant date of such Award through the date of termination.

 

(b)    In addition, the Committee may upon at least ten (10) days’ advance notice to the affected persons, cancel any outstanding Award and pay to the holders thereof, in cash, securities or other property (including of the acquiring or successor company), or any combination thereof, the value of such Awards based upon the price per share of Common Stock received or to be received by other shareholders of the Company in the event. Notwithstanding the above, the Committee shall exercise such discretion over the timing of settlement of any Award subject to Code Section 409A at the time such Award is granted.

 

To the extent practicable, the provisions of this Section 12 shall occur in a manner and at a time that allows affected Participants the ability to participate in the Change in Control transaction with respect to the Common Stock subject to their Awards.

 

13.              Amendments and Termination.

 

(a)     Amendment and Termination of the Plan.  The Board may amend, alter, suspend, discontinue,  or terminate the Plan or any portion thereof at any time; provided , that no such amendment, alteration, suspension, discontinuation or termination shall be made without shareholder approval if such approval is necessary to comply with any tax or regulatory requirement applicable to the Plan (including, without limitation, as necessary to comply with any applicable rules or requirements of any securities exchange or inter-dealer quotation service on which the shares of Common Stock may be listed or quoted, for changes in GAAP to new accounting standards; provided , further , that any such amendment, alteration, suspension, discontinuance or termination that would materially and adversely affect the rights of any Participant or any holder or beneficiary of any Award theretofore granted shall not to that extent be effective without the consent of the affected Participant, holder or beneficiary, unless the Committee

 



 

determines that such amendment, alteration, suspension, discontinuance or termination is either required or advisable in order for the Company, the Plan or the Award to satisfy any applicable law or regulation. Notwithstanding the foregoing, no amendment shall be made to the last proviso of Section 14(b) without shareholder approval.

 

(b)     Amendment of Award Agreements.  The Committee may, to the extent not inconsistent with  the terms of any applicable Award Agreement, waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate, any Award theretofore granted or the associated Award Agreement, prospectively or retroactively (including after the Participant’s termination of employment or service with the Company); provided , that any such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would materially and adversely affect the rights of any Participant with respect to any Award theretofore granted shall not to that extent be effective without the consent of the affected Participant unless the Committee determines that such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination is either required or advisable in order for the Company, the Plan or the Award to satisfy any applicable law or regulation; provided , further , that except as otherwise permitted under Section 11 of the Plan, if (i) the Committee reduces the Exercise Price of any Option or the Strike Price of any SAR, (ii) the   Committee cancels any outstanding Option or SAR and replaces it with a new Option or SAR (with a lower Exercise Price or Strike Price, as the case may be) or other Award or cash in a manner that  would either (A) be reportable on the Company’s proxy statement or Form 10-K (if applicable) as Options that have been ‘‘repriced’’ (as such term is used in Item 402 of Regulation S-K promulgated under the Exchange Act), or (B) result in any ‘‘repricing’’ for financial statement reporting purposes (or otherwise cause the Award to fail to qualify for equity accounting treatment), (iii) the Committee takes any other action that is considered a ‘‘repricing’’ for purposes of the shareholder approval rules of the applicable securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, or (iv) the Committee cancels any outstanding Option or SAR that has a per-share Exercise Price or Strike Price (as applicable) at or above the Fair Market Value of a share of Common Stock on the date of cancellation, and pays any consideration to the holder thereof, whether in cash, securities, or other property, or any combination thereof, then, in the case of the immediately preceding clauses (i) through (iv), any such action shall not be effective without shareholder approval.

 

14.              General.

 

(a)     Award Agreements; Other Agreements. Each Award under the Plan shall be evidenced by an Award Agreement, which shall be delivered to the Participant and shall specify the terms and conditions of the Award and any rules applicable thereto. In the event of any conflict between the terms of the Plan and any Award Agreement or employment, change-in-control, severance or other agreement in effect with the Participant, the term of the Plan shall control.

 

(b)                 Nontransferability.

 

(i)   Each Award shall be exercisable only by the Participant during the Participant’s lifetime, or, if permissible under applicable law, by the Participant’s legal guardian or representative. No Award may be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Participant other than by will or by the laws of descent and distribution and any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company or an Affiliate; provided , that the designation of a beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance.

 

(ii)   Notwithstanding the foregoing, the Committee may permit Awards (other than Incentive Stock Options) to be transferred by the Participant, without consideration, subject to such rules as the Committee may adopt, to: (A) any person who is a ‘‘family member’’ of the Participant, as  such term is used in the instructions to Form S-8 under the Securities Act or any successor form  of

 



 

registration statements promulgated by the Securities and Exchange Commission (collectively, the ‘‘ Immediate Family Members ’’); (B) a trust solely for the benefit of the Participant or the   Participant’s Immediate Family Members; (C) a partnership or limited liability company whose only partners or shareholders are the Participant and the Participant’s Immediate Family Members; or (D) any other transferee as may be approved either (1) by the Board or the Committee, or (1) as provided in the applicable Award Agreement; (each transferee described in clause (A), (B), (C) or (D) above is hereinafter referred to as a ‘‘ Permitted Transferee ’’); provided , that the Participant gives the Committee advance written notice describing the terms and conditions of the proposed transfer and the Committee notifies the Participant in writing that such a transfer would comply with the requirements of the Plan.

 

(iii)    The terms of any Award transferred in accordance with the immediately preceding paragraph shall apply to the Permitted Transferee, and any reference in the Plan, or in any applicable Award Agreement, to the Participant shall be deemed to refer to the Permitted Transferee, except that (A) Permitted Transferees shall not be entitled to transfer any Award, other than by will or the laws of descent and distribution; (B) Permitted Transferees shall not be entitled to exercise any transferred Option unless there shall be in effect a registration statement on an appropriate form covering the shares of Common Stock to be acquired pursuant to the exercise of such Option if the Committee determines, consistent with any applicable Award Agreement, that such a registration statement is necessary or appropriate; (C) the Committee or the Company shall not be required to provide any notice to a Permitted Transferee, whether or not such notice is or would otherwise have been required to be given to the Participant under the Plan or otherwise; and (D) the consequences of the termination of the Participant’s employment by, or services to,  the Company or an Affiliate under the terms of the Plan and the applicable Award Agreement shall continue to be applied with respect to the transferred Award, including, without limitation, that an Option shall be exercisable by the Permitted Transferee only to the extent, and for the periods, specified in the Plan and the applicable Award Agreement.

 

(c)     Dividends and Dividend Equivalents.   The Committee may provide the Participant as part of   an Award with dividends or dividend equivalents, payable in cash, shares of Common Stock, other securities, other Awards or other property, on a current or deferred basis, on such terms and conditions as may be determined by the Committee, including, without limitation, payment directly to the Participant, withholding of such amounts by the Company subject to vesting of the Award or reinvestment in additional shares of Common Stock, Restricted Stock or other Awards; provided , that  no dividends or dividend equivalents shall be payable in respect of outstanding (i) Options or SARs or (ii) unearned Performance Compensation Awards or other unearned Awards subject to performance conditions (other than or in addition to the passage of time); provided , further , that dividend equivalents may be accumulated in respect of unearned Awards and paid as soon as administratively practicable, but no more than 60 days, after such Awards are earned and become payable or distributable (and the right to any such accumulated dividends or dividend equivalents shall be forfeited upon the forfeiture of the Award to which such dividends or dividend equivalents relate).

 

(d)                 Tax Withholding.

 

(i)   The Participant shall be required to pay to the Company or any Affiliate, and the Company or any Affiliate shall have the right (but not the obligation) and is hereby authorized to withhold, from any cash, shares of Common Stock, other securities or other property deliverable under any Award or from any compensation or other amounts owing to the Participant, the amount (in cash, Common Stock, other securities or other property) of any required withholding taxes (up to the maximum permissible withholding amounts) in respect of an Award, its exercise, or any payment or transfer under an Award or under the Plan and to take such other action as the Committee or the Company deem necessary to satisfy all obligations for the payment of such withholding taxes.

 



 

(ii)           Without limiting the generality of paragraph (i) above, the Committee may permit the Participant to satisfy, in whole or in part, the foregoing withholding liability by (A) payment in cash, (B) the delivery of shares of Common Stock (which shares are not subject to any pledge or other security interest) owned by the Participant having a Fair Market Value on such date equal to such withholding liability or (C) having the Company withhold from the number of shares of Common Stock otherwise issuable or deliverable pursuant to the exercise or settlement of the Award a number of shares with a Fair Market Value on such date equal to such withholding liability.

 

(e)                 No Claim to Awards; No Rights to Continued Employment, Directorship or Engagement. No employee or director of the Company or an Affiliate, or other person, shall have any claim or right to be granted an Award under the Plan or, having been selected for the grant of an Award, to be selected for a grant of any other Award. There is no obligation for uniformity of treatment of Participants or holders or beneficiaries of Awards. The terms and conditions of Awards and the Committee’s determinations and interpretations with respect thereto need not be the same with respect to each Participant and may be made selectively among Participants, whether or not such Participants are similarly situated. Neither the Plan nor any action taken hereunder shall be construed as giving any Participant any right to be retained in the employ or service of the Company or an Affiliate, or to continue in the employ or the service of the Company or an Affiliate, nor shall it be construed as   giving any Participant who is a director any rights to continued service on the Board.

 

(f)                International Participants. With respect to Participants who reside or work outside of the United States, the Committee may amend the terms of the Plan or appendices thereto, or outstanding Awards, with respect to such Participants, in order to conform such terms with or accommodate the requirements of local laws, procedures or practices or to obtain more favorable tax or other treatment for the Participant, the Company or its Affiliates. Without limiting the generality of this subsection, the Committee is specifically authorized to adopt rules, procedures and sub-plans with provisions that limit or modify rights on death, disability, retirement or other terminations of employment, available methods of exercise or settlement of an Award, payment of income, social insurance contributions or payroll taxes, withholding procedures and handling of any stock certificates or other indicia of ownership that vary with local requirements. The Committee may also adopt rules, procedures or sub-plans applicable to particular Affiliates or locations.

 

(g)                 Beneficiary Designation. The Participant’s beneficiary shall be the Participant’s spouse (or domestic partner if such status is recognized by the Company and in such jurisdiction), or if the Participant is otherwise unmarried at the time of death, the Participant’s estate, except to the extent that a different beneficiary is designated in accordance with procedures that may be established by the Committee from time to time for such purpose. Notwithstanding the foregoing, in the absence of a beneficiary validly designated under such Committee-established procedures and/or applicable law who is living (or in existence) at the time of death of a Participant residing or working outside the United States, any required distribution under the Plan shall be made to the executor or administrator of the estate of the Participant, or to such other individual as may be prescribed by applicable law.

 

(h)                 Termination of Employment or Service. The Committee, in its sole discretion, shall determine the effect of all matters and questions related to the termination of employment of or service of a Participant. Except as otherwise provided in an Award Agreement, or any employment, consulting, change-in-control, severance or other agreement between the Participant and the Company or an Affiliate, unless determined otherwise by the Committee: (i) neither a temporary absence from employment or service due to illness, vacation or leave of absence (including, without limitation, a call to active duty for military service through a Reserve or National Guard unit) nor a transfer from employment or service with the Company to employment or service with an Affiliate (or vice versa) shall be considered a termination of employment or service with the Company or an Affiliate; and (ii) if the Participant’s employment with the Company or its Affiliates terminates, but such Participant

 



 

continues to provide services with the Company or its Affiliates in a non-employee capacity (including as a non-employee director) (or vice versa), such change in status shall not be considered a termination of employment or service with the Company or an Affiliate for purposes of the Plan.

 

(i)                 No Rights as a Shareholder.   Except as otherwise specifically provided in the Plan or any   Award Agreement, no person shall be entitled to the privileges of ownership in respect of shares of Common Stock that are subject to Awards hereunder until such shares have been issued or delivered to that person.

 

(j)               Government and Other  Regulations.

 

(i)           The Plan, the granting and vesting of Awards under the Plan and the issuance and delivery of share of Common Stock and the payment of money under the Plan or under Awards granted or awarded under the Plan are subject to compliance with all applicable U.S. federal, state, local, and non-U.S. laws, rules, and regulations (including but not limited to state, U.S. federal, and non-U.S. securities law, and margin requirements) and to such approvals by any listing, regulatory, or governmental authority as may, in the opinion of counsel for the Company, be necessary or advisable in connection therewith. Any securities delivered under the Plan shall be subject to such restrictions, and the person acquiring such securities shall, if requested by the Company, provide such assurances and representations to the Company as the Company may deem necessary or desirable to assure compliance with all applicable legal requirements. To the extent permitted by applicable law, the Plan and Awards granted or awarded hereunder shall be deemed amended to the extent necessary to conform to such laws, rules, and regulations.

 

(ii)            Nothing in the Plan shall be deemed to authorize the Committee or Board or any members thereof to take any action contrary to applicable law or regulation, or rules of the NASDAQ or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted.

 

(iii)             The obligation of the Company to settle Awards in Common Stock or other consideration shall be subject to all applicable laws, rules, and regulations, and to such approvals by governmental agencies as may be required. Notwithstanding any terms or conditions of any Award to the contrary, the Company shall be under no obligation to offer to sell or to sell, and shall be prohibited from offering to sell or selling, any shares of Common Stock pursuant to an Award unless such shares have been properly registered for sale pursuant to the Securities Act with the Securities and Exchange Commission or unless the Company has received an opinion of counsel, satisfactory to the Company, that such shares may be offered or sold without such registration pursuant to and in compliance with the terms of an available exemption. The Company shall be under no obligation to register for sale under the Securities Act any of the shares of Common  Stock to be offered or sold under the Plan. The Committee shall have the authority to provide that all shares of Common Stock or other securities of the Company or any Affiliate delivered under the Plan shall be subject to such stop-transfer orders and other restrictions as the Committee may deem advisable under the Plan, the applicable Award Agreement, U.S. federal securities laws, or the rules, regulations and other requirements of the U.S. Securities and Exchange Commission, any securities exchange or inter-dealer quotation service upon which such shares or other securities of the Company are then listed or quoted and any other applicable federal, state, local or non-U.S. laws, rules, regulations and other requirements, and, without limiting the generality of Section 9 of the Plan, the Committee may cause a legend or legends to be put on any such certificates of Common Stock or other securities of the Company or any Affiliate delivered under the Plan to make appropriate reference to such restrictions or may cause such Common Stock or other securities of the Company or any Affiliate delivered under the Plan in book-entry form to be held subject to the Company’s instructions or subject to appropriate stop-transfer orders.

 

Notwithstanding any provision in the Plan to the contrary, the Committee reserves the right to add

 



 

any additional terms or provisions to any Award granted under the Plan that it in its sole discretion deems necessary or advisable in order that such Award complies with the legal requirements of any governmental entity to whose jurisdiction the Award is subject.

 

(iv)          The Committee may cancel an Award or any portion thereof if it determines that legal or contractual restrictions and/or blockage and/or other market considerations would make the Company’s acquisition of shares of Common Stock from the public markets, the Company’s issuance of Common Stock to the Participant, the Participant’s acquisition of Common Stock from the Company and/or the Participant’s sale of Common Stock to the public markets illegal, impracticable or inadvisable. If the Committee determines to cancel all or any portion of an Award in accordance with the foregoing, unless prevented by applicable laws, the Company shall pay to the Participant an amount equal to the excess of (A) the aggregate Fair Market Value of the     shares of Common Stock subject to such Award or portion thereof canceled (determined as of the applicable exercise date, or the date that the shares would have been vested or delivered, as applicable), over (B) the aggregate Exercise Price or Strike Price (in the case of an Option or     SAR, respectively) or any amount payable as a condition of delivery of shares of Common Stock (in the case of any other Award). Such amount shall be delivered to the Participant as soon as practicable following the cancellation of such Award or portion thereof.

 

(k)                No Section 83(b) Elections Without Consent of Company.   No election under Section 83(b) of the Code or under a similar provision of law may be made unless expressly permitted by the terms of the applicable Award Agreement or by action of the Committee in writing prior to the making of such election. If the Participant, in connection with the acquisition of shares of Common Stock under the Plan or otherwise, is expressly permitted to make such election and the Participant makes the election, the Participant shall notify the Company of such election within ten days of filing notice of the election with the Internal Revenue Service or other governmental authority, in addition to any filing and notification required pursuant to Section 83(b) of the Code or other applicable provision.

 

(l)                 Payments to Persons Other Than Participants. If the Committee shall find that any person to whom any amount is payable under the Plan is unable to care for the Participant because of illness or accident, or is a minor, or has died, then any payment due to such person or the Participant’s estate (unless a prior claim therefor has been made by a duly appointed legal representative or a beneficiary designation form has been filed with the Company) may, if the Committee so directs the Company, be paid to such person’s spouse, child, or relative, or an institution maintaining or having custody of such person, or any other person deemed by the Committee to be a proper recipient on behalf of such person otherwise entitled to payment. Any such payment shall be a complete discharge of the liability of the Committee and the Company therefor.

 

(m)                Nonexclusivity of the Plan.   Neither the adoption of the Plan by the Board nor the   submission of the Plan to the shareholders of the Company for approval shall be construed as creating any limitations on the power of the Board to adopt such other incentive arrangements as it may deem desirable, including, without limitation, the granting of stock options or awards otherwise than under the Plan, and such arrangements may be either applicable generally or only in specific cases.

 

(n)                No Trust or Fund Created. Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any Affiliate, on the one hand, and the Participant or other person or entity, on the other hand. No provision of the Plan or any Award shall require the Company, for the purpose of satisfying any obligations under the Plan, to purchase assets or place any assets in a trust or other entity to which contributions are made or to otherwise segregate any assets, nor shall the Company maintain separate bank accounts, books, records or other evidence of the existence of a segregated or separately maintained or administered fund for such purposes. Participants shall have no rights under the Plan other than as unsecured general creditors of the Company.

 



 

(o)                Reliance on Reports. Each member of the Committee and each member of the Board (and each such member’s respective designees) shall be fully justified in acting or failing to act, as the case may be, and shall not be liable for having so acted or failed to act in good faith, in reliance upon any report made by the independent registered public accounting firm of the Company and its Affiliates and/or any other information furnished in connection with the Plan by any agent of the Company or the Committee or the Board, other than such member or  designee.

 

(p)                Relationship to Other Benefits. No payment under the Plan shall be taken into account in determining any benefits under any pension, retirement, profit sharing, group insurance or other benefit plan of the Company except as otherwise specifically provided in such other plan.

 

(q)                Purchase for Investment. Whether or not the Options and shares covered by the Plan have  been registered under the Securities Act, each person exercising an Option under the Plan or acquiring shares under the Plan may be required by the Company to give a representation in writing that such person is acquiring such shares for investment and not with a view to, or for sale in connection with, the distribution of any part thereof. The Company will endorse any necessary legend referring to the foregoing restriction upon the certificate or certificates representing any shares issued or transferred to the Participant upon the exercise of any Option granted under the Plan.

 

(r)                 Governing Law. The Plan shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of laws thereof, or principles of conflicts of laws of any other jurisdiction that could cause the application of the laws of any jurisdiction other than the State of Delaware.

 

(s)                Severability.   If any provision of the Plan or any Award or Award Agreement is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any person or entity or Award, or would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to the applicable laws, or if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan or the Award, such provision shall be construed or deemed stricken as to such jurisdiction, person or entity or Award, and the remainder of the Plan and any such Award shall remain in full force and effect.

 

(t)                Obligations Binding on Successors. The obligations of the Company under the Plan shall be binding upon any successor corporation or organization resulting from the merger, consolidation or other reorganization of the Company, or upon any successor corporation or organization succeeding to all or substantially all of the assets and business of the Company.

 

(u)                 409A of the Code.

 

(i)           It is intended that the Plan comply with Section 409A of the Code, and all provisions of the Plan shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A of the Code. Each Participant is solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on or in respect of such Participant in connection with the Plan or any other plan maintained by the Company, including any taxes and penalties under Section 409A of the Code, and neither the Company nor any Affiliate shall have any obligation to indemnify or otherwise hold such Participant or any beneficiary harmless from any or all of such taxes or penalties. With respect to any Award that is considered ‘‘deferred compensation’’ subject to Section 409A of the Code, references in the Plan to ‘‘termination of employment’’ (and substantially similar phrases) shall mean ‘‘separation from service’’ within the meaning of Section 409A of the Code. For purposes of Section 409A of the Code, each of the payments that may be made in respect of any Award granted under the Plan is designated as a separate payment.

 



 

(ii)           Notwithstanding anything in the Plan to the contrary, if the Participant is a ‘‘specified employee’’ within the meaning of Section 409A(a)(2)(B)(i) of the Code, no payments or deliveries in respect of any Awards that are ‘‘deferred compensation’’ subject to Section 409A of the Code shall be made to such Participant prior to the date that is six months after the date of such Participant’s ‘‘separation from service’’ within the meaning of Section 409A of the Code or, if earlier, the Participant’s date of death. All such delayed payments or deliveries will be paid or delivered (without interest) in a single lump sum on the earliest date permitted under Section 409A of the Code that is also a business  day.

 

(iii)            In the event that the timing of payments in respect of any Award that would otherwise be considered ‘‘deferred compensation’’ subject to Section 409A of the Code would be accelerated upon the occurrence of (A) a Change in Control, no such acceleration shall be permitted unless  the event giving rise to the Change in Control satisfies the definition of a change in the ownership or effective control of a corporation, or a change in the ownership of a substantial portion of the assets of a corporation pursuant to Section 409A of the Code and any Treasury Regulations promulgated thereunder or (B) a Disability, no such acceleration shall be permitted unless the Disability also satisfies the definition of ‘‘disability’’ pursuant to Section 409A of the Code and any Treasury  Regulations  promulgated thereunder.

 

(v)               Clawback/Forfeiture. Notwithstanding anything to the contrary contained herein, the Committee may cancel an Award if the Participant, without the consent of the Company, (A) has engaged in or engages in activity that is in conflict with or adverse to the interests of the Company or any Affiliate while employed by or providing services to the Company or any Affiliate, including fraud or conduct contributing to any financial restatements or irregularities, (B) violates a non-competition, non-solicitation, non-disparagement or non-disclosure covenant or agreement with the Company or any Affiliate, as determined by the Committee, or (C) if the Participant’s employment or service is terminated for Cause. The Committee may also provide in an Award Agreement that in such event the Participant will forfeit any compensation, gain or other value realized thereafter on the vesting, exercise or settlement of such Award, the sale or other transfer of such Award, or the sale of shares of   Common Stock acquired in respect of such Award, and must promptly repay such amounts to the Company. The Committee may also provide in an Award Agreement that if the Participant receives any amount in excess of what the Participant should have received under the terms of the Award for any reason (including without limitation by reason of a financial restatement, mistake in calculations or other administrative error), all as determined by the Committee, then the Participant shall be required to promptly repay any such excess amount to the Company. In addition, the Company shall retain the right to bring an action at equity or law to enjoin the Participant’s activity and recover damages resulting from such activity. Further, to the extent required by applicable law (including, without limitation, Section 304 of the Sarbanes-Oxley Act and Section 954 of the Dodd-Frank Wall Street  Reform and Consumer Protection Act) and/or the rules and regulations of the NASDAQ or any other securities exchange or inter-dealer quotation service on which the Common Stock is listed or quoted, or if so required pursuant to a written policy adopted by the Company, Awards shall be subject (including on a retroactive basis) to clawback, forfeiture or similar requirements (and such requirements shall be deemed incorporated by reference into all outstanding Award Agreements).

 

(w)                No Representations or Covenants With Respect to Tax  Qualification.  Although the Company   may endeavor to (i) qualify an Award for favorable U.S. or non-U.S. tax treatment or (ii) avoid adverse tax treatment, the Company makes no representation to that effect and expressly disavows any covenant to maintain favorable or avoid unfavorable tax treatment. The Company shall be unconstrained in its corporate activities without regard to the potential negative tax impact on holders of Awards under the Plan.

 

(x)               No Interference. The existence of the Plan, any Award Agreement, and the Awards granted hereunder shall not affect or restrict in any way the right or power of the Company, the Board, the

 



 

Committee, or the shareholders of the Company to make or authorize any adjustment, recapitalization, reorganization, or other change in the Company’s capital structure or its business, any merger or consolidation of the Company, any issue of stock or of options, warrants, or rights to purchase stock or of bonds, debentures, or preferred or prior preference stocks whose rights are superior to or affect the Common Shares or the rights thereof or that are convertible into or exchangeable for Common Shares, or the dissolution or liquidation of the Company or any Affiliate, or any sale or transfer of all or any part of their assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.

 

(y)               Expenses; Titles and Headings. The expenses of administering the Plan shall be borne by the Company and its Affiliates. The titles and headings of the sections in the Plan are for convenience of reference only, and in the event of any conflict, the text of the Plan, rather than such titles or headings shall control.

 

*                           *                            *

 


Exhib it 10.6

 

This EMPLOYMENT AGREEMENT (this “ Agreement ”) dated as of January 25th, 2018, between IEA Energy Services LLC, a Delaware limited liability company (the “ Company ”), and John Paul Roehm (“ Executive ”).

 

WHEREAS,  IEA Energy Services LLC entered into that certain Agreement and Plan of Merger, dated on November 3, 2017, by and among IEA Energy Services LLC, M III Acquisition Corp., Infrastructure and Energy Alternatives, LLC, and Oaktree Power Opportunities Fund III Delaware, L.P., as amended from time to time (the “ Merger Agreemen t”); and

 

WHEREAS, the Company and Executive desire to enter into this employment agreement (this “ Agreement ”) pursuant to the terms, provisions and conditions set forth herein, which will govern the terms of Executive’s employment with the Company following the closing of the transaction contemplated by the Merger Agreement (the “ Closing ”).

 

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, and intending to be legally bound hereby, the parties hereto agree as set forth below:

 

1.                                       Term .  (a) The term of Executive’s employment under this Agreement shall be effective on the Closing (the “ Effective Date ”), and shall continue until the third (3rd) anniversary thereof (the “ Initial Expiration Date ”), provided that on the Initial Expiration Date and each subsequent anniversary of the Initial Expiration Date, the term of Executive’s employment under this Agreement shall be automatically extended for one additional year unless either party provides written notice to the other party at least ninety (90) days prior to the Initial Expiration Date (or any such anniversary, as applicable) that Executive’s employment hereunder shall not be so extended (in which case Executive’s employment and this Agreement shall terminate on the Initial Expiration Date or expiration of the extended term, as applicable); provided , however , that Executive’s employment and this Agreement may be terminated earlier at any time pursuant to the provisions of Section 4; provided , further , that this Agreement shall be null and void ab initio and of no further force or effect if the Merger Agreement is terminated prior to the Closing or if the Closing does not occur.  The period of time from the Effective Date through the termination of this Agreement and Executive’s employment hereunder pursuant to its terms is herein referred to as the “ Term ”; and the date on which the Term is scheduled to expire (i.e., the Initial Expiration Date or the scheduled expiration of the extended term, if applicable) is herein referred to as the “ Expiration Date ”.

 

(b)                                  Executive agrees and acknowledges that the Company has no obligation to extend the Term or to continue Executive’s employment following the Expiration Date, and Executive expressly acknowledges that no promises or understandings to the contrary have been made or reached.  Executive also agrees and acknowledges that, should Executive and the Company choose to continue Executive’s employment for any period of time following the Expiration Date without extending the term of Executive’s employment under this Agreement or entering into a new written employment agreement, Executive’s employment with the Company shall be “at will”, such that the Company may terminate Executive’s employment at any time, with or without reason and with or without notice, and Executive may resign at any time, with or without reason and with or without notice.

 

(c)                                   For purposes of this Agreement, the following terms, as used herein, shall have the definitions set forth below.

 



 

Affiliate ” means, with respect to any specified Person, any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such specified Person, provided that, in any event, any business in which the Company has any direct or indirect ownership interest shall be treated as an Affiliate of the Company.

 

Control ” (including, with correlative meanings, the terms “Controlled by” and “under common Control with”), as used with respect to any Person, means the direct or indirect possession of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

 

Governmental Entity ” means any national, state, county, local, municipal or other government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality.

 

Person ” means any individual, firm, corporation, partnership, limited liability company, trust, joint venture, association, Governmental Entity, unincorporated entity or other entity.

 

2.                                       Duties and Responsibilities .  (a)  During the Term, Executive agrees to be employed and devote substantially all of Executive’s business time and efforts to the Company and the promotion of its interests and the performance of Executive’s duties and responsibilities hereunder as Chief Executive Officer, upon the terms and conditions of this Agreement.  Executive shall perform such lawful duties and responsibilities as directed from time to time by the Board of Directors of the Company (the “ Board ”) that are customary for a Chief Executive Officer.

 

(b)                                  During the Term, Executive shall report directly to the Board.  Executive acknowledges that Executive’s duties and responsibilities may require Executive to travel on business to the extent necessary to fully perform Executive’s duties and responsibilities hereunder.  It is anticipated that Executive shall physically be on Company premises (or traveling on Company business) during normal business hours (unless absent due to vacation, injury, illness or other approved leave of absence).  The Executive will serve as an officer and director of subsidiaries and affiliates, but shall not be entitled to any additional compensation for such board service while employed by the Company.

 

(c)                                   During the Term, Executive shall use Executive’s best efforts to faithfully and diligently serve the Company and shall not act in any capacity that is in conflict with Executive’s duties and responsibilities hereunder; provided , however , Executive may manage Executive’s personal investments and affairs and participate in non-profit, educational, charitable and civic activities, to the extent that such activities do not interfere with the performance of Executive’s duties hereunder, and are not in conflict with the business interests of the Company or its Affiliates or otherwise compete with the Company or its Affiliates.  Except as provided in the immediately preceding sentence, for the avoidance of doubt, during the Term Executive shall not be permitted to become engaged in or render services for any Person other than the Company and its Affiliates, and shall not be permitted to be a member of the board of directors of any company, in any case without the prior consent of the Company (for all purposes under this Agreement, any required consent of the Company shall be evidenced by a duly authorized resolution of the Board).

 

3.                                       Compensation and Related Matters .  (a)  Base Salary .  During the Term, for all services rendered under this Agreement, Executive shall receive an annualized base salary (“ Base Salary ”) at a rate of three hundred seventy five thousand dollars ($375,000), payable in accordance with the Company’s applicable payroll practices; provided that, effective on the later of January 1, 2018 or the Effective Date, Base Salary shall be increased to four hundred sixty two thousand five hundred dollars

 

2



 

($462,500) and effective on the later of January 1, 2019 or the Effective Date, Base Salary shall be increased to five hundred fifty thousand dollars ($550,000).  References in this Agreement to “ Base Salary ” shall be deemed to refer to the most recently effective annual base salary rate.  For years after 2019, the Company will review the Base Salary approximately annually during the Term to determine, at the discretion of the Company, whether the Base Salary should be increased and, if so, the amount of such increase and time at which it should take effect.

 

(b)                                  Annual Bonus .

 

(i)                                      During the Term, subject to Section 4(b), for each calendar year, Executive shall have the opportunity to earn an annual bonus (“ Annual Bonus ”) based on performance against specified objective (including budgetary or EBITDA-based) performance criteria (“ Performance Goals ”) established by the Board prior to or as soon as practicable following the start of each calendar year, subject to Executive’s continued employment through December 31 of each such calendar year (except as otherwise provided in Section 4).  The Annual Bonus shall be equal to one hundred percent(100%) of Base Salary if the Company achieves its Performance Goals (the “ Target Bonus ”), with the opportunity for an Annual Bonus in excess of the Target Bonus for performance that exceeds additional Performance Goals established by the Board.

 

(c)                                   Equity .   After the Effective Date, the Company intends to grant Executive options to acquire common stock of the Company with annual vesting over a four (4) year period, subject to Executive’s continued employment; provided , however , that the grant of equity pursuant to this Section 3(c) shall be subject to the approval by the compensation committee of the Board following the Effective Date (with the intent for the grants to occur within one hundred twenty (120) days after the Effective Date) and such other terms and conditions as determined by such compensation committee.

 

(d)                                  Benefits and Perquisites .  During the Term, Executive shall be entitled to participate in the benefit plans and programs commensurate with Executive’s position, that are provided by the Company from time to time for its senior executives generally, subject to the terms and conditions of such plans which may be amended, modified, or terminated by the Company.

 

(e)                                   Business Expense Reimbursements .  During the Term, the Company shall promptly reimburse Executive for Executive’s reasonable and necessary business expenses incurred in connection with performing Executive’s duties hereunder in accordance with its then prevailing policies and procedures for expense reimbursement (which shall include appropriate itemization and substantiation of expenses incurred).

 

(f)                                    Vacation .  During the Term, Executive shall be entitled to four (4) weeks paid vacation each calendar year, in accordance with the Company’s vacation policy to be taken at such times as may be mutually agreed by Executive and the Company.

 

4.                                       Termination of Employment .  (a) Executive’s employment may be terminated by either party at any time and for any reason; provided , however , that Executive shall be required to give the Company at least sixty (60) days advance written notice of any voluntary resignation of Executive’s employment hereunder (and in such event the Company in its sole discretion may elect to accelerate Executive’s date of termination of employment, it being understood that such termination shall still be treated as a voluntary resignation for purposes of this Agreement).  Notwithstanding the foregoing, Executive’s employment shall automatically terminate upon Executive’s death.

 

3



 

(b)                                  Following any termination of Executive’s employment, notwithstanding any provision to the contrary in this Agreement, the obligations of the Company to pay or provide Executive with compensation and benefits under Section 3 shall cease, and the Company shall have no further obligations to provide compensation or benefits to Executive hereunder except (i) for payment of (w) any accrued but unpaid Base Salary through the date of termination, (x) any earned and unpaid Annual Bonus for the year prior to the year in which termination occurs, and (y) any unreimbursed expenses under Section 3(e), in each case accrued or incurred through the date of termination of employment, payable as soon as practicable and in all events within thirty (30) days following termination of employment, (ii) as explicitly set forth in any other benefit plans, programs or arrangements applicable to terminated employees in which Executive participates, other than severance plans or policies, and (iii) as otherwise expressly required by applicable law (collectively, the “ Accrued Obligations ”).

 

(c)                                   Except as otherwise provided herein, if Executive’s employment is terminated (I) by the Company without Cause or due to the Company’s election not to extend the Term beyond the scheduled expiration of the Term on the Expiration Date as contemplated under Section 1(a), or (II) by the Executive for Good Reason, then Executive, in addition to the Accrued Obligations, shall be entitled to receive (A) a monthly amount equal to one thousand dollars ($1,000) plus Executive’s monthly Base Salary as in effect on the date of termination paid in eighteen (18) equal monthly installments during the eighteen (18) month period immediately following such termination, and (B) if an Annual Bonus would otherwise have been payable to Executive under Section 3(b) above for the year in which Executive’s employment terminates had Executive remained employed, a prorated portion of that Annual Bonus amount (prorated by a fraction, the numerator of which is the number of days that have elapsed in the calendar year as of the date of employment termination, and the denominator of which is 365), payable at the time the Annual Bonus would otherwise have been payable had Executive remained employed (collectively, the “ Severance Payments ”).

 

(d)                                  Any payments or benefits under Section 4(c), shall be (A) conditioned upon Executive and the Company having executed an irrevocable waiver and general release of claims in the Company’s customary form (the “ Release ”) that has become effective in accordance with its terms within sixty (60) days after the date of termination, (B) subject to Executive’s continued compliance with the terms of this Agreement and (C) subject to Section 26.

 

(e)                                   For purposes of this Agreement, “ Cause ” means:  (A) the Executive’s substantial and repeated failure to perform duties as reasonably directed by the Board (not as a consequence of Disability) after written notice thereof and failure to cure within ten (10) days; (B) the Executive’s misappropriation or fraud with regard to the Company or its Affiliates or their respective assets; (C) conviction of, or the pleading of guilty or nolo contendere to, a felony, or any other crime involving either fraud or a breach of the Executive’s duty of loyalty with respect to the Company or any Affiliates thereof, or any of its customers or suppliers that results in material injury to the Company or any of its Affiliates; (D) the Executive’s violation of the written policies of the Company or any of its Affiliates, or other misconduct in connection with the performance of his duties that in either case results in material injury to the Company or any of its Affiliates, after written notice thereof and failure to cure within ten (10) days; or (E) the Executive’s breach of any material provision of this Agreement, including without limitation the confidentiality and non-disparagement provisions and the non-competition and non-solicitation provisions to which the Executive is subject, including without limitation Sections 5 and 6 hereof.  For the avoidance of doubt, Executive will have no cure right if Executive is not reasonably capable of prompt cure.

 

(f)                                    For purposes of this Agreement, “ Disability ” means Executive would be entitled to long-term disability benefits under the Company’s long-term disability plan as in effect from

 

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time to time, without regard to any waiting or elimination period under such plan and assuming for the purpose of such determination that Executive is actually participating in such plan at such time.  If the Company does not maintain a long-term disability plan, “ Disability ” means Executive’s inability to perform Executive’s duties and responsibilities hereunder due to physical or mental illness or incapacity that is expected to last for a consecutive period of ninety (90) days or for a period of one hundred twenty (120) days in any three hundred sixty five (365) day period as determined by the Board in its good faith judgment.

 

(g)                                   For purposes of this Agreement, “ Good Reason ” shall mean the occurrence of any of the following events without Executive’s prior express written consent: (A) any reduction in Executive’s Base Salary or Target Bonus percentage, or any material diminution in Executive’s authorities, titles or offices, or the assignment to him of duties that materially impair his ability to perform the duties normally assigned to an Chief Executive Officer of a corporation of the size and nature of the Company; (B) any relocation of Executive’s principal place of employment, to a location more than seventy-five (75) miles from the Executive’s principal place of employment on the date hereof; or (C) any material breach by the Company, or any of its Affiliates, of any material obligation to Executive; provided however , that prior to resigning for Good Reason, Executive shall give written notice to the Company of the facts and circumstances claimed to provide a basis for such resignation not more than thirty (30) days following his knowledge of such facts and circumstances, and the Company shall have thirty (30) days after receipt of such notice to cure such facts and circumstances (and if so cured then Executive shall not be permitted to resign for Good Reason in respect thereof).

 

(h)                                  Upon termination of Executive’s employment for any reason, upon the Company’s request Executive agrees to resign, as of the date of such termination of employment or such other date requested, from the Board and any committees thereof (and, if applicable, from the board of directors (and any committees thereof) of any Affiliate of the Company) to the extent Executive is then serving thereon and Executive agrees to execute any documents reasonably required to effectuate the foregoing.

 

(i)                                      The payment of any amounts accrued under any benefit plan, program or arrangement in which Executive participates shall be subject to the terms of the applicable plan, program or arrangement, and any elections Executive has made thereunder.  Except as prohibited by the terms of any Company benefit plan, program or arrangement, the Company may offset any amounts due and payable by Executive to the Company or its subsidiaries against any amounts the Company owes Executive hereunder; provided, however, no offsets shall be permitted against amounts that constitute deferred compensation subject to Section 409A.  Except as set forth in this Section 4(e), Executive shall be under no obligation to seek other employment or to otherwise mitigate the obligations of the Company under this Agreement, and there shall be no offset against amounts or benefits due to Executive under this Agreement or otherwise on account of any claim (other than any preexisting debts then due in accordance with their terms) the Company or its affiliates may have against him or any remuneration or other benefit earned or received by the Executive after such termination.

 

5.                                       Noncompetition and Nonsolicitation .  For purposes of Sections 5, 6, 7, 8, 9, 10 and 11 of this Agreement, references to the Company shall include its subsidiaries and Affiliates.

 

(a)                                  Executive agrees that Executive shall not, while an employee of the Company and during the twenty four (24) month period following termination of employment (such collective duration, the “ Restriction Period ”), directly or indirectly, without the prior written consent of the Company:

 

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(i)                                      (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company  or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“ Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 5(a)(i)(A) above; or

 

(ii)                                   perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 5(a)(ii)(A), (B) or (C) above.

 

The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Executive is in violation of the provisions of this Section 5(a) unless provided below.

 

(b)                                  The provisions of Section 5(a) shall not be deemed breached as a result of Executive’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Executive does not actively participate in the business of such Person; provided , however , that such stock is listed on a national securities exchange (for the sake of clarity, Executive shall remain bound by the other restrictive covenants in this agreement, including but not limited to Section 6 hereof).

 

(c)                                   Without limiting the generality of Section 11, notwithstanding the fact that any provision of this Section 5 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Executive’s material breach of such provision.

 

(d)                                  Executive acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill.  Executive acknowledges that Executive is being provided with significant additional consideration (to which Executive is not otherwise entitled), including stock options and restricted stock, to induce Executive to enter into this Agreement.  Executive expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area.  Executive further acknowledges that although Executive’s compliance with the covenants contained in Sections 5, 6, 7, 8 and 9 may prevent Executive from earning a livelihood in a business similar to the business of the Company, Executive’s experience and capabilities are such that Executive has other opportunities to earn a livelihood and adequate means of support for Executive and Executive’s dependents.

 

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6.                                       Nondisclosure of Confidential Information .

 

(a)                                  Executive acknowledges that Executive is and shall become familiar with the Company’s Confidential Information (as defined below), including trade secrets, and that Executive’s services are of special, unique and extraordinary value to the Company.  Executive acknowledges that the Confidential Information obtained by Executive while employed by the Company is the property of the Company.  Therefore, Executive agrees that Executive shall not disclose to any unauthorized Person or use for Executive’s own purposes any Confidential Information without the prior written consent of the Company, unless and to the extent that the aforementioned matters become generally known to and available for use by the public other than as a result of Executive’s acts or omissions in violation of this Agreement; provided , however , that if Executive receives a request to disclose Confidential Information pursuant to a deposition, interrogatory, request for information or documents in legal proceedings, subpoena, civil investigative demand, governmental or regulatory process or similar process, to the extent permitted by law, (i) Executive shall promptly notify in writing the Company, and consult with and assist the Company in seeking a protective order or request for other appropriate remedy, (ii) in the event that such protective order or remedy is not obtained, or if the Company waives compliance with the terms hereof, Executive shall disclose only that portion of the Confidential Information which, in the written opinion of Executive’s legal counsel, is legally required to be disclosed and shall exercise reasonable best efforts to provide that the receiving Person shall agree to treat such Confidential Information as confidential to the extent possible (and permitted under applicable law) in respect of the applicable proceeding or process and (iii) the Company shall be given an opportunity to review the Confidential Information prior to disclosure thereof.

 

(b)                                  For purposes of this Agreement, “ Confidential Information ” means information, observations and data concerning the business or affairs of the Company, including, without limitation, all business information (whether or not in written form) which relates to the Company, or its customers, suppliers or contractors or any other third parties in respect of which the Company has a business relationship or owes a duty of confidentiality, or their respective businesses or products, and which is not known to the public generally other than as a result of Executive’s breach of this Agreement, including but not limited to: technical information or reports; formulas; trade secrets; unwritten knowledge and “know-how”; operating instructions; training manuals; customer lists; customer buying records and habits; product sales records and documents, and product development, marketing and sales strategies; market surveys; marketing plans; profitability analyses; product cost; long-range plans; information relating to pricing, competitive strategies and new product development; information relating to any forms of compensation or other personnel-related information; contracts; and supplier lists. Confidential Information will not include such information known to Executive prior to Executive’s involvement with the Company or information rightfully obtained from a third party (other than pursuant to a breach by Executive of this Agreement).  Without limiting the foregoing, Executive agrees to keep confidential the existence of, and any information concerning, any dispute between Executive and the Company, except that Executive may disclose information concerning such dispute to his immediate family, to the court that is considering such dispute or to Executive’s legal counsel and other professional advisors (provided that such counsel and other advisors agree not to disclose any such information other than as necessary to the prosecution or defense of such dispute).

 

(c)                                   Executive further agrees that Executive will not improperly use or disclose any confidential information or trade secrets, if any, of any former employers or any other Person to whom Executive has an obligation of confidentiality, and will not bring onto the premises of the Company any unpublished documents or any property belonging to any former employer or any other

 

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Person to whom Executive has an obligation of confidentiality unless consented to in writing by the former employer or other Person.

 

7.                                       Return of Property .  Executive acknowledges that all notes, memoranda, specifications, devices, formulas, records, files, lists, drawings, documents, models, equipment, property, computer, software or intellectual property relating to the businesses of the Company, in whatever form (including electronic), and all copies thereof, that are received or created by Executive while an employee of the Company or its subsidiaries or Affiliates (including but not limited to Confidential Information and Inventions (as defined below)) are and shall remain the property of the Company, and Executive shall immediately return such property to the Company upon the termination of Executive’s employment and, in any event, at the Company’s request.  Executive further agrees that any property situated on the premises of, and owned by, the Company, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by the Company’s personnel at any time with or without notice.

 

8.                                       Intellectual Property Rights .

 

(a)                                  Executive agrees that the results and proceeds of Executive’s services for the Company (including, but not limited to, any trade secrets, products, services, processes, know-how, designs, developments, innovations, analyses, drawings, reports, techniques, formulas, methods, developmental or experimental work, improvements, discoveries, inventions, ideas, source and object codes, programs, matters of a literary, musical, dramatic or otherwise creative nature, writings and other works of authorship) resulting from services performed while an employee of the Company and any works in progress, whether or not patentable or registrable under copyright or similar statutes, that were made, developed, conceived or reduced to practice or learned by Executive, either alone or jointly with others (collectively, “ Inventions ”), shall be works-made-for-hire and the Company shall be deemed the sole owner throughout the universe of any and all trade secret, patent, copyright and other intellectual property rights (collectively, “ Proprietary Rights ”) of whatsoever nature therein, whether or not now or hereafter known, existing, contemplated, recognized or developed, with the right to use the same in perpetuity in any manner the Company determines in its sole discretion, without any further payment to Executive whatsoever.  If, for any reason, any of such results and proceeds shall not legally be a work-made-for-hire and/or there are any Proprietary Rights which do not accrue to the Company under the immediately preceding sentence, then Executive hereby irrevocably assigns and agrees to assign any and all of Executive’s right, title and interest thereto, including any and all Proprietary Rights of whatsoever nature therein, whether or not now or hereafter known, existing, contemplated, recognized or developed, to the Company, and the Company shall have the right to use the same in perpetuity throughout the universe in any manner determined by the Company without any further payment to Executive whatsoever.  As to any Invention that Executive is required to assign, Executive shall promptly and fully disclose to the Company all information known to Executive concerning such Invention.

 

(b)                                  Executive agrees that, from time to time, as may be requested by the Company and at the Company’s sole cost and expense, Executive shall do any and all things that the Company may reasonably deem useful or desirable to establish or document the Company’s exclusive ownership throughout the United States of America or any other country of any and all Proprietary Rights in any such Inventions, including the execution of appropriate copyright and/or patent applications or assignments.  To the extent Executive has any Proprietary Rights in the Inventions that cannot be assigned in the manner described above, Executive unconditionally and irrevocably waives the enforcement of such Proprietary Rights.  This Section 8(b) is subject to and shall not be deemed to limit, restrict or constitute any waiver by the Company of any Proprietary Rights of ownership to which the Company may be entitled by operation of law by virtue of the Company’s being Executive’s employer.  Executive further agrees that, from time to time, as may be requested by the Company and at the

 

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Company’s sole cost and expense, Executive shall assist the Company in every proper and lawful way to obtain and from time to time enforce Proprietary Rights relating to Inventions in any and all countries.  Executive shall execute, verify and deliver such documents and perform such other acts (including appearances as a witness) as the Company may reasonably request for use in applying for, obtaining, perfecting, evidencing, sustaining, and enforcing such Proprietary Rights and the assignment thereof.  In addition, Executive shall execute, verify and deliver assignments of such Proprietary Rights to the Company or its designees.  Executive’s obligations under this Section 8 shall continue beyond the termination of Executive’s employment with the Company.

 

(c)                                   Executive hereby waives and quitclaims to the Company any and all claims, of any nature whatsoever, that Executive now or may hereafter have for infringement of any Proprietary Rights assigned hereunder to the Company.

 

9.                                       Nondisparagement .  Executive shall not, whether in writing or orally, malign, denigrate or disparage the Company or its predecessors and successors, or any of the current or former directors, officers, employees, shareholders, partners, members, agents or representatives of any of the foregoing, with respect to any of their respective past or present activities, or otherwise publish (whether in writing or orally) statements that tend to portray any of the aforementioned parties in an unfavorable light; provided that nothing herein shall or shall be deemed to prevent or impair Executive from, in the course of and consistent with his duties for the Company, making public comments which include good faith, candid discussions, or acknowledgements regarding the Company’s performance or business, or discussing other officers, directors, and employees in connection with normal performance evaluations, or otherwise testifying truthfully in any legal or administrative proceeding where such testimony is compelled, or requested or from otherwise complying with legal requirements.

 

10.                                Notification of Subsequent Employer .  Executive hereby agrees that prior to accepting employment with, or agreeing to provide services to, any other Person during any period during which Executive remains subject to any of the covenants set forth in Section 5, Executive shall provide such prospective employer with written notice of such provisions of this Agreement, with a copy of such notice delivered simultaneously to the Company.

 

11.                                Remedies and Injunctive Relief .  Executive acknowledges that a violation by Executive of any of the covenants contained in Section 5, 6, 7, 8 or 9 would cause irreparable damage to the Company in an amount that would be material but not readily ascertainable, and that any remedy at law (including the payment of damages) would be inadequate.  Accordingly, Executive agrees that, notwithstanding any provision of this Agreement to the contrary, the Company shall be entitled (without the necessity of showing economic loss or other actual damage) to injunctive relief (including temporary restraining orders, preliminary injunctions and/or permanent injunctions) in any court of competent jurisdiction for any actual or threatened breach of any of the covenants set forth in Section 5, 6, 7, 8 or 9 in addition to any other legal or equitable remedies it may have.  The preceding sentence shall not be construed as a waiver of the rights that the Company may have for damages under this Agreement or otherwise, and all of the Company’s rights shall be unrestricted.

 

12.                                Representations of Executive; Advice of Counsel .  (a)  Executive represents, warrants and covenants that as of the date hereof:  (i) Executive has the full right, authority and capacity to enter into this Agreement and perform Executive’s obligations hereunder, (ii) Executive is not bound by any agreement that conflicts with or prevents or restricts the full performance of Executive’s duties and obligations to the Company hereunder during or after the Term and (iii) the execution and delivery of this Agreement shall not result in any breach or violation of, or a default under, any existing obligation, commitment or agreement to which Executive is subject.

 

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(b)                                  Executive represents that, prior to execution of this Agreement, Executive has been advised by an attorney of Executive’s own selection regarding this Agreement.  Executive acknowledges that Executive has entered into this Agreement knowingly and voluntarily and with full knowledge and understanding of the provisions of this Agreement after being given the opportunity to consult with counsel.  Executive further represents that in entering into this Agreement, Executive is not relying on any statements or representations made by any of the Company’s directors, officers, employees or agents which are not expressly set forth herein, and that Executive is relying only upon Executive’s own judgment and any advice provided by Executive’s attorney.

 

13.                                Cooperation .  Executive agrees that, upon reasonable notice and without the necessity of the Company obtaining a subpoena or court order, Executive shall provide reasonable cooperation in connection with any suit, action or proceeding (or any appeal from any suit, action or proceeding), and any investigation and/or defense of any claims asserted against any of Executive and the Company, its respective Affiliates, their respective predecessors and successors, and all of the respective current or former directors, officers, employees, shareholders, partners, members, agents or representatives of any of the foregoing, which relates to events occurring during Executive’s employment with the Company and its Affiliates as to which Executive may have relevant information (including but not limited to furnishing relevant information and materials to the Company or its designee and/or providing testimony at depositions and at trial), provided that with respect to such cooperation occurring following termination of employment, the Company shall reimburse Executive for expenses reasonably incurred in connection therewith, and further provided that any such cooperation occurring after the termination of Executive’s employment shall be scheduled to the extent reasonably practicable so as not to unreasonably interfere with Executive’s business or personal affairs.

 

14.                                Withholding Taxes .  The Company may deduct and withhold from any amounts payable under this Agreement such Federal, state, local, non-U.S. or other taxes as are required or permitted to be withheld pursuant to any applicable law or regulation.

 

15.                                Assignment .  (a)  This Agreement is personal to Executive and without the prior written consent of the Company shall not be assignable by Executive, except for the assignment by will or the laws of descent and distribution of any accrued pecuniary interest of Executive, and any assignment in violation of this Agreement shall be void.  The Company may assign this Agreement, and its rights and obligations hereunder, to any of its Affiliates.

 

(b)                                  This Agreement shall be binding on, and shall inure to the benefit of, the parties to it and their respective heirs, legal representatives, successors and permitted assigns (including, without limitation, successors by merger, consolidation, sale or similar transaction, and, in the event of Executive’s death, Executive’s estate and heirs in the case of any payments due to Executive hereunder).

 

(c)                                   Executive acknowledges and agrees that all of Executive’s covenants and obligations to the Company, as well as the rights of the Company hereunder, shall run in favor of and shall be enforceable by the Company and its successors and assigns.

 

16.                                Protected Rights

 

Notwithstanding any other provision in this Agreement or any other agreement that Executive may have entered with the Company prior to the date hereof, including, but not limited to, any prior employment agreement (collectively, the “Agreements”), nothing contained in any of the Agreements (i) prohibit Executive from reporting to the staff of the SEC possible violations of any law or regulation of the SEC, (ii) prohibit Executive from making other disclosures to the staff of the SEC that

 

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are protected under the whistleblower provisions of any federal securities laws or regulations or (iii) limit Executive’s right to receive an award for information provided to the SEC staff in accordance with the foregoing. Please note that Executive does not need the prior authorizations of the Company to engage in such reports, communications or disclosures and Executive is not required to notify the Company if Executive engages in any such reports, communications or disclosures.

 

17.                                Governing Law; No Construction Against Drafter .  This Agreement shall be deemed to be made in the State of Delaware, and the validity, interpretation, construction, and performance of this Agreement in all respects shall be governed by the laws of the State of Delaware without regard to its principles of conflicts of law.  No provision of this Agreement or any related document will be construed against or interpreted to the disadvantage of any party hereto by any court or other governmental or judicial authority by reason of such party having or being deemed to have structured or drafted such provision.

 

18.                                Consent to Jurisdiction; Waiver of Jury Trial .  (a)  Except as otherwise specifically provided herein, Executive and the Company each hereby irrevocably submits to the exclusive jurisdiction of the United States District Court for the Southern District of Indiana, Indianapolis Division (or, if subject matter jurisdiction in that court is not available, in any state court located within the State of Indiana) over any dispute arising out of or relating to this Agreement.  Except as otherwise specifically provided in this Agreement, the parties undertake not to commence any suit, action or proceeding arising out of or relating to this Agreement in a forum other than a forum described in this Section 18(a); provided , however , that nothing herein shall preclude the Company from bringing any suit, action or proceeding in any other court for the purposes of enforcing the provisions of this Section 18 or enforcing any judgment obtained by the Company.

 

(b)                                  The agreement of the parties to the forum described in Section 18(a) is independent of the law that may be applied in any suit, action, or proceeding and the parties agree to such forum even if such forum may under applicable law choose to apply non-forum law.  The parties hereby waive, to the fullest extent permitted by applicable law, any objection which they now or hereafter have to personal jurisdiction or to the laying of venue of any such suit, action or proceeding brought in an applicable court described in Section 18(a), and the parties agrees that they shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court.  The parties agree that, to the fullest extent permitted by applicable law, a final and non-appealable judgment in any suit, action or proceeding brought in any applicable court described in Section 18(a) shall be conclusive and binding upon the parties and may be enforced in any other jurisdiction.

 

(c)                                   The parties hereto irrevocably consent to the service of any and all process in any suit, action or proceeding arising out of or relating to this Agreement by the mailing via certified mail of copies of such process to such party at such party’s address specified in Section 23.

 

(d)                                  Each party hereto hereby waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding arising out of or relating to this Agreement.  Each party hereto (i) certifies that no representative, agent or attorney of any other party has represented, expressly or otherwise, that such party would not, in the event of any action, suit or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party hereto has been induced to enter into this Agreement by, among other things, the mutual waiver and certifications in this Section 18(d).

 

(e)                                   Each party shall bear its own costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with any dispute arising out of or relating to this

 

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Agreement; provided that, the Company shall reimburse the Executive for reasonable attorneys’ fees and expenses to the extent that Executive substantially prevails as to a material issue with respect to any matters subject to dispute hereunder.

 

19.                                Amendment; No Waiver .  No provisions of this Agreement may be amended, modified, waived or discharged except by a written document signed by Executive and a duly authorized officer of the Company (other than Executive).  The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.  No failure or delay by either party in exercising any right or power hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or power, or any abandonment of any steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.

 

20.                                Severability .  If any term or provision of this Agreement is invalid, illegal or incapable of being enforced by any applicable law or public policy, all other conditions and provisions of this Agreement shall nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any party; provided , however , that if any term or provision of Section 5, 6, 7, 8 or 9 is invalid, illegal or incapable of being enforced by any applicable law or public policy, all other conditions and provisions of this Agreement shall nonetheless remain in full force and effect to the fullest extent permitted by law; provided further , that in the event that any court of competent jurisdiction shall finally hold in a non-appealable judicial determination that any provision of Section 5, 6, 7, 8 or 9 (whether in whole or in part) is void or constitutes an unreasonable restriction against Executive, such provision shall not be rendered void but shall be deemed to be modified to the minimum extent necessary to make such provision enforceable for the longest duration and the greatest scope as such court may determine constitutes a reasonable restriction under the circumstances.  Subject to the foregoing, upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

 

21.                                Entire Agreement .  This Agreement, including the Exhibits hereto, constitutes the entire agreement and understanding between the Company and Executive with respect to the subject matter hereof and supersedes all prior agreements and understandings (whether written or oral), between Executive and the Company, relating to such subject matter, including, without limitation, the Employment Agreement between IEA Management Services, Inc. and Executive dated as of March 2, 2015, is hereby superseded and nullified in its entirety effective on the Effective Date.  None of the parties shall be liable or bound to any other party in any manner by any representations and warranties or covenants relating to such subject matter except as specifically set forth herein. Notwithstanding the foregoing, the Company intends to enter into a separate standard indemnification agreement with the Executive.

 

22.                                Survival .  The rights and obligations of the parties under the provisions of this Agreement shall survive, and remain binding and enforceable, notwithstanding the expiration of the Term, the termination of this Agreement, the termination of Executive’s employment hereunder or any settlement of the financial rights and obligations arising from Executive’s employment hereunder, to the extent necessary to preserve the intended benefits of such provisions.

 

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23.                                Notices .  All notices or other communications required or permitted to be given hereunder shall be in writing and shall be delivered by hand or sent by facsimile or electronic image scan (pdf) or sent, postage prepaid, by registered, certified or express mail or overnight courier service and shall be deemed given when so delivered by hand or facsimile, or if mailed, three days after mailing (one business day in the case of express mail or overnight courier service) to the parties at the following addresses or facsimiles or email addresses (or at such other address for a party as shall be specified by like notice):

 

If to the Company:

 

IEA Energy Services LLC

 

 

c/o GFI Energy Group of Oaktree Capital Management, L.P.

 

 

11611 San Vicente Boulevard, Suite 710

 

 

Los Angeles, CA 90049

 

 

Attention:

Ian Schapiro

 

 

 

Peter Jonna

 

 

Fax:

(310) 422-0540

 

 

Email:

ischapiro@oaktreecapital.com

 

 

 

pjonna@oaktreecapital.com

 

 

 

With a copy (which shall not constitute notice hereunder) to:

 

 

 

 

 

Paul, Weiss, Rifkind, Wharton & Garrison LLP

 

 

1285 Avenue of the Americas

 

 

New York, NY 10019-6064

 

 

Fax: (212) 492 0241

 

 

Attention: Ellen Ching

 

 

Email: eching@paulweiss.com

 

 

 

If to Executive:

 

At the most recent address and fax or email in Company personnel records

 

Notices delivered by facsimile shall have the same legal effect as if such notice had been delivered in person.

 

24.                                Headings and References .  The headings of this Agreement are inserted for convenience only and neither constitute a part of this Agreement nor affect in any way the meaning or interpretation of this Agreement.  When a reference in this Agreement is made to a Section, such reference shall be to a Section of this Agreement unless otherwise indicated.

 

25.                                Counterparts .  This Agreement may be executed in one or more counterparts (including via facsimile and electronic image scan (pdf)), each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.

 

26.                                Section 409A .

 

(a)                                  For purposes of this Agreement, “ Section 409A ” means Section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”), and the Treasury Regulations promulgated thereunder (and such other Treasury or Internal Revenue Service guidance) as in effect from time to time.

 

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The parties intend that any amounts payable hereunder that could constitute “deferred compensation” within the meaning of Section 409A will be compliant with Section 409A or exempt from Section 409A.  Notwithstanding the foregoing, the Company shall not be liable to, and the Executive shall be solely liable and responsible for, any taxes or penalties that may be imposed on such Executive under Section 409A of the Code with respect to Executive’s receipt of payments hereunder.

 

(b)                                  Notwithstanding anything in this Agreement to the contrary, the following special rule shall apply, if and to the extent required by Section 409A, in the event that (i) Executive is deemed to be a “specified employee” within the meaning of Section 409A(a)(2)(B)(i), (ii) amounts or benefits under this Agreement or any other program, plan or arrangement of the Company or a controlled group affiliate thereof are due or payable on account of “separation from service” within the meaning of Treasury Regulations Section 1.409A-1(h) and (iii) Executive is employed by a public company or a controlled group affiliate thereof:  no payments hereunder that are “deferred compensation” subject to Section 409A shall be made to Executive prior to the date that is six (6) months after the date of Executive’s separation from service or, if earlier, Executive’s date of death; following any applicable six (6) month delay, all such delayed payments will be paid in a single lump sum on the earliest permissible payment date.

 

(c)                                   Any payment or benefit due upon a termination of Executive’s employment that represents a “deferral of compensation” within the meaning of Section 409A shall commence to be paid or provided to Executive 61 days following a “separation from service” as defined in Treas. Reg. § 1.409A-1(h), provided that Executive executes, if required by Section 4(d), the release described therein, within 60 days following his “separation from service.”  Each payment made under this Agreement (including each separate installment payment in the case of a series of installment payments) shall be deemed to be a separate payment for purposes of Section 409A.  Amounts payable under this Agreement shall be deemed not to be a “deferral of compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation §§ 1.409A-1(b)(4) (“short-term deferrals”) and (b)(9) (“separation pay plans,” including the exception under subparagraph (iii)) and other applicable provisions of Section 409A.  For purposes of this Agreement, with respect to payments of any amounts that are considered to be “deferred compensation” subject to Section 409A, references to “termination of employment”, “termination”, or words and phrases of similar import, shall be deemed to refer to Executive’s “separation from service” as defined in Section 409A, and shall be interpreted and applied in a manner that is consistent with the requirements of Section 409A.

 

(d)                                  Notwithstanding anything to the contrary in this Agreement, any payment or benefit under this Agreement or otherwise that is exempt from Section 409A pursuant to Treasury Regulation § 1.409A-1(b)(9)(v)(A) or (C) (relating to certain reimbursements and in-kind benefits) shall be paid or provided to Executive only to the extent that the expenses are not incurred, or the benefits are not provided, beyond the last day of the second calendar year following the calendar year in which Executive’s “separation from service” occurs; and provided further that such expenses are reimbursed no later than the last day of the third calendar year following the calendar year in which Executive’s “separation from service” occurs.  To the extent any indemnification payment, expense reimbursement, or the provision of any in-kind benefit is determined to be subject to Section 409A (and not exempt pursuant to the prior sentence or otherwise), the amount of any such indemnification payment or expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the indemnification payment or provision of in-kind benefits or expenses eligible for reimbursement in any other calendar year (except for any life-time or other aggregate limitation applicable to medical expenses), and in no event shall any indemnification payment or expenses be reimbursed after the last day of the calendar year following the calendar year in which Executive incurred

 

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such indemnification payment or expenses, and in no event shall any right to indemnification payment or reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.  Any tax gross-up payment or benefit under this Agreement will be treated as providing for payment at a specified time or on a fixed schedule of payments to the extent that the payment is made by the end of Executive’s taxable year next following Executive’s taxable year in which Executive remits the related taxes.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties as of the date first written above.

 

 

IEA Energy Services LLC

 

 

 

By:

 

 

Name:

Andrew D. Layman

 

Title:

Authorized Signatory

 

 

 

JOHN PAUL ROEHM

 

 

 

 

 

[signature page to Roehm Employment Agreement]

 


Exhi bit 10.7

 

This EMPLOYMENT AGREEMENT (this “ Agreement ”) dated as of January 25th, 2018, between IEA Energy Services LLC, a Delaware limited liability company (the “ Company ”), and Andrew D. Layman (“ Executive ”).

 

WHEREAS,  IEA Energy Services LLC entered into that certain Agreement and Plan of Merger, dated on November 3, 2017, by and among IEA Energy Services LLC, M III Acquisition Corp., Infrastructure and Energy Alternatives, LLC, and Oaktree Power Opportunities Fund III Delaware, L.P., as amended from time to time (the “ Merger Agreemen t”); and

 

WHEREAS, the Company and Executive desire to enter into this employment agreement (this “ Agreement ”) pursuant to the terms, provisions and conditions set forth herein, which will govern the terms of Executive’s employment with the Company following the closing of the transaction contemplated by the Merger Agreement (the “ Closing ”).

 

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, and intending to be legally bound hereby, the parties hereto agree as set forth below:

 

1.                                       Term .  (a)  The term of Executive’s employment under this Agreement shall be effective on the Closing (the “ Effective Date ”), and shall continue until the third (3rd) anniversary thereof (the “ Initial Expiration Date ”), provided that on the Initial Expiration Date and each subsequent anniversary of the Initial Expiration Date, the term of Executive’s employment under this Agreement shall be automatically extended for one additional year unless either party provides written notice to the other party at least ninety (90) days prior to the Initial Expiration Date (or any such anniversary, as applicable) that Executive’s employment hereunder shall not be so extended (in which case Executive’s employment and this Agreement shall terminate on the Initial Expiration Date or expiration of the extended term, as applicable); provided , however , that Executive’s employment and this Agreement may be terminated earlier at any time pursuant to the provisions of Section 4; provided , further , that this Agreement shall be null and void ab initio and of no further force or effect if the Merger Agreement is terminated prior to the Closing or if the Closing does not occur.  The period of time from the Effective Date through the termination of this Agreement and Executive’s employment hereunder pursuant to its terms is herein referred to as the “ Term ”; and the date on which the Term is scheduled to expire (i.e., the Initial Expiration Date or the scheduled expiration of the extended term, if applicable) is herein referred to as the “ Expiration Date ”.

 

(b)                                  Executive agrees and acknowledges that the Company has no obligation to extend the Term or to continue Executive’s employment following the Expiration Date, and Executive expressly acknowledges that no promises or understandings to the contrary have been made or reached.  Executive also agrees and acknowledges that, should Executive and the Company choose to continue Executive’s employment for any period of time following the Expiration Date without extending the term of Executive’s employment under this Agreement or entering into a new written employment agreement, Executive’s employment with the Company shall be “at will”, such that the Company may terminate Executive’s employment at any time, with or without reason and with or without notice, and Executive may resign at any time, with or without reason and with or without notice.

 

(c)                                   For purposes of this Agreement, the following terms, as used herein, shall have the definitions set forth below.

 



 

Affiliate ” means, with respect to any specified Person, any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such specified Person, provided that, in any event, any business in which the Company has any direct or indirect ownership interest shall be treated as an Affiliate of the Company.

 

Control ” (including, with correlative meanings, the terms “Controlled by” and “under common Control with”), as used with respect to any Person, means the direct or indirect possession of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

 

Governmental Entity ” means any national, state, county, local, municipal or other government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality.

 

Person ” means any individual, firm, corporation, partnership, limited liability company, trust, joint venture, association, Governmental Entity, unincorporated entity or other entity.

 

2.                                       Duties and Responsibilities .  (a)  During the Term, Executive agrees to be employed and devote substantially all of Executive’s business time and efforts to the Company and the promotion of its interests and the performance of Executive’s duties and responsibilities hereunder as Chief Financial Officer, upon the terms and conditions of this Agreement.  Executive shall perform such lawful duties and responsibilities as directed from time to time by the Chief Executive Officer of the Company (“ CEO ”), or the Board of Directors of the Company (the “ Board ”) that are customary for a Chief Financial Officer.

 

(b)                                  During the Term, Executive shall report directly to the CEO or his designee, or in the absence thereof the Board.  Executive acknowledges that Executive’s duties and responsibilities may require Executive to travel on business to the extent necessary to fully perform Executive’s duties and responsibilities hereunder.  It is anticipated that Executive shall physically be on Company premises (or traveling on Company business) during normal business hours (unless absent due to vacation, injury, illness or other approved leave of absence).  The Executive will serve as an officer and director of subsidiaries and affiliates, but shall not be entitled to any additional compensation for such board service while employed by the Company.

 

(c)                                   During the Term, Executive shall use Executive’s best efforts to faithfully and diligently serve the Company and shall not act in any capacity that is in conflict with Executive’s duties and responsibilities hereunder; provided , however , Executive may manage Executive’s personal investments and affairs and participate in non-profit, educational, charitable and civic activities, to the extent that such activities do not interfere with the performance of Executive’s duties hereunder, and are not in conflict with the business interests of the Company or its Affiliates or otherwise compete with the Company or its Affiliates.  Except as provided in the immediately preceding sentence, for the avoidance of doubt, during the Term Executive shall not be permitted to become engaged in or render services for any Person other than the Company and its Affiliates, and shall not be permitted to be a member of the board of directors of any company, in any case without the prior consent of the Company (for all purposes under this Agreement, any required consent of the Company shall be evidenced by a duly authorized resolution of the Board).

 

3.                                       Compensation and Related Matters .  (a)  Base Salary .  During the Term, for all services rendered under this Agreement, Executive shall receive an annualized base salary (“ Base Salary ”) at a rate of three hundred and three thousand dollars ($303,000), payable in accordance with the

 

2



 

Company’s applicable payroll practices; provided that, effective on the later of January 1, 2018 or the Effective Date, Base Salary shall be increased to three hundred fifty one thousand five hundred dollars ($351,500) and effective on the later of January 1, 2019 or the Effective Date, Base Salary shall be increased to four hundred thousand dollars ($400,000).  References in this Agreement to “ Base Salary ” shall be deemed to refer to the most recently effective annual base salary rate. For years after 2019, the Company will review the Base Salary approximately annually during the Term to determine, at the discretion of the Company, whether the Base Salary should be increased and, if so, the amount of such increase and time at which it should take effect.

 

(b)                                  Annual Bonus .

 

(i)                                      During the Term, subject to Section 4(b), for each calendar year, Executive shall have the opportunity to earn an annual bonus (“ Annual Bonus ”) based on performance against specified objective (including budgetary or EBITDA-based) performance criteria (“ Performance Goals ”) established by the Board prior to or as soon as practicable following the start of each calendar year, subject to Executive’s continued employment through December 31 of each such calendar year (except as otherwise provided in Section 4).  The Annual Bonus shall be equal to seventy five percent (75%)  of Base Salary if the Company achieves its Performance Goals (the “ Target Bonus ”), with the opportunity for an Annual Bonus in excess of the Target Bonus for performance that exceeds additional Performance Goals established by the Board.

 

(c)                                   Equity .   After the Effective Date, the Company intends to grant Executive options to acquire common stock of the Company with annual vesting over a four (4) year period, subject to Executive’s continued employment; provided , however , that the grant of equity pursuant to this Section 3(c) shall be subject to the approval by the compensation committee of the Board following the Effective Date (with the intent for the grants to occur within one hundred twenty (120) days after the Effective Date) and such other terms and conditions as determined by such compensation committee.

 

(d)                                  Benefits and Perquisites .  During the Term, Executive shall be entitled to participate in the benefit plans and programs commensurate with Executive’s position, that are provided by the Company from time to time for its senior executives generally, subject to the terms and conditions of such plans which may be amended, modified, or terminated by the Company.

 

(e)                                   Business Expense Reimbursements .  During the Term, the Company shall promptly reimburse Executive for Executive’s reasonable and necessary business expenses incurred in connection with performing Executive’s duties hereunder in accordance with its then prevailing policies and procedures for expense reimbursement (which shall include appropriate itemization and substantiation of expenses incurred).

 

(f)                                    Vacation .  During the Term, Executive shall be entitled to four (4) weeks paid vacation each calendar year, in accordance with the Company’s vacation policy to be taken at such times as may be mutually agreed by Executive and the Company.

 

4.                                       Termination of Employment .  (a)  Executive’s employment may be terminated by either party at any time and for any reason; provided , however , that Executive shall be required to give the Company at least sixty (60) days advance written notice of any voluntary resignation of Executive’s employment hereunder (and in such event the Company in its sole discretion may elect to accelerate Executive’s date of termination of employment, it being understood that such termination shall still be

 

3



 

treated as a voluntary resignation for purposes of this Agreement).  Notwithstanding the foregoing, Executive’s employment shall automatically terminate upon Executive’s death.

 

(b)                                  Following any termination of Executive’s employment, notwithstanding any provision to the contrary in this Agreement, the obligations of the Company to pay or provide Executive with compensation and benefits under Section 3 shall cease, and the Company shall have no further obligations to provide compensation or benefits to Executive hereunder except (i) for payment of (w) any accrued but unpaid Base Salary through the date of termination, (x) any earned and unpaid Annual Bonus for the year prior to the year in which termination occurs, and (y) any unreimbursed expenses under Section 3(e), in each case accrued or incurred through the date of termination of employment, payable as soon as practicable and in all events within thirty (30) days following termination of employment, (ii) as explicitly set forth in any other benefit plans, programs or arrangements applicable to terminated employees in which Executive participates, other than severance plans or policies, and (iii) as otherwise expressly required by applicable law (collectively, the “ Accrued Obligations ”).

 

(c)                                   Except as otherwise provided herein, if Executive’s employment is terminated (I) by the Company without Cause or due to the Company’s election not to extend the Term beyond the scheduled expiration of the Term on the Expiration Date as contemplated under Section 1(a), or (II) by the Executive for Good Reason, then Executive, in addition to the Accrued Obligations, shall be entitled to receive (A) Executive’s Base Salary as in effect on the date of termination paid in twelve (12) equal monthly installments during the twelve (12) month period immediately following such termination, and (B) if an Annual Bonus would otherwise have been payable to Executive under Section 3(b) above for the year in which Executive’s employment terminates had Executive remained employed, a prorated portion of that Annual Bonus amount (prorated by a fraction, the numerator of which is the number of days that have elapsed in the calendar year as of the date of employment termination, and the denominator of which is 365), payable at the time the Annual Bonus would otherwise have been payable had Executive remained employed (collectively, the “ Severance Payments ”).

 

(d)                                  Any payments or benefits under Section 4(c) shall be (A) conditioned upon Executive and the Company having executed an irrevocable waiver and general release of claims in the Company’s customary form (the “ Release ”) that has become effective in accordance with its terms within sixty (60) days after the date of termination, (B) subject to Executive’s continued compliance with the terms of this Agreement and (C) subject to Section 26.

 

(e)                                   For purposes of this Agreement, “ Cause ” means:  (A) the Executive’s substantial and repeated failure to perform duties as reasonably directed by the Board (not as a consequence of Disability) after written notice thereof and failure to cure within ten (10) days; (B) the Executive’s misappropriation or fraud with regard to the Company or its Affiliates or their respective assets; (C) conviction of, or the pleading of guilty or nolo contendere to, a felony, or any other crime involving either fraud or a breach of the Executive’s duty of loyalty with respect to the Company or any Affiliates thereof, or any of its customers or suppliers that results in material injury to the Company or any of its Affiliates; (D) the Executive’s violation of the written policies of the Company or any of its Affiliates, or other misconduct in connection with the performance of his duties that in either case results in material injury to the Company or any of its Affiliates, after written notice thereof and failure to cure within ten (10) days; or (E) the Executive’s breach of any material provision of this Agreement, including without limitation the confidentiality and non-disparagement provisions and the non-competition and non-solicitation provisions to which the Executive is subject, including without limitation Sections 5 and 6 hereof.  For the avoidance of doubt, Executive will have no cure right if Executive is not reasonably capable of prompt cure.

 

4



 

(f)                                    For purposes of this Agreement, “ Disability ” means Executive would be entitled to long-term disability benefits under the Company’s long-term disability plan as in effect from time to time, without regard to any waiting or elimination period under such plan and assuming for the purpose of such determination that Executive is actually participating in such plan at such time.  If the Company does not maintain a long-term disability plan, “ Disability ” means Executive’s inability to perform Executive’s duties and responsibilities hereunder due to physical or mental illness or incapacity that is expected to last for a consecutive period of ninety (90) days or for a period of one hundred twenty (120) days in any three hundred sixty five (365) day period as determined by the Board in its good faith judgment.

 

(g)                                   For purposes of this Agreement, “ Good Reason ” shall mean the occurrence of any of the following events without Executive’s prior express written consent: (A) any reduction in Executive’s Base Salary or Target Bonus percentage, or any material diminution in Executive’s authorities, titles or offices, or the assignment to him of duties that materially impair his ability to perform the duties normally assigned to an Chief Financial Officer of a corporation of the size and nature of the Company; (B) any relocation of Executive’s principal place of employment, to a location more than seventy-five (75) miles from the Executive’s principal place of employment on the date hereof; or (C) any material breach by the Company, or any of its Affiliates, of any material obligation to Executive; provided however , that prior to resigning for Good Reason, Executive shall give written notice to the Company of the facts and circumstances claimed to provide a basis for such resignation not more than thirty (30) days following his knowledge of such facts and circumstances, and the Company shall have thirty (30) days after receipt of such notice to cure such facts and circumstances (and if so cured then Executive shall not be permitted to resign for Good Reason in respect thereof).

 

(h)                                  Upon termination of Executive’s employment for any reason, upon the Company’s request Executive agrees to resign, as of the date of such termination of employment or such other date requested, from the Board and any committees thereof (and, if applicable, from the board of directors (and any committees thereof) of any Affiliate of the Company) to the extent Executive is then serving thereon and Executive agrees to execute any documents reasonably required to effectuate the foregoing.

 

(i)                                      The payment of any amounts accrued under any benefit plan, program or arrangement in which Executive participates shall be subject to the terms of the applicable plan, program or arrangement, and any elections Executive has made thereunder.  Except as prohibited by the terms of any Company benefit plan, program or arrangement, the Company may offset any amounts due and payable by Executive to the Company or its subsidiaries against any amounts the Company owes Executive hereunder; provided, however, no offsets shall be permitted against amounts that constitute deferred compensation subject to Section 409A.  Except as set forth in this Section 4(i), Executive shall be under no obligation to seek other employment or to otherwise mitigate the obligations of the Company under this Agreement, and there shall be no offset against amounts or benefits due to Executive under this Agreement or otherwise on account of any claim (other than any preexisting debts then due in accordance with their terms) the Company or its affiliates may have against him or any remuneration or other benefit earned or received by the Executive after such termination.

 

5.                                       Noncompetition and Nonsolicitation .  For purposes of Sections 5, 6, 7, 8, 9, 10 and 11 of this Agreement, references to the Company shall include its subsidiaries and Affiliates.

 

(a)                                  Executive agrees that Executive shall not, while an employee of the Company and during the eighteen (18) month period following termination of employment (such

 

5



 

collective duration, the “ Restriction Period ”), directly or indirectly, without the prior written consent of the Company:

 

(i)                                      (A) engage in activities or businesses (including without limitation by owning any interest in, managing, controlling, participating in, consulting with, advising, rendering services for, or in any manner engaging in the business of owning, operating or managing any business) anywhere in the United States or other countries outside the United States in which the Company does business, that are principally or primarily engaged in any business or activity that competes with any of the businesses of the Company  or any of its subsidiaries or controlled affiliates or any entity owned by the Company (“ Competitive Activities”) or (B) assisting any Person in any way to do, or attempt to do, anything prohibited by this Section 5(a)(i)(A) above; or

 

(ii)                                   perform any action, activity or course of conduct which is substantially detrimental to the businesses or business reputations of the Company, and involves (A) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the Company or Persons who have worked for the Company during the twelve (12) month period immediately preceding such solicitation, recruitment or hiring or attempt thereof; (B) soliciting or encouraging (or attempting to solicit or encourage) any employee of the Company to leave the employment of the Company; (C) intentionally interfering with the relationship of the Company with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, licensee, licensor or other business relation of, the Company; or (D) assisting any Person in any way to do, or attempt to do, anything prohibited by Section 5(a)(ii)(A), (B) or (C) above.

 

The Restriction Period shall be tolled during (and shall be deemed automatically extended by) any period in which Executive is in violation of the provisions of this Section 5(a) unless provided below.

 

(b)                                  The provisions of Section 5(a) shall not be deemed breached as a result of Executive’s passive ownership of less than an aggregate of three percent (3%) of any class of securities of a Person engaged, directly or indirectly, in Competitive Activities, so long as Executive does not actively participate in the business of such Person; provided , however , that such stock is listed on a national securities exchange (for the sake of clarity, Executive shall remain bound by the other restrictive covenants in this agreement, including but not limited to Section 6 hereof).

 

(c)                                   Without limiting the generality of Section 11, notwithstanding the fact that any provision of this Section 5 is determined not to be specifically enforceable, the Company may nevertheless be entitled to recover monetary damages as a result of Executive’s material breach of such provision.

 

(d)                                  Executive acknowledges that the Company has a legitimate business interest and right in protecting its Confidential Information (as defined below), business strategies, employee and customer relationships and goodwill, and that the Company would be seriously damaged by the disclosure of Confidential Information and the loss or deterioration of its business strategies, employee and customer relationships and goodwill.  Executive acknowledges that Executive is being provided with significant additional consideration (to which Executive is not otherwise entitled), including stock options and restricted stock, to induce Executive to enter into this Agreement.  Executive expressly acknowledges and agrees that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area.  Executive further acknowledges that although Executive’s compliance with the covenants contained in Sections 5, 6, 7, 8 and 9 may prevent Executive from earning a livelihood in a business similar to the business of the Company, Executive’s

 

6



 

experience and capabilities are such that Executive has other opportunities to earn a livelihood and adequate means of support for Executive and Executive’s dependents.

 

6.                                       Nondisclosure of Confidential Information .

 

(a)                                  Executive acknowledges that Executive is and shall become familiar with the Company’s Confidential Information (as defined below), including trade secrets, and that Executive’s services are of special, unique and extraordinary value to the Company.  Executive acknowledges that the Confidential Information obtained by Executive while employed by the Company is the property of the Company.  Therefore, Executive agrees that Executive shall not disclose to any unauthorized Person or use for Executive’s own purposes any Confidential Information without the prior written consent of the Company, unless and to the extent that the aforementioned matters become generally known to and available for use by the public other than as a result of Executive’s acts or omissions in violation of this Agreement; provided , however , that if Executive receives a request to disclose Confidential Information pursuant to a deposition, interrogatory, request for information or documents in legal proceedings, subpoena, civil investigative demand, governmental or regulatory process or similar process, to the extent permitted by law, (i) Executive shall promptly notify in writing the Company, and consult with and assist the Company in seeking a protective order or request for other appropriate remedy, (ii) in the event that such protective order or remedy is not obtained, or if the Company waives compliance with the terms hereof, Executive shall disclose only that portion of the Confidential Information which, in the written opinion of Executive’s legal counsel, is legally required to be disclosed and shall exercise reasonable best efforts to provide that the receiving Person shall agree to treat such Confidential Information as confidential to the extent possible (and permitted under applicable law) in respect of the applicable proceeding or process and (iii) the Company shall be given an opportunity to review the Confidential Information prior to disclosure thereof.

 

(b)                                  For purposes of this Agreement, “ Confidential Information ” means information, observations and data concerning the business or affairs of the Company, including, without limitation, all business information (whether or not in written form) which relates to the Company, or its customers, suppliers or contractors or any other third parties in respect of which the Company has a business relationship or owes a duty of confidentiality, or their respective businesses or products, and which is not known to the public generally other than as a result of Executive’s breach of this Agreement, including but not limited to: technical information or reports; formulas; trade secrets; unwritten knowledge and “know-how”; operating instructions; training manuals; customer lists; customer buying records and habits; product sales records and documents, and product development, marketing and sales strategies; market surveys; marketing plans; profitability analyses; product cost; long-range plans; information relating to pricing, competitive strategies and new product development; information relating to any forms of compensation or other personnel-related information; contracts; and supplier lists. Confidential Information will not include such information known to Executive prior to Executive’s involvement with the Company or information rightfully obtained from a third party (other than pursuant to a breach by Executive of this Agreement).  Without limiting the foregoing, Executive agrees to keep confidential the existence of, and any information concerning, any dispute between Executive and the Company, except that Executive may disclose information concerning such dispute to his immediate family, to the court that is considering such dispute or to Executive’s legal counsel and other professional advisors (provided that such counsel and other advisors agree not to disclose any such information other than as necessary to the prosecution or defense of such dispute).

 

(c)                                   Executive further agrees that Executive will not improperly use or disclose any confidential information or trade secrets, if any, of any former employers or any other Person to whom Executive has an obligation of confidentiality, and will not bring onto the premises of the

 

7



 

Company any unpublished documents or any property belonging to any former employer or any other Person to whom Executive has an obligation of confidentiality unless consented to in writing by the former employer or other Person.

 

7.                                       Return of Property .  Executive acknowledges that all notes, memoranda, specifications, devices, formulas, records, files, lists, drawings, documents, models, equipment, property, computer, software or intellectual property relating to the businesses of the Company, in whatever form (including electronic), and all copies thereof, that are received or created by Executive while an employee of the Company or its subsidiaries or Affiliates (including but not limited to Confidential Information and Inventions (as defined below)) are and shall remain the property of the Company, and Executive shall immediately return such property to the Company upon the termination of Executive’s employment and, in any event, at the Company’s request.  Executive further agrees that any property situated on the premises of, and owned by, the Company, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by the Company’s personnel at any time with or without notice.

 

8.                                       Intellectual Property Rights .

 

(a)                                  Executive agrees that the results and proceeds of Executive’s services for the Company (including, but not limited to, any trade secrets, products, services, processes, know-how, designs, developments, innovations, analyses, drawings, reports, techniques, formulas, methods, developmental or experimental work, improvements, discoveries, inventions, ideas, source and object codes, programs, matters of a literary, musical, dramatic or otherwise creative nature, writings and other works of authorship) resulting from services performed while an employee of the Company and any works in progress, whether or not patentable or registrable under copyright or similar statutes, that were made, developed, conceived or reduced to practice or learned by Executive, either alone or jointly with others (collectively, “ Inventions ”), shall be works-made-for-hire and the Company shall be deemed the sole owner throughout the universe of any and all trade secret, patent, copyright and other intellectual property rights (collectively, “ Proprietary Rights ”) of whatsoever nature therein, whether or not now or hereafter known, existing, contemplated, recognized or developed, with the right to use the same in perpetuity in any manner the Company determines in its sole discretion, without any further payment to Executive whatsoever.  If, for any reason, any of such results and proceeds shall not legally be a work-made-for-hire and/or there are any Proprietary Rights which do not accrue to the Company under the immediately preceding sentence, then Executive hereby irrevocably assigns and agrees to assign any and all of Executive’s right, title and interest thereto, including any and all Proprietary Rights of whatsoever nature therein, whether or not now or hereafter known, existing, contemplated, recognized or developed, to the Company, and the Company shall have the right to use the same in perpetuity throughout the universe in any manner determined by the Company without any further payment to Executive whatsoever.  As to any Invention that Executive is required to assign, Executive shall promptly and fully disclose to the Company all information known to Executive concerning such Invention.

 

(b)                                  Executive agrees that, from time to time, as may be requested by the Company and at the Company’s sole cost and expense, Executive shall do any and all things that the Company may reasonably deem useful or desirable to establish or document the Company’s exclusive ownership throughout the United States of America or any other country of any and all Proprietary Rights in any such Inventions, including the execution of appropriate copyright and/or patent applications or assignments.  To the extent Executive has any Proprietary Rights in the Inventions that cannot be assigned in the manner described above, Executive unconditionally and irrevocably waives the enforcement of such Proprietary Rights.  This Section 8(b) is subject to and shall not be deemed to limit, restrict or constitute any waiver by the Company of any Proprietary Rights of ownership to which the Company may be entitled by operation of law by virtue of the Company’s being Executive’s employer.

 

8



 

Executive further agrees that, from time to time, as may be requested by the Company and at the Company’s sole cost and expense, Executive shall assist the Company in every proper and lawful way to obtain and from time to time enforce Proprietary Rights relating to Inventions in any and all countries.  Executive shall execute, verify and deliver such documents and perform such other acts (including appearances as a witness) as the Company may reasonably request for use in applying for, obtaining, perfecting, evidencing, sustaining, and enforcing such Proprietary Rights and the assignment thereof.  In addition, Executive shall execute, verify and deliver assignments of such Proprietary Rights to the Company or its designees.  Executive’s obligations under this Section 8 shall continue beyond the termination of Executive’s employment with the Company.

 

(c)                                   Executive hereby waives and quitclaims to the Company any and all claims, of any nature whatsoever, that Executive now or may hereafter have for infringement of any Proprietary Rights assigned hereunder to the Company.

 

9.                                       Nondisparagement .  Executive shall not, whether in writing or orally, malign, denigrate or disparage the Company or its predecessors and successors, or any of the current or former directors, officers, employees, shareholders, partners, members, agents or representatives of any of the foregoing, with respect to any of their respective past or present activities, or otherwise publish (whether in writing or orally) statements that tend to portray any of the aforementioned parties in an unfavorable light; provided that nothing herein shall or shall be deemed to prevent or impair Executive from, in the course of and consistent with his duties for the Company, making public comments which include good faith, candid discussions, or acknowledgements regarding the Company’s performance or business, or discussing other officers, directors, and employees in connection with normal performance evaluations, or otherwise testifying truthfully in any legal or administrative proceeding where such testimony is compelled, or requested or from otherwise complying with legal requirements.

 

10.                                Notification of Subsequent Employer .  Executive hereby agrees that prior to accepting employment with, or agreeing to provide services to, any other Person during any period during which Executive remains subject to any of the covenants set forth in Section 5, Executive shall provide such prospective employer with written notice of such provisions of this Agreement, with a copy of such notice delivered simultaneously to the Company.

 

11.                                Remedies and Injunctive Relief .  Executive acknowledges that a violation by Executive of any of the covenants contained in Section 5, 6, 7, 8 or 9 would cause irreparable damage to the Company in an amount that would be material but not readily ascertainable, and that any remedy at law (including the payment of damages) would be inadequate.  Accordingly, Executive agrees that, notwithstanding any provision of this Agreement to the contrary, the Company shall be entitled (without the necessity of showing economic loss or other actual damage) to injunctive relief (including temporary restraining orders, preliminary injunctions and/or permanent injunctions) in any court of competent jurisdiction for any actual or threatened breach of any of the covenants set forth in Section 5, 6, 7, 8 or 9 in addition to any other legal or equitable remedies it may have.  The preceding sentence shall not be construed as a waiver of the rights that the Company may have for damages under this Agreement or otherwise, and all of the Company’s rights shall be unrestricted.

 

12.                                Representations of Executive; Advice of Counsel .  (a)  Executive represents, warrants and covenants that as of the date hereof:  (i) Executive has the full right, authority and capacity to enter into this Agreement and perform Executive’s obligations hereunder, (ii) Executive is not bound by any agreement that conflicts with or prevents or restricts the full performance of Executive’s duties and obligations to the Company hereunder during or after the Term and (iii) the execution and delivery of

 

9



 

this Agreement shall not result in any breach or violation of, or a default under, any existing obligation, commitment or agreement to which Executive is subject.

 

(b)                                  Executive represents that, prior to execution of this Agreement, Executive has been advised by an attorney of Executive’s own selection regarding this Agreement.  Executive acknowledges that Executive has entered into this Agreement knowingly and voluntarily and with full knowledge and understanding of the provisions of this Agreement after being given the opportunity to consult with counsel.  Executive further represents that in entering into this Agreement, Executive is not relying on any statements or representations made by any of the Company’s directors, officers, employees or agents which are not expressly set forth herein, and that Executive is relying only upon Executive’s own judgment and any advice provided by Executive’s attorney.

 

13.                                Cooperation .  Executive agrees that, upon reasonable notice and without the necessity of the Company obtaining a subpoena or court order, Executive shall provide reasonable cooperation in connection with any suit, action or proceeding (or any appeal from any suit, action or proceeding), and any investigation and/or defense of any claims asserted against any of Executive and the Company, its respective Affiliates, their respective predecessors and successors, and all of the respective current or former directors, officers, employees, shareholders, partners, members, agents or representatives of any of the foregoing, which relates to events occurring during Executive’s employment with the Company and its Affiliates as to which Executive may have relevant information (including but not limited to furnishing relevant information and materials to the Company or its designee and/or providing testimony at depositions and at trial), provided that with respect to such cooperation occurring following termination of employment, the Company shall reimburse Executive for expenses reasonably incurred in connection therewith, and further provided that any such cooperation occurring after the termination of Executive’s employment shall be scheduled to the extent reasonably practicable so as not to unreasonably interfere with Executive’s business or personal affairs.

 

14.                                Withholding Taxes .  The Company may deduct and withhold from any amounts payable under this Agreement such Federal, state, local, non-U.S. or other taxes as are required or permitted to be withheld pursuant to any applicable law or regulation.

 

15.                                Assignment .  (a)  This Agreement is personal to Executive and without the prior written consent of the Company shall not be assignable by Executive, except for the assignment by will or the laws of descent and distribution of any accrued pecuniary interest of Executive, and any assignment in violation of this Agreement shall be void.  The Company may assign this Agreement, and its rights and obligations hereunder, to any of its Affiliates.

 

(b)                                  This Agreement shall be binding on, and shall inure to the benefit of, the parties to it and their respective heirs, legal representatives, successors and permitted assigns (including, without limitation, successors by merger, consolidation, sale or similar transaction, and, in the event of Executive’s death, Executive’s estate and heirs in the case of any payments due to Executive hereunder).

 

(c)                                   Executive acknowledges and agrees that all of Executive’s covenants and obligations to the Company, as well as the rights of the Company hereunder, shall run in favor of and shall be enforceable by the Company and its successors and assigns.

 

16.                                Protected Rights

 

Notwithstanding any other provision in this Agreement or any other agreement that Executive may have entered with the Company prior to the date hereof, including, but not limited to, any

 

10



 

prior employment agreement (collectively, the “Agreements”), nothing contained in any of the Agreements (i) prohibit Executive from reporting to the staff of the SEC possible violations of any law or regulation of the SEC, (ii) prohibit Executive from making other disclosures to the staff of the SEC that are protected under the whistleblower provisions of any federal securities laws or regulations or (iii) limit Executive’s right to receive an award for information provided to the SEC staff in accordance with the foregoing. Please note that Executive does not need the prior authorizations of the Company to engage in such reports, communications or disclosures and Executive is not required to notify the Company if Executive engages in any such reports, communications or disclosures.

 

17.                                Governing Law; No Construction Against Drafter .  This Agreement shall be deemed to be made in the State of Delaware, and the validity, interpretation, construction, and performance of this Agreement in all respects shall be governed by the laws of the State of Delaware without regard to its principles of conflicts of law.  No provision of this Agreement or any related document will be construed against or interpreted to the disadvantage of any party hereto by any court or other governmental or judicial authority by reason of such party having or being deemed to have structured or drafted such provision.

 

18.                                Consent to Jurisdiction; Waiver of Jury Trial .  (a)  Except as otherwise specifically provided herein, Executive and the Company each hereby irrevocably submits to the exclusive jurisdiction of the United States District Court for the Southern District of Indiana, Indianapolis Division (or, if subject matter jurisdiction in that court is not available, in any state court located within the State of Indiana) over any dispute arising out of or relating to this Agreement.  Except as otherwise specifically provided in this Agreement, the parties undertake not to commence any suit, action or proceeding arising out of or relating to this Agreement in a forum other than a forum described in this Section 18(a); provided , however , that nothing herein shall preclude the Company from bringing any suit, action or proceeding in any other court for the purposes of enforcing the provisions of this Section 18 or enforcing any judgment obtained by the Company.

 

(b)                                  The agreement of the parties to the forum described in Section 18(a) is independent of the law that may be applied in any suit, action, or proceeding and the parties agree to such forum even if such forum may under applicable law choose to apply non-forum law.  The parties hereby waive, to the fullest extent permitted by applicable law, any objection which they now or hereafter have to personal jurisdiction or to the laying of venue of any such suit, action or proceeding brought in an applicable court described in Section 18(a), and the parties agrees that they shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court.  The parties agree that, to the fullest extent permitted by applicable law, a final and non-appealable judgment in any suit, action or proceeding brought in any applicable court described in Section 18(a) shall be conclusive and binding upon the parties and may be enforced in any other jurisdiction.

 

(c)                                   The parties hereto irrevocably consent to the service of any and all process in any suit, action or proceeding arising out of or relating to this Agreement by the mailing via certified mail of copies of such process to such party at such party’s address specified in Section 23.

 

(d)                                  Each party hereto hereby waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding arising out of or relating to this Agreement.  Each party hereto (i) certifies that no representative, agent or attorney of any other party has represented, expressly or otherwise, that such party would not, in the event of any action, suit or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party hereto has been induced to enter into this Agreement by, among other things, the mutual waiver and certifications in this Section 18(d).

 

11



 

(e)                                   Each party shall bear its own costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with any dispute arising out of or relating to this Agreement; provided that, the Company shall reimburse the Executive for reasonable attorneys’ fees and expenses to the extent that Executive substantially prevails as to a material issue with respect to any matters subject to dispute hereunder.

 

19.                                Amendment; No Waiver .  No provisions of this Agreement may be amended, modified, waived or discharged except by a written document signed by Executive and a duly authorized officer of the Company (other than Executive).  The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.  No failure or delay by either party in exercising any right or power hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or power, or any abandonment of any steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.

 

20.                                Severability .  If any term or provision of this Agreement is invalid, illegal or incapable of being enforced by any applicable law or public policy, all other conditions and provisions of this Agreement shall nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any party; provided , however , that if any term or provision of Section 5, 6, 7, 8 or 9 is invalid, illegal or incapable of being enforced by any applicable law or public policy, all other conditions and provisions of this Agreement shall nonetheless remain in full force and effect to the fullest extent permitted by law; provided further , that in the event that any court of competent jurisdiction shall finally hold in a non-appealable judicial determination that any provision of Section 5, 6, 7, 8 or 9 (whether in whole or in part) is void or constitutes an unreasonable restriction against Executive, such provision shall not be rendered void but shall be deemed to be modified to the minimum extent necessary to make such provision enforceable for the longest duration and the greatest scope as such court may determine constitutes a reasonable restriction under the circumstances.  Subject to the foregoing, upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

 

21.                                Entire Agreement .  This Agreement, including the Exhibits hereto, constitutes the entire agreement and understanding between the Company and Executive with respect to the subject matter hereof and supersedes all prior agreements and understandings (whether written or oral), between Executive and the Company, relating to such subject matter, including, without limitation, the Employment Agreement between IEA Management Services, Inc. and Executive dated as of September 15, 2015, is hereby superseded and nullified in its entirety effective on the Effective Date.  None of the parties shall be liable or bound to any other party in any manner by any representations and warranties or covenants relating to such subject matter except as specifically set forth herein.  Notwithstanding the foregoing, the Company intends to enter into a separate standard indemnification agreement with the Executive.

 

22.                                Survival .  The rights and obligations of the parties under the provisions of this Agreement shall survive, and remain binding and enforceable, notwithstanding the expiration of the Term, the termination of this Agreement, the termination of Executive’s employment hereunder or any settlement of the financial rights and obligations arising from Executive’s employment hereunder, to the extent necessary to preserve the intended benefits of such provisions.

 

12



 

23.                                Notices .  All notices or other communications required or permitted to be given hereunder shall be in writing and shall be delivered by hand or sent by facsimile or electronic image scan (pdf) or sent, postage prepaid, by registered, certified or express mail or overnight courier service and shall be deemed given when so delivered by hand or facsimile, or if mailed, three days after mailing (one business day in the case of express mail or overnight courier service) to the parties at the following addresses or facsimiles or email addresses (or at such other address for a party as shall be specified by like notice):

 

If to the Company:

IEA Energy Services LLC

 

c/o GFI Energy Group of Oaktree Capital Management, L.P.

 

11611 San Vicente Boulevard, Suite 710

 

Los Angeles, CA 90049

 

Attention: Ian Schapiro

 

Peter Jonna

 

Fax:

(310) 422-0540

 

Email: ischapiro@oaktreecapital.com

 

pjonna@oaktreecapital.com

 

With a copy (which shall not constitute notice hereunder) to:

 

 

Paul, Weiss, Rifkind, Wharton & Garrison LLP

 

1285 Avenue of the Americas

 

New York, NY 10019-6064

 

Fax: (212) 492 0241

 

Attention: Ellen Ching

 

Email: eching@paulweiss.com

 

 

If to Executive:

At the most recent address and fax or email in Company personnel records

 

Notices delivered by facsimile shall have the same legal effect as if such notice had been delivered in person.

 

24.                                Headings and References .  The headings of this Agreement are inserted for convenience only and neither constitute a part of this Agreement nor affect in any way the meaning or interpretation of this Agreement.  When a reference in this Agreement is made to a Section, such reference shall be to a Section of this Agreement unless otherwise indicated.

 

25.                                Counterparts .  This Agreement may be executed in one or more counterparts (including via facsimile and electronic image scan (pdf)), each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.

 

26.                                Section 409A .

 

(a)                                  For purposes of this Agreement, “ Section 409A ” means Section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”), and the Treasury Regulations promulgated thereunder (and such other Treasury or Internal Revenue Service guidance) as in effect from time to time.  The parties intend that any amounts payable hereunder that could constitute “deferred compensation”

 

13



 

within the meaning of Section 409A will be compliant with Section 409A or exempt from Section 409A.  Notwithstanding the foregoing, the Company shall not be liable to, and the Executive shall be solely liable and responsible for, any taxes or penalties that may be imposed on such Executive under Section 409A of the Code with respect to Executive’s receipt of payments hereunder.

 

(b)                                  Notwithstanding anything in this Agreement to the contrary, the following special rule shall apply, if and to the extent required by Section 409A, in the event that (i) Executive is deemed to be a “specified employee” within the meaning of Section 409A(a)(2)(B)(i), (ii) amounts or benefits under this Agreement or any other program, plan or arrangement of the Company or a controlled group affiliate thereof are due or payable on account of “separation from service” within the meaning of Treasury Regulations Section 1.409A-1(h) and (iii) Executive is employed by a public company or a controlled group affiliate thereof:  no payments hereunder that are “deferred compensation” subject to Section 409A shall be made to Executive prior to the date that is six (6) months after the date of Executive’s separation from service or, if earlier, Executive’s date of death; following any applicable six (6) month delay, all such delayed payments will be paid in a single lump sum on the earliest permissible payment date.

 

(c)                                   Any payment or benefit due upon a termination of Executive’s employment that represents a “deferral of compensation” within the meaning of Section 409A shall commence to be paid or provided to Executive 61 days following a “separation from service” as defined in Treas. Reg. § 1.409A-1(h), provided that Executive executes, if required by Section 4(d), the release described therein, within 60 days following his “separation from service.”  Each payment made under this Agreement (including each separate installment payment in the case of a series of installment payments) shall be deemed to be a separate payment for purposes of Section 409A.  Amounts payable under this Agreement shall be deemed not to be a “deferral of compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation §§ 1.409A-1(b)(4) (“short-term deferrals”) and (b)(9) (“separation pay plans,” including the exception under subparagraph (iii)) and other applicable provisions of Section 409A.  For purposes of this Agreement, with respect to payments of any amounts that are considered to be “deferred compensation” subject to Section 409A, references to “termination of employment”, “termination”, or words and phrases of similar import, shall be deemed to refer to Executive’s “separation from service” as defined in Section 409A, and shall be interpreted and applied in a manner that is consistent with the requirements of Section 409A.

 

(d)                                  Notwithstanding anything to the contrary in this Agreement, any payment or benefit under this Agreement or otherwise that is exempt from Section 409A pursuant to Treasury Regulation § 1.409A-1(b)(9)(v)(A) or (C) (relating to certain reimbursements and in-kind benefits) shall be paid or provided to Executive only to the extent that the expenses are not incurred, or the benefits are not provided, beyond the last day of the second calendar year following the calendar year in which Executive’s “separation from service” occurs; and provided further that such expenses are reimbursed no later than the last day of the third calendar year following the calendar year in which Executive’s “separation from service” occurs.  To the extent any indemnification payment, expense reimbursement, or the provision of any in-kind benefit is determined to be subject to Section 409A (and not exempt pursuant to the prior sentence or otherwise), the amount of any such indemnification payment or expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the indemnification payment or provision of in-kind benefits or expenses eligible for reimbursement in any other calendar year (except for any life-time or other aggregate limitation applicable to medical expenses), and in no event shall any indemnification payment or expenses be reimbursed after the last day of the calendar year following the calendar year in which Executive incurred such indemnification payment or expenses, and in no event shall any right to indemnification payment or

 

14



 

reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.  Any tax gross-up payment or benefit under this Agreement will be treated as providing for payment at a specified time or on a fixed schedule of payments to the extent that the payment is made by the end of Executive’s taxable year next following Executive’s taxable year in which Executive remits the related taxes.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

15



 

IN WITNESS WHEREOF, this Agreement has been duly executed by the parties as of the date first written above.

 

 

 

IEA Energy Services LLC

 

 

 

 

 

By:

 

 

Name:

John Paul Roehm

 

Title:

Authorized Signatory

 

 

 

 

 

ANDREW D. LAYMAN

 

 

 

[signature page to Layman Employment Agreement]

 


Exhibit 10. 8

 

AMENDED AND RESTATED LEASE AGREEMENT

 

dated as of October 20, 2017

(but executed on March 26, 2018)

 

by and between

 

CLINTON RE HOLDINGS (DELAWARE), LLC,

 

a Delaware limited liability company,

 

as “Landlord”

 

and

 

WHITE CONSTRUCTION, INC.,

 

an Indiana corporation,

 

as “Tenant”

 

Premises :
3900 East White Avenue and 12600 South State Road 63
Township of Clinton, County of Vermillion

State of Indiana

 



 

LEASE AGREEMENT

 

INDEX

 

1.

Premises and Term

1

 

 

 

2.

Renewal Options

1

 

 

 

3.

ACCEPTANCE OF PREMISES IN AS-IS CONDITION

2

 

 

 

4.

Rent

2

 

 

 

5.

Net Lease

3

 

 

 

6.

Use

4

 

 

 

7.

Utility Charges

5

 

 

 

8.

Taxes

5

 

 

 

9.

Insurance

7

 

 

 

10.

Declarations, Restrictions or Agreements Affecting the Premises

11

 

 

 

11.

Maintenance and Repairs

11

 

 

 

12.

Alterations

11

 

 

 

13.

Equipment, Fixtures and Signs

14

 

 

 

14.

Hazardous Materials

14

 

 

 

15.

Damage by Fire or Other Casualty

16

 

 

 

16.

Condemnation

18

 

 

 

17.

Liability and Indemnification

18

 

 

 

18.

Assignment and Subletting

20

 

 

 

19.

Default

25

 

 

 

20.

Tenant Bankruptcy

26

 

 

 

21.

Right of Inspection

27

 

 

 

22.

Covenant of Quiet Enjoyment

27

 

 

 

23.

Subordination and Non-Disturbance

27

 

 

 

 

i



 

Paragraph

 

Page

 

 

 

24.

Holding Over by Tenant

28

 

 

 

25.

Notices and Payments

29

 

 

 

26.

Force Majeure

29

 

 

 

27.

Waiver of Subrogation

30

 

 

 

28.

Recording

30

 

 

 

29.

Waiver of Landlord’s Lien

30

 

 

 

30.

Landlord’s Liability Limited to Landlord’s Interest

30

 

 

 

31.

[Intentionally Omitted]

30

 

 

 

32.

Financial Reporting

30

 

 

 

33.

Representations and Warranties

31

 

 

 

34.

Miscellaneous

32

 

Exhibit A -                                       Description of the Land
Exhibit B -                                       Base Rent
Exhibit C -                                       Form of Estoppel Certificate

 

ii



 

AMENDED AND RESTATED LEASE AGREEMENT

 

This AMENDED AND RESTATED LEASE AGREEMENT (this “ Lease ”) is made and entered into effective as of October 20, 2017 (the “ Effective Date ”), but executed on March 26, 2018, by and between CLINTON RE HOLDINGS (DELAWARE), LLC, a Delaware limited liability company (“ Landlord ”), and WHITE CONSTRUCTION, INC., an Indiana corporation (“ Tenant ”).

 

THIS LEASE FULLY AMENDS, MODIFIES, RESTATES AND SUPERSEDES (FROM AND AFTER MARCH 26, 2018) ALL OF THE TERMS, CONDITIONS AND PROVISIONS OF THAT CERTAIN LEASE AGREEMENT DATED AS OF OCTOBER 20, 2017 BETWEEN LANDLORD AND TENANT.

 

In consideration of the agreements hereinafter set forth to be kept and performed by the parties hereto, Landlord hereby demises and leases to Tenant, and Tenant hereby takes and leases from Landlord, the premises hereinafter described, for the term, at the rental and subject to and upon the following terms, conditions and agreements:

 

1.                                       Premises and Term .

 

(a)                                  The premises leased herein consists of those certain tracts of land, being more particularly described on Exhibit A attached hereto and made a part hereof for all purposes, together with all rights, privileges, easements and appurtenances belonging or in any way pertaining thereto (such land and additional rights being hereinafter collectively referred to as the “ Land ”), together with any buildings and other improvements and appurtenances that are located on the Land, and that may hereafter be erected thereon (such building and improvements being hereinafter collectively referred to as the “ Improvements ”) and the machinery, equipment and systems necessary for the operation of the Improvements (that are real property “fixtures” pursuant to applicable law (“ Fixtures ”), TO HAVE AND TO HOLD the same for a primary term (hereinafter called the “ Primary Term ”) commencing on the Effective Date and expiring on the last day of the twentieth (20th) Lease Year (as defined below).  The tracts of Land identified on Exhibit A , together with the Improvements and Fixtures thereon shall be referred to collectively as the “ Premises ”).

 

(b)                                  Notwithstanding any present or future law to the contrary, (i) this Lease shall not be terminated by Tenant for any failure of Landlord to perform pursuant to the terms and conditions of this Lease, (ii) this Lease shall not otherwise be terminated except as may be specifically provided for in this Lease and (iii) Tenant is not entitled to any offsets, abatements or deductions against the rent payable under this Lease from and after the date hereof except as specifically provided for in this Lease.

 

2.                                       Renewal Options .

 

(a)                                  Provided that no Event of Default has occurred and is continuing, Tenant shall have the option to extend the term of this Lease for up to two (2) separate option periods upon and subject to the terms set forth below in this Section 2 .  The first option period (the “ First Option Period ”) shall commence at the expiration of the Primary Term.  The second option period (the “ Second Option Period ”) shall commence at the expiration of the First

 



 

Option Period. The First Option Period and the Second Option Period are sometimes referred to herein collectively as the “ Option Periods ” and individually as an “ Option Period .”  Each Option Period shall continue for a period of five (5) years from the commencement date of such Option Period.  Except as otherwise expressly in this Lease, all of the terms and conditions of this Lease applicable to the Primary Term shall continue to apply during each Option Period.  The Primary Term and any Option Period for which an option has been exercised shall hereinafter collectively be referred to as the “ Term .”

 

(b)                                  To validly extend the Term for the First Option Period, (i) Tenant shall deliver to Landlord written notice of Tenant’s election to so extend not later than one hundred eighty (180) days prior to the expiration of the Primary Term, and (ii) as of the date the First Option Period is scheduled to commence, there shall be no Event of Default that remains uncured under this Lease.

 

(c)                                   To validly extend the Term for the Second Option Period, (i) Tenant must have validly extended this Lease for the First Option Period, (ii) Tenant shall deliver to Landlord written notice of Tenant’s election to so extend not later than one hundred eighty (180) days prior to the expiration of the First Option Period, and (iii) as of the date the Second Option Period is scheduled to commence, there shall be no Event of Default that remains uncured under this Lease.

 

(d)                                  Either party, upon request of the other, shall execute and acknowledge, in form suitable for recording, an instrument confirming the exercise of any Option Period, with the requesting party paying all applicable recording costs.

 

3.                                       ACCEPTANCE OF PREMISES IN AS-IS CONDITION .  TENANT ACKNOWLEDGES THAT TENANT IS COMPLETELY FAMILIAR WITH THE PREMISES AND LEGALLY PERMISSIBLE USES THEREON.  ACCORDINGLY, TENANT ACCEPTS POSSESSION OF THE PREMISES IN ITS “AS IS” CONDITION AS OF THE EFFECTIVE DATE.  LANDLORD MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES, (INCLUDING, WITHOUT LIMITATION, AS TO ITS FITNESS FOR USE, ITS DESIGN OR CONDITION, OR ANY PARTICULAR USE OR PURPOSE TO WHICH THE PREMISES MAY BE FIT, OR OTHERWISE, OR AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, OR THE EXISTENCE OF ANY DEFECTS, LATENT OR PATENT), IT BEING AGREED THAT ALL SUCH RISKS ARE BORNE BY TENANT.

 

4.                                       Rent .

 

(a)                                  Tenant shall pay to Landlord a base rent (“ Base Rent ”) during the Primary Term and each Option Period in the respective amounts specified on Exhibit B attached hereto and made a part hereof for all purposes, in equal monthly installments, with the first such monthly installment to be due and payable on the Effective Date and each subsequent monthly installment to be due and payable on or before the first (1st) day of each succeeding calendar month during the Term, as same may be adjusted pursuant to this Section 4 .  Rent for any fractional calendar month at the beginning or the end of the Term shall be prorated by multiplying the monthly Base Rent by a fraction, the numerator of which is the number of days

 

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remaining in the applicable calendar month (from and after the Effective Date) for which Base Rent is being paid, and the denominator of which is the total number of days in such calendar month.  The first “ Lease Year ” of this Lease shall commence on the Effective Date and shall continue for twelve (12) complete calendar months thereafter (unless the Effective Date is a day other than the first (1st)  day of a calendar month, in which event the initial fractional month, together with the next succeeding eleven (11) months, shall constitute the first Lease Year) and each succeeding Lease Year shall commence on the first day immediately after the expiration of the immediately preceding Lease Year and shall continue for twelve (12) calendar months thereafter.

 

(b)                                  Except as otherwise provided in this Lease, any sum owed by Tenant to Landlord (or to any third party on behalf of Landlord) under this Lease (other than Base Rent), and any cost, expense, damage or liability incurred by Landlord for which Tenant is liable, shall be considered “additional rent,” and shall be paid by Tenant no later than fifteen (15) days after the date Landlord notifies Tenant of the amount thereof and provides such documentation evidencing the amount to be paid.  Base Rent and any additional rent are hereinafter collectively referred to as “rent”.

 

(c)                                   All rent shall be paid by Tenant to Landlord in United States dollars by wire transfer to an account or accounts designated by Landlord, or in such other manner and/or at such other address as Landlord may direct, by prior written notice to Tenant from time to time.  All rent shall be paid by Tenant to Landlord without notice or demand, and without any abatement, offset or deduction whatsoever (except as may be hereinafter expressly provided).

 

(d)                                  If Tenant shall fail to make payment of any installment or other payment of rent within five (5) Business Days after the due date thereof, then (to the extent permitted by Law and in addition to any and all other or further rights and remedies which Landlord may have under this Lease or by Law or otherwise), Tenant shall pay to Landlord (in addition to the installment or other payment due) (i) a late fee equal to five percent (5%) of the amount due and (ii) interest on the amount due from the due date until fully paid at an interest rate equal to four hundred (400) basis points over the per annum interest rate publicly announced as its prime or base rate by Citibank N.A. or its successor (or, if none, then another major money center bank in the United States selected by Landlord).  Notwithstanding the foregoing, during any periods in the Term in which Tenant has failed to make payment of any installment or other payment of rent on or before the due date thereof more than twice in the immediately preceding twelve (12) month period, the foregoing reference to “within five (5) Business Days after the due date thereof” shall be deemed to be a reference to “on or before the due date thereof”.

 

5.                                       Net Lease .  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THIS LEASE SHALL BE AN ABSOLUTE NET LEASE, SO THAT THIS LEASE SHALL YIELD ALL BASE RENT PAYABLE HEREUNDER AS AN ABSOLUTELY NET RETURN TO LANDLORD.  Accordingly, with the sole exception of Excluded Amounts (as defined in Section 8(b)  below), Tenant shall pay all taxes, insurance, ground rents, easement charges, association fees, and other costs, expenses and obligations of every kind and nature whatsoever relating to the Premises, including without limitation, costs with respect to the ownership and operation thereof, which accrue prior to the expiration of the

 

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Term.  Tenant’s obligation to pay all amounts described in this Section 5 shall survive the expiration or earlier termination of the Term.  Tenant acknowledges and confirms that Landlord may impose reasonable administrative, processing or servicing fees, and collect its reasonable attorneys’ fees, costs and expenses in connection with (a) any extension, renewal, modification, amendment and termination of this Lease requested by Tenant (other than in accordance with Section 2 of this Lease), (b) the procurement of consents, waivers and approvals with respect to the Premises or any matter related to this Lease requested by Tenant, (c) the review of any assignment or sublease (or proposed assignment or sublease) or the preparation or review of any subordination or non-disturbance agreement requested by Tenant and (d) inspections under Section 14(d)  of this Lease.

 

6.                                       Use .

 

(a)                                  Tenant may use and occupy the portion of the Premises described on Exhibit A as “Parcel 5” (the “ Office Parcel ”) for (and only for) office uses (and uses reasonably ancillary thereto), and Tenant may use and occupy the portions of the Premises other than the Office Parcel for any purposes reasonably related to Tenant’s business, but in all events Tenant shall use and occupy each portion of the Premises only to the extent that such use and occupancy (i) do not violate any Title Restrictions (as defined below), (ii) are allowed under applicable zoning laws and regulations and (iii) are in compliance with Section 6(b)  below.  As of the Effective Date, the Office Parcel is being used for administrative, technical, computer and management purposes in connection with Tenant’s business, and the other portions of the Premises are being used for the storage, maintenance and repair of construction equipment and tools.  As used herein, “ Title Restrictions ” shall mean all covenants, conditions, easements and any other title restrictions encumbering the Premises, provided that the same would not materially interfere with the use or occupancy of the Premises as used and occupied as of the Effective Date.

 

(b)                                  Tenant shall, at Tenant’s expense, comply with all present and future laws (including, without limitation, the Americans with Disabilities Act), ordinances (including without limitation, zoning ordinances and land use requirements), regulations, orders, recommendations, decisions, and decrees now or hereafter promulgated (including, without limitation, those made by any public or private agency), as any of the same may be amended from time to time (collectively, “ Laws ”), concerning Tenant, the use, occupancy and condition of the Premises and the business being conducted thereon, and all machinery, equipment, furnishings, fixtures and improvements on or used in connection with the Premises.  If any such Law requires an occupancy or use permit or license for the Premises (or any portion thereof) or the operation of the business conducted therein, then Tenant shall obtain and keep current such permit or license at Tenant’s expense.  Promptly after written request of Landlord, Tenant shall deliver to Landlord, all licenses, permits and other certificates evidencing compliance of Tenant and the Premises with Laws.  If any such Law requires any modification to the Premises, Tenant shall perform such alterations, at Tenant’s sole cost and expense.  Use of the Premises is subject to all covenants, conditions, easements and restrictions of record, and Tenant shall comply fully with the same.  Tenant shall, at Tenant’s expense, comply fully with, and shall keep the Premises in compliance with, all Title Restrictions including, but not limited to, all insurance, maintenance and repair obligations thereunder, and shall pay any and all sums, costs, expenses, charges or fees due under any and all Title Restrictions, including but not limited to any assessments,

 

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maintenance expenses or charges, or insurance charges.  Tenant shall (i) ensure that no party materially encroaches upon the Premises and (ii) protect, defend, indemnify, release and hold Landlord harmless from and against any and all claims and losses arising out of or in any way relating to any material encroachments and/or activities upon the Premises caused by any person or entity.  Landlord shall have no obligation to pay any sums, costs, expenses, charges or fees payable under any Title Restrictions.

 

7.                                       Utility Charges .  Tenant, at Tenant’s own expense and risk, shall arrange with the appropriate utility companies and service providers for the provision to the Premises of water, sewer, trash collection, electricity, gas, telephone, window washing, landscaping, snow removal, and all other utilities and services necessary or customary for the operation and maintenance of the Premises or otherwise desired by Tenant.  Tenant shall pay directly to the appropriate utility companies and service providers all charges for all utilities consumed in and services performed for the Premises, as and when such charges become due and payable.  To the extent the invoices for any such utilities and services are received by Landlord, Landlord shall forward such invoices to Tenant and Tenant shall timely pay the charge for such utilities and services directly to the utility or service provider.  If Tenant does not promptly pay for any such utilities and services, then Landlord may (but shall not be obligated to) pay for such utilities and services directly and Tenant shall reimburse Landlord for such charges upon demand therefor.

 

8.                                       Taxes .

 

(a)                                  Tenant shall pay all Impositions as and when the same become due and payable (subject to Section 8(f)).  Tenant shall deliver to Landlord receipts or other reasonably satisfactory evidence of timely payment of all Impositions so paid by Tenant.  To the extent that any such Impositions are imposed upon Landlord, Tenant shall either pay such Impositions directly to the taxing authority or, at Landlord’s option, reimburse Landlord for such Impositions.  If the Term expires on a day other than the last day of a calendar year or tax fiscal year, then Tenant’s liability for Impositions for such calendar year or tax fiscal year shall be apportioned by multiplying the amount of Impositions for the full calendar year or tax fiscal year by a fraction, the numerator of which is the number of days during such calendar year or tax fiscal year falling within the Term, and the denominator of which is three hundred sixty-five (365).  Upon receipt of Landlord’s invoice, Tenant shall pay its pro rata share, if applicable, of the installment of Impositions for which Tenant is responsible pursuant to this Section 8 and which were a lien during the Term but are due and payable following the expiration of this Lease.

 

(b)                                  The term “ Impositions ” shall mean, collectively, taxes assessed, levied or imposed upon the Premises or Tenant, including without limitation, any present or future real estate taxes, all taxes or other impositions that are in the nature of or in substitution for real estate taxes, vault and/or public space rentals, business district or arena taxes, gross receipts taxes with respect to the rent paid by Tenant under this Lease, as well as special user fees, license fees, permits, improvement bonds, levies, improvement district charges, governmental charges, rates, and assessments, general, special, ordinary or extraordinary, foreseen and unforeseen, that are imposed upon Landlord, Tenant or the Premises, fixtures, machinery, equipment or systems used in connection with the Premises or the business being operated on the Premises and all excise, franchise, transaction, privilege, license, sales, use and

 

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other taxes upon rent hereunder, the leasehold (or other) estate of either party or the activities of either party pursuant to this Lease.  Notwithstanding the foregoing, in no event shall Tenant be liable hereunder for or be required to pay the following (collectively, “ Excluded Amounts ”): (1) income, profit, estate, gift, or inheritance taxes levied, assessed or imposed upon Landlord; (2) financing costs for any fee mortgages granted by Landlord with respect to the Premises; (3) any transfer taxes imposed by reason of a transfer of all or a portion of Landlord’s interest in the Premises; or (4) any other taxes imposed based upon the income of Landlord.

 

(c)                                   Notwithstanding anything contained herein to the contrary, if at any time during the Term (after the Effective Date) any assessment (either general or special) is levied upon or assessed against the Premises, then Tenant’s obligation under this Section 8 to pay such assessment shall be limited to those amounts which become due and payable during the Term, and Landlord shall reimburse Tenant as of the expiration of the Term for any assessments paid by Tenant that accrue on account of the period from and after the expiration of the Term.  Promptly after Tenant’s receipt of any assessment, Tenant shall give notice to Landlord of the total assessment and of the amount paid or to be paid by Tenant, and Landlord shall pay the balance due thereon.  The provisions of this Section 8(c)  shall apply only to assessments and not to regularly assessed real estate taxes.

 

(d)                                  Tenant, at its sole cost and expense, upon notice to Landlord but without any requirement to obtain Landlord’s consent, shall have the right to contest the amount or validity of any Imposition, provided that the following conditions are met: (i) the Premises shall not, by reason of such postponement of payment, or the initiation of such proceeding, be subject to reasonably foreseeable risk of forfeiture, sale, or loss; (ii) such proceedings shall not affect or interfere with Tenant’s continued payment of Base Rent; (iii) if, and to the extent, required by the applicable taxing authority, Tenant posts a bond or takes other steps acceptable to such taxing authority that removes the lien of such Imposition or stays enforcement thereof, and (iv) pursuing the contest of Impositions shall not in any way expose Landlord to any criminal or civil liability, penalty or sanction.  In addition, if the applicable taxing authority does not require a bond or other assurance of payment, Tenant shall furnish Landlord with such security as Landlord shall reasonably request as a condition to any such contest where (a) the applicable Imposition being contested is greater than One Hundred Thousand Dollars ($100,000) (as Adjusted for Inflation) and (b) Tenant has not paid such Imposition prior to prosecuting such contest.  Tenant shall promptly provide Landlord with copies of all notices received or delivered by Tenant and filings made by Tenant in connection with such proceeding.  Tenant shall pay all judgments, decrees and costs (including any costs reasonably incurred by Landlord) in connection with any such contest and shall, promptly after the final determination of such contest, fully pay and discharge the amounts which shall be levied.  Tenant shall be entitled to any refund received with respect to Impositions paid by Tenant.  In the event that Tenant fails to pay any Imposition when due or to provide the security therefor as provided in this Section 8(d)  and to diligently prosecute any contest of the same, Landlord may, upon not less than five (5) Business Days’ advance notice to Tenant (except that if Landlord reasonably determines that the giving of such advance notice would risk loss to the Premises (or any part thereof) or cause damage to Landlord, then Landlord shall only give such notice as is practical under the circumstances), pay the applicable Impositions (together with any interest, fines and/or penalties) and the same shall be repayable by Tenant to Landlord as additional rent within ten (10) Business Days’ written demand to Tenant.

 

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(e)                                   Provided Tenant shall have the right to contest or protest such taxes in accordance with applicable Laws, Tenant shall pay before delinquency any business, rent, sales, franchise or other taxes or fees that are now or hereafter levied, assessed or imposed upon Tenant’s use, operation, or occupancy of the Premises, the conduct of Tenant’s business at the Premises, or Tenant’s equipment, fixtures, furnishings, inventory or personal property.  If any such tax or fee is enacted or altered so that such tax or fee is levied against Landlord or so that Landlord is responsible for collection or payment thereof, then Tenant shall pay to Landlord, upon demand, as additional rent the amount of such tax or fee

 

(f)                                    Notwithstanding any provision of this Section 8 , if required by any holder of a Fee Mortgage (as hereinafter defined) from time to time pursuant to the applicable loan documents (and the applicable loan documents obligate such holder to use the deposited funds to pay Impositions and/or insurance premiums (as the case may be)), Tenant shall deposit with such holder or its designee (in escrow) on the first day of each and every calendar month during the Term, an amount equal to one-twelfth (1/12th) of the annual Impositions and/or insurance premiums (other than insurance premiums under blanket policies) then payable.  If, at any time when this Section 8(f)  shall apply, the amount of Impositions and/or insurance premiums are increased for the applicable period or the funds in the escrow account are otherwise insufficient, such that the monthly deposits then being made by Tenant under this Section 8(f)  would be insufficient to pay all Impositions and/or insurance premiums thirty (30) days prior to the due date thereof, then the monthly payments under this Section 8(f)  shall be increased so that the holder of the Fee Mortgage or its designee will have received from Tenant sufficient monies to pay the Impositions and/or insurance premiums at least thirty (30) days prior to the due date of such Impositions and/or insurance premiums (provided, however, that if no further monthly payments are due prior to the date that is thirty (30) days prior to the due date of such Impositions and/or insurance premiums, then Tenant shall, promptly following written demand from Landlord or the holder of a Fee Mortgage, deposit with such holder or its designee the amount of the insufficiency in order to enable such holder to make the full payment of the applicable Impositions and/or insurance premiums when due); it being understood and agreed that all references in this sentence to insurance premiums shall be deemed to refer to insurance premiums other than insurance premiums under blanket policies. The mechanics of the aforesaid deposits shall be as reasonably required by the applicable holder of the Fee Mortgage, which shall have the right to require the modification of the provisions of this Section 8(f) from time to time as long as such modifications are not materially adverse to Tenant.

 

9.                                       Insurance .

 

(a)                                  Tenant shall procure and at all times during the Term maintain insurance against loss or damage to real property and personal property under an “all risk” or “special form” insurance policy, which shall include coverage against all risks of direct physical loss, including but not limited to loss by fire, lightning, wind, terrorism, and other risks normally included in the standard ISO special form (and shall also include National Flood and Excess Flood insurance if the Premises is located within a 100-year floodplain (FEMA Zones A and V) and earthquake insurance if the Premises is located within a moderate to high earthquake hazard zone as determined by an approved insurance company set forth in Section 9(g)  below).  Such policy shall also include coverage for ordinance or law covering the loss of value of the undamaged portion of the Premises, costs to demolish and the increased costs of construction if

 

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any of the improvements located on, or the use of, the Premises shall at any time constitute legal non-conforming structures or uses.  Ordinance or law limits shall be in an amount equal to the full replacement cost for the loss of value of the undamaged portion of the Premises and no less than 25% of the replacement cost for costs to demolish and the increased cost of construction.  Such insurance shall be in amounts not less than 100% of the full insurable replacement cost values (without deduction for depreciation), with an agreed amount endorsement or without any coinsurance provision, and with sublimits reasonably satisfactory to Landlord, as determined from time to time at Landlord’s request.

 

(b)                                  Tenant shall procure and at all times during the Term maintain commercial general liability insurance, including products and completed operation liability, covering Landlord (as an additional insured using ISO form CG 2011 or its successor form) and Tenant against bodily injury liability, property damage liability and personal and advertising injury, including without limitation any liability arising out of the ownership, use, maintenance, repair, condition or operation of the Premises or adjoining ways, streets, parking lots or sidewalks.  Such insurance policy or policies shall contain a broad form contractual liability endorsement under which the insurer agrees to insure Tenant’s obligations under Section 17 hereof to the extent insurable, and a “severability of interest” clause or endorsement which precludes the insurer from denying the claim of Landlord or Tenant because of the negligence or other acts of the other, shall be in amounts of not less than $2,000,000 per occurrence for bodily injury and property damage, $4,000,000 general aggregate, and $25,000,000 of excess liability coverage, or such higher limits as Landlord may reasonably require from time to time (in accordance with Section 9(h)  below), and shall be in form and substance reasonably satisfactory to Landlord.  Such limits of insurance may be acquired through Commercial General liability and Umbrella liability policies.

 

(c)                                   Tenant shall procure and at all times during the Term maintain, at Tenant’s sole cost and expense, business income insurance, including rental value insurance payable to Landlord without a provision for co-insurance, in an amount equal to 100% of the annual Base Rent for a period of not less than twelve (12) consecutive calendar months.

 

(d)                                  Tenant shall procure and at all times during the Term maintain, at Tenant’s sole cost and expense, state worker’s compensation insurance in the statutorily mandated limits, employer’s liability insurance with limits not less than $1,000,000 and such other insurance as may be necessary to comply with applicable Laws.

 

(e)                                   Tenant shall procure and at all times during the Term maintain, at Tenant’s sole cost and expense, automobile liability with a limit of not less than One Million Dollars ($1,000,000.00) for each accident, with such insurance covering liability arising out of any automobile, including owned, hired and non-owned automobiles.

 

(f)                                    Tenant shall procure and all time during the Term maintain, at Tenant’s sole cost and expense, comprehensive boiler and machinery or equipment breakdown insurance against loss or damage from explosion of any steam or pressure boilers or similar apparatus, if any, and other building equipment including HVAC units located in or about the Premises and in an amount equal to the lesser of 100% replacement cost of the Premises or $5,000,000.00.

 

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(g)                                   Prior to the commencement of any Alteration having an estimated costs of more than $100,000.00, and until the completion thereof, Tenant shall obtain and maintain in full force and effect or cause to be obtained and maintained in full force and effect, so-called “builder’s risk” insurance relating to such Alteration, which insurance shall be in an amount reasonably required by Landlord.

 

(h)                                  Notwithstanding the provisions of this Section 9 , upon thirty (30) days’ prior written notice to Tenant from time to time, Tenant shall procure (and thereafter maintain) such other amounts and types of insurance as Landlord may reasonably request and are then customarily maintained by owners of properties reasonably similar to the Premises in terms of location, size, type and use.

 

(i)                                      It is agreed and understood that the insurance coverages provided for herein may be maintained by Tenant pursuant to master policies of insurance covering other facilities and/or Tenant’s corporate affiliates, as long as such master policies allocate to the Premises the specified coverages without possibility of reduction or co-insurance by reason of, or damage to, any other properties.  All insurance policies required to be maintained by Tenant hereunder shall be with responsible insurance companies, authorized to do business in the state where the Premises are located and which are rated no less than A-X by Best’s Insurance Guide or are otherwise approved by Landlord in Landlord’s reasonable discretion.  Tenant shall evidence such insurance coverage by delivering to Landlord, and any lender designated by Landlord, an Acord Form 28 for property (including builder’s risk), business interruption and boiler & machinery coverage (or any other form requested by Landlord) and an Acord Form 25 for commercial general liability, workers’ compensation and umbrella coverage (or any other form requested by Landlord); provided that in the event that either such form is no longer available, such evidence of insurance shall be in a form reasonably satisfactory to Landlord and any lender designated by Landlord.  Except for workers’ compensation insurance referred to above, the insurance policies shall include (i) Landlord as an “additional insured” with respect to liability insurance, and as an “additional named insured”, “additional insured” or “loss payee” with respect to all property (including builder’s risk) and rental value insurance, and (ii) any lender requested by Landlord as a “loss payee,” as appropriate and as their interests may appear.  Tenant shall provide notice to Landlord within two (2) Business Days after receipt of a cancellation notice of any insurance policy required by this Section 9 .

 

(j)                                     All insurance policies required to be maintained by Tenant hereunder shall:

 

(1)                                  If applicable, provide for a waiver of subrogation by the insurer as to claims against Landlord and its respective employees and agents.

 

(2)                                  With respect to any liability policy, provide that no “other insurance” clause in the insurance policy shall exclude any policies of insurance maintained by Landlord and that the insurance policy shall not be brought into contribution with insurance maintained by Landlord;

 

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(3)                                  Subject to clause (k) below, contain deductibles not to exceed (i) $25,000 for property damage and (ii) one times average daily value for business interruption;

 

(4)                                  Provide that the insurer shall not have the option to restore the Premises if Landlord elects to terminate this Lease in accordance with the terms hereof;

 

(5)                                  Be in amounts sufficient at all times to satisfy any coinsurance requirements thereof; and

 

(6)                                  Be primary and non-contributory with any policies of insurance maintained by Landlord and contain a standard mortgage clause endorsement in favor of any party designated by Landlord; and

 

(7)                                  Include an endorsement that the applicable insurance policy shall be non-cancelable unless at least thirty (30) days of advance written notice is given to Landlord by the applicable insurer (except that such period of thirty (30) days may be reduced to not less than ten (10) days for non-payment of premium); provided, however, that (i) Tenant shall not be in default under this clause (7) if any such endorsement is not generally available to tenants of office properties in the State of Indiana or not otherwise obtainable by Tenant without undue effort or cost, in either case beyond a de minimis extent and (ii) if Tenant is so unable to obtain any such endorsement then promptly after Tenant receives any notice of cancellation or any other notice from an applicable insurance carrier which may adversely affect (beyond a de minimis extent) the coverage under any insurance policy required to be carried by Tenant pursuant to this Lease Tenant shall provide Landlord with a copy of such notice.

 

(k)                                  It is expressly understood and agreed that (i) if any insurance required hereunder, or any part thereof, shall expire, be withdrawn, become void by breach of any condition thereof by Tenant, or become void or in jeopardy by reason of the failure or impairment of the capital of any insurer, Tenant shall immediately obtain new or additional insurance reasonably satisfactory to Landlord and any Lender designated by Landlord; (ii) the minimum limits of insurance coverage set forth in this Section 9 shall not limit the liability of Tenant for its acts or omissions as provided in this Lease; (iii) Tenant shall procure policies for all insurance for periods of not less than one year and shall provide to Landlord and any Lender of Landlord (or such Lender’s servicer) certificates of insurance or, upon Landlord’s written request, duplicate originals of insurance policies evidencing that insurance satisfying the requirements of this Lease is in effect at all times; (iv) Tenant shall pay as they become due all premiums for the insurance required by this Section 9 ; (v) in the event that Tenant fails to comply with any of the requirements set forth in this Section 9 , within ten (10) days of the giving of written notice by Landlord to Tenant, (A) Landlord shall be entitled to procure such insurance; and (B) any sums expended by Landlord in procuring such insurance shall be Additional Rental and shall be repaid by Tenant, together with interest thereon at the Default Rate, from the time of payment by Landlord until fully paid by Tenant immediately upon written demand therefor by Landlord; and (vi) all insurance policies required in this Section 9 shall not be subject to cancellation, invalidation or suspension on account of the conduct of Tenant, its officers, directors, managers, members, employees or agents, or anyone acting for Tenant or any subtenant or other occupant of the Premises (to the extent such provision is then reasonably

 

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available on commercially reasonable terms), and shall comply with all policy conditions and warranties at all times to avoid a forfeiture of all or a part of any insurance payment.

 

10.                                Declarations, Restrictions or Agreements Affecting the Premises .  Landlord hereby agrees that it shall neither amend nor consent to any amendment of any restriction, declaration, easement, right-of-way, covenant or any other agreement or instrument encumbering or affecting the Premises that could potentially affect the Premises, Tenant’s use of the Premises or Tenant’s rights or obligations under this Lease without Tenant’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.

 

11.                                Maintenance and Repairs .  Tenant shall maintain the Premises (and all equipment therein or thereon) in good order, condition, appearance and repair at all times during the Term, including, without limitation, maintenance and repairs to the interior, exterior and structure (including the roof, foundation and exterior walls) of the Improvements and Fixtures, and shall keep all of the same in safe, clean and neat condition.  Without limiting the generality of the foregoing, Tenant shall (at all times throughout the Term) (i) maintain a service contract with a reputable firm to provide routine maintenance and repair for the HVAC system servicing the Premises on a quarterly basis, (ii) provide janitorial service, pest control and window washing to the Premises and (iii) make all necessary or appropriate replacements and restorations to the Premises (and all equipment therein or thereon), interior and exterior, structural and non-structural, ordinary and extraordinary and foreseen and unforeseen.  Except to the extent (if any) of any damage that results directly from the gross negligence or willful misconduct of Landlord, its employees, agents and contractors, Landlord shall not be required to maintain or make any repairs to the Premises during the Term.  The Premises shall not be maintained as, nor shall Tenant permit the Premises to become, a public or private nuisance.  At the expiration or earlier termination of this Lease, Tenant shall deliver up the Premises in the same condition as of the Effective Date, except for and subject to any alterations permitted under this Lease, loss by fire or other casualty, condemnation, act of God and ordinary wear and tear.

 

12.                                Alterations .

 

(a)                                  As used herein:

 

(1)                                  Alterations ” shall mean each and every (i) demolition of the whole or any part of any Improvement now or hereafter erected upon the Land; (ii) excavation at any time made or to be made in, on or about the Premises; (iii) repair, addition, betterment, improvement, restoration, replacement or rebuilding made of, to, in, on or about the Premises or any part thereof; or (iv) construction of any additional or replacement Improvements upon the Land, in each case occurring during the Term.

 

(2)                                  Major Alterations ” shall mean any Alterations that (A) would materially change the type, character or external appearance of the Improvements, (B) would materially adversely affect the structure of the Improvements (including, by way of example, the roof or foundation), (C) would materially adversely affect the plumbing, HVAC or electrical systems, or any other building systems, of the Improvements, (D) require modifications to the certificate of occupancy issued for the Premises (or any portion thereof), (E) would reduce

 

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the size of the Improvements or diminish the net rentable area thereof or (F) involve the construction of any new building or other structure on the Land.

 

(3)                                  Minor Alterations ” shall mean Alterations that (A) are not Major Alterations, (B) do not materially affect the structure, or the plumbing, HVAC, electrical or other building systems of the Improvements, (C) have a reasonably estimated cost that is less than an aggregate amount (considered on a project-by-project basis) equal to $250,000 (as Adjusted for Inflation) and (D) are the subject of not less than five (5) Business Days’ prior written notice (with reasonable specificity) to Landlord (but this clause (D) shall not apply to Minor Alterations that have a reasonably estimated cost that is less than an aggregate amount (considered on a project-by-project basis) equal to $25,000 (as Adjusted for Inflation)).

 

(b)                                  Subject in all events to the provisions of this Section 12 and to all other applicable provisions of this Lease, Tenant shall not make (or permit or suffer to be made) any Alteration (other than Minor Alterations) unless and until Tenant shall have submitted plans and specifications therefor to Landlord and Landlord shall have approved such Alterations and such plans and specifications in writing (which approval shall be in Landlord’s sole discretion in the case of Major Alterations and in Landlord’s reasonable discretion in the case of other Alterations).

 

(c)                                   Tenant further covenants and agrees that no Alterations will be made except in compliance with, and Tenant hereby covenants that it will comply with, each of the following provisions:

 

(1)                                  No Alteration shall be made at any time when an Event of Default shall exist.

 

(2)                                  All Alterations shall be at Tenant’s own sole cost and expense.  Tenant shall pay all costs, expenses and liabilities arising out of, in connection with, or by reason of any Alterations, and shall keep the Premises free and clear of all liens, claims and encumbrances in any way arising out of, in connection with, or by reason of, any Alterations.  Landlord shall not be required to make any contribution to the cost of any Alterations or any part thereof, and Tenant covenants that Landlord shall not be required to pay, and shall indemnify and hold Landlord harmless from and against, any cost, expense or liability arising out of or in connection with or by reason of any Alterations.

 

(3)                                  No Alteration shall be made unless Tenant shall have first furnished to Landlord an itemized cost estimate verified by Tenant (but this clause (3) shall not apply to Minor Alterations that have a reasonably estimated cost that is less than an aggregate amount (considered on a project-by-project basis) equal to $25,000 (as Adjusted for Inflation)).

 

(4)                                  All Alterations shall be made under the supervision of a licensed architect or engineer, to the extent such supervision is (i) consistent with good construction practice or (ii) required by Law.

 

(5)                                  All Alterations shall be made with reasonable diligence and dispatch, in a first-class manner and with new materials and workmanship, at least equal to the quality of the Improvements as of the Effective Date.

 

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(6)                                  Before any Alterations are commenced, Tenant shall procure, at its own sole cost and expense, all necessary permits, licenses and like approvals from all governmental authorities and shall, on demand, deliver copies thereof to Landlord.  Upon Tenant’s request, Landlord shall join in the application for such permits, licenses and like approval whenever such action is necessary, and Tenant covenants that Landlord will not suffer, sustain or incur any cost, expense or liability by reason thereof.

 

(7)                                  All Alterations shall be made in compliance and conformity with all applicable (i) Laws (including all building and zoning Laws), (ii) permits, licenses and like approvals and (iii) rules, regulations, orders and requirements of insurance boards.

 

(8)                                  In making any Alterations, Tenant shall not violate the terms or conditions of any insurance policy obtained or required pursuant to the provisions hereof affecting or relating to the Premises, or the terms of any covenants, restrictions or easements affecting the Premises.

 

(9)                                  Tenant shall have no right or authority to cause or allow any mechanics’ lien or other monetary lien or claim to encumber Landlord’s fee interest in the Premises, and in the event any such lien or claim arises, Tenant shall cure and remove same within forty-five (45) days after notice, unless Tenant is contesting such lien in accordance with applicable Laws.  Landlord shall have no responsibility to Tenant or to any contractor, subcontractor, supplier, materialman, workman or other person, firm or corporation who shall engage in or participate in any additions, alterations, changes or replacements thereof unless Landlord shall expressly undertake such obligation or has authorized the purchase of materials and/or the employment of workmen in connection therewith.

 

(10)                           No Alterations shall create any encroachment upon any easement of which Tenant has knowledge or any street or adjacent premises.

 

(11)                           Unless Alterations (i) are performed entirely within the enclosure walls of any Improvement then existing on the Premises, or (ii) would not be reflected on a survey of the Premises, Tenant shall, upon completion thereof, on demand, promptly deliver to Landlord a copy of a survey of the Premises showing such Alterations.

 

(12)                           Before commencing any proposed Alteration having a reasonably estimated cost greater than $250,000 (as Adjusted for Inflation), Tenant shall furnish to Landlord, at Tenant’s sole cost and expense, a completion bond issued by a surety company approved by Landlord, which approval shall not be unreasonably withheld or delayed, in an amount at least equal to the estimated cost of such Alteration, or shall furnish to Landlord other security reasonably satisfactory to Landlord, in each case guaranteeing to Landlord the completion of the proposed Alteration within a reasonable time, free and clear of all liens, and, if available, all encumbrances, mortgages, conditional bills of sale, security agreements and other claims and charges and in accordance with the provisions of this Lease.

 

(13)                           All Alterations shall become the property of Landlord immediately upon installation thereof at the Premises, and title thereto and possession thereof shall automatically vest in Landlord without the necessity of Tenant executing any further

 

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instrument particularly granting, conveying and/or releasing the same and without the necessity of any payment therefor by Landlord.  Notwithstanding the foregoing, (if and to the extent to which Landlord shall have given written notice to Tenant, at the time of Landlord’s consent to such Alteration, that Tenant shall be required to remove such Major Alterations) Tenant shall (at or before the end of the Term, at Tenant’s sole cost and expense) remove any Major Alterations and restore the Premises to its condition prior to the making of such Major Alterations.

 

(14)                           Promptly after completion of each Alteration (other than to the extent the same are (x) purely decorative or cosmetic, such as painting, wallpapering, carpeting or installing or removing cabling or wiring or (y) Minor Alterations that have a reasonably estimated cost that is less than an aggregate amount (considered on a project-by-project basis) equal to $100,000 (as Adjusted for Inflation)), Tenant, at Tenant’s expense, shall furnish Landlord with (i) final “as built” plans and specifications for such Alteration (if “as built” plans exist and, if not, with final plans and specifications with field notations certified by Tenant’s architect), (ii) copies of any applicable filing documents, permits and final approvals from governmental authorities and (iii) waivers of lien from all contractors, subcontractors, materialmen, architects, engineers and other persons who may file a lien against the Premises in connection with such Alterations.

 

13.                                Equipment, Fixtures and Signs .  Tenant shall have the right to erect, install, maintain and operate on the Premises such equipment, trade and business fixtures, signs (including, without limitation, backlit awnings, pylon and monument signage) and other personal property as Tenant may deem necessary or appropriate, and such items (unless the same cannot be removed from the Premises without material damage thereto) shall not be deemed to be Improvements or part of the Premises, but shall remain the property of Tenant.  All repair, maintenance, restoration and replacement with respect to any such items shall be the responsibility of Tenant.  Any such erection, installation, maintenance, operation, repair, restoration or replacement shall be in accordance with all Laws, and at Tenant’s sole cost and expense.  At any time during the Term Tenant shall have the right to (and prior to the expiration or termination of the Term Tenant shall, at Tenant’s sole cost and expense) remove Tenant’s equipment, fixtures, signs (including, without limitation, its pylon and monument signage, if any) and other personal property from the Premises, and repair any damage related to such removal.  Any property remaining in the Improvements after such expiration or termination shall be deemed to have been abandoned by Tenant and shall automatically become the property and responsibility of Landlord; any costs and expenses of removal of such items shall be Tenant’s responsibility.  The provisions of the immediately preceding sentence shall survive the expiration or termination of this Lease.

 

14.                                Hazardous Materials

 

(a)                                  Tenant shall not cause or permit any Hazardous Materials (as defined below) to be generated, used, released, stored or disposed of in or about the Premises, provided that Tenant may use, store and dispose of reasonable quantities of Hazardous Materials to the extent that such use, storage and disposal are reasonably necessary in connection with Tenant’s use of the Premises in accordance with Section 6(a) in the ordinary course of Tenant’s business, provided such Hazardous Materials are used, stored and disposed of in accordance in all material respects with all Environmental Laws (as defined below).  At the expiration or earlier

 

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termination of this Lease, Tenant shall surrender the Premises to Landlord (i) free of all Hazardous Materials, except in material compliance with Environmental Laws, and (ii) otherwise in compliance with all Environmental Laws in all material respects, without regard to whether any Hazardous Materials or violations of Environmental Laws existed at the Premises as of the Effective Date.  “ Hazardous Materials ” means (i) asbestos and any asbestos containing material, (ii) any substance that is then defined or listed in, or otherwise classified pursuant to, any Environmental Law or any other applicable Law as a “hazardous substance,” “hazardous material,” “hazardous waste,” “infectious waste,” “toxic substance,” “toxic pollutant,” “pollutant,” “contaminant” or any other formulation intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, or Toxicity Characteristic Leaching Procedure (TCLP) toxicity, and (iii) any petroleum product, cleaning solvents, polychlorinated biphenyls, urea formaldehyde, radioactive material (including any source, special nuclear, or by-product material), chlorofluorocarbon, lead or lead-based product, and any other substance whose presence is regulated as detrimental to the Premises or hazardous to health or the environment.  “ Environmental Law ” means any applicable and binding present and future laws, ordinances, regulations, administrative rulings, permits and other requirements, policies or guidelines of governmental authorities applicable to the Premises and relating to the environment and environmental conditions, industrial hygiene, or public health (as it relates to exposure to Hazardous Materials), or to any Hazardous Material (including, without limitation, CERCLA, 42 U.S.C. § 9601 et seq ., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq ., the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq ., the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq ., the Clean Air Act, 33 U.S.C. § 7401 et seq ., the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq ., the Safe Drinking Water Act, 42 U.S.C. § 300f et seq ., the Emergency Planning and Community Right-To-Know Act, 42 U.S.C. § 1101 et seq ., the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq ., and any so-called “Super Fund” or “Super Lien” law, and any Law requiring the filing of reports and notices relating to Hazardous Materials, environmental laws administered by the Environmental Protection Agency, and any similar state and local Laws.

 

(b)                                  Tenant shall give Landlord a written notice of any actual or threatened material Environmental Event.  An “ Environmental Event ” means a violation of an Environmental Law; a release, spill, discharge or detection of a Hazardous Material (in all cases in violation of Environmental Law) in, on or from the Premises (regardless of whether or not a reporting requirement exists); or an environmental condition requiring material responsive action under Environmental Law.  Upon any Environmental Event, in addition to all other rights available to Landlord under this Lease, at law or in equity, Tenant shall, at Tenant’s sole cost and expense, cure such Environmental Event, in accordance with all Environmental Laws and take any other action deemed necessary by any governmental authority for protection of human health or the environment.  In the event that Tenant fails to cure the Environmental Event as required by law, Landlord shall have the right (but not the obligation) to perform, at Tenant’s sole cost and expense, any action required pursuant to Environmental Laws to address the same, in which event Tenant shall pay the costs thereof to Landlord, upon demand, as additional rent.

 

(c)                                   As a material consideration for Landlord’s willingness to enter into this Lease, Tenant hereby waives, and releases Landlord from any and all claims for damage, injury or loss (including without limitation, claims for the interruption of or loss to business)

 

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which relate to any Environmental Event, whether occurring prior or subsequent to the Effective Date, except to the extent that such Environmental Event arises directly out of the gross negligence or willful misconduct of Landlord.  Promptly upon Landlord’s request, given not more than once in any twelve (12) month period, Tenant shall execute from time to time affidavits, representations and similar documents concerning Tenant’s knowledge and belief regarding the presence of Hazardous Materials and compliance with Environmental Laws at the Premises.  Tenant shall, at its sole cost and expense, protect, defend, indemnify and hold harmless Landlord from and against any and all losses, including, but not limited to, all costs of remediation (whether or not performed voluntarily) arising out of or in any way relating to any Environmental Event, any Hazardous Materials or any Environmental Laws, except with respect to Environmental Events to the extent arising directly out of the gross negligence or willful misconduct of Landlord.

 

(d)                                  In the event that Landlord has a reasonable basis to believe that a material Environmental Event has occurred, Landlord and any other person designated by Landlord shall have the right, but not the obligation, to enter upon the Premises at reasonable times and with reasonable notice to Tenant to assess any and all aspects of the environmental condition of the Premises and its use including, but not limited to, conducting any environmental assessment or audit (the scope of which shall be determined in Landlord’s sole and absolute discretion) and taking samples of soil, groundwater or other water, air, or building materials, and conducting other invasive testing.  Tenant shall cooperate with, and provide reasonable access to, Landlord and any other person designated by Landlord.  Any such assessment or investigation shall be at Tenant’s sole cost and expense.

 

(e)                                   Tenant’s obligations pursuant to this Section 14 shall survive the expiration or earlier termination of this Lease.

 

(f)                                    Tenant further covenants and agrees that:

 

(1)                                  Tenant shall not engage in any earth disturbing or ground penetrating activities without the prior written consent of Landlord; provided , however , that (i) such consent shall not be unreasonably withheld, delayed or conditioned (except if such activities are being done in connection with a Major Alteration, in which case such consent shall be in Landlord’s sole discretion) and (ii) routine repair and maintenance of any paved roadways or parking areas and routine landscaping activities shall be permitted without Landlord consent.

 

(2)                                  Tenant shall maintain and not disturb any surface area cover or improvements, such as parking lots and driveways, without the prior written consent of Landlord in each instance.

 

15.                                Damage by Fire or Other Casualty .

 

(a)                                  If the Improvements, or any material part thereof, located on any of the Premises are destroyed or damaged by fire or other casualty, Tenant shall promptly deliver written notice thereof to Landlord.  In no event shall this Lease terminate and Tenant shall proceed with commercially reasonable diligence to rebuild and repair the Improvements to not less than a substantially equivalent condition in which they existed prior to such damage (taking

 

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into account applicable Laws, and subject to Tenant’s right to make Alterations in accordance with the provisions of this Lease).

 

(b)                                  The insurance proceeds payable under insurance policies maintained by Tenant by reason of the occurrence of such fire or other casualty to the Improvements shall be paid to Tenant to be used in the restoration of the Premises in accordance with this Section 15 .  Notwithstanding the foregoing, if the estimated cost of restoration or repair of the Improvements shall be Five Hundred Thousand and 00/100 Dollars ($500,000.00) (as Adjusted for Inflation) or more, then the insurance proceeds payable under insurance policies maintained by Tenant by reason of the occurrence of such fire or other casualty to the Improvements shall be paid to the Depositary (defined below).  The Depositary shall promptly make available in installments, subject to reasonable conditions for disbursement imposed by the Depositary, an amount up to but not exceeding the amount of any net insurance proceeds received with respect to such casualty event to be applied to the cost of repair and restoration of the Improvements and Fixtures.  Any insurance proceeds allocated to Tenant’s personal property (including, but not limited to, Tenant’s equipment at the Premises) shall neither be included in the estimated cost of restoration or repair pursuant to Section 15(b)  of this Lease nor held by the Depositary pursuant to this Section 15(b) .  Insurance proceeds allocated to Tenant’s personal property shall, in all cases, be paid directly to Tenant.  Prior to the disbursement of any portion of insurance proceeds, Tenant shall provide evidence reasonably satisfactory to the Depositary of the payment of restoration expenses by Tenant up to the amount of the insurance deductible applicable to such casualty event.  Tenant shall (a) bear all additional costs of such restoration in excess of the insurance proceeds, and (b) be entitled to keep (after the completion of the restoration) any portion of the insurance proceeds which may be in excess of the cost of restoration.  Notwithstanding anything to the contrary in the foregoing, all insurance proceeds payable to Tenant attributable to Tenant’s personal property on the Premises (including, but not limited to, the Fixtures) shall be paid directly to Tenant and shall not be subject to the process otherwise described in this Section 15(b) .  “ Depositary ” shall mean (a) Landlord’s lender, so long as Landlord’s lender or its designee also qualifies as an Institutional Lender (or is a wholly-owned subsidiary of an Institutional Lender that is generally used for depositary functions), or (b) an Institutional Lender mutually agreeable to Landlord and Tenant.  Any Depositary so designated pursuant to the preceding sentence shall not serve as Depositary unless and until it executes and delivers an agreement reasonably satisfactory to Landlord, Tenant and Depositary in which it agrees to comply with the applicable provisions of this Section 15 .  All fees and expenses of any Depositary shall be borne by Tenant.  “ Institutional Lender ” shall mean a savings and loan association, savings bank, commercial bank or trust company, insurance company, educational institution, welfare, pension or retirement fund or system, any other entity subject to supervision and regulation by the insurance or banking departments of the State of New York or by a department or agency of the United States exercising similar functions (or any successor department or departments hereafter exercising the same functions as said departments), any governmental agency or entity insured by a governmental agency, a finance company, a private mortgage company, a conduit or pooled mortgage (or other real estate) investment fund, a real estate investment trust, an investment bank, or any other lender generally considered an “institutional” real estate lender, having net assets in excess of $1,000,000,000, and which makes loans secured by real estate as an ordinary part of its business.

 

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16.                                Condemnation .

 

(a)                                  Tenant shall have the option to terminate this Lease by delivering written notice of termination to Landlord, with such termination to be effective as of the date of such notice, if (i) more than thirty percent (30%) of the rentable area of the Premises, (ii) less than all, but a significant portion, of the Premises (such that Tenant reasonably determines that the remaining portion of such Premises cannot be operated for Tenant’s business (and having sufficient parking therefor)), or (iii) a substantial portion of the means of ingress to or egress from the Premises, parking, or any necessary service drives or loading docks or facilities, shall be acquired by the right of condemnation or eminent domain or deed in lieu thereof for any public or quasi-public use or purpose, or sold to a condemning authority under threat of condemnation (a “ Taking ”).  In the event of any such termination, the Term shall cease and terminate, and Landlord and Tenant shall thereafter have no further duties, liabilities or obligations under this Lease (other than those theretofore accruing or that expressly survive the expiration or earlier termination of this Lease); provided , however , that any prepaid rent or other sums paid by Tenant hereunder shall be refunded by Landlord to Tenant within thirty (30) days of the date of said notice of termination.

 

(b)                                  In the event of a partial Taking in respect of which Tenant does not have the right to terminate this Lease pursuant to Section 16(a) , or if Tenant shall elect not to so terminate this Lease, then, subject to subparagraph (c) below, Tenant shall promptly repair, alter and restore the Premises to operable condition, and this Lease shall continue in full force and effect (but with a reduction of rent, as reasonably agreed by Landlord and Tenant, equitably reflecting the portion of the rentable area of the Premises subject to the partial Taking).

 

(c)                                   In the event of a Taking resulting in a termination of this Lease, Landlord shall be entitled to the entire condemnation award allocable to the Premises, provided that Tenant may be entitled to assert a separate claim for Tenant’s personal property and trade fixtures located on the Premises and for interruption of business and moving expenses.  In the event of a Taking that does not result in termination of this Lease.  Landlord shall promptly make available in installments, subject to reasonable conditions for disbursement imposed by Landlord, an amount up to but not exceeding the net condemnation award received by Landlord with respect to such condemnation to be applied to the cost of repair and restoration of the Improvements and Fixtures.  Landlord shall be entitled to keep any portion of the condemnation award in excess of the cost of restoration.

 

(d)                                  Any compensation for a temporary taking shall be payable to Tenant without participation by Landlord, except to the proportionate extent such temporary taking extends beyond the end of the Term, and there shall be no reduction or abatement of rent as a result of any temporary taking affecting any of the Premises.

 

17.                                Liability and Indemnification .

 

(a)                                  Landlord, its partners, officers, directors, members, trustees, employees, agents and lenders shall have no liability for and shall not assume any liability or responsibility to Tenant, its employees, agents, invitees, licensees, assignees, sublessees, customers, clients, contractors or guests for any damage, injury, loss, compensation or claim

 

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based on, arising out of or resulting from any cause whatsoever including the negligence of Landlord’s Indemnitees (unless arising solely from the gross negligence or willful misconduct of any Landlord Indemnitee, as defined herein) including, but not limited to claim of loss of business or interruption of operations, or any consequential or punitive damages or indirect losses whatsoever.  Any inventory, goods, furnishings, fixtures, property or personal effects placed or stored in or about the Premises shall be at the sole risk of Tenant, and Landlord, its employees and agents shall not be responsible or liable for such property.  Tenant shall indemnify, defend upon request and hold Landlord, its partners, officers, directors, members, trustees, employees, agents and lenders (collectively, the “ Landlord Indemnitees ”) harmless from and against, all demands, causes of action, judgments, costs, damages, claims, liabilities, expenses, losses, penalties and court costs suffered by or claimed against any of them (whether arising from events prior or subsequent to the Effective Date), directly or indirectly, based on or arising out of, in whole or in part: (i) the use, condition, operation, maintenance, repair, alteration, and occupancy of the Premises or the business conducted therein or therefrom, (ii) any act, omission, negligence or willful misconduct of Tenant, (iii) contamination of the Premises or the ground waters beneath or adjacent thereto, any discharge of toxic or hazardous sewage or waste materials from the Premises into any septic facility or sewer system, (iv) any violation of Environmental Law, (v) any breach, violation or nonperformance by Tenant or any person claiming under Tenant of any of the terms, provisions, representations, warranties, covenants or conditions of this Lease on Tenant’s part to be performed, including without limitation, the failure to comply with Laws, (vi) any Title Restrictions, including any easements or other agreements entered into by Landlord at the request of or with the consent of Tenant following the Effective Date, and (vii) any accident, injury, death or damage to the person, property or business of Tenant, or any other person that shall happen at, in, upon, or arising out of the Premises, however occurring; provided, that in no event shall Tenant be required to indemnify, defend or hold harmless any Landlord Indemnitees to the extent any indemnified claims results from the gross negligence or willful misconduct of any Landlord Indemnitee.  The phrase “gross negligence or willful misconduct of any Landlord Indemnitee” as used in this Section 17(a)  shall not include any negligence or misconduct imputed as a matter of law to Landlord by reason of Landlord’s ownership of the Premises or Landlord’s failure to act with respect to matters which are or were the obligation of Tenant under this Lease.  A Landlord Indemnitee need not have first paid any such claim to be so indemnified and held harmless by Tenant.

 

(b)                                  Tenant, upon written notice from Landlord, shall defend any claim against a Landlord Indemnitee for which indemnification is applicable, at Tenant’s sole expense using legal counsel reasonably satisfactory to Landlord, and Landlord shall and shall cause any applicable Landlord Indemnitees to cooperate with Tenant in such defense.  No Landlord Indemnitee shall compromise or settle any claim for which such Landlord Indemnitee is seeking indemnification from Tenant pursuant to this Section 17 unless such settlement or compromise is consented to in writing by Tenant (which consent shall not be unreasonably withheld, delayed or conditioned).  Tenant’s indemnity obligations under this Section 17 and elsewhere in this Lease arising prior to the termination of this Lease shall survive such termination.

 

(c)                                   Notwithstanding anything to the contrary contained in this Lease, except to the extent (if any) of third party claims covered under an indemnity set forth in this Lease and except as provided in Section 24 of this Lease, in no event shall Landlord or Tenant have the right to seek or receive special, punitive or other similar measures of damages against

 

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the other nor shall Landlord or Tenant be entitled to receive any consequential, indirect or speculative damages, and each party hereby irrevocably waives, for itself and its successors and assigns, its right to seek or receive any such measure of damages or remedy.

 

18.                                Assignment and Subletting .

 

(a)                                  Tenant shall not, voluntarily, involuntarily, by operation of law or otherwise, except with the prior written consent of Landlord (in Landlord’s sole and absolute discretion, except as may be otherwise expressly provided in this Section 18 ) in each case:  (i) assign or otherwise transfer this Lease, (ii) sublet the Premises or any part thereof, or allow same to be used or occupied by any person other than Tenant or (iii) mortgage, pledge, encumber or otherwise hypothecate this Lease or any portion of the Premises (any of the foregoing actions under clauses (i), (ii) or (iii), a “Transfer” ).  Any purported Transfer in violation of this Section 18 shall be null and void ab initio.

 

(b)                                  (1)                                  The following shall be deemed to be an assignment of this Lease under this Section 18 and prohibited thereby unless Tenant obtains the prior written consent of Landlord (in Landlord’s sole and absolute discretion) in each instance:  one or more sales or transfers of stock, partnership interests, membership interests or other beneficial interests, voluntarily, involuntarily, by operation of law or otherwise, or the issuance of new stock, partnership interests, membership interests or other beneficial interests, in any case by which (x) an aggregate of fifty percent (50%) or more of Tenant’s stock, partnership interests, membership interests or other beneficial interests shall be vested (whether directly or indirectly) in a party or parties who are not stockholders, partners, members or other owners (whether directly or indirectly) as of the date hereof or (y) there is (by reason of a change in the direct or indirect general partner, managing member or voting shareholder(s) of Tenant, or otherwise) a transfer of the direct or indirect right to direct the day-to-day management and operation of such Tenant to a party or parties who do not have such power (whether directly or indirectly) as of the date hereof (any of the foregoing sales or transfers, however accomplished and whether in a single transaction or in a series of related or unrelated transactions, a “ Change of Control ”).  In the event that the voting stock (or other equity interests) of Tenant or its direct or indirect parent is listed on a national securities exchange or is traded in the over-the-counter market with quotations reported by the National Association of Securities Dealers through its automated system for reporting quotations, the provisions of this Section 18(b)  shall not apply to sales, issuances or transfers of shares (or other equity transfers) of Tenant or such direct or indirect parent.

 

(2)                                  Notwithstanding any provision of this Section 18 (other than Section 18(n) ) to the contrary, provided that Tenant shall not then be in monetary default or material non-monetary default, in either case beyond applicable notice and cure periods, under this Lease, Tenant may, without Landlord’s consent (but upon at least fifteen (15) days’ prior notice to Landlord providing reasonable evidence that the applicable conditions are satisfied):

 

i.                                           assign its interest in this Lease to an Affiliate (as hereafter defined) of Tenant;

 

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ii.                                        assign its interest in this Lease to any Successor Entity (as hereinafter defined) as long as (x) the applicable transaction is for a valid business purpose and not principally for the purpose of transferring the leasehold estate created hereby and (y) such Successor Entity is acquiring (in the same transaction) significant assets other than its direct or indirect interest in this Lease and the personal property located at the Premises (including, without limitation, the business conducted by Tenant at the Premises); or

 

iii.                                     effectuate a Change of Control as long as (x) the applicable transaction is for a valid business purpose and not principally for the purpose of indirectly transferring the leasehold estate created hereby and (y) Tenant (or the entity with respect to which the Change of Control is occurring) will immediately after such Change of Control own (and has owned for the previous twelve (12) month period) significant assets other than its direct or indirect interest in this Lease and the personal property located at the Premises (including, without limitation, the business conducted at the Property).

 

(3)                                  Nothing herein shall prohibit the assignment or transfer of direct or indirect interests in Tenant by an individual to a Family Transferee (as defined below) of the transferor, provided that such assignment or transfer is solely for the purposes of estate planning or in connection with the death of the transferor and prompt notice of such assignment or transfer is given to Landlord.

 

(c)                                   As used herein:

 

(1)                                  the term “ Affiliate ” shall mean any corporation or other business entity which controls, is controlled by, or is under common control with the Tenant initially named in this Lease or any Successor Entity (with “control” being deemed to mean both (i) direct or indirect ownership of an aggregate of fifty percent (50%) or more of the stock, partnership interests, membership interests or other beneficial interests of such corporation or business entity and (ii) the direct or indirect right to direct the day-to-day management and operation of such corporation or business entity);

 

(2)                                  the term “ Family Transferee ” shall mean the spouse, sibling and/or descendant (whether biological or by adoption or step-relationship) of the transferor and/or a trust for the benefit of the transferor and/or any of the foregoing persons; and

 

(3)                                  the term “Successor Entity” shall mean (i) a corporation or other entity into or with which Tenant is merged or consolidated or (ii) a corporation or other entity acquiring all or substantially all of the assets of Tenant.

 

(d)                                  If this Lease is assigned, whether or not in violation of the provisions of this Lease, Landlord may collect rent from the assignee.  If the Premises or any part thereof is sublet or occupied by any person other than Tenant, whether or not in violation of this Lease, Landlord may, after default by Tenant and expiration of Tenant’s time to cure such default, collect rent from the subtenant or occupant.  In either event, Landlord may apply the net amount collected to rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any of the provisions of this Section 18 , or the acceptance of the assignee, subtenant or occupant as Tenant, or a release of Tenant from the performance by

 

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Tenant of Tenant’s obligations under this Lease.  The consent by Landlord to any assignment, mortgaging, subletting or occupancy by others shall not relieve Tenant of the obligation to obtain the consent of Landlord to any other or further assignment, mortgaging, subletting or occupancy by others not expressly permitted by this Section 18 .

 

(e)                                   Any assignment or transfer (but not including a Change of Control or a pledge, mortgage or like transaction), whether or not Landlord’s consent is required, shall be made only if and shall not be effective until the assignee executes, acknowledges and delivers to Landlord an agreement in form and substance reasonably satisfactory to Landlord whereby the assignee assumes all of the obligations of Tenant under this Lease and whereby the assignee agrees that the provisions of this Section 18 shall, notwithstanding such assignment or transfer, continue to be binding upon it in respect of all future assignments and transfers.  Notwithstanding any assignment or transfer, whether or not in violation of the provisions of this Lease, and notwithstanding the acceptance of rent by Landlord from an assignee, transferee, or any other person, the original Tenant herein named and any and all successors in interest of the original Tenant herein named shall remain fully liable (jointly and severally with any immediate or remote successor in interest, including the then Tenant) for the payment of rent and for all of the other obligations of Tenant under this Lease.

 

(f)                                    The liability under this Lease of the original Tenant herein named and any immediate or remote successor in interest of the original Tenant herein named shall not be discharged, released or impaired in any respect by any agreement or stipulation made by Landlord with the then Tenant extending the term of, or modifying any of the obligations under, this Lease, or by any waiver or failure of Landlord to enforce any of the obligations of Tenant under this Lease.

 

(g)                                   Neither the listing of any name other than that of Tenant on any signage, nor the acceptance by Landlord of any check drawn or payment made by a person other than Tenant in payment of rent, shall operate to vest in any person any right or interest in this Lease or in the Premises, nor shall same be deemed to be the consent of Landlord to any assignment or transfer of this Lease or to any sublease of the Premises or to the occupancy thereof by any person other than Tenant.

 

(h)                                  Tenant shall reimburse Landlord within ten (10) Business Days after demand for any reasonable costs incurred by Landlord in connection with any proposed assignment or sublease, whether or not consented to by Landlord, including the cost of making investigations as to the acceptability of the proposed assignee or subtenant, and reasonable attorneys’ fees and disbursements in connection with the granting of any requested consent.

 

(i)                                      With respect to any subletting or licensing to any subtenant or licensee (or any other occupancy) and/or acceptance of rent by Landlord from any subtenant, licensee or occupant, (i) Tenant shall remain fully liable for the payment of rent due and to become due hereunder and for all of the other obligations of Tenant under this Lease and (ii) Tenant shall remain fully liable for all acts and omissions of any licensee, subtenant or occupant (or any person claiming through or under any licensee, subtenant or occupant) that are in violation of any of the obligations of Tenant under this Lease, and any such violation shall be deemed to be a violation by Tenant.  Notwithstanding any such subletting, licensing or

 

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occupancy, no other or further subletting, licensing or occupancy of the Premises by Tenant or any person claiming through or under Tenant shall be made except in compliance with and subject to the provisions of this Section 18 (as if such subtenant, licensee or occupant were Tenant).  If Landlord declines to give its consent to any proposed assignment or sublease (or license or other occupancy), Tenant shall indemnify Landlord against liability in connection with any claims made against Landlord by the proposed assignee or subtenant (or licensee or other occupant) or by any brokers or other persons claiming a commission or similar compensation in connection with the proposed assignment, sublease, license or occupancy.

 

(j)                                     Notwithstanding any provision of this Section 18 to the contrary, Tenant may, without Landlord’s consent, (i) allow any Affiliate of Tenant to use or occupy all or a portion of the Premises or (ii) sublet all or any part of the Premises to any Affiliate of Tenant; subject however (in either event) to compliance with Tenant’s obligations under this Lease and provided in each case that (x) such sublease shall comply in all respects with all of the conditions set forth in Section 18(m)  and (y) not less than ten (10) Business Days prior to the commencement of such use of such subletting (and at any time thereafter but not more often than twice per calendar year, promptly after Landlord’s request) Tenant shall furnish Landlord with a certification of Tenant, and such other documentation as Landlord may reasonably request, evidencing that such sublessee or user is an Affiliate of Tenant.  From and after any date on which such sublessee or user shall become no longer an Affiliate of Tenant while such sublease or occupancy is continuing, then the use or sublease shall become a transaction to which Landlord’s consent is required pursuant to this Section 18 .

 

(k)                                  If Tenant desires to assign this Lease or sublet all or any portion of the Premises, including any assignment or sublet in connection with any proceeding under Insolvency Law or any other Laws relating to insolvency or bankruptcy, then Tenant shall give notice thereof to Landlord, which notice shall be accompanied by (i) in the case of a proposed assignment, the audited financial statements of the proposed assignee for the most recent two (2) years and (ii) in the case of a proposed assignment or proposed subletting, either (x) a term sheet setting forth all of the material business terms of such proposed assignment or sublease (including, without limitation, the name of the proposed assignee or sublessee and, in the case of subleasing, a depiction of the space proposed to be sublet and a statement as to the square footage thereof) or (y) a proposed form of assignment agreement or sublease (with all material terms included, including, without limitation, the name of the proposed assignee or sublessee).  Tenant shall also provide Landlord with such financial and other information regarding the proposed assignee or sublessee (and its business) as Landlord shall reasonably request.

 

(l)                                      Landlord’s consent (which shall be in form reasonably satisfactory to Landlord and Tenant) to a proposed assignment of this Lease shall be in Landlord’s sole discretion, and in any event (without limiting such consent right) any such consent shall be upon the express conditions that:

 

(1)                                  Tenant has complied with all of the applicable provisions of this Section 18 (including, without limitation, the requirements set forth in Section 18(m)  with respect to any proposed sublease);

 

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(2)                                  Tenant is not then in default of any of its monetary or material non-monetary obligations under this Lease beyond any applicable notice and cure periods; and

 

(3)                                  the Premises will be used in a manner which is in keeping with this Lease (including, without limitation, Section 6 ).

 

(m)                              Landlord’s consent (which shall be in form reasonably satisfactory to Landlord and Tenant) to a proposed sublease shall not be unreasonably withheld, delayed or conditioned, and (without limiting such consent right) in any event any such consent shall be upon the express conditions that:

 

(1)                                  such sublease shall be for a term ending no later than the day immediately preceding the last day of the Term (taking into account a renewal option only if such renewal option has already been exercised);

 

(2)                                  such sublease shall be valid, and the subtenant shall take possession of the applicable portion(s) of the Premises, only after a true, correct and complete fully-executed copy of such sublease has been delivered to Landlord (and any required consent by Landlord has been obtained);

 

(3)                                  such sublease shall provide that it is subject and subordinate to this Lease and to the matters to which this Lease is or shall be subordinate, and that in the event of termination, reentry or dispossess by Landlord under this Lease, Landlord may, at its option, take over all of the right, title and interest of Tenant, as sublessor, under the then-executory terms of such sublease, and such subtenant shall, at Landlord’s option, attorn to Landlord pursuant to the then-executory provisions of such sublease and execute and deliver such instruments as Landlord may reasonably request to evidence and confirm such attornment, except that Landlord shall not be (i) liable for any previous act or omission of Tenant under such sublease, (ii) subject to any offset which had accrued to such subtenant against Tenant, (iii) bound by any previous modification of such sublease not consented to by Landlord or by any prepayment of more than one month’s rent or additional rent, (iv) obligated to make any payment to or on behalf of such subtenant or to perform any repairs or other work in the subleased space or the Building beyond Landlord’s obligations under this Lease, or (v) required to account for any security deposit other than any actually delivered to Landlord; and

 

(4)                                  the conditions set forth in clauses (1), (2) and (3) of Section 18(l)  shall be fulfilled.

 

(n)                                  Notwithstanding any provision herein to the contrary, in no event shall any assignment, sublease or Change of Control be permitted if the assignee, sublessee or (after a Change of Control) Tenant shall be a person or entity (i) with which a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States or (ii) that is a Prohibited Person (as defined below).

 

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19.                                Default .

 

(a)                                  Each of the following events shall be an “ Event of Default ” by Tenant under this Lease:

 

(1)                                  Tenant shall fail to pay any installment of rent hereby reserved as and when the same shall become due and payable and shall not cure such default within five (5) Business Days after written notice thereof is given by Landlord to Tenant; provided , however , that (with respect to Base Rent) Landlord shall only be required to provide such five (5) Business Day notice and cure period twice in any 12 month period; or

 

(2)                                  Tenant shall fail to comply with any material term, provision or covenant of this Lease, other than the payment of rent or with respect to a Transfer, and shall not cure such failure within thirty (30) days after written notice thereof is given by Landlord to Tenant (provided that if such default cannot reasonably be cured within thirty (30) days, then Tenant shall have an additional period of time as shall be reasonable under the circumstances within which to cure such default provided that Tenant commences said cure within said thirty (30) days and diligently and continuously pursues such cure to completion); or

 

(3)                                  The occurrence of an Event of Insolvency, as hereinafter defined in Section 20 ; or

 

(4)                                  A Transfer shall occur without Landlord’s required consent or otherwise in violation of Section 18 of this Lease (and such Transfer is not fully rescinded within five (5) Business Days after written notice).

 

(b)                                  Upon the occurrence of an Event of Default by Tenant, and while such Event of Default remains uncured, Landlord shall have the option to pursue any one or more of the following remedies without any further notice or demand whatsoever:

 

(1)                                  Terminate this Lease, in which event Tenant shall immediately surrender the Premises to Landlord, and if Tenant fails so to do, Landlord may, without prejudice to any other remedy which Landlord may have for possession or arrearages in rent, enter upon and take possession of the Premises and expel or remove Tenant and any other person who may be occupying the Premises, or any part thereof; and Tenant agrees to pay to Landlord on demand the amount of all loss and damage which Landlord may actually suffer by reason of such termination, whether through inability to relet the Premises on satisfactory terms or otherwise;

 

(2)                                  Enter upon and take possession of the Premises and expel or remove Tenant and other persons who may be occupying the Premises, or any part thereof, without being deemed guilty in any manner of trespass or becoming liable for any loss or damage resulting therefrom, without resort to legal or judicial process, procedure or action.  No notice from Landlord hereunder or under a forcible entry and detainer statute or similar law shall constitute an election by Landlord to terminate this Lease unless such notice specifically so states.  Landlord reserves the right following any re-entry and/or reletting to exercise its right to terminate this Lease by giving Tenant written notice thereof, in which event this Lease will terminate;

 

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(3)                                  Relet the Premises or any part thereof for such term or terms (including a term which extends beyond the Primary Term), at such rentals and upon such other terms as Landlord, in its sole discretion, may determine, with all proceeds received from such reletting being applied to the rent due from Tenant in such order as Landlord may, in its sole discretion, determine, which rent shall include, without limitation, all repossession costs, brokerage commissions, reasonable attorneys’ fees and expenses, alteration, remodeling and repair costs and expenses of preparing for such reletting.  Except to the extent required by applicable law, Landlord shall have no obligation to relet the Premises or any part thereof and shall in no event be liable for refusal or failure to relet the Premises or any part thereof or, in the event of any such reletting, for refusal or failure to collect any rent due upon such reletting, and no such refusal or failure shall operate to relieve Tenant of any liability under this Lease or otherwise to affect any such liability.  Landlord reserves the right following any re-entry and/or reletting to exercise its right to terminate this Lease by giving Tenant written notice thereof, in which event this Lease will terminate as specified in said notice;

 

(4)                                  Accelerate and recover from Tenant all rent due and owing and scheduled to become due and owing under this Lease both before and after the date of such Event of Default for the entire Term (including any renewal term for which Tenant shall have exercised the applicable renewal option), to the extent and in such manner as is provided for under applicable Laws;

 

(5)                                  Recover from Tenant all costs and expenses paid or incurred by Landlord as a result of such Event of Default, regardless of whether or not legal proceedings are actually commenced; or

 

(6)                                  Enter upon the Premises and do whatever Tenant is obligated to do under the terms of this Lease, and Tenant agrees to reimburse Landlord within fifteen (15) days after Landlord’s written demand therefor for any reasonable expenses which Landlord may actually incur in affecting compliance with Tenant’s obligations hereunder.

 

All powers and remedies given by Section 19 to Landlord, subject to applicable Law, shall be cumulative and not exclusive of one another or of any other right or remedy or of any other powers and remedies available to Landlord under this Lease, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements of Tenant contained in this Lease, and no delay or omission of Landlord to exercise any right or power accruing upon the occurrence of any Event of Default shall impair any other or subsequent Event of Default or impair any rights or remedies consequent thereto.  Every power and remedy given by this Section 19 or by applicable Law to Landlord may be exercised from time to time, and as often as may be deemed expedient, by Landlord, subject at all times to Landlord’s right in its sole judgment to discontinue any work commenced by Landlord or change any course of action undertaken by Landlord.  Forbearance by Landlord to enforce one or more of the remedies herein provided upon the occurrence of an Event of Default by Tenant shall not be deemed or construed to constitute a waiver of such default.

 

20.                                Tenant Bankruptcy .  An “ Event of Insolvency ” is the occurrence with respect to Tenant of any of the following: (a) the earlier to occur of either (i) the filing of a petition for the appointment of a receiver or custodian or (ii) the appointment of a receiver or

 

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custodian for any of its property; (b) filing of a voluntary petition under the provisions of the Title 11 of the United States Code (the “ Bankruptcy Code ”) or under the insolvency laws of any state (the “ Insolvency Laws ”) or the admission in writing of its inability to pay debts generally as they become due; (c) filing of an involuntary petition against it as the alleged debtor under the Bankruptcy Code or any Insolvency Law which either (i) is not dismissed within sixty (60) days after filing, or (ii) results in the issuance of an order for relief against the alleged debtor; or (d) making or consenting to an assignment for the benefit of creditors or a composition of creditors.

 

21.                                Right of Inspection .  After reasonable written notice to Tenant (except in case of emergency), Landlord and Landlord’s agents and representatives shall be entitled to enter upon and inspect the Premises at any time during Tenant’s normal business hours (or other hours, in case of emergency), so long as such inspection shall not unreasonably interfere with Tenant’s ordinary business operations and Tenant shall have the reasonable opportunity to have a representative present at such inspection.

 

22.                                Covenant of Quiet Enjoyment .  Tenant, so long as this Lease is in full force and effect, shall peaceably and quietly hold and enjoy the Premises pursuant to this Lease for the Term, without any hindrance, molestation or ejection by Landlord or Landlord’s successors or assigns, any of Landlord’s lenders or any other Person claiming by, through or under Landlord or such successors or assigns.

 

23.                                Subordination and Non-Disturbance .

 

(a)                                  Provided that Tenant receives a written, fully executed non-disturbance agreement as hereinafter provided, this Lease is subject and subordinate to the lien, provisions, operation and effect of any first lien deed of trust or mortgage in favor of any institutional lender to Landlord or any of Landlord’s affiliates (a “ Fee Mortgage ”), to all funds and indebtedness intended to be secured thereby, and to all renewals, extensions, modifications, recastings or refinancings thereof.  A lender holding a Fee Mortgage to which this Lease is subordinate shall have the right at any time to declare this Lease to be superior to the lien, provisions, operation and effect of such Fee Mortgage and Tenant shall execute, acknowledge and deliver all documents required by such lender in confirmation thereof.  Tenant’s aforesaid subordination shall be expressly conditioned upon Tenant’s receipt of a non-disturbance agreement in favor of Tenant from Landlord’s lender in form and substance reasonably satisfactory to Tenant, Landlord and Landlord’s lender.  Within ten (10) Business Days after Landlord’s written request, Tenant shall execute documents required by the lender confirming the foregoing subordination and non-disturbance.

 

(b)                                  Tenant waives the provisions of any statute or rule of law now or hereafter in effect which may give or purport to give Tenant any right to terminate or otherwise adversely affect this Lease and Tenant’s obligations hereunder in the event any foreclosure proceeding is prosecuted or completed or in the event the Premises or Landlord’s interest therein is transferred by foreclosure, by deed in lieu of foreclosure or otherwise.  If this Lease is not extinguished upon any such transfer or by the transferee following such transfer, then, within five days of a written request of such transferee, Tenant shall attorn to such transferee and shall recognize such transferee as the landlord under this Lease.  Tenant agrees that upon any such

 

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attornment, such transferee shall not be (a) bound by any payment of the Base Rent more than one (1) month in advance, except prepayments in the nature of security for the performance by Tenant of its obligations under this Lease, but only to the extent such prepayments have been delivered to such transferee, (b) bound by any amendment of this Lease made without the written consent of any lender with a Fee Mortgage as of the date of such amendment, (c) liable for damages for any breach, act or omission of any prior landlord, or (d) subject to any offsets or defenses that Tenant might have against any prior landlord; provided , however , that after succeeding to Landlord’s interest under this Lease, such transferee shall agree to perform in accordance with the terms of this Lease all obligations of Landlord arising after the date of transfer.  Within ten (10) Business Days after written request of such transferee, Tenant shall execute, acknowledge and deliver any reasonable document submitted to Tenant confirming such attornment.

 

(c)           If (i) the Premises are at any time subject to a Fee Mortgage, (ii) this Lease and rent payable hereunder is assigned to the lender, and (iii) Tenant is given notice of such assignment, including the name and address of the assignee, then, in that event, Tenant shall not terminate this Lease or make any abatement in the rent payable hereunder for any default on the part of the Landlord without first giving notice, in the manner provided elsewhere in this Lease for the giving of notices, to the lender, specifying the default in reasonable detail, and affording such lender a reasonable opportunity to make performance, at its election, for and on behalf of the Landlord, except that (x) such lender shall have at least thirty (30) days to cure the default (or ten (10) Business Days, in the event of a monetary default); (y) if any nonmonetary default cannot be cured with reasonable diligence and continuity within thirty (30) days, such lender shall have any additional time as may be reasonably necessary to cure the default with reasonable diligence and continuity, and (z) if any nonmonetary default cannot reasonably be cured without such lender having obtained possession of the Premises, such lender shall have such additional time as may be reasonably necessary under the circumstances to obtain possession of the Premises and thereafter to cure the default with reasonable diligence and continuity (it being understood and agreed, however, that nothing in this Section 23(c) gives Tenant any right to terminate this Lease or to make any abatement in the rent payable hereunder not otherwise provided in this Lease).  At the request of any such lender from time to time, this Lease shall be modified to add such additional mortgagee protective provisions as such lender shall reasonably propose.

 

(d)           If (i) the Premises are at any time subject to a Fee Mortgage, (ii) this Lease and rent payable hereunder is assigned to the lender, and (iii) Tenant is given notice of such assignment, including the name and address of the assignee, then, in that event, this Lease shall not be amended or modified (including, without limitation, in a manner effecting a termination of this Lease) without the prior written consent of the holder of such Fee Mortgage in each instance.

 

24.          Holding Over by Tenant .  Should Tenant, any assignee, sublessee or licensee of Tenant or any party claiming by, through or under any of them hold over in all or any portion of the Premises after the expiration of the Term, then (unless otherwise agreed by Landlord and Tenant in writing) such holdover shall constitute and be construed as a tenancy from month-to-month only, but otherwise upon the same terms and conditions as during the Term, provided that Tenant shall pay as a holdover charge for each month of the holdover

 

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tenancy (on a per month basis without reduction for partial months during the holdover) an amount equal to 150% of the Base Rent (increased to 200% after the first thirty (30) days) that Tenant was obligated to pay for the month immediately preceding the end of the Term, plus all applicable additional rent.  No holdover by Tenant or payment by Tenant after the termination of this Lease shall be construed to extend the Term or prevent Landlord from immediate recovery of possession of the Premises by summary proceedings or otherwise.  If Landlord is unable to deliver possession of the Premises to a new tenant or to perform improvements for a new tenant as a result of Tenant’s holdover, Tenant shall be liable for all costs, damages, claims, liabilities, expenses, losses, and penalties resulting therefrom (and Tenant hereby agrees to indemnify, defend and hold harmless Landlord from and against such all costs, damages, claims, liabilities, expenses, losses, and penalties).  This Section 24 shall survive the termination or earlier termination of this Lease.

 

25.          Notices and Payments .  Any notice, document or payment required or permitted to be delivered or remitted hereunder or by law shall be deemed to be delivered or remitted, whether actually received or not, on the earlier to occur of (i) when personally delivered to the respective party, (ii) one (1) day after delivery to a nationally recognized overnight courier service addressed in accordance herewith, or (iii) within three (3) Business Days after being deposited in the United States mail, postage prepaid, certified or registered, return receipt requested, addressed to the parties hereto at the respective addresses set forth below, or at such other (or additional) address(es) as they shall have theretofore specified by not less than twenty (20) days prior written notice delivered in accordance herewith:

 

Landlord:

Infrastructure and Energy
Alternatives, LLC
c/o GFI Energy Group of Oaktree
Capital Management, L.P.
11611 San Vicente Blvd., Suite 710

Los Angeles, CA 90049
Attn: Ian Schapiro and Peter Jonna

 

Tenant:

White Construction, Inc.
3900 East White Avenue

Clinton, IN 47842
Attn: David Berthelsen

 

 

 

With a copy to:

M III Partners
3 Columbus Circle
New York, New York 10019
Attention: Mohsin Y. Meghji

 

26.          Force Majeure .  The time for performance by Landlord or Tenant of any term, provision or covenant of this Lease (other than the payment of money) shall be deemed extended by any time lost due to delays resulting from acts of God, strikes, unavailability of building materials, civil riots, floods, material or labor restrictions by governmental authority and any other cause not within the reasonable control of Landlord or Tenant, as the case may be.

 

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27.          Waiver of Subrogation .  Tenant waives any and every claim which arises or may arise in its favor and against during the Term for any and all loss or damage to any of its property located within or upon, or constituting a part of, the Premises, which loss or damage is covered by valid and collectible fire and extended coverage insurance policies (to the extent that such loss or damage is recoverable thereunder) or is required by this Lease to be covered by insurance policies.  Inasmuch as the above waiver will preclude the assignment of any aforesaid claim by way of subrogation (or otherwise) to an insurance company (or any other person), Tenant agrees to give to each insurance company which has issued to it policies of insurance, written notice of the terms of said waiver and to have said insurance policies properly endorsed, if necessary, to prevent the invalidation of said insurance coverages by reason of said waivers.

 

28.          Recording .  This Lease shall not be recorded.  Concurrently with the execution of this Lease, Landlord and Tenant shall execute, acknowledge and deliver a Memorandum of this Lease (the “ Memorandum of Lease ”), in form and substance reasonably satisfactory to Landlord and Tenant, which Memorandum of Lease may be recorded by Tenant in the Real Property Records of the county(ies) in which the Premises is (are) located.  The recording costs relating to the Memorandum of Lease shall be paid by Tenant and any taxes, fees or other charges associated with the recording of the Memorandum of Lease or payable in connection with the execution of the Memorandum of Lease shall be the sole responsibility of Tenant.

 

29.          Waiver of Landlord’s Lien .  Landlord hereby waives all of Landlord’s rights to any contractual, statutory, constitutional or other lien or security interest on any of Tenant’s leasehold interest in the Premises and Tenant’s personal property or the property of any assignee or subtenant that may now or at any time hereafter be situated on the Premises.  If requested by a lender holding or obtaining a security interest in any personal property of Tenant that is located at the Premises, Landlord shall enter into such reasonable and customary documentation as the lender shall reasonably request, including a waiver of any statutory lien that Landlord may have in such personal property and permitting such lender reasonable access to the Premises (before and for a period of time after termination of this Lease) for the purpose of enforcing such lender’s lien with respect to such personal property.

 

30.          Landlord’s Liability Limited to Landlord’s Interest .  If Tenant is awarded a money judgment against Landlord, then recourse for satisfaction of such judgment shall be limited to execution against Landlord’s estate and interest in the Premises.  No other asset of Landlord, any partner, director, member, officer or trustee of Landlord shall be available to satisfy or be subject to such judgment, nor shall any such person or entity be held to have personal liability for satisfaction of any claim or judgment against Landlord or any such individual.

 

31.          [Intentionally Omitted] .

 

32.          Financial Reporting .

 

(a)           Tenant shall keep adequate records and books of account with respect to the Premises, in accordance with generally accepted accounting principles consistently applied.

 

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(b)           Within forty five (45) days after the end of each fiscal quarter and within one hundred eighty (180) days after the end of each fiscal year of Tenant, Tenant shall deliver to Landlord (i) complete consolidated financial statements of Tenant, including a balance sheet, profit and loss statement, statement of stockholders’ equity with fiscal year financial statements and statement of cash flows and all other related schedules for the fiscal period then ended, such statements to detail separately interest expense, income taxes, non-cash expenses, non-recurring expenses, operating lease expense and current portion of long-term debt — capital leases; (ii) income statements for the business at the Premises.  All such financial statements shall be prepared in accordance with GAAP, shall be certified to be accurate and complete by an officer or director of Tenant and (in the case of year-end statements) shall be audited if Tenant otherwise produces audited financial statements.  The financial statements delivered to Landlord need not be audited (except as required above), but Tenant shall deliver to Landlord copies of any audited financial statements of the Tenant which may be prepared, as soon as they are available.  Upon request at any time, Tenant will provide to Landlord any and all reasonable financial information and/or financial statements of Tenant (and in the form or forms) as reasonably requested by Landlord including, but not limited to, as requested by Landlord in connection with Landlord’s filings with or disclosures to any governmental authority, including, without limitation, the financial statements required in connection with Securities and Exchange Commission filings by Landlord or its affiliates.  Notwithstanding the foregoing, at any time when Tenant is a publicly traded company that issues 10Q and 10K reports pursuant to the requirements of the Securities Exchange Act of 1934, the foregoing provisions of this Section 32(b) shall be deemed satisfied.

 

33.          Representations and Warranties .   The representations and warranties of Tenant contained in this Section 33 are being made to induce Landlord to enter into this Lease, and Landlord has relied, and will continue to rely, upon such representations and warranties.  Tenant represents and warrants to Landlord as follows:

 

(a)           Organization, Authority and Status of Tenant.  Tenant has been duly organized or formed, is validly existing and in good standing under the laws of its state of formation and is qualified as a foreign corporation to do business in any jurisdiction where such qualification is required.  All necessary corporate action has been taken to authorize the execution, delivery and performance by Tenant of this Lease and of the other documents, instruments and agreements provided for herein, including without limitation, the Transaction Documents.  Tenant is not, and if Tenant is a “disregarded entity,” the owner of such disregarded entity is not, a “nonresident alien,” “foreign corporation,” “foreign partnership,” “foreign trust,” “foreign estate,” or any other “person” that is not a “United States Person” as those terms are defined in the Bankruptcy Code and the regulations promulgated thereunder.  The person who has executed this Lease on behalf of Tenant is duly authorized to do so.

 

(b)           Enforceability.  This Lease constitutes the legal, valid and binding obligation of Tenant, enforceable against Tenant in accordance with its terms.

 

(c)           OFAC.  As of the Effective Date, (i) neither Tenant nor any person, group or entity that controls Tenant is listed on the list maintained by the United States Department of the Treasury, Office of Foreign Assets Control (commonly known as the OFAC List) or otherwise qualifies as a terrorist, Specially Designated National and Blocked Person or a

 

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person with whom business by a United States citizen or resident is prohibited (each referred to herein as a “ Prohibited Person ”); (ii) neither Tenant nor any person, group or entity that controls Tenant is in violation of any anti-money laundering or anti-terrorism statute, including, without limitation, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, U.S. Public Law 107-56 (commonly known as the USA PATRIOT Act), and the related regulations issued thereunder, including temporary regulations, and Executive Orders (including, without limitation, Executive Order 13224) issued in connection therewith, all as amended from time to time; and (iii) neither Tenant nor any person, group or entity that controls Tenant is acting on behalf of a Prohibited Person.  As used in this Section 33(c), “control” of Tenant shall be deemed to mean either (i) the direct or indirect ownership of an aggregate of fifty percent (50%) or more of the stock, partnership interests, membership interests or other beneficial interests of Tenant or (ii) the direct or indirect right to direct the day-to-day management and operation of Tenant.

 

34.          Miscellaneous .

 

(a)           The captions used in this Lease are for convenience only and shall not be deemed to amplify, modify or limit the provisions hereof.

 

(b)           Words of any gender used in this Lease shall be construed to include any other gender, and words in the singular shall include the plural and vice versa, unless the context otherwise requires.

 

(c)           This Lease shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, legal representatives and permitted successors and assigns.

 

(d)           This Lease contains the entire agreement of the parties hereto with respect to the subject matter hereof and can be altered, amended or modified only by a written instrument executed by all such parties.

 

(e)           If any term or provision of this Lease or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Lease or the application of such term or provision to persons or circumstances (other than those as to which it is held invalid or unenforceable) shall not be affected thereby, and each term and provision of this Lease shall be valid and enforceable to the fullest extent permitted by law.

 

(f)            Nothing herein contained, either in the method of computing rent or otherwise, shall create between the parties hereto, or be relied upon by others as creating, any partnership, association, joint venture or otherwise.  The sole relationship of the parties hereto shall be that of landlord and tenant.

 

(g)           This Lease shall be governed by, and construed in accordance with the laws of the State of Indiana, without regard to conflicts of law principles.

 

(h)           This Lease shall not be construed either for or against Landlord or Tenant, but this Lease shall be interpreted in accordance with the general tenor of the language in an effort to reach a fair and equitable result.

 

32



 

(i)            It is understood that there are no oral agreements or representations between the parties hereto affecting this Lease, and this Lease supersedes and cancels any and all previous negotiations, arrangements, agreements or representations and understandings, if any, between the parties hereto with respect to the subject matter hereof.  There are no other representations or warranties between the parties hereto and all reliance with respect to representations is solely upon the representations and agreements contained in this document.

 

(j)            From time to time during the Term, within ten (10) Business Days after the written request of the other party, each party hereto shall execute and deliver to the other an estoppel certificate in the form annexed as Exhibit C attached hereto, or such other form reasonably requested by Landlord and Tenant.  It is intended that any such statement delivered pursuant to this Section 34(j)  may be relied upon by any prospective purchaser, lender, subtenant, assignee or any entity which is a direct or indirect party to a potential merger, consolidation with or to the acquisition of substantially all of the assets or stock of Landlord or Tenant.

 

(k)           TENANT CONSENTS TO SERVICE OF PROCESS AND ANY PLEADING RELATING TO ANY SUCH ACTION AT THE PREMISES; PROVIDED , HOWEVER , THAT NOTHING HEREIN SHALL BE CONSTRUED AS REQUIRING SUCH SERVICE AT THE PREMISES.  TENANT AND LANDLORD WAIVE ANY OBJECTION TO THE VENUE OF ANY ACTION FILED IN ANY COURT SITUATED IN THE STATE OF INDIANA OR, WITH RESPECT TO ANY FORCIBLE ENTRY AND DETAINER ACTION OR SIMILAR PROCEEDING GOVERNED BY THE LAWS OF THE STATE IN WHICH THE PREMISES ARE LOCATED, IN THE JURISDICTION IN WHICH THE PREMISES IS LOCATED, AND WAIVES ANY RIGHT, CLAIM OR POWER, UNDER THE DOCTRINE OF FORUM NON CONVENIENS OR OTHERWISE, TO TRANSFER ANY SUCH ACTION TO ANY OTHER COURT.

 

(l)            As used herein:

 

(1)           “ Adjusted for Inflation” shall mean that the stated dollar amount shall be replaced on each succeeding five (5) year anniversary of the Effective Date (i.e., the five (5) year anniversary of the Effective Date, the ten (10) year anniversary of the Effective Date, and so on) by multiplying such stated dollar amount by the sum of (x) one hundred percent (100%) and (y) the percentage increase, if any (but not decrease, if any) of the CPI for the calendar month that is three (3) months prior to the calendar month in which the relevant anniversary date occurs over the CPI for the calendar month that was three (3) months prior to the Effective Date.

 

(2)           “ Business Days ” shall mean such Mondays, Tuesdays, Wednesdays, Thursdays and Fridays that do not fall on the days celebrated as New Year’s Day, Martin Luther King Day, Presidents’ Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, day after Thanksgiving or Christmas Day.

 

(3)           “ CPI ” shall mean the Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics of the United States Department of Labor, Midwest Region, All Items [1982-1984=100], or any successor thereto appropriately

 

33



 

adjusted.  If the Consumer Price Index ceases to be published, and there is no successor thereto, such other index as Landlord and Tenant reasonably agree upon, as appropriately adjusted, shall be substituted for the Consumer Price Index.

 

[Remainder of Page Left Intentionally Blank]

 

34



 

IN WITNESS WHEREOF, the parties hereto have duly executed this instrument as of the day and year first above written.

 

 

TENANT :

 

 

 

 

WHITE CONSTRUCTION, INC. ,

 

an Indiana corporation

 

 

 

 

 

 

 

By:

/s/ David Berthelsen

 

 

Name:

David Berthelsen

 

 

Title:

Authorized Signatory

 

 

 

 

LANDLORD :

 

 

 

 

CLINTON RE HOLDINGS (DELAWARE), LLC,

 

a Delaware limited liability company

 

 

 

 

 

 

 

By:

/s/ John P. Roehm

 

 

 

Name: John P. Roehm

 

 

Title: President

 

[Signature Page to Lease Agreement]

 



 

EXHIBIT A

 

DESCRIPTION OF THE PREMISES

 

Parcel 1 :

 

Seventy-five (75) acres in the West Half of the Southeast Quarter of Section 34, Township 15 North, Range 9 West EXCEPT all that part of the West Half of the Southeast Quarter of Section 34, in Township 15 North, Range 9 West, lying East and South of the right of way of the Chicago and Eastern Illinois Railroad and also EXCEPTING that portion heretofore conveyed to the State of Indiana and containing in all after said exceptions, 29.244 acres, more or less, surveyed 23.143 acres, described as follows:

 

Part of the Northwest Quarter of the Southwest Quarter of Section 34, Township 15 North, Range 9 West in Vermillion County, Indiana, lying East and South of the right-of-way of the Chicago and Eastern Illinois Railroad.

 

Commencing at an iron pipe marking the Northeast corner of the Northwest Quarter of the Southeast Quarter of said Section, thence North 90 degrees 00 minutes 00 seconds West, 119.00 feet to a 5/8 inch iron pin bearing a plastic cap inscribed W.L. Clark IN S0013 on the West right-of-way of the L&N Railroad and being the point of beginning of this surveyed description (bearings based on an assumed North); thence along the West right-of-way of said railroad South 30 degrees 05 minutes 58 seconds West 2281.80 feet to a concrete right-of-way marked; thence along the East right-of-way of Indiana State Road 63 the following courses and distances; North 00 degrees 23 minutes 14 seconds West 327.93 feet to a concrete right-of-way marked; North 00 degrees 59 minutes 19 seconds West 285.20 feet to a right-of-way fence post; North 09 degrees 46 minutes 36 seconds East 311.29 feet to a right-of-way fence: North 08 degrees 52 minutes 45 seconds East 285.75 feet to a right-of-way fence post; North 05 degrees 37 minutes 47 seconds East, 651.19 feet to a right-of-way fence post. North 00 degrees 01 minutes 53 seconds West 123 91 feet to a right-of-way fence post on the North line of said Quarter-Quarter; thence along the North line of said Quarter-Quarter and leaving said right-of-way, North 00 degrees 00 minutes 00 seconds East, 990.00 feet to the point of beginning

 

Parcel 2 :

 

All that part of the West Half of the Southeast Quarter of Section 34, in Township 15 North, Range 9 West in Vermilion County, Indiana, lying East and South of the right-of-way of the Chicago and Eastern Illinois Railroad.

 

Parcel 3 :

 

All that part of the Southeast Quarter of the Southeast Quarter of Section 34, Township 15 North, Range 9 West lying within the following described real estate

 

B- 1



 

A part of the Northeast Quarter of Section 3, Township 14 North, Range 9 West and a part of the Southeast Quarter of the Southeast Quarter of Section 34, Township 15 North, Range 9 West, all being situated in Helt Township, Vermillion County, Indiana and being more particularly described as follows:

 

Beginning at the Southwest corner of the Southeast Quarter of Section 34, (witnessed by a 3/4 inch iron pipe bearing a cap inscribed RLS 11464 found, 3 inches exposed. North 89 degree 37 minutes 08 seconds East, 22.00 feet); thence along the South line of said Southeast Quarter, North 89 degrees 37 minutes 08 seconds East, 1354.53 feet to a 3/4 inch iron pipe found bent at the ground surface; thence along the West line of the Southeast Quarter of the Southeast Quarter, North 00 degrees 17 minutes 59 seconds West, 863.02 feet to the Southwest corner of a 2.23 acre tract described in Deed Record 167, page 70 in the Office of the Recorder of Vermillion County, Indiana; thence along the South line of said 2.23 acre tract. North 89 degrees 44 minutes 57 seconds East 226.77 feet to a 5/8 inch iron pin bearing a plastic cap inscribed W.I. Clark 80910013, hereon called an “iron monument”, found flush with the ground, thence along the East line of said 2.23 acre tract, North 04 degrees 35 minutes 44 seconds West 465.22 feet to an “iron monument” found flush with the ground on the North line of said Quarter-Quarter; thence along the North line. North 89 degrees 44 minutes 57 seconds East. 174.52 feet to an “iron monument” set flush with the ground; thence along the centerline of a ditch and the projection thereof, the following courses and distances: South 05 degrees 09 minutes 44 seconds West, 272.10 feet; South 09 degrees 37 minutes 08 seconds West. 353.24 feet; South 14 degrees 08 minutes 01 second West 498.92 feet; South 13 degrees 09 minutes 12 seconds West 480.50 feet; South 08 degrees 22 minutes 39 seconds West 626.44 feet; South 10 degrees 37 minutes 05 seconds West, 661.33 feet (witnessed by an “iron monument” set flush with the ground, South 73 degrees 44 minutes 11 seconds West, 54.23 feet): thence leaving said centerline. South 73 degrees 44 minutes 11 seconds West, 418.27 feet to an “iron monument” set flush with the ground; thence North 74 degrees 24 minutes 30 seconds West, 291.07 feet to an “iron monument” set flush with the ground; thence North 52 degrees 22 minutes 12 seconds West, 70.16 feet to an “iron monument” set flush with the ground; thence North 30 degrees 37 minutes 06 seconds West, 323.27 feet to an “iron monument” set flush with the ground; thence North 18 degrees 54 minutes 44 seconds West, 143.99 feet to an “iron monument” set flush with the ground; thence North 12 degrees 44 minutes 26 seconds East, 430.34 feet to an “iron monument” set flush with the ground; thence North 52 degrees 06 minutes 33 seconds West, 192.30 feet to an “iron monument” set flush with the ground; thence North 70 degrees 13 minutes 50 seconds West, 197.02 feet in the centerline of Old State Road 63; thence along said centerline, North 00 degrees 07 minutes 55 seconds East, 481.07 feet to the point of beginning.

 

Parcel 4:

 

A part of the Southeast Quarter of the Southeast Quarter of Section 34, Township 15 North, Range 9 West situated in Helt Township, Vermillion County, Indiana, being more particularly described as follows:

 

Beginning at the Northeast corner of the Southwest Quarter of the Southeast Quarter of said Section; thence along the North line of the South Half of the Southeast Quarter of said

 

B- 2



 

Section, North 89 degrees 44 minutes 57 seconds East, 191.91 feet to a 5/8 inch iron pin bearing a plastic cap inscribed W.L. Clark IN 50013 set flush with the ground and hereon called an “iron monument”; thence South 04 degrees 35 minutes 44 seconds East, 465.23 feet to an “iron monument”; thence parallelling the North line of said South Half, South 89 degrees 44 minutes 57 seconds West, 226.54 feet; thence North 00 degrees 19 minutes 38 seconds West, 463.89 feet to the point of beginning.

 

Parcel 5 :

 

Part of the North Half of the Southeast Quarter of Section 34, Township 15 North, Range 9 West, Helt Township, Vermillion County, Indiana, more particularly described as follows:

 

Commencing at a 3/4 inch iron pipe found at the southeast corner of said Half-Quarter; thence North 89 degrees 54 minutes 24 seconds West along the south line of said Half-Quarter 1343.28 feet to a 5/8 inch iron pin with cap stamped “K.J. HENNESSY LS20200026”, herein called “monument”, set at the Point of Beginning for the following described tract, said point being North 89 degrees 54 minutes 24 seconds West 8.09 feet of the southwest comer of the Northeast Quarter of the Southeast Quarter of said Section 34; thence North 00 degrees 01 minutes 45 seconds West 675.00 feet to a set “monument”; thence South 76 degrees 08 minutes 51 seconds East 305.31 feet to a set “monument”; thence South 09 degrees 03 minutes 56 seconds West 609.85 feet to a “monument” set on the south line of said Half-Quarter, said point also being the northeast comer in a tract description recorded in Document 98-1601; thence North 89 degrees 54 minutes 24 seconds West along said south line 200.00 feet to the Point of Beginning, containing 3.68 acres more or less.

 

Subject to any and all easements, agreements and restrictions of record.

 

B- 3



 

EXHIBIT B

 

BASE RENT

 

Lease Year

 

Annual Base Rent

 

Monthly Base Rent

 

1

 

$

612,000.00

 

$

51,000.00

 

2

 

$

621,180.00

 

$

51,765.00

 

3

 

$

630,497.70

 

$

52,541.47

 

4

 

$

639,955.17

 

$

53,329.60

 

5

 

$

649,554.49

 

$

54,129.54

 

6

 

$

659,297.81

 

$

54,941.48

 

7

 

$

669,187.28

 

$

55,765.61

 

8

 

$

679,225.09

 

$

56,602.09

 

9

 

$

689,413.46

 

$

57,451.12

 

10

 

$

699,754.66

 

$

58,312.89

 

11

 

$

710,250.98

 

$

59,187.58

 

12

 

$

720,904.75

 

$

60,075.40

 

13

 

$

731,718.32

 

$

60,976.53

 

14

 

$

742,694.10

 

$

61,891.17

 

15

 

$

753,834.51

 

$

62,819.54

 

16

 

$

772,680.37

 

$

64,390.03

 

17

 

$

791,997.38

 

$

65,999.78

 

18

 

$

811,797.32

 

$

67,649.78

 

19

 

$

832,092.25

 

$

69,341.02

 

20

 

$

852,894.56

 

$

71,074.55

 

21*

 

$

874,216.92

 

$

72,851.41

 

22*

 

$

896,072.34

 

$

74,672.69

 

23*

 

$

918,474.15

 

$

76,539.51

 

24*

 

$

941,436.00

 

$

78,453.00

 

25*

 

$

964,971.91

 

$

80,414.33

 

26**

 

$

989,096.20

 

$

82,424.68

 

27**

 

$

1,013,823.60

 

$

84,485.30

 

28**

 

$

1,039,169.19

 

$

86,597.43

 

 

B- 1



 

29**

 

$

1,065,148.42

 

$

88,762.37

 

30**

 

$

1,091,777.13

 

$

90,981.43

 

 


*   - If Tenant’s option for the First Option Period is duly exercised.
** - If Tenant’s option for the Second Option Period is duly exercised.

 

B- 2



 

EXHIBIT C

 

FORM OF ESTOPPEL CERTIFICATE

 

The undersigned, as the [landlord][tenant] (“ [Landlord][Tenant] ”) under the lease attached hereto as Exhibit A covering the space described in Exhibit A (the “ Premises ”), hereby certifies to [                 ] (“[ Tenant][Landlord] ”) as follows:

 

1.      [Landlord][Tenant] is the [landlord][tenant] under the lease attached hereto as Exhibit A covering the Premises, which lease has not been modified, assigned, pledged or amended (orally or in writing) except as set forth in Exhibit A (as so modified, the “ Lease ”).  The Lease contains all of the understandings and agreements between Landlord and Tenant with respect to the Premises.

 

2.      The Lease is in full force and effect.  As of the date hereof [Tenant][Landlord] has not given any notice of default to [Landlord][Tenant] under the Lease and, to the undersigned’s best knowledge, there are no existing defaults under the Lease by Landlord or Tenant.

 

3.             Rent (including fixed rent and additional rent) and other charges including monthly expense reimbursement and percentage rent, if any, due under the Lease have been paid through                ,          .

 

4.      The Lease commencement date was           and the term of the Lease currently expires on             .  Tenant has            remaining options to renew.

 

5.      Tenant is not entitled to any offsets, abatements, deductions or otherwise against the rent payable under the Lease from and after the date hereof, except as follows:                      .

 

[Remainder of Page Left Intentionally Blank]

 

C- 1



 

IN WITNESS WHEREOF, [Tenant][Landlord] has executed this certificate this        day of                    , 20   .

 

 

By:

 

 

 

Name:

 

 

Title:

 

C- 2



 

Exhibit A

 

The Lease

 

C- 3


Exhibit 10.1 5

 

INDEMNITY AGREEMENT

 

THIS INDEMNITY AGREEMENT (this “ Agreement ”) is made as of          , 2018, by and between INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC., a Delaware corporation (the “ Company ”), and             (“ Indemnitee ”).

 

RECITALS

 

WHEREAS , highly competent persons have become more reluctant to serve publicly-held corporations as directors, officers or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of such corporations;

 

WHEREAS , the Board of Directors of the Company (the “ Board ”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its subsidiaries from certain liabilities;

 

WHEREAS , the Second Amended and Restated Certificate of Incorporation (the “ Charter ”) and Amended and Restated Bylaws (the “ Bylaws ”) of the Company require indemnification of the officers and directors of the Company and Indemnitee may also be entitled to indemnification pursuant to applicable provisions of the Delaware General Corporation Law (“ DGCL ”);

 

WHEREAS , the Charter, Bylaws and the DGCL expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;

 

WHEREAS , the uncertainties relating to such insurance and to indemnification have increased the difficulty of attracting and retaining such persons;

 

WHEREAS , the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company’s stockholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future;

 

WHEREAS , it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, hold harmless, exonerate and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so protected against liabilities;

 

WHEREAS , this Agreement is a supplement to and in furtherance of the Charter and Bylaws of the Company and any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder; and

 

WHEREAS , Indemnitee may not be willing to serve as an officer or director, advisor or in another capacity without adequate protection, and the Company desires Indemnitee to serve in such capacity, and Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the condition that he be so indemnified.

 

NOW, THEREFORE , in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:

 

TERMS AND CONDITIONS

 

1. SERVICES TO THE COMPANY . Indemnitee will serve or continue to serve as an officer, director, advisor, key employee or in any other capacity of the Company, as applicable, for so long as Indemnitee is duly elected, appointed or retained or until Indemnitee tenders his resignation.

 

2. DEFINITIONS . As used in this Agreement:

 



 

2.1. References to “ agent ” shall mean any person who is or was a director, officer or employee of the Company or a subsidiary of the Company or other person authorized by the Company to act for the Company, to include such person serving in such capacity as a director, officer, employee, advisor, fiduciary or other official of another corporation, partnership, limited liability company, joint venture, trust or other enterprise at the request of, for the convenience of, or to represent the interests of the Company or a subsidiary of the Company.

 

2.2. The terms “ Beneficial Owner ” and “ Beneficial Ownership ” shall have the meanings set forth in Rule 13d-3 promulgated under the Exchange Act (as defined below) as in effect on the date hereof.

 

2.3. A “ Change in Control ” shall be deemed to occur upon the earliest to occur after the date of this Agreement of any of the following events:

 

2.3.1. Acquisition of Stock by Third Party . Any Person (as defined below) (other than Oaktree Capital Management, L.P. and its affiliates or M III Sponsor I LLC, M III Sponsor I LP and their affiliates) is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding securities entitled to vote generally in the election of directors, unless (1) the change in the relative Beneficial Ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors, or (2) such acquisition was approved in advance by the Continuing Directors (as defined below) and such acquisition would not constitute a Change in Control under part 2.3.3 of this definition;

 

2.3.2. Change in Board of Directors . Individuals who, as of the date hereof, constitute the Board, and any new director whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two thirds of the directors then still in office who were directors on the date hereof or whose nomination for election was previously so approved (collectively, the “ Continuing Directors ”), cease for any reason to constitute at least a majority of the members of the Board;

 

2.3.3. Corporate Transactions . The effective date of a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination, involving the Company and one or more businesses (a “ Business Combination ”), in each case, unless, following such Business Combination: (1) all or substantially all of the individuals and entities who were the Beneficial Owners of securities entitled to vote generally in the election of directors immediately prior to such Business Combination beneficially own, directly or indirectly, more than 51% of the combined voting power of the then outstanding securities of the Company entitled to vote generally in the election of directors resulting from such Business Combination (including, without limitation, a corporation which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more Subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination, of the securities entitled to vote generally in the election of directors; (2) no Person (excluding any corporation resulting from such Business Combination) is the Beneficial Owner, directly or indirectly, of 15% or more of the combined voting power of the then outstanding securities entitled to vote generally in the election of directors of the surviving corporation except to the extent that such ownership existed prior to the Business Combination; and (3) at least a majority of the Board of Directors of the corporation resulting from such Business Combination were Continuing Directors at the time of the execution of the initial agreement, or of the action of the Board of Directors, providing for such Business Combination;

 

2.3.4. Liquidation . The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement or series of agreements for the sale or disposition by the Company of all or substantially all of the Company’s assets, other than factoring the Company’s current receivables or escrows due (or, if such approval is not required, the decision by the Board to proceed with such a liquidation, sale, or disposition in one transaction or a series of related transactions); or

 

2.3.5. Other Events . There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement.

 

2.4. “ Corporate Status ” describes the status of a person who is or was a director, officer, trustee, general partner, managing member, fiduciary, employee or agent of the Company or of any other Enterprise (as defined below) which such person is or was serving at the request of the Company.

 

2.5. “ Delaware Court ” shall mean the Court of Chancery of the State of Delaware.

 



 

2.6. “ Disinterested Director ” shall mean a director of the Company who is not and was not a party to the Proceeding (as defined below) in respect of which indemnification is sought by Indemnitee.

 

2.7. “ Enterprise ” shall mean the Company and any other corporation, constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger to which the Company (or any of its wholly owned subsidiaries) is a party, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at the request of the Company as a director, officer, trustee, general partner, managing member, fiduciary, employee or agent.

 

2.8. “ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended.

 

2.9. “ Expenses ” shall include all direct and indirect costs, fees and expenses of any type or nature whatsoever, including, without limitation, all attorneys’ fees and costs, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, fees of private investigators and professional advisors, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, fax transmission charges, secretarial services and all other disbursements, obligations or expenses in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, settlement or appeal of, or otherwise participating in, a Proceeding (as defined below), including reasonable compensation for time spent by the Indemnitee for which he or she is not otherwise compensated by the Company or any third party. Expenses also shall include Expenses incurred in connection with any appeal resulting from any Proceeding (as defined below), including without limitation the principal, premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent.

 

2.10. “ Independent Counsel ” shall mean a law firm or a member of a law firm with significant experience in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements); or (ii) any other party to the Proceeding (as defined below) giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.

 

2.11. References to “ fines ” shall include any excise tax assessed on Indemnitee with respect to any employee benefit plan; references to “serving at the request of the Company” shall include any service as a director, officer, employee, agent or fiduciary of the Company which imposes duties on, or involves services by, such director, officer, employee, agent or fiduciary with respect to an employee benefit plan, its participants or beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have acted in a manner “not opposed to the best interests of the Company” as referred to in this Agreement.

 

2.12. The term “ Person ” shall have the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act as in effect on the date hereof; provided, however, that “Person” shall exclude: (i) the Company; (ii) any Subsidiaries (as defined below) of the Company; (iii) any employment benefit plan of the Company or of a Subsidiary (as defined below) of the Company or of any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company; and (iv) any trustee or other fiduciary holding securities under an employee benefit plan of the Company or of a Subsidiary (as defined below) of the Company or of a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company.

 

2.13. The term “ Proceeding ” shall include any threatened, pending or completed claim, action, suit, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought in the right of the Company or otherwise and whether of a civil (including intentional or unintentional tort claims), criminal, administrative, or investigative or related nature, in which Indemnitee was, is, will or might be involved as a party or otherwise by reason of the fact that Indemnitee is or was a director or officer of the Company, by reason of any action (or failure to act) taken by him or of any action (or failure to act) on his part while acting as a director or officer of the Company, or by reason of the fact that he is or was serving at the request of the Company as a director, officer, trustee, general partner, managing member, fiduciary, employee or agent of any other Enterprise, in each case whether or not serving in such capacity at the time any liability or expense is incurred for which indemnification, reimbursement, or advancement of expenses can be provided under this Agreement.

 



 

2.14. The term “ Subsidiary ,” with respect to any Person, shall mean any corporation or other entity of which a majority of the voting power of the voting equity securities or equity interest is owned, directly or indirectly, by that Person.

 

3. INDEMNITY IN THIRD-PARTY PROCEEDINGS .

 

To the fullest extent permitted by applicable law, the Company shall indemnify, hold harmless and exonerate Indemnitee in accordance with the provisions of this Section 3 if Indemnitee was, is, or is threatened to be made, a party to or a participant (as a witness or otherwise) in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 3 , Indemnitee shall be indemnified, held harmless and exonerated against all Expenses, judgments, liabilities, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, liabilities, fines, penalties and amounts paid in settlement) actually and reasonably incurred by Indemnitee or on his behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company and, in the case of a criminal Proceeding, had no reasonable cause to believe that his conduct was unlawful.

 

4. INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY .

 

To the fullest extent permitted by applicable law, the Company shall indemnify, hold harmless and exonerate Indemnitee in accordance with the provisions of this Section 4 if Indemnitee was, is, or is threatened to be made, a party to or a participant (as a witness or otherwise) in any Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 4 , Indemnitee shall be indemnified, held harmless and exonerated against all Expenses actually and reasonably incurred by him or on his behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company.

 

5. INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR PARTLY SUCCESSFUL .

 

Notwithstanding any other provisions of this Agreement but subject to Section 7 , (a) to the extent that Indemnitee is a party to (or a participant in) and is successful, on the merits or otherwise, in any Proceeding or in defense of any claim, issue or matter therein, in whole or in part, the Company shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee against all Expenses actually and reasonably incurred by him in connection therewith, (b) if Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee against all Expenses actually and reasonably incurred by him or on his behalf in connection with each successfully resolved claim, issue or matter and (c) if the Indemnitee is not wholly successful in such Proceeding, the Company also shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee against all Expenses reasonably incurred in connection with a claim, issue or matter related to any claim, issue, or matter on which the Indemnitee was successful. For purposes of this Section 5 and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.

 

6. INDEMNIFICATION FOR EXPENSES OF A WITNESS .

 

Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a witness in any Proceeding to which Indemnitee is not a party, he shall, to the fullest extent permitted by applicable law, be indemnified, held harmless and exonerated against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith.

 

7. ADDITIONAL INDEMNIFICATION, HOLD HARMLESS AND EXONERATION RIGHTS .

 

Notwithstanding any limitation in Sections 3 , 4 , or 5 , the Company shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee if Indemnitee is a party to or threatened to be made a party to any Proceeding (including a Proceeding by or in the right of the Company to procure a judgment in its favor) against all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties and amounts paid in settlement) actually and reasonably incurred by Indemnitee in connection with the Proceeding. No indemnification, hold harmless or exoneration rights shall be available under this Section 7 on account of Indemnitee’s conduct which constitutes a breach of Indemnitee’s duty of loyalty to the Company or its stockholders or is an act or omission not in good faith or which involves intentional misconduct or a knowing violation of the law.

 



 

8. CONTRIBUTION IN THE EVENT OF JOINT LIABILITY .

 

8.1. To the fullest extent permissible under applicable law, if the indemnification, hold harmless and/or exoneration rights provided for in this Agreement are unavailable to Indemnitee in whole or in part for any reason whatsoever, the Company, in lieu of indemnifying, holding harmless or exonerating Indemnitee, shall pay, in the first instance, the entire amount incurred by Indemnitee, whether for judgments, liabilities, fines, penalties, amounts paid or to be paid in settlement and/or for Expenses, in connection with any Proceeding without requiring Indemnitee to contribute to such payment, and the Company hereby waives and relinquishes any right of contribution it may have at any time against Indemnitee.

 

8.2. The Company shall not, without Indemnitee’s consent, enter into any settlement of any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee and no admission of guilt by, or injunctive relief against, Indemnitee, is included.

 

8.3. The Company hereby agrees to fully indemnify, hold harmless and exonerate Indemnitee from any claims for contribution which may be brought by officers, directors or employees of the Company other than Indemnitee who may be jointly liable with Indemnitee.

 

9. INDEMNITOR OF FIRST RESORT .

 

The Company hereby acknowledges that Indemnitee may have rights to indemnification and advancement of expenses provided by a shareholder or its affiliates (directly or by insurance retained by such entity) (collectively, the “ Shareholder Indemnitors ”).  The Company hereby agrees and acknowledges that (a) it is the indemnitor of first resort with respect to Indemnitee, (b) it shall be required to advance the full amount of expenses incurred by Indemnitee, as required by the terms of this Agreement (or any other agreement between the Company and Indemnitee), without regard to any rights Indemnitee may have against the Shareholder Indemnitors and (c) it irrevocably waives, relinquishes and releases the Shareholder Indemnitors from any and all claims against the Shareholder Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof.  The Company further agrees that no advancement or payment by the Shareholder Indemnitors on behalf of the Company with respect to any Expenses, judgments, liabilities, fines, penalties and/or amounts paid in settlement for which Indemnitee has sought indemnification from the Company shall affect the foregoing, and the Shareholder Indemnitors shall have a right of contribution and be subrogated to the extent of such advancement or payment to all of the rights of recovery of Indemnitee against the Company.

 

10. EXCLUSIONS .

 

Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnification, hold harmless or exoneration payment in connection with any claim made against Indemnitee:

 

(a)          except as set forth in Section 9, for which payment has actually been received by or on behalf of Indemnitee under any insurance policy, except with respect to any excess beyond the amount actually received under any insurance policy;

 

(b)          for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law; or

 

(c)           except as otherwise provided in Sections 15.5 and 15.6 hereof, prior to a Change in Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, (x) unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, or (ii) the Company provides the indemnification, hold harmless or exoneration payment, in its sole discretion, pursuant to the powers vested in the Company under applicable law or (y) other than a Proceeding described in clauses (i) and (ii) of Section 15.5 .

 

11. ADVANCES OF EXPENSES; DEFENSE OF CLAIM .

 

11.1. Notwithstanding any provision of this Agreement to the contrary, and to the fullest extent not prohibited by applicable law, the Company shall pay the Expenses incurred by Indemnitee (or reasonably expected by Indemnitee to be incurred by Indemnitee within three months) in connection with any Proceeding within ten (10) days after the receipt by the

 



 

Company of a statement or statements requesting such advances from time to time, prior to the final disposition of any Proceeding. Advances shall be unsecured and interest free. Advances shall be made without regard to Indemnitee’s ability to repay the Expenses and without regard to Indemnitee’s ultimate entitlement to be indemnified, held harmless or exonerated under the other provisions of this Agreement. Advances shall include any and all reasonable Expenses incurred pursuing a Proceeding to enforce this right of advancement, including Expenses incurred preparing and forwarding statements to the Company to support the advances claimed. If required by applicable law or the Charter or the Bylaws of the Company, such payments of Expenses in advance of the final disposition of the Proceeding shall be made only upon the Company’s receipt of an undertaking, by or on behalf of the Indemnitee, to repay the advance to the extent that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company under the provisions of this Agreement, the Charter, the Bylaws of the Company, applicable law or otherwise. This Section 11.1 shall not apply to any claim made by Indemnitee for which an indemnification, hold harmless or exoneration payment is excluded pursuant to Section 10 .

 

11.2. The Company will be entitled to participate in the Proceeding at its own expense.

 

11.3. The Company shall not settle any Proceeding (in whole or in part) which would impose any Expense, judgment, liability, fine, penalty or limitation on the Indemnitee without the Indemnitee’s prior written consent.

 

12. PROCEDURE FOR NOTIFICATION AND APPLICATION FOR INDEMNIFICATION .

 

12.1. Indemnitee agrees to notify promptly the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification, hold harmless or exoneration rights, or advancement of Expenses covered hereunder. The failure of Indemnitee to so notify the Company shall not relieve the Company of any obligation which it may have to the Indemnitee under this Agreement, or otherwise.

 

12.2. Indemnitee may deliver to the Company a written application to indemnify, hold harmless or exonerate Indemnitee in accordance with this Agreement. Such application(s) may be delivered from time to time and at such time(s) as Indemnitee deems appropriate in his or her sole discretion. Following such a written application for indemnification by Indemnitee, the Indemnitee’s entitlement to indemnification shall be determined according to Section 13.1 of this Agreement.

 

13. PROCEDURE UPON APPLICATION FOR INDEMNIFICATION .

 

13.1. A determination, if required by applicable law, with respect to Indemnitee’s entitlement to indemnification shall be made in the specific case by one of the following methods, which shall be at the election of Indemnitee: (i) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board; (ii) by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (iii) by vote of the stockholders. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or Expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.

 

13.2. In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 13.1 hereof, the Independent Counsel shall be selected as provided in this Section 13.2 . The Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected and certifying that the Independent Counsel so selected meets the requirements of “Independent Counsel” as defined in Section 2 of this Agreement. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected and certifying that the Independent Counsel so selected meets the requirements of “Independent Counsel” as defined in Section 2 of this Agreement. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) days after such written notice of selection shall have been received, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 of this Agreement, and the objection shall set forth with particularity the

 



 

factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court of competent jurisdiction has determined that such objection is without merit. If, within twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 12.2 hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Delaware Court for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Delaware Court, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 13.1 hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 15.1 of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).

 

13.3. The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.

 

14. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS .

 

14.1. In making a determination with respect to entitlement to indemnification hereunder, the person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 12.2 of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.

 

14.2. If the person, persons or entity empowered or selected under Section 13 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within thirty (30) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a final judicial determination that any or all such indemnification is expressly prohibited under applicable law; provided, however, that such 30-day period may be extended for a reasonable time, not to exceed an additional fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto.

 

14.3. The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.

 

14.4. For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors or officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise, its Board, any committee of the Board or any director, or on information or records given or reports made to the Enterprise, its Board, any committee of the Board or any director, by an independent certified public accountant or by an appraiser or other expert selected by the Enterprise, its Board, any committee of the Board or any director. The provisions of this Section 14.4 shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in this Agreement.

 

14.5. The knowledge and/or actions, or failure to act, of any other director, officer, trustee, partner, managing member, fiduciary, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to

 



 

indemnification under this Agreement.

 

15. REMEDIES OF INDEMNITEE .

 

15.1. In the event that (i) a determination is made pursuant to Section 13 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses, to the fullest extent permitted by applicable law, is not timely made pursuant to Section 11 of this Agreement, (iii) no determination of entitlement to indemnification shall have been made pursuant to Section 13.1 of this Agreement within thirty (30) days after receipt by the Company of the request for indemnification, (iv) payment of indemnification is not made pursuant to Sections 5 , 6 , 7 or the last sentence of Section 13.1 of this Agreement within ten (10) days after receipt by the Company of a written request therefor, (v) a contribution payment is not made in a timely manner pursuant to Section 8 of this Agreement, (vi) payment is not made to any Shareholder Indemnitor in respect of any amounts for which Indemnitee has sought indemnification from the Company, within ten (10) days after receipt by the Company of a written request therefor, (vii) payment of indemnification pursuant to Section 3 or 4 of this Agreement is not made within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification, or (viii) payment to Indemnitee pursuant to any hold harmless or exoneration rights under this Agreement or otherwise is not made within ten (10) days after receipt by the Company of a written request therefor, Indemnitee or the applicable Shareholder Indemnitor shall be entitled to an adjudication by the Delaware Court to such indemnification, hold harmless, exoneration, contribution or advancement rights. Alternatively, Indemnitee or such Shareholder Indemnitor, at his or its option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Except as set forth herein, the provisions of Delaware law (without regard to its conflict of laws rules) shall apply to any such arbitration. The Company shall not oppose Indemnitee’s or such Shareholder Indemnitor’s right to seek any such adjudication or award in arbitration.

 

15.2. In the event that a determination shall have been made pursuant to Section 13.1 of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 15 shall be conducted in all respects as a de novo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Section 15 , Indemnitee shall be presumed to be entitled to be indemnified, held harmless, exonerated to receive advances of Expenses under this Agreement and the Company shall have the burden of proving Indemnitee is not entitled to be indemnified, held harmless, exonerated and to receive advances of Expenses, as the case may be, and the Company may not refer to or introduce into evidence any determination pursuant to Section 13.1 of this Agreement adverse to Indemnitee for any purpose. If Indemnitee commences a judicial proceeding or arbitration pursuant to this Section 15 , Indemnitee shall not be required to reimburse the Company for any advances pursuant to Section 11 until a final determination is made with respect to Indemnitee’s entitlement to indemnification (as to which all rights of appeal have been exhausted or lapsed).

 

15.3. If a determination shall have been made pursuant to Section 13.1 of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 15 , absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.

 

15.4. The Company shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 15 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement.

 

15.5. The Company shall indemnify and hold harmless Indemnitee to the fullest extent permitted by law against all Expenses and, if requested by Indemnitee, shall (within ten (10) days after the Company’s receipt of such written request) pay to Indemnitee, to the fullest extent permitted by applicable law, such Expenses which are incurred by Indemnitee in connection with any judicial proceeding or arbitration brought by Indemnitee (i) to enforce his rights under, or to recover damages for breach of, this Agreement or any other indemnification, hold harmless, exoneration, advancement or contribution agreement or provision of the Charter, or the Company’s Bylaws now or hereafter in effect; or (ii) for recovery or advances under any insurance policy maintained by any person for the benefit of Indemnitee, regardless of the outcome and whether Indemnitee ultimately is determined to be entitled to such indemnification, hold harmless or exoneration right, advancement, contribution or insurance recovery, as the case may be (unless such judicial proceeding or arbitration was not brought by Indemnitee in good faith).

 

15.6. Interest shall be paid by the Company to Indemnitee at the legal rate under Delaware law for amounts which the Company indemnifies, holds harmless or exonerates, or is obliged to indemnify, hold harmless or exonerate for the period commencing with the date on which Indemnitee requests indemnification, to be held harmless, exonerated, contribution,

 



 

reimbursement or advancement of any Expenses and ending with the date on which such payment is made to Indemnitee by the Company.

 

16. SECURITY .

 

Notwithstanding anything herein to the contrary, to the extent requested by the Indemnitee, the Company may at any time and from time to time provide security to the Indemnitee for the Company’s obligations hereunder through an irrevocable bank line of credit, funded trust or other collateral. Any such security, once provided to the Indemnitee, may not be revoked or released without the prior written consent of the Indemnitee.

 

17. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION .

 

17.1. The rights of Indemnitee as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Charter, the Company’s Bylaws, any agreement, a vote of stockholders or a resolution of directors, or otherwise. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any Proceeding (regardless of when such Proceeding is first threatened, commenced or completed) arising out of, or related to, any action taken or omitted by such Indemnitee in his Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in applicable law, whether by statute or judicial decision, permits greater indemnification, hold harmless or exoneration rights or advancement of Expenses than would be afforded currently under the Charter, the Company’s Bylaws or this Agreement, then this Agreement (without any further action by the parties hereto) shall automatically be deemed to be amended to require that the Company indemnify Indemnitee to the fullest extent permitted by law. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.

 

17.2. The DGCL, the Charter and the Company’s Bylaws permit the Company to purchase and maintain insurance or furnish similar protection or make other arrangements including, but not limited to, providing a trust fund, letter of credit, or surety bond (“ Indemnification Arrangements ”) on behalf of Indemnitee against any liability asserted against him or incurred by or on behalf of him or in such capacity as a director, officer, employee or agent of the Company, or arising out of his status as such, whether or not the Company would have the power to indemnify him against such liability under the provisions of this Agreement or under the DGCL, as it may then be in effect. The purchase, establishment, and maintenance of any such Indemnification Arrangement shall not in any way limit or affect the rights and obligations of the Company or of the Indemnitee under this Agreement except as expressly provided herein, and the execution and delivery of this Agreement by the Company and the Indemnitee shall not in any way limit or affect the rights and obligations of the Company or the other party or parties thereto under any such Indemnification Arrangement.

 

17.3. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, trustees, partners, managing members, fiduciaries, employees, or agents of the Company or of any other Enterprise which such person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any such director, officer, trustee, partner, managing member, fiduciary, employee or agent under such policy or policies. If, at the time the Company receives notice from any source of a Proceeding as to which Indemnitee is a party or a participant (as a witness or otherwise), the Company has director and officer liability insurance in effect, the Company shall give prompt notice of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies.

 

17.4. Subject to Section 9 , in the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.

 

17.5. The Company’s obligation to indemnify, hold harmless, exonerate or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer, trustee, partner, managing member, fiduciary, employee or agent of any other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification, hold harmless or exoneration payments or advancement of expenses from such Enterprise. Notwithstanding any other provision of this Agreement to the contrary, (i) Indemnitee shall have no obligation to reduce, offset, allocate, pursue or apportion any

 



 

indemnification, hold harmless, exoneration, advancement, contribution or insurance coverage among multiple parties possessing such duties to Indemnitee prior to the Company’s satisfaction and performance of all its obligations under this Agreement, and (ii) the Company shall perform fully its obligations under this Agreement without regard to whether Indemnitee holds, may pursue or has pursued any indemnification, advancement, hold harmless, exoneration, contribution or insurance coverage rights against any person or entity other than the Company.

 

18. DURATION OF AGREEMENT .

 

All agreements and obligations of the Company contained herein shall continue during the period Indemnitee serves as a director or officer of the Company or as a director, officer, trustee, partner, managing member, fiduciary, employee or agent of any other corporation, partnership, joint venture, trust, employee benefit plan or other Enterprise which Indemnitee serves at the request of the Company and shall continue thereafter so long as Indemnitee shall be subject to any possible Proceeding (including any rights of appeal thereto and any Proceeding commenced by Indemnitee pursuant to Section 14 of this Agreement) by reason of his Corporate Status, whether or not he is acting in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement.

 

19. SEVERABILITY .

 

If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of any Section, paragraph or sentence of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section, paragraph or sentence of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.

 

20. ENFORCEMENT AND BINDING EFFECT .

 

20.1. The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director, officer or key employee of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as a director, officer or key employee of the Company.

 

20.2. Without limiting any of the rights of Indemnitee under the Charter or Bylaws of the Company as they may be amended from time to time, this Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof.

 

20.3. The indemnification, hold harmless, exoneration and advancement of expenses rights provided by or granted pursuant to this Agreement shall be binding upon and be enforceable by the parties hereto and their respective successors and assigns (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), shall continue as to an Indemnitee who has ceased to be a director, officer, employee or agent of the Company or of any other Enterprise at the Company’s request, and shall inure to the benefit of Indemnitee and his or her spouse, assigns, heirs, devisees, executors and administrators and other legal representatives.

 

20.4. The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially all or a substantial part, of the business and/or assets of the Company, by written agreement in form and substance satisfactory to the Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place.

 

20.5. The Company and Indemnitee agree herein that a monetary remedy for breach of this Agreement, at some later date, may be inadequate, impracticable and difficult of proof, and further agree that such breach may cause Indemnitee irreparable harm. Accordingly, the parties hereto agree that Indemnitee may enforce this Agreement by seeking, among other things, injunctive relief and/or specific performance hereof, without any necessity of showing actual damage or irreparable harm and that by seeking injunctive relief and/or specific performance, Indemnitee shall not be precluded from seeking or obtaining any other relief to which he may be entitled. The Company and Indemnitee further agree that Indemnitee shall be entitled to

 



 

such specific performance and injunctive relief, including temporary restraining orders, preliminary injunctions and permanent injunctions, without the necessity of posting bonds or other undertaking in connection therewith. The Company acknowledges that in the absence of a waiver, a bond or undertaking may be required of Indemnitee by a Court of competent jurisdiction and the Company hereby waives any such requirement of such a bond or undertaking.

 

21. MODIFICATION AND WAIVER .

 

No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a continuing waiver.

 

22. NOTICES .

 

All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given (i) if delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, or (ii) mailed by certified or registered mail with postage prepaid, on the third (3rd) business day after the date on which it is so mailed:

 

(a)                                  If to Indemnitee, at the address indicated on the signature page of this Agreement, or such other address as Indemnitee shall provide in writing to the Company.

 

(b)                                                                                  If to the Company, to:

 

Infrastructure and Energy Alternatives, Inc.

8440 Woodfield Crossing Blvd, Suite 500

Indianapolis, IN 46240

Attn: [              ]

 

With a copy, which shall not constitute notice, to:

 

[                      ]

[                      ]

[                      ]

[                      ]

[                      ]

 

or to any other address as may have been furnished to Indemnitee in writing by the Company.

 

23. APPLICABLE LAW AND CONSENT TO JURISDICTION .

 

This Agreement and the legal relations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules. Except with respect to any arbitration commenced by Indemnitee pursuant to Section 15.1 of this Agreement, the Company and Indemnitee hereby irrevocably and unconditionally: (a) agree that any Proceeding arising out of or in connection with this Agreement shall be brought only in the Delaware Court and not in any other state or federal court in the United States of America or any court in any other country; (b) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any Proceeding arising out of or in connection with this Agreement; (c) waive any objection to the laying of venue of any such Proceeding in the Delaware Court; and (d) waive, and agree not to plead or to make, any claim that any such Proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum, or is subject (in whole or in part) to a jury trial.

 

24. IDENTICAL COUNTERPARTS .

 

This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement.

 

25. MISCELLANEOUS .

 

Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where appropriate. The headings of

 



 

the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.

 

26. PERIOD OF LIMITATIONS .

 

No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.

 

27. ADDITIONAL ACTS .

 

If for the validation of any of the provisions in this Agreement any act, resolution, approval or other procedure is required, the Company undertakes to cause such act, resolution, approval or other procedure to be affected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement.

 

[SIGNATURE PAGE FOLLOWS]

 



 

IN WITNESS WHEREOF , the parties hereto have caused this Indemnity Agreement to be signed as of the day and year first above written.

 

 

INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC.

 

 

 

By:

 

 

 

Name:

 

 

 

Title:

 

 

 

INDEMNITEE

 

 

 

 

 

Name:

 

 

Address:

 

 

 

 

 

 

 

 


Exhibit 14.1

 

CODE OF ETHICS

OF

INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC.

 

1. Introduction

 

The Board of Directors (the “ Board ”) of Infrastructure and Energy Alternatives, Inc. (the “ Company ”) has adopted this code of ethics (this “ Code ”), as amended from time to time by the Board and which is applicable to all of the Company’s directors, officers and employees to:

 

·                   promote honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships;

 

·                   promote the full, fair, accurate, timely and understandable disclosure in reports and documents that the Company files with, or submits to, the Securities and Exchange Commission (the “ SEC ”), as well as in other public communications made by or on behalf of the Company;

 

·                   promote compliance with applicable governmental laws, rules and regulations;

 

·                   deter wrongdoing; and

 

·                   require prompt internal reporting of breaches of, and accountability for adherence to, this Code.

 

This Code may be amended and modified by the Board. In this Code, references to the “Company” means Infrastructure and Energy Alternatives, Inc. and, in appropriate context, the Company’s subsidiaries, if any.

 

2. Honest, Ethical and Fair Conduct

 

Each person owes a duty to the Company to act with integrity. Integrity requires, among other things, being honest, fair and candid. Deceit, dishonesty and subordination of principle are inconsistent with integrity. Service to the Company should never be subordinated to personal gain and advantage.

 

Each person must:

 

·                   Act with integrity, including being honest and candid while still maintaining the confidentiality of the Company’s information where required or when in the Company’s interests;

 

·                   Observe all applicable governmental laws, rules and regulations;

 

·                   Comply with the requirements of applicable accounting and auditing standards, as well as Company policies, in order to maintain a high standard of accuracy and completeness in the Company’s financial records and other business-related information and data;

 

·                   Adhere to a high standard of business ethics and not seek competitive advantage through unlawful or unethical business practices;

 

·                   Deal fairly with the Company’s customers, suppliers, competitors and employees;

 

·                   Refrain from taking advantage of anyone through manipulation, concealment, abuse of privileged information, misrepresentation of material facts or any other unfair-dealing practice;

 

·                   Protect the assets of the Company and ensure their proper use;

 

·                   Until the earliest of (i) the Company’s initial business combination (as such is defined in the Company’s initial registration statement filed with the SEC), (ii) liquidation, or (iii) such time as such person ceases to be an officer or director of the Company, to first present to the Company for its consideration, prior to presentation to any other entity, any business opportunity suitable for the Company, subject to any pre-existing fiduciary or contractual obligations such officer may have or as otherwise set forth in the prospectus related to the Company’s initial public offering; and

 

·                   Avoid conflicts of interest, wherever possible, except as may be allowed under guidelines or resolutions approved by the Board (or the appropriate committee of the Board) or as disclosed in the Company’s public filings with the SEC. Anything that would be a conflict for a person subject to this Code also will be a conflict for a member of his or her immediate family or any other close relative. Examples of conflict of interest situations include, but are not limited to, the following:

 

·                   any significant ownership interest in any supplier or customer;

 

·                   any consulting or employment relationship with any supplier or customer;

 

·                   the receipt of any money, non-nominal gifts or excessive entertainment from any entity with which the Company has current or prospective business dealings;

 

·                   selling anything to the Company or buying anything from the Company, except on the same terms and conditions as comparable officers or directors are permitted to so purchase or sell;

 

·                   any other financial transaction, arrangement or relationship (including any indebtedness or guarantee of indebtedness) involving the Company; and

 



 

·                   any other circumstance, event, relationship or situation in which the personal interest of a person subject to this Code interferes — or even appears to interfere — with the interests of the Company as a whole.

 

3. Disclosure

 

The Company strives to ensure that the contents of and the disclosures in the reports and documents that the Company files with the SEC and other public communications shall be full, fair, accurate, timely and understandable in accordance with applicable disclosure standards, including standards of materiality, where appropriate. Each person must:

 

·                   not knowingly misrepresent, or cause others to misrepresent, facts about the Company to others, whether within or outside the Company, including to the Company’s independent registered public accountants, governmental regulators, self-regulating organizations and other governmental officials, as appropriate; and

 

·                   in relation to his or her area of responsibility, properly review and critically analyze proposed disclosure for accuracy and completeness.

 

In addition to the foregoing, the Chief Executive Officer and Chief Financial Officer of the Company and each subsidiary of the Company (or persons performing similar functions), and each other person that typically is involved in the financial reporting of the Company must familiarize himself or herself with the disclosure requirements applicable to the Company as well as the business and financial operations of the Company.

 

Each person must promptly bring to the attention of the Chairman of the Board any information he or she may have concerning (a) significant deficiencies in the design or operation of internal and/or disclosure controls that could adversely affect the Company’s ability to record, process, summarize and report financial data or (b) any fraud that involves management or other employees who have a significant role in the Company’s financial reporting, disclosures or internal controls.

 

4. Compliance

 

It is the Company’s obligation and policy to comply with all applicable governmental laws, rules and regulations. All directors, officers and employees of the Company are expected to understand, respect and comply with all of the laws, regulations, policies and procedures that apply to them in their positions with the Company. Employees are responsible for talking to their supervisors to determine which laws, regulations and Company policies apply to their position and what training is necessary to understand and comply with them.

 

Directors, officers and employees are directed to specify policies and procedures available to persons they supervise.

 

5. Reporting and Accountability

 

The Board is responsible for applying this Code to specific situations in which questions are presented to it and has the authority to interpret this Code in any particular situation. Any person who becomes aware of any existing or potential breach of this Code is required to notify the Chairman of the Board promptly. Failure to do so is, in and of itself, a breach of this Code.

 

Specifically, each person must:

 

·                   Notify the Chairman of the Board promptly of any existing or potential violation of this Code.

 

·                   Not retaliate against any other person for reports of potential violations that are made in good faith.

 

The Company will follow the following procedures in investigating and enforcing this Code and in reporting on the Code:

 

·                   The Board will take all appropriate action to investigate any breaches reported to it.

 

·                   Upon determination by the Board that a breach has occurred, the Board (by majority decision) will take or authorize such disciplinary or preventive action as it deems appropriate, after consultation with the Company’s General Counsel, up to and including dismissal or, in the event of criminal or other serious violations of law, notification of the SEC or other appropriate law enforcement authorities.

 

No person following the above procedure shall, as a result of following such procedure, be subject by the Company or any officer or employee thereof to discharge, demotion suspension, threat, harassment or, in any manner, discrimination against such person in terms and conditions of employment.

 

6. Waivers and Amendments

 

Any waiver (defined below) or an implicit waiver (defined below) from a provision of this Code for the principal executive officer, principal financial officer, principal accounting officer or controller, and persons performing similar functions or any amendment (as defined below) to this Code is required to be disclosed in a current report on Form 8-K filed with the SEC. In lieu of filing a current report on Form 8-K to report any such waivers or amendments, the Company may provide such information on a website, in the event that it establishes one in the future, and if it keeps such information on the website for at least 12 months and discloses the website address as well as any intention to provide such disclosures in this manner in its most recently filed Annual Report on Form 10-K.

 

A “waiver” means the approval by the Company’s Board of a material departure from a provision of the Code. An “implicit waiver” means the Company’s failure to take action within a reasonable period of time regarding a material departure from a provision of the Code that has been made known to an executive officer of the Company. An “amendment”

 



 

means any amendment to this Code other than minor technical, administrative or other non-substantive amendments hereto.

 

8. Insider Information and Securities Trading

 

The Company’s directors, officers or employees who have access to material, non-public information are not permitted to use that information for share trading purposes or for any purpose unrelated to the Company’s business. It is also against the law to trade or to “tip” others who might make an investment decision based on inside company information. For example, using non-public information to buy or sell the Company shares, options in the Company share or the share of any Company supplier, customer or competitor is prohibited. The consequences of insider trading violations can be severe. These rules also apply to the use of material, nonpublic information about other companies (including, for example, our customers, competitors and potential business partners). In addition to directors, officers or employees, these rules apply to such person’s spouse, children, parents and siblings, as well as any other family members living in such person’s home.

 

9. Financial Statements and Other Records

 

All of the Company’s books, records, accounts and financial statements must be maintained in reasonable detail, must appropriately reflect the Company’s transactions and must both conform to applicable legal requirements and to the Company’s system of internal controls. Unrecorded or “off the books” funds or assets should not be maintained unless permitted by applicable law or regulation.

 

Records should always be retained or destroyed according to the Company’s record retention policies. In accordance with those policies, in the event of litigation or governmental investigation, please consult the Board or the Company’s counsel.

 

10. Improper Influence on Conduct of Audits

 

No director or officer, or any other person acting under the direction thereof, shall directly or indirectly take any action to coerce, manipulate, mislead or fraudulently influence any public or certified public accountant engaged in the performance of an audit or review of the financial statements of the Company or take any action that such person knows or should know that if successful could result in rendering the Company’s financial statements materially misleading. Any person who believes such improper influence is being exerted should report such action to such person’s supervisor, or if that is impractical under the circumstances, to any of our directors.

 

Types of conduct that could constitute improper influence include, but are not limited to, directly or indirectly:

 

·                   Offering or paying bribes or other financial incentives, including future employment or contracts for non-audit services;

 

·                   Providing an auditor with an inaccurate or misleading legal analysis;

 

·                   Threatening to cancel or canceling existing non-audit or audit engagements if the auditor objects to the Company’s accounting;

 

·                   Seeking to have a partner removed from the audit engagement because the partner objects to the Company’s accounting;

 

·                   Blackmailing; and

 

·                   Making physical threats.

 

11. Anti-Corruption Laws

 

The Company complies with the anti-corruption laws of the countries in which it does business, including the U.S. Foreign Corrupt Practices Act (FCPA). Directors, officers and employees will not directly or indirectly give anything of value to government officials, including employees of state-owned enterprises or foreign political candidates. These requirements apply both to Company employees and agents, such as third party sales representatives, no matter where they are doing business. If you are authorized to engage agents, you are responsible for ensuring they are reputable and for obtaining a written agreement to uphold the Company’s standards in this area.

 

12. Violations

 

Violation of this Code is grounds for disciplinary action up to and including termination of employment. Such action is in addition to any civil or criminal liability which might be imposed by any court or regulatory agency.

 

13. Other Policies and Procedures

 

Any other policy or procedure set out by the Company in writing or made generally known to employees, officers or directors of the Company prior to the date hereof or hereafter are separate requirements and remain in full force and effect.

 

14. Inquiries

 

All inquiries and questions in relation to this Code or its applicability to particular people or situations should be addressed to the Company’s Secretary, or such other compliance officer as shall be designated from time to time by the Company.

 



 

PROVISIONS FOR

CHIEF EXECUTIVE OFFICER AND SENIOR FINANCIAL OFFICERS

 

The Chief Executive Officer and all senior financial officers, including the Chief Financial Officer and principal accounting officer, are bound by the provisions set forth therein relating to ethical conduct, conflicts of interest, and compliance with law. In addition to the Code, the Chief Executive Officer and senior financial officers are subject to the following additional specific policies:

 

1. Act with honesty and integrity, avoiding actual or apparent conflicts between personal, private interests and the interests of the Company, including receiving improper personal benefits as a result of his or her position.

 

2. Disclose to the Chief Executive Officer and the Board any material transaction or relationship that reasonably could be expected to give rise to a conflict of interest.

 

3. Perform responsibilities with a view to causing periodic reports and documents filed with or submitted to the SEC and all other public communications made by the Company to contain information that is accurate, complete, fair, objective, relevant, timely and understandable, including full review of all annual and quarterly reports.

 

4. Comply with laws, rules and regulations of federal, state and local governments applicable to the Company and with the rules and regulations of private and public regulatory agencies having jurisdiction over the Company.

 

5. Act in good faith, responsibly, with due care, competence and diligence, without misrepresenting or omitting material facts or allowing independent judgment to be compromised or subordinated.

 

6. Respect the confidentiality of information acquired in the course of performance of his or her responsibilities except when authorized or otherwise legally obligated to disclose any such information; not use confidential information acquired in the course of performing his or her responsibilities for personal advantage.

 

7. Share knowledge and maintain skills important and relevant to the needs of the Company, its stockholders and other constituencies and the general public.

 

8. Proactively promote ethical behavior among subordinates and peers in his or her work environment and community.

 

9. Use and control all corporate assets and resources employed by or entrusted to him or her in a responsible manner.

 

10. Not use corporate information, corporate assets, corporate opportunities or his or her position with the Company for personal gain; not compete directly or indirectly with the Company.

 

11. Comply in all respects with the Code.

 

12. Advance the Company’s legitimate interests when the opportunity arises.

 

The Board will investigate any reported violations and will oversee an appropriate response, including corrective action and preventative measures. Any officer who violates this Code will face appropriate, case specific disciplinary action, which may include demotion or discharge.

 

Any request for a waiver of any provision of this Code must be in writing and addressed to the Chairman of the Board. Any waiver of this Code will be disclosed promptly on Form 8-K or any other means approved by the SEC.

 

It is the policy of the Company that each officer covered by this Code shall acknowledge and certify to the foregoing annually and file a copy of such certification with the Chairman of the Board.

 



 

OFFICER’S CERTIFICATION

 

I have read and understand the foregoing Code. I hereby certify that I am in compliance with the foregoing Code and I will comply with the Code in the future. I understand that any violation of the Code will subject me to appropriate disciplinary action, which may include demotion or discharge.

 

Dated:

 

Name:

 

Title:

 

 


Exhibit 16.1

 

March 29, 2018

 

Securities and Exchange Commission

100 F Street, N.E.

Washington, DC  20549

 

Commissioners:

 

We have read the statements made by Infrastructure and Energy Alternatives, Inc. (formerly known as M III Acquisition Corp.) under Item 4.01 of its Form 8-K dated March 26, 2018.  We agree with the statements concerning our Firm in Item 4.01 of such Form 8-K; we are not in a position to agree or disagree with other statements of Infrastructure and Energy Alternatives, Inc. (formerly known as M III Acquisition Corp.) contained therein.

 

Very truly yours,

 

/s/ Marcum LLP

 

 

Marcum LLP

 


Exhibit 99.1

 

INFORMATION ABOUT IEA

 

For purposes of this section, ‘‘we’’, ‘‘us’’, ‘‘our’’ and similar words refer to IEA.

 

Business Overview

 

We are a leading U.S. provider of infrastructure solutions for the renewable energy, traditional power and civil infrastructure industries. Currently, we are primarily focused on the wind energy industry, where we specialize in providing a broad range of EPC services throughout the U.S. We are one of three Tier 1 providers in the wind energy industry and have completed more than 190 wind and solar projects in 35 states. The services we provide include the design, site development, construction, installation and restoration of infrastructure. As of December 31, 2017, we believe that we have the #1 U.S. market share among EPCs for wind. We believe we have the ability to continue to grow our wind energy industry business as the industry grows and that we are well-positioned to leverage our expertise and relationships to provide infrastructure solutions in other areas, including the solar energy industry, the traditional power generation industry and civil infrastructure industry.

 

We trace our roots back to the founding of White Construction in 1947. In the 70 years since, we have diversified our business and expanded our geographic footprint, both organically and through acquisition. Our historical roots are in civil infrastructure construction, and we continue to operate in that sector today. We have also expanded into the utility-scale solar energy construction space. We have completed more than 190 wind and solar projects, including more than 14 GW of wind energy generating capacity and more than 700 MW of utility-scale, solar generating capacity. We have a scalable workforce, with more than 2,000 peak employees. As of December 31, 2017, we had approximately 695 employees.

 

We intend to broaden our solar, power generation, and civil infrastructure capabilities and geographic presence and to expand the services we provide within our existing business areas. We expect that this growth will come through initiatives for organic growth and through acquisitions, as we deepen our capabilities and service offerings in our existing businesses, expand geographically, and enter new sectors that are synergistic with our existing capabilities and product offerings.

 

We believe that continuing demand for renewable energy production will help to drive organic growth over the coming years. Industry experts, including the U.S. Department of Energy (the ‘‘ DOE ’’), are predicting significant growth in renewable energy production capacity over the coming decade. We believe this growth will be driven by macroeconomic factors (including increasing demand for renewable energy from corporations and consumers), broad upgrades to existing transmission infrastructure, increasing proliferation of smart grid technology and the maturation of technologies and services within the renewable energy industry, including increased turbine and photovoltaic efficiencies, a coordinated global supply chain and improved equipment maintenance and reliability. We believe that we have positioned ourselves to expand our market share in renewable energy production (particularly in utility-scale solar power) and have developed in-house capabilities that will provide us with an opportunity to enhance our margins by expanding our self-perform capabilities and, as a result, reduce our use of subcontractors.

 

We also expect to accelerate our growth through carefully selected acquisitions of companies with strong management teams and good reputations, with the goal of expanding our geographic or technical capabilities in our traditional businesses or opportunistically expanding into adjacent sectors. Our management team has existing relationships with a number of potential target companies and we believe that the reputation and track record of our experienced management team makes us an attractive partner for potential targets.

 



 

Industry Trends

 

Our industry is composed of national, regional and local companies in a range of industries, including renewable power generation, traditional power generation and the civil infrastructure industries. We believe the following industry trends will help to drive our growth and success over the coming years:

 

Renewable Power Generation Opportunities

 

In recent years, we have maintained a tight focus on construction of renewable power production capacity as renewable energy—particularly from wind and solar—have become widely accepted within the electric utility industry and have become cost-effective solutions for the creation of new generating capacity. We believe that this shift has occurred because federal and state government policies and subsidies have helped develop the renewable energy market to a level of scale and maturity that permits these technologies to now be cost-effective competitors to more traditional power generation technologies, including on an unsubsidized basis. Under many circumstances, wind and solar power production offer the lowest levelized cost of energy (i.e., the all-in cost of generating power, including construction and operating costs) of any technology. As a result, wind and solar power are among the leading sources of new power generation capacity in the U.S., and wind and utility-scale solar energy generation is projected to become even more cost-effective in coming years as technological improvements make wind turbines and photovoltaic cells (and other solar generating technologies) even more efficient.

 

Governmental policies focused on a clean environment and the desire to decrease U.S. dependence on foreign oil imports have created incentives historically for the development of renewable energy production capacity and have created demand for more domestic, environmentally sensitive electrical power production facilities, such as wind and solar collection farms. The federal government has offered tax credits for investments in renewable energy infrastructure and production of power from renewable sources. Other tax incentives available to the renewable energy industry include accelerated tax depreciation provisions, including bonus depreciation, for certain renewable energy generation assets, such as equipment using solar or wind energy. These incentives specify a five-year depreciable life for qualifying assets rather than the longer depreciable lives of many non-renewable energy assets. In addition to shorter depreciable lives, those assets qualifying for bonus depreciation benefit from significant allowable first-year depreciation.

 

In addition to federal policies that historically have favored power production from renewable sources, a number of states also have supported the expansion of renewable energy generating capacity. Currently, nearly 40 states, as well as the District of Columbia and four territories, have adopted renewable portfolio standards or goals. Similarly, we believe that many corporations and retail consumers are increasingly focused on obtaining energy from renewable sources and have become a significant driver of incremental demand for wind and solar energy production capacity.

 

In light of changes in federal government priorities and the cost-competitiveness of wind and solar power production, certain of the tax credits for production of renewable energy are phasing out. The Consolidated Appropriations Act of 2016 (‘‘CAA’’), which contains certain federal tax incentives applicable to the renewable energy industry, provided for the gradual elimination of certain of these incentives. Currently, the tax code provides that the production tax credit for wind projects (the ‘‘PTC’’) applies to qualifying projects for which the construction commencement date was prior to January 1, 2020. The PTC was reduced by 20% for 2017, have been reduced by 40% for 2018, and finally will be reduced by 60% for 2019. Similarly, a phase down rate of the investment tax credit (the ‘‘ITC’’), which is available in lieu of PTC, is available for wind projects: 30% ITC for projects commencing before 2017, 24% for projects commencing in 2017, 18% for projects commencing in 2018 and 12% for projects commencing in 2019.

 



 

Solar projects, however, will be eligible for an investment tax credit (the ‘‘Solar ITC’’) only. The Solar ITC is 30% for projects commencing prior to 2020 and will be reduced to 26% for projects commencing in 2020 and to 22% for projects commencing in 2021. After 2021, the Solar ITC will remain at 10% for projects that commence prior to 2022, but are placed in service after 2023.

 

Additionally, although the enactment of the 2017 Tax Act in December 2017 did not modify the existing production tax credit and investment tax credit incentive structures, a base erosion and anti-abuse tax, or ‘‘BEAT’’ provision, contained in the 2017 Tax Act imposes a minimum tax on certain corporations, and only 80% of the value of any such corporation’s production or investment tax credits can be applied as a reduction to such corporation’s BEAT liability. Accordingly, this BEAT provision could reduce the incentive for certain taxable investors to invest in tax equity financing arrangements and could materially reduce the value and availability such tax credits, grants and incentives for certain participants and financing sources in the wind and solar industry. The 2017 Tax Act permits the immediate expensing of certain capital expenditures between September 27, 2017 and January 1, 2023, but this new rule could be less valuable than a dollar-for-dollar investment tax credit or production tax credit, given the reduced corporate income tax rate of 21%. Any of the foregoing changes arising from the 2017 Tax Act, as well as other changes in law not mentioned herein, could adversely impact the demand for development of wind and solar energy generation facilities. See ‘‘ Tax reform legislation recently enacted by the U.S. Congress may reduce materially the value of production tax credits and investment tax credits under certain circumstances. ’’ for a discussion of the risks associated with these federal and state tax incentives.

 

Despite these reductions in tax incentives for the development and operation of renewable power generation capacity, the market for the development of utility-scale wind and solar power generation is expected to remain robust. The Annual Energy Outlook 2018 published by the U.S. Department of Energy in February 2018 projected the addition of approximately 80 gigawatts of new utility-scale wind and solar capacity from 2018 to 2021, which we estimate will drive more than $19.4 billion of construction (or more than $4.0 billion per year). Although this demand is driven, in part, by accelerated, incremental investment in renewable power generation sources during the phase-out period for existing tax incentives, demand for renewable power construction—and particularly for utility-scale solar farms—is projected to remain strong thereafter.

 

Heavy Civil and Infrastructure Construction

 

Although heavy civil and infrastructure construction is only a small part of our business today and accounts for less than 5% of our revenue, our historical roots are in this sector and we have maintained a reputation for high quality work, dating back 70 years. Although state and federal funding for this industry has been neglected for decades, the near-term outlook on both state and federal levels has led us to believe that spending for infrastructure may experience significant growth over the next few years. Not only is state and federal funding likely to increase, but alternative methods of construction, such as public and private partnerships, have gained significant traction in the United States.

 

We are taking steps to enhance our heavy civil and public infrastructure construction business in order to take advantage of these growth opportunities. We believe that our business relationships with customers in this sector are strong and that the reputation in the marketplace that we have built over 70 years will provide us with the foundation to grow our revenue base in this business. There is significant overlap in labor, skills and equipment needs between our renewable energy construction business and our heavy civil and public infrastructure business, which will provide us with operating efficiencies as we expand in this sector. Our renewable energy experience also provides us with

 



 

expertise in working in difficult conditions and environments, which we believe will provide us with a competitive advantage when bidding for more complicated—and often higher margin—civil and infrastructure projects.

 

Electrical Power and High Voltage Opportunities

 

The U.S. electrical transmission and distribution infrastructure requires significant ongoing maintenance, upgrade and expansion to manage power line congestion and avoid delivery failures. Regional shifts in population and industry may also create pockets of demand for increased transmission and distribution construction and upgrades. According to the DOE’s Annual Energy Outlook 2018 published in February 2018, approximately 190 gigawatts of new electricity generating capacity is expected to be added through 2050.

 

Renewable energy generation projects, which are typically located in remote areas, often require investment in new transmission lines to interconnect with the electrical grid. Although we have outsourced our high-voltage electrical needs historically, we implemented a program to upgrade our in-house capacity during 2017 and expect to gradually transition over 2018 to self-performing our high-voltage electrical work. We believe that this transition will afford us the opportunity to capture incremental margin on our projects and to provide enhanced service to our customers.

 

We believe that the same capabilities that we are building in order to self-perform high-voltage electrical work will enable us to capture incremental revenue by providing these services to others. With investment by utilities and transmission companies to modernize, secure and visually improve the existing transmission system expected to be strong over the coming years, we believe that our existing customer relationships and reputation will leave us well-positioned for growth in this sector.

 

Competitive Strengths

 

Our competitive strengths include:

 

Reputation for High Quality, Reliable Customer Service and Technical Expertise.   We are a national Tier 1 provider for wind energy infrastructure projects due to our established reputation for safe, high quality performance, reliable customer service and technical expertise. Because the construction and development of wind energy projects is very technically demanding, industry participants have increasingly emphasized safety, high quality performance and technical reliability. Our management estimates that construction costs represent only approximately 20% to 25% of total project cost, but construction-related risks pose the most significant threat to completion of the project. As a result, we believe that we have become the best-in-class provider to the wind industry. We have successfully completed over 190 wind and solar projects over the past approximately 10 years. Our reputation gives us an advantage when competing for new work, both from existing and potential customers.

 

An Industry Leader in Safety Performance.   Our industry-leading safety performance helps us enhance our reputation for high quality and reliability. Our management team strives to instill a corporate culture committed to health and safety. Our experience modification rate, a measure of our history and safety record as compared to other businesses in our industry, was 0.51 and our total recordable incident rate was 0.30 in 2017, both of which were significantly below the industry averages of 1.0 and 2.9, respectively, reported by the U.S. Department of Labor and U.S. Bureau of Labor Statistics 2016. In our experience, safety records are an important factor to customers in contracting for services and we believe that our exemplary safety record is a significant differentiator for us.

 

Strong Relationships With Leading Wind Industry Players.   Our business model has enabled us to hold a leading position in the wind industry by successfully winning key contracts and establishing strong relationships with many established developers and operators in the renewable

 



 

energy sector, as well as with market leaders in the petrochemical, heavy civil and industrial construction industries. These relationships have provided us with a recurring base of blue-chip utility and other customers. We also have strong relationships with the leading original equipment manufacturers who produce the equipment for both solar and wind farms. In recent years, developers of wind and solar projects have come to emphasize reliability and excellence in execution, as well as a strong safety record, in selecting their EPC partners, and our track record and reputation has made us a provider of choice to those industry participants. We have completed wind projects with 12 of the 16 top U.S. developers or owners, who are collectively responsible for approximately 63% of the total U.S. megawatts of installed wind energy production capacity. Our longstanding relationships have enabled us to develop strong alliances with many of our customers and vendors in the wind sector and provide us with a strong base for our solar power expansion initiatives. We strive to further improve these relationships and enhance our status as a preferred vendor to our customers.

 

Self-Perform Capabilities.    We have made substantial investments in our self-perform capabilities and, as a result, are able to self-perform across a large portion of the services that we deliver. We continue to seek opportunities to expand our self-perform capabilities and expect to begin self- performing our high-voltage electrical work in 2018. Leveraging our technical expertise, project management experience and our highly skilled and stable work force, we are in a position to provide our customers with a compelling package of technical reliability, consistent execution and safety to our customers. In addition, our self-perform capabilities provide us with an opportunity to retain margin while better controlling scheduling of projects, potentially leading to greater operational efficiencies for us and enhanced reliability for our customers.

 

Ability to Cross-Sell Our Product and Service Offerings.    A majority of our wind customers also build utility-scale solar projects, and a number of them are in active discussions with us for solar projects.

 

By leveraging our established relationships with our customers, we have realized additional revenues by selling products and services that our customers historically purchased from various other providers. Since 2010, we have built over 700 installed megawatts of utility-scale solar, and we have a growing pipeline of utility-scale solar projects.

 

Ability to Respond Quickly and Effectively.   The skills required to serve each of our end-markets are similar, which allows us to utilize qualified personnel across multiple end-markets and projects. We are able to respond quickly and effectively to industry and technological changes, demand fluctuations and major weather events by allocating our employees, fleet and other assets as and where they are needed, enabling us to provide cost effective and timely services for our customers. Additionally, we have a track record of successfully recruiting and retaining skilled labor, despite industry shortages.

 

Experienced Management Team.   Our senior management team has over 175 years of combined experience and proven expertise in wind, utility-scale solar and other energy sectors, and a deep understanding of our customers and their requirements. Our senior management team plays a significant role in establishing and maintaining long-term relationships with our customers, supporting the growth of our business, integrating acquired businesses and managing the financial aspects of our operations.

 

Strategy

 

The key elements of our business strategy are as follows:

 

Focus on Growth Opportunities.    We intend to use our broad geographic presence, technical expertise, financial and operational resources, customer relationships and full range of services to capitalize on favorable industry trends and grow our business in the wind energy, solar energy, traditional power generation and civil infrastructure industries. We expect continued spending by key customers in many of the industries we currently serve, and we expect that spending to expand into the future. In particular, we expect to further develop our capabilities in the area of utility-scale wind and solar development and storage and

 



 

to expand the amount of work we self-perform, rather than subcontract with respect to high voltage electrical work. In coming years, we expect civil, industrial and mechanical infrastructure and construction services to be growth areas and intend to expand our operations both organically and through potential acquisitions to position our company to be a high-quality provider of infrastructure solutions to meet those opportunities.

 

We believe we are well positioned to capture market opportunities associated with the anticipated growth of the renewable energy industry in the United States. We believe this growth will be driven by:

 

·        macroeconomic factors, including an increase in overall energy prices and federal and state-level wind development incentives;

 

·        broad upgrades to existing transmission infrastructure and increasing proliferation of smart grid technology; and

 

·        the maturation of technologies and services within the renewable energy industry, including increased turbine and photovoltaic efficiencies, a coordinated global supply chain and improved equipment maintenance and reliability.

 

Leverage Performance and Core Expertise Through Strategic Acquisitions and Arrangements.   We expect to pursue selected and opportunistic acquisitions, investments and strategic arrangements that allow us to expand our operations into targeted geographic areas or continue to expand our service offerings in related fields. Having successfully developed our wind energy business to be a market leader, we plan to further grow our business by diversifying and expanding our service offerings, both organically and through acquisition.

 

Maintain Operational Excellence.    We will seek to improve our profit margins and cash flows by focusing on profitable services and projects that have high margin potential. We will also strive to identify opportunities to leverage our existing resources within our business, such as deploying resources across multiple customers and projects in order to enhance our operating effectiveness and utilization rates, while continuing to maintain strong working capital management practices. We expect to continue to pursue actions and programs designed to achieve these goals, such as increasing accountability throughout our organization, effectively managing customer contract bidding procedures, evaluating opportunities to improve our working capital cycle time through contractual provisions and certain financing arrangements, hiring and retaining experienced operating and financial professionals, and expanding and further integrating the use of our financial and other management information systems.

 

Customers

 

We have longstanding customer relationships with many established companies in the wind, solar, renewable energy, thermal power, petrochemical, civil and industrial power industries, with a recurring base of blue-chip utility customers, as well as original equipment manufacturers that produce the equipment for both solar and wind farms. We have completed wind projects with 12 of the 16 top U.S. developers or owners, which are collectively responsible for approximately 63% of U.S. megawatts installed capacity in wind.

 

Although we are not dependent upon any one customer in any year, a relatively small number of repeat customers constitute a substantial portion of our total revenues. Accordingly, our management is responsible for developing and maintaining existing relationships with customers to secure additional projects and increase revenue from our current customer base. We believe that our strategic relationships with customers will result in future opportunities. Our management is also focused on pursuing growth opportunities with prospective new customers.

 

For the year ended December 31, 2017, we had three customers who each accounted for at least 10% of our revenue and three customers who each accounted for at least 10% of our accounts receivable. For the year ended December 31, 2017, E.ON Climate &

 



 

Renewables Inc., Enel Green Power North America, and EDF Renewable Energy accounted for 22%, 21% and 14% of our revenue, respectively. Trishe Wind Ohio, LLC, Enel Green Power North America and EDF Renewable energy accounted for 17%, 15% and 11% of our accounts receivable, respectively. For the years ended December 31, 2016 and 2015, we had three and three customers, respectively, who each accounted for at least 10% of our revenue, and we had three and two customers, respectively, who each accounted for at least 10% of our accounts receivable. For the year ended December 31, 2016, three of our customers, Enel Green Power North America, NextEra Energy and Algonquin Power, accounted for 17%, 11% and 11% of our revenue, respectively. Enel Green Power North America, NextEra Energy and Deerfield Wind Energy, LLC accounted for 36%, 13% and 12% of our accounts receivable, respectively, in 2016. For the year ended December 31, 2015, Apex and Canadian Solar Solutions, Inc. accounted for 25% and 43% of our revenue respectively, and E.ON Climate & Renewables Inc. and Northland Power accounted for 37% and 54% of our accounts receivable, respectively. See ‘‘Risk Factors’’ for a discussion of risks related to customer concentration.

 

Our work is generally performed pursuant to contracts for specific projects or jobs that require the construction or installation of an entire complex of specified units within an infrastructure system. Customers are billed monthly throughout the completion of work on a project; however, some contracts provide for additional billing upon the achievement of specific completion milestones, which may increase the billing period to more than one month. Such contracts may include retainage provisions under which, generally, from 5% to 10% of the contract price is withheld until the work has been completed and accepted by the customer. Because we may not be able to maintain our current revenue levels or our current level of capacity and resource utilization if we are not able to replace work from completed projects with new project work, we actively review our backlog of project work and take appropriate action to minimize such exposure.

 

We believe that our industry experience, technical expertise and reputation for customer service, as well as the relationships developed between our customers and our senior management and project management teams are important to our being retained by our customers. See Note 11—Commitments and Contingencies in the notes to IEA’s audited consolidated financial statements, included elsewhere in this proxy statement for further discussion of our significant customer concentrations.

 

Backlog

 

For companies in the construction industry, backlog can be an indicator of future revenue streams. Estimated backlog represents the amount of revenue we expect to realize through 2020 from the uncompleted portions of existing construction contracts, including new contracts under which work has not begun and awarded contracts for which the definitive project documentation is being prepared, as well as revenue from change orders and renewal options. Estimated backlog for work under fixed price contracts and cost-reimbursable contracts is determined based on historical trends, anticipated seasonal impacts, experience from similar projects and estimates of customer demand based on communications with our customers. Cost-reimbursable contracts are included in backlog based on the estimated total contract price upon completion. We expect to realize approximately 55.3% of our estimated backlog during 2018 and 44.7% during 2019.

 

As of December 31, 2017, our total backlog was approximately $1.1 billion, representing an increase of $685.0 million, or 165.1%, from $415.0 million as of December 31, 2016. Based on historical trends in the Company’s backlog, we believe awarded contracts to be firm and that the revenue for such contracts will be recognized over the life of the project. Timing of revenue for construction and installation projects included in our backlog can be subject to change as a result of customer delays, regulatory factors and/or other project-related factors. These changes could cause estimated revenue to be realized in periods later than originally expected, or not at all. In the past, we have occasionally experienced postponements, cancellations and reductions on construction projects, due to market volatility and regulatory factors. There can be no assurance as to our customers’ requirements or

 



 

the accuracy of our estimates. As a result, our backlog as of any particular date is an uncertain indicator of future revenue and earnings.

 

Backlog is not a term recognized under U.S. GAAP, although it is a common measurement used in our industry. Our methodology for determining backlog may not be comparable to the methodologies used by others. See ‘‘ Risk Factors ’’ for a discussion of the risks associated with our backlog.

 

Safety and Insurance/Risk Management

 

We strive to instill and enforce safe work habits in our employees, and we require that our employees participate in training programs relevant to their employment, including all those required by law. We evaluate employees in part based upon their safety records and the safety records of the employees they supervise. Our business units have established robust safety programs to encourage, monitor and improve compliance with safety procedures and regulations including, behavioral based safety, jobsite safety analysis, site-specific safety orientation, subcontractor orientation, site safety audits, accident and incident safety investigations, OSHA 30-hour and 10-hour training, drug and alcohol testing and regular trainings in fall protection, confined spaces, crane rigging and flagman, first aid, CPR and AED.

 

Our business involves the use of heavy equipment and exposure to potentially dangerous workplace conditions. While we are committed to operating safely and prudently, we are subject to claims by employees, customers and third parties for property damage and personal injuries that occur in connection with our work. We maintain insurance policies for worker’s compensation, employer liability, automobile liability, general liability, inland marine property and equipment, professional and pollution liability, excess liability, and director and officers’ liability. See Note 11—Commitments and Contingencies in the notes to IEA’s audited consolidated financial statements, included in this Form 8-K on Exhibit 99.4.

 

Suppliers, Materials and Working Capital

 

Under many of our contracts, our customers provide the necessary materials and supplies for projects and we are responsible for the installation, but not the cost or warranty, of those materials. Under certain other projects, we purchase the necessary materials and supplies on behalf of our customers from third-party providers. We are not dependent upon any one vendor and have not experienced significant difficulty in obtaining project-related materials or supplies as and when required for the projects we manage.

 

We utilize independent contractors to assist on projects and to help manage our work flow. Our independent contractors typically provide their own vehicles, tools and insurance coverage. We need working capital to support seasonal variations in our business, such as the impact of weather conditions on external construction and maintenance work and the spending patterns of our customers, both of which influence the timing of associated spending to support related customer demand. See ‘‘ IEA Management’s Discussion and Analysis of Financial Condition and Results of Operations. ’’

 

Competition

 

We compete with a number of companies in the markets in which we operate, ranging from small local independent companies to large national firms, and some of our customers employ their own personnel to perform infrastructure services of the type we provide. The national or large regional firms that compete with us include Blattner Energy, MA Mortenson Construction, and Wanzek Construction.

 

We are one of only three Tier 1 wind construction providers and the nature of our work is highly specialized. The primary factors influencing competition in our industry are price, reputation, quality

 



 

and delivery, relevant expertise, adequate financial resources, geographic presence, high safety ratings and a proven track record of operational success. We believe that our national platform, track record of completion, relationships with vendors, strong safety record and access to skilled labor enables us to compete favorably in all of these factors. We also believe that our ability to provide unionized and non-unionized workforces across a national footprint allows us to compete for a broad range of projects. While we believe our customers consider a number of factors when selecting a service provider, they award most of their work through a bid process. We believe our safety record, experience and price are often principal factors in determining which service provider is selected.

 

Seasonality and Cyclicality

 

Our revenues and results of operations can be subject to seasonal and other variations. These variations are influenced by weather, customer spending patterns, bidding seasons, receipt of required regulatory approvals, permits and rights of way, project timing and schedules and holidays. See ‘‘ IEA Management’s Discussion and Analysis of Financial Condition and Results of Operations—Impact of Seasonality, Cyclicality and Variability.’’

 

Regulation and Environmental Matters

 

We are subject to state and federal laws that apply to businesses generally, including laws and regulations related to labor relations, wages, worker safety and environmental protection. While many of our customers operate in regulated industries (for example, utilities regulated by the public service commission, we are not generally subject to such regulation and oversight.

 

As a contractor, our operations are subject to various laws, including:

 

·        regulations related to vehicle registrations, including those of the states and the U.S. Department of Transportation;

 

·        regulations related to worker safety and health, including those established by the Occupational Safety and Health Administration and state equivalents;

 

·        contractor licensing, permitting and inspection requirements; and

 

·        building and electrical codes.

 

We are also subject to numerous environmental laws, including the handling, transportation and disposal of non-hazardous and hazardous substances and wastes, as well as emissions and discharges into the environment, including discharges into air, surface water, groundwater and soil. We also are subject to laws and regulations that impose liability and cleanup responsibility for releases of hazardous substances into the environment.

 

We believe we have all material licenses and permits needed to conduct operations and that we are in material compliance with applicable regulatory requirements. However, we could incur significant liabilities if we fail to comply with applicable regulatory requirements. See ‘‘ Risk Factors—We could incur substantial costs to comply with environmental, health, and safety laws and regulations and to address violations of liabilities under these requirements.’’

 

The potential impact of climate change on our operations is highly uncertain. Climate change may result in, among other things, changes in rainfall patterns, storm patterns and intensity and temperature levels. As discussed elsewhere in this proxy statement, our operating results are significantly influenced by weather and major changes in historical weather patterns could significantly impact our future operating results. For example, if climate change results in significantly more adverse weather conditions in a given period, we could experience reduced productivity, which could negatively impact revenues and gross margins.

 



 

Employees

 

IEA has a workforce of both union and non-union employees that allow us to work anywhere in the U.S. We have a scalable workforce, with more than 2,000 peak employees. As of December 31, 2017, we had approximately 695 employees, approximately 175 of whom were represented by unions or were subject to collective bargaining agreements. See Note 14—Employee Benefit Plans in the notes to IEA services’ audited consolidated financial statements, included elsewhere on this Form 8-K in Exhibit 99.4.

 

We hire employees from a number of sources, including our industry, trade schools, colleges and universities. We attract and retain employees by offering a competitive salary, benefits package, opportunities for advancement and an exemplary safety record. We strive to offer a caring and stable work environment that enables our employees to improve their performance, and enhance their skills and knowledge. We believe that our corporate culture and core value system helps us to attract and retain employees. We provide opportunities for promotion and mobility within our organization, which we also believe helps us to retain our employees. Our employees participate in ongoing educational programs, some of which are internally developed, to enhance their technical and management skills through classroom and field training. We believe we have good employee relations.

 

Properties

 

Our corporate headquarters, located in Indianapolis, Indiana, is a leased facility approximating 46,891 square feet. We also lease from an affiliate a 56,000 square foot office and 26,000 square foot maintenance facility in Clinton, Indiana. As of December 31, 2017, our operations were conducted from approximately 8 locations within the U.S. None of these facilities is material to our operations because most of our services are performed on customers’ premises or on public rights of way and suitable alternative locations are available in substantially all areas where we currently conduct business. We also own property and equipment that had a net book value of approximately $30.9 million as of December 31, 2017. This property and equipment includes trucks, tractors, trailers, forklifts, backhoes, sidebooms, bulldozers, excavators, trenchers, graders, loaders, scrapers, drilling machines, cranes, computers, computer software, office and building equipment, including furniture and fixtures and other equipment. Substantially all of our equipment is acquired from third-party vendors, upon none of which we depend, and we did not experience any difficulties in obtaining desired equipment in 2017.

 

Legal Proceedings

 

IEA is subject to a variety of legal cases, claims and other disputes that arise from time to time in the ordinary course of its business. IEA cannot provide assurance that it will be successful in recovering all or any of the potential damages it has claimed or in defending claims against IEA. While the outcome of such cases, claims and disputes cannot be predicted with certainty, we do not believe that the resolution of such matters will have a material adverse impact on our results of operations, financial position, or cash flows. However, an unfavorable resolution of one or more of such matters could have a material adverse effect on IEA’s business, financial condition, results of operations and cash flows.

 


Exhibit 99.2

 

SELECTED CONSOLIDATED HISTORICAL FINANCIAL
AND OTHER INFORMATION OF IEA

 

The following table sets forth summary historical financial information for IEA as of and for the years ended December 31, 2017, 2016, 2015 and 2014. Such information for the years ended December 31, 2017, 2016 and 2015 have been derived from the audited consolidated financial statements of IEA, included elsewhere on this Form 8-k in Exhibit 99.4. Such information as of and for the year ended December 31, 2014 have been derived from the unaudited consolidated financial statements of IEA.

 

Management has prepared the unaudited consolidated financial information set forth below on the same basis as IEA’s audited consolidated financial statements and have included all adjustments, consisting of only normal recurring adjustments, that it considers necessary for a fair presentation of our financial position and operating results for such periods. IEA’s historical results are not necessarily indicative of the results to be expected in any future period. The information below is only a summary and should be read in conjunction with exhibit XX and XX entitled ‘‘ IEA Management’s Discussion and Analysis of Financial Condition and Results of Operations ’’ and ‘‘ Information About IEA ’’ and in IEA’s financial statements and the related notes, included elsewhere in Exhibit 99.4.

 

 

 

Years Ended December 31,

 

(in thousands)

 

2017

 

2016

 

2015

 

2014

 

Statement of Operations Data:

 

 

 

 

 

 

 

 

 

Revenue

 

$

454,949

 

$

602,665

 

$

204,640

 

$

286,254

 

Cost of revenue

 

388,928

 

517,419

 

184,850

 

268,559

 

Gross profit

 

$

66,021

 

$

85,246

 

$

19,790

 

$

17,695

 

 

 

 

 

 

 

 

 

 

 

Selling, general and administrative expenses(1)

 

$

33,543

 

$

30,705

 

$

27,169

 

$

31,377

 

Income (loss) from operations(2)

 

$

32,478

 

$

54,541

 

$

(8,907

)

$

(15,343

)

Other income (expense), net

 

$

(2,090

)

$

(303

)

$

317

 

$

(728

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net income (loss) from continuing operations

 

$

16,525

 

$

64,451

 

$

(8,696

)

$

(10,205

)

Net income (loss) from discontinued operations(3)

 

 

1,087

 

(19,487

)

(76,636

)

Net income (loss)

 

$

16,525

 

$

65,538

 

$

(28,183

)

$

(86,841

)

 

 

 

 

 

 

 

 

 

 

Cash Flow Data:

 

 

 

 

 

 

 

 

 

Net cash provided by (used in) operating activities(4)

 

$

(9,109

)

$

53,591

 

$

(5,617

)

$

(55,928

)

Net cash provided by (used in) investing activities

 

$

(3,508

)

$

(3,000

)

$

352

 

$

(1,000

)

Net cash provided by (used in) financing activities

 

$

(4,113

)

$

(29,617

)

$

8,541

 

$

39,405

 

 

1



 

 

 

Years Ended December 31,

 

(in Thousands)

 

2017

 

2016

 

2015

 

2014

 

Balance Sheet Data:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash and cash equivalents

 

$

4,877

 

$

21,607

 

$

 

$

 

Accounts receivable, net

 

$

60,981

 

$

69,977

 

$

37,594

 

$

124,800

 

Costs and estimated earnings in excess of billings on uncompleted contracts

 

$

18,613

 

$

14,143

 

$

16,016

 

$

32,787

 

Property, plant and equipment, net

 

$

30,905

 

$

20,540

 

$

14,152

 

$

18,603

 

Total assets

 

$

126,703

 

$

147,716

 

$

74,363

 

$

194,637

 

Accounts payable and accrued liabilities

 

$

70,030

 

$

97,244

 

$

79,043

 

$

159,027

 

Billings in excess of costs and estimated earnings on uncompleted contracts

 

$

7,398

 

$

28,181

 

$

15,902

 

$

33,752

 

Line of credit

 

$

33,674

 

$

 

$

27,946

 

$

39,405

 

Total liabilities

 

$

136,722

 

$

134,841

 

$

150,207

 

$

242,944

 

Total member’s equity (deficit)

 

$

(10,019

)

$

12,875

 

$

(75,844

)

$

(48,307

)

 


(1)             Selling, general and administrative expenses for the year ended December 31, 2017 includes $3,825 of costs associated with electrical and solar teams for which revenue is not anticipated prior to 2018. Includes payments made to Oaktree for guarantees provided by Oaktree on certain borrowings of IEA of $1,535, $2,340, $1,961 and $827 for each of the periods ended December 31, 2017, 2016, 2015 and 2014, respectively. Includes supplemental bonuses of $1,500 and $2,000 in the periods ended September 30, 2016 and fiscal 2016 related to IEA’s successful completion of IEA’s exit of its Canadian operations.

 

(2)             Includes $1,528 and $1,661 in fiscal 2015 and 2014, respectively, related to restructuring costs associated with the abandonment of the Canadian solar operations of White Construction, Inc. and its wholly-owned subsidiary, H.B. White Canada Corp. (‘‘H.B. White’’) and refocusing the business on the U.S. wind energy market. Restructuring expenses represented severance expense for employees who were terminated as a result of the abandonment of the Canadian solar operations of H.B. White.

 

(3)             IEA made the decision to abandon its operations in Canada in 2014 and to refocus the business on the U.S. wind energy market. In early 2015, IEA began the process of finalizing all projects in Canada and reducing or eliminating all costs and expenses. IEA completely abandoned the Canadian solar operations of H.B. White and effectively completed all significant projects in Canada, and reduced or redeployed substantially all of its Canadian resources, facilities and equipment as of July 2016.

 

(4)             Cash flow from operations can fluctuate from period to period based on the number of awarded projects in process. See ‘‘ IEA Management’s Discussion and Analysis of Financial Condition and Results of Operation—Liquidity and Capital Resources ’’ in Exhibit 99.3.

 

2


Exhibit 99.3

 

IEA’S MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

 

You should read the following management’s discussion and analysis in conjunction with ‘‘Selected Historical Financial Information,’’ ‘‘Unaudited Pro Forma Combined Financial Information’’ and the accompanying financial statements and related notes included elsewhere in this Current Report on Form 8-K. The discussion below includes forward-looking statements about IEA’s business, operations and industry that are based on current expectations that are subject to uncertainties and unknown or changed circumstances. Our actual results may differ materially from these expectations as a result of many factors, including those risks and uncertainties described in the sections entitled ‘‘Risk Factors’’ and ‘‘Cautionary Note Regarding Forward Looking Statements.’’

 

Throughout this section, unless otherwise noted, ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to IEA Services and its consolidated subsidiaries. Certain amounts in this section may not foot due to rounding.

 

Overview

 

We are a leading U.S. provider of infrastructure solutions for the renewable energy, traditional power and civil infrastructure industries. Currently, we are primarily focused on the wind energy industry, where we specialize in providing complete engineering, procurement and construction (‘‘ EPC ’’) services throughout the U.S. We are one of three Tier 1 providers in the wind energy industry and have completed more than 190 wind and solar projects in 35 states. The services we provide include the design, site development, construction, installation and restoration of infrastructure. As of December 31, 2017, we believe that we have the #1 U.S. market share among EPCs for wind. We believe we have the ability to continue to grow our wind energy industry business as the industry grows and that we are well-positioned to leverage our expertise and relationships to provide infrastructure solutions in other areas, including the solar energy industry, the traditional power generation industry and civil infrastructure.

 

We intend to broaden our solar, power generation, and civil infrastructure capabilities and geographic presence and to expand the services we provide within our existing business areas. We expect that this growth will come through initiatives for organic growth and through acquisitions, as we deepen our capabilities and service offerings in our existing businesses, expand geographically, and enter new sectors that are synergistic with our existing capabilities and product offerings.

 

We believe that continuing demand for renewable energy production will help to drive organic growth over the coming years. Industry experts, including the U.S. Department of Energy, are predicting significant growth in renewable energy production capacity over the coming decade. We believe this growth will be driven by macroeconomic factors (including increasing demand for renewable energy from corporations and consumers), broad upgrades to existing transmission infrastructure, increasing proliferation of smart grid technology and the maturation of technologies and services within the renewable energy industry, including increased turbine and photovoltaic efficiencies, a coordinated global supply chain and improved equipment maintenance and reliability. We believe that we have positioned ourselves to expand our market share in renewable energy production (particularly in utility-scale solar power) and have developed in-house capabilities that will provide us with an opportunity to enhance our margins by expanding our self-perform capabilities and, as a result, reduce our use of subcontractors.

 



 

On March 26, 2018, the registrant consummated the previously announced business combination pursuant to that certain Agreement and Plan of Merger, as amended by Amendment No. 1 thereto, dated November 15, 2017, Amendment No. 2 thereto, dated December 27, 2017, Amendment No. 3 thereto, dated January 9, 2018, Amendment No. 4 thereto, dated February 7, 2018, and Amendment No. 5 thereto, dated March 9, 2018 (the “Merger Agreement”), by and among Infrastructure and Energy Alternatives, Inc. (f/k/a M III Acquisition Corp.), a Delaware corporation (the “registrant”), IEA Energy Services LLC, a Delaware limited liability company (“IEA Services”), Wind Merger Sub I, Inc., a Delaware corporation and a wholly-owned subsidiary of the Company (“Merger Sub I”), Wind Merger Sub II, LLC, a Delaware limited liability company and a wholly-owned subsidiary of the registrant (“Merger Sub II”), Infrastructure and Energy Alternatives, LLC, a Delaware limited liability company (“Seller”), Oaktree Power Opportunities Fund III Delaware, L.P., a Delaware limited partnership (“Oaktree”), solely in its capacity as the Seller’s representative and, solely for purposes of certain sections therein, M III Sponsor I LLC, a Delaware limited liability company, and M III Sponsor I LP, a Delaware limited partnership, which provided for, among other things, the merger of Merger Sub I with and into IEA Services with IEA Services surviving such merger and, immediately thereafter, merging with and into Merger Sub II with Merger Sub II surviving such merger as an indirect, wholly-owned subsidiary of the registrant and, the issuances in connection therewith of shares of the registrant’s common stock, par value $0.0001 per share, and shares of the registrant’s Series A preferred stock, par value $0.0001 per share (together with the other transactions contemplated by the Merger Agreement, the “Business Combination”).

 

Economic, Industry and Market Factors

 

We closely monitor the effects that changes in economic and market conditions may have on our customers. General economic and market conditions can negatively affect demand for our customers’ products and services, which can lead to reductions in our customers’ capital and maintenance budgets in certain end-markets. In the face of increased pricing pressure, we strive to maintain our profit margins through productivity improvements and cost reduction programs. Other market, regulatory and industry factors could also affect demand for our services, such as:

 

·         changes to our customers’ capital spending plans;

 

·         mergers and acquisitions among the customers we serve;

 

·         access to capital for customers in the industries we serve;

 

·         new or changing regulatory requirements or other governmental policy uncertainty;

 

·         economic, market or political developments; and

 

·         changes in technology, tax and other incentives.

 

While we actively monitor economic, industry and market factors that could affect our business, we cannot predict the effect that changes in such factors may have on our future results of operations, liquidity and cash flows, and we may be unable to fully mitigate, or benefit from, such changes.

 

Impact of Seasonality and Cyclical Nature of Business

 

Our revenue and results of operations can be subject to seasonal and other variations. These variations are influenced by weather, customer spending patterns, bidding seasons, fiscal year-ends, project schedules and timing, in particular, for large non-recurring projects and holidays. Typically, our revenue is lowest in the first quarter of the year because cold, snowy or wet conditions experienced in the northern climates

 



 

are not conducive to efficient or safe construction practices. Revenue in the second quarter is typically higher than in the first quarter, as some projects begin, but continued cold and wet weather and effects from thawing ground conditions can often impact second quarter productivity. The third and fourth quarters are typically the most productive quarters of the year, as a greater number of projects are underway, and weather is normally more accommodating to construction projects. In the fourth quarter, many projects tend to be completed by customers seeking to spend their capital budgets before the end of the year, which generally has a positive impact on our revenue. Nevertheless, the holiday season and inclement weather can cause delays, which can reduce revenue and increase costs on affected projects. Any quarter may be positively or negatively affected by adverse or unusual weather patterns, including from excessive rainfall, warm winter weather or natural catastrophes such as hurricanes or other severe weather, making it difficult to predict quarterly revenue and margin variations.

 

Our industry is also highly cyclical. Fluctuations in end-user demand within the industries we serve, or in the supply of services within those industries, can impact demand for our services. As a result, our business may be adversely affected by industry declines or by delays in new projects. Variations in project schedules or unanticipated changes in project schedules, in particular, in connection with large construction and installation projects, can create fluctuations in revenue, which may adversely affect us in a given period, even if not in total. In addition, revenue from master service agreements, while generally predictable, can be subject to volatility. The financial condition of our customers and their access to capital, variations in project margins, regional, national and global economic, political and market conditions, regulatory or environmental influences, and acquisitions, dispositions or strategic investments can also materially affect quarterly results. Accordingly, our operating results in any particular period may not be indicative of the results that can be expected for any other period.

 

Understanding our Operating Results

 

Revenue

 

We provide engineering, building, installation, maintenance and upgrade services to our customers. We derive revenue from projects performed under fixed price contracts and other service agreements for specific projects or jobs requiring the construction and installation of an entire infrastructure system or specified units within an entire infrastructure system. We recognize a significant portion of our revenue based on the percentage-of-completion method. See ‘‘ —Critical Accounting Estimates—Revenue Recognition for Percentage-of-Completion Projects .’’

 

Cost of Revenue

 

Cost of revenue, consists principally of: salaries, wages and employee benefits; subcontracted services; equipment rentals and repairs; fuel and other equipment expenses, including allocated depreciation and amortization expense; material costs, parts and supplies; insurance; and facilities expenses. Project profit is calculated by subtracting a project’s cost of revenue, including project-related depreciation, from project revenue. Project profitability and corresponding project margins will be reduced if actual costs to complete a project exceed our estimates on fixed price and installation/ construction service agreements. Estimated losses on contracts are recognized immediately when estimated costs to complete a project exceed the remaining revenue to be received over the remainder of the contract. Various factors, some controllable and some not, can impact our margins on a quarterly or annual basis, including:

 

·         Seasonality and Geographical Factors. Seasonal patterns can have a significant impact on project margins. Generally, business is slower at the beginning of the

 



 

year. Adverse or favorable weather conditions can impact project margins in a given period. For example, extended periods of rain or snowfall can negatively impact revenue and project margins as a result of reduced productivity from projects being delayed or temporarily halted. Conversely, in periods when weather remains dry and temperatures are accommodating, more work can be done, sometimes with less cost, which can favorably impact project margins. In addition, the mix of business conducted in different geographic areas can affect project margins due to the particular characteristics associated with the physical locations where the work is being performed, such as mountainous or rocky terrain versus open terrain. Site conditions, including unforeseen underground conditions, can also impact project margins.

 

·         Revenue Mix.  The mix of revenues derived from the industries we serve and the types of services we provide within an industry will impact margins, as certain industries and services provide higher margin opportunities. Additionally, changes in our customers’ spending patterns in any of the industries we serve can cause an imbalance in supply and demand and, therefore, affect margins and mix of revenues by industry served.

 

·         Performance Risk. Overall project margins may fluctuate due to work volume, project pricing and job productivity. Job productivity can be impacted by quality of the work crew and equipment, availability of skilled labor, environmental or regulatory factors, customer decisions and crew productivity. Crew productivity can be influenced by weather conditions and job terrain, such as whether project work is in a right of way that is open or one that is obstructed (either by physical obstructions or legal encumbrances).

 

·         Subcontracted Resources. Our use of subcontracted resources in a given period is dependent upon activity levels and the amount and location of existing in-house resources and capacity. Project margins on subcontracted work can vary from project margins on self-perform work. As a result, changes in the mix of subcontracted resources versus self-perform work can impact our overall project margins.

 

Selling, General and Administrative Expenses

 

Selling, general and administrative expenses consist principally of compensation and benefit expenses, travel expenses and related costs for our finance, benefits and risk management, legal, facilities, information services and executive personnel. Selling, general and administrative expenses also include outside professional and accounting fees, expenses associated with information technology used in administration of the business and various forms of insurance.

 

Interest Expense, Net

 

Interest expense, net, consists of contractual interest expense on outstanding debt obligations, amortization of deferred financing costs and other interest expense, including interest expense related to financing arrangements, with all such expenses net of interest income.

 

Restructuring Expense

 

Restructuring expense consist of expenses associated with our decision to simplify the business in 2014 by focusing on our U.S.-based wind, solar and heavy civil operations. The costs are related to the restructuring expenses for employees who were terminated as a result of the abandonment of the Canadian solar operations of H.B. White.

 



 

Discontinued Operations

 

Discontinued operations consist of expenses associated with the complete abandonment of our Canadian operations. We effectively completed all significant projects in Canada, and reduced or redeployed substantially all of our Canadian resources, facilities and equipment as of July 2016.

 

Critical Accounting Estimates

 

This management’s discussion and analysis of our financial condition and results of operations is based upon IEA’s audited consolidated financial statements included in this Current Report on Form-8-K as Exhibit 99.4, which have been prepared in accordance with U.S. GAAP. The preparation of these consolidated financial statements requires the use of estimates and assumptions that affect the amounts reported in our consolidated financial statements and the accompanying notes. We base our estimates on historical experience and on various other assumptions that we believe to be reasonable under the circumstances, the results of which form the basis of making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Given that management estimates, by their nature, involve judgments regarding future uncertainties, actual results may differ from these estimates if conditions change or if certain key assumptions used in making these estimates ultimately prove to be inaccurate. For discussion of all of our significant accounting policies, see Note 2—Summary of Significant Accounting Policies in the notes to IEA’s audited consolidated financial statements, included in this Current Report on Form 8-K as Exhibit 99.4.

 

We believe that the accounting policies described below are the most critical in the preparation of our consolidated financial statements, as they are important to the portrayal of our financial condition and require significant or complex judgment and estimates on the part of management.

 

Revenue Recognition for Percentage-of-Completion Projects

 

Revenue from fixed price contracts provides for a fixed amount of revenue for the entire project, subject to certain additions for changed scope or specifications. We recognize revenue from these contracts, as well as for certain projects pursuant to master and other service agreements, using the percentage-of-completion method. Under this method, the percentage of revenue to be recognized for a given project is measured by the percentage of costs incurred to date on the contract to the total estimated costs for the contract. The estimation process for revenue recognized under the percentage-of-completion method is based on the professional knowledge and experience of our project managers, engineers and financial professionals. Our management reviews the estimates of contract revenue and costs on an ongoing basis. Changes in job performance, job conditions and management’s assessment of expected settlements of disputes related to contract price adjustments are factors that influence estimates of total contract value and total costs to complete those contracts and, therefore, our profit recognition. Changes in these factors may result in revisions to costs and income, and their effects are recognized in the period in which the revisions are determined, which could materially affect our results of operations in the period in which such changes are recognized. Provisions for losses on uncompleted contracts are made in the period in which such losses are determined to be probable and the amount can be reasonably estimated. The substantial majority of fixed price contracts are completed within one year.

 

We may incur costs subject to change orders, whether approved or unapproved by the customer, and/or claims related to certain contracts. We determine the probability

 



 

that such costs will be recovered based upon engineering studies and legal opinions, past practices with the customer, specific discussions, correspondence or preliminary negotiations with the customer. We treat project costs as a cost of contract performance in the period incurred if it is not probable that the costs will be recovered, or we defer the cost and/or recognize revenue up to the amount of the related cost if it is probable that the contract price will be adjusted and can be reliably estimated. We had change orders and/or claims that had been included as contract price adjustments on certain contracts that were in the process of being resolved in the normal course of business, including through negotiation, arbitration and other proceedings. These contract price adjustments, which are included within costs and earnings in excess of billings or billed accounts receivable, as appropriate, represent management’s best estimate of contract revenue that has been or will be earned and that we believe is probable of collection. We actively engage in substantive meetings with these customers to complete the final approval process, and generally expect these processes to be completed within one year. The amounts ultimately realized upon final acceptance by our customers could be higher or lower than such estimated amounts.

 

Valuation of Goodwill and Intangible Assets

 

We have goodwill and certain intangible assets that have been recorded in connection with our acquisitions of businesses. Goodwill and intangible assets are tested for impairment at least annually. We perform our annual impairment tests of goodwill and intangible assets during the fourth quarter of each year, and we monitor goodwill and intangible assets for potential impairment triggers on a quarterly basis. Under applicable guidance, any impairment charges are required to be recorded as operating expenses. We did not to record any goodwill with respect to the Business Combination because the transaction will be accounted for as a reverse recapitalization.

 

We performed a qualitative assessment for our goodwill and intangible assets by examining relevant events and circumstances that could influence their fair values, such as: macroeconomic conditions, industry and market conditions, entity-specific events, financial performance and other relevant factors or events that could affect earnings and cash flows.

 

We believe that the recorded balances of goodwill and intangible assets are recoverable; however, goodwill and intangible assets may be impaired in future periods. Significant changes in the assumptions or estimates used in our impairment analyses, such as a reduction in profitability and/or cash flows, could result in additional non-cash goodwill and intangible asset impairment charges and materially affect our operating results.

 

Self-Insurance

 

We are self-insured up to the amount of our deductible for our insurance policies. Liabilities under our insurance programs are accrued based upon our estimate of the ultimate liability for claims, with assistance from third-party actuaries. The determination of such claims and the related liability is reviewed and updated quarterly, but these insurance liabilities are difficult to assess and estimate due to unknown factors, including the severity of an injury, the determination of our liability relative to other parties. Accruals are based upon known facts and historical trends. Although we believe such accruals are currently adequate, a change in experience or actuarial assumptions could materially affect our results of operations in a particular period.

 



 

Litigation and Contingencies

 

Accruals for litigation and contingencies are based on our assessment, including advice of legal counsel, of the expected outcome of litigation or other dispute resolution proceedings and/or the expected resolution of contingencies. Significant judgment is required in both the determination of probability of loss and the determination as to whether the amount is reasonably estimable. As additional information becomes available, we reassess potential liabilities related to pending claims and litigation and may revise previous estimates, which could materially affect our results of operations in a given period.

 

Business Strategy

 

·        Continue to develop strong relationships with our wind and solar partners We have strong, long-term relationship with each of our partners and have historically worked together with them to meet their renewable energy needs.  Historically, we have provided safe, reliable, and cost-efficient solutions for our partners.  We remain focused on anticipating and continuing to assist our partners with their business strategies.

 

·        Continue to expand self - performing capabilities We intend to continue to evaluate specific job functions within the construction process to complete in-house.  These services included but are not limited to electrical, mechanical, concrete and foundation and service road design.  This will allow the Company to retain margin, while better controlling safety and scheduling of projects

 

·        Continue to build our solar and civil, industrial & power market share We plan to expand the Company’s footprint in the solar and civil, industrial & power markets by leveraging our years of experience coupled with our ability to cross-sell these services with our wind customers.  There is tremendous growth in these two markets and we believe based on our reputation in the industry we can capitalize on future opportunities

 

·        Continue to evaluate strategic mergers and acquisitions We are actively pursuing future endeavors that would enhance the Company’s ability to diversify project work and accelerate market share of other areas of the business.

 

Results of Operations

 

This section includes a summary of our historical results of operations, followed by detailed comparisons of our results for the years ended December 31, 2017, 2016 and 2015. We have derived this data from our consolidated financial statements included in this Current Report on Form 8-K as Exhibit 99.4.

 

The following table reflects our consolidated results of operations in dollar and percentage of revenue terms for the periods indicated (dollar amounts in thousands).

 



 

 

 

For the year ended December 31,

 

 

 

2017

 

2016

 

2015

 

Revenue

 

$

454,949

 

100.0

%

$

602,665

 

100.0

%

$

204,640

 

100.0

%

Cost of revenue

 

388,928

 

85.5

%

517,419

 

85.9

%

184,850

 

90.3

%

Gross profit

 

66,021

 

14.5

%

85,246

 

14.1

%

19,790

 

9.7

%

Selling, general and administrative expenses

 

33,543

 

7.4

%

30,705

 

5.1

%

27,169

 

13.3

%

Restructuring expenses

 

 

0.0

%

 

0.0

%

1,528

 

0.7

%

Income (loss) from operations

 

32,478

 

7.1

%

54,541

 

9.0

%

(8,907

)

-4.4

%

Interest expense, net

 

(2,201

)

- 0.5

%

(516

)

-0.1

%

(557

)

- 0.3

%

Other income

 

111

 

0.0

%

213

 

0.0

%

874

 

0.4

%

Income (loss) from continuing operations before income taxes

 

30,388

 

6.7

%

54,238

 

9.0

%

(8,590

)

- 4.2

%

Benefit (provision) for income taxes

 

(13,863

)

-3.0

%

10,213

 

1.7

%

(106

)

- 0.1

%

Net income (loss) from continuing operations

 

16,525

 

3.6

%

64,451

 

10.7

%

(8,696

)

- 4.2

%

Net income (loss) from discontinued operations

 

 

0.0

%

1,087

 

0.2

%

(19,487

)

- 9.5

%

Net income (loss)

 

$

16,525

 

3.6

%

$

65,538

 

10.9

%

$

(28,183

)

- 13.8

%

 

The following discussion and analysis of our results of operations should be read in conjunction with our consolidated financial statements and the notes relating thereto, included in this Current Report on Form 8-K as Exhibit 99.4.

 

Comparison of Years Ended December 31, 2017 and 2016

 

Revenue.    For the year ended December 31, 2017, consolidated revenue decreased to $454.9 million from $602.7 million, a decrease of approximately $147.8 million, or 24.5%, as compared with the prior year. In 2016, a refocus on U.S. wind energy construction, as well as a pull forward of volume in anticipation of a decline in tax credits in 2017, resulted in higher revenue in 2016 and caused a slow-down in projects in 2017.  Ultimately, the tax credits were extended in 2017, so we expect a favorable impact on the U.S. wind energy construction market in 2018, as project development activities conclude, and projects go into construction.  In addition, revenue in the fourth quarter of 2017 was negatively impacted by uncertainty caused by the legislative process for enacting the 2017 Tax Act, which caused some participants in the renewable energy industry to delay new development projects until the ultimate terms of 2017 Tax Act could be evaluated.  We estimate that approximately $28.0 million of revenue that would have been received in the fourth quarter of 2017 will instead be realized in 2018.

 

Cost of revenue.    Cost of revenue was $388.9 million, or 85.5% of revenue, for the year ended December 31, 2017, as compared to $517.4 million, or 85.9% of revenue, over the same period in 2016, for a decrease of approximately $128.5 million or 24.8%. The decrease in the dollar amount cost of revenue was primarily driven by decreased project activity. We were able to achieve a slight reduction in our cost of revenue percentage primarily through our continued focus on operating efficiency.

 

Gross profit.   Gross profit decreased by $19.2 million, or 22.6%, to $66.0 million for the year ended December 31, 2017, as compared to $85.2 million over the same period in 2016. The decrease in 2017 gross profit was due to decreased project activity relative to the prior year.  A refocus on core U.S. operations and strengthened project controls in 2016 carried over to 2017 allowing us to maintain gross profit as a

 



 

percentage of revenue of 14.5%, as compared to 14.1% in 2016.

 

Selling, general and administrative expenses.   Selling, general and administrative expenses were $33.5 million, or 7.4% of revenue for the year ended December 31, 2017, as compared to $30.7 million, or 5.1% of revenue over the same period in 2016, an increase of $2.8 million, or 9.1%. The increase in selling, general and administrative expenses was primarily driven by an increase to diversification selling, general and administrative expenses related to our recent initiatives to grow our solar and transmission businesses of $3.8 million as well as $3.8 million consulting fees and professional expenses, offset by a decrease in payments of employee incentives.

 

Interest expense, net.    Interest expense, net of interest income, was $2.2 million for the year ended December 31, 2017 as compared to $0.5 million for the same period in 2016. This increase was primarily driven by a significant increase in equipment financed under capital leases.

 

Other income.    Other income was $0.1 million for the year ended December 31, 2017, as compared to $0.2 million for the same period in 2016. The decrease in other income was primarily driven by lower gains on the sale of assets in the current year.

 

Benefit (provision) for income taxes.    Income tax provision was $13.9 million for the year ended December 31, 2017 as compared with a tax benefit of $10.2 million for the year ended December 31, 2016, an increase of approximately $24.1 million. The increase in provision for income taxes was primarily driven by the release of the valuation allowance during 2016.

 

Net income (loss) from discontinued operations.    Net loss from discontinued operations was $1.1 million for the year ended December 31, 2016 and related to the wind down of our Canadian operations that concluded in 2016.

 

Comparison of Years Ended December 31, 2016 and 2015

 

Revenue.    For the year ended December 31, 2016, consolidated revenue increased to $602.7 million from $204.6 million, an increase of approximately $398.0 million, or 194.5%, as compared with the prior year. In 2015, we completed our final project in Canada. With the wind-down of Canadian operations and favorable market conditions in the U.S. wind energy market, we refocused the business on the U.S. wind energy construction market, and in addition, there was a pull-forward in volume in 2016 in anticipation of a decline in tax credits in 2017. As a result, our revenue increased significantly in 2016.

 

Cost of revenue.    Cost of revenue was $517.4 million, or 85.9% of revenue, for the year ended December 31, 2016, as compared to $184.9 million, or 90.3% of revenue, over the same period in 2015, for an increase of approximately $332.6 million or 179.9%. The increase in the dollar amount cost of revenue was primarily driven by increased project activity. The decrease in the cost of revenue percentage was primarily due to our continued focus on improving efficiency within our operations.

 

Gross profit.   Gross profit increased by $65.5 million, or 330.8%, to $85.2 million for the year ended December 31, 2016, as compared to $19.8 million over the same period in 2015. The increase in gross profit was due to improved efficiency and profitability in our execution of projects, coupled with an increased margin profile based on tighter project controls and a refocus on core U.S. operations implemented by the new management team.

 

Selling, general and administrative expenses.   Selling, general and administrative expenses were $30.7 million, or 5.1% of revenue for the year ended December 31, 2016,

 



 

as compared to $27.2 million, or 13.3% of revenue over the same period in 2015, an increase of approximately $3.5 million, or 12.9%. The increase in the dollar amount selling, general and administrative expense was primarily driven by an increase to employee incentives and benefits related to significantly more wind energy projects in the U.S. The decrease in selling, general and administrative expenses as a percentage of revenue was primarily due to our continued cost containment and efficiency efforts.

 

Restructuring expenses.    Restructuring expenses were $1.5 million for the year ended December 31, 2015, related to expenses for simplifying the business strategy from 2014 to 2016.

 

Interest expense, net.    Interest expense, net of interest income, was $0.5 million for the year ended December 31, 2016 as compared to $0.6 million for the same period in 2015.

 

Other income.    Other income was $0.2 million for the year ended December 31, 2016, as compared to $0.9 million for the same period in 2015. The decrease in other income was primarily driven by lower gains on the sale of assets in the current year.

 

Benefit (provision) for income taxes.     Income tax benefit was $10.2 million for the year ended December 31, 2016 as compared with a tax provision of $0.1 million in 2015, a decrease of approximately $10.3 million. This decrease in provision for income taxes was primarily driven by the increase in tax provision of $18.7 million caused by positive taxable earnings, $1.9 million related to state taxes, $0.4 of other minor adjustments, and offset by a $31.1 million release of the valuation allowance at the end of December 31, 2016.

 

Net income (loss) from discontinued operations.    Income from discontinued operations was $1.1 million for the year ended December 31, 2016 as compared to loss from discontinued operations of $19.5 million for the same period in 2015. We started reducing our Canadian operations in 2014, and the change was primarily related to the wind down of operations from 2016 compared to 2015.

 

Non-U.S. GAAP Financial Measures

 

We define EBITDA from continuing operations as net income (loss) from continuing operations, determined in accordance with GAAP, for the period presented, before depreciation and amortization, interest expense and provision (benefit) for income taxes. We define Adjusted EBITDA as net income (loss) from continuing operations plus depreciation and amortization, interest expense, provision (benefit) for income taxes, restructuring expenses, acquisition or disposition related expenses, non-cash stock compensation expense, and certain other non-cash charges, unusual, non-operating or non- recurring items and other items that we believe are not representative of our core business or future operating performance.

 

Adjusted EBITDA is a supplemental non-GAAP financial measure and, when considered along with other performance measures, is a useful measure as it reflects certain drivers of the business, such as revenue growth and operating costs. We believe Adjusted EBITDA can be useful in providing an understanding of the underlying operating results and trends and an enhanced overall understanding of our financial performance and prospects for the future. While Adjusted EBITDA is not a recognized measure under GAAP, management uses this financial measure to evaluate and forecast business performance. Adjusted EBITDA is not intended to be a measure of liquidity or cash flows from operations or a measure comparable to net income as it does not take into account certain requirements, such as capital expenditures and related depreciation, principal and interest payments, and tax payments. Adjusted EBITDA is not a presentation made in accordance with GAAP, and our use of the term Adjusted EBITDA may vary from the use

 



 

of similarly-titled measures by others in our industry due to the potential inconsistencies in the method of calculation and differences due to items subject to interpretation.

 

The presentation of non-GAAP financial information should not be considered in isolation or as a substitute for, or superior to, the financial information prepared and presented in accordance with GAAP. You should read this discussion and analysis of our financial condition and results of operations together with the condensed consolidated financial statements and the related notes thereto also included within.

 

The following table outlines the reconciliation from net income (loss) to Adjusted EBITDA for the periods indicated:

 

 

 

For the year ended December 31,

 

(in thousands)

 

2017

 

2016

 

2015

 

 

 

 

 

 

 

 

 

Net income (loss)

 

$

16,525

 

$

65,538

 

$

(28,183

)

Net loss (income) from discontinued operations

 

 

(1,087

)

19,487

 

Net income (loss) from continuing operations

 

$

16,525

 

$

64,451

 

$

(8,696

)

Interest expense, net

 

2,201

 

516

 

557

 

Provision (benefit) for income taxes

 

13,863

 

(10,213

)

106

 

Depreciation and amortization

 

5,044

 

3,433

 

3,446

 

EBITDA—Continuing operations

 

$

37,633

 

$

58,187

 

$

(4,587

)

Restructuring expense(1) 

 

 

 

1,528

 

Diversification SG&A(2) 

 

3,825

 

 

 

Credit support fee(3) 

 

1,535

 

2,340

 

1,961

 

Canadian wind-down bonus expense(4) 

 

 

2,000

 

 

Consulting fees & expense(5) 

 

4,799

 

1,015

 

752

 

Non-cash stock compensation expenses(6) 

 

53

 

161

 

93

 

Sale costs(7) 

 

 

 

25

 

Full year impact of 2017 capital leasing program(8) 

 

4,700

 

 

 

Adjusted EBITDA

 

$

52,545

 

$

63,703

 

$

(228

)

 


(1)               Restructuring expenses—represent severance expense for employees who were terminated as a result of the abandonment of IEA’s Canadian solar operations.

 

(2)               Diversification selling, general and administrative—reflects the costs, including recruiting, compensation and benefits for additional personnel, associated with IEA beginning to expand into electrical transmission work and corresponding services, which were historically subcontracted to third parties, U.S. utility scale solar, and heavy civil infrastructure. These costs currently do not have corresponding revenue, but management anticipates revenue in fiscal 2018.

 

(3)               Credit support fees—reflect payments to Oaktree for its guarantee of certain borrowings, which guarantees are not expected to continue post-combination.

 

(4)               Canadian wind-down bonus expense—reflects an adjustment for bonus payments to our executive leadership team made in fiscal 2016 as a result of the successful wind down of IEA’s Canadian solar operations.

 

(5)               Consulting fees and expenses in 2015 and 2016, represents consulting fees and expenses related to the wind down of IEA’s Canadian operations and, in 2017, represents consulting and professional fees and expenses in connection with the proposed Business Combination.

 



 

(6)               Non-cash stock compensation expenses—represents non-cash stock compensation expense.

 

(7)               Sale costs—removal of the third-party expense related to a potential sale of IEA.

 

(8)               Full year impact of 2017 capital leasing program—reflects the annualization of the EBITDA effects of the capital leasing program for cranes and yellow iron, which was implemented during 2017, consisting of (i) a $1.7 million positive adjustment due to the elimination of cost of goods sold attributable to operating lease payments, (ii) $1.6 million in reduction in cost of goods due to estimated operational efficiencies resulting from the program, and (iii) $1.4 million, representing a pro rata portion of the estimated gain due to estimated future residual value exceeding depreciated carrying value on the sale of the leased assets following the 48 month term of the lease.

 

Liquidity and Capital Resources

 

Our primary sources of liquidity are cash flows from operations, our cash balances and the new credit facility we entered into to replace our old credit facility as described below under “—New Credit Facility”. Our primary liquidity needs are for working capital, income taxes, capital expenditures, insurance collateral in the form of cash and letters of credit, cost and equity investee funding requirements and debt service. We also evaluate opportunities for strategic acquisitions and investments from time to time, which may require our use of cash.

 

We anticipate that funds generated from operations, borrowings from the new credit facility and cash flow from operations will be sufficient to meet our working capital requirements, required income tax payments, debt service obligations, anticipated capital expenditures, cost and equity investee funding requirements, insurance collateral requirements, earn-out obligations, and letter of credit needs for at least the next twelve months.

 

Capital Expenditures

 

For the year ended December 31, 2017, we incurred approximately $18.3 million of equipment purchases under capital lease and other financing arrangements. We estimate that we will spend approximately two percent of revenue for capital expenditures for 2018 and 2019. Actual capital expenditures may increase or decrease in the future depending upon business activity levels, as well as ongoing assessments of equipment lease versus buy decisions based on short and long-term equipment requirements.

 

Working Capital

 

We require working capital to support seasonal variations in our business, primarily due to the effect of weather conditions on external construction and maintenance work and the spending patterns of our customers, both of which influence the timing of associated spending to support related customer demand. Our business is typically slower in the first quarter of each calendar year. Working capital needs are generally lower during the spring when projects are awarded, and we receive down payments from customers. Conversely, working capital needs generally increase during the summer or fall months due to increased demand for our services when favorable weather conditions exist in many of the regions in which we operate. Conversely, working capital needs are typically lower and working capital is converted to cash during the winter months. These seasonal trends, however, can be offset by changes in the timing of projects, which can be affected by project delays or accelerations and/or other factors that may

 



 

affect customer spending.

 

Generally, we receive 5% to 10% cash payments from our customers upon the inception of the projects. Timing of billing milestones and project close-outs can contribute to changes in unbilled revenue. As of December 31, 2017, substantially all of our costs in excess of billings and earnings will be billed to customers in the normal course of business within the next twelve months. Accounts receivable balances, which consist of contract billings as well as costs and earnings in excess of billings and retainage, decreased to $79.6 million as of December 31, 2017 from $84.1 million as of December 31, 2016, due primarily to lower levels of revenue, timing of project activity, and collection of billings to customers.

 

Our billing terms are generally net 30 days, and some of our contracts allow our customers to retain a portion of the contract amount (generally, from 5% to 10%) until the job is completed. As part of our ongoing working capital management practices, we evaluate opportunities to improve our working capital cycle time through contractual provisions and certain financing arrangements. Our agreements with subcontractors often contain a ‘‘pay-if-paid’’ provision, whereby our payments to subcontractors are made only after we are paid by our customers.

 

Sources and Uses of Cash

 

Sources and uses of cash are summarized below (in thousands):

 

 

 

For the years ended December 31,

 

 

 

2017

 

2016

 

2015

 

Net cash (used) provided by operating activities

 

$

(9,109

)

$

53,591

 

$

(5,617

)

Net cash (used) provided in investing activities

 

$

(3,508

)

$

(3,000

)

$

352

 

Net cash (used) provided by financing activities

 

$

(4,113

)

$

(29,617

)

$

8,541

 

 

Year Ended December 31, 2017 and 2016

 

Operating Activities.   Net cash used in operating activities for the year ended December 31, 2017 was ($9.1) million, as compared to net cash provided by operating activities of $53.6 million over the same period in 2016. The decrease of cash flow from operations in the year ended 2017 was driven by lower operating income from continuing operations of $22.1 million and a reduction of $48.0 million of accounts payable, and billings in excess of costs and estimated earnings on uncompleted contracts, offset by $8.9 million of a decrease in accounts receivable. This was due to a decrease in overall wind energy construction in the U.S. in 2017 and decreased project activity.

 

Investing Activities.   Net cash used in investing activities increased by $0.5 million to ($3.5) million in the year ended December 31, 2017 from ($3.0) million over the same period in 2016. The primary driver for the increase in cash used in investing activities is related to company owned life insurance.

 

Financing Activities.   Net cash used in financing activities for the year ended December 31, 2017 was $(4.1) million, as compared to $(29.6) million of cash used in financing activities for the same period in 2016, for a decrease in net cash used in financing activities of approximately $25.5 million. The primary decrease in cash used in financing activities is related to $33.7 million of proceeds received from the line of credit in the current year compared to $27.9 million of repayments in the prior year, offset by $34.7 million of distributions to parent and increased payments on capital lease obligations for equipment.

 



 

Years Ended December 31, 2016 and 2015

 

Operating Activities.    Net cash provided by operating activities for the year ended December 31, 2016 was $53.6 million, as compared with cash used in operating activities of ($5.6) million over the same period in 2015. The increase of $59.2 million of net cash provided by operating activities in the year ended 2016 was primarily related to an increase in net income of $93.7 million over the same period, offset by a reduction in accounts receivable related to increased project construction, with a corresponding increase in accounts payable and accrued liabilities for related materials purchased for these projects.

 

Investing Activities.   Net cash used in investing activities increased by $3.4 million to ($3.0) million in the years ended December 31, 2016 from cash provided from investing activities of $0.4 million over the same period in 2016. The increase for cash used in 2016 was primarily related to $2.8 million of assets purchased compared to $0.6 million in the prior year, coupled with a decrease of $0.9 million of proceeds collected for the year ended December 31, 2016 compared to December 31, 2015.

 

Financing Activities.   Net cash used in financing activities for the year ended December 31, 2016 was ($29.6) million, as compared to cash provided by financing activities of $8.5 million for the same period in 2015, for an increase in net cash used in financing activities of approximately $38.1 million. The increase in cash used in financing activities is primarily related to repayments of borrowings made on the old credit facility of $27.9 million for year ended 2016 compared to $11.4 million in 2015. This was coupled with a reduction of borrowings of $20.0 million of subordinated debt for year ended 2015.

 

Old Credit Facility

 

IEA, Seller and certain of their subsidiaries are co-borrowers under the old credit facility with Wells Fargo Bank, National Association, which was amended on January 20, 2017, with a maturity date of December 31, 2018. The old credit facility allows for aggregate revolving borrowings of up to $55.0 million, including letters of credit up to $15.0 million through December 31, 2018. As of December 31, 2017, IEA had $33.7 million outstanding under the old credit facility and $5.9 million of outstanding letters of credit. Interest on outstanding borrowings under the old credit facility was based on the prime rate. The borrowing rate under the old credit facility was 4.50% as of December 31, 2017. The interest rate on outstanding letters of credit was 2% per annum. The old credit facility also has an unused commitment fee of 0.35% per annum. For the year ended December 31, 2017, interest expense under the old credit facility was $0.5 million.

 

The old credit facility was fully guaranteed by Oaktree Power Opportunities Fund III, L.P. and Oaktree Power Opportunities Fund III (Parallel), L.P. and was secured by substantially all of the assets of Seller and its subsidiaries. IEA was in compliance with all required financial covenants as of December 31, 2017.

 

In connection with the Closing of the Business Combination, all outstanding indebtedness, if any, under the old credit facility was repaid or refinanced under the new credit facility described below under ‘‘— New Credit Facility ’’ and the old credit facility was terminated.

 

New Credit Facility

 

At Closing, Merger Sub I, as initial borrower, IEA Services, as borrower, and its subsidiaries entered into the new credit facility with Bank of America, N.A., as administrative and collateral agent, and a syndicate of commercial lenders from time to time party thereto. IEA Intermediate Holdco, LLC, a recently formed intermediate holding company wholly owned by the post-combination

 



 

company (‘‘ Holdings ’’), owns 100% of IEA Services and is also party to the new credit facility as a guarantor thereunder. The new credit facility initially provides for aggregate revolving borrowings of up to $50.0 million and a $50.0 million delayed-draw term loan facility, each maturing on the third anniversary of the Closing Date. The term loan may be drawn down for a period of two years following the Closing Date (in not more than four drawdowns) and matures three years following the Closing Date. Each draw under the term loan facility will be subject to quarterly amortization of principal, commencing on the last day of the first fiscal quarter ending after such draw, in an amount equal to 3.5% of the initial amount of such draw (the ‘‘ Scheduled Amortization ’’).

 

In addition to the Scheduled Amortization, and subject to exceptions and baskets, (a) 100% of all net cash proceeds, subject to reinvestment rights, from (i) sales of property and assets of Holdings and its subsidiaries (excluding sales of inventory and equipment in the ordinary course of business and other exceptions set forth in the loan documentation) and (ii) any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of Holdings and its subsidiaries and (b) 100% of all net cash proceeds from the issuance or incurrence of additional debt for borrowed money of Holdings and its subsidiaries not otherwise permitted under the loan documentation, are required to be applied to the prepayment of the new credit facilities in the following manner: first, to the term loan facility and, second, to the revolving credit facility (without a reduction of the commitments under the credit facilities).

 

With respect to any draw of the term loan facility, after giving effect to such draw on a pro forma basis: (i) the Consolidated Leverage Ratio (defined below under ‘‘ Debt Covenants ’’) must not exceed the amount that is 0.25:1.0 lower than the maximum Consolidated Leverage Ratio permitted in the definitive documentation for the new credit facility and (ii) IEA Services must have liquidity (defined as unrestricted cash and revolver availability) of at least $20.0 million.

 

On the Closing Date, $19.0 million was drawn under the revolving credit facility to refinance existing indebtedness (including replacing or backstopping existing letters of credit), pay transaction expenses and working capital overage.  After the Closing Date, the revolving credit facility may be used for working capital, capital expenditures and other lawful corporate purposes.

 

Obligations under the new credit facility are guaranteed by Holdings and each existing and future, direct and indirect wholly-owned material domestic subsidiary of Holdings other than IEA Services (together with IEA Services, the ‘‘ Credit Parties ’’), and are secured by all of the present and future assets of the Credit Parties, subject to customary carve-outs. Interest on the new credit facility will accrue at an interest rate of (x) LIBOR plus a margin of 3.00% or (y) an alternate base rate plus a margin of 2.00%.

 

We may from time to time after the Closing Date add one or more tranches of term loans to the credit facility (each an ‘‘ Incremental Term Loan Facility ’’) and/or increase the aggregate commitments under the revolving credit facility (a ‘‘ Revolving Credit Facility Increase ’’ and collectively with each Incremental Term Loan Facility, an ‘‘ Incremental Facility ’’) with consent required only from those Lenders that participate in such Incremental Facility; provided that, among other things, the aggregate principal amount of all Incremental Facilities may not exceed $25.0 million. No existing lender shall be under any obligation to provide any commitment to an Incremental Facility, and any such decision whether to provide a commitment to an Incremental Facility shall be in such Lender’s sole and absolute discretion.

 

Debt Covenants

 

We were in compliance with the provisions and covenants contained in our outstanding debt instruments as of December 31, 2017.

 



 

Under the new credit facility, we are subject to affirmative and negative covenants. Our financial covenants include (i) a Maximum Consolidated Leverage Ratio (defined as total funded debt / EBITDA), which may not exceed 3.00:1.0, and (ii) a Minimum EBITDA requirement of at least $35.0 million as of the end of each of our four fiscal quarter periods. Each of the covenants referred to above will be calculated on a consolidated basis for each consecutive four fiscal quarter period, commencing with the first full fiscal quarter following the Closing Date.

 

In addition, Holdings and its subsidiaries are subject to affirmative covenants requiring (i) delivery of financial statements, budgets and forecasts; (ii) delivery of certificates and other information; (iii) delivery of notices (of any default, material adverse condition, ERISA event, material change in accounting or financial reporting practices); (iv) payment of tax obligations; (v) preservation of existence; (vi) maintenance of properties; (vii) maintenance of insurance; (viii) compliance with laws; (ix) maintenance of books and records; (x) inspection rights; (xi) use of proceeds; (xii) covenants to guarantee obligations and give security; (xiii) compliance with environmental laws; and (xiv) further assurances.

 

Holdings and its subsidiaries are subject to negative covenants including restrictions (subject to certain exceptions) on (i) liens; (ii) indebtedness, (including guarantees and other contingent obligations) (provided that the loan documents will permit, among other items, indebtedness under the Incremental Facility); (iii) investments (including loans, advances and acquisitions); (iv) mergers and other fundamental changes; (v) sales and other dispositions of property or assets; (vi) payments of dividends and other distributions and share repurchases (provided, that the loan documents shall permit) (x) distributions to Holdings or any of its subsidiaries, (y) tax distributions and (z) certain other distributions by Holdings (including distributions for customary public company expenses and distributions for payments on preferred equity of the post-combination company subject to terms and conditions set forth in the loan documentation); (vii) changes in the nature of the business; (viii) transactions with affiliates; (ix) burdensome agreements; (x) use of proceeds; (xi) capital expenditures, provided that (A) unfinanced capital expenditures will be permitted in an aggregate amount up to $20.0 million per annum and (B) unlimited financed capital expenditures, subject to pro forma compliance with the Company’s financial covenants; (xii) amendments of organizational documents; (xiii) changes in accounting policies, reporting practices, fiscal year, legal name, state of formation or form of entity; (xiv) sale and lease-back transactions; (xv) payment of credit support, advisory and similar fees to affiliates; (xvi) ownership of subsidiaries; (xvii) sanctions and (xviii) use of proceeds in violation of anti-corruption laws.

 

Contractual Obligations

 

The following table sets forth our contractual obligations and commitments for the periods indicated as of December 31, 2017 on a pro forma basis giving effect to the replacement of our old credit facility outstanding as of the Closing of the Business Combination.

 



 

 

 

Payments Due by Period (in
thousands)

 

Contractual Obligations
(dollars in thousands)

 

Total

 

Less than 1
year

 

1 to 3
years

 

3 to 5
years

 

More than
5 years

 

Capital leases(1) 

 

$

23,689

 

$

6,874

 

$

16,815

 

$

 

$

 

Operating leases(2) 

 

16,277

 

1,683

 

2,941

 

2,015

 

9,638

 

Line of credit (3) 

 

43,000

 

 

43,000

 

 

 

Total

 

$

82,966

 

$

8,557

 

$

62,756

 

$

2,015

 

$

9,638

 

 


(1)             IEA has obligations, exclusive of associated interest, under various capital leases for equipment totaling $20.6 million at December 31, 2017.  The gross property under these capitalized lease agreement at December 31, 2017, amounted to a net total of $24.2 million.

 

(2)             IEA leases real estate, vehicles, office equipment, and certain construction equipment from unrelated parties under non-cancelable leases. Lease terms range from month-to-month to terms expiring through 2038.

 

(3)             IEA entered into the new credit facility upon the Closing of the Business Combination.  The new credit facility provides for aggregate revolving borrowings of up to $50.0 million and a $50.0 million delayed-draw term loan facility, each maturing on the third anniversary of the Closing Date.

 

As of December 31, 2017, and December 31, 2016, IEA is contingently liable under a letter of credit agreement with a financial institution in the amount of $5.9 million and $3.1 million, respectively, related to projects.

 

For detailed discussion and additional information pertaining to our debt instruments, see Note 8— Debt in the notes to IEA’s audited consolidated financial statements, included in this Current Report on Form 8-K as Exhibit 99.4.

 

Off-Balance Sheet Arrangements

 

As is common in our industry, we have entered into certain off-balance sheet arrangements in the ordinary course of business. Our significant off-balance sheet transactions include liabilities associated with non-cancelable operating leases, letter of credit obligations, surety and performance and payment bonds entered into in the normal course of business, self-insurance liabilities, liabilities associated with multiemployer pension plans, liabilities associated with certain indemnification and guarantee arrangements. See Note 11—Commitments and Contingencies in the notes to IEA’s audited consolidated financial statements, included in this Current Report on Form 8-K as Exhibit 99.4, for discussion pertaining to our off-balance sheet arrangements. See Note 2—Summary of Significant Accounting Policies and Note 15—Related Parties in the notes to IEA’s audited consolidated financial statements, included in this Current Report on Form 8-K as Exhibit 99.4, for discussion pertaining to certain of our investment arrangements.

 

Recently Issued Accounting Pronouncements

 

See Note 2—Summary of Significant Accounting Policies in the notes to IEA’s audited consolidated financial statements, included in this Current Report on Form 8-K as Exhibit 99.4.

 



 

Quantitative and Qualitative Disclosures About Market Risk

 

Credit Risk

 

We are subject to concentrations of credit risk related to our net receivable position with customers, which includes amounts related to billed and unbilled accounts receivable and costs and earnings in excess of billings (‘‘CIEB’’) on uncompleted contracts net of advanced billings with the same customer. We grant credit under normal payment terms, generally without collateral, and as a result, we are subject to potential credit risk related to our customers’ ability to pay for services provided. This risk may be heightened if there is depressed economic and financial market conditions. However, we believe the concentration of credit risk related to billed and unbilled receivables and costs and estimated earnings in excess of billings on uncompleted contracts is limited because of the diversity of our customers.

 

Interest Rate Risk

 

Borrowings under the old credit facility and certain other borrowings are at variable rates of interest and expose us to interest rate risk. If interest rates increase, our debt service obligations on the variable rate indebtedness will increase even though the amount borrowed remains the same, and our net income and cash flows, including cash available for servicing our indebtedness, will correspondingly decrease. There was an outstanding balance of $33.7 million on the old credit facility as of December 31, 2017 and no outstanding balance as of December 31, 2016. As of December 31, 2017, we had no derivative financial instruments to manage interest rate risk.

 

Foreign Currency Risk

 

Prior to discontinuing our Canadian operations in 2014, which were substantially wound down in 2016, we were exposed to foreign currency risk related to our operations in Canada. Revenue generated from foreign operations is less than 5% of our total revenue for the year ended December 31, 2017. Revenue and expense related to our foreign operations are, for the most part, denominated in the functional currency of the foreign operation, which minimizes the impact that fluctuations in exchange rates would have on net income or loss. We are subject to fluctuations in foreign currency exchange rates when transactions are denominated in currencies other than the functional currencies. Such transactions were not material to our operations in the year ended December 31, 2017. Translation gains or losses, which are recorded in other comprehensive income or loss, result from translation of the assets and liabilities of our foreign subsidiaries into U.S. dollars.

 

JOBS Act

 

Following the Business Combination, the post-combination company will continue to qualify as an ‘‘emerging growth company’’ as defined in the JOBS Act, enacted on April 5, 2012. Section 102 of the JOBS Act provides that an ‘‘emerging growth company’’ can take advantage of the extended transition period provided in Section 7(a)(2)(B) of the Securities Act for complying with new or revised accounting standards.

 

Subject to certain conditions set forth in the JOBS Act, the combined company will not be required to, among other things, (1) provide an auditor’s attestation report on our systems of internal controls over financial reporting pursuant to Section 404, (2) provide all of the compensation disclosure that may be required of non-emerging growth public companies under the Dodd-Frank Wall Street Reform and Consumer Protection Act, (3) comply with any requirement that may be adopted by the Public Company Accounting Oversight Board regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements (auditor discussion and analysis), and (4) disclose certain executive compensation-related items such as the correlation between executive compensation and

 



 

performance and comparisons of the Chief Executive Officer’s compensation to median employee compensation. These exemptions will apply until the combined company no longer meets the requirements of being an emerging growth company. The post-combination company will remain an emerging growth company until the earlier of (a) the last day of the fiscal year (i) following July 12, 2021, the fifth anniversary of the completion of the Company’s IPO, (ii) in which the post-combination company has total annual gross revenue of at least $1.07 billion or (iii) in which the post-combination company is deemed to be a large accelerated filer, which means the market value of its common stock that is held by non-affiliates exceeds $700 million as of the last business day of its prior second fiscal quarter, and (b) the date on which the post-combination company has issued more than $1.0 billion in non-convertible debt during the prior three-year period.

 


Exhibit 99.4

 

 

IEA Energy Services, LLC

and Subsidiaries

 

Consolidated Financial Statements

 



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

 

Table of Contents

 

Report of Independent Registered Public Accounting Firm

3

 

 

Consolidated Financial Statements

 

 

 

Consolidated Balance Sheets as of December 31, 2017 and 2016

4

 

 

Consolidated Statements of Operations for the years ended December 31, 2017, 2016 and 2015

5

 

 

Consolidated Statements of Changes in Member’s Equity (Deficit) for the years ended December 31, 2017, 2016 and 2015

6

 

 

Consolidated Statements of Cash Flows for the years ended December 31, 2017, 2016 and 2015

7

 

 

Notes to the Consolidated Financial Statements

8 – 29

 

2



 

 

 

Crowe Horwath LLP

 

Independent Member Crowe Horwath International

 

Report of Independent Registered Public Accounting Firm

 

Shareholders and Board of Directors

IEA Energy Services, LLC and Subsidiaries

Indianapolis, Indiana

 

Opinion on the Financial Statements

 

We have audited the accompanying consolidated balance sheets of IEA Energy Services, LLC and Subsidiaries (the “Company”) as of December 31, 2017 and 2016, the related consolidated statements of operations, changes in member’s equity (deficit), and cash flows for each of the three years in the period ended December 31, 2017, and the related notes (collectively referred to as the “financial statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2017 and 2016, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2017, in conformity with accounting principles generally accepted in the United States of America.

 

Basis for Opinion

 

These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

 

We conducted our audits in accordance with the standards of the PCAOB and in accordance with standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.

 

Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.

 

We have served as the Company’s auditor since 2016.

 

 

/s/ Crowe Horwath LLP

 

Crowe Horwath LLP

 

Indianapolis, Indiana

February 19, 2018

 

3



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

CONSOLIDATED BALANCE SHEETS

(in thousands)

 

 

 

December 31,

 

 

 

2017

 

2016

 

Assets

 

 

 

 

 

Current assets:

 

 

 

 

 

Cash and cash equivalents

 

$

4,877

 

$

21,607

 

Accounts receivable, net of allowances of $216 and $135, respectively

 

60,981

 

69,977

 

Costs and estimated earnings in excess of billings on uncompleted contracts

 

18,613

 

14,143

 

Prepaid expenses and other current assets

 

862

 

1,449

 

Deferred income taxes

 

 

11,735

 

Total current assets

 

85,333

 

118,911

 

Property, plant and equipment, net of accumulated depreciation of $17,770 and $17,484, respectively

 

30,905

 

20,540

 

Goodwill

 

3,020

 

3,020

 

Intangibles, net of accumulated amortization of $2,061 and $1,941, respectively

 

69

 

189

 

Company-owned life insurance

 

4,250

 

2,214

 

Other assets

 

46

 

45

 

Deferred income taxes — long term

 

3,080

 

2,797

 

Total assets

 

$

126,703

 

$

147,716

 

 

 

 

 

 

 

Liabilities and Member’s Equity (Deficit)

 

 

 

 

 

Current liabilities:

 

 

 

 

 

Accounts payable and accrued liabilities

 

$

70,030

 

$

97,244

 

Current portion of capital lease obligations

 

4,691

 

920

 

Billings in excess of costs and estimated earnings on uncompleted contracts

 

7,398

 

28,181

 

 

 

 

 

 

 

Line of credit

 

33,674

 

 

Total current liabilities

 

115,793

 

126,345

 

 

 

 

 

 

 

Capital lease obligations, net of current maturities

 

15,899

 

4,410

 

Deferred compensation

 

5,030

 

4,086

 

Total liabilities

 

136,722

 

134,841

 

 

 

 

 

 

 

Commitments and contingencies

 

 

 

 

 

 

 

 

 

 

 

Member’s equity (deficit):

 

 

 

 

 

Member’s equity (deficit)

 

(10,019

)

12,875

 

Total member’s equity (deficit)

 

(10,019

)

12,875

 

Total liabilities and member’s equity (deficit)

 

$

126,703

 

$

147,716

 

 

See accompanying notes to consolidated financial statements

 

4



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF OPERATIONS

(in thousands)

 

 

 

Year ended December 31,

 

 

 

2017

 

2016

 

2015

 

 

 

 

 

 

 

 

 

Revenue

 

$

454,949

 

$

602,665

 

$

204,640

 

Cost of revenue

 

388,928

 

517,419

 

184,850

 

Gross profit

 

66,021

 

85,246

 

19,790

 

Selling, general and administrative expenses

 

33,543

 

30,705

 

27,169

 

Restructuring expense

 

 

 

1,528

 

Income from operations

 

32,478

 

54,541

 

(8,907

)

Other income (expense), net:

 

 

 

 

 

 

 

Interest expense, net

 

(2,201

)

(516

)

(557

)

Other income

 

111

 

213

 

874

 

Income before benefit (provision) for income taxes

 

30,388

 

54,238

 

(8,590

)

Benefit (provision) for income taxes

 

(13,863

)

10,213

 

(106

)

Net income from continuing operations

 

16,525

 

64,451

 

(8,696

)

Discontinued operations:

 

 

 

 

 

 

 

Net income from discontinued operations

 

 

1,087

 

(19,487

)

 

 

16,525

 

65,538

 

(28,183

)

Other comprehensive income (loss)

 

 

 

 

 

 

 

Foreign currency translation adjustment

 

 

 

868

 

Net income

 

$

16,525

 

$

65,538

 

$

(27,315

)

 

See accompanying notes to consolidated financial statements

 

5



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CHANGES IN MEMBER’S EQUITY (DEFICIT)

(in thousands)

 

 

 

Member’s equity
(deficit)

 

Accumulated other
comprehensive
income (loss)

 

Total

 

 

 

 

 

 

 

 

 

Balance, January 1, 2015

 

$

(47,706

)

$

(601

)

$

(48,307

)

 

 

 

 

 

 

 

 

Net loss

 

(28,183

)

 

(28,183

)

 

 

 

 

 

 

 

 

Change in foreign currency translation

 

 

868

 

868

 

 

 

 

 

 

 

 

 

Profit unit expense

 

93

 

 

93

 

 

 

 

 

 

 

 

 

Other

 

(315

)

 

(315

)

 

 

 

 

 

 

 

 

Balance, December 31, 2015

 

$

(76,111

)

$

267

 

$

(75,844

)

 

 

 

 

 

 

 

 

Net income

 

65,538

 

 

65,538

 

 

 

 

 

 

 

 

 

Change in foreign currency translation

 

 

(780

)

(780

)

 

 

 

 

 

 

 

 

Cumulative translation adjustment on discontinued operations

 

 

513

 

513

 

 

 

 

 

 

 

 

 

Profit unit expense

 

161

 

 

161

 

 

 

 

 

 

 

 

 

Conversion of Subordinated Debt into equity

 

23,287

 

 

23,287

 

 

 

 

 

 

 

 

 

Balance, December 31, 2016

 

12,875

 

 

12,875

 

 

 

 

 

 

 

 

 

Net income

 

16,525

 

 

16,525

 

 

 

 

 

 

 

 

 

Distributions

 

(34,738

)

 

(34,738

)

 

 

 

 

 

 

 

 

Distribution of Land and Building

 

(4,734

)

 

(4,734

)

 

 

 

 

 

 

 

 

Profit unit expense

 

53

 

 

53

 

 

 

 

 

 

 

 

 

Balance, December 31, 2017

 

$

(10,019

)

$

 

$

(10,019

)

 

See accompanying notes to consolidated financial statements

 

6



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CASH FLOWS

(in thousands)

 

 

 

Years ended December 31,

 

 

 

2017

 

2016

 

2015

 

Cash flows from operating activities:

 

 

 

 

 

 

 

Net income

 

$

16,525

 

$

65,538

 

$

(28,183

)

Adjustments to reconcile net income to net cash (used in) provided by operating activities:

 

 

 

 

 

 

 

Depreciation of property, plant and equipment

 

4,924

 

3,323

 

3,671

 

Amortization of intangible assets

 

120

 

120

 

120

 

Provision for loss on uncompleted contracts

 

 

(634

)

(5,532

)

Interest accrual on subordinated debt

 

 

1,862

 

1,425

 

Profit units compensation expense

 

53

 

161

 

93

 

Other

 

 

 

(315

)

(Gain) loss on sale of equipment

 

(244

)

(213

)

321

 

Deferred compensation

 

944

 

(446

)

872

 

Deferred income taxes

 

11,451

 

(14,687

)

155

 

Allowance for doubtful accounts

 

81

 

(11,942

)

2,129

 

Change in operating assets and liabilities:

 

 

 

 

 

 

 

Accounts receivable

 

8,915

 

(21,089

)

77,067

 

Costs and estimated earnings in excess of billings on uncompleted contracts

 

(4,470

)

2,093

 

14,738

 

Prepaid expenses and other assets

 

587

 

(539

)

11,799

 

Accounts payable and accrued liabilities

 

(27,212

)

17,862

 

(68,412

)

Billings in excess of costs and estimated earnings on uncompleted contracts

 

(20,783

)

12,182

 

(15,565

)

Net cash (used in) provided by operating activities

 

(9,109

)

53,591

 

(5,617

)

 

 

 

 

 

 

 

 

Cash flows from investing activities:

 

 

 

 

 

 

 

Company-owned life insurance

 

(2,036

)

(514

)

152

 

Purchases of property, plant and equipment

 

(2,248

)

(2,821

)

(677

)

Proceeds from sale of property, plant and equipment

 

776

 

335

 

877

 

Net cash used in investing activities

 

(3,508

)

(3,000

)

352

 

 

 

 

 

 

 

 

 

Cash flows from financing activities:

 

 

 

 

 

 

 

Net proceeds and repayments under line of credit

 

33,674

 

(27,946

)

(11,459

)

Distribution

 

(34,738

)

 

 

Proceeds from the issuance of subordinated debt

 

 

 

20,000

 

Payments on capital lease obligations

 

(3,049

)

(1,671

)

 

Net cash used in financing activities

 

(4,113

)

(29,617

)

8,541

 

 

 

 

 

 

 

 

 

Effect of currency translation on cash

 

 

633

 

(3,276

)

 

 

 

 

 

 

 

 

Net change in cash and cash equivalents

 

(16,730

)

21,607

 

 

 

 

 

 

 

 

 

 

Cash and cash equivalents, beginning of year

 

21,607

 

 

 

 

 

 

 

 

 

 

 

Cash and cash equivalents, end of year

 

$

4,877

 

$

21,607

 

$

 

Supplemental disclosure of cash and non-cash transactions:

 

 

 

 

 

 

 

Cash paid for interest

 

$

2,221

 

$

1,189

 

$

3,870

 

Cash paid for income taxes

 

$

3,686

 

$

2,673

 

$

 

Acquisition of assets/liabilities through capital lease

 

$

18,309

 

$

7,501

 

$

 

Distribution of Land and Building

 

$

4,734

 

$

 

$

 

Conversion of Subordinated Debt into Equity

 

$

 

$

23,287

 

$

 

 

See accompanying notes to consolidated financial statements

 

7



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

Note 1. Organization and Nature of Operation

 

IEA Energy Services, LLC (“IEA Services”) is a Delaware limited liability company, formed on August 3, 2011, together with its wholly-owned subsidiaries (collectively the “Company”) and a wholly-owned subsidiary of Infrastructure and Energy Alternatives, LLC (“IEA Parent”). The Company specializes in providing complete engineering, procurement and construction (“EPC”) services throughout the U.S. for the renewable energy, traditional power and civil infrastructure industries. The services are performed under fixed-price and time-and-materials contracts.

 

On November 3, 2017, IEA Parent entered into an Agreement and Plan of Merger (the “Merger Agreement”) by and among M III Acquisition Corp. (“M III”), IEA Energy Services LLC, Wind Merger Sub I, Inc., a wholly-owned subsidiary of M III (“Merger Sub I”), Wind Merger Sub II, LLC, a wholly-owned subsidiary of M III (“Merger Sub II”), Oaktree Power Opportunities Fund III Delaware, L.P. (“Oaktree”), solely in its capacity as the seller’s representative and, M III Sponsor I LLC, a Delaware limited liability company, and M III Sponsor I LP (together, the “Sponsors”), solely with respect to certain to certain provisions.

 

Pursuant to a Merger Agreement, a business combination between the IEA Services and M III will be effected through two consecutive mergers—Merger Sub I will merge with and into IEA Services with IEA Services surviving such merger and, immediately thereafter, this surviving entity will merge with and into Merger Sub II with Merger Sub II surviving such merger as a wholly-owned subsidiary of M III (together, the “Mergers”). Upon the consummation of the Mergers, subject to adjustments in accordance with the Merger Agreement, IEA Parent will receive approximately $100,000 in cash, 10,000,000 shares of common stock of M III, par value $0.0001 per share (“Common Shares”), and an initial stated value of $35,000 in preferred stock of the combined company, par value $0.0001 per share. At the closing of the transaction, IEA Parent will hold approximately 34% of the issued and outstanding Common Shares and the existing shareholders of M III will hold approximately 66% of the issued and outstanding Common Shares. IEA Parent will also receive “earnout shares” if certain EBITDA thresholds specified in the Merger Agreement are met in either or both of fiscal years 2018 and 2019, with a total of 9,000,000 Common Shares being earnable for both such years in the aggregate. As of February 19, 2018, the Merger is pending shareholder approval and an executed definitive agreement.

 

Note 2. Summary of Significant Accounting Policies

 

Principles of Consolidation

 

The accompanying consolidated financial statements include the accounts of IEA Energy Services, LLC and its wholly-owned domestic and foreign subsidiaries: IEA Management Services, Inc. (“IMS”), IEA Renewable, Inc. (“Renewable”), White Construction, Inc. (“White”), White Electrical Constructors, Inc. (“WECI”), and IEA Equipment Management, Inc. (“IEM”), and White’s wholly-owned subsidiary H.B. White Canada Corp. (“H.B. White”). The capital structure of IEA Services consists of one class of common units fully owned by IEA Parent.

 

On May 24, 2017, IEA Services and IEA Parent entered into a Contribution Agreement in which IEA Parent contributed 100% of the issued and outstanding capital stock of IMS to IEA Services. As a result of which IMS became wholly-owned subsidiary of IEA Services. The contribution is considered a business combination of companies under common control. Furthermore, the Company is presenting its financial statements as though the assets and liabilities had been transferred at the beginning of the earliest period presented. All inter-company transactions and balances have been eliminated in consolidation. The Company has no involvement with variable interest entities.

 

Basis of Accounting and Use of Estimates

 

The accompanying consolidated financial statements have been prepared in accordance with generally accepted accounting principles in the United States of America (“GAAP”). The preparation of the consolidated financial statements in conformity with GAAP requires the use of estimates and assumptions that affect the amounts reported in the consolidated financial statements and the accompanying notes. Key estimates include: the recognition of revenue and project profit or loss (which the Company defines as project revenue less project costs of revenue), in particular, on construction contracts accounted for under the percentage-of-completion method, for which the recorded amounts require estimates of costs to complete projects, ultimate project profit and the amount of probable contract price adjustments as inputs; allowances for doubtful accounts; estimated fair values of intangible assets; accrued self-

 

8



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 

insured claims; share-based compensation; other reserves and accruals; accounting for income taxes; and the estimated impact of contingencies and ongoing litigation. While management believes that such estimates are reasonable when considered in conjunction with the Company’s consolidated financial position and results of operations taken, actual results could differ materially from those estimates.

 

Foreign Currency Translation

 

The Company’s reporting currency is the U.S. dollar. Operations outside the United States are generally measured using the local currency as the functional currency. H.B. White’s functional currency is the Canadian dollar and the financial statements have been translated from the Canadian dollar to U.S. dollars based on the current translation rates in effect during the period or at end-of-period exchange rates; income and expenses are translated using the average exchange rates for the reporting period. Resulting cumulative translation adjustments (“CTA”) were recorded as a component of member’s equity (deficit) in the Consolidated Balance Sheet in accumulated other comprehensive income (loss). Upon the abandonment of the Canadian solar operations of H.B. White, in July 2016, the CTA is included within other income in order to determine the total gain or loss from discontinued operations. Any CTA for future periods will be included as a component of other income from continuing operations.

 

Cash and Cash Equivalents

 

The Company considers all unrestricted, highly liquid investments with maturity of three months or less when purchased to be cash and cash equivalents. The Company maintains cash balances, which, at times, may exceed the amounts insured by the Federal Deposit Insurance Corporation.

 

Accounts Receivable and Allowance for Doubtful Accounts

 

The Company does not accrue interest to its customers and carries its customer receivables at their face amounts, less an allowance for doubtful accounts. Accounts receivable include amounts billed to customers under the terms and provisions of the contracts. Most billings are determined based on contractual terms. Included in accounts receivable are balances billed to customers pursuant to retainage provisions in certain contracts that are due upon completion of the contract and acceptance by the customer, or earlier as provided by the contract. As is common practice in the industry, the Company classifies all accounts receivable, including retainage, as current assets. The contracting cycle for certain long-term contracts may extend beyond one year, and accordingly, collection of retainage on those contracts may extend beyond one year. Accounts receivable include amounts billed to customers under retention provisions in construction contracts. Such provisions are standard in the Company’s industry and usually allow for a small portion of progress billings or the contract price, typically 10%, to be withheld by the customer until after the Company has completed work on the project. Based on the Company’s experience with similar contracts in recent years, billings for such retention balances at each balance sheet date are finalized and collected after project completion. Generally, unbilled amounts will be billed and collected within one year. The Company determined that there are no material amounts due past one year and no material amounts billed but not collected within one year.

 

The Company grants trade credit, on a non-collateralized basis, to its customers and is subject to potential credit risk related to changes in business and overall economic activity. The Company analyzes specific accounts receivable balances, historical bad debts, customer credit-worthiness, current economic trends and changes in customer payment terms when evaluating the adequacy of the allowance for doubtful accounts. In the event that a customer balance is deemed to be uncollectible, the account balance is written-off against the allowance for doubtful accounts.

 

Revenue Recognition

 

Revenue under construction contracts are accounted for under the percentage-of-completion method of accounting and time and materials basis. Under the percentage-of-completion method, the Company estimates profit as the difference between total estimated revenue and total estimated cost of a contract and recognizes that profit over the contract term based on costs incurred. Contract costs include all direct materials, labor and subcontracted costs and those indirect costs related to contract performance, such as indirect labor, supplies, tools, repairs, depreciation and the operational costs of capital equipment.

 

The estimation process for revenue recognized under the percentage-of-completion method is based on the professional knowledge and experience of the Company’s project managers, engineers and financial professionals.

 

9



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 

Management reviews estimates of contract revenue and costs on an ongoing basis. Changes in job performance, job conditions and management’s assessment of expected contract settlements are factors that influence estimates of total contract value and total costs to complete those contracts and, therefore, the Company’s profit recognition. Changes in these factors may result in revisions to costs and income, and their effects are recognized in the period in which the revisions are determined, which could materially affect the Company’s results of operations in the period in which such changes are recognized.

 

Revenue derived from projects billed on a fixed-price basis totaled 97.8%, 90.4% and 97.6% of consolidated revenue from continuing operations for the years ended December 31, 2017, 2016 and 2015, respectively; and 99.9% and 96.0% of consolidated revenue from discontinued operations for the year ended December 31, 2016 and 2015, respectively. Revenue and related costs for construction contracts billed on a time and materials basis are recognized as the services are rendered. Revenue derived from projects billed on a time and materials basis totaled 2.2%, 9.6% and 2.4% of consolidated revenue from continuing operations for the years ended December 31, 2017, 2016 and 2015 respectively; and 0.1% and 4.0% of consolidated revenue from discontinued operations for the year ended December 31, 2016 and 2015, respectively.

 

Provisions for losses on uncompleted contracts are made in the period in which such losses are determined to be probable and the amount can be reasonably estimated. The Company may incur costs subject to change orders, whether approved or unapproved by the customer, and/or claims related to certain contracts. Management determines the probability that such costs will be recovered based upon engineering studies and legal opinions, past practices with the customer, specific discussions, correspondence or preliminary negotiations with the customer. The Company treats such costs as a cost of contract performance in the period incurred if it is not probable that the costs will be recovered and/or recognizes revenue up to the amount of the related cost if it is probable that the contract price will be adjusted and can be reliably estimated.

 

As of December 31, 2017, 2016 and 2015, the Company had revenue related to unapproved change orders totaled approximately $33,479, $17,813 and $9,734 respectively. The Company actively engages in substantive meetings with its customers to complete the final approval process, and generally expects these processes to be completed within one year. The amounts ultimately realized upon final acceptance by its customers could be higher or lower than such estimated amounts.

 

Changes in job performance, job conditions, estimated profitability, and final contract settlements that result in revisions to costs and income are recognized in the accounting period when these matters are known. Claims for additional contract revenue are recognized when realization of the claim is assured, and the amount can reasonably be determined. When realization is probable, but the amount cannot be reasonably determined, revenue is recognized to the extent of cost incurred.

 

Classification of Construction Contract-Related Assets and Liabilities

 

Contract costs include all direct subcontract, material, and labor costs, and those indirect costs related to contract performance, such as indirect labor, supplies, tools, insurance, repairs, maintenance, communications, and use of Company-owned equipment. Contract revenues are earned and matched with related costs as incurred.

 

Costs and estimated earnings in excess of billings on uncompleted contracts are presented as a current asset in the accompanying consolidated balance sheets, and billings in excess of costs and estimated earnings on uncompleted contracts are presented as a current liability in the accompanying consolidated balance sheets. The Company’s contracts vary in duration, with the duration of some larger contracts exceeding one year. Consistent with industry practices, the Company includes the amounts realizable and payable under contracts, which may extend beyond one year, in current assets and current liabilities. These balances are generally settled within one year.

 

Self-Insurance

 

The Company is self-insured up to the amount of its deductible for its medical and workers’ compensation insurance policies. For the years ended December 31, 2017, 2016 and 2015, the Company maintains insurance policies subject to per claim deductibles of $500, $500 and $500, respectively, for its workers’ compensation policy. Liabilities under these insurance programs are accrued based upon management’s estimates of the ultimate liability for claims reported and an estimate of claims incurred but not reported with assistance from third-party actuaries.  The Company’s liability for employee group medical claims is based on analysis of historical claims experience and

 

10



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 

specific knowledge of actual losses that have occurred. The Company is also required to post letters of credit and provide cash collateral to certain of its insurance carriers and to obtain surety bonds in certain states. Cash collateral deposited with insurance carriers is included in accounts payable and accrued liabilities in the Consolidated Balance Sheets.

 

The Company’s self-insurance liability is reflected in the Consolidated Balance Sheets within accounts payable and accrued liabilities. The determination of such claims and expenses and the appropriateness of the related liability is reviewed and updated quarterly, however, these insurance liabilities are difficult to assess and estimate due to unknown factors, including the severity of an injury, the determination of the Company’s liability in proportion to other parties and the number of incidents not reported. Accruals are based upon known facts and historical trends. Although management believes its accruals are adequate, a change in experience or actuarial assumptions could materially affect the Company’s results of operations in a particular period.

 

Company-Owned Life Insurance

 

The Company has life insurance policies on certain key executives. Company-owned life insurance is recorded at its cash surrender value or the amount that can be realized.

 

Leases

 

The Company leases certain real estate, construction equipment and office equipment. The terms and conditions of leases (such as renewal or purchase options and escalation clauses), if material, are reviewed at inception to determine the classification (operating or capital) of the lease. Nonperformance-related default covenants, cross-default provisions, subjective default provisions and material adverse change clauses contained in material lease agreements, if any, are also evaluated to determine whether those clauses affect lease classification in accordance with Accounting Standards Codification (“ASC”) Topic 840-10-25.

 

Long-Lived Assets

 

The Company’s long-lived assets consist primarily of property, plant and equipment and finite-lived intangible assets. Property and equipment are recorded at cost, or if acquired in a business combination, at the acquisition date fair value. Depreciation and amortization of long-lived assets is computed using the straight-line method over the estimated useful lives of the respective assets. Leasehold improvements are depreciated over the shorter of the term of the lease or the estimated useful lives of the improvements. Property and equipment under capital leases are depreciated over their estimated useful lives. Expenditures for repairs and maintenance are charged to expense as incurred. Expenditures for betterments and major improvements are capitalized and depreciated over the remaining useful lives of the assets. The carrying amounts of assets sold or retired and the related accumulated depreciation are eliminated in the year of disposal, with resulting gains or losses included in other income or expense. When the Company identifies assets to be sold, those assets are valued based on their estimated fair value less costs to sell, classified as held-for-sale and depreciation is no longer recorded. Estimated losses on disposal are included within other expense. Acquired intangible assets that have finite lives are amortized over their useful lives, which are generally based on contractual or legal rights. Finite-lived intangible assets are amortized in a manner consistent with the pattern in which the related benefits are expected to be consumed.

 

The assets’ estimated lives used in computing depreciation for property, plant and equipment are as follows:

 

Buildings and leasehold improvements

 

2 to 39 years

Construction equipment

 

3 to 15 years

Furniture, fixtures and equipment

 

3 to 7 years

Vehicles

 

3 to 5 years

 

Management reviews long-lived assets for impairment whenever events or changes in circumstances indicate that their carrying amounts may not be recoverable. If an evaluation is required, the estimated future undiscounted cash flows associated with the asset are compared with the asset’s carrying amount to determine if there has been an impairment, which is calculated as the difference between the fair value of an asset and its carrying value. Estimates of future undiscounted cash flows are based on expected growth rates for the business, anticipated future economic conditions and estimates of residual values. Fair values take into consideration management’s estimates of risk-adjusted discount rates, which are believed to be consistent with assumptions that marketplace participants would use

 

11



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 

in their estimates of fair value. As of December 31, 2017, 2016 and 2015, management believes that no impairment existed.

 

Goodwill

 

Goodwill represents the excess purchase price paid over the fair value of acquired intangible and tangible assets. The Company applies the provisions of ASC Topic 350,  Intangibles - Goodwill and Other (ASC 350). Accordingly, goodwill is not amortized but rather is assessed at least annually for impairment and tested for impairment more frequently if events and circumstances indicate that the asset might be impaired. The Company may assess its goodwill for impairment initially using a qualitative approach (“step zero”) to determine whether conditions exist to indicate that it is more likely than not that the fair value of a reporting unit is less than its carrying value. If management concludes, based on its assessment of relevant events, facts and circumstances, that it is more likely than not that a reporting unit’s carrying value is greater than its fair value, then a quantitative analysis will be performed to determine if there is any impairment. The Company may also elect to initially perform a quantitative analysis instead of starting with step zero. The quantitative assessment for goodwill is a two-step process. “Step one” requires comparing the carrying value of a reporting unit, including goodwill, to its fair value using the income approach. The income approach uses a discounted cash flow model, which involves significant estimates and assumptions, including preparation of revenue and profitability growth forecasts, selection of a discount rate, and selection of a terminal year multiple. If the fair value of the respective reporting unit exceeds its carrying amount, goodwill is not considered to be impaired and no further testing is required. If the carrying amount of a reporting unit exceeds its fair value, the second step of the goodwill impairment test is to measure the amount of impairment loss, if any. “Step two” compares the implied fair value of goodwill to the carrying amount of goodwill. The implied fair value of goodwill is determined by a hypothetical purchase price allocation using the reporting unit’s fair value as the purchase price. If the carrying amount of goodwill exceeds the implied fair value, an impairment charge is recorded to write down goodwill to its implied fair value and is recorded as a selling, general and administrative expense within the Company’s Consolidated Statements of Operations.  As of December 31, 2017, 2016 and 2015 management performed a qualitative assessment for its goodwill and indefinite-lived intangible assets by examining relevant events and circumstances that could have an effect on their fair values, such as: macroeconomic conditions, industry and market conditions, entity-specific events, financial performance and other relevant factors or events that could affect earnings and cash flows.  Based on evaluation of qualitative assessment there was no change in goodwill during the years ended December 31, 2017, 2016 and 2015.

 

Equity Appreciation Plan

 

IEA Parent has an equity appreciation plan which grants profit units of IEA Parent to certain key employees and members of the board of directors of the Company (the “Board”) for their services on the Board. The Company recognizes compensation expense for its profit units in accordance with the provisions of ASC 718, Stock Compensation , which requires the recognition of expense related to the fair value of the profit units in the Company’s Consolidated Statements of Operations.

 

The Company estimates the grant date fair value of each profit unit at issuance. For profit units subject to service based-vesting conditions, the Company recognizes compensation expense equal to the grant date fair value on a straight-line basis over the requisite service period, which is generally the vesting term. Forfeitures are accounted for when incurred. For profit units subject to both performance and service-based vesting conditions, the Company recognizes stock-based compensation expense using the straight-line recognition method when it is probable that the performance condition will be achieved.

 

Income Taxes

 

Income taxes are accounted for under the asset and liability method. Deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates in effect for the year in which those temporary differences are expected to be recovered or settled. Where applicable, the Company records a valuation allowance to reduce any deferred tax assets that it determines will not be realizable in the future.

 

Pursuant to ASC 740-10-45-15, management considered the implications of the rate change, 100% immediate expensing, toll charge, Alternative Minimum Tax “AMT” credit change, and state impacts on the provision

 

12



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 

for income taxes calculated for the year ended December 31, 2017. The effects of these changes in tax law is $316, which the Company recognized and reflected in the provision for income taxes for the year ended December 31, 2017. Other provisions within the Tax Cuts and Jobs Act of 2017 were deemed to apply prospectively and do not impact the provision for income taxes for the year ended December 31, 2017.

 

The Company is a limited liability company but elected to be taxed as a corporation and is subject to United States federal income tax, various state income taxes, Canadian federal taxes, and provincial taxes. The Company recognizes the benefit of an uncertain tax position that it has taken or expects to take on income tax returns it files if such tax position is more likely than not to be sustained on examination by the taxing authorities, based on the technical merits of the position. These tax benefits are measured based on the largest benefit that has a greater than 50% likelihood of being realized upon ultimate resolution.

 

Litigation and Contingencies

 

Accruals for litigation and contingencies are reflected in the consolidated financial statements based on management’s assessment, including advice of legal counsel, of the expected outcome of litigation or other dispute resolution proceedings and/or the expected resolution of contingencies. Liabilities for estimated losses are accrued if the potential loss from any claim or legal proceeding is considered probable and the amount can be reasonably estimated. Significant judgment is required in both the determination of probability of loss and the determination as to whether the amount is reasonably estimable. Accruals are based only on information available at the time of the assessment due to the uncertain nature of such matters. As additional information becomes available, management reassesses potential liabilities related to pending claims and litigation and may revise its previous estimates, which could materially affect the Company’s results of operations in a given period.

 

Fair Value of Financial Instruments

 

The Company applies ASC 820, Fair Value Measurement (“ASC 820”), which establishes a framework for measuring fair value and clarifies the definition of fair value within that framework. ASC 820 defines fair value as an exit price, which is the price that would be received for an asset or paid to transfer a liability in the Company’s principal or most advantageous market in an orderly transaction between market participants on the measurement date. The fair value hierarchy established in ASC 820 generally requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. Observable inputs reflect the assumptions that market participants would use in pricing the asset or liability and are developed based on market data obtained from sources independent of the reporting entity. Unobservable inputs reflect the entity’s own assumptions based on market data and the entity’s judgments about the assumptions that market participants would use in pricing the asset or liability, and are to be developed based on the best information available in the circumstances.

 

The Company’s financial instruments include cash and cash equivalents, accounts receivable, deferred compensation plan assets and liabilities, accounts payable and other current liabilities, certain intangible assets and liabilities, and debt obligations.

 

The valuation hierarchy is composed of three levels. The classification within the valuation hierarchy is based on the lowest level of input that is significant to the fair value measurement. The levels within the valuation hierarchy are described below:

 

Level 1 — Assets and liabilities with unadjusted, quoted prices listed on active market exchanges. Inputs to the fair value measurement are observable inputs, such as quoted prices in active markets for identical assets or liabilities.

 

Level 2 — Inputs to the fair value measurement are determined using prices for recently traded assets and liabilities with similar underlying terms, as well as direct or indirect observable inputs, such as interest rates and yield curves that are observable at commonly quoted intervals.

 

Level 3 — Inputs to the fair value measurement are unobservable inputs, such as estimates, assumptions, and valuation techniques when little or no market data exists for the assets or liabilities.

 

13



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 

Fair values of financial instruments are estimated using public market prices, quotes from financial institutions and other available information. Due to their short-term maturity, the carrying amounts of cash and cash equivalents, accounts receivable, accounts payable and other current liabilities approximate their fair values. Management believes that as of December 31, 2017 and 2016, carrying values of deferred compensation plan liabilities of $5,030 and $4,086, respectively, approximate their fair values. Additionally, management believes that the outstanding balance on the line of credit as of December 31, 2017 of $33,674 approximates its fair value.

 

Segments

 

Operating segments are identified as components of an enterprise about which separate discrete financial information is available for evaluation by the chief operating decision maker, or decision-making group, in making decisions on how to allocate resources and assess performance. The Company’s chief operating decision makers are the chief executive officer and chief financial officer. The Company’s operations are reported as a single segment in accordance with GAAP, as they are similar in nature in regard to services, types of customer, and regulatory environment.

 

Discontinued Operations

 

The Company accounts for business dispositions, businesses held for sale and abandonments in accordance with ASC 205-20, Discontinued Operations (“ASC 205-20”). ASC 205-20 requires the results of operations of business dispositions to be segregated from continuing operations and reflected as discontinued operations in current and prior periods. See Note 17, Discontinued Operations for further information.

 

Interest Allocation

 

Interest expense that is specifically identifiable to debt related to supporting Canadian operations qualifies as discontinued operations, and is allocated to interest expense from discontinued operations in our consolidated financial statements. The Canadian solar operations of H.B. White were abandoned in 2016 (see Note 17, Discontinued Operations for further information). The amount of debt related to supporting Canadian operations is identified by determining the sum of (1) the lump sum cash transfers from the parent entity to H.B. White to fund working capital; and, (2) the Canadian expenses covered by the parent entity. The sum of these compared to the total amount of debt outstanding at the time is used to determine the percentage of total interest expense allocable to Canadian operations.

 

Restructuring Expense

 

In connection with the abandonment of the Canadian solar operations of H.B. White, the Company incurred restructuring costs, which were recorded as restructuring expenses in the accompanying Consolidated Statement of Operations and Comprehensive Loss.  The costs related to the restructuring expenses represent severance expenses for employees who were terminated as a result of the abandonment of the Canadian solar operations of H.B. White.

 

New Accounting Pronouncements

 

The effective dates shown in the following pronouncements are private company effective dates, based on the Company’s current status as a private company.

 

In November 2015, the FASB issued ASU 2015-17, Balance Sheet Classification of Deferred Taxes . To simplify presentation in the balance sheet, the new guidance requires that all deferred tax assets and liabilities, along with any related valuation allowance, be classified as noncurrent. As a result, each jurisdiction within the reporting group will now only have one net noncurrent deferred tax asset or liability. The guidance does not change the existing requirement that only permits offsetting within a jurisdiction, and companies are still prohibited from offsetting deferred tax liabilities from one jurisdiction against deferred tax assets of another jurisdiction. The guidance may be applied either prospectively or retrospectively by reclassifying the comparative balance sheets. For entities, other than public business entities, the amendments are effective for fiscal years beginning after December 15, 2017, and interim periods within fiscal years beginning after December 15, 2018, with early adoption permitted. This ASU, which the Company adopted prospectively as of January 1, 2017, did not have a material effect on the Company’s consolidated financial statements.

 

14



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 

In May 2014, the FASB issued ASU 2014-09, Revenue from Contracts with Customers (Topic 606) . The core principle of ASU 2014-09 is that an entity should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods and services. In August 2015, the FASB issued ASU 2015-14, Revenue from Contracts with Customers (Topic 606): Deferral of the Effective Date. The amendments in this update deferred the effective date for implementation of ASU 2014-09 by one year and is now effective for annual reporting periods beginning after December 15, 2018. Early application is permitted only as of annual reporting periods beginning after December 15, 2016 including interim reporting periods within that period. The Company is currently evaluating the impact of the new accounting standard and its impact on the consolidated financial statements.

 

From March 2016 through December 2016, the FASB issued ASU 2016-08, Revenue from Contracts with Customers (Topic 606): Principal versus Agent Considerations (Reporting Revenue Gross versus Net), ASU 2016-10, Revenue from Contracts with Customers (Topic 606): Identifying Performance Obligations and Licensing, ASU 2016-11, Revenue Recognition (Topic 605) and Derivatives and Hedging (Topic 815): Rescission of SEC Guidance Because of Accounting Standards Updates 2014-09 and 2014-16 Pursuant to Staff Announcements at the March 3, 2016 EITF Meeting, ASU No. 2016-12, Revenue from Contracts with Customers (Topic 606):Narrow-Scope Improvements and Practical Expedients , ASU No. 2016-20, Technical Corrections and Improvements to Topic 606, Revenue from Contracts with Customers and ASU No. 2017-13, Revenue Recognition (Topic 605), Revenue from Contracts with Customers (Topic 606), Leases (Topic 840), and Leases (Topic 842): Amendments to SEC Paragraphs Pursuant to the Staff Announcement at the July 20, 2017 EITF Meeting and Rescission of Prior SEC Staff Announcements and Observer Comments. These amendments are intended to improve and clarify the implementation guidance of Topic 606. The effective date and transition requirements for the amendments are the same as the effective date and transition requirements of ASU No. 2014-09 and ASU No. 2015-14.

 

In February 2016, the FASB issued ASU 2016-02, Leases (Topic 842) (“ASU 2016-02”), which is effective for annual reporting periods beginning after December 15, 2019. Under ASU 2016-02, lessees will be required to recognize the following for all leases (with the exception of short-term leases) at the commencement date: 1) a lease liability, which is a lessee’s obligation to make lease payments arising from a lease, measured on a discounted basis, and 2) a right-of-use asset, which is an asset that represents the lessee’s right to use, or control the use of, a specified asset for the lease term. The guidance is effective for the annual period beginning after December 15, 2019. The Company is currently evaluating the impact of the new accounting standard and its impact on the consolidated financial statements.

 

In March 2016, the FASB issued ASU 2016-09,  Improvements to Employee Share-Based Payment Accounting , which simplifies several aspects of the accounting for employee share-based payment transactions including the accounting for income taxes, forfeitures, and statutory tax withholding requirements, as well as classification of related amounts within the statement of cash flows. The amendments are effective for annual periods beginning after December 15, 2017, and interim periods within annual periods beginning after December 15, 2018. Early adoption is permitted for any interim or annual period. The Company is currently evaluating the impact of the new accounting standard and its impact on the consolidated financial statements.

 

In January 2017, the FASB issued ASU 2017-04,  Intangibles — Goodwill and Other, Simplifying the Accounting for Goodwill Impairment . ASU 2017-04 removes Step 2 of the goodwill impairment test, which requires a hypothetical purchase price allocation. A goodwill impairment will now be the amount by which a reporting unit’s carrying value exceeds its fair value, not to exceed the carrying amount of goodwill. All other goodwill impairment guidance will remain largely unchanged. Entities will continue to have the option to perform a qualitative assessment to determine if a quantitative impairment test is necessary. This new guidance will be applied prospectively, and is effective for annual or any interim goodwill impairment tests in fiscal years beginning after December 15, 2019. Early adoption is permitted for any impairment tests performed after January 1, 2017. The Company is currently evaluating the impact of the new accounting standard and its impact on the consolidated financial statements.

 

In August 2016, the FASB issued ASU 2016-15, Statement of Cash Flows (Topic 230) Classification of Certain Cash Receipts and Cash Payments . ASU 2016-15 eliminates the diversity in practice related to the classification of certain cash receipts and payments for debt prepayment or extinguishment costs, the maturing of a zero-coupon bond, the settlement of contingent liabilities arising from a business combination, proceeds from insurance settlements, distributions from certain equity method investees and beneficial interests obtained in a financial asset securitization. ASU 2016-15 designates the appropriate cash flow classification, including requirements to allocate certain components of these cash receipts and payments among operating, investing and financing

 

15



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 

activities. The guidance is effective for the Company beginning after December 15, 2017, although early adoption is permitted. The Company is currently evaluating the impact of the new accounting standard and its impact on the consolidated financial statements.

 

In January 2017, the FASB issued ASU 2017-01, Business Combinations: Clarifying the Definition of a Business , which amends the current definition of a business. Under ASU 2017-01, to be considered a business, an acquisition would have to include an input and a substantive process that together significantly contributes to the ability to create outputs. ASU 2017-01 further states that when substantially all of the fair value of gross assets acquired is concentrated in a single asset (or a group of similar assets), the assets acquired would not represent a business. The new guidance also narrows the definition of the term “outputs” to be consistent with how it is described in Topic 606, Revenue from Contracts with Customers . The changes to the definition of a business will likely result in more acquisitions being accounted for as asset acquisitions. The guidance is effective for the annual period beginning after December 15, 2018, with early adoption permitted. The Company is currently evaluating the impact of the new accounting standard and its impact on the consolidated financial statements.

 

Management has evaluated other recently issued accounting pronouncements and does not believe that they will have a significant impact on the combined financial statements and related disclosures.

 

Note 3. Accounts Receivable, net of allowance

 

The following table provides details of accounts receivable, net of allowance, as of the dates indicated (in thousands):

 

 

 

December 31,

 

 

 

2017

 

2016

 

Contract receivables

 

$

44,696

 

$

41,575

 

Contract retainage

 

16,501

 

28,537

 

Accounts receivable, gross

 

61,197

 

70,112

 

Less: allowance for doubtful accounts

 

(216

)

(135

)

Accounts receivable, net

 

$

60,981

 

$

69,977

 

 

Activity in the allowance for doubtful accounts for the periods indicated is as follows (in thousands):

 

 

 

Years ended December 31,

 

 

 

2017

 

2016

 

2015

 

Allowance for doubtful accounts at beginning of year

 

$

135

 

$

12,077

 

$

11,812

 

Less: (reduction in) provision for allowances

 

81

 

(10,534

)

265

 

Less: write-offs, net of recoveries

 

 

(1,408

)

 

Allowance for doubtful accounts at end of year

 

$

216

 

$

135

 

$

12,077

 

 

See Note 11 for a description of the change in the provision for allowances for the year ended December 31, 2016.

 

Note 4. Contracts in Progress

 

Contracts in progress were as follows (in thousands):

 

 

 

December 31,

 

 

 

2017

 

2016

 

Costs on contracts in progress

 

$

861,050

 

$

940,359

 

Estimated earnings on contracts in progress

 

131,997

 

107,144

 

 

 

993,047

 

1,047,503

 

Less: billings on contracts in progress

 

(981,832

)

(1,061,541

)

 

 

$

11,215

 

$

(14,038

)

 

16



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 

The above amounts have been included in the accompanying Consolidated Balance Sheets under the following captions (in thousands):

 

 

 

December 31,

 

 

 

2017

 

2016

 

Costs and estimated earnings in excess of billings on uncompleted contracts

 

$

18,613

 

$

14,143

 

Billings in excess of costs and earnings on uncompleted contracts

 

(7,398

)

(28,181

)

 

 

$

11,215

 

$

(14,038

)

 

The Company has asserted claims and may have unapproved change orders on certain construction projects. These occur typically as a result of scope changes and project delays. Management evaluates these items and estimates the recoverable amounts if this occurs. If significant, these recoverability estimates are evaluated to determine the net realizable value. If additional amounts are recovered, additional contract revenue would be recognized. The current estimated net realizable value on such items as recorded in costs and estimated earnings in excess of billings on uncompleted contracts in the consolidated balance sheets is listed below at December 31 (in thousands):

 

 

 

December 31,

 

 

 

2017

 

2016

 

2015

 

Gross amount of unresolved change orders and claims

 

$

33,479

 

$

17,813

 

$

9,734

 

Valuation allowance

 

 

 

 

Net amount of unresolved change orders and claims

 

$

33,479

 

$

17,813

 

$

9,734

 

 

The Company anticipates that the majority of such amounts will be earned as revenue within one year.

 

Note 5. Property, Plant and Equipment, net

 

Property, plant and equipment, net consisted of the following (in thousands):

 

 

 

December 31,

 

 

 

2017

 

2016

 

Land

 

$

 

$

250

 

Buildings and leasehold improvements

 

416

 

7,177

 

Construction equipment

 

46,404

 

28,863

 

Office equipment, furniture and fixtures

 

1,451

 

1,451

 

Vehicles

 

404

 

283

 

 

 

48,675

 

38,024

 

Accumulated depreciation

 

(17,770

)

(17,484

)

Property, plant and equipment, net

 

$

30,905

 

$

20,540

 

 

Depreciation expense of property, plant and equipment for the years ended December 31, 2017, 2016 and 2015 was $4,998, $3,323 and $3,671; of which $0, $10 and $345, respectively, are a component of discontinued operations. In October 2017, the Company distributed its land and building to the Parent at its total net book value at the date of distribution of $4,734, through an equity distribution. At the date of distribution, the land and building had historical cost values of $250 and $7,024, respectively, and the building had accumulated depreciation of $2,540.  See further discussion in Note 11.

 

17



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 

Note 6. Goodwill and Intangible Assets

 

Changes in goodwill during the years ended December 31, 2017 and 2016 were as follows (in thousands):

 

 

 

Goodwill

 

January 1, 2016

 

$

3,020

 

Acquisitions and other adjustments

 

 

December 31, 2016

 

3,020

 

Acquisitions and other adjustments

 

 

December 31, 2017

 

$

3,020

 

 

Intangible assets consisted of the following at December 31 (in thousands):

 

 

 

2017

 

2016

 

Remaining
Weighted
Average

 

 

 

Gross
Carrying
Amount

 

Accumulated
Amortization

 

Net
Carrying
Amount

 

Gross
Carrying
Amount

 

Accumulated
Amortization

 

Net Carrying
Amount

 

Amortization
Period in
Years

 

Intangible assets

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Customer relationship

 

$

1,220

 

$

(1,220

)

$

 

$

1,220

 

$

(1,220

)

$

 

 

 

Trade-name

 

820

 

(751

)

69

 

820

 

(631

)

189

 

0.58

 

Non-compete

 

90

 

(90

)

 

90

 

(90

)

 

 

 

 

 

$

2,130

 

$

(2,061

)

$

69

 

$

2,130

 

$

(1,941

)

$

189

 

 

 

 

Amortization expense associated with intangible assets for the years ended December 31, 2017, 2016 and 2015 totaled $120, $120 and $120. Intangible asset amortization expense for the years subsequent to December 31, 2017 is expected to be approximately $69 in 2018.

 

Note 7. Accounts Payable and Accrued Liabilities

 

Accounts payable and accrued liabilities consisted of the following (in thousands):

 

 

 

December 31,

 

 

 

2017

 

2016

 

Accounts payable – trade

 

$

23,880

 

$

52,199

 

Accrued project costs

 

27,097

 

24,300

 

Accrued compensation and related expenses

 

8,855

 

13,349

 

Other accrued expenses

 

10,198

 

7,396

 

 

 

$

70,030

 

$

97,244

 

 

Note 8. Debt

 

Line of Credit Agreement

 

IEA Parent and the Company, collectively, are co-borrowers on a credit agreement with a bank, which includes an aggregate limit of borrowings on the line of credit plus aggregate undrawn amounts of all issued and outstanding letters of credit issued. The Line of Credit Agreement was amended in September 2015 with a maturity date of December 31, 2017. Beginning January 1, 2016, maximum availability on the line is reduced as follows:

 

18



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 

$75,000 from January 1, 2016 through March 31, 2016, $65,000 from April 1, 2016 through December 31, 2016 and $55,000 from January 1, 2017 through December 31, 2017. On January 20, 2017, the credit agreement was amended to extend the maturity date to December 31, 2018 and allows for aggregate revolver borrowings up to $55,000 including letters of credit up to $15,000 through December 31, 2018.

 

The Company had outstanding borrowings of $33,674 and $0, and outstanding letters of credit of $5,934 and $3,056 as of December 31, 2017 and 2016, respectively. Interest on outstanding borrowings under the line of credit is based on the greater of LIBOR plus 2.5% or the prime rate. Interest was calculated at the prime rate at December 31, 2017 and 2016, and was 4.5% and 3.75% (as amended on January 20, 2017), respectively. Interest on the outstanding letters of credit is 2% per annum. The credit agreement also has an unused commitment fee of 0.35% per annum. Interest expense under this agreement for the years ended December 31, 2017, 2016 and 2015 totaled $548, $904 and $2,006, respectively.

 

The credit agreement is fully guaranteed by Oaktree Power Opportunities Fund III, LP. and Oaktree Power Opportunities Fund III (Parallel), LP, the two funds that have majority ownership in IEA Parent, and is collateralized by substantially all of the assets of the Company. The Company was in compliance with all required financial covenants as of December 31, 2017.

 

Subordinated Debt Second Lien Term Loan Agreement

 

During February 2015, IEA Parent and the Company collectively entered into a Second Lien Term Loan agreement (“Subordinated Debt”) with the two funds that have majority ownership in IEA Parent, Oaktree Power Opportunities Fund III, LP. and Oaktree Power Opportunities Fund III (Parallel), LP. that provides for the ability to borrow up to $50,000. The Subordinated Debt had an original maturity date of June 30, 2016, which was subsequently extended to February 12, 2020. Along with the extension, Oaktree was subsequently issued additional common units which effectively made it 99% owner of IEA Parent. The value of the additional common units was determined to be de minimis. The Subordinated Debt accrued interest at a fixed rate of 8% per annum.

 

On December 31, 2016, the outstanding principal and accrued interest of $23,287 of the Subordinated Debt was converted into 23,286,846.43 Preferred Units of IEA Parent. IEA Parent’s Preferred Units are non-voting and have the right to receive interest in an amount equal to the aggregate amount that would have been due under the Subordinated Debt Second Lien Term Loan Agreement if it had remained outstanding (including all interest accrued). Pursuant to the Subordinated Debt Contribution Agreement, IEA Parent contributed to IEA Services the existing debt interests as a contribution to capital. Accordingly, no amounts are currently outstanding, and the Subordinated Debt agreement was terminated on December 31, 2016.

 

19



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 

Note 9. Concentrations

 

The Company had the following approximate revenue and accounts receivable concentrations, net of allowances, for the years ended and as of December 31, 2017, 2016 and 2015:

 

 

 

2017

 

2016

 

2015 

 

 

 

Revenue
%

 

Accounts
Receivable
%

 

Revenue
%

 

Accounts
Receivable
%

 

Revenue
%

 

Accounts
Receivable
%

 

Trishe Wind Ohio, LLC

 

*

 

17

%

*

 

*

 

*

 

*

 

Thunder Ranch Wind Project, LLC

 

21

%

15

%

*

 

*

 

*

 

*

 

EDF Renewable Development, Inc.

 

14

%

11

%

11

%

*

 

*

 

*

 

Bruenning’s Breeze Wind Farm, LLC

 

11

%

*

 

*

 

*

 

*

 

*

 

Twin Forks Wind Farm, LLC

 

11

%

*

 

*

 

*

 

*

 

*

 

Cimarron Bend Wind Project, LLC

 

*

 

*

 

17

%

36

%

*

 

*

 

Deerfield Wind Energy, LLC

 

*

 

*

 

*

 

12

%

*

 

*

 

Osborn Wind Energy, LLC

 

*

 

*

 

11

%

13

%

*

 

*

 

Grant Plains Wind, LLC

 

*

 

*

 

*

 

*

 

12

%

*

 

Canadian Solar Solutions, INC

 

*

 

*

 

*

 

*

 

43

%

*

 

Cameron Wind, LLC

 

*

 

*

 

*

 

*

 

13

%

*

 

Colbeck’s Corner, LLC

 

*

 

*

 

*

 

*

 

*

 

37

%

Northland Power

 

*

 

*

 

*

 

*

 

*

 

54

%

 


* Amount less than 10%

 

Note 10. Equity Appreciation Plan

 

Infrastructure and Energy Alternatives, LLC’s Profits Interest Unit Incentive Plan (the “Plan”) was created in 2011 and is designed to promote the long-term financial interests and growth by attracting and retaining officers, key employees, directors and other employees and consultants by aligning the participants interests by providing them with equity-based awards in the form of Profits Units (the “Units”). Profits Units means the Class A Profits Units, Class B Profits Units and any future class of profits units designated by the Board. The Profits Units issued are intended to benefit from appreciation in the fair value of the aggregate members’ equity in IEA Parent over and above such respective Baseline Value. Profits Units issued at the same Baseline Value shall be treat as one subclass of Profits Units. Profits Units shall not be entitled to vote on any matter.

 

The aggregate number of Profits Units that may be issued under the Plan shall not exceed 10% of the aggregate number of units and other equity interest of IEA Parent and the aggregate number of Class B Profits Units that may be issued under the Plan shall not exceed 80,723,420.95, which represents 25.5% of the outstanding Common Units and Class B Profit Units assuming issuance of the authorized Class B Profits Units in full. The issuance of Profits Units or the payment of cash in consideration of the cancellation or termination of a Profit Unit shall reduce the total number of Profit Units available under the Plan, as applicable. If the participant’s employment terminates for any reason, then the unvested percentage of profits units as of the termination date shall be canceled and immediately be forfeited to the Company for no consideration payable to the participant. In addition, if the participant’s employment terminated for cause, then the vested percentage of Profits Units as of the termination date shall be canceled and immediately be forfeited to the Company for no consideration payable to the participant.

 

20



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 

The Company recognizes compensation cost in its Consolidated Statements of Operations for Units granted by IEA Parent to its officers, key employees, or directors under the Plan. As Infrastructure and Energy Alternatives, LLC is the Parent of the Company, and no substantive services are provided to IEA Parent by employees of the Company who received the Units, the Company accounts for these awards accordingly.

 

The Company expenses Profits Units compensation over the requisite service period based on the estimated grant-date fair value of the awards. Profits Units compensation expense is recognized as a component of selling, general, and administrative expense. Share based awards with graded-vesting schedules are recognized on a straight-line basis over the requisite service period for each separately vesting portion of the award. The Company estimates the fair value of stock option grants using the Black-Scholes option pricing model, and the assumptions used in calculating the fair value of stock-based awards represent management’s best estimates and involve inherent uncertainties and the application of management’s judgment.

 

The table below summarizes the Time and Performance Profit Units activities for the years ended December 31, 2017, 2016 and 2015.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Weighted

 

 

 

Number of Units

 

Weighted

 

Average

 

 

 

 

 

 

 

 

 

 

 

Performance

 

 

 

Average

 

Contractual

 

 

 

Time Units

 

Units

 

 

 

Exercise

 

Term

 

 

 

Class A

 

Class A-1

 

Class A-2

 

Class B

 

Class A

 

Total

 

Price

 

(months)

 

Outstanding as of January 1, 2015

 

848,787

 

75,149

 

100,298

 

 

71,675

 

1,095,909

 

$

2.53

 

13.32

 

Granted

 

 

 

 

 

 

 

 

 

 

 

Forfeited/Cancelled

 

266,162

 

28,333

 

50,000

 

 

50,299

 

394,794

 

 

 

 

 

Exercised

 

 

 

 

 

 

 

 

 

 

 

Outstanding as of December 31, 2015

 

582,625

 

46,816

 

50,298

 

 

21,376

 

701,115

 

$

2,32

 

9.56

 

Granted

 

109,967

 

 

 

84,463,293

 

 

84,573,260

 

$

0.00

 

 

 

Forfeited/Cancelled

 

12,574

 

 

 

 

21,376

 

33,950

 

 

 

 

 

Exercised

 

 

 

 

 

 

 

 

 

 

 

Outstanding as of December 31, 2016

 

680,018

 

46,816

 

50,298

 

84,463,293

 

 

85,240,425

 

$

0.02

 

35.68

 

Granted

 

 

 

 

 

 

 

 

 

 

 

Forfeited/Cancelled

 

 

 

 

 

 

 

 

 

 

 

Exercised

 

 

 

 

 

 

 

 

 

 

 

Outstanding as of December 31, 2017

 

680,018

 

46,816

 

50,298

 

84,463,293

 

 

85,240,425

 

$

0.02

 

23.78

 

Vested Profit Units at December 31, 2016

 

680,018

 

46,292

 

37,724

 

36,952,691

 

 

37,716,725

 

$

0.04

 

35.29

 

Vested Profit Units at December 31, 2017

 

680,018

 

46,816

 

50,298

 

52,789,558

 

 

53,566,690

 

$

0.04

 

23.65

 

 

As of December 31, 2017, 2016 and 2015, the Company had unrecognized compensation expense of $41, $94 and $110, respectively.

 

21



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 

Note 11. Commitments and Contingencies

 

Operating Leases

 

The Company leases real estate, vehicles, office equipment, and certain construction equipment from unrelated parties under non-cancelable leases. Additionally, in October 2017, the Company signed a lease with a subsidiary of its IEA Parent to lease an office building and land.  Lease terms range from month-to-month to terms expiring through 2038. The table below shows the future minimum lease commitments under non-cancelable operating leases (in thousands):

 

Years ending December 31,

 

Operating Leases

 

2018

 

$

1,683

 

2019

 

1,244

 

2020

 

866

 

2021

 

832

 

2022 and thereafter

 

11,652

 

 

 

$

16,277

 

 

Rent expense relating to these agreements totaled approximately $1,568, $1,234 and $885 for the years ended December 31, 2017, 2016 and 2015, respectively.

 

Capital Leases

 

The Company signed various capital leases in 2016 and 2017 for equipment. The Company has obligations, exclusive of associated interest, under various capital leases for equipment totaling $20,590 and $5,330 at December 31, 2017 and 2016, respectively. Gross property under this capitalized lease agreement at December 31, 2017 and 2016 totaled $27,005 and $7,501, respectively, less accumulated depreciation of $2,817 and $248, respectively, for net balances of $24,188 and $7,253, respectively. Amortization of assets held under the capital lease is included in cost of revenue on the Consolidated Statements of Operations.

 

The future minimum payments of capital lease obligations are as follows (in thousands):

 

Years ending December 31,

 

Capital Leases

 

2018

 

$

6,874

 

2019

 

6,874

 

2020

 

7,116

 

2021

 

2,825

 

 

 

23,689

 

Less: Amount representing interest

 

3,099

 

Present value of minimum lease payments

 

20,590

 

Less: Current portion

 

4,691

 

Capital lease obligation, long term

 

$

15,899

 

 

Legal Proceedings

 

NPI Litigation/CCAA Resolution

 

H.B. White had three contracts for construction of alternative energy projects with Northland Power, Inc. and certain affiliates (“NPI”). H.B. White and NPI had ongoing disputes on one project and, in December 2014, NPI provided notice that it had terminated the contract. The Company recorded a provision for bad debt of CAD $12,153. H.B. White disputed this termination. On July 6, 2016, H.B. White entered into agreement with NPI to settle all disputes and claims between H.B. White and NPI. In conjunction with the settlement, on July 7, 2016, H.B. White obtained court protection under the Companies’ Creditors Arrangement Act (the “CCAA”), which was approved by

 

22



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 

court order on November 22, 2016. On February 22, 2017, the CCAA plan and process was successfully completed and all of the claims filed in relation to the dispute and related liens on the projects were released. The matter is now resolved, and the total effect of the settlement resulted in a net gain to the Company of CAD $4,564 recognized in November 2016.

 

Pursuant to the CCAA, IEA or White shall pay NPI, or its designee cash in the aggregate amount of CAD $1,500 provided that the closing date of a material transaction is on or before December 31, 2017. If the closing date occurs after December 31, 2017 but on or before December 31, 2018, IEA or White shall pay to NPI CAD $1,000. A material transaction is defined as a change in control or a public offering of equity securities.

 

Sterret Crane v. White, and Zurich Insurance v. White

 

White is a defendant in a lawsuit filed in January 2016 by Sterret Crane for an incident that occurred in 2014 during construction of a wind farm. On October 26, 2017, a trial of the liability suit concluded, resulting in a judgment against White in the sum of $609. The Company had $609 and $500 accrued on the balance sheet as of December 31, 2017 and 2016, respectively. Subsequently, Sterret filed a motion for an award of actual damages of $659 for pre-judgement interest and legal fees. White has made demand to Zurich, White’s insurer, for payment of the judgment amount; however, Zurich has not yet agreed to pay. It does not appear probable that White can successfully appeal the judgment or recover from Zurich for the judgment amount; however, White has filed an appeal of the verdict. A mediation occurred on January 11, 2018 and February 2, 2018 to discuss potential settlement of the liability claim without further appeal or litigation, but was unsuccessful. Mediation between the Companies is ongoing.

 

In addition to the foregoing, in the ordinary course of business, the Company is involved in ordinary, routine legal proceedings. The Company believes the ultimate resolution of such matters will not have a material adverse effect on the results of operations, cash flows or the financial position of the Company.

 

Deferred Compensation

 

The Company has two deferred compensation plans. The first plan is a supplemental executive retirement plan established in 1993 that covers four specific employees or former employees, whose deferred compensation was determined by the number of service years. Payment of the benefits is to be made for 20 years after employment ends. The two former employees are currently receiving benefits, two participants are still employees of the company. The present value of the liability is estimated using the early retirement method. Of the two current employees, one has reached the full benefit level, the other will reach full benefit in 2018. Annual payments under this plan for 2018 will be $93. Maximum aggregate payments per year if all participants were retired would be $255. As of December 31, 2017, and 2016, the Company has a long-term liability of $3,356 and $3,124, respectively, for the supplemental executive retirement plan related to four specific employees or former employees.

 

The Company offers a non-qualified deferred compensation plan which is made up of an executive excess plan and an incentive bonus plan. This plan was designed and implemented to enhance employee savings and retirement accumulation on a tax-advantaged basis, beyond the limits of traditional qualified retirement plans. This plan allows employees to: (1) defer annual compensation from multiple sources; (2) create wealth through tax-deferred investments; (3) save and invest on a pretax basis to meet accumulation and retirement planning needs; (4) utilize a diverse choice of investment options to maximize returns. The Executive Excess Plan is for employees in the salary grade 15 or higher and awards typically vest over 3 years but can vary. Awards are expensed as vested. The Incentive Bonus Plan includes Project Management Incentive Payments (“PMIP”) and incentive payments for those in salary grade 14 or lower. Some employees can be in both of these plans. PMIP payments are expensed when awarded as they were earned through the course of the performance of the project they are related to. Other payments are expensed when vested as they are considered to be earned by retention. Unrecognized compensation expense for the non-qualified deferred compensation plan at December 31, 2017, 2016 and 2015, is $1,348, $184 and $264, respectively. As of December 31, 2017, and 2016, the Company has a long-term liability of $1,674 and $962, respectively, for deferred compensation to certain current and former employees.

 

Letters of Credit

 

In the ordinary course of business, the Company is required to post letters of credit in support of performance under certain contracts. Such letters of credit are generally issued by a bank or similar financial institution. The letter of credit commits the issuer to pay specified amounts to the holder of the letter of credit under certain conditions. If

 

23



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 

this were to occur, the Company would be required to reimburse the issuer of the letter of credit, which, depending upon the circumstances, could result in a charge to earnings. As of December 31, 2017, and 2016, the Company is contingently liable under letters of credit issued under the Company Line of Credit Agreement in the amount of $5,934 and $3,056, respectively, related to projects.

 

Note 12. Income Taxes

 

The Company is a limited liability company but elected to be taxed as a corporation and is subject to United States federal income tax, various state income taxes, Canadian federal taxes, and provincial taxes. The Company files a consolidated tax return that includes Renewable, White, IEM, WECI and H.B. White. IMS is a wholly-owned subsidiary of IEA Parent, for tax purposes as of December 31, 2016, and is taxed as a separate corporation and subject to United States federal and state income taxes.  On May 24, 2017, IMS was contributed into the Company consolidated group and as of December 31, 2017 is included in the consolidated tax return filed by the Company.

 

H.B. White is a wholly owned subsidiary of White and is considered a Foreign-Branch Operation under the U.S. federal income tax system. H.B. White’s income and losses are taxable in Canada and in the Unites States based on U.S. federal income tax law. Under U.S. federal tax law, Canadian taxes imposed on the branch are considered foreign taxes of the Company, which may be deducted as a business expense or may be claimed as direct, creditable foreign taxes of a U.S. corporation. As such, there are no unremitted foreign earnings in the group.

 

The income before income taxes and the related tax provision benefit are as follows (in thousands):

 

 

 

Years ended December 31,

 

 

 

2017

 

2016

 

2015

 

 

 

 

 

 

 

 

 

Income before income taxes

 

 

 

 

 

 

 

U.S. operations

 

$

29,313

 

$

54,238

 

$

(8,590

)

Non-U.S. operations

 

1,075

 

 

 

Total income before income taxes

 

30,388

 

54,238

 

(8,590

)

 

 

 

 

 

 

 

 

Current provision (benefit)

 

 

 

 

 

 

 

Federal

 

313

 

1,168

 

(75

)

State

 

2,099

 

3,307

 

26

 

Total current tax provision (benefit)

 

2,412

 

4,475

 

(49

)

 

 

 

 

 

 

 

 

Deferred provision (benefit)

 

 

 

 

 

 

 

Federal

 

11,638

 

(12,776

)

145

 

State

 

(186

)

(1,912

)

10

 

Total deferred tax provision (benefit)

 

11,452

 

(14,688

)

155

 

 

 

 

 

 

 

 

 

Total (benefit) provision for income taxes

 

$

13,863

 

$

(10,213

)

$

106

 

 

As disclosed in Note 17, the income tax benefit included in discontinued operations for the years ended December 31, 2017, 2016 and 2015 is $0, $1,219 and $0, respectively. A substantial portion of the deferred benefit at December 31, 2016 was a result of the release of the valuation allowance during 2016 offset by the utilization of $44,144 of Federal NOL’s during the period ended December 31, 2016.

 

24



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 

A reconciliation of the statutory federal income tax rate to the Company’s effective tax rate from Continuing Operations is as follows:

 

 

 

December 31, 2017

 

December 31, 2016

 

December 31, 2015

 

Federal statutory tax rate

 

34.00

%

34.00

%

34.00

%

State and local income taxes, net of federal benefit

 

3.88

%

3.35

%

3.12

%

Permanent items

 

3.81

%

-0.10

%

-1.46

%

Change in valuation allowance

 

-0.08

%

-57.52

%

-37.82

%

Rate change

 

1.05

%

0.00

%

0.00

%

Other

 

2.96

%

1.44

%

0.93

%

Effective tax rate

 

45.62

%

-18.83

%

-1.23

%

 

 

Significant differences between the years ended December 31, 2017 and 2016 related to state taxes and absence of the benefit received in 2016 related to the release of the valuation allowance.

 

Deferred taxes reflect the tax effects of the differences between the amounts recorded as assets and liabilities for financial statement purposes and the comparable amounts recorded for income tax purposes. Significant components of the deferred tax assets (liabilities) at December 31, 2017 and 2016, respectively, are as follows (in thousands):

 

 

 

December 31,

 

 

 

2017

 

2016

 

Deferred tax assets:

 

 

 

 

 

Allowance for doubtful accounts

 

$

31

 

$

13

 

Accrued liabilities and deferred compensation

 

1,600

 

5,329

 

Alternative minimum tax credit carry forwards

 

1,043

 

1,575

 

Foreign exchange differences

 

 

262

 

Net operating loss carry forwards

 

2,532

 

8,633

 

Goodwill

 

1,239

 

383

 

Other reserves and accruals

 

 

225

 

Less: valuation allowance

 

(4

)

(27

)

Total deferred tax assets

 

6,441

 

16,393

 

 

 

 

 

 

 

Deferred tax liabilities:

 

 

 

 

 

Property, plant and equipment

 

(2,977

)

(1,422

)

Equipment under capital leases

 

(346

)

(333

)

Intangibles

 

(17

)

(68

)

Other

 

(21

)

(38

)

Total deferred tax liabilities

 

(3,361

)

(1,861

)

 

 

 

 

 

 

Net deferred tax asset

 

$

3,080

 

$

14,532

 

 

25



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 

Deferred income taxes are classified on the balance sheets as follows at December 31 (in thousands):

 

 

 

December 31,

 

 

 

2017

 

2016

 

Deferred tax assets – current

 

$

 

$

11,735

 

Deferred tax assets – noncurrent

 

3,080

 

2,797

 

Net deferred tax asset

 

$

3,080

 

$

14,532

 

 

The Company assesses the realizability of the deferred tax assets at each balance sheet date based on actual and forecasted operating results in order to determine the proper amount, if any, required for a valuation allowance. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which those temporary differences become deductible. Management considers the scheduled reversal of deferred tax liabilities (including the impact of available carryback and carryforward periods), projected future taxable income, and tax-planning strategies in making this assessment. As of December 31, 2016, the Company released its valuation allowance against certain deferred tax assets within the consolidated group. As explained in the analysis below, it is management’s belief that it is more likely than not that the net deferred tax assets related to the Company will be utilized prior to expiration. The valuation allowance that remains as of December 31, 2017 relates to the White Florida state net operating loss.

 

The change in the valuation allowance was driven by management’s assessment at the end of 2016

 

that there was sufficient positive evidence and tax-planning strategies to overcome the negative evidence of a three-year cumulative loss position and to provide a more-likely-than-not conclusion that the Company is able to realize its net deferred tax assets. As of the end of 2016, the Company had $23 million of net operating losses, which includes $8 million from IMS.  The losses at IMS are attributable to insufficient amounts of intercompany revenue recorded to cover the costs at IEAMS. As explained in the following analysis, the Company looked to the 2016 performance, the 2017 backlog, and considered tax-planning strategies specific to IEAMS to support the release of the valuation allowances at both entities.

 

·                   The losses during 2014 and 2015 in Canada were considered an aberration rather than a continuing condition. The 2014 and 2015 significant operating losses related to discontinued operations in Canada and were a result of three distinct and separable contracts under dispute. These contracts have now been terminated and the Canadian operations have been discontinued.

 

·                   In conjunction with the settlement of the disputed contracts noted above, IEA obtained court protection in Canada under the Companies’ Creditors Arrangement Act (the ‘‘CCAA’’), as approved by court order on November 22, 2016. On February 22, 2017, the CCAA plan and process was successfully completed, and all of the claims filed in relation to the dispute and related liens on the projects were released. This approved court order removed the risk of the creditors forcing the Company into bankruptcy, which provides additional positive evidence with respect to the Company’s ability to continue operations.

 

·                   The cumulative losses include discontinued operations, which relates to operations in Canada. The continuing U.S. operations, White and Renewable, have been profitable on a historical basis and were such that the Company could utilize the net operating loss carryforward in approximately two years (2017 and 2018), which is within the net operating loss carryforward period of twenty years.

 

·                   The Company built a backlog during 2016 that is expected to generate 2017 book income of $33 million, along with strong 2016 results. management believes that the aggregation of the above positive evidence outweighs the negative evidence to meet the ‘‘more-likely-than-not’’ threshold of realizability in relation to the deferred tax assets of IEA.

 

·                   The tax-planning strategy specific to IMS was to contribute IMS into the consolidated group of the Company and, if necessary, liquidate it into a profitable operating subsidiary within IES to utilize the $8 million net operating loss within the expiration period, which is achievable based on the analysis mentioned above.

 

26



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 

As of December 31, 2017, the Company is in a three-year cumulative income position and a valuation allowance assessment on the deferred taxes of the Company is not considered necessary. While IMS is in a three-year cumulative loss position as of December 31, 2017, management has employed the above strategy of contributing IMS into the consolidated group and is managing the intercompany revenue in order to utilize the IMS’s net operating losses. As such, it is management’s continued belief that it is more likely than not that the net deferred tax assets related to IMS will be utilized prior to expiration.

 

As of December 31, 2017, the Company has a federal net operating loss carryover of $5,455 and net operating loss carryovers in certain state tax jurisdictions of approximately $26,443, which will begin to expire in 2034 and 2024, respectively and may be applied against future taxable income. At December 31, 2017, the Company had total alternative minimum tax credit carryovers of approximately $1,043, which are refundable starting in 2018.

 

The Company files income tax returns in U.S. federal, state and certain international jurisdictions. For federal and certain state income tax purposes, the Company’s 2014 through 2016 tax years remain open for examination by the tax authorities under the normal statute of limitations. For certain international income tax purposes, the Company’s 2013 through 2016 tax years remain open for examination by the tax authorities under the normal statute of limitations.

 

The Company classifies interest expense and penalties related to unrecognized tax benefits as components of the tax provision for income taxes.  Interest and penalties recognized in the Consolidated Income Statement for the years ended December 31, 2017, 2016 and 2015 were $0, respectively. As of December 31, 2017, and December 31, 2016, the Company has recorded accrued interest and penalties of $0, respectively.

 

Note 13. Self-Insurance

 

The Company is insured for workers’ compensation and group health claims. As of December 31, 2017, and 2016, the gross amount accrued for medical insurance claims totaled $350 and $278, respectively. As of December 31, 2017, and 2016, the gross amount accrued for workers’ compensation claims totaled $1,672 and $387, respectively. For the year ended December 31, 2017, 2016 and 2015, health care expense totaled $1,133, $4,977 and $3,886 respectively, and workers compensation expenses totaled $3,395, $3,177 and $387, respectively.

 

Note 14. Employee Benefit Plans

 

The Company participates in numerous multi-employer pension plans (“MEPPs”) that provide retirement benefits to certain union employees in accordance with various collective bargaining agreements (“CBAs”). As of December 31, 2017, and December 31, 2016, 25% and 25%, respectively, of the Company’s employees are members of collective bargaining units. As one of many participating employers in these MEPPs, the Company is responsible, with the other participating employers, for any plan underfunding. Contributions to a particular MEPP are established by the applicable collective bargaining agreements; however, required contributions may increase based on the funded status of a MEPP and legal requirements of the Pension Protection Act of 2006, which requires substantially underfunded MEPPs to implement a funding improvement plan (“FIP”) or a rehabilitation plan (“RP”) to improve their funded status. Factors that could impact funded status of a MEPP include investment performance, changes in the participant demographics, decline in the number of contributing employers, changes in actuarial assumptions, and the utilization of extended amortization provisions. If a contributing employer stops contributing to a MEPP, the unfunded obligations of the MEPP may be borne by the remaining contributing employers. Assets contributed to an individual MEPP are pooled with contributions made by other contributing employers; the pooled assets will be used to provide benefits to the Company’s employees and the employees of the other contributing employers.

 

A FIP or RP requires a particular MEPP to adopt measures to correct its underfunding status. These measures may include, but are not limited to: (a) an increase in the contribution rate as a signatory to the applicable collective bargaining agreement, (b) a reallocation of the contributions already being made by participating employers for various benefits to individuals participating in the MEPP and/or (c) a reduction in the benefits to be paid to future and/or current retirees. In addition, the Pension Protection Act of 2006 requires that a 5% surcharge be levied on employer contributions for the first year commencing shortly after the date the employer receives notice that the MEPP is in critical status and a 10% surcharge on each succeeding year until a collective bargaining agreement is in place with terms and conditions consistent with the RP. The zone status included in the table below is based on information that that Company received from the plan and is certified by the plan’s actuary. Among other factors,

 

27



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 

plans in the red zone are generally less than 65% funded, plans in the yellow zone are greater than 65% and less than 80% funded, and plans in the green zone are at least 80% funded.

 

The Company could also be obligated to make payments to MEPPs if the Company either ceases to have an obligation to contribute to the MEPP or significantly reduces its contributions to the MEPP because of a reduction in the number of employees who are covered by the relevant MEPP for various reasons. Due to uncertainty regarding future factors that could trigger withdrawal liability, as well as the absence of specific information regarding the MEPP’s current financial situation, the Company is unable to determine (a) the amount and timing of any future withdrawal liability, if any, and (b) whether participation in these MEPPs could have a material adverse impact on the Company’s financial condition, results of operations, or cash flow.

 

The nature and diversity of the Company’s business may result in volatility of the amount of contributions to a particular MEPP for any given period. That is because, in any given market, the Company could be working on a significant project and/or projects, which could result in an increase in its direct labor force and a corresponding increase in its contributions to the MEPP(s) dictated by the applicable collective bargaining agreement. When the particular project(s) finishes and is not replaced, the level of direct labor of contributions to a particular MEPP could also be affected by the terms of the collective bargaining agreement, which could require at a particular time, an increase in the contribution rate and/or surcharges.

 

The following tables list the MEPPs the Company considers individually significant in 2017 and 2016 (in thousands). The Company considers individually significant to be any plan over 5% of its total contributions to all MEPP plans for that year. For the years ended December 31, 2017 and 2016, they represent 54% and 65%, respectively and four of 52 and eight of 23, respectively, of total plan contributions. All of the amounts were less than 5% of the Total Plan contributions by employers. This information was obtained from the respective plans’ Form 5500 for the most current available filing. These dates may not correspond with the Company’s calendar year contributions. The above noted percentages of contributions are based upon disclosures contained in the plan’s Form 5500 filing (“Forms”). Those Forms, among other things, disclose the names of individual participating employers whose annual contributions account for more than 5% of the aggregate annual amount contributed by all participating employers for a plan year.

 

For the year ended December 31, 2017:

 

Plan

 

Federal ID#

 

2017

 

FIP/RP Status

 

2017 Contribution

 

Surcharge
Imposed

 

Plan Year

 

Expiration of
CBA

 

Central Pension Fund of the IUOE & Participating Employers

 

36-6052390

 

Green

 

No

 

$

1,646

 

No

 

January 2017

 

April 2019, March 2018, May 2018

 

Central Laborers’ Pension Fund

 

37-6052379

 

Yellow

 

Implemented

 

839

 

No

 

December 2016

 

April 2018

 

Upstate New York Engineers Pension Fund

 

15-0614642

 

Red

 

Implemented

 

597

 

No

 

March 2017

 

June 2018

 

Iron Workers St. Louis District Council Pension Trust

 

43-6052659

 

Green

 

No

 

384

 

No

 

October 2016

 

April 2017

 

Other funds

 

 

 

 

 

 

 

2,946

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

$

6,412

 

 

 

 

 

 

 

 

28



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 

For the year ended December 31, 2016:

 

Plan

 

Federal ID#

 

2016

 

FIP/RP Status

 

2016 Contribution

 

Surcharge
Imposed

 

Plan Year

 

Expiration
of CBA

 

Iron Workers Local Union No 25 Pension Plan

 

38-6056780

 

Red

 

Implemented

 

$

989

 

No

 

April 2016

 

May 2019

 

Central Pension Fund of the IUOE & Participating Employers

 

36-6052390

 

Green

 

No

 

772

 

No

 

January 2016

 

March 2018

 

Central Pension Fund of the IUOE and Participating

 

36-6052390

 

Green

 

No

 

496

 

No

 

January 2016

 

March 2018

 

Operating Engineers’ local 324 Pension Fund

 

38-1900637

 

Yellow

 

Implemented

 

675

 

No

 

April 2016

 

May 2018

 

Mo-Kan Iron Workers Pension Fund

 

43-6130595

 

Green

 

No

 

619

 

No

 

January 2016

 

March 2017

 

Iron Workers Mid-America Pension Plan

 

36-6488227

 

Green

 

No

 

560

 

No

 

December 2015

 

May 2018

 

Midwest Operating Engineers Pension Trust Fund

 

36-6140097

 

Yellow

 

Implemented

 

482

 

No

 

March 2016

 

May 2018

 

Central Laborers’ Pension Fund

 

37-6052379

 

Red

 

Implemented

 

408

 

No

 

December 2015

 

April 2017, April 2018

 

Other funds

 

 

 

 

 

 

 

2,427

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

$

7,428

 

 

 

 

 

 

 

 

For the year ended December 31, 2015:

 

Plan

 

Federal ID#

 

2015

 

FIP/RP Status

 

2015 Contribution

 

Surcharge
Imposed

 

Plan Year

 

Expiration
of CBA

 

Central Pension Fund of the IUOE & Participating Employers

 

36-6052390

 

Green

 

No

 

406

 

No

 

January 2016

 

March 2015, March 2018

 

Indiana Laborers Pension Fund

 

35-6027150

 

Yellow

 

Implementation

 

220

 

No

 

May 2015

 

March 2017

 

Indiana Carpenters Pension Plan

 

35-6057648

 

Green

 

No

 

164

 

No

 

December 2015

 

March 2016, May 2017

 

Iron Workers Laborers Pension Plan of Cumberland MA

 

52-6067609

 

Red

 

RP

 

146

 

No

 

December 2014

 

April 2016

 

Central Laborers Pension Fund

 

37-6052379

 

Red

 

Implemented

 

126

 

No

 

December 2014

 

April 2015, April 2018, April 2017

 

Iron Workers 568 Retirement Plan

 

32-0124306

 

Green

 

No

 

104

 

No

 

December 2014

 

April 2016

 

Operating Engineers Local 37 Pension Plan

 

52-6128064

 

Red

 

RP

 

101

 

No

 

December 2014

 

April 2016

 

Other funds

 

 

 

 

 

 

 

596

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

$

1,863

 

 

 

 

 

 

 

 

The zone status above represents the most recent available information for the respective MEPP, which is 2016 for the plan year ended 2017, 2015 for the plan year ended 2016 year and 2014 for the plan year ended 2015 year.

 

Note 15. Related Parties

 

Certain of the Company’s debt facilities and other obligations under surety bonds and stand-by letters of credit are guaranteed by the majority member of IEA Parent. The Company pays a fee for those guarantees based on the total amount outstanding. The Company expensed $1,535, $2,965 and $4,531 related to these fees during the years

 

29



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 

ended December 31, 2017, 2016 and 2015, respectively, of which $0, $625 and $2,570, respectively, is included in discontinued operations on Consolidated Statements of Operations.

 

As of December 31, 2017, and 2016, the Company has a long-term liability of $5,030 and $4,086, respectively, for deferred compensation to certain current and former employees.

 

The Company has life insurance policies on certain key executives. Company-Owned life insurance is recorded at its cash surrender value or the amount that can be realized. As of December 31, 2017, and 2016, the Company has a long-term asset of $4,250 and $2,214, respectively. For the years ended December 31, 2017, 2016 and 2015, the Company recognized increases of $2,036 and $514 and a decrease of $152, respectively, in the cash surrender value of the policies.

 

Contribution of IMS to IEA Services

 

On May 24, 2017, IEA Services and IEA Parent entered into a Contribution Agreement in which IEA Parent contributed 100% of the issued and outstanding capital stock of IMS to IEA Services. As a result of which IMS became wholly-owned subsidiary of IEA Services.

 

Clinton Lease Agreement

 

On October 20, 2017, IEA Parent enacted a plan to restructure the ownership of its building and land from its consolidated subsidiary WCI to Clinton RE Holdings, LLC (Cayman) (“Cayman Holdings”), a directly owned subsidiary of IEA Parent. Refer to Note 11. Commitments and Contingencies for further detail.

 

Note 16. Restructuring Expenses

 

In connection with the abandonment of the Canadian solar operations of H.B. White, the Company incurred restructuring costs, which were recorded as restructuring expenses at December 31, 2015, in the Consolidated Statements of Operations. The costs related to the restructuring expenses represented severance expense for employees who were terminated as a result of the abandonment of the Canadian solar operations of H.B. White. Additional disclosures regarding these discontinued operations and the related costs are provided in Note 17. The balance of the restructuring accrual and the related restructuring activity as of and for the years ending December 31, 2017 and 2016 was as follows:

 

 

 

Employee
Severance

 

Balance at December 31, 2014

 

$

1,600

 

2015 Restructuring charges

 

1,528

 

2015 Payments

 

(2,088

)

Balance at December 31, 2015

 

$

1,040

 

2016 Payments

 

(365

)

Balance at December 31, 2016

 

675

 

2017 Payments

 

(675

)

Balance at December 31, 2017

 

$

 

 

Note 17. Discontinued Operations

 

The Company had experienced significant operating losses related to its operations in Canada. The Company made the decision to abandon its operations in Canada during 2014 and to refocus the business on the U.S. wind energy market. In early 2015, the Company began the process of finalizing all projects in Canada and reducing or eliminating all costs and exposures. The Company completely abandoned the Canadian solar operations of H.B. White and effectively completed all significant projects in Canada and reduced or redeployed substantially all of its Canadian resources, facilities and equipment as of July 2016. Accordingly, the operating results of its operations in Canada for all years presented have been reclassified in the Consolidated Statements of Operations as “loss from discontinued operations”. Management expects major classes of assets and liabilities attributable to discontinued operations will be

 

30



 

IEA ENERGY SERVICES, LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 

settled through a normal wind down process. Interest expense that is specifically identifiable to debt related to supporting Canadian solar operations of H.B. White qualifies as discontinued operations and is allocated to interest expense from discontinued operations in the Company’s consolidated financial statements.

 

As of December 31, 2016, the carrying amounts of major classes of assets and liabilities from the discontinued operations in Canada was $0.

 

Major classes of line items constituting the loss from discontinued operations for the periods indicated was as follows (in thousands):

 

 

 

Year ended December 31,

 

 

 

2016

 

2015

 

Revenue

 

$

1,911

 

$

128,772

 

 

 

 

 

 

 

Cost of earned revenue, excluding depreciation

 

1,626

 

130,289

 

Operating expenses

 

1,610

 

14,551

 

Interest and other expense, net

 

3,060

 

3,419

 

Gain on abandonment

 

(4,253

)

 

Income tax benefit

 

(1,219

)

 

Net income (loss) from discontinued operations

 

$

1,087

 

$

(19,487

)

 

Significant categories of cash flows of discontinued operations for the years indicated are as follows (in thousands):

 

 

 

Year ended December 31,

 

 

 

2016

 

2015

 

Net cash used in operating activities

 

$

(15,539

)

$

(26,076

)

Net cash provided by investing activities

 

$

82

 

$

186

 

Net cash provided by financing activities

 

$

15,664

 

$

16,039

 

 

Note 18. Subsequent Events

 

On February 7, 2018, M III announced that it had set a special meeting of its stockholders to be held on February 28, 2018 to consider and vote on proposals related to the previously announced business combination pursuant to the definitive agreement and plan of merger dated as of November 3, 2017 with IEA.

 

Note 19. Events Subsequent to the Issuance of the Financial Statements (unaudited)

 

On March 21, 2018, MIII shareholders voted to approve the proposed business combination with IEA, pursuant to the definitive agreement and plan of merger dated as of November 3, 2017.  The business combination closed on March 26, 2018, for an aggregate purchase price of approximately $215M, consisting of approximately $80M of cash considerations, approximately $100M of common stock considerations, and approximately $35M of preferred stock consideration.

 

31


Exhibit 99.5

 

UNAUDITED PRO FORMA COMBINED FINANCIAL INFORMATION

 

Capitalized terms used but not otherwise defined in this section shall have the meanings ascribed to them in the current report on Form 8-K (the “Form 8-K”) to which this section is attached as an exhibit.

 

The following unaudited pro forma combined balance sheet as of December 31, 2017 combines the audited historical consolidated balance sheet of IEA Energy Services, LLC (“IEA Services”) as of December 31, 2017 with the audited historical balance sheet of Infrastructure and Energy Alternatives, Inc. (f/k/a M III Acquisition Corp.) (the “Company”) as of December 31, 2017, giving effect to the Business Combination as if it had been consummated as of that date.

 

The following unaudited pro forma combined statement of operations for the year ended December 31, 2017 combines the audited historical consolidated statement of operations of IEA Services for the year ended December 31, 2017 with the audited historical statement of operations of the Company for the year ended December 31, 2017, giving effect to the Business Combination as if it had occurred on January 1, 2017.

 

The historical financial information has been adjusted to give pro forma effect to final events that are related and/or directly attributable to the Business Combination, are factually supportable and are expected to have a continuing impact on the results of the combined company. The adjustments presented on the unaudited pro forma combined financial statements have been identified and presented to provide relevant information necessary for an accurate understanding of the combined company upon consummation of the Business Combination.

 

The historical financial statements of IEA Services and the Company have been prepared in accordance with accounting principles generally accepted in the United States of America (GAAP).

 

The historical financial information of IEA Services as of and for the year ended December 31, 2017 was derived from IEA Services’ audited financial statements included in this Form 8-K as Exhibit 99.4. The historical financial information of the Company was derived from the audited financial statements of the Company as of and for the year ended December 31, 2017 contained in the Company’s annual report on Form 10-K for the year ended December 31, 2017 (the “Company Form 10-K”). This information should be read together with IEA Services’ and the Company’s audited financial statements and related notes, IEA Services’ Management’s Discussion and Analysis of Financial Condition and Results of Operations (included in this Form 8-K as Exhibit 99.3), the Company’s Management’s Discussion and Analysis of Financial Condition and Results of Operations (included in the Company Form 10-K) and other financial information included or incorporated by reference in this Form 8-K or the Company Form 10-K.

 

The unaudited pro forma combined financial information is for illustrative purposes only. You should not rely on the unaudited pro forma combined financial information as being indicative of the historical results that would have been achieved had IEA Services and the Company always been combined (or if the Business Combination had occurred on January 1, 2017) or the future results that the combined company will experience. IEA Services and the Company have not had any historical relationship prior to the Business Combination. Accordingly, no pro forma adjustments were required to eliminate activities between the companies.

 

The following unaudited pro forma combined financial information gives effect to the following transactions:

 

·                   The Mergers and the other transactions contemplated by the Merger Agreement and the Founder Shares Amendment Agreement;

 

·                   The release of all of the funds held in the Company’s trust account that holds the proceeds (including interest, which shall be net of taxes payable) of its initial public offering (the “Trust Account”);

 

·                   The payment by the Company of the Merger Consideration to IEA Parent (as further described below);

 

·                   The cancellation of 7,967,165 shares of Common Stock as a result of stockholders electing to redeem their public shares, resulting in the payment of an aggregate of $80.4 million of cash from the Trust Account;

 

·                   The termination by IEA Services of its prior credit facility and the entry by IEA Services into the new Credit Facility, initially providing for a $50.0 million revolving credit facility maturing on the third anniversary of the Closing Date (the “New Revolving Facility”) and a $50.0 million delayed-draw term loan facility (the “New Term Loan Facility”) maturing on the third anniversary of the Closing Date;

 



 

·                   The borrowing of $19.0 million under the New Revolving Facility and $24.0 million under the New Term Loan Facility and,

 

·                   The payment by IEA Services and the Company of the transaction expenses of $25.8 million, consisting of a $6.0 million deferred underwriting fee payable and $19.8 million of fees and expenses incurred by IEA Services and the Company related to the Business Combination, including the expenses of legal, accounting and other professionals. Of that aggregate amount, $3.9 million was paid in cash, $10.2 million is expected to be paid in ninety days in cash ($2.7 million is already reflected in accrued at December 31, 2017) and approximately $11.7 million of fees, expenses and other aounts associated with the Business Combination was paid in the form of 1,169,968 shares of Common Stock.

 

The Business Combination is being accounted for as a reverse recapitalization in accordance with U.S. GAAP. Under this method of accounting, the Company is treated as the ‘‘acquired’’ company for financial reporting purposes. This determination was primarily based on IEA Services’ operations comprising substantially all of the ongoing operations of the post-combination company, IEA Services’ senior management comprising substantially all of the senior management of the post-combination company and IEA Parent holding a 48.3% voting interest in the Company. Accordingly, for accounting purposes, the Business Combination is treated as the equivalent of IEA Services issuing stock for the net assets of the Company, accompanied by a recapitalization. The net assets of the Company are stated at historical cost, with no goodwill or other intangible assets recorded. Operations prior to the Business Combination are the historical operations of IEA Services.

 

The unaudited pro forma condensed combined financial statements do not include any adjustments for incremental general and administrative costs which are anticipated to be incurred by the combined company as a public reporting company. These incremental expenses, estimated to be approximately $ 5.0 million per year, include compensation and benefit expense for certain additional personnel, fees paid to the independent auditors, legal advisors and other professional advisors, investor relations activities, registrar and transfer agent fees, incremental costs for director and officer liability insurance and director compensation.

 

The amount of merger consideration paid at Closing to IEA Parent (the “Merger Consideration”) was $81.4 million in cash, and 10,003,500 shares of Common Stock, 425,000 shares of Common Stock related to forfeited Founder Shares and 34,965 shares of Series A Preferred Stock with an aggregate stated value of $126.3 million at the Closing Date due to the reduction in market price of Common Stock during the period offset by additional consideration for Founder Shares allocated to the IEA Parent.   Immediately following the Closing, IEA Parent owned approximately 48.3% of the Company’s common stock and the stockholders of the Company prior to the Business Combination owned approximately 51.7% of the Company’s outstanding common stock.  The Merger Consideration is subject to adjustment based on final determinations of IEA Services’ closing date working capital and indebtedness, which determination will be finalized approximately 45 days after the Closing Date.

 

IEA Parent will also receive Earn-Out Shares if certain EBITDA thresholds specified in the Merger Agreement are met in either or both of fiscal years 2018 and 2019, with a total of 9,000,000 shares of Common Stock being earnable for both such years in the aggregate. The Earn-Out Shares are to be issued contingent on future performance of the post combination company and, therefore, have been recorded as a liability at the market price on the Closing Date of $8.71 in the unaudited pro forma combined financial statements.

 

Included in the shares outstanding and weighted average shares outstanding as presented in the pro forma combined financial statements are 10,003,500 shares of Common Stock and 425,000 shares of Common Stock related to forfeited Founder shares that were issued to IEA Parent in connection with the Business Combination. The previously outstanding warrants of the Company to purchase a total of 7,730,000 shares of Common Stock at an exercise price of $11.50 per share continue to be outstanding after the Closing of the Business Combination.  Based upon the price of the Company’s Common Stock on the Closing Date, the Company’s warrants were not dilutive on a pro forma basis. The computation of diluted net income per share includes an aggregate of 9,000,000 additional shares of Common Stock that may be issued to IEA Parent upon the achievement of specified EBITDA thresholds and 3,496,500 additional shares of Common Stock that may be issued to IEA Parent upon conversion of the Series A Preferred Stock.

 



 

PRO FORMA COMBINED BALANCE SHEET

AS OF DECEMBER 31, 2017

(UNAUDITED)

(in thousands except share and per share amounts)

 

 

 

(A)
IEA Services

 

(B)
The Company

 

Pro Forma
Adjustments

 

Pro Forma

 

Assets

 

 

 

 

 

 

 

 

 

Current assets:

 

 

 

 

 

 

 

 

 

Cash and cash equivalents

 

$

4,877

 

$

370

 

$

70,983

(1)

 

 

 

 

 

 

 

 

(81,407

)(3)

 

 

 

 

 

 

 

 

(3,877

)(4)

 

 

 

 

 

 

 

 

4,773

(5)

 

 

 

 

 

 

 

 

(38,447

)(5)

 

 

 

 

 

 

 

 

43,000

(6)

 

 

 

 

 

 

 

 

 

 

$

272

 

Accounts receivable, net

 

60,981

 

 

 

60,981

 

Costs and estimated earnings in excess of billings on uncompleted contracts

 

18,613

 

 

 

18,613

 

Prepaid expenses and other current assets

 

862

 

21

 

 

883

 

Total current assets

 

85,333

 

391

 

(4,975

)

80,749

 

 

 

 

 

 

 

 

 

 

 

Cash held in trust account

 

 

151,058

 

(70,644

)(1)

 

 

 

 

 

 

 

 

(80,414

)(2)

 

Property, plant and equipment, net

 

30,905

 

 

 

30,905

 

Goodwill

 

3,020

 

 

 

3,020

 

Intangibles, net

 

69

 

 

 

69

 

Company-owned life insurance

 

4,250

 

 

 

4,250

 

Other assets

 

46

 

 

 

46

 

Deferred income taxes - long term

 

3,080

 

 

 

3,080

 

Total assets

 

$

126,703

 

$

151,449

 

$

(156,033

)

$

122,119

 

 

 

 

 

 

 

 

 

 

 

Liabilities and stockholders’ equity (deficit)

 

 

 

 

 

 

 

 

 

Current liabilities:

 

 

 

 

 

 

 

 

 

Accounts payable and accrued liabilities

 

$

70,030

 

$

149

 

$

(149

)(4)

 

 

 

 

 

 

 

 

7,358

(4)

$

77,388

 

Current portion of capital lease obligations

 

4,691

 

 

 

4,691

 

Billings in excess of costs and estimated earnings on uncompleted contracts

 

7,398

 

 

 

7,398

 

Franchise tax payable

 

 

86

 

(86

)(4)

 

Contingent consideration

 

 

 

78,390

(3)

78,390

 

Line of credit

 

33,674

 

 

(38,447

)(5)

 

 

 

 

 

 

 

 

4,773

(5)

 

Total current liabilities

 

115,793

 

235

 

51,839

 

167,867

 

 

 

 

 

 

 

 

 

 

 

Capital lease obligations, net of current maturities

 

15,899

 

 

 

15,899

 

Term loan facility

 

 

 

24,000

(6)

 

 

 

 

 

 

 

 

(1,716

)(4)

22,284

 

Revolving credit facility

 

 

 

19,000

(6)

19,000

 

Deferred compensation

 

5,030

 

 

 

5,030

 

Deferred underwriting expense

 

 

6,000

 

(6,000

)(4)

 

Total liabilities

 

136,722

 

6,235

 

87,123

 

230,080

 

 

 

 

 

 

 

 

 

 

 

Commitments and contingencies

 

 

 

 

 

 

 

 

 

 



 

 

 

(A)
IEA Services

 

(B)
The Company

 

Pro Forma
Adjustments

 

Pro Forma

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Common stock, shares subject to possible redemption

 

$

 

$

140,214

 

$

(140,214

)(2)

$

 

Series A Preferred Stock

 

 

 

34,965

(3)

34,965

 

 

 

 

 

 

 

 

 

 

 

Stockholders’ equity (deficit):

 

 

 

 

 

 

 

 

 

Common stock

 

 

1

 

(1

)(2)

 

 

 

 

 

 

 

 

1

(3)

1

 

Additional paid-in capital

 

 

 

59,801

(3)

 

 

 

 

 

 

 

 

(216,407

)(3)

 

 

 

 

 

 

 

 

105,033

(3)

 

 

 

 

 

 

 

 

(78,390

)(3)

 

 

 

 

 

 

 

 

(4,250

)(3)

 

 

 

 

 

 

 

 

4,250

(3)

 

 

 

 

 

 

 

 

11,743

(4)

 

 

 

 

 

 

 

 

118,220

(7)

 

 

 

 

 

 

 

 

 

 

 

Retained earnings (deficit)

 

(10,019

)

4,999

 

(4,999

)(3)

 

 

 

 

 

 

 

 

(15,027

)(4)

 

 

 

 

 

 

 

 

339

(1)

 

 

 

 

 

 

 

 

(118,220

)(7)

(142,927

)

Total stockholders’ equity (deficit)

 

(10,019

)

5,000

 

(137,907

)

(142,926

)

Total liabilities and stockholders’ equity (deficit)

 

$

126,703

 

$

151,449

 

$

(156,033

)

$

122,119

 

 


(A)        Derived from the audited consolidated balance sheet of IEA Services as of December 31, 2017.

 

(B)        Derived from the audited balance sheet of the Company as of December 31, 2017.

 

(1)          Represents the release of cash and cash equivalents from the Company’s Trust Account.

 

(2)          To reflect the cancellation of 7,967,165 shares of Common Stock as a result of stockholders electing to redeem their public shares, resulting in the payment of an aggregate of $80.4 million of cash from the Company’s Trust Account.

 

(3)          To reflect the payment of the Merger Consideration as follows: IEA Parent received approximately $81.4 million in cash, 10,003,500 shares of Common Stock, 425,000 shares of Common Stock related to forfeited Founder Shares and 34,965 shares of Series A Preferred Stock with an initial stated value of $35.0 million. Fair value of the Series A Preferred Stock will be determined when recorded and could change and could result in accretion through the income statement. The Earn-Out Shares are to be issued contingent on future performance of the post combination company and, therefore, have been recorded as a liability at the market price on the Closing Date of $8.71.

 

The adjustment also reflects the recapitalization of IEA Services through the contribution of all of its share capital to the post-combination company, the distribution of all balance sheet cash to Seller and the elimination of the historical retained earnings of the Company.

 

(4)          To reflect the transaction expenses of $25.8 million, consisting of a $6.0 million deferred underwriting fee payable and $19.8 million of fees and expenses incurred by IEA Services and the Company related to the Business Combination, including the expenses of legal, accounting and other professionals.  Of that aggregate amount, $3.9 million is reflected as paid in cash, $10.2 million is expected to be paid in ninety days ($2.7 million is already reflected in accrued at December 31, 2017) and $11.7 million is reflected as paid in the form of 1,169,968 shares of Common Stock.

 

(5)          To record repayment of IEA Services’ prior credit facility.

 

(6)          Reflects IEA Services’ borrowings of $19.0 million under the New Revolving Facility and $24.0 million under the New Term Loan Facility.

 

(7)          To reclassify the debit balance in additional paid-in capital to retained earnings (deficit).

 



 

PRO FORMA COMBINED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 2017
(in thousands except share and per share amounts)

(unaudited)

 

 

 

(A)
IEA Services

 

(B)
The Company

 

Pro Forma
Adjustments

 

Pro Forma

 

Revenue

 

$

454,949

 

$

 

 

$

454,949

 

Cost of revenue

 

388,928

 

 

 

388,928

 

Gross Profit

 

66,021

 

 

 

66,021

 

Selling, general and administrative

 

33,543

 

 

(3,357

)(3)

 

 

 

 

 

 

 

 

443

(4)

 

 

 

 

 

 

 

 

456

(7)

31,085

 

Formation and operating costs

 

 

606

 

(25

)(3)

581

 

Income (loss) from operations

 

32,478

 

(606

)

2,483

 

34,355

 

Other income (expense), net

 

 

 

 

 

 

 

 

 

Interest income (expense), net

 

(2,201

)

958

 

(958

)(1)

 

 

 

 

 

 

 

 

(1,290

)(5)

(3,491

)

Other income

 

111

 

 

 

111

 

Income (loss) before provision for income taxes

 

30,388

 

352

 

235

 

30,975

 

Benefit (provision) for income taxes

 

(13,863

)

(149

)

(87

)(2)

(14,099

)

Net income (loss)

 

16,525

 

203

 

148

 

16,876

 

 

 

 

 

 

 

 

 

 

 

Undeclared preferred stock dividend

 

 

 

(2,098

)(6)

(2,098

)

Net income (loss) attributable to common stockholders’

 

$

16,525

 

$

203

 

$

(1,950

)

$

14,778

 

 

 

 

 

 

 

 

 

 

 

Net income attributable to common stockholders

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic

 

 

 

$

(0.09

)

 

 

$

0.68

 

Diluted

 

 

 

$

(0.09

)

 

 

$

0.50

 

 

 

 

 

 

 

 

 

 

 

Weighted average shares outstanding - basic

 

 

 

5,231,815

 

16,345,835

(7)

21,577,650

 

Weighted average shares outstanding - diluted

 

 

 

5,231,815

 

28,842,335

(7)

34,074,150

 

 


(A)                                Derived from the audited consolidated statement of operations of IEA Services for the year ended December 31, 2017.

 

(B)                                Derived from the audited statement of operations of the Company for the year ended December 31, 2017.

 

(1)                                  Represents the elimination of interest income on marketable securities held in the Company’s Trust Account.

 

(2)                                  To record normalized income tax expense of 37.0% for pro forma financial presentation purposes.

 

(3)                                  Represents an adjustment to eliminate direct, incremental costs of the Business Combination, which are reflected in the historical financial statements of IEA Services and the Company in the amount of $3.4 million for the year ended December 31, 2017.

 

(4)                                  To record the elimination of depreciation expense relating to a building transferred to IEA Parent in connection with the Mergers and record lease expense relating to the lease of that building by the Company.

 



 

(5)                                  To record estimated interest expense relating to the borrowings under the New Revolving Credit Facility and New Term Loan Facility of $19.0 million and $24.0 million respectively to pay fees, expenses and other amounts associated with the Business Combination.

 

(6)                                  To record a six percent (6%) per annum undeclared dividend on the preferred stock.

 

(7)                                  To record directors and officer’s insurance.

 

As the Business Combination is being reflected as if it had occurred at the beginning of the period presented, the calculation of weighted average shares outstanding for basic and diluted net income (loss) per share assumes that the shares issued to IEA Parent in the Business Combination were outstanding for the entirety of the period presented. Weighted average shares of Common Stock outstanding — basic and diluted are calculated as follows:

 

 

 

Year Ended
December 31, 2017

 

Weighted average shares calculation — basic

 

 

 

Company weighted average shares outstanding

 

5,231,815

 

Company shares subject to redemption reclassified to equity

 

13,978,185

 

Cancellation of Company shares because of stockholders electing redemption

 

(7,967,165

)

Company shares issued pursuant to Advisor Commitment Agreements

 

469,968

 

Forfeited sponsor founder shares for warrants

 

(138,653

)

Forfeited sponsor founder shares for IEA Parent

 

(425,000

)

Company issued shares to IEA Parent for forfeited founder shares

 

425,000

 

Company shares issued to IEA Parent

 

10,003,500

 

Weighted average shares outstanding — basic

 

21,577,650

 

Percent of Common Stock owned by Company stockholders

 

51.7

%

Percent of Common Stock owned by IEA Parent

 

48.3

%

 

 

 

 

Weighted average shares calculation — diluted

 

 

 

IEA Parent

 

10,428,500

 

Earnout to IEA Parent (assumes fully earned)

 

9,000,000

 

Conversion of preferred stock by IEA Parent into Common Stock

 

3,496,500

 

Common Stock owned by Company stockholders

 

11,149,150

 

Weighted average shares outstanding — diluted

 

34,074,150

 

Percent of shares owned by Company stockholders

 

32.7

%

Percent of shares owned by IEA Parent

 

67.3

%

 

The computation of diluted net income per share includes an aggregate of 9,000,000 additional Shares of Common Stock that may be issued to IEA Parent upon the achievement of specified EBITDA thresholds and 3,496,500 additional shares of Common Stock that may be issued to Seller based upon conversion of preferred stock.  Based on the price of the Company’s Common Stock on the Closing Date of $8.71, the Company’s warrants are not dilutive on a pro forma basis. However, the potential dilutive impact will ultimately be recognized based on the actual market price on the date of measurement.