UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

 

Pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): December 3, 2020

 

STAR PEAK ENERGY TRANSITION CORP.

(Exact name of registrant as specified in its charter)

 

Delaware 001-39455 85-1972187
(State or other jurisdiction of   (Commission File Number) (I.R.S. Employer
incorporation or organization)   Identification Number)

 

1603 Orrington Avenue, 13th Floor    
Evanston, Illinois   60201
(Address of principal executive offices)   (Zip Code)

 

Registrant’s telephone number, including area code: (847) 905-4500

 

Not Applicable

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation to the registrant under any of the following provisions:

x Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

    Trading   Name of each exchange
Title of each class   Symbol(s)   on which registered
Units, each consisting of one share of   STPK.U   The New York Stock Exchange
Class A common stock, $0.0001 par        
value, and one-third of one warrant        
Shares of Class A common stock   STPK   The New York Stock Exchange
included as part of the units        
Warrants included as part of the   STPK WS   The New York Stock Exchange
units, each whole warrant        
exercisable for one share of Class A        
common stock at an exercise price of $11.50        

 

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. ¨

 

 

 

 

 

 

Item 1.01 Entry Into A Material Definitive Agreement.

 

On December 3, 2020, Stark Peak Energy Transition Corp., a Delaware corporation (“STPK”), entered into an Agreement and Plan of Merger (the “Merger Agreement”) with STPK Merger Sub Corp., a Delaware corporation and wholly-owned subsidiary of STPK (“Merger Sub”), and Stem, Inc., a Delaware corporation (“Stem”).

 

Pursuant to the terms of the Merger Agreement, a business combination between STPK and Stem will be effected through the merger of Merger Sub with and into Stem, with Stem surviving as a wholly-owned subsidiary of STPK (the “Merger”). Immediately prior to the effective time of the Merger (the “Effective Time”), each outstanding share of Stem common stock, including common stock held by prior owners of Stem preferred stock (“Existing Stem Common Stock”), will be cancelled and converted into the right to receive a pro rata portion of an aggregate amount of 65,000,000 shares of common stock of STPK, par value $0.0001 (“New Stem Common Stock”) on a fully diluted basis, inclusive of New Stem Common Stock allocated to the Stem Options (as defined below) and certain Stem Warrants that are outstanding as of the effective time of the Merger, pursuant to the terms and subject to the conditions set forth in the Merger Agreement, as more fully set forth under “Consideration” below.

 

Consideration

 

Under the terms of the Merger Agreement, immediately prior to the Effective Time, each outstanding share of Existing Stem Common Stock (other than shares owned by Stem as treasury stock and restricted shares), after giving effect to the Preferred Conversion, Convertible Notes Conversion and Warrant Exercise (as discussed below) will be cancelled and converted into the right to receive a pro rata portion of 65,000,000 shares of New Stem Common Stock, on a fully diluted basis, inclusive of New Stem Common Stock allocated to the Stem Options and certain Stem Warrants that are outstanding as of the effective time of the Merger. Each share of Existing Stem Common Stock owned by Stem as treasury stock will be canceled for no consideration.

 

Equity Conversions

 

In addition, as of the Effective Time, each option to purchase Existing Stem Common Stock (“Stem Option”), whether vested or unvested, that is outstanding immediately prior to the Effective Time will be assumed and converted into an option with respect to a number of shares of New Stem Common Stock in the manner set forth in the Merger Agreement, without any further action on the part of Stem, STPK or the holder thereof.

 

Immediately prior to the Effective Time, Stem’s outstanding preferred shares will convert into shares of Existing Stem Common Stock (the “Preferred Conversion”). Certain Pre-Closing Holders of convertible promissory notes issued by Stem (the “Convertible Promissory Notes”), have entered into that certain Amendment No. 3 to the Subordinated Convertible Promissory Notes, dated as of November 27, 2020, pursuant to which the requisite majority of noteholders have voted to amend the Convertible Promissory Notes to provide that all Convertible Promissory Notes then outstanding will, immediately prior to the Effective Time, be converted into Existing Stem Common Stock (the “Convertible Notes Conversion”).

 

In connection with Stem’s entry into the Merger Agreement, certain Pre-Closing Holders of Stem’s outstanding warrants will enter into Warrant Exercise Agreements, each substantially in the form attached to the Merger Agreement, pursuant to which all Stem warrants held by such Pre-Closing Holders will, immediately prior to the Effective Time, be exercised into Existing Stem Common Stock (the “Warrant Exercise”).

 

Representations and Warranties

 

The Merger Agreement contains customary representations and warranties of the parties thereto with respect to, among other things, (a) entity organization, formation and authority, (b) capital structure, (c) authorization to enter into the Merger Agreement, (d) licenses and permits, (e) taxes, (f) financial statements, (g) real property, (h) material contracts, (i) title to assets, (j) absence of changes, (k) employee matters, (l) compliance with laws, (m) litigation, (n) transactions with affiliates and (o) regulatory matters. The representations and warranties of the parties do not survive the Closing.

 

 

 

 

Covenants

 

The Merger Agreement includes covenants of Stem with respect to operation of the business prior to consummation of the Merger. The Merger Agreement also contains additional covenants of the parties, including, among others, (a) requirement to make appropriate filings pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“HSR”), (b) the use of reasonable best efforts to obtain the financing from the PIPE Investors (as defined below) (and for Stem to reasonably cooperate with STPK in connection thereto) and (c) preparation and filing of a registration statement on Form S-4 relating to the Merger and containing a proxy statement of STPK (the “Registration Statement / Proxy Statement”).

 

The Merger Agreement also contains exclusivity provisions prohibiting (a) Stem and its subsidiaries from initiating, soliciting, entertaining or otherwise encouraging an Acquisition Proposal (as defined in the Merger Agreement) (subject to limited exceptions specified therein) or entering into any contracts or agreements in connection therewith and (b) STPK from issuing an indication of interest, memorandum of understanding, letter of intent or other similar agreement with respect to a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination other that with respect to the transactions with Stem contemplated by the Merger Agreement.

 

New Incentive Plan

 

In connection with the Closing, STPK will adopt the New Incentive Plan (as defined in the Merger Agreement) subject to the receipt of STPK stockholder approval.

 

Conditions to Consummation of the Transactions

 

Consummation of the Transactions is generally subject to customary conditions of the respective parties, and conditions customary to special purpose acquisition companies, including (a) expiry or termination of all applicable waiting periods under HSR, (b) the absence of any law or governmental order, threatened or pending, preventing the consummation of the Merger, (c) the effectiveness of the Registration Statement / Proxy Statement, (d) the STPK Class A Shares to be issued in the Merger having been listed on NYSE upon the Closing, and otherwise satisfying the applicable listing requirements of NYSE, and (e) receipt of shareholder approval from shareholders of each of STPK and Stem for consummation of the Merger. In addition, Stem also has the right to not consummate the Merger in the event that (i) STPK has net tangible assets following the redemptions of less than $5,000,001 and (ii) the cash proceeds available in the trust account, together with the cash proceeds received at Closing in respect of the various financing transactions contemplated by the Merger Agreement (including from the PIPE Investors (discussed below)), is less than $200,000,000 (after giving effect to payments in respect of any redemptions by STPK’s stockholders in connection with the Merger).

 

Termination

 

The Merger Agreement may be terminated under certain customary and limited circumstances at any time prior to the Closing, including by mutual written consent or if the Transactions have not been consummated on or prior to June 3, 2021 (subject to extensions for delays as set forth in the Merger Agreement).

 

A copy of the Merger Agreement is filed with this Current Report on Form 8-K as Exhibit 2.1 and is incorporated herein by reference. The foregoing description of the Merger Agreement and the Transactions is not complete and is subject to, and qualified in its entirety by, reference to the actual agreement. The Merger Agreement contains representations, warranties and covenants that the respective parties made to each other as of the date of the Merger Agreement or other specific dates. The assertions embodied in those representations, warranties and covenants were made for purposes of the contract among the respective parties and are subject to important qualifications and limitations agreed to by the parties in connection with negotiating such agreement. In particular, the assertions embodied in the representations and warranties in the Merger Agreement were made as of a specified date, are modified or qualified by information in one or more confidential disclosure letters prepared in connection with the execution and delivery of the Merger Agreement, may be subject to a contractual standard of materiality different from what might be viewed as material to investors, or may have been used for the purpose of allocating risk between the parties. Accordingly, the representations and warranties in the Merger Agreement are not necessarily characterizations of the actual state of facts about STPK, Stem or the other parties at the time they were made or otherwise and should only be read in conjunction with the other information that STPK makes publicly available in reports, statements and other documents filed with the Securities and Exchange Commission (the “SEC”).

 

 

 

 

Support Agreements

 

In connection and concurrent with the execution of the Merger Agreement, certain holders representing approximately 71% of outstanding Stem Preferred Stock and the Existing Stem Common Stock (determined on an as-converted basis) (“Supporting Holders”) entered into support agreements (the “Support Agreements”) with STPK. Under the Support Agreements, the Supporting Holders agreed, among other things, to execute and deliver a written consent (a) adopting the Merger Agreement and the consummation of the transactions contemplated thereby, after the Registration Statement / Proxy Statement is declared effective by the SEC and (b) to effect a conversion of all of the preferred stock of Stem designated as “Senior Preferred Stock.”

 

A copy of the form of Support Agreement is filed with this Current Report on Form 8-K as Exhibit 10.1 and is incorporated herein by reference, and may include such changes as are negotiated between the parties thereto. The foregoing description of the Support Agreement is not complete and is subject to, and qualified in its entirety by, reference to the form thereof filed herewith.

 

Lock-up Agreements

 

In connection with the execution of the Merger Agreement, certain Pre-Closing Holders entered into certain lock-up agreements (the “Lock-up Agreements”) with STPK and Stem. Pursuant to the Lock-up Agreements certain holders of Restricted Securities (as defined therein) have agreed, among other things, to be subject to a lock-up period which will last from the Closing until the earlier of (i) the six month anniversary of the Closing and (ii) the date after the Closing on which STPK completes a liquidation, merger, capital stock exchange, reorganization or other similar transaction (the “Lock-up Period”) in respect of their Restricted Securities. During this lock-up period, the holders of Restricted Securities may not transfer any Restricted Securities or engage in any short sales or other hedging or derivative transactions, subject to certain limited exceptions.

 

A copy of the form of Lock-up Agreement is filed with this Current Report on Form 8-K as Exhibit 10.2 and is incorporated herein by reference, and may include such changes as are negotiated between the parties thereto. The foregoing description of the Lock-up Agreement is not complete and is subject to, and qualified in its entirety by, reference to the form thereof filed herewith.

 

PIPE Financing

 

On December 3, 2020, STPK entered into subscription agreements (each, a “Subscription Agreement”) with certain investors (the “PIPE Investors”) pursuant to which, among other things, the PIPE Investors have agreed to subscribe for and purchase, and STPK has agreed to issue and sell to the PIPE Investors, an aggregate of 22,500,000 shares of New Stem Common Stock for an aggregate purchase price of $225,000,000 on the date of Closing, on the terms and subject to the conditions set forth therein. The Subscription Agreement contains customary representations and warranties of STPK, on the one hand, and each PIPE Investor, on the other hand, and customary conditions to closing, including the consummation of the transactions contemplated by the Merger Agreement. The form of the Subscription Agreement is attached as Exhibit 10.3 hereto and is incorporated herein by reference. The foregoing description of the Subscription Agreement is not complete and is subject to, and qualified in its entirety by, reference to the form filed herewith.

 

Item 3.02 Unregistered Sales of Equity Securities.

 

The disclosure set forth above under the heading “PIPE Financing” in Item 1.01 of this Current Report is incorporated by reference into this Item 3.02. The New Stem Common Stock to be issued and sold to the PIPE Investors will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder.

 

 

 

 

Item 7.01 Regulation FD Disclosure.

 

On December 4, 2020, STPK issued a press release announcing the execution of the Merger Agreement. The press release is furnished herewith as Exhibit 99.1 and incorporated by reference herein.

 

Furnished herewith as Exhibit 99.2 hereto and incorporated into this Item 7.01 by reference is the investor presentation that was used by STPK in connection with the sale of New Stem Common Stock to the PIPE Investors.

 

Furnished herewith as Exhibit 99.3 is the transcript of a joint conference call held by STPK and Stem in connection with the announcement of their entry into the Merger Agreement.

 

The foregoing (including the information presented in Exhibits 99.1, 99.2 and 99.3) is being furnished pursuant to Item 7.01 and will not be deemed to be filed for purposes of Section 18 of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise be subject to the liabilities of that section, nor will it be deemed to be incorporated by reference in any filing under the Securities Act of 1933, as amended (the “Securities Act”) or the Exchange Act. The submission of the information set forth in this Item 7.01 shall not be deemed an admission as to the materiality of any information in this Item 7.01, including the information presented in Exhibit 99.1, Exhibit 99.2 and Exhibit 99.3, that is provided solely in connection with Regulation FD.

 

Additional Information

 

The proposed transactions will be submitted to stockholders of STPK for their consideration and approval at a special meeting of stockholders. In connection with the proposed transactions, STPK intends to file a Registration Statement on Form S-4 (the “Registration Statement”) with the SEC, which will include a preliminary and a definitive proxy statement / consent solicitation / prospectus to be distributed to STPK stockholders in connection with STPK’s solicitation for proxies for the vote by STPK’s stockholders in connection with the proposed transactions and other matters as described in such Registration Statement, as well as the prospectus relating to the offer of the securities to be issued to Stem’s stockholders in connection with the completion of the Merger. After the Registration Statement has been filed and declared effective, STPK will mail a definitive proxy statement / consent solicitation / prospectus and other relevant documents to its stockholders as of the record date established for voting on the proposed transactions. Investors and security holders of STPK are advised to read, when available, the preliminary proxy statement, and any amendments thereto, and the definitive proxy statement in connection with STPK’s solicitation of proxies for its special meeting of stockholders to be held to approve the proposed transaction because the proxy statement / consent solicitation / prospectus will contain important information about the proposed transaction and the parties to the proposed transaction. Stockholders will also be able to obtain copies of the proxy statement / consent solicitation / prospectus, without charge, once available, at the SEC’s website at www.sec.gov or by directing a request to: Star Peak Energy Transition Corp., 1603 Orrington Avenue, 13th Floor, Evanston, Illinois 60201.

 

This Current Report on Form 8-K does not constitute an offer to sell or the solicitation of an offer to buy any securities, or a solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act.

 

INVESTMENT IN ANY SECURITIES DESCRIBED HEREIN HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SEC OR ANY OTHER REGULATORY AUTHORITY NOR HAS ANY AUTHORITY PASSED UPON OR ENDORSED THE MERITS OF THE OFFERING OR THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED HEREIN. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.

 

 

 

 

Participants in the Solicitation

 

STPK and Stem and their respective directors, executive officers, other members of management, and employees, under SEC rules, may be deemed to be participants in the solicitation of proxies of STPK’s stockholders in connection with the proposed transaction. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of STPK’s stockholders in connection with the proposed business combination will be set forth in STPK’s registration statement / consent solicitation / proxy statement when it is filed with the SEC. Investors and security holders may obtain more detailed information regarding the names and interests in the proposed transaction of STPK’s directors and officers in STPK’s filings with the SEC and such information will also be in the Registration Statement to be filed with the SEC by STPK, which will include the proxy statement / consent solicitation / prospectus of STPK for the proposed transaction.

 

Forward-Looking Statements

 

Certain statements in this Current Report on Form 8-K may be considered “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 generally relate to future events or STPK’s or Stem’s future financial or operating performance. For example, projections of future revenue and adjusted EBITDA and other metrics are forward-looking statements. In some cases, you can identify forward-looking statements by terminology such as “may,” “should,” “expect,” “intend,” “will,” “estimate,” “anticipate,” “believe,” “predict,” “or“ or the negatives of these terms or variations of them or similar terminology. Such forward-looking statements are subject to risks, uncertainties, and other factors which could cause actual results to differ materially from those expressed or implied by such forward-looking statements. These forward-looking statements are based upon estimates and assumptions that, while considered reasonable by STPK and its management, and Stem and its management, as the case may be, are inherently uncertain factors that may cause actual results to differ materially from current expectations include, but are not limited to: 1) the occurrence of any event, change or other circumstances that could give rise to the termination of the definitive merger agreement with respect to the business combination; 2) the outcome of any legal proceedings that may be instituted against STPK, the combined company or others following the announcement of the business combination and any definitive agreements with respect thereto; 3) the inability to complete the business combination due to the failure to obtain approval of the stockholders of STPK, to obtain financing to complete the business combination or to satisfy other conditions to closing; 4) changes to the proposed structure of the business combination that may be required or appropriate as a result of applicable laws or regulations or as a condition to obtaining regulatory approval of the business combination; 5) the ability to meet the NYSE’s listing standards following the consummation of the business combination; 6) the risk that the business combination disrupts current plans and operations of Stem as a result of the announcement and consummation of the business combination; 7) the ability to recognize the anticipated benefits of the business combination, which may be affected by, among other things, competition, the ability of the combined company to grow and manage growth profitably, maintain relationships with customers and suppliers and retain its management and key employees; 8) costs related to the business combination; 9) changes in applicable laws or regulations; 10) the possibility that Stem or the combined company may be adversely affected by other economic, business and/or competitive factors; 11) Stem’s estimates of its financial performance; 12) the impact of the novel coronavirus disease pandemic and its effect on business and financial conditions; and 13) other risks and uncertainties set forth in the section entitled “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements” in STPK’s Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2020. Nothing in this press release should be regarded as a representation by any person that the forward-looking statements set forth herein will be achieved or that any of the contemplated results of such forward looking statements will be achieved. There may be additional risks that STPK and Stem presently do not know or that STPK and Stem currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. You should not place undue reliance on forward-looking statements, which speak only as of the date they are made. Neither STPK nor Stem undertakes any duty to update these forward-looking statements, except as otherwise required by law.

 

 

 

 

Item 9.01. Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit Number   Description
2.1†   Agreement and Plan of Merger, dated as of December 3, 2020, by and among Star Peak Energy Transition Corp., STPK Merger Sub Corp., and Stem, Inc.
10.1   Form of Support Agreement
10.2   Form of Lock-up Agreement
10.3   Form of Subscription Agreement
99.1   Press Release, dated December 4, 2020
99.2   Investor Presentation, dated December 4, 2020
99.3   Conference Call Transcript

 

Certain of the exhibits and schedules to this Exhibit have been omitted in accordance with Regulation S-K Item 601(b)(2). The Registrant agrees to furnish supplementally a copy of all omitted exhibits and schedules to the Securities and Exchange Commission upon its request.

 

 

 

 

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: December 4, 2020

 

  STAR PEAK ENERGY TRANSITION CORP.
   
By: /s/ Eric Scheyer
Name: Eric Scheyer
Title: Chief Executive Officer

 

 

 

 

Exhibit 2.1

 

Execution Version

 

AGREEMENT AND PLAN OF MERGER

 

BY AND AMONG

 

STAR PEAK ENERGY TRANSITION CORP.,

 

STPK MERGER SUB CORP.,

 

AND,

 

STEM, INC.

 

DATED AS OF DECEMBER 3, 2020

 

 

 

TABLE OF CONTENTS  
       
      Page
     
Article 1 CERTAIN DEFINITIONS 4
  Section 1.1   Definitions 4
   
Article 2 PURCHASE AND SALE 22
  Section 2.1   Merger; Closing 22
  Section 2.2   Effect of the Merger; Allocation of Total Merger Consideration 23
  Section 2.3   Deposit of STPK Common Shares; Other Closing Date Payments 26
  Section 2.4   Exchange Agent 27
  Section 2.5   Withholding 27
   
Article 3 REPRESENTATIONS AND WARRANTIES RELATING TO THE GROUP COMPANIES 28
  Section 3.1   Organization and Qualification 28
  Section 3.2   Capitalization of the Group Companies 28
  Section 3.3   Authority 30
  Section 3.4   Financial Statements; No Undisclosed Liabilities 30
  Section 3.5   Consents and Requisite Governmental Approvals; No Violations 32
  Section 3.6   Permits 32
  Section 3.7   Material Contracts 33
  Section 3.8   Absence of Changes 35
  Section 3.9   Litigation 35
  Section 3.10   Compliance with Applicable Law 36
  Section 3.11   Employee Plans 36
  Section 3.12   Environmental Matters 38
  Section 3.13   Intellectual Property 39
  Section 3.14   Labor Matters 40
  Section 3.15   Insurance 42
  Section 3.16   Tax Matters 42
  Section 3.17   Brokers 44
  Section 3.18   Real and Personal Property 44
  Section 3.19   Transactions with Affiliates 45
  Section 3.20   Material Customers and Suppliers 46
  Section 3.21   Data Privacy and Security Requirements 46
  Section 3.22   Compliance with International Trade & Anti-Corruption Laws 47
  Section 3.23   Information Supplied 47
  Section 3.24   Investigation; No Other Representations 48
  Section 3.25   EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES 48
   
Article 4 REPRESENTATIONS AND WARRANTIES RELATING TO THE STPK PARTIES 49
  Section 4.1   Organization and Qualification 49
  Section 4.2   Authority 49
  Section 4.3   Consents and Requisite Government Approvals; No Violations 50
  Section 4.4   Brokers 50

 

i

 

 

  Section 4.5   Financing 50
  Section 4.6   Information Supplied 51
  Section 4.7   Capitalization of the STPK Parties 51
  Section 4.8   SEC Filings 52
  Section 4.9   Trust Account 53
  Section 4.10   Litigation 53
  Section 4.11   Compliance with Applicable Law; Permits 53
  Section 4.12   Internal Controls; Listing; Financial Statements 54
  Section 4.13   No Undisclosed Liabilities 55
  Section 4.14   Tax Matters 55
  Section 4.15   Business Activities 57
  Section 4.16   Board Approval; Stockholder Vote 57
  Section 4.17   Certain Contracts 57
  Section 4.18   Investigation; No Other Representations 58
  Section 4.19   EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES 58
   
Article 5 COVENANTS 58
  Section 5.1   Conduct of Business of the Group Companies 58
  Section 5.2   Efforts to Consummate 63
  Section 5.3   Access to Information 64
  Section 5.4   Public Announcements 65
  Section 5.5   Indemnification; Directors’ and Officers’ Insurance 66
  Section 5.6   Tax Matters 68
  Section 5.7   Financing 69
  Section 5.8   Exclusive Dealing 70
  Section 5.9   Preparation of Registration Statement / Proxy Statement 72
  Section 5.10   STPK Party Approvals 74
  Section 5.11   Pre-Closing Holder Related Party Transactions 75
  Section 5.12   No Trading 75
  Section 5.13   Conduct of Business of STPK 75
  Section 5.14   Trust Account 77
  Section 5.15   Stockholder Written Consent 77
  Section 5.16   PCAOB Financials 77
  Section 5.17   Post-Closing Directors and Officers 78
  Section 5.18   Certain Other Covenants 79
  Section 5.19   Section 280G 80
  Section 5.20   Debt Payoff Letters 80
  Section 5.21   Company Warrants 81
  Section 5.22   Lock-Up Agreements 81
   
Article 6 CONDITIONS TO CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT 81
  Section 6.1   Conditions to the Obligations of the Parties 81
  Section 6.2   Other Conditions to the Obligations of the STPK Parties 82
  Section 6.3   Other Conditions to the Obligations of the Company 83
  Section 6.4   Frustration of Conditions 85

 

ii

 

 

Article 7 TERMINATION 85
  Section 7.1   Termination 85
  Section 7.2   Effect of Termination 86
   
Article 8 MISCELLANEOUS 86
  Section 8.1   Survival 86
  Section 8.2   Entire Agreement; Assignment 87
  Section 8.3   Amendment 87
  Section 8.4   Notices 87
  Section 8.5   Governing Law 88
  Section 8.6   Fees and Expenses 88
  Section 8.7   Construction; Interpretation 89
  Section 8.8   Exhibits and Schedules 89
  Section 8.9   Parties in Interest 90
  Section 8.10   Severability 90
  Section 8.11   Counterparts; Electronic Signatures 90
  Section 8.12   Knowledge of Company; Knowledge of STPK 90
  Section 8.13   No Recourse 91
  Section 8.14   Extension; Waiver 91
  Section 8.15   Waiver of Jury Trial 91
  Section 8.16   Jurisdiction 92
  Section 8.17   Remedies 92
  Section 8.18   Legal Representation 93
  Section 8.19   Trust Account Waiver 94

 

EXHIBITS  
Exhibit A Form of Support Agreement  
Exhibit B Form of Lock-Up Agreement  
Exhibit C Form of Investor Rights Agreement  
Exhibit D Form of Written Consent — Pre-Closing Holders  
Exhibit E Form of Warrant Exercise Agreements  
Exhibit F Form of Letter of Transmittal  
Exhibit G Form of Certificate of Merger  
Exhibit H Executed Subscription Agreements  
Exhibit I Form of New Incentive Plan  
Exhibit J Form of Governing Documents of STPK  

 

iii

 

 

AGREEMENT AND PLAN OF MERGER

 

This AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as of December 3, 2020, is made by and among Star Peak Energy Transition Corp. (f/k/a Star Peak Energy Acquisition Corp.), a Delaware corporation (“STPK”), STPK Merger Sub Corp., a Delaware corporation, a wholly-owned Subsidiary of STPK (“Merger Sub”) and Stem, Inc., a Delaware corporation (the “Company”). STPK, Merger Sub, and the Company shall be referred to herein from time to time collectively as the “Parties”. Capitalized terms used but not otherwise defined herein have the meanings set forth in Section 1.1.

 

WHEREAS, (a) STPK is a blank check company incorporated as a Delaware corporation on October 29, 2018 and incorporated for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses and (b) Merger Sub is, as of the date hereof, a wholly-owned Subsidiary of STPK that was formed for purposes of consummating the transactions contemplated by this Agreement and the Ancillary Documents;

 

WHEREAS, pursuant to the Governing Documents of STPK, STPK is required to provide an opportunity for its shareholders to have their outstanding STPK Class A Shares redeemed on the terms and subject to the conditions set forth therein in connection with obtaining the STPK Shareholder Approval;

 

WHEREAS, subject to the terms and conditions of this Agreement, and in accordance with Section 251 of the Delaware General Corporation Law, as amended (the “DGCL”), at the Closing, Merger Sub will merge with and into the Company, the separate corporate existence of Merger Sub will cease, and the Company will be the surviving company and a wholly-owned Subsidiary of STPK, and, upon the Effective Time (as defined below) of the Merger (as defined below), all shares of Company Stock (as defined below) will be converted into the right to receive the consideration set forth in Article 2 of this Agreement;

 

WHEREAS, concurrently with the execution of this Agreement, certain Pre-Closing Holders are entering into a Support Agreement with STPK, substantially in the form attached hereto as Exhibit A (the “Support Agreement”);

 

WHEREAS, concurrently with the execution of this Agreement, certain Pre-Closing Holders are entering into certain Lock-Up Agreements with STPK and the Company, substantially in the form attached hereto as Exhibit B (each, a “Lock-Up Agreement”);

 

WHEREAS, concurrently with the execution of this Agreement, STPK is entering into subscription agreements (collectively, the “Subscription Agreements”), with certain investors (collectively, the “PIPE Investors”) pursuant to which, among other things, the PIPE Investors have agreed to subscribe for and purchase, and STPK has agreed to issue and sell to the PIPE Investors, STPK Class A Shares, on the terms and subject to the conditions set forth in the Subscription Agreements (such equity financing hereinafter referred to as the “PIPE Financing”);

 

WHEREAS, in connection with the transactions contemplated by this Agreement, STPK shall file a registration statement on Form S-4 relating to the transactions contemplated by this Agreement and the Ancillary Documents and containing a proxy statement of STPK (the “Registration Statement / Proxy Statement”) and it is a condition to the consummation of the transactions contemplated by this Agreement that the STPK Shareholder Approval has been obtained;

 

  1  

 

 

WHEREAS, as of the date of this Agreement and immediately prior to giving effect to the transactions contemplated by this Agreement, Sponsor owns, and shall own, 9,509,626 STPK Class B Shares and 7,181,134 STPK Warrants;

 

WHEREAS, at the Closing, STPK, Sponsor, and certain Pre-Closing Holders shall enter into an Investor Rights Agreement, substantially in the form attached hereto as Exhibit C (the “Investor Rights Agreement”);

 

WHEREAS, Sponsor has delivered to the Company an executed Waiver Agreement, dated as of the date hereof (the “Waiver Agreement”), whereby in connection with the consummation of the transactions contemplated hereby, Sponsor, on behalf of itself and the other holders of STPK Class B Shares, has agreed to waive certain of their anti-dilution and conversion rights;

 

WHEREAS, the board of directors of STPK has unanimously (a) approved this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby (including the Merger), (b) determined that this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby (including the Merger) are in the best interests of STPK and the stockholders of STPK, and declared it advisable to enter into this Agreement, the Ancillary Documents to which STPK is or will be a party and the transactions contemplated hereby and thereby (including the Merger) and (c) recommended, among other things, acceptance of the transactions contemplated by this Agreement (including the Merger) and the Ancillary Documents and the approval of this Agreement and the Ancillary Documents by the holders of STPK Shares entitled to vote thereon;

 

WHEREAS, the board of directors of the Company unanimously (the “Company Board”) has (a) approved this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby (including the Merger), (b) determined that this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby (including the Merger) are in the best interests of the Company and the holders of Company Stock entitled to vote thereon, and declared it advisable to enter into this Agreement, the Ancillary Documents to which the Company is or will be a party and the transactions contemplated hereby and thereby (including the Merger) and (c) recommended, among other things, the approval of this Agreement and the Merger by the holders of Company Stock entitled to vote thereon;

 

WHEREAS, the board of directors of Merger Sub has unanimously (a) approved this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby (including the Merger), (b) determined that this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby (including the Merger) is in the best interests of Merger Sub and STPK, in its capacity as the sole stockholder of Merger Sub, and declared it advisable to enter into this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby (including the Merger) and (c) recommended, among other things, the approval of this Agreement and the Ancillary Documents and acceptance of the transactions contemplated hereby and thereby (including the Merger) by STPK, in its capacity as the sole stockholder of Merger Sub;

 

  2  

 

 

WHEREAS, in connection with the Company’s entry into this Agreement, certain Pre-Closing Holders who, collectively, constitute at least the Requisite Threshold have agreed in the Support Agreement to deliver an irrevocable written consent in the form set forth on Exhibit D (the “Written Consent”) in order to (i) effect a conversion of all of the Senior Preferred Stock to Company Common Stock in accordance with Article V, Section 4(b) of the Ninth Amended and Restated Certificate of Incorporation of Stem, Inc., as amended (the “Company Charter”), with the effective time for such conversion to be conditioned upon the satisfaction of the conditions set forth in Article 6 (other than those which will be satisfied or waived as of the Closing) or waiver of such conditions in accordance therewith and will occur on the Closing Date but prior to the Effective Time (the “Senior Preferred Conversion”); and (ii) deliver the Required Company Shareholder Approval;

 

WHEREAS, pursuant to and in accordance with Section 5(c) of Article V of the Company Charter, immediately prior to the Effective Time, all of the outstanding shares of the Company’s Series 1 Preferred Stock shall be converted into Company Common Stock (the “Series 1 Preferred Conversion”, and together with the Senior Preferred Conversion, the “Company Preferred Conversion”);

 

WHEREAS, in connection with the Company’s entry into this Agreement, certain Pre-Closing Holders of Convertible Promissory Notes issued by the Company have entered into that certain Amendment No. 3 to Subordinated Convertible Promissory Notes, dated as of December 3, 2020 (the “Convertible Notes Amendment”), pursuant to which all Convertible Promissory Notes then outstanding shall, immediately prior to the Effective Time, be converted into Company Stock in accordance with the terms thereof (the “Convertible Notes Conversion”);

 

WHEREAS, in connection with the Company’s entry into this Agreement, certain Pre-Closing Holders of Company Warrants have entered into Warrant Exercise Agreements, each substantially in the form attached hereto as Exhibit E (the “Warrant Exercise Agreements”), pursuant to which all Company Warrants held by such Pre-Closing Holders shall, immediately prior to the Effective Time, be exercised into Company Stock in accordance with the terms thereof (such exercise by such Pre-Closing Holders, together with the exercise prior to the Closing of any other Company Warrants, whether pursuant to a Warrant Exercise Agreement or otherwise, collectively, the “Company Warrant Exercise”); and

 

WHEREAS, each of the Parties intends for U.S. federal income Tax purposes that (a) this Agreement constitutes, and hereby is, adopted as a “plan of reorganization” for the purposes of Section 368 of the Code and Treasury Regulations Sections 1.368-2(g) and 1.368-3(a) and (b) the Merger shall constitute a transaction that qualifies as a “reorganization” within the meaning of Section 368(a) of the Code (the “Intended Tax Treatment”).

 

NOW, THEREFORE, in consideration of the premises and the mutual promises set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, each intending to be legally bound, hereby agree as follows:

 

  3  

 

 

Article 1
CERTAIN DEFINITIONS

 

Section 1.1      Definitions. As used in this Agreement, the following terms have the respective meanings set forth below.

 

280G Approval” has the meaning set forth in Section 5.19.

 

Accounting Principles” means GAAP as in effect at the date of the financial statement to which it refers or if there is no such financial statement, then as of the Closing Date, using and applying the same accounting principles, practices, procedures, policies and methods (with consistent classifications, judgments, elections, inclusions, exclusions and valuation and estimation methodologies) used and applied by the Group Companies in the preparation of the latest audited Financial Statements.

 

Acquisition Proposal” has the meaning set forth in Section 5.8(a).

 

Additional STPK SEC Reports” has the meaning set forth in Section 4.8.

 

Affiliate” means, with respect to any Person, any other Person who directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlled” and “controlling” have meanings correlative thereto.

 

Affiliated Group” means an affiliated group as defined in Section 1504 of the Code (or any analogous combined, consolidated or unitary group defined under state, local or non-U.S. Law relating to income Tax).

 

Aggregate Option Price” means the aggregate exercise price of all Company Options, whether vested or unvested, outstanding immediately prior to the Effective Time.

 

Aggregate STPK Transaction Proceeds” means an amount equal to the sum of (a) the cash proceeds to be received by STPK at Closing from the Trust Account in connection with the transactions contemplated hereby (which proceeds shall, for the avoidance of doubt, be determined (i) after giving effect to the STPK Shareholder Redemption and (ii) prior to the payment of, and without regard to, any STPK Transaction Expenses or Working Capital Loans) and (b) the cash proceeds to be received by STPK at the closing of the PIPE Financing (or any Alternative PIPE Financing or any other additional third party financing pursuant to Section 5.7(b)) pursuant to the terms thereof.

 

Agreement” has the meaning set forth in the introductory paragraph to this Agreement.

 

Allocation Schedule” has the meaning set forth in Section 2.2(e).

 

Alternative PIPE Financing” has the meaning set forth in Section 5.7(b).

 

  4  

 

 

Alternative Subscription Agreement” has the meaning set forth in Section 5.7(b).

 

Ancillary Documents” means this Agreement, the Subscription Agreement, the Investor Rights Agreement, each Lock-Up Agreement, the Support Agreement, the Waiver Agreement, each Warrant Exercise Agreement and each other agreement, document, instrument and/or certificate contemplated by this Agreement to be executed in connection with the transactions contemplated hereby.

 

Anti-Corruption Laws” means, collectively: (a) the U.S. Foreign Corrupt Practices Act (FCPA); (b) the UK Bribery Act 2010; and (c) any other anti-bribery or anti-corruption Laws related to combatting bribery, corruption and money laundering.

 

Audited Financials” has the meaning set forth in Section 3.4(a)(i).

 

Business” means the business of providing energy storage Software and integrated hardware and services related thereto, and all other businesses currently conducted by any Group Company.

 

Business Combination Proposal” has the meaning set forth in Section 5.10.

 

Business Data” means all business information and all Personal Data (whether of employees, contractors, consultants, customers, consumers, or other Persons and whether in electronic or any other form or medium) that is accessed, collected, used, processed, stored, shared, distributed, transferred, disclosed, destroyed, or disposed of by any of the Company IT Systems or otherwise in connection with the business of the Group Companies.

 

Business Day” means a day, other than a Saturday or Sunday, on which commercial banks in Chicago, Illinois or San Francisco, California are open for the general transaction of business.

 

Business Intellectual Property” has the meaning set forth in Section 3.13(b).

 

CARES Act” means the Coronavirus Aid, Relief and Economic Security Act, as signed into Law by the President of the United States on March 27, 2020.

 

Cash Funding Amount” has the meaning set forth in Section 2.3(a).

 

CBA” has the meaning set forth in Section 3.14(e).

 

Certificate of Merger” has the meaning set forth in Section 2.1(a).

 

Certificates” has the meaning set forth in Section 2.3(b).

 

Closing” has the meaning set forth in Section 2.1(c).

 

Closing Date” has the meaning set forth in Section 2.1(c).

 

Closing Filing” has the meaning set forth in Section 5.4(b).

 

Closing Press Release” has the meaning set forth in Section 5.4(b).

 

  5  

 

 

COBRA” means Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the Code and any similar state Law.

 

Code” means the Internal Revenue Code of 1986, as amended.

 

Company” has the meaning set forth in the introductory paragraph to this Agreement.

 

Company Change in Recommendation” has the meaning set forth in Section 5.8(a).

 

Company Charter” has the meaning set forth in the recitals.

 

Company Common Share” has the meaning set forth in Section 2.2(a).

 

Company Common Stock” means the common stock of the Company, $0.01 par value per share.

 

Company Common Stock Warrants” means the warrants issued by the Company to purchase Company Common Stock.

 

Company D&O Tail Policy” has the meaning set forth in Section 5.5(c).

 

Company Directors” has the meaning set forth in Section 5.17(c).

 

Company Equity Plan” means the Company’s 2009 Equity Incentive Plan, and each other plan that provides for the award of rights of any kind to receive Equity Securities of any Group Company or benefits measured in whole or in part by reference to Equity Securities of any Group Company.

 

Company Expenses” means, without duplication, the aggregate amount payable by any Group Company that is unpaid as of any time of determination, for (a) out-of-pocket fees, costs and expenses incurred in connection with the negotiation, preparation or execution of the letter of intent between STPK and the Company and this Agreement or any Ancillary Documents and the consummation of the transactions contemplated hereby and thereby (including the fees and expenses of outside legal counsel, accountants, advisors, investment bankers, brokers, consultants or other agents), (b) the cost of the Company D&O Tail Policy to be obtained pursuant to Section 5.5(c), (c) the costs and expenses of any consultant or advisor engaged to prepare a compensation study in connection with implementation of the New Incentive Plan, (d) 50% of the filing fee to be paid for the Registration Statement / Proxy Statement, (e) the filing fee to be paid pursuant to the HSR Act, and (f) any other fees, expenses, commissions or other amounts that are expressly allocated to any Group Company pursuant to this Agreement or any Ancillary Document, in each case as of such determination time.

 

Company Fundamental Representations” means the representations and warranties set forth in Sections 3.1(a) and (b) (Organization and Qualification), 3.2(a) through (f) (Capitalization of the Company), 3.3 (Authority), 3.5(i) and (iii) (No Violations) and 3.17 (Brokers).

 

Company IT Systems” means all computer systems, Software (including Company Products) and hardware, communication systems, servers, and all other information technology or network equipment and related items of automated, computerized or Software systems, and related documentation, in each case, currently used by or for a Group Company in the Business and owned, licensed or leased by, or otherwise provided under contract to, a Group Company.

 

  6  

 

 

Company Material Adverse Effect” means any change, event, effect, development or occurrence that, individually or in the aggregate with any other change, event, effect, development or occurrence, has had or would reasonably be expected to have a material adverse effect on (a) the condition (financial or otherwise), business, assets, or results of operations of the Group Companies, taken as a whole, or (b) the ability of any Group Company to timely perform any of its or their respective covenants or obligations under this Agreement or any Ancillary Document or to consummate the transactions contemplated hereby or thereby; provided, however, that, in the case of clause (a), none of the following shall be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably expected to occur: any adverse change, event, effect, development or occurrence arising from or related to (i) conditions affecting the United States or the global economy generally, (ii) any national or international political or social conditions in the United States or any other country, (iii) changes in conditions of the financial, banking or securities markets generally, (iv) changes in any applicable Laws or GAAP first publicly announced or enacted after the date hereof, (v) any change, event, effect, development or occurrence that is generally applicable to the industries or markets in which the Group Companies operate, (vi) the public announcement or pendency or consummation of the transactions contemplated by this Agreement (provided that the exception in this clause (vi) shall not apply to the representations and warranties set forth in Section 3.5 to the extent that its purpose is to address the consequences resulting from the public announcement or pendency or consummation of the transactions contemplated by this Agreement or the condition set forth in Section 6.2(a) to the extent it relates to such representations and warranties), (vii) the taking of any action expressly required to be taken by the terms and conditions of this Agreement by the Company (other than as set forth in Section 5.1(a)), (viii) any failure, in and of itself, by the Group Companies to meet any internal or published projections, forecasts, estimates or predictions in respect of revenues, earnings or other financial or operating metrics for any period ending before, on or after the date of this Agreement (although the underlying facts and circumstances resulting in such failure may be taken into account to the extent not otherwise excluded from this definition pursuant to clauses (i) through (vii)), (ix) the effects of any hurricane, tornado, flood, earthquake, tsunami, natural disaster, act of God, epidemic, disease outbreak, pandemic (including, for the avoidance of doubt, any effect resulting from, arising in connection with or otherwise related to COVID-19), public health emergency, widespread occurrence of infectious disease or other comparable events, or (x) any loss of customers, suppliers, orders, Contracts or other business relationships resulting from, or in connection with, COVID-19; provided, however, that any change, event, effect, development or occurrence resulting from a matter described in any of the foregoing clauses (i) through (v) and clause (x) may be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably likely to occur to the extent such change, event, effect, development or occurrence has a disproportionate effect on the Group Companies, taken as a whole, relative to other participants operating in the industries or markets in the geographies in which the Group Companies operate.

 

Company Option” means any option to purchase Company Common Stock granted pursuant to a Company Equity Plan.

 

  7  

 

 

Company Outstanding Shares” means the total number of shares of Company Common Stock outstanding immediately prior to the Effective Time, expressed on a fully-diluted and as-converted to Company Common Stock basis, and including, without duplication, (i) the number of shares of Company Common Stock issued or issuable upon the Company Preferred Conversion, the Convertible Notes Conversion and the Company Warrant Exercise (assuming that all Company Warrants have been exercised) and (ii) the aggregate number of Option Shares issuable upon the exercise of all Company Options, whether vested or unvested, outstanding immediately prior to the Effective Time in accordance with their respective terms.

 

Company Owned Intellectual Property” means all Intellectual Property owned or purported to be owned by any Group Company.

 

Company Plan” means each Employee Benefit Plan that is maintained, sponsored or contributed to or required to be contributed to by the Company or any of its Subsidiaries or under or with respect to which the Company or any of its Subsidiaries has any liability, including on account of an ERISA Affiliate, but in each case other than a PEO Plan.

 

Company Preferred Conversion” has the meaning set forth in the recitals.

 

Company Preferred Stock” means the preferred stock, par value $0.00001 per share, of the Company, and consisting of the Senior Preferred Stock and the Series 1 Preferred Stock.

 

Company Preferred Stock Warrants” means the warrants issued by the Company to purchase Company Preferred Stock.

 

Company Products” means all Software and other products relating to the Business from which any of the Group Companies are currently deriving revenue from the sale, license, maintenance or other provision thereof.

 

Company Registered Intellectual Property” means all of the following owned by, or filed by or in the name of, any Group Company: issued Patents, pending Patent applications, registered Marks, pending applications for registration of Marks, registered copyrights, and pending applications for registration of copyrights.

 

Company Schedules” means the disclosure schedules to this Agreement delivered to STPK by the Company on the date hereof.

 

Company Shareholder Agreements” means each of Contracts set forth on Section 1.1(a) of the Company Schedules.

 

Company Stock” means the Company Common Stock and the Company Preferred Stock.

 

Company Stockholder Package” has the meaning set forth in Section 5.15.

 

Company Warrants” means the Company Common Stock Warrants and the Company Preferred Stock Warrants.

 

Company Warrant Exercise” has the meaning set forth in the recitals.

 

  8  

 

 

Confidentiality Agreement” means that certain Confidentiality Agreement, dated August 24, 2020, by and between STPK and the Company.

 

Consent” means any notice, authorization, qualification, registration, filing, notification, waiver, Order, consent or approval to be obtained from, filed with or delivered to, a Governmental Entity or other Person.

 

Constituent Corporations” has the meaning set forth in Section 2.1(a).

 

Contracts” means any agreement, contract, license, lease, obligation, undertaking or other commitment, understanding or arrangement, whether written or oral, that is legally binding upon a Person or any of his, her, or its properties or assets.

 

Convertible Notes Amendment” has the meaning set forth in the recitals.

 

Convertible Notes Conversion” has the meaning set forth in the recitals.

 

Convertible Promissory Notes” means all convertible promissory notes of the Group Companies, including those issued by the Company to various holders pursuant to that certain Convertible Note and Warrant Purchase Agreement, dated as of June 13, 2019, as amended, amended and restated, refinanced, renewed, replaced, extended, supplemented, or otherwise modified from time to time, including as amended and restated by that certain Amended and Restated Convertible Note and Warrant Purchase Agreement, dated as of July 11, 2019.

 

COVID-19” means the COVID-19 or SARS-CoV-2 virus (or any mutation or variation thereof or related health condition).

 

COVID-19 Changes” has the meaning set forth in Section 5.1(a).

 

COVID-19 Measures” means any quarantine, “shelter in place”, “stay at home”, workforce reduction, social distancing, shut down, closure or sequester Order, guideline, recommendation or Law, or any other applicable Laws, guidelines or recommendations by any Governmental Entity in connection with or in response to COVID-19.

 

Credit Agreement” means the Credit Agreement, dated as of May 15, 2020, by and among the Company, as borrower, Ares Climate Infrastructure Partners, L.P., as administrative agent, and the lenders from time to time party thereto, with an original principal balance of $25,000,000, as amended, amended and restated, refinanced, renewed, replaced, extended, supplemented, or otherwise modified from time to time.

 

Credit Agreement Termination” means the termination of the Credit Agreement and all obligations thereunder, and the release of all liens securing the obligations under the Credit Agreement.

 

Credit Facilities” means, collectively, the Credit Agreement, the Revolving Facility, the Convertible Promissory Notes, and the Subordinated Term Note, and each of the Credit Facilities shall be a “Credit Facility”.

 

  9  

 

 

Credit Facility Terminations” means, collectively, the Credit Agreement Termination, the Revolving Facility Termination, and the Subordinated Term Note Termination, and each of the Credit Facility Terminations shall be a “Credit Facility Termination”.

 

D&O Persons” has the meaning set forth in Section 5.5(a).

 

Data” means data, databases, data repositories, data lakes and collections of data.

 

Data Privacy and Security Requirements” means, collectively, all of the following to the extent relating to the Processing of Personal Data or otherwise relating to consumer protection or to privacy, security, or data breach notification requirements and applicable to any Group Company, to the conduct of the Business, or to any of the Company IT Systems or any Business Data:  (i) all applicable laws, rules and regulations (including, as applicable, the General Data Protection Regulation (GDPR) (EU) 2016/679) and the California Consumer Privacy Act (2020); (ii) the Group Companies’ external-facing privacy policies; (iii)  if applicable to the Business, the Payment Card Industry Data Security Standard (PCI DSS), and any other industry or self-regulatory standard to which the Group Companies are bound or hold themselves out to the public as being in compliance with; and (iv) applicable provisions of Contracts into which any Group Company has entered or by which they are otherwise bound.

 

DGCL” has the meaning set forth in the recitals to this Agreement.

 

Dissenting Shares” has the meaning set forth in Section 2.2(f).

 

Dissenting Stockholder” has the meaning set forth in Section 2.2(f).

 

Effective Time” has the meaning set forth in Section 2.1(c).

 

Employee Benefit Plan” means each “employee benefit plan” (as such term is defined in Section 3(3) of ERISA, whether or not subject to ERISA), each pension, retirement, profit-sharing, savings, health, welfare, bonus, incentive, commission, stock option, equity or equity-based, deferred compensation, severance, retention, accident, disability, employment, change of control, stock purchase, restricted stock, separation, consulting, salary continuation, post-termination or post-employment health or welfare, vacation, paid time off, fringe benefit and each other benefit or compensatory plan, program, policy or Contract.

 

Environmental Laws” means all Laws and Orders concerning pollution, protection of the environment, or human health or safety.

 

Equity Rights” has the meaning set forth in Section 3.2(b).

 

Equity Securities” means, with respect to any Person, any share, share capital, capital stock, partnership, membership, joint venture or similar interest in such Person (including any stock appreciation, phantom stock, profit participation or similar rights), and any option, warrant, right or security (including debt securities) convertible, exchangeable or exercisable therefor.

 

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

 

  10  

 

 

 

ERISA Affiliate” means any Person that, together with the Company or any of its Subsidiaries, is (or at any relevant time has been or would be) treated as a single employer under Section 414 of the Code; provided that the term “ERISA Affiliate” shall not include any professional employer organization that sponsors or maintains a PEO Plan.

 

Exchange Act” means the Securities Exchange Act of 1934.

 

Exchange Agent” has the meaning set forth in Section 2.3(a).

 

Exchange Agent Agreement” means a paying and exchange agent agreement, in form and substance reasonably acceptable to STPK and the Company.

 

Exchange Ratio” means the following ratio (rounded to four decimal places): (i) the Fully-Exercised STPK Share Count divided by (ii) the Company Outstanding Shares.

 

Federal Securities Laws” means U.S. federal securities laws and the rules and regulations of the SEC and NYSE promulgated thereunder.

 

Financial Statements” has the meaning set forth in Section 3.4(a).

 

Foreign Plan” has the meaning set forth in Section 3.11(i).

 

Fraud” means the actual fraud of a Party in the making of a representation or warranty expressly set forth in Article 3, Article 4 or in any certificate delivered pursuant to Section 6.2(d)(i) or Section 6.3(e)(i) which involves a knowing and intentional misrepresentation with the intent that the other Party rely thereon (as opposed to the making of a representation or warranty (affirmatively or by omission) negligently, recklessly or without actual knowledge of its truthfulness).

 

Fully-Exercised STPK Share Count” means a number of STPK Common Shares equal to the quotient of (a) the Total Equity Value plus the Aggregate Option Price, divided by (b) $10.00.

 

GAAP” means generally accepted accounting principles in the United States of America.

 

Governing Documents” means the legal document(s) by which any Person (other than an individual) establishes its legal existence or which govern its internal affairs. For example, the “Governing Documents” of a U.S. corporation are its certificate or articles of incorporation and by-laws, the “Governing Documents” of a U.S. limited partnership are its limited partnership agreement and certificate of limited partnership, and the “Governing Documents” of a U.S. limited liability company are its operating or limited liability company agreement and certificate of formation.

 

Governmental Entity” means any United States or non-United States (a) transnational, federal, state, local, municipal or other government, (b) governmental or quasi-governmental entity of any nature (including any governmental agency, branch, department, official, or entity and any court or other tribunal) or (c) body exercising or entitled to exercise any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature, including any arbitral tribunal (public or private) or commission.

 

  11  

 

 

Group Companies” means, collectively, the Company and its Subsidiaries.

 

Group Company” means, individually, any of the Group Companies.

 

Group Company Permits” has the meaning set forth in Section 3.6.

 

Hazardous Substance” means any substance, material, or waste which is regulated by, or for which standards of conduct or liability may be imposed pursuant to, any Environmental Law, including any petroleum products or byproducts, asbestos, lead, polychlorinated biphenyls, per- and poly-fluoroakyl substances, mold, radon, noise, odor, or radiation.

 

HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

 

Indebtedness” means, as of any time, without duplication, with respect to any Person, all amounts arising under any obligations of such Person and its Subsidiaries (on a consolidated basis) for, or in respect to, (a) indebtedness for borrowed money or indebtedness issues or incurred in substitution or exchange for borrowed money, (b) other obligations evidenced by any note, bond, debenture or other debt security, (c) obligations (contingent or otherwise) for the deferred purchase price of property, assets or a business, including “earn-outs”, “seller notes”, contingent or deferred consideration or purchase price adjustments (but, with respect to the Group Companies, excluding any trade payables and amounts related to deferred accrued acquisition compensation), (d) reimbursement and other obligations with respect to letters of credit, bank guarantees, bankers’ acceptances or other similar instruments, in each case, solely to the extent drawn, (e) derivative, hedging, swap, foreign exchange or similar arrangements, including swaps, caps, collars, hedges or similar arrangements, (f) indebtedness evidenced by letters of credit, assurances against loss, bankers’ acceptances or surety bonds (in each case, only to the extent drawn or cash collateralized prior to and as of the Closing Date), (g) unfunded or underfunded liabilities under any defined benefit pension, supplemental retirement or post-employment welfare plan or arrangement, (h) with respect to the Group Companies, any and all liabilities for amounts of Taxes that any Group Company has deferred pursuant to Section 2302 of the CARES Act and all Taxes (including withholding Taxes) deferred pursuant to Internal Revenue Service Notice 2020-65 or any related or similar Order or declaration from any Governmental Entity (including without limitation the Presidential Memorandum, dated August 8, 2020, issued by the President of the United States), (i) any “single trigger” stay, retention, transaction, change of control or other similar bonuses, compensation or amounts paid or payable solely in connection with the consummation of the transactions contemplated hereby (including the employer portion of any employment, withholding, payroll, social security, unemployment or similar Taxes imposed on such amounts, determined assuming (A) such amounts are payable as of the Closing Date, and (B) no deferral of such Taxes has occurred under clause (h), and without duplication of any amounts taken into account under clause (i)), (j) with respect to STPK, any Affiliate payables or amounts payable to any Affiliate under any management or similar agreement or pursuant to termination of any Contract with any Affiliate at Closing or with respect to the Company, any payables under any Pre-Closing Holder Related Party Transactions or any amounts payable to any Affiliate under any management or similar agreement or pursuant to the termination of any Pre-Closing Holder Related Party Transactions, (k) the items identified in Section 1.1(b) (Identified Indebtedness) of the Company Schedules and (l) any of the obligations of any other Person of the type referred to in clauses (a) through (k) above directly or indirectly guaranteed by such Person or secured by any assets of such Person, whether or not such Indebtedness has been assumed by such Person, and with respect to clauses (a) through (l), including all accrued and unpaid interest, fees, expenses and other payment obligations (including any prepayment penalties, premiums, costs, breakage or other amounts payable upon the discharge thereof) arising under or in respect of such Indebtedness.

 

  12  

 

 

Independent Director” means any director of a corporation who meets the requirements of “independent director” for all purposes under the rules and regulations of the SEC and the NYSE.

 

Intellectual Property” means any intellectual property or proprietary right arising under the Laws of any jurisdiction throughout the world, including any of the following to the extent protected under applicable Law: (a) patents and patent applications, industrial designs and design patent rights, including any continuations, divisionals, continuations-in-part and provisional applications and any patents issuing on any of the foregoing and any reissues, reexaminations, substitutes and extensions of any of the foregoing (collectively, “Patents”); (b) trademarks, service marks, trade names, service names, brand names, trade dress rights, logos, Internet domain names, corporate names and other source or business identifiers, together with the goodwill associated with any of the foregoing, and all applications, registrations, extensions and renewals of any of the foregoing, (collectively, “Marks”); (c) copyrights database and design rights, mask work rights and moral rights, whether or not registered or published, and all registrations, applications, renewals, extensions and reversions of any of any of the foregoing; and (d) trade secrets, know-how and confidential and proprietary information, processes and techniques, research and development information, drawings, specifications, designs, plans, proposals, financial and marketing plans and customer and supplier lists and information, formulae, algorithms, compositions, industrial models, architectures, plans, proposals, technical Data, source code, in each case, to the extent any of the foregoing are protected as trade secrets under applicable Law (collectively, “Trade Secrets”), including any of the foregoing rights in clauses (a) through (d) that protect or are embodied in Software, or Data, Data classifications and Data analysis, enrichment, measurement and management tools.

 

Intended Tax Treatment” has the meaning set forth in the recitals to this Agreement.

 

Investment Company Act” means the Investment Company Act of 1940.

 

Investor Rights Agreement” has the meaning set forth in the recitals to this Agreement.

 

IPO” has the meaning set forth in Section 8.19.

 

Latest Balance Sheet” has the meaning set forth in Section 3.4(a)(ii).

 

Law” means any federal, state, local, foreign, national or supranational statute, law (including common law), act, statute, ordinance, treaty, rule, code, regulation or other binding directive or guidance issued, promulgated or enforced by a Governmental Entity having competent jurisdiction over a given matter, as well as any Order.

 

Leased Real Property” has the meaning set forth in Section 3.18(b).

 

  13  

 

 

Letter of Transmittal” means a letter of transmittal substantially in the form attached hereto as Exhibit F.

 

Liability” or “liability” means any liability, debt, obligation, deficiency, interest, Tax, penalty, fine, demand, judgment, claim, cause of action or other loss, cost or expense of any kind or nature whatsoever, whether asserted or unasserted, whether or not contingent, known or unknown, accrued or unaccrued, liquidated or unliquidated, and whether due or become due and regardless of when asserted.

 

Lien” means any mortgage, pledge, security interest, encumbrance, financing statement, lien, charge, trust, option, warrant, purchase right, preemptive right, right of first offer or refusal, easement, servitude, restriction (whether voting, transfer or otherwise), encroachment or other similar encumbrance of any kind or nature whatsoever.

 

Lock-Up Agreement” has the meaning set forth in the recitals to this Agreement.

 

Malicious Code” has the meaning set forth in Section 3.21(a).

 

Marks” has the meaning set forth in the definition of Intellectual Property.

 

Material Contracts” has the meaning set forth in Section 3.7(a).

 

Material Customers” has the meaning set forth in Section 3.20.

 

Material Data Supply Agreement” has the meaning set forth in Section 3.21(c).

 

Material Suppliers” has the meaning set forth in Section 3.20.

 

Merger” has the meaning set forth in Section 2.1(a).

 

Merger Sub” has the meaning set forth in the introductory paragraph to this Agreement.

 

Merger Sub Common Stock” has the meaning set forth in Section 4.7(c).

 

Merger Sub Sole Stockholder Approval” means the approval of STPK, in its capacity as the sole stockholder of Merger Sub, of this Agreement, the Ancillary Documents to which STPK is a party, and the transactions contemplated hereby and thereby (including the Merger).

 

Minimum Cash Condition” has the meaning set forth in Section 6.3(d).

 

Multiemployer Plan” has the meaning set forth in Section 3(37) or Section 4001(a)(3) of ERISA.

 

New Incentive Plan” has the meaning set forth in Section 5.10(a).

 

Nonparty Affiliate” has the meaning set forth in Section 8.13.

 

NYSE” means the New York Stock Exchange.

 

  14  

 

 

Open Source Software” means any Software that is licensed pursuant to:  (i) any license that is a license now or in the future approved by the Open Source Initiative and listed at http://www.opensource.org/licenses, which licenses include all versions of the GNU General Public License (GPL), the GNU Lesser General Public License (LGPL), the GNU Affero GPL, the MIT license, the Eclipse Public License, the Common Public License, the CDDL, the Mozilla Public License (MPL), the Artistic License, the Netscape Public License, the Sun Community Source License (SCSL), the Sun Industry Standards License (SISL); and the Server Side Public License (SSPL) or (ii) any license to Software that is classified as “free” or “open source software” by the Open Source Foundation or the Free Software Foundation or that otherwise self-identifies as “freeware” or “open source software” and is licensed under terms comparable to licenses of any of the Software that is classified as “free” or “open source software” by the Open Source Foundation or the Free Software Foundation (as those terms are generally understood in the Software industry).

 

Option Shares” means the shares of Company Common Stock issuable pursuant to a Company Option in accordance with terms of such Company Option.

 

Order” means any outstanding writ, order, judgment, injunction, settlement, decision, determination, award, ruling, subpoena, verdict or decree entered, issued, made or rendered by any Governmental Entity.

 

Parties” has the meaning set forth in the introductory paragraph to this Agreement.

 

Patents” has the meaning set forth in the definition of Intellectual Property.

 

PCAOB” means the Public Company Accounting Oversight Board.

 

PCAOB Financials” has the meaning set forth in Section 5.16(a).

 

PEO Plan” means an Employee Benefit Plan that is sponsored or maintained by a professional employer organization with which the Company or one of its Subsidiaries has an agreement and in which the employees of the Company or any of its Subsidiaries participate, or may participate, pursuant to such agreement between the professional employer organization and the Company or any of its Subsidiaries.

 

Permits” means any approvals, authorizations, waivers, consents, clearances, licenses, registrations, permits or certificates of a Governmental Entity that possesses competent jurisdiction.

 

Permitted Liens” means (a) mechanic’s, materialmen’s, carriers’, repairers’ and other similar statutory Liens arising or incurred in the ordinary course of business for amounts that are not yet due and payable or are being contested in good faith by appropriate proceedings and for which sufficient reserves have been established in accordance with GAAP, (b) statutory Liens for Taxes not yet due and payable as of the Closing Date or which are being contested in good faith by appropriate proceedings and, in each case, for which sufficient reserves have been established on the Financial Statements in accordance with GAAP, (c) encumbrances and restrictions of record on real property (including easements, covenants, conditions, rights of way and similar restrictions) that do not or would not prohibit or materially interfere with the Group Companies’ use or occupancy of such real property or the operation of the business of the Group Companies, taken as a whole, (d) zoning, building codes and other land use Laws regulating the use or occupancy of real property or the activities conducted thereon which are imposed by any Governmental Entity having jurisdiction over such real property and which are not violated by the use or occupancy of such real property or the operation of the businesses of the Group Companies and do not prohibit or materially interfere with any of the Group Companies’ use or occupancy of such real property or the operation of the business of the Group Companies, (e) non-exclusive licenses of Intellectual Property; (f) Liens which would not be or reasonably be expected to be material to the Group Companies, (g) Liens described on Section 1.1(c) of the Company Schedules (including Liens arising in the ordinary course of business under the Credit Facilities), (h) other than with respect to Intellectual Property, any right, interest, Lien or title of a licensor, sublicensor, licensee, sublicensee, lessor or sublessor under any license, lease or other similar agreement or in the property being leased or licensed, (i) Liens on equity or debt securities resulting from applicable Securities Laws and (j) Liens incurred in connection with capital lease obligations of any of the Group Companies.

 

  15  

 

 

Person” means an individual, partnership, corporation, limited liability company, joint stock company, unincorporated organization or association, trust, joint venture, association or other similar entity, whether or not a legal entity.

 

Personal Data” means all Data or information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual, household or device, including Data or information otherwise subject to a Data Privacy and Security Requirement (including if it constitutes “personal information” or “personal data” or other equivalent term under applicable Data Privacy and Security Requirements).

 

PIPE Financing” has the meaning set forth in the recitals to this Agreement.

 

PIPE Financing Amount” means $225,000,000.00 in the aggregate.

 

PIPE Investors” has the meaning set forth in the recitals to this Agreement.

 

Pre-Closing Holder Related Parties” has the meaning set forth in Section 3.19.

 

Pre-Closing Holder Related Party Transactions” has the meaning set forth in Section 3.19.

 

Pre-Closing Holders” means all Persons who hold one or more Company Common Shares, Company Preferred Stock, Company Options, Company Warrants or Convertible Promissory Notes immediately prior to the Effective Time.

 

Pre-Closing STPK Holders” means the holders of STPK Shares at any time prior to the Closing.

 

Privileged Communications” has the meaning set forth in Section 8.18.

 

Proceeding” means any lawsuit, litigation, action, audit, demand, examination, hearing, claim, charge, complaint, audit, investigation, inquiry, proceeding, suit or arbitration (in each case, whether civil, criminal or administrative and whether public or private) pending by or before or otherwise involving any Governmental Entity or arbitrator.

 

  16  

 

 

Process” (or “Processing” or “Processes”) means the collection, use, storage, processing, recording, distribution, transfer, exchange, import, export, protection (including security measures), disposal, de-identification, sanitization, cleansing, sale or disclosure or other activity regarding Data (whether electronically or in any other form or medium).

 

Prospectus” has the meaning set forth in Section 8.19.

 

Proxy Clearance Date” has the meaning set forth in Section 5.9(a).

 

Public Distributions” has the meaning set forth in Section 8.19.

 

Public Shareholders” has the meaning set forth in Section 8.19.

 

Real Property Leases” means all leases, sub-leases, licenses or other agreements, in each case, pursuant to which any Group Company leases or sub-leases any real property.

 

Registration Statement / Proxy Statement” has the meaning set forth in the recitals to this Agreement.

 

Representatives” means, with respect to any Person, such Person’s Affiliates and its and such Affiliates’ respective directors, officers, employees, accountants, consultants, advisors, attorneys and agents.

 

Required Company Shareholder Approval” means the approval of this Agreement and the Merger by at least the Requisite Threshold following the consummation of the Senior Preferred Conversion.

 

Requisite Threshold” has the meaning set forth in the Company Charter.

 

Revolving Facility” means the Third Amended and Restated Loan Agreement, dated as of May 15, 2020, by and among the Company, as borrower, and Generate Lending, LLC, as lender, with an original principal balance of $35,000,000, as amended, amended and restated, refinanced, renewed, replaced, extended, supplemented, or otherwise modified from time to time.

 

Revolving Facility Termination” means the termination of the Revolving Facility and all obligations thereunder, and the release of all liens securing the obligations under the Revolving Facility.

 

Sanctions and Export Control Laws” means any Law in any part of the world related to (a) import and export controls, including the U.S. Export Administration Regulations, (b) economic sanctions, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the European Union, any European Union Member State, the United Nations, and Her Majesty’s Treasury of the United Kingdom, or (c) anti-boycott measures.

 

  17  

 

 

Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002, as amended.

 

Schedules” means, collectively, the Company Schedules and the STPK Schedules.

 

SEC” means the U.S. Securities and Exchange Commission.

 

Securities Act” means the U.S. Securities Act of 1933, as amended.

 

Securities Law” means Federal Securities Law and other applicable foreign and domestic securities or similar Laws.

 

Security Incident” means any cyber or security incident that has, had or reasonably would be expected to have an impact on the security, confidentiality, integrity or availability of a Company IT System, (including any Data processed thereby or contained therein), any Trade Secret or any Business Data, including an occurrence that jeopardizes the confidentiality, integrity, or availability of Personal Data or that requires notification to any person or Governmental Entity under applicable Data Privacy and Security Requirements.

 

Senior Preferred Conversion” has the meaning set forth in the recitals.

 

Senior Preferred Stock” means the Company Preferred Stock designated as “Senior Preferred Stock” in the Company Charter, consisting of Series A Preferred Stock, Series A’ Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series C’ Preferred Stock, Series D Preferred Stock and Series D’ Preferred Stock.

 

Series 1 Preferred Conversion” has the meaning set forth in the recitals.

 

Signing Filing” has the meaning set forth in Section 5.4(b).

 

Signing Press Release” has the meaning set forth in Section 5.4(b).

 

Software” shall mean any and all: (a) computer programs, including any and all software implementations of algorithms, applications, utilities, development tools, models, embedded systems and methodologies, whether in source code, object code or executable code; (b) descriptions, flowcharts and other work product used with or to design, plan, organize and develop any of the foregoing, screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and icons; and (c) all documentation, including user manuals and other training documentation related to any of the foregoing.

 

Sponsor” means Star Peak Sponsor, LLC, a Delaware limited liability company.

 

Sponsor Directors” has the meaning set forth in Section 5.17(b).

 

Stem Group” has the meaning set forth in Section 8.18.

 

STPK” has the meaning set forth in the introductory paragraph to this Agreement.

 

STPK Board” has the meaning set forth in Section 5.17(a).

 

  18  

 

 

STPK Class A Shares” means, at all times prior to the Effective Time, STPK’s Class A common stock, par value $0.0001 per share.

 

STPK Class B Shares” means, at all times prior to the Effective Time, STPK’s Class B common stock, par value $0.0001 per share.

 

STPK Common Shares” means, at or at all times immediately following the Effective Time, the shares of common stock of STPK.

 

STPK Financial Statements” means all of the financial statements of STPK included in the STPK SEC Reports (including any notes thereto).

 

STPK Fundamental Representations” means the representations and warranties set forth in Sections 4.1 (Organization and Qualification), 4.2 (Authority), 4.3(i) and (iii) (No Violations), 4.4 (Brokers) and Section 4.7 (Capitalization of the STPK Parties).

 

STPK Material Adverse Effect” means any change, event, effect, development or occurrence that, individually or in the aggregate with any other change, event, effect, development or occurrence, has had or would reasonably be expected to have a material adverse effect on the ability of a STPK Party to timely consummate the transactions contemplated by this Agreement or any Ancillary Document.

 

STPK Option” has the meaning set forth in Section 2.2(b)(i).

 

STPK Parties” means, collectively, STPK and Merger Sub.

 

STPK Preferred Shares” means STPK’s preferred stock, par value $0.0001 per share.

 

STPK Proposal” has the meaning set forth in Section 5.8(c).

 

STPK Schedules” means the disclosure schedules to this Agreement delivered to the Company by STPK on the date hereof.

 

STPK SEC Reports” has the meaning set forth in Section 4.8.

 

STPK Shareholder Approval” means the approval of this Agreement, the Merger and the issuance of the STPK Common Shares as consideration in the Merger pursuant to Section 2.2(a), at the STPK Shareholders Meeting where a quorum is present, by the affirmative vote of holders of at least a majority of the votes cast by the Pre-Closing STPK Holders present in person or represented by proxy at the STPK Shareholders Meeting and entitled to vote on such matter.

 

STPK Shareholder Redemption” means the right of the holders of STPK Class A Shares to redeem all or a portion of their STPK Class A Shares (in connection with the transactions contemplated by this Agreement or otherwise) as set forth in the Governing Documents of STPK.

 

STPK Shareholders Meeting” has the meaning set forth in Section 5.10(a).

 

  19  

 

 

STPK Shares” means, collectively, the STPK Class A Shares, the STPK Class B Shares and the STPK Preferred Shares.

 

STPK Tail Policy” has the meaning set forth in Section 5.5(d).

 

STPK Transaction Expenses” means, as of any determination time, without duplication, the aggregate amount payable by or on behalf of STPK, the Sponsor or any of their respective Affiliates for (a) commitment fees, commissions, original issue discounts or other fees, costs and expenses (including out of pocket expenses) relating to the PIPE Financing and/or Alternative PIPE Financing and/or any other third party financing pursuant to Section 5.7(b) (including any backstop commitment or debt financing), (b) the deferred underwriting fees in the amount of $13,425,476.40 in connection with STPK’s initial public offering, (c) fees, expenses or commissions payable to any financial advisor, consultant, broker or finder in connection with the evaluation or arrangement of any PIPE Financing and/or Alternative PIPE Financing (d) the STPK Tail Policy, (e) 50% of the filing fee to be paid for the Registration Statement / Proxy Statement, and (f) out-of-pocket fees, commissions, costs and expenses (whether or not invoiced) incurred by or on behalf of STPK in connection with the negotiation, preparation, execution and performance of this Agreement or any Ancillary Document and the consummation of the transactions contemplated hereby and thereby, in each case, as of such determination time, including any such fees or expenses in respect of STPK’s outside legal counsel, accountants, advisors, investment bankers or consultants engaged in connection with the transactions contemplated hereby. For the avoidance of doubt, STPK Transaction Expenses shall not include the STPK Class B Shares, the STPK Warrants or any Company Expenses.

 

STPK Warrants” means each warrant to purchase one (1) STPK Class A Share at a price of $11.50 per share, subject to adjustment, as described in the STPK SEC Reports.

 

Subordinated Term Note” means the Subordinated Term Note, dated as of June 29, 2018, by and among the Company, as borrower, and Clean Feet Investors I, LLC, as lender, as amended by the First Amendment to Subordinated Term Note and Subordinated General Security Agreement, dated May 15, 2020, and as amended, amended and restated, refinanced, renewed, replaced, extended, supplemented, or otherwise modified from time to time, with an original principal balance of $8,000,000.

 

Subordinated Term Note Termination” means the termination of the Subordinated Term Note and all obligations thereunder, and the release of all liens securing the obligations under the Subordinated Term Note.

 

Subscription Agreements” has the meaning set forth in the recitals to this Agreement.

 

Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, or other legal entity of which (a) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof, or (b) if a limited liability company, partnership, association, or other business entity (other than a corporation), a majority of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries of such Person or a combination thereof and for this purpose, a Person or Persons own a majority ownership interest in such a business entity (other than a corporation) if such Person or Persons shall be allocated a majority of such business entity’s gains or losses or shall be a, or control any, managing director or general partner of such business entity (other than a corporation). The term “Subsidiary” shall include all Subsidiaries of such Subsidiary.

 

  20  

 

 

Superior Proposal” means any Acquisition Proposal (A) on terms which the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and financial advisors, to be more favorable from a financial point of view to the holder of Company Common Stock than the Merger and the other transactions contemplated by this Agreement, taking into account all the terms and conditions of such proposal, and this Agreement and (B) that the Company Board believes is reasonably capable of being completed, taking into account all financial, regulatory, legal and other aspects of such proposal.

 

Support Agreement” has the meaning set forth in the recitals to this Agreement.

 

Surviving Corporation” has the meaning set forth in Section 2.1(a).

 

Tax” means any federal, state, local or non-United States income, gross receipts, franchise, estimated, alternative minimum, sales, use, transfer, value added, excise, stamp, customs, duties, ad valorem, real property, personal property (tangible and intangible), capital stock, social security, unemployment, payroll, wage, employment, severance, occupation, registration, environmental, communication, mortgage, profits, license, lease, service, goods and services, withholding, premium, turnover, windfall profits, escheatment or unclaimed property or other taxes, charges, duties, fees, levies or other governmental charges of any kind whatsoever, whether computed on a separate or combined, unitary or consolidated basis or in any other manner, together with any interest, deficiencies, penalties, additions to tax, or additional amounts imposed by any Governmental Entity with respect thereto, whether disputed or not.

 

Tax Authority” means any Governmental Entity responsible for the imposition, collection or administration of Taxes or Tax Returns.

 

Tax Proceeding” has the meaning set forth in Section 3.16(c).

 

Tax Return” means returns, information returns, statements, declarations, claims for refund, schedules, attachments and reports relating to Taxes filed or required to be filed with any Governmental Entity (and any amendments thereto).

 

Termination Date” has the meaning set forth in Section 7.1(d).

 

Total Equity Value” means $650,000,000.

 

Total Merger Consideration” means 65,000,000 STPK Common Shares in the aggregate, which for the avoidance of doubt includes the STPK Common Shares allocated in respect of the Company Warrants and the Company Options in accordance with Section 2.2(e).

 

Trade Secrets” has the meaning set forth in the definition of Intellectual Property.

 

  21  

 

 

 

Transaction Proposals” has the meaning set forth in Section 5.10(a).

  

Transfer” means any direct or indirect sale, transfer, gift, assignment, pledge, encumbrance or other disposition of any interest (whether with or without consideration and whether voluntary, involuntary or by operation of Law).

 

Transfer Taxes” has the meaning set forth in Section 5.6(d).

 

Trust Account” has the meaning set forth in Section 8.19.

 

Trust Account Released Claims” has the meaning set forth in Section 8.19.

 

Trust Agreement” has the meaning set forth in Section 4.9.

 

Trustee” has the meaning set forth in Section 4.9.

 

Waived 280G Benefits” has the meaning set forth in Section 5.19.

 

Waiver Agreement” has the meaning set forth in the recitals to this Agreement.

 

Waiving Parties” has the meaning set forth in Section 8.18.

 

WARN” means the Worker Adjustment Retraining and Notification Act of 1988 as amended, as well as analogous applicable foreign, state or local Laws.

 

Warrant Exercise Agreements” has the meaning set forth in the recitals.

 

Working Capital Loans” has the meaning set forth in Section 5.13(d).

 

Written Consent” has the meaning set forth in the recitals.

 

Article 2
PURCHASE AND SALE

 

Section 2.1            Merger; Closing.

 

(a)            Upon the terms and subject to the conditions set forth in this Agreement, STPK, Merger Sub and the Company (Merger Sub and the Company sometimes being referred to herein as the “Constituent Corporations”) shall cause Merger Sub to be merged with and into the Company, with the Company being the surviving corporation (the “Merger”). The Merger shall be consummated as of the Effective Time in accordance with this Agreement and the DGCL and evidenced by a Certificate of Merger in substantially the form attached as Exhibit G (with such modifications, amendments or supplements thereto as may be required to comply with the DGCL, the “Certificate of Merger”) filed with the Secretary of State of the State of Delaware, in such form as is required by, and executed by the Company and Merger Sub in accordance with, the relevant provisions of the DGCL and mutually agreed by the Parties. Upon consummation of the Merger, the separate corporate existence of Merger Sub shall cease and the Company, as the surviving corporation of the Merger (hereinafter referred to for the periods at and after the Effective Time as the “Surviving Corporation”), shall continue its corporate existence under the DGCL, as a wholly owned Subsidiary of STPK.

 

  22  

 

 

(b)            At and after the Effective Time, the Surviving Corporation shall thereupon and thereafter possess all of the assets, properties rights, privileges, powers and franchises, of a public as well as a private nature, of the Constituent Corporations, and shall become subject to all the debts, liabilities, restrictions, disabilities, obligations and duties of each of the Constituent Corporations in accordance with the applicable provisions of the DGCL.

 

(c)            In accordance with the terms and subject to the conditions of this Agreement, the closing of the Merger (the “Closing”) shall take place at 10:00 a.m., Central Time (i) at the offices of Kirkland & Ellis LLP, 609 Main Street, Houston, Texas 77002 or (ii) by electronic exchange of executed documents, on the date which is three (3) Business Days after the first date on which all conditions set forth in Article 6 shall have been satisfied or duly waived (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or due waiver thereof) or such other time and place as STPK and the Company may mutually agree. The date on which the Closing actually occurs is referred to in this Agreement as the “Closing Date”. On the Closing Date, STPK and the Company shall cause the Certificate of Merger to be executed and duly submitted for filing with the Secretary of State of the State of Delaware as provided in Section 251 of the DGCL. The Merger shall become effective at the time when the Certificate of Merger has been accepted for filing by the Secretary of State of the State of Delaware or at such later time as may be agreed by STPK and the Company in writing and specified in the Certificate of Merger in accordance with the DGCL (the “Effective Time”).

 

(d)            At the Effective Time, the Governing Documents of Merger Sub shall be the Governing Documents of the Surviving Corporation, in each case, until thereafter changed or amended as provided therein or by applicable Law.

 

(e)            From and after the Effective Time, until successors are duly elected or appointed in accordance with applicable Law, (i) the initial directors of the Surviving Corporation shall be the individuals set forth on Section 2.1(e) of the STPK Schedules and (ii) the officers of the Company at the Effective Time shall be the officers of the Surviving Corporation.

 

Section 2.2             Effect of the Merger; Allocation of Total Merger Consideration.

 

(a)            At the Effective Time, by virtue of the Merger and without any action on the part of any Party or any other Person, (x) each share of Company Common Stock (a “Company Common Share”) that is issued and outstanding immediately prior to the Effective Time (for the avoidance of doubt, after giving effect to the Company Preferred Conversion, the Convertible Notes Conversion and the Company Warrant Exercise), other than Dissenting Shares, shall be canceled and converted into and become the right to receive the number of STPK Common Shares equal to the Exchange Ratio and (y) each share of Company Stock, if any, held in the treasury of the Company shall be canceled for no consideration.

 

(b)           Treatment of Outstanding Equity Awards.

 

(i)            Company Options. As of the Effective Time, each Company Option, whether vested or unvested, that is outstanding immediately prior to the Effective Time shall, by virtue of the occurrence of the Effective Time and without any action on the part of the Company, STPK or the Pre-Closing Holder thereof, be assumed and converted into an option (a “STPK Option”) with respect to a number of STPK Common Shares equal to the number of Company Common Shares subject to such Company Option immediately prior to the Effective Time multiplied by the Exchange Ratio, and rounded down to the nearest whole share set forth on the Allocation Schedule and at an exercise price per STPK Common Share equal to the exercise price per Company Common Share subject to such Company Option divided by the Exchange Ratio, and rounded up to the nearest whole cent set forth on the Allocation Schedule; provided that the exercise price and the number of STPK Common Shares subject to the STPK Option shall be determined in a manner consistent with the requirements of Section 409A of the Code, and, in the case of each Company Option that is intended to qualify as an “incentive stock option” within the meaning of Section 422 of the Code, consistent with the requirements of Section 424 of the Code. Except as otherwise provided in this Section 2.2(b)(i), each STPK Option shall continue to be subject to terms and conditions consistent with the Company Equity Plan and the applicable Company Option award agreement, as in effect immediately prior to the Effective Time.

 

  23  

 

 

(ii)            Prior to the Effective Time, the Company Board (or appropriate committee thereof) shall pass resolutions and take such other actions as are necessary to provide for the treatment of the Company Options as contemplated by this Section 2.2(b).

 

(iii)           The Parties shall reserve for issuance under the New Incentive Plan a number of STPK Common Shares at least equal to the number of STPK Common Shares that will be subject to STPK Options as a result of the actions contemplated by this ‎Section 2.2(b). As soon as practicable following the expiration of the sixty (60) day period following the date STPK has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company, STPK shall file an effective registration statement on Form S-8 (or any successor form, or if Form S-8 is not available, other appropriate forms) with respect to the STPK Common Shares subject to the STPK Options and shall use its reasonable best efforts to maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as the STPK Options remain outstanding and are required to be registered.

 

(c)            Fractional Shares. Notwithstanding anything in this Agreement to the contrary, no certificate or scrip representing fractional STPK Common Shares shall be issued pursuant to this Section 2.2, and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of STPK. In lieu of any fractional shares, STPK shall cause each Pre-Closing Holder entitled to any portion of STPK Common Shares to be paid, and such holder shall be entitled to receive, an amount in cash, rounded up to the nearest cent, equal to the product obtained by multiplying (i) the fractional share interest to which such holder (after taking into account all Equity Securities held at the Effective Time by such holder) would otherwise be entitled by (ii) $10.

 

  24  

 

 

(d)            Adjustment to Total Merger Consideration. The Total Merger Consideration shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into STPK Common Shares), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to the number of STPK Common Shares outstanding after the date hereof and prior to the Effective Time so as to provide the Pre-Closing Holders with the same economic effect as contemplated by this Agreement prior to such event and as so adjusted shall, from and after the date of such event, be the Total Merger Consideration.

  

(e)            Allocation Schedule. The Company acknowledges and agrees that (i) the Total Merger Consideration is being allocated among the Pre-Closing Holders pursuant to the schedule in the form set forth on Section 2.2(e) of the Company Schedules and delivered by the Company to STPK at least three Business Days prior to the anticipated Closing Date (the “Allocation Schedule”) and such allocation (i) is and will be in accordance with the Governing Documents of the Company, the Company Shareholder Agreements and applicable Law, (ii) does and will set forth (A) the mailing addresses and email addresses, for each Pre-Closing Holder, (B) the number and class of Equity Securities owned by each Pre-Closing Holder, (C) the portion of the Total Merger Consideration (including the Cash Funding Amount) allocated to each Pre-Closing Holder, and (D) with respect to each Pre-Closing Holder of Company Options, the number of STPK Common Shares subject to, and the exercise price per STPK Common Share of, each STPK Option, and (iii) is and will otherwise be accurate in all respects (except for de minimis inaccuracies that are not material). For illustrative purposes only, set forth on Section 2.2(e) of the Company Schedules is the Allocation Schedule as it would have been prepared if the Closing Date were the date hereof (it being understood that such illustrative Allocation Schedule set forth on Section 2.2(e) of the Company Schedules is illustrative only and not binding in any manner on the parties hereto); provided that, the Parties agree that such illustrative Allocation Schedule shall not be required to set forth the mailing addresses and email addresses for the Pre-Closing Holders. Notwithstanding anything in this Agreement to the contrary, upon delivery, payment, issuance, reserve for issuance (including as reserved in respect of the Company Options pursuant to Section 2.2(b)(iii) or the Company Warrants) or any other treatment of the Total Merger Consideration on the Closing Date in accordance with the Allocation Schedule (not to exceed 65,000,000 STPK Common Shares in the aggregate), STPK and its respective Affiliates shall be deemed to have satisfied all obligations with respect to the payment of consideration under this Agreement (including with respect to (x) any Equity Security of the Company and (y) the Total Merger Consideration), and none of them shall have (I) any further obligations to the Company, any Pre-Closing Holder or any other Person with respect to the payment of any consideration under this Agreement (including with respect to the Total Merger Consideration), or (II) any liability with respect to the allocation of the consideration under this Agreement, and the Company hereby irrevocably waives and releases STPK and its Affiliates (but excluding, on and after the Closing, the Company and its Affiliates) from all claims arising from or related to such Allocation Schedule and the allocation of the Total Merger Consideration, as the case may be, among each Pre-Closing Holder as set forth in such Allocation Schedule.

 

  25  

 

 

(f)            Notwithstanding any provision of this Agreement to the contrary, any share of Company Stock for which the holder (a “Dissenting Stockholder”) thereof (i) has not voted in favor of the Merger or consented to it in writing and (ii) has demanded the appraisal of such shares in accordance with, and has complied in all respects with, Section 262 of the DGCL (collectively, the “Dissenting Shares”) shall not be converted into the right to receive the portion of Total Merger Consideration applicable to such Dissenting Shares in accordance with the Allocation Schedule and the terms of this Agreement; provided that any such amounts that would otherwise be payable in respect of such Dissenting Shares shall remain the property of STPK. From and after the Effective Time, (x) all Dissenting Shares shall be cancelled and cease to exist and (y) Dissenting Stockholders shall be entitled only to such rights as may be granted to them under Section 262 of the DGCL and shall not be entitled to exercise any of the voting rights or other rights of a stockholder of the Surviving Corporation. Notwithstanding the foregoing, if any Dissenting Stockholder effectively withdraws or loses such appraisal rights (through failure to perfect such appraisal rights or otherwise), then that Dissenting Stockholder’s shares (i) shall no longer be deemed to be Dissenting Shares and (ii) shall be treated as if they had been converted automatically at the Effective Time into the right to receive the portion of Total Merger Consideration applicable to such Dissenting Shares in accordance with the Allocation Schedule upon delivery of a duly completed and validly executed Letter of Transmittal and the surrender of Certificates (if any) in accordance with Section 2.3(b). Each Dissenting Stockholder who becomes entitled to payment for his, her or its Dissenting Shares pursuant to the DGCL shall receive payment thereof from the Exchange Agent in accordance with the DGCL. For the avoidance of doubt, for purposes of determining the Allocation Schedule and the other related definitions and terms that are affected by the total number of Company Stock outstanding immediately prior to the Effective Time, any and all Dissenting Shares shall be included in all such determinations as if such Dissenting Shares were participating in the Merger and were entitled to receive the applicable payments under this Agreement. The Company shall give STPK prompt notice of any written demands for appraisal of any shares of Company Stock, attempted withdrawals of such demands and any other instruments served pursuant to the DGCL and received by the Company relating to stockholders’ rights of appraisal in accordance with the provisions of Section 262 of the DGCL, and STPK shall have the opportunity to participate in all negotiations and proceedings with respect to all such demands. The Company shall not, except with the prior written consent of STPK (prior to the Closing) or the Sponsor (after the Closing), make any payment with respect to, settle or offer or agree to settle any such demands. Any portion of the Total Merger Consideration made available to the Exchange Agent pursuant to Section 2.3(a) to pay for Dissenting Shares shall be returned to STPK upon demand.

  

Section 2.3            Deposit of STPK Common Shares; Other Closing Date Payments.

 

(a)           Deposit with Exchange Agent. Immediately prior to the Effective Time, STPK shall deposit with an exchange agent (the “Exchange Agent”) mutually selected by STPK and the Company, (i) the aggregate number of STPK Common Shares to be converted from Company Common Shares (after giving effect to the Company Preferred Conversion, the Convertible Notes Conversion and the Company Warrant Exercise) pursuant to clause (x) of Section 2.2(a) and (ii) cash required to be paid to Pre-Closing Holders pursuant to Section 2.2(c) (the cash so deposited with the Exchange Agent pursuant to this clause (ii), the “Cash Funding Amount”).

 

  26  

 

 

(b)            Letter of Transmittal. Prior to the Closing Date and in accordance with Section 5.15 of this Agreement, the Company shall deliver, or cause to be delivered, to each Pre-Closing Holder of Company Stock a Letter of Transmittal, together with a request to have such Pre-Closing Holder deliver an executed Letter of Transmittal to the Company and the Exchange Agent no less than five (5) Business Days prior to the Closing. At the Effective Time, (i) each Pre-Closing Holder of an outstanding certificate or certificates for Company Stock (collectively, the “Certificates”), who has surrendered such Certificates to the Company and the Exchange Agent (together with a properly completed Letter of Transmittal) in accordance with the above timelines prior to the Closing shall be entitled to receive the applicable portion of the Total Merger Consideration in accordance with the Allocation Schedule on the Closing Date following the Effective Time. Promptly after the Effective Time, STPK shall send, or shall cause the Exchange Agent to send, to each Pre-Closing Holder of Company Stock that did not receive a Company Stockholder Package pursuant to Section 5.15, a Letter of Transmittal for use in such exchange. Following surrender of Certificates (to the extent certificated) to the Company and the Exchange Agent (together with a properly completed Letter of Transmittal) in the case of Pre-Closing Holders of Company Stock, such Pre-Closing Holders shall be entitled to receive the applicable portion of the Total Merger Consideration in accordance with the Allocation Schedule within five (5) Business Days following such surrender and/or delivery of the applicable documents. No interest or dividends will be paid or accrued on the consideration payable upon delivery of a Letter of Transmittal. For the avoidance of doubt, to the extent the shares of Company Stock held by a Pre-Closing Holder of Company Stock are not certificated or are represented by electronic certificates, the requirement to deliver physical Certificates as set forth herein shall not apply.

  

(c)            No Further Transfers. At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers of any Company Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, any Company Stock is presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Section 2.3.

 

Section 2.4            Exchange Agent. Promptly following the date that is one year after the Effective Time, STPK shall instruct the Exchange Agent to deliver to STPK all cash, certificates and other documents in its possession relating to the transactions contemplated hereby, and the Exchange Agent’s duties shall terminate. Thereafter, each Pre-Closing Holder who has not delivered a Letter of Transmittal may surrender such Certificate (to the extent such shares are certificated) or deliver such Letter of Transmittal to STPK and (subject to applicable abandoned property, escheat and similar Laws) receive in consideration therefor, and STPK shall promptly pay, the portion of the Total Merger Consideration deliverable in respect thereof as determined in accordance with this Article 2 without any interest thereon. None of STPK, Merger Sub, the Company, the Surviving Corporation or the Exchange Agent shall be liable to any Person in respect of any Total Merger Consideration delivered to a public official pursuant to and in accordance with any applicable abandoned property, escheat or similar Laws. If any Certificate shall not have been surrendered immediately prior to such date on which any amounts payable pursuant to this Article 2 would otherwise escheat to or become the property of any Governmental Entity, any such amounts shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.

 

Section 2.5            Withholding. Notwithstanding any other provision in this Agreement to the contrary, STPK, the Company, and the Exchange Agent shall be entitled to deduct and withhold from any cash, stock consideration or other amounts otherwise paid or payable in connection with the transactions contemplated in this Agreement to any Person such amounts that STPK, the Company or the Exchange Agent are required to deduct and withhold with respect thereto under the Code or any provision of applicable Law; provided, however, that STPK and/or the applicable withholding agent shall cooperate with the Company or the applicable Pre-Closing Holder in good faith to minimize, to the extent permissible under applicable Law, the amount of any such deduction or withholding, including by cooperating with the submission of any certificates or forms to establish an exemption from, reduction in, or refund of any such deduction or withholding. To the extent that amounts so deducted and withheld are duly deposited with the appropriate Governmental Entity, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.

 

  27  

 

 

Article 3
REPRESENTATIONS AND WARRANTIES RELATING TO THE GROUP COMPANIES

 

Except as set forth in the Company Schedules (but subject to the terms of Section 8.8), the Company hereby represents and warrants to the STPK Parties as follows:

 

Section 3.1            Organization and Qualification.

 

(a)            Each Group Company is a corporation, limited liability company or other applicable business entity duly organized or formed, as applicable, validly existing and in good standing (or the equivalent thereof, if applicable, in each case, with respect to the jurisdictions that recognize the concept of good standing or any equivalent thereof) under the Laws of its jurisdiction of formation or organization (as applicable), except where the failure to be in good standing (or the equivalent thereof) would not have a Company Material Adverse Effect. Each Group Company is duly qualified or licensed to transact business in each jurisdiction in which the property and assets owned, leased or operated by it, or the nature of the business conducted by it, makes such qualification or licensing necessary, except where the failure to be so duly qualified or licensed and in good standing would not have a Company Material Adverse Effect.

 

(b)            Each Group Company has the requisite corporate, limited liability company or other applicable business entity power and authority to own, lease and operate its properties and to carry on its businesses as presently conducted, except where the failure to have such power or authority would not be material to the Group Companies taken as a whole. True, correct and complete copies of the Governing Documents of each Group Company and the Company Shareholder Agreements have been provided to STPK, in each case, as amended and in effect as of the date hereof. The Governing Documents of each Group Company and the Company Shareholder Agreements are in full force and effect and none of the Group Companies, or, to the Company’s knowledge, any other party thereto, are in breach or violation of any provision set forth in their respective Governing Documents or the Company Shareholder Agreements.

 

Section 3.2            Capitalization of the Group Companies.

 

(a)            Section 3.2(a) of the Company Schedules sets forth, as of the date hereof, a true, correct and complete statement of (i) the number and class or series (as applicable) of all of the Equity Securities of the Company issued and outstanding, (ii) the identity of the Persons that are the record owners thereof and (iii) with respect to any Equity Rights, (1) the date of grant, (2) the strike price (where applicable), (3) any applicable vesting schedule and expiration date, (4) the type of Equity Right (including whether each Company Option is intended to be an “incentive stock option” within the meaning of Section 422 of the Code), and (5) whether any Company Option is or was eligible to be early exercised.

 

  28  

 

 

(b)            Except for the Equity Rights set forth on Section 3.2(b) of the Company Schedules (which such Equity Rights shall, for the avoidance of doubt, be subject to the transactions contemplated by Section 2.2) or as is set forth in Company’s Governing Documents or the Company Shareholder Agreements, as of the date hereof, the Company has no outstanding (x) convertible debt, equity appreciation, phantom equity, or profit participation rights, or (y) options, restricted stock, phantom stock, warrants, purchase rights, subscription rights, conversion rights, exchange rights, calls, puts, rights of first refusal or first offer or other Contracts that would require the Company to issue, sell or otherwise cause to become outstanding or to acquire, repurchase or redeem any Equity Securities or securities convertible into or exchangeable for Equity Securities of the Company (collectively, “Equity Rights”).

 

(c)            All of the Equity Securities of the Company have been duly authorized and validly issued and are fully paid and, if applicable, non-assessable. The Equity Securities of the Company (A) were not issued in violation of the Governing Documents of the Company or its Subsidiaries or the Company Shareholder Agreements or any other Contract to which the Company or any of its Subsidiaries is party or bound, (B) are not subject to any purchase option, call option, right of first refusal or first offer, preemptive right, subscription right or any similar right of any Person granted pursuant to a Contract to which the Company or any of its Subsidiaries are a party or bound, and were not issued in violation of any preemptive rights, call option, right of first refusal or first offer, subscription rights, transfer restrictions or similar rights of any Person granted pursuant to a Contract to which the Company or any of its Subsidiaries are a party or bound, (C) have been, in connection with their initial sale, offered, sold and issued (as applicable) in compliance with applicable Law, including Securities Laws, and (D) to the knowledge of the Company, are free and clear of all Liens (other than transfer restrictions under applicable Securities Law or as set forth under the Governing Documents of the Company or the Company Shareholder Agreements).

 

(d)            (i) Each Company Option has an exercise price that has been determined pursuant to a valuation consistent with applicable Laws to be at least equal to the fair market value of a Company Common Share on a date no earlier than the date of grant of such Company Option, (ii) no Company Option has had its exercise date or grant date “back-dated” or materially delayed, and (iii) all Company Options have been issued in compliance with the Company Equity Plan and all applicable Laws and properly accounted for in all material respects in accordance with the Accounting Principles.

 

(e)            Except for the Company’s Governing Documents and the Company Shareholder Agreements, there are no voting trusts, proxies, or other Contracts to which the Company or any of its Subsidiaries are a party or bound or with respect to the voting or transfer of the Company’s Equity Securities. The Equity Securities set forth on the Allocation Schedule will, as of immediately prior to the Closing, constitute all of the issued and outstanding Equity Securities of the Company.

 

  29  

 

 

(f)            Except as set forth on Section 3.2(f) of the Company Schedules, as of the date hereof, all of the outstanding Equity Securities of each Subsidiary of the Company are owned directly by the Company or another Subsidiary of the Company, free and clear of all Liens (other than transfer restrictions under applicable Securities Law or Permitted Liens), and are set forth on Section 3.2(f) of the Company Schedules opposite the name of each Subsidiary of the Company. There are no Equity Rights that would require the Company or any of its Subsidiaries to issue, sell or otherwise cause to become outstanding or to acquire, repurchase or redeem any Equity Securities or securities convertible into or exchangeable for Equity Securities of the Company’s Subsidiaries. Except as set forth in the Governing Documents of the Company or its Subsidiaries, there are no voting trusts, proxies or other Contracts with respect to the voting or transfer of any Equity Securities of any Subsidiaries of the Company.

  

(g)           Except as is set forth on Section 3.2(g) of the Company Schedules, as of the date hereof, none of the Group Companies owns or holds (of record, beneficially or otherwise), directly or indirectly, any Equity Securities in or debt of any other Person or the right to acquire any such Equity Security or debt, and none of the Group Companies are a partner or member of any partnership, limited liability company or joint venture.

 

(h)           Section 3.2(h) of the Company Schedules sets forth a list of all Indebtedness of the Group Companies (as described in clauses (a) through (f) of the definition of Indebtedness only) as of the date hereof, including, if applicable, the principal amount of such Indebtedness, the outstanding balance as of the date of this Agreement of such Indebtedness and the debtor and the issuer thereof.

 

Section 3.3            Authority. The Company has the requisite corporate, limited liability company or other similar power and authority to execute and deliver this Agreement and each of the Ancillary Documents to which it is or will be a party, to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby, subject to obtaining the Required Company Shareholder Approval. The execution and delivery of this Agreement, the Ancillary Documents to which the Company is or will be a party and the consummation of the transactions contemplated hereby and thereby have been (or, in the case of any Ancillary Document entered into after the date of this Agreement, will be upon execution thereof) duly authorized by all necessary corporate and shareholder (or other similar) action on the part of the Company, subject to obtaining the Required Company Shareholder Approval. This Agreement and each Ancillary Document to which the Company is or will be a party has been or will be upon execution thereof, as applicable, duly and validly executed and delivered by the Company and constitutes or will constitute, upon execution and delivery thereof, as applicable, a valid, legal and binding agreement of the Company (assuming that this Agreement and the Ancillary Documents to which the Company is or will be a party are or will be upon execution thereof, as applicable, duly authorized, executed and delivered by the other Persons party hereto and thereto), enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity).

 

Section 3.4            Financial Statements; No Undisclosed Liabilities.

 

(a)            Attached hereto as Section 3.4(a) of the Company Schedules are true, correct and complete copies of the following financial statements (such financial statements, the “Financial Statements”):

 

  30  

 

 

(i)            audited consolidated balance sheets of the Group Companies as of December 31, 2019, December 31, 2018 and December 31, 2017, and the related audited consolidated statements of income and cash flows of the Group Companies for the fiscal years then ended (the “Audited Financials”); and

 

(ii)           unaudited consolidated balance sheets of the Group Companies as of September 30, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of income and cash flows of the Group Companies for the nine-month period then ended (but excluding any notes thereto).

 

(b)           The Financial Statements (i) have been prepared from, and reflect in all material respects, the books and records of the Group Companies, (ii) have been prepared in accordance with the Accounting Principles applied on a consistent basis throughout the periods covered thereby, except as may be indicated in the notes thereto and subject, in the case of unaudited Financial Statements, to the absence of footnotes and normal year-end adjustments, none of which are material, and (iii) fairly present, in all material respects, the consolidated financial position of the Group Companies as of the dates thereof and their consolidated results of operations for the periods then ended, subject, in the case of unaudited Financial Statements, to the absence of footnotes and normal year-end adjustments.

 

(c)           Except (i) as set forth on the Latest Balance Sheet or the Financial Statements, (ii) for liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet (none of which is a liability for breach of contract, breach of warranty, tort, infringement, misappropriation or violation of Law), (iii) for liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants and agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby, (iv) for liabilities disclosed in Section 3.4(c) of the Company Schedules, or (v) for liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, as of the date hereof, no Group Company has any liabilities that would be required to be set forth on a consolidated balance sheet of the Group Companies prepared in accordance with the Accounting Principles. No Group Company is a party to any “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K promulgated by the SEC).

 

(d)           Each Group Company has established and maintains systems of internal accounting controls. To the knowledge of the Company, such internal controls are sufficient to provide reasonable assurance regarding the reliability of the Company’s financial reporting and the preparation of the Company’s financial statements for external purposes in accordance with GAAP. Since December 31, 2017, except as set forth on Section 3.4(d) of the Company Schedules, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) a “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.

 

  31  

 

 

Section 3.5            Consents and Requisite Governmental Approvals; No Violations. Assuming the truth and accuracy of the representations and warranties set forth in Section 4.3 (and assuming all Consents referred to in such sections (or required to be disclosed in the corresponding sections of the STPK Schedules) are made or obtained), no Consent of any Governmental Entity is necessary in connection with the execution, delivery or performance by the Company of this Agreement and the Ancillary Documents to which the Company is or will be party or bound or the consummation of the transactions contemplated by this Agreement or the Ancillary Documents, except for (a) compliance with and filings set forth on Section 3.5 of the Company Schedules, (b) compliance with and filings under any applicable Securities Laws, including the Registration Statement / Proxy Statement, (c) the Required Company Shareholder Approval or (d) those the failure of which to obtain or make would not have, or be reasonably expected to have, a Company Material Adverse Effect. Except for Consents set forth on Section 3.5 of the Company Schedules, neither the execution, delivery and performance by the Company of this Agreement nor the Ancillary Documents to which the Company is or will be a party nor the consummation of the transactions contemplated by hereby and thereby will, directly or indirectly (with or without due notice or lapse of time or both) (i) conflict with or result in any breach of any provision of any (x) the Company’s Governing Documents or (y) any of the Company’s Subsidiaries Governing Documents, (ii) result in a violation or breach of, or constitute a default or give rise to any right of termination, consent, cancelation, materially adverse amendment, materially adverse modification, suspension, revocation or acceleration under, any of the terms, conditions or provisions of, or the loss of any benefits under (A) any Contract to which any Group Company is a party or by which it or its properties or assets are bound, (B) any Group Company Permits or (C) any Data Privacy and Security Requirement, (iii) violate, or constitute breach under, in each case, in any material respect, any Order or applicable Law to which any Group Company or any of it properties or assets are bound, or (iv) result in the creation of any Lien upon any of the assets or properties (other than any Permitted Liens) or Equity Securities (other than Liens under applicable Securities Laws or Liens created by STPK) of any Group Company, except, in the case of any of clauses (ii) and (iv) above, as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

 

Section 3.6            Permits. The Group Companies hold all Permits necessary or required for the lawful conduct of their respective businesses or necessary or required to own, lease or operate any of the properties or assets of the Group Companies, other than any such Permits which if not held by the Group Companies, would not reasonably be expected to have a Company Material Adverse Effect (collectively, the “Group Company Permits”). Except as is not, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole: (a) each Group Company Permit is valid and in full force and effect either pursuant to its terms or by operation of law; (b) each Group Company is, and since December 31, 2017 has been, in compliance with the terms of all Group Company Permits held by such Group Company; and (c) to the Company’s knowledge, no event, circumstance, or state of facts has occurred which (with or without due notice or lapse of time or both) would reasonably be expected to result in the failure of a Group Company to be in material compliance with the terms of any Group Company Permit.

 

  32  

 

 

 

Section 3.7           Material Contracts.

  

(a)           Section 3.7(a) of the Company Schedules sets forth a list of all Contracts to which a Group Company is, as of the date of this Agreement, a party or by which it or its assets or properties are bound (each Contract required to be set forth on Section 3.7(a) of the Company Schedules, the “Material Contracts”) that is:

 

(i)            any Contract relating to the components of Indebtedness of the Group Companies set forth in clauses (a) through (f), of the definition thereof;

 

(ii)           any material equity joint venture or investment or other similar Contract;

 

(iii)          any Contract or group of Contracts with a common counterparty, or among counterparties sharing the same ultimate parent company, with consideration paid or payable to or by any one or more Group Companies of more than $250,000, in the aggregate, over any rolling 12-month period since January 1, 2019;

 

(iv)          any Contract or group of Contracts with a common counterparty, or among counterparties sharing the same ultimate parent company, with a remaining term of more than 24 months and that creates an obligation or a right of the Company or any Group Company to be paid or make payments of more than $250,000, as forecasted, over any rolling 12-month period starting January 1, 2021;

 

(v)           any Contract for the disposition of any portion of the assets or business of any Group Company with a value in excess of $5,000,000 or for the acquisition by any Group Company of the assets or business of any other Person with a value in excess of $5,000,000 (other than purchases of inventory or services in the ordinary course of business) under which the Company or any of its Subsidiaries has any material continuing monetary obligations, including with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation;

 

(vi)          any Contract with any Governmental Entity to which any Group Company is a party that involve payments by or to the Group Companies in excess of $250,000;

 

(vii)         any Contract required to be disclosed on Section 3.19 of the Company Schedules;

 

(viii)        any settlement, conciliation or similar Contract relating to a Proceeding of a Group Company that have been entered into on or after December 31, 2018 and (1) contemplate payment by any Group Company of any amount in excess of $500,000 or (2) were brought by an equityholder or Affiliate of a Group Company;

 

  33  

 

 

(ix)           any Contract that limits, or purports to limit, the ability of any Group Company to compete in any line of business or with any person or entity or in any geographic area or during any period of time, excluding customary confidentiality agreements and agreements that contain customary confidentiality clauses and excluding any such limitations that are not material to the operation of the businesses of the Group Companies, taken as a whole;

  

(x)            any Contract that results in any person or entity holding a power of attorney from any Group Company that relates to the Group Companies or their respective business;

 

(xi)           any Contract under which any Group Company has agreed to purchase goods or services from a vendor, supplier or other person on a preferred supplier or “most favored supplier” basis;

 

(xii)          any Contract which involves the license to or grant of rights in Intellectual Property by any Person to a Group Company (other than non-exclusive licenses for commercially-available, off-the-shelf software licensed on standard terms and procured for aggregate fees of less than $250,000);

 

(xiii)         any Contract which involves the license or grant of rights by any Group Company to a third party of Company Owned Intellectual Property, including any Contract involving use of any Company Registered Intellectual Property required to be listed in Section 3.13(a) of the Company Schedules, but excluding any non-exclusive licenses granted to customers or distributors in the ordinary course of business;

 

(xiv)        any Contract for the development of (A) material Company Owned Intellectual Property that is embodied in or distributed with any product or services or is otherwise material Company Owned Intellectual Property (other than Contracts with any employee or contractor on a standard form of agreement entered into in the ordinary course of business under which such employee or contractor presently assigns all right, title and interest in and to any developed Intellectual Property to a Group Company), and (B) any Intellectual Property for any Person by a Group Company under which Contract a Group Company has any material unperformed obligations;

 

(xv)         any Contract relating to the purchase of engineering or design services that involve more than $250,000, other than those Contracts and agreements under which no material services are remaining to be performed;

 

(xvi)        any collective bargaining agreement or other Contract with a labor union, works council, or other labor organization; and

 

(xvii)       any employment, severance, retention, change of control, separation or individual consulting Contract with any current director, manager, officer, individual service provider or employee of a Group Company (A) providing for total annual compensation in excess of $250,000 (excluding any Contract that is terminable at will without payment of any severance, transaction bonus, Tax gross-up or similar payment obligation), or (B) that would result in monetary liability in excess of $100,000 to any Group Company if terminated.

 

  34  

 

 

(b)           Each Material Contract is in full force and effect and is a valid, legal and binding obligation of the applicable Group Company, enforceable in accordance with its terms against such Group Company and, to the Company’s knowledge, each other party thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity). There is no breach or default by any Group Company or, to the Company’s knowledge, any third party under any Material Contract, except as would not, individually or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole. To the Company’s knowledge, (A) no event has occurred which (with or without notice or lapse of time or both) would constitute a breach or default or would permit termination of, or a modification or acceleration thereof by any party to such Material Contract, and (B) no party to a Material Contract has claimed a force majeure with respect thereto, in each case, except as would not reasonably be expected, individually or in the aggregate, to be material to the Group Companies, taken as a whole. Since December 31, 2017 through the date hereof, no Group Company has received notice of (i) any breach or default under any Material Contract or (ii) the intention of any third party under any Material Contract to cancel, terminate or modify in any respect the terms of any such Material Contract, or accelerate the obligations of any Group Company thereunder, in each case, except as has not been and would not reasonably be expected, individually or in the aggregate, to be material to the Group Companies, taken as a whole. True, correct and complete copies of all Material Contracts as in effect as of the date hereof have been made available to STPK.

 

Section 3.8            Absence of Changes. Except as set for the Section 3.8 of the Company Schedules, during the period beginning on December 31, 2019 and ending on the date of this Agreement, (a) no Company Material Adverse Effect has occurred, and (b) except as expressly required by this Agreement, any Ancillary Document or in connection with the transactions contemplated hereby and thereby (or in connection with any prior process involving the sale or other extraordinary business transaction involving the Company or its businesses and assets), and except for any actions taken or not taken, or any plans, procedures and practices adopted (and compliance therewith) due to COVID-19 Changes, (i) each Group Company has conducted its business in the ordinary course and (ii) no Group Company has taken any action that would require the consent of STPK under Section 5.1(b)(iii), Section 5.1(b)(iv) or Section 5.1(b)(v), if taken during the period from the date of this Agreement until the Closing pursuant to Section 5.1(b).

 

Section 3.9            Litigation. Except as set forth on Section 3.9 of the Company Schedules or except as has not been, there is (and since December 31, 2017 there has been) no Proceeding pending or, to the Company’s knowledge, threatened in writing against or involving (a) any Group Company, (b) any of their respective properties or assets or (c) any of their respective managers, officers, directors or employees (in their capacities as such) (in each case of clause (a) through (c), seeking material non-monetary relief, involving criminal liability or involving an amount in controversy in excess of $500,000 individually). Neither the Group Companies nor any of their respective properties or assets is subject to any outstanding Order that is, or would reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole. Except as set forth on Section 3.9 of the Company Schedules, there are no material Proceedings by a Group Company pending, or which a Group Company has commenced preparations to initiate, against any other Person.

 

  35  

 

 

Section 3.10         Compliance with Applicable Law. Each Group Company is (and since December 31, 2017 has been) in compliance in all respects with all Laws applicable to it or its business, operations or assets or properties, including Laws applicable to participation in wholesale electricity markets approved by the Federal Energy Regulatory Commission, in each case, except as was not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole. No Group Company has, since December 31, 2017 through the date hereof, received any written notice or written communication from any Governmental Entity regarding any actual or violation of, or a failure to comply with, any applicable Law, in each case, except as has not been and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole.

 

Section 3.11         Employee Plans.

 

(a)           Section 3.11(a) of the Company Schedules sets forth a true, correct and complete list of each material Company Plan (excluding any employment agreement or offer letter that does not (A) contain severance payments or benefits, transaction or retention-based bonuses and (B) deviate in any material respect from the form of offer letter provided to STPK prior to the date hereof) and each material PEO Plan. With respect to each Company Plan, and to the extent available to the Company with respect to each PEO Plan, the Group Companies have provided STPK with correct and complete copies of the following documents, to the extent applicable: (i) the most recent determination or opinion letter issued by the Internal Revenue Service with respect to each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code; (ii) the current plan and trust documents, and all amendments thereto (and for any unwritten plan, a summary of the material terms); and (iii) any non-routine correspondence with any Governmental Entity.

 

(b)           No Group Company or ERISA Affiliate maintains, sponsors, participates in, contributes to or has any obligation to contribute to or has any liability with respect to or under: (i) a Multiemployer Plan; (ii) a “defined benefit plan” (as defined in Section 3(35) of ERISA, whether or not subject to ERISA) or a plan that is or was subject to Title IV of ERISA or Section 412 or 430 of the Code; (iii) a “multiple employer plan” within the meaning of Section of 413(c) of the Code or Section 210 of ERISA (other than the PEO Plans); or (iv) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA (other than the PEO Plans). Except as set forth on Section 3.11(b) of the Company Schedules, no Company Plan or PEO Plan provides, and no Group Company has any liabilities to provide, any retiree, post-employment or post-termination health or life insurance or other welfare-type benefits to any Person other than health continuation coverage pursuant to COBRA or similar Law and for which the recipient pays the full cost of premiums for such coverage. No Group Company has any liabilities by reason of being considered a single employer under Section 414 of the Code with any other Person other than another Group Company.

 

(c)           Each Company Plan and, to the Company’s knowledge, each PEO Plan that is intended to be qualified under Section 401(a) of the Code has timely received a favorable determination or opinion or advisory letter from the Internal Revenue Service on which it can rely and, to the Company’s knowledge, no events have occurred or circumstances exist that would reasonably be expected to adversely affect such qualified status. None of the Group Companies has incurred (whether or not assessed), or is reasonably expected to incur or to be subject to, any penalty or Tax under Section 4980H, 4980B, 4980D, 6721 or 6722 of the Code.

 

  36  

 

 

(d)           There are no pending, or to the Company’s knowledge, threatened, material Proceedings with respect to any Company Plan or, solely as it relates to the participation of any employees of the Group Companies, the PEO Plans (other than routine claims for benefits). Each Company Plan (and each related trust, insurance Contract, or fund), and to the Company’s knowledge, each PEO Plan, has been established, maintained, funded and administered in all material respects in accordance with its terms and in compliance with the applicable requirements of ERISA, the Code, and other applicable Laws. To the Company’s knowledge, there have been no “prohibited transactions” within the meaning of Section 4975 of the Code or Sections 406 or 407 of ERISA and not otherwise exempt under Section 408 of ERISA and no breaches of fiduciary duty (as determined under ERISA) with respect to any Company Plan or, solely as it relates to the participation of any employees of the Group Companies, any PEO Plan. With respect to each Company Plan, and to the Company’s knowledge, with respect to each PEO Plan, all contributions (including all employer contributions and employee salary reduction contributions), distributions, reimbursements and premium payments that are due have been timely made in accordance with the terms of the Company Plan or, solely as it relates to the participation of any employees of the Group Companies, PEO Plan, and in compliance with the requirements of applicable Law, and, to the extent not yet due, have been properly accrued in accordance with GAAP.

 

(e)           The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement could not (alone or in combination with any other event) (i) result in any payment or benefit becoming due to or result in the forgiveness of any indebtedness of any current or former director, manager, officer, employee, individual independent contractor or other service providers of any of the Group Companies, (ii) increase the amount or value of any compensation or benefits payable to any current or former director, manager, officer, employee, individual independent contractor or other service providers of any of the Group Companies, or (iii) result in the acceleration of the time of payment or vesting, or trigger any payment or funding of any compensation or benefits to any current or former director, manager, officer, employee, individual independent contractor or other service providers of any of the Group Companies.

 

(f)            No amount that could be received (whether in cash or property or the vesting of property) by any “disqualified individual” of any of the Group Companies under any Employee Benefit Plan or otherwise in connection with the consummation of the transactions contemplated by this Agreement (alone or in combination with any other event) is reasonably expected, separately or in the aggregate, to be nondeductible under Section 280G of the Code or subject to an excise Tax under Section 4999 of the Code.

 

(g)           Each Employee Benefit Plan that is a “non-qualified deferred compensation plan” (as such term is defined in Section 409A(d)(1) of the Code), has been maintained in form and operation in material compliance with the requirements of Section 409A of the Code and applicable guidance issued thereunder and no amount under any such Employee Benefit Plan has been subject to the interest or additional Tax set forth under Section 409A(a)(1)(B) of the Code.

 

  37  

 

 

(h)           Except as set forth in Section 3.11(h) of the Company Schedules, the Group Companies have no current or contingent obligation to make a “gross-up” or similar payment in respect of any Taxes that may become payable under Section 4999 or 409A of the Code.

  

(i)            With respect to each Company Plan that is subject to the applicable Law of a jurisdiction other than the United States (whether or not United States Law also applies) or primarily for the benefit of employees, directors, consultants or individual independent contractors of the Company or any of its Subsidiaries who reside or work primarily outside of the United States (each a “Foreign Plan”): (i) each Foreign Plan required to be registered or intended to meet certain regulatory or requirements for favorable Tax treatment has been timely and properly registered and has been maintained in good standing with the applicable regulatory authorities and requirements; (ii) no Foreign Plan is a defined benefit plan (as defined in ERISA, whether or not subject to ERISA), seniority premium, termination indemnity, provident fund, gratuity or similar plan or arrangement or has any unfunded or underfunded liabilities; and (iii) all Foreign Plans that are required to be funded are fully funded, and adequate reserves have been established with respect to any Foreign Plan that is not required to be funded.

 

Section 3.12         Environmental Matters.

 

(a)           The Group Companies are, and at all times since December 31, 2017 have been, operating in compliance in all respects with all Environmental Laws, which includes obtaining, maintaining and complying with all Permits required in connection with the Business under Environmental Laws, except in each case as would not be material to the Group Companies.

 

(b)           No Group Company has received since December 31, 2017 any written notice, report, Order, directive or communication regarding any actual or alleged violation in any material respect of, or a failure to comply in any material respect with any Environmental Laws.

 

(c)           There is (and since December 31, 2017 there has been) no Proceeding pending or, to the Company’s knowledge, threatened in writing against any Group Company or that otherwise pertains to the Business pursuant to, and no Group Company has received any unresolved written notice of a material violation of or liability under, Environmental Laws.

 

(d)           There has been no manufacture, sale, distribution, release, treatment, storage, disposal, arrangement for disposal, transport or handling of, contamination by, or exposure of any Person to, any Hazardous Substances, in each case that has resulted or would result in liability under Environmental Laws for any Group Company except in each case as would not be material to the Group Companies.

 

(e)           The Group Companies have not assumed, undertaken, provided an indemnity with respect to, or otherwise become subject to any liability of any other Person under Environmental Law.

 

(f)            The Group Companies have made available to STPK copies of all environmental reports, assessments and audits and all other material environmental, health, and safety documents pertaining to the current and former properties and operations of the Group Companies that are within the Group Companies’ possession or reasonable control.

 

  38  

 

 

Section 3.13         Intellectual Property.

  

(a)           Section 3.13(a) of the Company Schedules sets forth a true, correct and complete list of all Company Registered Intellectual Property. The Company Registered Intellectual Property is subsisting and, in the case of such Company Registered Intellectual Property that has issued or is registered, valid and enforceable. A Group Company exclusively owns and possesses all right, title and interest in and to all material Company Owned Intellectual Property, free and clear of all Liens (other than Permitted Liens).

 

(b)           A Group Company exclusively owns and possesses all right, title and interest in and to, or has a valid and enforceable and sufficient written license to, all Intellectual Property that is used in or necessary for the operation of the Business, free and clear of all Liens or obligations to others (other than Permitted Liens) (together with the Company Owned Intellectual Property the “Business Intellectual Property”), which Business Intellectual Property will, immediately after the Closing, be owned by, licensed to or available for use by the Group Companies on terms and conditions the same in all material respects to those immediately prior to the Closing; provided that nothing in this Section 3.13(b) constitutes a representation and warranty of non-infringement of Intellectual Property owned by a third Party. No Group Company has granted any exclusive license with respect to any Company Owned Intellectual Property (including any Company Product) to any other Person.

 

(c)            All Persons who independently or jointly have materially contributed to or otherwise participated in the authorship, invention, creation, improvement, modification or development of any material Intellectual Property for or on behalf of, or under the supervision of, any Group Company have executed and delivered to the Group Company a valid and enforceable written assignment (by way of a present grant of assignment) to a Group Company of all Intellectual Property authored, invented, created, improved, modified or developed by such Person in the course of their employment or other engagement with such Group Company for which ownership does not automatically vest in a such Group Company by operation of law. Each Group Company has taken reasonable steps to safeguard and maintain the secrecy of any Trade Secrets owned or used by each Group Company, including ensuring that third parties who have had access to such Trade Secrets are subject to legally binding confidentiality obligations with respect to such Trade Secrets. To the Company’s knowledge, there has been (i) no violation or unauthorized access to or disclosure of any Trade Secrets of or in the possession each Group Company, or (ii) no material breach of any written contract containing non-disclosure obligations with respect to such Trade Secrets.

 

(d)           (i) To the Company’s knowledge, the operation of the Business as conducted by the Group Companies, including the design, development, manufacturing, reproduction, use, marketing, offer for sale, sale, importation, exportation, distribution or maintenance of Company Products by any of the Group Companies, does not infringe, misappropriate or violate, and has not since December 31, 2017, infringed, misappropriated, or violated any Intellectual Property of any other Person, except in each case as would not have, or not be reasonably expected to have, a Company Material Adverse Effect, (ii) there is not, and there has not been since December 31, 2017, any Proceeding pending or other material claim sent or received in writing (including unsolicited offers, demands, or requests to license or cease and desist letters) by or against any Group Company with respect to any Intellectual Property (including any infringement, misappropriation, dilution, violation, enforceability, use (including any assertion of misuse), ownership, scope, licensing, or validity thereof), Data Privacy and Security Requirements, Security Incident, or Personal Data, and (iii) to the Company’s knowledge, no Person is infringing, misappropriating, or violating any Company Owned Intellectual Property in any material respect.

 

  39  

 

 

(e)            The Group Companies possess all source code and other material documentation necessary to compile and operate the Company Products (excluding any third party Software licensed in object code that is distributed with Company Products) and no Group Company has disclosed, delivered, licensed or otherwise made available, and no Group Company has a duty or obligation (whether present, contingent or otherwise) to disclose, deliver, license or otherwise make available, any material source code for any Company Products or otherwise included in the Company Owned Intellectual Property to any Person other than third parties engaged by a Group Company to provide development, support or maintenance services to such Group Company (each of which is subject to agreements with reasonable Intellectual Property assignment and confidentiality provisions), and no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time or both) will, or could reasonably be expected to, result in the delivery, license, or disclosure of any such source code to any Person who is not, as of the date the event occurs or circumstance or condition comes into existence, a current employee, contractor or service provider of a Group Company subject to confidentiality obligations with respect thereto.

 

(f)            Each Group Company is in material compliance with all obligations under any Contract pursuant to which such Group Company has obtained the right to use any third party Software, including Open Source Software, that is currently used in the operation of the Business and in particular the Group Companies have purchased a sufficient number of seat licenses or other required permissions or use rights for the Company IT Systems. The Company IT Systems are, in all material respects, sufficient for the current needs of, and are sufficient to effectively perform all information technology operations necessary for, the operation of the Business. The Group Companies use and have used commercially reasonable efforts to protect the confidentiality, integrity and security of the Company IT Systems and to prevent any unauthorized use, access, interruption, or modification of the Company IT Systems. The Group Companies do not use and have not used any Open Source Software or any modification or derivative thereof or with any Company Product or otherwise in connection with the operation of the Business (A) in a manner that would grant or purport to grant to any Person any rights to or immunities under any of the Company Owned Intellectual Property, or (B) under any license requiring any Group Company to disclose or distribute any source code to any of the Company Products or otherwise included in any Company Owned Intellectual Property, to license or provide any such source code for the purpose of making derivative works, or to make available for redistribution to any Person any such source code at no or minimal charge.

 

Section 3.14         Labor Matters.

 

(a)           Since December 31, 2017, (i) none of the Group Companies (A) has or has had any material liability for any arrears of wages, salaries, premiums, commissions, bonuses, fees or other compensation for services, or any penalty or other sums for failure to comply with any of the foregoing, and (B) has or has had any material liability for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Entity with respect to unemployment compensation benefits, social security, social insurances or obligations for any employees of any Group Company (other than routine payments to be made in the ordinary course of business); and (ii) the Group Companies have withheld all amounts required by applicable Law or by agreement to be withheld from wages, salaries, and other payments to employees or independent contractors of each Group Company.

 

  40  

 

 

(b)           Since December 31, 2017, there has been no “mass layoff” or “plant closing” as defined by WARN related to any Group Company, and the Group Companies have not incurred any material liability under WARN nor have the taken any action that could reasonably be expected to result in the Group Companies incurring any material liability under WARN as a result of the transactions contemplated by this Agreement. Except as set forth on Section 3.14(b) of the Company Schedules, no employee layoff, facility closure or shutdown (whether voluntary or by Order), reduction-in-force, furlough, temporary layoff, material work schedule change or reduction in hours, or reduction in salary or wages, or other workforce changes affecting employees of any Group Company has occurred within the past nine (9) months or is currently contemplated, planned or announced, as a result of COVID-19 or any COVID-19 Measures. The Group Companies have not otherwise experienced any employment-related liability with respect to COVID-19 that has been, or would reasonably be expected to be, material to the Group Companies taken as a whole.

 

(c)           There are no material Proceedings pending or, to the Company’s knowledge, threatened by or on behalf of any current or former director, manager, officer, employee, individual independent contractor or other service providers or government or administrative authority, including any claims relating to actual or alleged harassment, discrimination, or retaliation, or similar tortious conduct, breach of contract, wrongful termination, defamation, intentional or negligent infliction of emotional distress, interference with contract or interference with actual or prospective economic disadvantage, salary differences, and social security contributions and taxes. No Group Company is bound by any material consent decree with, or citation by, any Governmental Entity relating to any employment practices.

 

(d)           The Group Companies have promptly and thoroughly investigated all material allegations of sexual harassment or other types of discrimination prohibited by applicable Laws of which any the Group Companies were made aware. With respect to each such material allegation with potential merit, the Group Companies have taken prompt corrective action that is reasonably calculated to prevent further improper action.

 

(e)           Since December 31, 2017, (i) the Group Companies have been in compliance in all material respects with all applicable Laws respecting labor, employment and employment practices, and (ii) no Group Company has been a party to or bound by any collective bargaining agreements or other Contracts with any labor organization, works council, labor union or other employee representative (collectively, “CBA”). Since December 31, 2017, there has been no actual or, to the Company’s knowledge, threatened unfair labor practice charges, material grievances, arbitrations, strikes, lockouts, work stoppages, slowdowns, picketing, handbilling or other material labor disputes against or affecting any Group Company. To the Company’s knowledge, since December 31, 2017, there have been no labor organizing activities with respect to any employees of any Group Company.

 

  41  

 

 

(f)           To the Company’s knowledge, no current or former employee or independent contractor of any Group Company is in violation of any term of any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, noncompetition agreement, restrictive covenant or other similar obligation: (i) owed to any Group Company; or (ii) owed to any third party with respect to such Person’s right to be employed or engaged by the applicable Group Company, except in each case as would not have, or not be reasonably expected to have, a Company Material Adverse Effect.

  

Section 3.15         Insurance. All material insurance policies of any Group Company (including fire, liability, workers’ compensation, property, cyber, casualty and other forms of insurance owned or held by any Group Company) are in full force and effect, all premiums due and payable thereon as of the date hereof have been paid in full as of the date hereof, and no claim by any Group Company is pending under any such policies as to which coverage has been denied or disputed, or rights reserved to do so, by the underwriters thereof, in each case, except as would not reasonably be expected to be, individually or in the aggregate, material to the Group Company, taken as a whole. No Group Company is in material breach or default under the terms of any such insurance policy (including any such breach or default with respect to the giving of notice of claims) and, to the Company’s knowledge, no event has occurred which (with or without notice or the lapse of time or both) would constitute a material breach or material default. No written notice of pending material premium increase, cancelation or termination has been received by any Group Company with respect to any such policy, in each case, except as would not reasonably be expected to be, individually or in the aggregate, material to the Group Company, taken as a whole.

 

Section 3.16         Tax Matters.

 

(a)           Each Group Company has prepared and timely filed all federal income and other material Tax Returns required to have been filed by it, all such Tax Returns are true, correct and complete in all material respects and prepared in compliance in all material respects with all applicable Law, and each Group Company has timely paid all federal income and other material Taxes required to have been paid by it regardless of whether or not shown on any such Tax Return.

 

(b)           Each Group Company has timely withheld and paid to the appropriate Tax Authority all material amounts required to have been withheld and paid in connection with amounts paid or owing to any employee, individual independent contractor, other service providers, equity interest holder, or other third-party and has otherwise complied in all material respects with all applicable Laws relating to such withholding, collection and payment of Taxes.

 

(c)           No Group Company is currently the subject of a Tax audit, examination, claim, Proceeding, or investigation with respect to material Taxes (a “Tax Proceeding”), and no Tax Proceeding with respect to any Group Company is pending or has been threatened in writing. No Group Company has been informed in writing of any deficiency, proposed adjustment, or assessment, in each case with respect to material Taxes, that has not been fully paid or finally resolved. All material deficiencies for Taxes asserted or assessed in writing against any Group Company have been fully and timely (taking into account applicable extensions) paid, settled or withdrawn, and, no such deficiency has been threatened or proposed in writing against any Group Company.

 

  42  

 

 

 

(d)          No Group Company has consented to extend or waive the time in which any material Tax may be assessed or collected by any Tax Authority, other than any such extensions or waivers that are no longer in effect or that were extensions of time to file Tax Returns obtained in the ordinary course of business.

 

(e)          No “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been requested, entered into or issued by any Tax Authority with respect to a Group Company which agreement or ruling would be effective after the Closing Date.

 

(f)           No Group Company is or has been a party to any “listed transaction” as defined in Section 6707A of the Code and Treasury Regulations Section 1.6011-4 (or any corresponding or similar provision of state, local or non-U.S. income Law).

 

(g)          There are no Liens for material Taxes on any assets of the Group Companies other than Permitted Liens.

 

(h)          During the two-year period ending on the date of this Agreement, no Group Company (or any predecessor thereof) was a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 355 of the Code.

 

(i)            No Group Company (i) has been a member of an Affiliated Group (other than an Affiliated Group the common parent of which was a Group Company) or (ii) has any material liability for the Taxes of any Person (other than a Group Company) under Section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local or non-U.S. Law), as a transferee or successor, by Contract, by operation of applicable Law or otherwise.

 

(j)            No written claims have ever been made by any Tax Authority in a jurisdiction where a Group Company does not file Tax Returns that such Group Company is or may be subject to taxation by that jurisdiction, which claims have not been resolved or withdrawn.

 

(k)           No Group Company is a party to any Tax allocation, Tax sharing or Tax indemnity or similar agreements (other than commercial agreements entered into in the ordinary course of business that are not primarily related to Taxes), and no Group Company is a party to any joint venture, partnership or other arrangement that is treated as a partnership for U.S. federal income Tax purposes.

 

(l)            No Group Company has taken, has agreed to take, or intends to take, in each case, any action that could reasonably be expected to prevent or impede the transactions contemplated by this Agreement from qualifying for the Intended Tax Treatment. To the knowledge of the Company, no facts or circumstances exist that could reasonably be expected to prevent or impede the transactions contemplated by this Agreement from qualifying for the Intended Tax Treatment.

 

(m)          No Group Company has filed any amended Tax Return or other claim for a refund as a result of, or in connection with, the carry back of any net operating loss or other attribute to a year prior to the taxable year including the Closing Date under Section 172 of the Code, as amended by Section 2303 of the CARES Act, or any corresponding or similar provision of state, local or non-U.S. Law.

 

43

 

 

(n)           Each Group Company has (i) to the extent applicable, materially complied with all legal requirements in order to defer the amount of the employer’s share of any “applicable employment taxes” deferred by any Group Company under Section 2302 of the CARES Act, (ii) to the extent applicable, materially complied with all legal requirements and duly accounted for any available Tax credits claimed by any Group Company under Sections 7001 through 7005 of the Families First Act, and (iii) has not received or claimed any Tax credits under Section 2301 of the CARES Act.

 

(o)           No Group Company will be required to include any material item of income, or exclude any material item of deduction, for any period (or portion thereof) after the Closing Date (determined with and without regard to the transactions contemplated by this Agreement) as a result of: (i) an installment sale transaction occurring before the Closing governed by Section 453 of the Code (or any similar provision of state, local or non-U.S. Laws) or open transaction; (ii) a disposition occurring before the Closing reported as an open transaction for U.S. federal income Tax purposes (or any similar doctrine under state, local, or non-U.S. Laws); (iii) any prepaid amounts received prior to the Closing or deferred revenue realized, accrued or received outside the ordinary course of business prior to the Closing; (iv) a change in method of accounting under Section 481 of the Code that occurs or was requested prior to the Closing (or as a result of an impermissible method used prior to Closing); or (v) an agreement entered into with any Governmental Entity (including a “closing agreement” under Section 7121 of the Code) prior to the Closing. No Group Company will be required to make any payments after the Closing Date under Section 965 of the Code.

 

(p)           To the knowledge of the Company, there is no fact or circumstance that would reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.

 

Section 3.17          Brokers. Section 3.17 of the Company Schedules sets forth a true, correct and complete list of (a) all broker’s, finder’s, financial advisor’s, investment banker’s fees or commissions or similar payments payable to any broker, finder, financial advisor or investment banker in connection with the transactions contemplated by this Agreement or any Ancillary Document based upon arrangements made by or on behalf of any Group Company or their respective Affiliates, (b) all amounts due and payable to any Persons described in clause (a) in connection with, or as a result of, directly or indirectly, the execution, negotiation or delivery of this Agreement or any Ancillary Document, the performance of the covenants or obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby and (c) each Contract pursuant to which such amounts are due and payable.

 

Section 3.18          Real and Personal Property.

 

(a)            Owned Real Property. No Group Company owns any real property.

 

44

 

 

(b)            Leased Real Property. Section 3.18(b) of the Company Schedules sets forth a true, correct and complete list (including street addresses) of all real property leased by any of the Group Companies (the “Leased Real Property”) and all Real Property Leases pursuant to which any Group Company is a tenant or landlord as of the date of this Agreement. The Company has delivered to STPK a true and complete copy of each such Real Property Lease. Except in each case as would not have, or would not be reasonably expected to have, a Company Material Adverse Effect, each Real Property Lease is in full force and effect and is a valid, legal and binding obligation of the applicable Group Company, enforceable in accordance with its terms against such Group Company and, to the Company’s knowledge, each other party thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity). Except in each case as would not have, or would not be reasonably expected to have, a Company Material Adverse Effect, there is no breach or default by any Group Company or, to the Company’s knowledge, any third party under any Real Property Lease, and, to the Company’s knowledge, no event has occurred which (with or without notice or lapse of time or both) would constitute a breach or default or would permit termination of, or a modification or acceleration thereof by any party to such Real Property Leases. No Group Company has subleased, licensed or otherwise granted any Person the right to use or occupy such Leased Real Property or any portion thereof. The Group Company’s possession and quiet enjoyment of the Leased Real Property under the applicable Real Property Lease has not been disturbed, and to the Company’s knowledge, there are no disputes with respect to any Real Property Lease, except as would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole.

 

(c)            Personal Property. Each Group Company has good, marketable and indefeasible title to, or a valid leasehold interest in or license or right to use, all of the assets and properties of the Group Companies reflected in the Latest Balance Sheet or thereafter acquired by the Group Companies, except for assets disposed of in the ordinary course of business or as would not have, or would be reasonably expected not to have, a Company Material Adverse Effect. The tangible assets and properties of the Group Companies are in good operating condition in all respects (normal wear and tear excepted) and are fit, in all respects, for use in the ordinary course of business, and no uninsurable damage has, since the date of the Latest Balance Sheet, occurred with respect to such assets and properties, except in each case as would not have, or would not be reasonably expected to have, a Company Material Adverse Effect.

 

Section 3.19          Transactions with Affiliates. Section 3.19 of the Company Schedules sets forth all Contracts effective as of the date hereof between (a) any Group Company, on the one hand, and (b) any officer, director or stockholder of the Company (including any Pre-Closing Holder ), on the other hand (the Persons identified in this clause (b), “Pre-Closing Holder Related Parties”), other than (i) Contracts with respect to a Pre-Closing Holder Related Party’s employment or services with (including benefit plans and other ordinary course compensation from) any of the Group Companies, (ii) any Ancillary Document, (iii) any Governing Documents of the Company or the Company Shareholder Agreements and (iv) Contracts providing for the purchase or subscription of Equity Securities of the Company and its Subsidiaries (all such Contracts, “Pre-Closing Holder Related Party Transactions”). No Pre-Closing Holder Related Party (A) provides any material services to, or leases any material assets or material properties to, any Group Company or any competitor of the Business, or (B) owes any amount to, or is owed any amount by, any Group Company (other than as set forth on Section 3.19 of the Company Schedules).

 

45

 

 

Section 3.20          Material Customers and Suppliers. Section 3.20 of the Company Schedules sets forth as of the date of this Agreement (i) the top 20 customers of the Company (x) for the year ended December 31, 2019 and (y) for the nine months ended September 30, 2020 (in each case based upon aggregate consideration paid to the Company for goods or services rendered during such period) (collectively, the “Material Customers”), and (ii) the top 10 suppliers and unaffiliated contractors or subcontractors of the Group Companies (x) for the year ended December 31, 2019 and (y) for the nine months ended September 30, 2020 (based upon the aggregate consideration paid by the Group Companies for goods or services rendered during such period) (collectively, the “Material Suppliers”). To the knowledge of the Company as of the date of this Agreement, there is no present intent, and the Company has not received written notice that, any Material Customer or Material Supplier will discontinue or materially alter its relationship with the Company.

 

Section 3.21          Data Privacy and Security Requirements.

 

(a)            The Group Companies are and, since December 31, 2015, have been in material compliance with all Data Privacy and Security Requirements. Except as set forth on Section 3.21 to the Company Schedules and to the knowledge of the Company, there have been no Security Incidents since December 31, 2017 with respect to any Company IT Systems, Business Data, or Company Products or otherwise related to the Business. No Group Company has since December 31, 2017 received any written notice from any Person, been required by applicable Law or Contract to give any notice to any Person, or been subject to any Proceeding, in each case with respect to any Security Incident or otherwise with respect to any breach or purported breach of any Data Privacy and Security Requirements. The Group Companies have implemented and maintain necessary and commercially reasonable security, disaster recovery and business continuity plans, procedures and facilities, including by implementing systems and procedures to encrypt all transmission of material Business Data on or from Company IT Systems. Since December 31, 2017, there has not been any material failure with respect to any of the Company IT Systems that has not been remedied or replaced in all material respects. The Group Companies have taken commercially reasonable steps intended to ensure that the Company IT Systems do not contain, and to the knowledge of the Company the Company IT Systems do not contain, any material unauthorized feature (including any worm, bomb, Trojan Horse, backdoor, clock, timer or other disabling device, code, design or routine, collectively, “Malicious Code”) or material defects, technical concerns or problems that would cause any Company IT System to be erased, inoperable or otherwise incapable of being used, or any computer code designed to disrupt, disable or harm in any manner the operation of any Software or hardware, either automatically, with the passage of time or upon command, or otherwise that would prevent the same from performing substantially in accordance with their user specifications or functionality descriptions.

 

(b)           The Group Companies (i) engage and have engaged in, directly or indirectly, Processing only with respect to such Data as they are authorized to so engage (or to cause such Processing, as applicable) by Law and, in the case of Data obtained from third parties, Contract, and (ii) have implemented reasonable safeguards designed to prevent unauthorized use or disclosure of such Data.  The Group Companies have, with respect to all such Data that is subjected to any Processing directly or indirectly in connection with the Business, all rights necessary to conduct such Processing as then-currently conducted, in all material respects.

 

46

 

 

(c)            None of the Group Companies has received any written communication from any Person since December 31, 2017 from whom it licenses, acquires or purchases any material Data (such arrangements, “Material Data Supply Agreements”) to the effect that any, and to the Company’s knowledge no, Person will stop or decrease the rate of, or materially alter the terms of, the business it conducts with (or the Data it provides under any Material Data Supply Agreements to) any Group Company. No Group Company is in material breach of any Material Data Supply Agreements.

 

Section 3.22          Compliance with International Trade & Anti-Corruption Laws.

 

(a)            Neither the Group Companies, nor, to the Company’s knowledge, any of their Representatives to the extent acting for or on behalf of any of the Group Companies is or has been, since December 31, 2015, (i) a Person named on any Sanctions and Export Control Laws-related list of designated Persons maintained by a Governmental Entity; (ii) located, organized or resident in a country or territory which is itself the subject of or target of any Sanctions and Export Control Laws; (iii) an entity owned, directly or indirectly, individually or in the aggregate, fifty percent or more by one or more Persons described in subsections (i) or (ii); (iv) otherwise engaging in dealings with or for the benefit of any Person described in subsections (i) – (iii) or any country or territory which is or has, since December 31, 2017, been the subject of or target of any Sanctions and Export Control Laws (at the time of this Agreement, the Crimea region of Ukraine, Cuba, Iran, North Korea, Venezuela, Sudan and Syria); or (v) otherwise in violation of Sanctions and Export Control Laws.

 

(b)            Neither the Group Companies nor, to the Company’s knowledge, any of their Representatives to the extent acting for or on behalf of any of the Group Companies has, since December 31, 2015, (i) made, offered, promised, paid or received any unlawful bribes, kickbacks or other similar payments to or from any Person, (ii) made or paid any contributions, directly or indirectly, to a domestic or foreign political party or candidate, or (iii) otherwise made, offered, received, authorized, promised or paid any improper payment under any Anti-Corruption Laws.

 

(c)            There have not been since December 31, 2015, any Proceedings, filings, disclosures, Orders, inquiries or governmental investigations alleging any such violations of Anti-Corruption Laws or Sanctions and Export Control Laws by the Group Companies, and to the Company’s Knowledge, no such Proceedings, filings, disclosures, Orders, inquiries or governmental investigations have been threatened in writing or are pending.

 

Section 3.23          Information Supplied. None of the information supplied or to be supplied by the Group Companies expressly for inclusion prior to the Closing in the Registration Statement / Proxy Statement will, when the Registration Statement / Proxy Statement is declared effective or when the Registration Statement / Proxy Statement is mailed to shareholders of STPK, and in the case of any amendment thereto, at the time of such amendment, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding the foregoing, the Company makes no representation, warranty or covenant with respect to: (a) statements made or incorporated by reference therein based on information supplied by STPK or Merger Sub for inclusion or incorporation by reference in the Registration Statement / Proxy Statement or any STPK SEC Reports; or (b) any projections or forecasts included in the Registration Statement / Proxy Statement.

 

47

 

 

Section 3.24          Investigation; No Other Representations.

 

(a)            The Company, on its own behalf and on behalf of its Representatives, acknowledges, represents, warrants and agrees that (i) it has conducted its own independent review and analysis of, and, based thereon, has formed an independent judgment concerning, the business, assets, condition, operations and prospects of the STPK Parties and (ii) it has been furnished with or given access to such documents and information about the STPK Parties and their respective businesses and operations as it and its Representatives have deemed necessary to enable it to make an informed decision with respect to the execution, delivery and performance of this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby.

 

(b)            In entering into this Agreement and the Ancillary Documents to which it is a party, the Company has relied solely on its own investigation and analysis and the representations and warranties expressly set forth in Article 4 and in the certificate to be delivered pursuant to Section 6.3(e)(i) and no other representations or warranties of any STPK Party or any other Person, either express or implied, and the Company, on its own behalf and on behalf of its Representatives, acknowledges, represents, warrants and agrees that, except for the representations and warranties expressly set forth in Article 4 and in the certificate to be delivered pursuant to Section 6.3(e)(i), no STPK Party or any other Person makes or has made any representation or warranty, either express or implied, in connection with or related to this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby.

 

Section 3.25          EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES; DISCLAIMER OF OTHER WARRANTIES. NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO the STPK parties OR ANY OF THEIR RESPECTIVE REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION (INCLUDING ANY FINANCIAL PROJECTIONS OR OTHER SUPPLEMENTAL DATA), EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS Article 3 OR THE certificate to be delivered by the company pursuant to Section 6.2(d)(i), NONE OF The Company, any group Company OR ANY OTHER PERSON MAKES, AND the company EXPRESSLY DISCLAIMS (ON ITS own BEHALF AND ON BEHALF OF THE GROUP COMPANIES AND ITS AND THEIR RESPECTIVE REPRESENTATIVES) ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE CONDITION, VALUE OR QUALITY OF THE COMPANY STOCK OR BUSINESSES OR ASSETS OF ANY OF THE GROUP COMPANIES, AND THE COMPANY SPECIFICALLY DISCLAIMS, ON ITS BEHALF AND ON BEHALF OF EACH OF THE GROUP COMPANIES, ANY REPRESENTATION OR WARRANT OF MERCHANTABILITY, USAGE, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT to its or their assets, any part thereof, the workmanship THEREOF, and the absence of any defects therein, whether latent or patent, it being understood that such subject assets are being acquired “as is, where is” on the Closing Date, and in their present condition, AND EACH OF The STPK Parties SHALL RELY SOLELY ON ITS OWN EXAMINATION AND INVESTIGATION THEREOF AND THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS Article 3 AND THE certificate to be delivered by the company pursuant TO Section 6.2(d)(i).

 

48

 

 

Article 4
REPRESENTATIONS AND WARRANTIES RELATING TO THE STPK PARTIES

 

Except as set forth (a) subject to Section 8.8, on the STPK Schedules or (b) in any STPK SEC Reports (excluding any disclosures in any “risk factors” section or in any forward-looking statements or similar disclaimers and other disclosures that are generally cautionary, predictive or forward-looking in nature), each STPK Party hereby represents and warrants on behalf of itself to the Company as follows:

 

Section 4.1            Organization and Qualification. Such STPK Party is a corporation, limited liability company or other business entity duly organized or formed, as applicable, validly existing and in good standing (or the equivalent thereof, if applicable, in each case, with respect to the jurisdictions that recognize the concept of good standing or any equivalent thereof) under the Laws of its jurisdiction of formation or organization (as applicable), except where the failure to be in good standing (or the equivalent thereof) would not have, or be reasonably expected to have, a STPK Material Adverse Effect.

 

Section 4.2            Authority. Such STPK Party has the requisite corporate, limited liability company or other similar power and authority to execute and deliver this Agreement, each of the Ancillary Documents to which such STPK Party is or will be a party and to consummate the transactions contemplated hereby and thereby. Subject to the receipt of the STPK Shareholder Approval and the Merger Sub Sole Stockholder Approval, the execution and delivery of this Agreement, the Ancillary Documents to which such STPK Party is or will be a party and the consummation of the transactions contemplated hereby and thereby have been (or, in the case of any Ancillary Document entered into after the date of this Agreement, will be upon execution thereof) duly authorized by all necessary corporate action on the part of such STPK Party. This Agreement has been and each Ancillary Document to which such STPK Party is or will be a party has been or will be upon execution thereof, duly and validly executed and delivered by such STPK Party and constitutes or will constitute, upon execution thereof, as applicable, a valid, legal and binding agreement of such STPK Party (assuming this Agreement has been and the Ancillary Documents to which such STPK Party is or will be a party are or will be upon execution thereof, as applicable, duly authorized, executed and delivered by the other Persons party hereto or thereto, as applicable), enforceable against such STPK Party in accordance with their terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity).

 

49

 

 

Section 4.3            Consents and Requisite Government Approvals; No Violations. Assuming the truth and accuracy of the representations and warranties set forth in Section 3.5 (and assuming all Consents referred to in such sections (or required to be disclosed in the corresponding sections of the Company Schedules) are made or obtained), no Consent of any Governmental Entity is necessary for the execution, delivery or performance of this Agreement or the Ancillary Documents to which such STPK Party is or will be a party or bound, or the consummation by such STPK Party of the transactions contemplated hereby and thereby, except for (a) compliance with and filings under the HSR Act, (b) compliance with and filings under any applicable Securities Laws, including the Registration Statement / Proxy Statement, (c) the STPK Shareholder Approval, (d) the filings, notices or other actions contemplated by Section 5.14 or (e) those the failure of which to obtain or make would not have, or be reasonably expected to have, a STPK Material Adverse Effect. Neither the execution, delivery and performance by such STPK Party of this Agreement nor the Ancillary Documents to which such STPK Party is or will be a party nor the consummation by such STPK Party of the transactions contemplated hereby and thereby will, directly or indirectly (with or without due notice or lapse of time or both) (i) conflict with or result in any breach of any provision of the Governing Documents of such STPK Party, (ii) result in a violation or breach of, or constitute a default or give rise to any right of termination, cancelation, amendment, modification, suspension, revocation or acceleration under, any of the terms, conditions or provisions of, or the loss of any benefits under, any Contract to which such STPK Party is a party or by which any such STPK Party or any of its properties or assets are bound, (iii) violate, or constitute a breach under, any Order or applicable Law to which any such STPK Party or any of its properties or assets are bound or (iv) result in the creation of any Lien upon any of the (x) assets or properties (other than any Permitted Liens) of such STPK Party or (y) the STPK Common Shares issued as part of the Total Merger Consideration hereunder, except in the case of clauses (ii) and (iv)(x) above, as would not have, or be reasonably expected to have, a STPK Material Adverse Effect.

 

Section 4.4            Brokers. Section 4.4 of the STPK Schedules sets forth a true, correct and complete list of (a) all broker’s, finder’s, financial advisor’s, investment banker’s fees or commissions or similar payments payable to any broker, finder, financial advisor or investment banker in connection with the transactions contemplated by this Agreement or any Ancillary Document based upon arrangements made by or on behalf of the STPK Parties or any of their respective Affiliates for which any Group Company may become liable, (b) all amounts due and payable to any Persons described in clause (a) in connection with, or as a result of, directly or indirectly, the execution, negotiation or delivery of this Agreement or any Ancillary Document, the performance of the covenants or obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby and (c) each Contract pursuant to which such amounts are due and payable.

 

Section 4.5            Financing. Attached hereto as Exhibit H are true, correct and complete copies of the executed Subscription Agreements, dated as of the date hereof, pursuant to which, and on the terms and subject to the conditions therein, the PIPE Investors have agreed to provide the PIPE Financing to STPK. Each Subscription Agreement is a legal, valid, and binding agreement of STPK and, to the knowledge of STPK, the other parties thereto, enforceable against such STPK in accordance with their terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity). Each commitment of PIPE Financing is in full force and effect, and no commitment of PIPE Financing has been withdrawn, rescinded, amended, modified or terminated, and no withdrawal, rescindment, amendment, modification or termination is contemplated by STPK. STPK is not in breach of any of the terms or conditions in the Subscription Agreements nor has any PIPE Investor party thereto notified STPK of its own breach of any of the terms or conditions under any Subscription Agreement. No event has occurred which, with or without notice, lapse of time or both, would constitute a breach by STPK of the terms or conditions in the Subscription Agreements, and, as of the date hereof, STPK has no reason to believe that it will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by it contained in any Subscription Agreement. There are no conditions precedent or contingencies to the obligations of the parties under any Subscription Agreement to fund the PIPE Financing Amount, other than as set forth in the Subscription Agreements. There are no other agreements, side letters or arrangements between STPK and any PIPE Investor relating to any Subscription Agreement which could affect the obligation of the PIPE Investors to contribute to STPK the applicable portion of the PIPE Financing Amount set forth in the Subscription Agreements, and, as of the date hereof, STPK does not know of any facts or circumstances that may reasonably be expected to result in any of the conditions set forth in any Subscription Agreement not being satisfied, or the PIPE Financing not being available to STPK, immediately following the Closing.

 

50

 

 

Section 4.6            Information Supplied. None of the information supplied or to be supplied by or on behalf of such STPK Party expressly for inclusion or incorporation by reference in the Registration Statement / Proxy Statement will, when the Registration Statement / Proxy Statement is declared effective or when the Registration Statement / Proxy Statement is mailed to the Pre-Closing STPK Holders, and in the case of any amendment thereto, at the time of such amendment, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding the foregoing, such STPK Party makes no representation, warranty or covenant with respect to any information supplied by or on behalf of the Company or its Affiliates.

 

Section 4.7            Capitalization of the STPK Parties.

 

(a)            Section 4.7(a) of the STPK Schedules sets forth as of the date hereof a true, correct, and complete statement of the number and class or series (as applicable) of the issued and outstanding STPK Shares and STPK Warrants. All outstanding STPK Shares, STPK Warrants and shares of Merger Sub Common Stock have been duly authorized and validly issued and are fully paid and non-assessable. Such Equity Securities of STPK and Merger Sub (i) were not issued in violation of applicable Law or the Governing Documents of STPK or Merger Sub and (ii) are not subject to any preemptive rights, call option, right of first refusal, subscription rights, transfer restrictions or similar rights of any Person (other than transfer restrictions under applicable Securities Law or under the Governing Documents of STPK) and were not issued in violation of any preemptive rights, call option, right of first refusal, subscription rights, transfer restrictions or similar rights of any Person. Except for this Agreement, the Ancillary Documents, as set forth in STPK’s Governing Documents (including the STPK Shareholder Redemption) and the transactions contemplated hereby and thereby, there are no outstanding (A) equity appreciation, phantom equity, profit participation rights, or (B) options, restricted stock, phantom stock, warrants, purchase rights, subscription rights, conversion rights, exchange rights, calls, puts, rights of first refusal or first offer or other Contracts that could require STPK to issue, sell or otherwise cause to become outstanding or to acquire, repurchase or redeem any STPK Shares or STPK Warrants or other Equity Securities of STPK or Merger Sub or securities convertible into or exchangeable or exercisable for STPK Shares, STPK Warrants or other Equity Securities of STPK or Merger Sub, and, except as expressly contemplated by this Agreement, the Ancillary Documents and STPK’s Governing Documents, there is no obligation of STPK or Merger Sub, to issue, sell or otherwise cause to become outstanding or to acquire, repurchase or redeem any STPK Shares or STPK Warrants or securities convertible into or exchangeable for STPK Shares or STPK Warrants.

 

51

 

 

(b)            STPK has no Subsidiaries other than Merger Sub and does not own, directly or indirectly, any Equity Securities in any Person other than Merger Sub.

 

(c)            The authorized capital stock of Merger Sub consists of 100 shares of common stock, par value $0.01 per share (the “Merger Sub Common Stock”). As of the date hereof, 100 shares of Merger Sub Common Stock are issued and outstanding. All outstanding shares of Merger Sub Common Stock have been duly authorized, validly issued, fully paid and are non-assessable and are not subject to preemptive rights, and are held by STPK.

 

(d)            Subject to receipt of the STPK Shareholder Approval, the STPK Common Shares to be issued by STPK in connection with the transactions contemplated hereby, upon issuance in accordance with the terms of this Agreement will be duly authorized, validly issued, fully paid and nonassessable, and will not be subject to any preemptive rights of any other stockholder of STPK and will be capable of effectively vesting in each holder of Company Common Stock title to all such securities, free and clear of all Liens (other than Liens arising pursuant to applicable Securities Law).

 

Section 4.8            SEC Filings. STPK has timely filed or furnished all statements, prospectuses, registration statements, forms, reports and documents required to be filed or furnished by it prior to the date of this Agreement with the SEC pursuant to Federal Securities Laws since its incorporation (collectively, and together with any exhibits and schedules thereto and other information incorporated therein, and as they have been supplemented, modified or amended since the time of filing, the “STPK SEC Reports”), and, as of the Closing, will have filed or furnished all other statements, prospectuses, registration statements, forms, reports and other documents required to be filed or furnished by it subsequent to the date of this Agreement with the SEC pursuant to Federal Securities Laws through the Closing (collectively, and together with any exhibits and schedules thereto and other information incorporated therein, and as they have been supplemented, modified or amended since the time of filing, but excluding the Registration Statement / Proxy Statement, the “Additional STPK SEC Reports”). STPK has heretofore furnished to the Company true and correct copies of all amendments and modifications, if any, that have not been filed by STPK with the SEC to all agreements, documents and other instruments that previously had been filed by STPK with the SEC and are currently in effect. Each of the STPK SEC Reports, as of their respective dates of filing, and as of the date of any amendment or filing that superseded the initial filing, complied, and each of the Additional STPK SEC Reports, as of their respective dates of filing, and as of the date of any amendment or filing that superseded the initial filing, will comply, in all material respects with the applicable requirements of the Federal Securities Laws (including the Sarbanes-Oxley Act and any rules and regulations promulgated thereunder) applicable to the STPK SEC Reports or the Additional STPK SEC Reports. As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the STPK SEC Reports. The STPK SEC Reports did not at the time they were filed with the SEC (except to the extent that information contained in any STPK SEC Report has been superseded by a later timely filed STPK SEC Report), and the Additional STPK SEC Reports will not, at the time they are filed, contain any 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 made therein, in the light of the circumstances under which they were made, not misleading.

 

52

 

 

Section 4.9            Trust Account. The funds held in the Trust Account are invested in U.S. government securities or money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act and held in trust pursuant to that certain Investment Management Trust Agreement, dated August 20, 2020, by and between STPK and Continental Stock Transfer & Trust Company, as trustee (the “Trustee”) (the “Trust Agreement”). There are no separate agreements, side letters or other arrangements or understandings (whether written or unwritten, express or implied) that would cause the description of the Trust Agreement in the STPK SEC Reports to be inaccurate in any material respect or, to STPK’s knowledge, that would entitle any Person to any portion of the funds in the Trust Account (other than (a) in respect of deferred underwriting commissions or Taxes, (b) Pre-Closing STPK Holders who shall have elected to redeem their STPK Class A Shares pursuant to the Governing Documents of STPK or (c) if STPK fails to complete a business combination as contemplated by a Business Combination Proposal within the allotted time period and liquidates the Trust Account, subject to the terms of the Trust Agreement, STPK (in limited amounts to permit STPK to pay the expenses of the Trust Account’s liquidation and dissolution) and then STPK’s public shareholders). Prior to the Closing, none of the funds held in the Trust Account are permitted to be released, except in the circumstances described in the Governing Documents of STPK and the Trust Agreement. The Trust Agreement is valid, binding and in full force and effect and enforceable in accordance with its terms and has not been amended or modified. STPK has complied in all material respects with the terms of the Trust Agreement and is not in breach thereof or default thereunder and there does not exist under the Trust Agreement any event which, with the giving of notice or the lapse of time, would constitute such a breach or default by STPK or, to knowledge of STPK, the Trustee. As of the date hereof, the Trust Account consists of no less than $383,603,554.00. Prior to the Closing, none of the funds held in the Trust Account may be released except for the matters described in the second sentence of Section 8.19. There are no Proceedings pending or, to the knowledge of STPK, threatened in writing with respect to the Trust Account.

 

Section 4.10          Litigation. There is (and since its incorporation there has been) no Proceeding pending or, to STPK’s knowledge, threatened against or involving (a) any STPK Party, (b) any of its respective properties or assets, or (c) any of its respective managers, officers, directors or employees (in their capacities as such), except as would not have, or be reasonably expected to have, a STPK Material Adverse Effect. No STPK Party is subject to any outstanding Order that is, or would reasonably be expected to be, material to the STPK Parties.

 

Section 4.11          Compliance with Applicable Law; Permits. Each STPK Party is (and since its incorporation or formation, as applicable, has been) in compliance in all material respects with all applicable Laws. Each STPK party holds all Permits necessary or required for the lawful conduct of its business or necessary or required to own, lease or operate any of its properties or assets, other than any such Permits which if not held by STPK or Merger Sub, would not reasonably be expected to have a STPK Material Adverse Effect. Each such Permit is valid and in full force and effect either pursuant to its terms or by operation of law and each STPK Party is, and since its incorporation has been, in compliance with the terms of such Permits, except as would not reasonably be expected to have a STPK Material Adverse Effect.

 

53

 

 

 

Section 4.12        Internal Controls; Listing; Financial Statements.

 

 

(a)          Since its incorporation, (i) STPK has established and maintains a system of internal controls over financial reporting (as defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act) sufficient to provide reasonable assurance regarding the reliability of STPK’s financial reporting and the preparation of STPK’s financial statements for external purposes in accordance with GAAP and (ii) STPK has established and maintains disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act) designed to ensure that material information relating to STPK is made known to STPK’s principal executive officer and principal financial officer by others within STPK.

 

(b)          STPK has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act.

 

(c)          STPK is in compliance in all material respects with all applicable listing and corporate governance rules and regulations of NYSE. The classes of securities representing issued and outstanding STPK Class A Shares are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on NYSE. There is no Proceeding pending or, to the knowledge of STPK, threatened against STPK by NYSE or the SEC with respect to any intention by such entity to deregister STPK Shares or STPK Warrants or prohibit or terminate the listing of STPK Shares or STPK Warrants on NYSE. STPK has not taken any action that is designed to terminate the registration of STPK Shares or STPK Warrants under the Exchange Act.

 

(d)         The STPK SEC Reports contain true, correct, and complete copies of the applicable STPK Financial Statements. The STPK Financial Statements (i) fairly present in all material respects the financial position of STPK as at the respective dates thereof, and the results of its operations, shareholders’ equity and cash flows for the respective periods then ended (subject, in the case of any unaudited interim financial statements, to normal year-end audit adjustments (none of which is reasonably expected to be material)), (ii) were prepared in conformity with GAAP applied on a consistent basis during the periods involved (except, in the case of any audited financial statements, as may be indicated in the notes thereto and subject, in the case of any unaudited financial statements, to normal year-end audit adjustments (none of which is reasonably expected to be material) and the absence of footnotes), (iii) in the case of the audited STPK Financial Statements, were audited in accordance with the standards of the PCAOB and (iv) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).

 

(e)          Since its incorporation, STPK has not received any written notification, complaint, allegation, assertion or claim that there is any (a) “significant deficiency” in the internal controls over financial reporting of STPK, (b) “material weakness” in the internal controls over financial reporting of STPK or (c) fraud, whether or not material, that involves management or other employees of STPK who have a significant role in the internal controls over financial reporting of STPK.

 

54

 

 

Section 4.13        No Undisclosed Liabilities. Except for liabilities (a) set forth in Section 4.13 of the STPK Schedules, (b) incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of its covenants and agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby, (c) set forth or disclosed in the STPK Financial Statements included in the STPK SEC Reports, (d) that have arisen since the date of the most recent balance sheet included in the STPK SEC Reports in the ordinary course of business (none of which is a liability for breach of contract, breach of warranty, tort, infringement, misappropriation or violation of Law), (e) incurred in accordance with Section 5.5(d) or Section 5.13, or (f) that are not and would not reasonably be expected to be, individually or in the aggregate, material to STPK, STPK has no liabilities.

 

Section 4.14       Tax Matters.

 

(a)          STPK has prepared and timely filed all federal income and other material Tax Returns required to have been filed by it, all such Tax Returns are true, correct and complete in all material respects and prepared in compliance in all material respects with all applicable Law, and STPK has timely paid all federal income and other material Taxes required to have been paid by it regardless of whether or not shown on any such Tax Return.

 

(b)         STPK has timely withheld and paid to the appropriate Tax Authority all material amounts required to have been withheld and paid in connection with amounts paid or owing to any employee, individual independent contractor, other service providers, equity interest holder, or other third party and has otherwise complied in all material respects with all applicable Laws relating to such withholding, collection and payment of Taxes.

 

(c)          STPK is not currently the subject of a Tax Proceeding, and no Tax Proceeding with respect to STPK is pending or has been threatened in writing. STPK has not been informed in writing of any deficiency, proposed adjustment, or assessment, in each case with respect to material Taxes, that has not been fully paid or finally resolved. All material deficiencies for Taxes asserted or assessed in writing against STPK have been fully and timely (taking into account applicable extensions) paid, settled or withdrawn, and, no such deficiency has been threatened or proposed in writing against STPK.

 

(d)         STPK has not consented to extend or waive the time in which any material Tax may be assessed or collected by any Tax Authority, other than any such extensions or waivers that are no longer in effect or that were extensions of time to file Tax Returns obtained in the ordinary course of business.

 

(e)          No “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been requested, entered into or issued by any Tax Authority with respect to STPK which agreement or ruling would be effective after the Closing Date.

 

(f)          STPK is not and has not been a party to any “listed transaction” as defined in Section 6707A of the Code and Treasury Regulations Section 1.6011-4 (or any corresponding or similar provision of state, local or non-U.S. income Law).

 

55

 

 

(g)         There are no Liens for material Taxes on any assets of STPK other than Permitted Liens.

 

(h)          During the two-year period ending on the date of this Agreement, STPK (or any predecessor thereof) was not a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 355 of the Code.

 

(i)           STPK (i) has not been a member of an Affiliated Group (other than an Affiliated Group the common parent of which is STPK) and (ii) does not have any material liability for the Taxes of any Person under Section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local or non-U.S. Law) as a transferee or successor, by Contract, by operation of applicable Law or otherwise.

 

(j)           No written claims have ever been made by any Tax Authority in a jurisdiction where a Group Company does not file Tax Returns that such Group Company is or may be subject to taxation by that jurisdiction, which claims have not been resolved or withdrawn.

 

(k)          No Group Company is a party to any Tax allocation, Tax sharing or Tax indemnity or similar agreements (other than commercial agreements entered into in the ordinary course of business that are not primarily related to Taxes), and no Group Company is a party to any joint venture, partnership or other arrangement that is treated as a partnership for U.S. federal income Tax purposes.

 

(l)           STPK has not taken, has not agreed to take, and does not intend to take, in each case, any action that could reasonably be expected to prevent or impede the transactions contemplated by this Agreement from qualifying for the Intended Tax Treatment. To the knowledge of STPK, no facts or circumstances exist that could reasonably be expected to prevent or impede the transactions contemplated by this Agreement from qualifying for the Intended Tax Treatment.

 

(m)        STPK has not filed any amended Tax Return or other claim for a refund as a result of, or in connection with, the carry back of any net operating loss or other attribute to a year prior to the taxable year including the Closing Date under Section 172 of the Code, as amended by Section 2303 of the CARES Act, or any corresponding or similar provision of state, local or non-U.S. Law.

 

(n)         STPK has (i) to the extent applicable, materially complied with all legal requirements in order to defer the amount of the employer’s share of any “applicable employment taxes” deferred by STPK under Section 2302 of the CARES Act, (ii) to the extent applicable, materially complied with all legal requirements and duly accounted for any available Tax credits claimed by STPK under Sections 7001 through 7005 of the Families First Act, and (iii) has not received or claimed any Tax credits under Section 2301 of the CARES Act.

 

(o)         STPK will not be required to include any material item of income, or exclude any material item of deduction, for any period (or portion thereof) after the Closing Date (determined with and without regard to the transactions contemplated by this Agreement) as a result of: (i) an installment sale transaction occurring before the Closing governed by Section 453 of the Code (or any similar provision of state, local or non-U.S. Laws) or open transaction; (ii) a disposition occurring before the Closing reported as an open transaction for U.S. federal income Tax purposes (or any similar doctrine under state, local, or non-U.S. Laws); (iii) any prepaid amounts received prior to the Closing or deferred revenue realized, accrued or received outside the ordinary course of business prior to the Closing; (iv) a change in method of accounting under Section 481 of the Code that occurs or was requested prior to the Closing (or as a result of an impermissible method used prior to Closing); or (v) an agreement entered into with any Governmental Entity (including a “closing agreement” under Section 7121 of the Code) prior to the Closing. STPK will not be required to make any payments after the Closing Date under Section 965 of the Code.

 

56

 

 

(p)         To the knowledge of STPK and Merger Sub, there is no fact or circumstance that would reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.

 

Section 4.15        Business Activities. Since their respective incorporation, neither STPK nor Merger Sub has conducted any business activities other than activities: (a) in connection with its organization; or (b) directed toward the accomplishment of a business combination in accordance with its Governing Documents. Except as set forth in the Governing Documents of STPK, there is no Contract or Order binding upon any STPK Party or to which any of them is a party which has or could reasonably be expected to have the effect of prohibiting or materially impairing any material business practice of it or the conduct of business by STPK as currently conducted or as contemplated to be conducted as of the Closing.

 

Section 4.16        Board Approval; Stockholder Vote. The board of directors of STPK (including any required committee or subgroup of the board of directors of STPK) has, as of the date of this Agreement, unanimously: (a) approved and declared the advisability of this Agreement, the other Ancillary Documents and the consummation of the transactions contemplated hereby and thereby (including the Merger and the issuance of the STPK Common Shares constituting the Total Merger Consideration pursuant to Article 2); and (b) determined that the consummation of the transactions contemplated hereby (including the Merger and the issuance of the STPK Common Shares constituting the Total Merger Consideration pursuant to Article 2) is in the best interest of the stockholders of STPK. Other than the approval of this Agreement, the Ancillary Documents, the Merger and the issuance of the STPK Common Shares constituting the Total Merger Consideration pursuant to Article 2 and the other transactions contemplated by this Agreement by the board of directors and/or shareholders of STPK and Merger Sub, as applicable, no other corporate or equivalent proceedings on the part of STPK are necessary to approve this Agreement, the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby (including the Merger and the issuance of the STPK Common Shares contemplated hereby).

 

Section 4.17        Certain Contracts. Except as described in the STPK SEC Reports or as set forth on Section 4.17 of the STPK Schedules, no Contract between STPK, on the one hand, and any of the present or former directors, officers, employees, stockholders or warrant holders or Affiliates of STPK (or an immediate family member of any of the foregoing), on the other hand, will continue in effect following the Closing, other than any such Contract that is not material to STPK.

 

57

 

 

Section 4.18        Investigation; No Other Representations.

 

(a)         Such STPK Party, on its own behalf and on behalf of its Representatives, acknowledges, represents, warrants and agrees that (i) it has conducted its own independent review and analysis of, and, based thereon, has formed an independent judgment concerning, the business, assets, condition, operations and prospects of the Group Companies (including the Business) and (ii) it has been provided with certain documents and certain information about the Group Companies and their respective businesses and operations to enable it to make an informed decision with respect to the execution, delivery and performance of this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby.

 

(b)          In entering into this Agreement and the Ancillary Documents to which it is a party, such STPK Party has relied solely on its own investigation and analysis and the representations and warranties expressly set forth in Article 3 and the certificate to be delivered pursuant to Section 6.2(d)(i) and no other representations or warranties of the Company or any other Person, either express or implied, and such STPK Party, on its own behalf and on behalf of its Representatives, acknowledges, represents, warrants and agrees that, except for the representations and warranties expressly set forth in Article 3 and the certificate to be delivered pursuant to Section 6.2(d)(i), none of the Company or any other Person makes or has made any representation or warranty, either express or implied, in connection with or related to this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby.

 

Section 4.19        EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES. NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO the company OR ITS REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION (INCLUDING ANY FINANCIAL PROJECTIONS OR OTHER SUPPLEMENTAL DATA), EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS Article 4 and THE ANCILLARY DOCUMENTS, NO STPK Party OR ANY OTHER PERSON MAKES, AND EACH STPK party EXPRESSLY DISCLAIMS (ON ITS own BEHALF AND ON BEHALF OF its REPRESENTATIVES) ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE CONDITION, VALUE OR QUALITY OF THE equity SECURITIES, BUSINESSES OR ASSETS OF any STPK party, AND the Company SHALL RELY SOLELY ON ITS OWN EXAMINATION AND INVESTIGATION THEREOF and THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS Article 4 and THE ANCILLARY DOCUMENTS.

 

Article 5
COVENANTS

 

Section 5.1          Conduct of Business of the Group Companies.

 

(a)          From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall, and the Company shall cause its Subsidiaries to, except (i) as expressly required by this Agreement or any Ancillary Document, (ii) as required by applicable Law, (iii) as set forth on Section 5.1(a) of the Company Schedules, (iv) as required to comply with COVID-19 Measures, (v) in connection with any commercially reasonable action taken or not taken by the Company or any of its Subsidiaries in good faith to mitigate the risk on any of the Group Companies of COVID-19 or the COVID-19 Measures (in each case of clause (iv) and/or clause (v) of this Section 5.1(a), but only to the extent reasonable and prudent in light of the business of the Group Companies and, where applicable, the circumstances giving rise to adverse changes in respect of COVID-19 or the COVID-19 Measures, operate the business of the Group Companies in the ordinary course, collectively the “COVID-19 Changes”) or (vi) as consented to in writing by STPK, (A) operate the business of the Group Companies in the ordinary course of business consistent with past practice; provided that, any action taken, or omitted to be taken, that is required by applicable Law shall be deemed to be in the ordinary course of business and (B) use commercially reasonable efforts to maintain and preserve intact the Business and goodwill of the Group Companies.

 

58

 

 

(b)        Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall, and the Company shall cause its Subsidiaries to, except as required by this Agreement, as required by applicable Law, as required by the COVID-19 Measures or in connection with COVID-19 Changes, or as set forth on Section 5.1(b) of the Company Schedules or as consented to in writing by STPK (such consent, other than in the case of Section 5.1(b)(i), (ii), (iii) and (x), to the extent related to the immediately foregoing COVID-19 matters, not to be unreasonably withheld, conditioned or delayed), not do any of the following:

 

(i)            declare, set aside, make or pay a dividend on, or make any other distribution or payment in respect of, any Group Company’s Equity Securities, or repurchase, redeem, or otherwise acquire, any outstanding Equity Securities of any Group Company, other than any redemptions of outstanding Equity Securities of any Group Company held by an employee thereof in connection with his or her termination of employment, but solely to the extent such redemption is contemplated pursuant to the terms of such individual’s employment agreement or award agreement(s) issued under a Company Equity Plan;

 

(ii)            (A) merge, consolidate, combine or amalgamate any Group Company with any Person or (B) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any business or any corporation, partnership, association or other business entity or organization or division thereof;

 

(iii)          adopt any amendments, supplements, restatements or modifications to or otherwise terminate any Group Company’s Governing Documents or the Company Shareholder Agreements;

 

(iv)          (A) sell, assign, abandon, let lapse, lease, license or otherwise dispose of any material assets or properties of the Group Companies (including any material Company Owned Intellectual Property), other than non-exclusive licenses granted to customers or distributors of Company Products in the ordinary course of business, or inventory or obsolete equipment in the ordinary course of business, (B) create, subject or incur any Lien on any material assets or properties of the Group Companies (other than Permitted Liens), or (C) disclose any Trade Secrets of the Group Companies (other than pursuant to a written confidentiality agreement entered into in the ordinary course of business with reasonable protections of such Trade Secrets and other confidential information) or any source code (except to contractors or service providers providing development, support or maintenance services to any Group Company that are subject to agreements with reasonable Intellectual Property assignment and confidentiality provisions);

 

59

 

 

(v)           (A) transfer, issue, sell, grant or otherwise directly or indirectly dispose of, or subject to a Lien, (1) any Equity Securities of any Group Company or (2) any options, warrants, rights of conversion or other rights, agreements, arrangements or commitments obligating any Group Company to issue, deliver or sell any Equity Securities of any Group Company (other than the issuance of Convertible Promissory Notes under existing Contracts) or (B) adjust, split, combine or reclassify any Equity Securities of any Group Company or other rights exercisable therefor or convertible into;

 

(vi)          incur, create or assume any Indebtedness for borrowed money (including any loan pursuant to the provisions of the CARES Act), except pursuant to Contracts existing as of the date hereof;

 

(vii)        (A) enter into, amend, modify, extend, renew or terminate any Material Contract or any Real Property Lease (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any Material Contract or any Real Property Lease pursuant to its terms), other than in the ordinary course of business, or (B) waive any material benefit or right under any Material Contract or Real Property Lease, other than in the ordinary course of business;

 

(viii)        with respect to a Group Company, make any loans, advances or capital contributions to, or guarantees for the benefit of, or any equity or other investments in, any Person, other than any capital contributions by a Group Company in another wholly-owned Group Company in the ordinary course of business, the reimbursement of expenses of employees in the ordinary course of business, or pursuant to obligations under existing Contracts;

 

(ix)          except as required pursuant to the terms of any Employee Benefit Plan of the Group Companies that is set forth on Section 3.11(a) of the Company Schedules, (A) adopt, enter into, amend or materially modify, or terminate any Company Plan or PEO Plan or any benefit or compensation plan, policy, program or Contract that would be a Company Plan if in effect as of the date hereof (other than year-end amendments or modifications to health and welfare benefit plans that are “employee benefit plans” (as such term is defined in Section 3(3) of ERISA) made in the ordinary course of business or as otherwise required by applicable Law), (B) decrease, increase, or agree to increase, the compensation or benefits payable to any current or former director, manager, officer, employee, individual independent contractor or other service providers of the Group Companies whose annual compensation equals or exceeds $200,000 (which, in the case of any such increase, is determined prior to such increase), (C) take any action to accelerate any payment, right to payment, or benefit, or the funding of any payment, right to payment or benefit, payable or to become payable to any current or former director, manager, officer, employee, individual independent contractor or other service provider of the Group Companies, (D) hire, engage, transfer or terminate (other than for cause), furlough or temporarily layoff any director, manager, officer, employee, individual independent contractor or other service provider of the Group Companies whose total annual compensation exceeds or would exceed $200,000, (E) except as required by Law, with respect to a Group Company or any employees of the Group Companies, amend, modify, negotiate, adopt, enter into, extend, renew or terminate any CBA or other Contract with any labor organization, works council or labor union, employee delegate, representative or other employee collective group that is representing any employee of a Group Company, (F) except as required by Law, recognize or certify any labor organization, works council, labor union or group of employees of the Group Companies as the bargaining representative for any employees of a Group Company, (G) with respect to a Group Company or any employees of the Group Companies, engage in or announce any employee layoffs, furloughs, reductions in force, reductions in compensation, hours or benefits, work schedule changes or similar actions outside of the ordinary course of business or that could implicate WARN, or (H) waive or release any noncompetition, nonsolicitation, no-hire, nondisclosure, or other restrictive covenant obligation of any current or former director, manager, officer, employee, individual independent contractor or other service providers of the Group Companies whose annual compensation equals or exceeds $200,000;

 

60

 

 

(x)           make, change or revoke any material election concerning Taxes, adopt or change any accounting method concerning Taxes, change any Tax accounting period, materially amend any material Tax Return, enter into any material Tax closing agreement, settle or surrender any material Tax Proceeding, fail to pay any material Tax when due (including any material estimated Tax payments), or claim any Tax credits under Section 2301 of the CARES Act, enter into any Tax sharing, Tax allocation or Tax indemnity agreement, or surrender any right to claim any refund of a material amount of Taxes;

 

(xi)          take any action or knowingly fail to take any action where such action or failure to act would reasonably be expected to prevent or impede the Intended Tax Treatment;

 

(xii)         change any member of the Group Companies’ methods of accounting or accounting practices, except as required by GAAP;

 

(xiii)        (A) enter into any settlement, conciliation or similar Contract, in each case, in respect of a Proceeding (1) the performance of which involves or could reasonably involve at any point in the future the payment by the Group Companies (or STPK or any of its Affiliates after the Closing) in excess of $500,000 in the aggregate (in each case with respect to any Proceeding, determined net of any insurance coverage in respect of such Proceeding), (2) that imposes, or could reasonably impose at any point in the future, any non-monetary obligations (including injunctive relief) on any Group Company (or STPK or any of its Affiliates after the Closing), (3) that involves any criminal misconduct or any admission or wrongdoing or other misconduct by any Group Company (or STPK or any of its Affiliates after the Closing), or (4) that is brought by or on behalf of any Pre-Closing Holder, or (B) commence any lawsuit, litigation, action, demand, examination, hearing, claim, charge, complaint, suit or arbitration;

 

61

 

 

(xiv)       authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving any of the Group Companies;

 

(xv)       with respect to a Group Company, commit or authorize any capital commitment or capital expenditure (or series of capital commitments or capital expenditures), other than those capital expenditures contemplated by the Group Companies’ capital expenditure budget set forth on Section 5.1(b)(xv) of the Company Schedules or unbudgeted capital expenditures not to exceed 5% of the current aggregate capital expenditure budget set forth on Section 5.1(b)(xv) of the Company Schedules;

 

(xvi)       other than with respect to any Company Plan or PEO Plan, change any insurance policy or plan of a Group Company in effect as of the date hereof or allow such policy or plan to lapse, in each case without using commercially reasonable efforts to obtain a reasonable replacement thereof;

 

(xvii)      enter into, amend, waive or terminate (other than terminations in accordance with their terms or as contemplated by Section 5.11) any Pre-Closing Holder Related Party Transactions;

 

(xviii)     (A) change in any material respect any cash management practices and policies or practices regarding the collection of accounts receivable, the payment of accounts payable, establishment of reserves for uncollectible accounts or otherwise seek to generate revenue outside the ordinary course of business, (B) accelerate the collection of accounts receivables or defer any accounts payable, in each case other than in the ordinary course of business, (C) change, modify, or write-off as uncollectible any notes or accounts receivable of the Group Companies, except write-offs in the ordinary course of business, or (D) take any other material action outside the ordinary course of business with respect to the working capital of the Group Companies; and

 

(xix)        enter into any Contract to take, or cause to be taken, any of the actions set forth in this Section 5.1.

 

Notwithstanding anything in this Section 5.1 or this Agreement to the contrary, nothing set forth in this Agreement shall give STPK, directly or indirectly, the right to control or direct the operations of the Group Companies prior to the Closing.

 

62

 

 

Section 5.2           Efforts to Consummate.

 

(a)          Subject to the terms and conditions herein provided, each of the Parties shall use its reasonable best efforts to take, or cause to be taken, all action and to do, or cause to be done, all things reasonably necessary, proper or advisable to consummate and make effective as promptly as practicable the transactions contemplated by this Agreement (including the satisfaction, but not waiver, of the Closing conditions set forth in Article 6 and, in the case of any Ancillary Document to which such Party will be a party to upon the execution thereof, the execution and delivery of such Ancillary Document). Notwithstanding the foregoing, each Party shall use reasonable best efforts to obtain consents of all Governmental Entities necessary to consummate the transactions contemplated by this Agreement and the Ancillary Documents.

 

(b)          Each Party shall (i) make, or cause to be made, an appropriate filing or take, or cause to be taken, any required actions, as applicable, pursuant to the HSR Act with respect to the transactions contemplated by this Agreement promptly (and in any event, within ten (10) Business Days) after the date of this Agreement, (ii) request early termination of the waiting period thereunder and (iii) respond as promptly as practicable to any requests by any Governmental Entity for additional information and documentary material that may be requested pursuant to the HSR Act. All filing fees in connection with the HSR Act shall be Company Expenses. Each Party shall promptly inform the other Parties of any material communication between such Party and any Governmental Entity regarding any of the transactions contemplated by this Agreement or any Ancillary Document. Without limiting the foregoing, each Party and their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity not to consummate the transactions contemplated hereby or by the Ancillary Documents, except with the prior written consent of STPK and the Company. STPK agrees to take all actions that are required by any Governmental Entity in connection with the filing pursuant to the HSR Act to expeditiously consummate the transactions contemplated by this Agreement, including to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities, assets or facilities of any Group Company or any entity, facility or asset of such Party, (ii) terminate, amend or assign existing relationships and contractual rights or obligations, (iii) amend, assign or terminate existing licenses or other agreements, or (iv) enter into new licenses or other agreements, provided that any such action: (x) is conditioned upon the consummation of the transactions contemplated by this Agreement and (y) does not require STPK to agree to take, any action if such action would have, or would be reasonably expected to have, a Company Material Adverse Effect. Nothing in this Section 5.2 obligates any Affiliate of STPK (other than any Subsidiary of STPK) to agree to (1) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities, assets or facilities of such Affiliate, (2) terminate, amend or assign existing relationships and contractual rights or obligations, (3) amend, assign or terminate existing licenses or other agreements, or (4) enter into new licenses or other agreements.

 

(c)          From and after the date of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with its terms, the STPK Parties, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of any STPK Party) or STPK and its counsel (in the case of the Company), a reasonable opportunity to review in advance (subject to appropriate redactions for confidentiality and attorney-client privilege concerns), and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Entity relating to the transactions contemplated by this Agreement or any Ancillary Document. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it consults with, in the case of any STPK Party, the Company, or, in the case of the Company, STPK, in advance and, to the extent reasonably practicable and not prohibited by such Governmental Entity, gives, in the case of any STPK Party, the Company, or, in the case of the Company, STPK, the opportunity to attend and participate in such meeting or discussion (which, at the request of STPK, will be limited to outside antitrust counsel only).

 

63

 

 

(d)          In furtherance of, and without limiting the Parties’ obligations pursuant to, Section 5.2(a), the Company shall use commercially reasonable efforts to obtain, prior to the Closing, written consents, in form and substance reasonably acceptable to STPK, from each of the counterparties to the agreements set forth on Section 5.2(d) of the Company Schedules; provided that nothing herein shall require a Party or any of its respective Affiliates to expend money, commence any Proceeding or offer or grant any accommodation (financial or otherwise) to any third party. All costs incurred in connection with obtaining such consents shall be Company Expenses.

 

(e)          Notwithstanding anything to the contrary in the Agreement, in the event that this Section 5.2 conflicts with any other covenant or agreement in this Article 5 that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict.

 

Section 5.3          Access to Information. Solely for the purposes of consummating the transactions contemplated by this Agreement and the Ancillary Documents, from and after the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, upon reasonable advance written notice, the Company shall provide, or cause to be provided, to STPK and its Representatives during normal business hours reasonable access to all of the employees, properties, Contracts, and books and records of the Group Companies (in a manner so as to not interfere with the normal business operations of the Group Companies). All of such information shall be treated as “Confidential Information” (or the applicable equivalent term) pursuant to the terms of the Confidentiality Agreement, the provisions of which are by this reference hereby incorporated herein. Notwithstanding the foregoing, none of the Group Companies shall be required to disclose to STPK or any of its Representatives any information (i) if and to the extent doing so (A) would violate any applicable Law, (B) could, as reasonably determined upon the advice of outside legal counsel, result in the loss of the ability to successfully assert any attorney-client or work product privilege (provided that, in case of each of (A) and (B), the Company shall, and shall cause the other Group Companies to, use commercially reasonable efforts to provide (x) such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) or (y) such information in a manner without violating such privilege, Contract or Law), (ii) if any Group Company, on the one hand, and STPK or any of its Representatives, on the other hand, are adverse parties in a litigation and such information is reasonably pertinent thereto; provided that the Company shall, in the case of clause (i) or (ii), provide prompt written notice of the withholding of access or information on any such basis, or (iii) that is a Trade Secret. The Parties hereby acknowledge and agree that the Confidentiality Agreement shall be automatically terminated effective as of the Closing without any further action by any Party or any other Person.

 

64

 

 

 

Section 5.4             Public Announcements.

 

(a)            Subject to Section 5.4(b), Section 5.9 and Section 5.10, none of the Parties nor any of their respective Representatives shall issue any press releases or make any public announcements with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the Company and STPK, prior to the Closing; provided, however, that each Party may make any such announcement or other communication (i) if such announcement or other communication is required by applicable Law or the rules of any stock exchange, in which case the disclosing Party shall, to the extent permitted by applicable Law, first allow the Company, if the disclosing party is a STPK Party, or STPK, if the disclosing party is the Company (prior to the Closing), to review such announcement or communication and the opportunity to comment thereon and the disclosing Party shall consider such comments in good faith, (ii) to the extent such announcements or other communications contain only information previously disclosed in a public statement, press release or other communication previously approved in accordance with this Section 5.4, and (iii) to Governmental Entities in connection with any Consents required to be made under this Agreement or in connection with the transactions contemplated hereby. Notwithstanding anything to the contrary in this Section 5.4 or otherwise in this Agreement, the Parties agree that the Sponsor, STPK and their respective Representatives may provide general information about the subject matter of this Agreement and the transactions contemplated hereby to any direct or indirect current or prospective investor (including in connection with the PIPE Financing) or in connection with normal fund raising or related marketing or informational or reporting activities. Furthermore, between the date hereof and the Closing Date, the Company shall not, and each shall cause its Subsidiaries not to, make any broad-based announcements or disclosures regarding the transactions contemplated hereby or any Ancillary Document to any of their respective employees, customers, suppliers or other business relationships without the prior written consent of STPK (not to be unreasonably withheld, delayed or conditioned).

 

(b)            The initial press release concerning this Agreement and the transactions contemplated hereby shall be a joint press release in the form agreed by the Company and STPK prior to the execution of this Agreement and such initial press release (the “Signing Press Release”) shall be released as promptly as practicable after the execution of this Agreement (but in any event within four (4) Business Days thereafter). Promptly after the execution of this Agreement (but in any event within four (4) Business Days thereafter), STPK shall file a current report on Form 8-K (the “Signing Filing”) with the Signing Press Release and a description of this Agreement as required by Securities Laws, which the Company shall have the opportunity to review and comment upon prior to filing and STPK shall consider such comments in good faith. The Company, STPK and the Sponsor shall mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed by any of them) and, as promptly as practicable after the Closing (but in any event within four (4) Business Days thereafter), issue a press release announcing the consummation of the transactions contemplated by this Agreement (the “Closing Press Release”). Promptly after the Closing (but in any event within four (4) Business Days after the Closing), STPK shall file a current report on Form 8-K (the “Closing Filing”) with the Closing Press Release and a description of the Closing as required by Securities Laws, which the Sponsor shall have the opportunity to review and comment upon prior to filing and STPK shall consider in good faith such comments. In connection with the preparation of the Signing Press Release, the Signing Filing, the Closing Press Release or the Closing Filing, each Party shall, upon written request by any other Party, furnish such other Party with all information concerning itself, its directors, officers and equityholders, and such other matters as may be reasonably necessary for such press release or filing.

 

65

 

 

(c)            Without limiting the foregoing, from and after the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, the Company shall maintain, and shall cause its Affiliates who are in possession of any material non-public information, written or oral, it or they may have to the extent regarding STPK or any of its Affiliates, including this Agreement and its terms and conditions (“STPK Confidential Information”), to maintain such STPK Confidential Information, in confidence, and such information shall not be disclosed or used by the Company or its Affiliates for any purpose without STPK’s prior written consent, unless such information: (i) is or becomes otherwise publicly available through no breach by the Company or its Affiliates of this Section 5.4(c), (ii) is required to be disclosed by applicable Law or the rules of any stock exchange, in which case the disclosing Party shall, to the extent permitted by applicable Law, notify STPK in advance of such disclosure, (iii) is requested or required to be disclosed by a Governmental Entity in connection with any Proceeding, audit or investigation of any Group Company, in which case the disclosing Party shall, to the extent permitted by applicable Law, notify STPK in advance of such disclosure (provided that such notice shall not be required in connection with any routine audit or examination not targeting STPK or the transactions contemplated by this Agreement), (iv) is disclosed to the Company’s Representatives and agents solely for the purposes of evaluating, negotiating, executing and consummating the transaction contemplated by this Agreement and the Ancillary Documents, or (v) is disclosed or used in connection with any Proceeding to enforce the rights of the Company or its Affiliates under this Agreement or any Ancillary Document.

 

Section 5.5             Indemnification; Directors’ and Officers’ Insurance.

 

(a)            STPK agrees that (i) all rights to indemnification or exculpation now existing in favor of the directors and officers of each Group Company, as provided in a Group Company’s Governing Documents or otherwise in effect as of the date of this Agreement and set forth on Section 5.5(a) of the Company Schedules, in either case, solely with respect to any matters occurring on or prior to the Closing, shall survive the transactions contemplated by this Agreement and shall continue in full force and effect from and after the Closing for a period of six (6) years, and (ii) the Group Companies will perform and discharge all obligations to provide such indemnity and exculpation during such six (6) year period. To the maximum extent permitted by applicable Law, during such six (6) year period, the Group Companies shall advance expenses in connection with such indemnification as provided in such Group Company’s Governing Documents or other applicable agreements. The indemnification and liability limitation or exculpation provisions of the Group Companies’ Governing Documents shall not, during such six (6) year period, be amended, repealed or otherwise modified after the Closing in any manner that would materially and adversely affect the rights thereunder of individuals who, as of the Closing or at any time prior to the Closing, were directors or officers of any Group Company (the “D&O Persons”) to be so indemnified, have their liability limited or be exculpated with respect to any matters occurring prior to Closing and relating to the fact that such D&O Person was a director or officer of any Group Company prior to the Closing, unless such amendment, repeal or other modification is required by applicable Law.

 

66

 

 

(b)            Neither STPK nor any Group Company shall have any obligation under this Section 5.5 to any D&O Person when and if a court of competent jurisdiction shall ultimately determine (and such determination shall have become final and non-appealable) that the indemnification of such D&O Person in the manner contemplated hereby is prohibited by applicable Law.

 

(c)            The Company shall cause the Group Companies to purchase, at or prior to the Closing, and STPK shall cause the Group Companies to maintain in effect for a period of six (6) years after the Closing Date, without lapses in coverage, a “tail” policy or policies providing directors’ and officers’ liability insurance coverage for the benefit of those Persons who are currently covered by any comparable insurance policies of the Group Companies as of the date hereof (the “Company D&O Tail Policy”). Such Company D&O Tail Policies shall provide coverage on terms (with respect to coverage and amount) that are substantially the same as (and no less favorable in the aggregate to the insured than) the coverage provided under the Group Companies’ directors’ and officers’ liability insurance policies as of the date hereof; provided that the Group Companies shall not pay a premium for the Company D&O Tail Policy in excess of 300% of the most recent annual premium paid by the Group Companies, as applicable, prior to the date of this Agreement and, in such event, the Group Companies shall purchase the maximum coverage available for 300% of the most recent annual premium paid by the Group Companies prior to the date of this Agreement.

 

(d)            Prior to the Effective Time, STPK may purchase a prepaid “tail” policy (a “STPK Tail Policy”) with respect to directors’ and officers’ liability insurance coverage for the benefit of those Persons who are currently covered by any comparable insurance policies of STPK’s as of the date hereof, which STPK Tail Policy shall be on the same or substantially similar terms agreed to for such tail policy by STPK in connection with its initial public offering. If STPK elects to purchase such a STPK Tail Policy prior to the Effective Time, STPK will maintain such STPK Tail Policy in full force and effect for a period of no less than six (6) years after the Closing Date and continue to honor its obligations thereunder.

 

(e)            If STPK, any Group Company or any of their respective successors or assigns (i) shall merge or consolidate with or merge into any other corporation or entity and shall not be the surviving or continuing corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of their respective properties and assets as an entity in one or a series of related transactions to any Person, then in each such case, proper provisions shall be made so that the successors or assigns of STPK or such Group Company shall assume all of the obligations set forth in this Section 5.5 unless otherwise assumed by operation of Law.

 

(f)            The D&O Persons entitled to the indemnification, liability limitation, exculpation and insurance set forth in this Section 5.5 are intended to be third party beneficiaries of this Section 5.5. This Section 5.5 shall survive the consummation of the transactions contemplated by this Agreement and shall be binding on all successors and assigns of STPK and the Group Companies. The rights of each D&O Person hereunder shall be in addition to, and not in limitation of, any other rights such Person may have under the Governing Documents of any Group Company, any other indemnification arrangement, any applicable Law or otherwise.

 

67

 

 

Section 5.6            Tax Matters.

 

(a)            Tax Treatment.

 

(i)            Each of the Parties intend that the Merger shall constitute a transaction that qualifies as a “reorganization” within the meaning of Section 368(a) of the Code, and each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to so qualify and shall prepare and file all Tax Returns consistent with, and take no position inconsistent with (whether in Tax Returns, Tax Proceedings, or otherwise) such treatment unless required to do so pursuant to a “determination” within the meaning of Section 1313(a) of the Code.

 

(ii)           The STPK Parties and the Company hereby adopt this Agreement as a “plan of reorganization” for the purposes of Section 368 of the Code and Treasury Regulations Sections 1.368-2(g) and 1.368-3(a). The Parties shall not take or cause to be taken any action, or knowingly fail to take any action, which action or failure to act prevents or impedes, or could reasonably be expected to prevent or impede, the Intended Tax Treatment.

 

(b)            FIRPTA Certificate. STPK hereby requests, and the Company shall deliver to STPK prior to the Closing, (i) a certificate pursuant to Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), dated not more than thirty (30) days prior to the Closing Date and signed by an executive officer of the Company, certifying that the equity interests in the Company are not “United States real property interests” (as defined in Section 897(c)(1) of the Code), (ii) a copy of the notification provided to the Internal Revenue Service regarding such certificate, in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2), and (iii) a duly executed IRS Form W-9 from the Company.

 

(c)            Tax Matters Cooperation. Each of the Parties shall (and shall cause their respective Affiliates to) cooperate fully, as and to the extent reasonably requested by another Party, in connection with the filing of relevant Tax Returns, and any Tax Proceeding. Such cooperation shall include the retention and (upon the other Party’s request) the provision (with the right to make copies) of records and information reasonably relevant to any tax proceeding or audit, making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.

 

(d)            STPK shall be responsible for and shall pay all local, non-U.S. or other excise, sales, use, value-added, transfer (including real property transfer), stamp, documentary, filing, recordation and other similar Taxes and fees that may be imposed or assessed as a result of the execution of, and the transactions contemplated by, this Agreement, together with any inflation adjustment, interest, additions or penalties with respect thereto, including any inflation adjustment or interest with respect to such additions or penalties (“Transfer Taxes”). STPK shall, at its own expense, file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes.

 

68

 

 

Section 5.7            Financing.

 

(a)            STPK shall use its reasonable best efforts to obtain the PIPE Financing (and the Company shall reasonably cooperate with STPK in connection thereto) on a timely basis on the terms and conditions described in the Subscription Agreements, including using its reasonable best efforts to (i) comply with its respective obligations under the Subscription Agreements, (ii) maintain in effect the Subscription Agreements in accordance with the terms and conditions thereof, (iii) satisfy on a timely basis all conditions and covenants applicable to STPK set forth in the applicable Subscription Agreements within its control, and (iv) consummate the PIPE Financing when required pursuant to this Agreement. STPK shall give the Company prompt written notice upon (A) becoming aware of any breach or default by any party to any of the Subscription Agreements or any termination (or purported termination) of any of the Subscription Agreements, (B) the receipt of any written notice or other written communication from any party to any Subscription Agreement with respect to any actual, potential or claimed expiration, lapse, withdrawal, breach, default, termination or repudiation by any party to any Subscription Agreement or any provisions of any Subscription Agreement and (C) if STPK does not expect to receive all or any portion of the PIPE Financing Amount on the terms, in the manner or from the sources contemplated by the Subscription Agreements. Other than as set forth in this Section 5.7(a) or Section 5.7(b), STPK shall not, without the prior written consent of the Company, amend, modify, supplement or waive any provision of, nor terminate or abandon its plans with respect to, any Subscription Agreement.

 

(b)            If all or any portion of the PIPE Financing becomes unavailable, (i) STPK shall promptly use its reasonable best efforts to promptly obtain the PIPE Financing or such portion of the PIPE Financing from alternative sources in an amount, when added to any portion of the PIPE Financing that is available, equal to the PIPE Financing Amount (any alternative source(s) of financing, “Alternative PIPE Financing”) and (ii) in the event that STPK is able to obtain any Alternative PIPE Financing, STPK shall use its reasonable best efforts to enter into a new subscription agreement (each, an “Alternative Subscription Agreement”) that provides for the subscription and purchase of STPK Class A Shares containing terms and conditions not less favorable from the standpoint of STPK, Sponsor and the Company than those in the Subscription Agreements entered into as of the date hereof (as determined in the reasonable good faith judgment of STPK, Sponsor and the Company). In such event, the term “PIPE Financing” as used in this Agreement shall be deemed to include any Alternative PIPE Financing, the term “Subscription Agreements” as used in this Agreement shall be deemed to include any Alternative Subscription Agreement and the term “PIPE Investor” as used in this Agreement shall be deemed to include any Person that is subscribing for STPK Class A Shares under any Alternative Subscription Agreement. For the avoidance of doubt, if all or any portion of the PIPE Financing or Alternative PIPE Financing becomes unavailable, STPK may utilize deposits, proceeds or any other amounts from the Trust Account and, to the extent acceptable to the Company, any additional third party financing to satisfy its financing obligations hereunder (including to satisfy the Minimum Cash Condition).

 

69

 

 

Section 5.8             Exclusive Dealing.

 

(a)            From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, except as set forth on Section 5.8 of the Company Schedules, the Company shall not, and shall cause its controlled Affiliates, and its and such controlled Affiliates’ respective directors, officers, employees, accountants, consultants, advisors, attorneys and agents acting on behalf of the Group Companies not to, directly or indirectly: (i) accept, initiate, respond to, knowingly encourage, solicit, negotiate, provide information with respect to or discuss other offers for the direct or indirect sale, merger, transfer, IPO or recapitalization of the Company or any or all of its Subsidiaries, or any securities, business, properties or assets of the Company or any or all of its Subsidiaries, in each case, that would require the Company to abandon the transactions contemplated hereby (each such transaction prohibited by this sentence, an “Acquisition Proposal”, provided that, for the avoidance of doubt, neither this Agreement, nor any of the Ancillary Documents or any of the transactions contemplated hereby or thereby or any of the matters set forth on Section 5.8 of the Company Schedules shall constitute an “Acquisition Proposal” for the purposes of this Section 5.8(a) or otherwise); (ii) furnish or disclose any non-public information of the Group Companies to any Person in connection with an Acquisition Proposal; (iii) enter into any Contract regarding an Acquisition Proposal; (iv) prepare a public offering of any Equity Securities of any Group Company (or any successor to or parent company of any Group Company); or (v) otherwise cooperate in any way with, or assist or knowingly participate in, or knowingly facilitate or knowingly encourage any effort or attempt by any Person to do or seek to do any of the foregoing or seek to circumvent this Section 5.8(a) or further an Acquisition Proposal; provided, that nothing herein shall restrict the Company Board from changing its recommendation to the Pre-Closing Holders of Company Stock in favor of the approval and adoption of this Agreement and the Merger prior to the date on which the Written Consent is delivered if, following the receipt of a Superior Proposal by the Company, the Company Board determines in good faith, after consultation with its outside legal counsel, that the failure to so change its recommendation as a result of such Superior Proposal would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law (a “Company Change in Recommendation”); provided, further, that the Company (to the extent lawful and reasonably practicable) shall first provide STPK at least forty-eight (48) hours prior written notice of any such Company Change in Recommendation. The Company agrees to (A) notify STPK promptly upon receipt (and in any event within forty-eight (48) hours after receipt) of any Acquisition Proposal that it or any other Group Company receives and to describe the terms and conditions of any such Acquisition Proposal in reasonable detail (including the identity of the Persons making such Acquisition Proposal), (B) keep STPK reasonably informed on a reasonably current basis of any modifications to such offer or information and (C) not (and to cause its Representatives not to) conduct any further discussions with, provide any information to, or enter into negotiations with such Persons. The Company shall immediately cease and cause to be terminated any discussions or negotiations with any Persons (other than STPK and its Representatives) that may be ongoing with respect to an Acquisition Proposal as of the date hereof and terminate any such Person’s and such Person’s Representative’s access to any electronic data room.

 

(b)            Notwithstanding (i) any Company Change in Recommendation, (ii) the making of any Acquisition Proposal or (iii) anything to the contrary contained herein, unless this Agreement has been validly terminated in accordance with Section 7.1 prior to taking any of the following actions, (A) in no event shall the Company or any of the Group Companies execute or enter into any agreement in principle, confidentiality agreement, letter of intent, memorandum of understanding, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other written arrangement with respect to an Acquisition Proposal, (B) the Company shall otherwise remain subject to the terms of this Agreement, including the Company’s obligation to take all actions necessary to cause the Written Consent to be duly executed and delivered and to otherwise solicit the Required Company Shareholder Approval in accordance with Section 5.15, and (C) the Company shall not release any third party from, or waive, amend or modify any standstill or confidentiality provision with respect to an Acquisition Proposal, in any agreement to which it or any of its Subsidiaries is a party, and, with respect to any Acquisition Proposal involving the sale of more than 50% of the voting securities of the Company or 50% or more the consolidated net revenue, net income or assets of the Company and its Subsidiaries, shall as promptly as practicable following the date hereof send a written request (email being sufficient) to any Person to whom the Company or any of its Representatives provided confidential information of a Group Company in connection with such an Acquisition Proposal in the last two years, which written request shall instruct such Person to return or confirm (in writing) destruction of all such confidential information.

 

70

 

 

(c)            From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the STPK Parties shall not, and each of them shall cause their Representatives not to on behalf of the STPK Parties, directly or indirectly: (i) accept, initiate, respond to, knowingly encourage, solicit, negotiate, provide information with respect to or discuss other offers with respect to any merger, capital stock exchange, asset acquisition, stock purchase, reorganization, recapitalization or similar business combination with any Person other than the Company and its Representatives (each, a “STPK Proposal”), (ii) issue or execute any Contract, indication of interest, memorandum of understanding, letter of intent, or any other similar agreement with respect to a STPK Proposal, (iii) commence, continue or otherwise participate in any discussions or negotiations regarding, or cooperate in any way in connection with a STPK Proposal, or (iv) commence, continue or renew any due diligence investigation regarding a STPK Proposal. STPK agrees to (A) notify the Company promptly upon receipt (and in any event within forty-eight (48) hours after receipt) of any STPK Proposal that it receives and to describe the terms and conditions of any such STPK Proposal in reasonable detail (including the identity of the Persons making such STPK Proposal), (B) keep the Company reasonably informed on a reasonably current basis of any modifications to such offer or information and (C) not (and to cause its Representatives not to) conduct any further discussions with, provide any information to, or enter into negotiations with such Persons. STPK shall immediately cease and cause to be terminated any discussions or negotiations with any Persons (other than the Company and its Representatives) that may be ongoing with respect to a STPK Proposal as of the date hereof and terminate any such Person’s and such Person’s Representative’s access to any electronic data room. Notwithstanding anything to the contrary, the foregoing shall not restrict STPK’s Affiliates (including Affiliates of Sponsor) in any way with respect to the pursuit of any transaction by such Affiliates not related to STPK.

 

(d)            Notwithstanding (i) the making of any inquiry or proposal with respect to a STPK Proposal or (ii) anything to the contrary contained herein, unless this Agreement has been validly terminated in accordance with Section 7.1, (A) in no event shall STPK or Merger Sub execute or enter into any agreement in principle, confidentiality agreement, letter of intent, memorandum of understanding, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other written arrangement relating to any STPK Proposal or terminate this Agreement in connection therewith, and (B) STPK and Merger Sub shall otherwise remain subject to the terms of this Agreement, including STPK’s obligation to use reasonable best efforts to obtain the approval of the Transaction Proposals at the STPK Shareholders Meeting in accordance with Section 5.10.

 

71

 

 

Section 5.9            Preparation of Registration Statement / Proxy Statement.

 

(a)            As promptly as reasonably practicable after the date hereof, STPK shall, with the assistance of the Company pursuant to this Section 5.9, prepare and, following delivery of the PCAOB Financials to STPK pursuant to Section 5.16(a) (but in no event later than five days following such delivery), file with the SEC, the Registration Statement / Proxy Statement (it being understood that the Registration Statement / Proxy Statement shall include a proxy statement / prospectus which will be used for the purpose of soliciting proxies from the stockholders of STPK at the STPK Shareholders Meeting to adopt and approve the Transaction Proposals and other matters reasonably related to the Transaction Proposals, all in accordance with and as required by STPK’s Governing Documents, applicable Law, and any applicable rules and regulations of the SEC and NYSE) in which STPK shall (a) provide the stockholders of STPK with the opportunity to redeem the STPK Class A Shares pursuant to a STPK Shareholder Redemption, (b) solicit proxies from the stockholders of STPK to vote at the STPK Shareholders Meeting in favor of the Transaction Proposals, (c) register under the Securities Act the STPK Common Shares to be issued in connection with the transactions contemplated by this Agreement and the Ancillary Documents and (d) file with the SEC financial and other information about the transactions contemplated by this Agreement and the Ancillary Documents, each in accordance with and as required by STPK’s Governing Documents, applicable Law and any applicable rules and regulations of the SEC and NYSE. The Registration Statement / Proxy Statement will include a recommendation of the board of directors of STPK to adopt the Transaction Proposals. The Registration Statement / Proxy Statement will comply as to form and substance with the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations thereunder. The Company and its counsel shall be given a reasonable opportunity to review, comment on and approve in writing each of the preliminary and final Registration Statement / Proxy Statement and any amendment or supplement thereto prior to its filing with the SEC (to which comments reasonable and good faith consideration shall be given by STPK). STPK shall not file any such documents with the SEC (including in response to any comments from the SEC with respect thereto) without the prior written consent (email being sufficient) of the Company (such consent not to be unreasonably withheld, conditioned or delayed). STPK shall use its reasonable best efforts to: (i) have the Registration Statement / Proxy Statement declared effective under the Securities Act as promptly as reasonably practicable after it is filed with the SEC; (ii) keep the Registration Statement / Proxy Statement effective through the Closing in order to permit the consummation of the transactions contemplated by this Agreement; and, (iii) with the assistance of the other Parties hereto, promptly respond to any comments, requests to amend or requests for additional information with respect to the Registration Statement / Proxy Statement by the SEC. STPK shall file the definitive Registration Statement / Proxy Statement with the SEC and cause the Registration Statement / Proxy Statement to be mailed to its stockholders of record, as of the record date to be established by the board of directors of STPK, as promptly as practicable following the earlier to occur of: (Y) in the event the preliminary Registration Statement / Proxy Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Exchange Act; or (Z) in the event the preliminary Registration Statement / Proxy Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC (such earlier date, the “Proxy Clearance Date”).

 

72

 

 

(b)            STPK shall make all necessary filings with respect to the transactions contemplated by this Agreement and the Ancillary Documents under the Securities Act, the Exchange Act and applicable “blue sky” laws, and any rules and regulations thereunder. Each of STPK and the Company shall promptly furnish to the other all information concerning the business, management, operations and financial condition of such Party, its Affiliates and its Representatives that may be required or reasonably requested in connection with any action contemplated by this Section 5.9 or for inclusion in any other statement, filing, notice or application made by or on behalf of STPK to the SEC or NYSE in connection with the transactions contemplated by this Agreement and the Ancillary Documents. Each of STPK and the Company shall promptly correct any information provided by it for use in the Registration Statement / Proxy Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. STPK shall amend or supplement the Registration Statement / Proxy Statement and cause the Registration Statement / Proxy Statement, as so amended or supplemented, to be filed with the SEC and to be disseminated to STPK stockholders, in each case as and to the extent required by applicable Laws and subject to the terms and conditions of this Agreement and STPK’s Governing Documents.

 

(c)            STPK shall promptly advise the Company of (A) the time when STPK has filed the preliminary Registration Statement / Proxy Statement, (B) the SEC’s determination whether to review the Registration Statement / Proxy Statement, (C) in event the preliminary Registration Statement / Proxy Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC, (D) the filing of any supplement or amendment to the Registration Statement / Proxy Statement, (E) the issuance of any stop Order relating thereto or the suspension of the qualification of the STPK Class A Shares for offering or sale in any jurisdiction (it being understood that STPK shall use its reasonable best efforts to have any such stop Order or suspension lifted, reversed or otherwise terminated), (F) any request by the SEC for amendment of the Registration Statement / Proxy Statement, (G) any oral or written comments from the SEC relating to the Registration Statement / Proxy Statement and responses thereto, (H) requests by the SEC for additional information and (I) the time of effectiveness of the Registration Statement / Proxy Statement. Without limiting the generality of the foregoing, (1) the STPK Parties shall not, and shall cause their respective Representatives not to, have or participate in any substantive meetings or other substantive discussions with any Governmental Entity or NYSE regarding the matters contemplated by this Section 5.9 without first consulting with the Company and providing the Company the opportunity to participate in such meetings or discussion and (2) the Company shall not, and shall cause its Representatives not to, have or participate in any substantive meetings or other substantive discussions with any Governmental Entity or NYSE regarding the matters contemplated by this Section 5.9 without first consulting with STPK and providing STPK the opportunity to participate in such meetings or discussions. Each of the Parties hereto shall use reasonable best efforts to ensure that none of the information related to it or any its Representatives, supplied by or on its behalf for inclusion or incorporation by reference in the Registration Statement / Proxy Statement will, at the time the Registration Statement / Proxy Statement is filed with the SEC, at each time at which it is amended, or at the time it becomes effective under the Securities Act contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading.

 

73

 

 

Section 5.10          STPK Party Approvals.

 

(a)            As promptly as practicable after the Proxy Clearance Date, in any event within thirty (30) days following the Proxy Clearance Date, STPK shall (i) duly give notice of and (ii) duly convene and hold a meeting of its shareholders (the “STPK Shareholders Meeting”), in each case in accordance with the Governing Documents of STPK, applicable Law and the rules and regulations of the SEC and NYSE, for the purposes of obtaining the STPK Shareholder Approval and, if applicable, any approvals related thereto and providing its shareholders with the opportunity to elect to effect a STPK Shareholder Redemption. STPK shall use its reasonable best efforts to obtain the approval of the Transaction Proposals at the STPK Shareholders Meeting, including by soliciting proxies as promptly as practicable in accordance with applicable Law for the purpose of seeking the approval of the Transaction Proposals. STPK shall, through its board of directors, recommend to its shareholders the (A) adoption and approval of this Agreement and the transactions contemplated hereby and include such recommendation in the Registration Statement / Proxy Statement (the “Business Combination Proposal”); (B) approval of the Merger; (C) approval of the issuance of the STPK Common Shares constituting the Total Merger Consideration pursuant to Article 2; (D) adoption and approval of the incentive equity plan in the form attached hereto as Exhibit I (“New Incentive Plan”); (E) adoption and approval of amendments to the Governing Documents of STPK in substantially the form attached as Exhibit J hereto; (F) the appointment of the Sponsor Directors and the Company Directors to the STPK Board in accordance with Section 5.17(b) and Section 5.17(c), respectively, and the designation of the classes of such appointees to the STPK Board; (G) adoption and approval of any other proposals as either the SEC or NYSE (or the respective staff members thereof) may indicate are necessary in its comments to the Registration Statement / Proxy Statement or in correspondence related thereto, and of any other proposals reasonably agreed by STPK and the Company as necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement and the Ancillary Documents; and (H) the adjournment of the STPK Shareholders Meeting, if necessary, to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing (such proposals in clauses (A) through (H) together, the “Transaction Proposals”); provided that STPK may postpone or adjourn the STPK Shareholders Meeting (x) to solicit additional proxies for the purpose of obtaining the STPK Shareholder Approval, (y) for the absence of a quorum or (z) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosures that STPK has determined based on advice of outside legal counsel is reasonably likely to be required under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by shareholders of STPK prior to the STPK Shareholders Meeting; provided, that in the event of a postponement or adjournment pursuant to clauses (y) or (z) above, the STPK Shareholders Meeting shall be reconvened as promptly as practicable following such time as the matters described in such clauses have been resolved. Without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed), the Transaction Proposals shall be the only matters (other than procedural matters) which STPK shall propose to be acted on at the STPK Shareholders’ Meeting.

 

(b)            As promptly as practicable after the Registration Statement / Proxy Statement is declared effective under the Securities Act and, in any event within five (5) days of the effectiveness of the Registration Statement / Proxy Statement, STPK shall take all actions necessary under applicable law to obtain, and then deliver as promptly as practicable thereafter to the Company, the Merger Sub Sole Stockholder Approval by irrevocable written consent pursuant to Section 228(a) and 251(c) of the DGCL and the Merger Sub’s Governing Documents.

 

74

 

 

Section 5.11          Pre-Closing Holder Related Party Transactions. The Company shall (and shall cause the Group Companies to) take all reasonable best efforts to terminate (in form and substance reasonably satisfactory to STPK) at or prior to the Closing all Pre-Closing Holder Related Party Transactions set forth on Section 5.11 of the Company Schedules, with no further liability or other obligations to the Group Companies or any of their respective Affiliates (including, after the Closing, STPK) with respect thereto.

 

Section 5.12          No Trading. The Company acknowledges and agrees that it is aware, and that the Company’s Representatives are aware, or upon receipt of any material nonpublic information will be advised, of the restrictions imposed by Securities Laws on a Person possessing material nonpublic information about a publicly traded company. The Company hereby agrees that, while it is in possession of such material nonpublic information, it shall not purchase or sell any securities of STPK (other than engaging in the transactions described herein), communicate such information to any third party, take any other action with respect to STPK in violation of such Laws, or cause or encourage any third party to do any of the foregoing.

 

Section 5.13          Conduct of Business of STPK. From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, STPK shall, and shall cause its Subsidiaries to, as applicable, (x) keep current and timely file all of its public filings with the SEC and otherwise comply in all material respects with applicable Securities Laws and shall use its commercially reasonable efforts to maintain the listing of the STPK Common Shares and the STPK Warrants on NYSE and (y) except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.13 of the STPK Schedules, pursuant to any PIPE Financing and/or Alternative PIPE Financing, or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed), not do any of the following:

 

(a)            adopt any amendments, supplements, restatements or modifications to the Trust Agreement or the Governing Documents of STPK or any of its Subsidiaries or form any Subsidiary;

 

(b)            declare, set aside, make or pay a dividend on, or make any other distribution or payment in respect of, any Equity Securities of STPK or any of its Subsidiaries, or repurchase, redeem, or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any outstanding Equity Securities of STPK or any of its Affiliates, other than, for the avoidance of doubt, for the STPK Shareholder Redemption;

 

(c)            split, combine or reclassify any capital stock (or warrant), effect a recapitalization or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock or warrant, or effect any like change in capitalization;

 

(d)            incur, create or assume any Indebtedness for borrowed money, or issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of STPK, as applicable, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing, in each case, other than up to $1,500,000 in working capital loans (the “Working Capital Loans”), which Working Capital Loans shall be repaid by STPK in cash at or prior to the Closing out of the Aggregate STPK Transaction Proceeds;

 

75

 

 

(e)            make any loans or advances to, or capital contributions in, any other Person, other than to, or in, STPK or any of its Subsidiaries;

 

(f)             except for the issuance of any STPK Warrants upon the conversion of any Working Capital Loans as described in the STPK SEC Reports, transfer, issue, sell, grant, directly or indirectly dispose of, or subject to a Lien, (1) any Equity Securities of STPK or any of its Subsidiaries or (2) any options, warrants, stock appreciation rights, rights of conversion or other rights, agreements, arrangements or commitments to issue any Equity Securities of STPK or its Subsidiaries;

 

(g)            (A) merge, consolidate, combine or amalgamate with any Person or (B) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any business or any corporation, partnership, association or other business entity or organization or division thereof;

 

(h)            make any loans, advances or capital contributions to, or guarantees for the benefit of, or any equity or other investments in, any Person, other than the reimbursement of expenses of employees in the ordinary course of business, or pursuant to obligations under existing Contracts;

 

(i)             enter into, renew, modify or revise in any respect, any transaction or Contract with an Affiliate of STPK (including, for the avoidance of doubt, the Sponsor), other than in connection with any Working Capital Loans;

 

(j)             authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation or dissolution;

 

(k)            take any action or knowingly fail to take any action where such action or failure to act was intended to, and would reasonably be expected to prevent or impede the Intended Tax Treatment;

 

(l)             commence or settle any material Proceeding, excluding any Proceeding arising out of this Agreement, any Ancillary Document or the transactions contemplated hereby or thereby or the PIPE Financing;

 

(m)           take any action that would reasonably be expected to significantly delay or impair (A) the timely filing of any of its public filings with the SEC (giving effect to any permitted extensions), (B) its compliance in all material respects with applicable Securities Laws or (C) the listing of the STPK Common Shares on NYSE;

 

(n)            amend or modify the Trust Agreement; or

 

(o)            enter into any Contract to take, or cause to be taken, any of the actions set forth in this Section 5.13.

 

76

 

 

Section 5.14         Trust Account. Upon satisfaction or, to the extent permitted by applicable Law, waiver of the conditions set forth in Article 6 and provision of notice thereof to the Trustee, (a) at the Closing, STPK shall (i) cause the documents, opinions and notices required to be delivered to the Trustee pursuant to the Trust Agreement to be so delivered, and (ii) use reasonable best efforts to cause the Trustee to (x) pay as and when due all amounts, if any, payable to the Public Shareholders of STPK pursuant to the STPK Shareholder Redemption, (y) pay the amounts due to the underwriters of STPK’s initial public offering for their deferred underwriting commissions as set forth in the Trust Agreement and (z) immediately thereafter, pay all remaining amounts then available in the Trust Account to STPK in accordance with the Trust Agreement, and (b) thereafter, the Trust Account shall terminate, except as otherwise provided therein.

 

Section 5.15          Stockholder Written Consent. As promptly as practicable after the Registration Statement / Proxy Statement is declared effective under the Securities Act, and in any event within ten (10) Business Days after the Registration Statement / Proxy Statement is declared effective, the Company shall (i) cause to be mailed to each Pre-Closing Holder a notice, which shall include copies of this Agreement, the Registration Statement / Proxy Statement, the Written Consent in the form set forth on Exhibit D, and, as applicable, the Investor Rights Agreement and Letter of Transmittal (the “Company Stockholder Package”), stating (x) unless the Board of Directors has changed its recommendation in accordance with Section 5.8, that the Board of Directors recommends that each Pre-Closing Holder approve the Merger by execution of the Written Consent in the form set forth on Exhibit D and (y) the timeline for returning executed copies of the documents included as part of the Company Stockholder Package, and (ii) take all actions necessary to obtain the Written Consent from the Pre-Closing Holders, who, collectively, constitute a Requisite Threshold, evidencing the Required Company Shareholder Approval and the Senior Preferred Conversion, in accordance with Section 228(a) and 251(c) of the DGCL, the Company’s Governing Documents and the Company Shareholder Agreements. The Company shall take all actions necessary pursuant to the Company’s Governing Documents and the Company Shareholder Agreements to provide all required notices to the Pre-Closing Holders entitled thereto in connection with obtaining the Required Company Shareholder Approval, including notice of the Senior Preferred Conversion. Upon receipt of the Written Consent, the Company shall promptly deliver a copy thereof to STPK.

 

Section 5.16          PCAOB Financials.

 

(a)            The Company shall use reasonable best efforts to deliver to STPK as promptly as practicable after the date hereof, (i) the Audited Financials, audited in accordance with the standards of the PCAOB and containing an unqualified report of the Company’s auditors and (ii) the unaudited consolidated balance sheet and the related consolidated statements of income and cash flows of the Group Companies as of and for a year-to-date period ended as of September 30, 2020 and September 30, 2019 that is required to be included in the Registration Statement / Proxy Statement and any other filings to be made by STPK with the SEC in connection with the transactions contemplated hereby and in the Ancillary Documents (the foregoing clauses (i) and (ii), together, the “PCAOB Financials”). All costs incurred in connection with preparing and obtaining the PCAOB Financials shall be Company Expenses.

 

77

 

 

 

(b)           The Company shall (and shall cause each Group Company to) use reasonable best efforts (i) to assist STPK and its Representatives, upon advance written notice, during normal business hours and in a manner such as to not unreasonably interfere with the normal operation of the applicable Group Company, in causing to be prepared in a timely manner any other financial information or statements (including customary pro forma financial statements) that is reasonably required to be included in the Registration Statement / Proxy Statement and any other filings to be made by STPK with the SEC in connection with the transactions contemplated by this Agreement and the Ancillary Documents and (ii) to obtain the consents of the Company’s auditors with respect thereto as may be required by applicable Law.

 

(c)           From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall deliver to STPK unaudited consolidated balance sheets and related statements of income and cash flows (but excluding any notes thereto) of the Company and its Subsidiaries for each fiscal quarter ending after the date hereof within 45 days following the end of each such fiscal quarter (as applicable). Such unaudited balance sheets and related statements of income and cash flows (A) will be prepared from, and reflect in all material respects, the books and records of the Group Companies, (B) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods covered thereby, and (C) will fairly present, in all material respects, the consolidated financial position of the Group Companies as of the dates thereof and their consolidated results of operations for the periods then ended.

 

Section 5.17         Post-Closing Directors and Officers.

 

(a)           The Parties shall take all such action within its power as may be necessary or appropriate such that effective as of the Closing: (i) the board of directors of STPK (the “STPK Board”) shall consist of seven directors; (ii) the Governing Documents of STPK are substantially in the form attached as Exhibit J; (iii) the initial members of the STPK Board are the individuals determined in accordance with Section 5.17(b) and Section 5.17(c), as applicable; (iv) the initial members of the compensation committee, audit committee and nominating committee of the STPK Board are the individuals determined in accordance with Section 5.17(d); and (v) the officers of STPK are the individuals determined in accordance with Section 5.17(e).

 

(b)           Within thirty (30) days of the date hereof, STPK shall provide to the Company a list of two Persons, one of which shall be designated as a Class II Director and one of which shall be designated as a Class III Director (each as defined in the Governing Documents of STPK), respectively on the STPK Board effective as of the Closing (the “Sponsor Directors”). STPK may, with the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed), replace any such individual with any other individual prior to the filing of the Registration Statement / Proxy Statement with the SEC by amending such list to include such replacement individual. Notwithstanding the foregoing, at least one of individuals designated to the STPK Board pursuant to this Section 5.17(b) must be an Independent Director, and in each case if the requirements set forth in this sentence are not met, STPK shall omit from the Registration Statement / Proxy Statement any such nominee, and such nomination shall be disregarded and no vote on such nominee will occur, notwithstanding that proxies in respect of such vote may have been received by STPK.

 

(c)           Within thirty (30) days of the date hereof, the Company shall provide to STPK a list of five (5) Persons who shall be directors on the STPK Board effective as of the Closing (the “Company Directors”). The Company may, with the prior written consent of STPK (such consent not to be unreasonably withheld, conditioned or delayed), replace any such individual with any other individual prior to the filing of the Registration Statement / Proxy Statement with the SEC by amending such list to include such replacement individual. Notwithstanding the foregoing, (i) at least three (3) of the individuals designated to the STPK Board pursuant to this Section 5.17(c) must be Independent Directors and at least two (2) of such individuals (which may, for the avoidance of doubt, include an Independent Director) must also qualify as independent under the audit committee independence requirements set forth in the rules of any stock exchange applicable to STPK, and in each case if the requirements set forth in this sentence are not met, STPK shall omit from its proxy materials any such nominee, and such nomination shall be disregarded and no vote on such nominee will occur, notwithstanding that proxies in respect of such vote may have been received by STPK and (ii) one (1) of the individuals designated to the STPK Board pursuant to this Section 5.17(c) must be the chief executive officer of the Company.

 

  78  

 

 

(d)           STPK and the Company shall mutually agree (such agreement not to be unreasonably withheld, conditioned, or delayed by either the Company or STPK) on the directors to be appointed to the audit, compensation and nominating committees prior to the filing of the Registration Statement / Proxy Statement with the SEC; provided, that unless otherwise consented to by STPK, there shall be at least one Sponsor appointed to each committee.

 

(e)           The Persons identified on Section 5.17(e) of the Company Schedules shall be the officers of STPK immediately after the Closing, with each such individual holding the title set forth opposite his or her name. STPK and the Company may mutually agree (such agreement not to be unreasonably withheld, conditioned or delayed by either the Company or STPK) to replace any individual set forth on Section 5.17(e) of the Company Schedules with any individual prior to the filing of the Registration Statement / Proxy Statement with the SEC by amending such Schedule to include such replacement individual.

 

Section 5.18         Certain Other Covenants. From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Parties shall promptly notify the other Parties hereto after becoming aware of (a) any breach of any covenant of such Party set forth herein or in any Ancillary Document, or (b) any event or circumstance that could reasonably be expected to (1) with respect to the Company, be a Company Material Adverse Effect or, with respect to STPK, be a STPK Material Adverse Effect or (2) otherwise cause or result in any of the conditions set forth in Article 6 not being satisfied or the satisfaction of those conditions being materially delayed. Without in any way limiting the generality of the foregoing, the Company shall (i) as promptly as practicable inform STPK in the event any Proceeding is brought against any Group Company by or on behalf of any Pre-Closing Holder in connection with the transactions contemplated by this Agreement or any Ancillary Document or any Pre-Closing Holder provides notice to a Group Company that it is or may be in violation or breach of any of their respective Governing Documents or the Company Shareholder Agreements as a result of its execution, deliver and performance of this Agreement or any Ancillary Document, and (ii) keep STPK reasonably apprised of the status of any such pending Proceeding. STPK shall (x) as promptly as practicable inform the Company in writing the event any Proceeding is brought by any Person other than a Group Company against STPK or its Subsidiaries in connection with the transactions contemplated by this Agreement or any Ancillary Document and (y) keep the Company reasonably apprised of the status of any such pending Proceeding. No such notice shall constitute an acknowledgement or admission by the Party providing the notice regarding whether or not any of the conditions to the Closing have been satisfied or in determining whether or not any of the representations, warranties, or covenants contained in this Agreement have been breached.

 

  79  

 

 

Section 5.19         Section 280G. To the extent STPK and the Company agree in good faith that the transactions contemplated by this Agreement constitute a “change in control event” within the meaning of Section 280G of the Code, the Company shall (a) prior to the Closing Date, solicit and use reasonable best efforts to obtain from each “disqualified individual” (within the meaning of Section 280G(c) of the Code) who could receive or retain any payment or benefits that could constitute a “parachute payment” (within the meaning of Section 280G(b)(2)(A) of the Code) a waiver of such disqualified individual’s rights to some or all of such payments or benefits (the “Waived 280G Benefits”) so that no payments and/or benefits shall be deemed to be “excess parachute payments” (within the meaning of Section 280G(b)(1) of the Code) and (b) prior to the Closing Date submit to a Company shareholder vote (along with adequate disclosure intended to satisfy the requirements of Section 280G(b)(5)(B)(ii) of the Code and any regulations promulgated thereunder) the right of any such “disqualified individual” to receive the Waived 280G Benefits. Prior to soliciting such waivers and approval materials, the Company shall provide drafts of the calculations, form of waiver and shareholder consent (including adequate disclosure intended to satisfy the requirements of Section 280G(b)(5)(B)(ii)) to STPK for its review and comment no later than three (3) days prior to soliciting such waivers and soliciting such approval, and the Company shall consider in good faith any comments provided by STPK. If any of the Waived 280G Benefits fail to be approved in accordance with the requirements of Section 280G(b)(5)(B) of the Code as contemplated above, such Waived 280G Benefits shall not be made or provided. Prior to the Closing, the Company shall deliver to STPK evidence that a vote of the Company shareholders was solicited in accordance with the foregoing provisions of this Section 5.19 and that either (i) the requisite number of votes of the Company shareholders was obtained with respect to the Waived 280G Benefits (the “280G Approval”) or (ii) the 280G Approval was not obtained, and, as a consequence, the Waived 280G Benefits shall not be retained or provided.

 

Section 5.20         Debt Payoff Letters. The Company shall obtain and deliver prior to Closing customary payoff letters in connection with the Credit Facility Terminations and evidence reasonably satisfactory to STPK that the Credit Facility Terminations shall have occurred or shall occur substantially concurrently with the Closing, together with copies of customary and reasonable documents evidencing the release of liens on collateral securing obligations under the Credit Agreement, Revolving Facility, and Subordinated Term Note (including UCC-3 financing statements and mortgage releases); provided, that in the event the Minimum Cash Condition has not been satisfied at the date the Closing would otherwise be required to occur pursuant to Section 2.1(c) if the Minimum Cash Condition were satisfied and the Company has delivered written notice to STPK of its intention to duly waive the Minimum Cash Condition in accordance with the terms of this Agreement, the Company may elect not to effect one or all of the Credit Facility Terminations (provided that it has obtained the requisite consents, waivers and/or amendments from the lender parties, if any, thereunder for the transactions contemplated by this Agreement and such consents, waivers and/or amendments are in form and substance reasonably acceptable to STPK).

 

  80  

 

 

Section 5.21         Company Warrants. Between the date of this Agreement and the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, the Company shall use reasonable best efforts to cause any holder of Company Warrants that has not signed a Warrant Exercise Agreement prior to the date hereof to agree to convert such Company Warrants to Company Common Stock immediately prior to the Closing.

 

Section 5.22         Lock-Up Agreements. Between the date of this Agreement and the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, the Company shall use reasonable best efforts to cause any Pre-Closing Holder that has not executed a Lock-Up Agreement on or prior to the date hereof to enter into a Lock-Up Agreement with STPK and the Company.

 

Article 6
CONDITIONS TO CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT

 

Section 6.1           Conditions to the Obligations of the Parties. The obligations of the Parties to consummate the transactions contemplated by this Agreement are subject to the satisfaction or, if permitted by applicable Law, waiver by the Party for whose benefit such condition exists of the following conditions:

 

(a)           any applicable waiting period under the HSR Act relating to the transactions contemplated by this Agreement and the Ancillary Documents, and any agreement with any Governmental Entity not to consummate the transactions contemplated by this Agreement and the Ancillary Documents, shall have expired or been terminated;

 

(b)           no Order or Law issued by any court of competent jurisdiction or other Governmental Entity or other legal restraint or prohibition preventing the consummation of the transactions contemplated by this Agreement and the Ancillary Documents shall be in effect, threatened or pending;

 

(c)           the Registration Statement / Proxy Statement shall have become effective in accordance with the provisions of the Securities Act, no stop Order shall have been issued by the SEC and shall remain in effect with respect to the Registration Statement / Proxy Statement, and no Proceeding seeking such a stop Order shall have been threatened or initiated by the SEC and remain pending;

 

(d)           the STPK Class A Shares to be issued pursuant to this Agreement shall be listed on NYSE upon the Closing and shall otherwise satisfy the applicable listing requirements of the NYSE (including with respect to the minimum number of round lot holders);

 

(e)           the STPK Shareholder Approval shall have been obtained and remain in full force and effect;

 

  81  

 

 

(f)            the Required Company Shareholder Approval shall have been obtained and remain in full force and effect; and

 

(g)           STPK shall have at least $5,000,001 of net tangible assets following the exercise of STPK Shareholder Redemption in accordance with STPK’s Governing Documents.

 

Section 6.2           Other Conditions to the Obligations of the STPK Parties. The obligations of the STPK Parties to consummate the transactions contemplated by this Agreement are subject to the satisfaction or, if permitted by applicable Law, waiver by STPK (on behalf of itself and the other STPK Parties) of the following further conditions:

 

(a)           (i) each of the Company Fundamental Representations (other than the representations and warranties set forth in Section 3.1(a) or Section 3.2(a)-Section 3.2(b)) shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth therein) in all material respects as of the date hereof and as of the Closing Date as though made on and as of the Closing Date, except to the extent that any such representation and warranty is made on and as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date, (ii) each of the representations and warranties set forth in Section 3.2(a)-Section 3.2(b) shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth therein), in all but de minimis respects as of the date hereof and as of the Closing Date as though made on and as of the Closing Date, except to the extent that any such representation and warranty is made on and as of an earlier date, in which case such representation and warranty shall be true and correct in all but de minimis respects as of such earlier date, (iii) each of the representations and warranties set forth in Section 3.1(a), Section 3.3 and clause (a) of Section 3.8 shall be true and correct in all respects as of the date hereof and as of the Closing Date as though made on and as of the Closing Date, except to the extent that any such representation and warranty is made on and as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date, and (iv) each of the other representations and warranties of the Company set forth in Article 3 shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth therein) in all respects as of the date hereof and as of the Closing Date as though made on and as of the Closing Date, (A) except to the extent that any such representation and warranty is made on and as of an earlier date, in which case the same shall be true and correct in all respects as of such earlier date (subject to, for the avoidance of doubt, clause (B) of this Section 6.2(a)(iv)), and (B) except where the failure of such representations and warranties to be true and correct, taken as a whole, would not have a Company Material Adverse Effect;

 

(b)           the Company shall have performed and complied in all material respects with the covenants and agreements required to be performed or complied with by the Company under this Agreement (including the Company Schedules) and each of the Ancillary Documents at or prior to the Closing;

 

(c)           since the date of this Agreement, no Company Material Adverse Effect shall have occurred which is continuing and uncured;

 

  82  

 

 

(d)           at or prior to the Closing, the Company shall have delivered, or caused to be delivered, to STPK the following documents:

 

(i)            certificates duly executed by an authorized officer of the Company, dated as of the Closing Date, to the effect that the conditions specified in Section 6.2(a), Section 6.2(b) and Section 6.2(c) are satisfied;

 

(ii)            applicable good standing certificates (or similar documents applicable for such jurisdictions) for the Company and each of its Subsidiaries certified as of a date no later than fifteen (15) days prior to the Closing Date from the proper Governmental Entity of its jurisdiction of organization;

 

(iii)            a copy of the Exchange Agent Agreement, duly executed by the Company and the Exchange Agent; and

 

(iv)            a copy of the Investor Rights Agreement, duly executed by each of the Pre-Closing Holders party thereto;

 

(e)           the Senior Preferred Conversion shall have been effected in accordance with the terms of this Agreement and the Written Consent; and

 

(f)            the Convertible Notes Amendment shall remain in full force and effect.

 

Section 6.3           Other Conditions to the Obligations of the Company. The obligations of the Company to consummate the transactions contemplated by this Agreement are subject to the satisfaction or, if permitted by applicable Law, waiver by the Company of the following further conditions:

 

(a)           (i) each of the STPK Fundamental Representations (other than the representations and warranties set forth in Section 4.1, Section 4.7(a) and Section 4.7(d)) shall be true and correct (without giving effect to any limitation as to “materiality” or “STPK Material Adverse Effect” or any similar limitation set forth therein) in all material respects as of the date hereof and as of the Closing Date as though made on and as of the Closing Date, except to the extent that any such representation and warranty is made on and as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date, (ii) each of the representations and warranties set forth in Section 4.7(a) and Section 4.7(d) shall be true and correct (without giving effect to any limitation as to “materiality” or “STPK Material Adverse Effect” or any similar limitation set forth therein), in all but de minimis respects as of the date hereof and as of the Closing Date as though made on and as of the Closing Date, except to the extent that any such representation and warranty is made on and as of an earlier date, in which case such representation and warranty shall be true and correct in all but de minimis respects as of such earlier date, (iii) each of the representations and warranties set forth in Section 4.1 and Section 4.2 shall be true and correct in all respects as of the date hereof and as of the Closing Date as though made on and as of the Closing Date, except to the extent that any such representation and warranty is made on and as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date, and (iv) each of the other representations and warranties of STPK set forth in Article 4 shall be true and correct (without giving effect to any limitation as to “materiality” or “STPK Material Adverse Effect” or any similar limitation set forth therein) in all respects as of the date hereof and as of the Closing Date as though made on and as of the Closing Date, (A) except to the extent that any such representation and warranty is made on and as of an earlier date, in which case the same shall be true and correct in all respects as of such earlier date (subject to, for the avoidance of doubt, clause (B) of this Section 6.3(a)(iv)), and (B) except where the failure of such representations and warranties to be true and correct, taken as a whole, would not have a STPK Material Adverse Effect;

 

  83  

 

 

(b)           the STPK Parties shall have performed and complied in all material respects with the covenants and agreements required to be performed or complied with by them under this Agreement and each of the Ancillary Documents at or prior to the Closing;

 

(c)           there shall not have occurred any amendment or modification to the Waiver Agreement, other than as consented to in writing by the Company after the date hereof;

 

(d)           the Aggregate STPK Transaction Proceeds shall be greater than or equal to $200,000,000 (the “Minimum Cash Condition”); and

 

(e)           at or prior to the Closing, STPK shall have delivered, or caused to be delivered, the following documents to the Company:

 

(i)            a certificate duly executed by an authorized officer of STPK, dated as of the Closing Date, to the effect that the conditions specified in Section 6.3(a) and Section 6.3(b) are satisfied, in each case, in form and substance reasonably satisfactory to the Company;

 

(ii)            applicable good standing certificates (or similar documents applicable for such jurisdictions) for STPK and Merger Sub, each certified as of a date no later than fifteen (15) days prior to the Closing Date from the proper Governmental Entity of its jurisdiction of organization;

 

(iii)            a copy of the Exchange Agent Agreement, duly executed by STPK, the Sponsor and the Exchange Agent;

 

(iv)            evidence that the Amended and Restated Charter of STPK in the form included in Exhibit J (or with such changes as may be reasonably approved by the Company and STPK) has been filed with the Secretary of State of Delaware; and

 

(v)            a copy of the Investor Rights Agreement and the Lock-Up Agreement, each duly executed by STPK and the Sponsor.

 

  84  

 

 

Section 6.4           Frustration of Conditions. Notwithstanding anything contained herein to the contrary, no Party may rely on the failure of any condition set forth in this Article 6 to be satisfied if such failure was primarily and directly caused by the failure of such Party or its Affiliates (or with respect to the Company, any Group Company’s) failure to comply with or perform any of its covenants or obligations set forth in this Agreement.

 

Article 7
TERMINATION

 

Section 7.1           Termination. This Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned at any time prior to the Closing:

 

(a)           by mutual written consent of STPK and the Company;

 

(b)           by STPK, if any of the representations or warranties set forth in Article 3 shall not be true and correct or if the Company has failed to perform any covenant or agreement on the part of the Company set forth in this Agreement or any Ancillary Document (including an obligation to consummate the Closing) such that the condition to Closing set forth in either Section 6.2(a) or Section 6.2(b) would not be satisfied and the breach or breaches causing such representations or warranties not to be true and correct, or the failures to perform any covenant or agreement, as applicable, is (or are) not cured or cannot be cured within the earlier of (i) thirty days after written notice thereof is delivered to the Company, and (ii) the Termination Date; provided, however, that no STPK Party is then in breach of this Agreement so as to prevent the condition to Closing set forth in either Section 6.3(a) or Section 6.3(b) from being satisfied;

 

(c)           by the Company, if any of the representations or warranties set forth in Article 4 shall not be true and correct or if any STPK Party has failed to perform any covenant or agreement on the part of such applicable STPK Party set forth in this Agreement or any Ancillary Document (including an obligation to consummate the Closing) such that the condition to Closing set forth in either Section 6.3(a) or Section 6.3(b) would not be satisfied and the breach or breaches causing such representations or warranties not to be true and correct, or the failures to perform any covenant or agreement, as applicable, is (or are) not cured or cannot be cured within the earlier of (i) thirty days after written notice thereof is delivered to STPK and (ii) the Termination Date; provided, however, that the Company is not then in breach of this Agreement so as to prevent the condition to Closing set forth in Section 6.2(a) or Section 6.2(b) from being satisfied;

 

(d)           by either STPK or the Company, if the transactions contemplated by this Agreement shall not have been consummated on or prior to June 3, 2021 (as may be extended by mutual written agreement of STPK and the Company or as otherwise provided herein, the “Termination Date”); provided that (i) the right to terminate this Agreement pursuant to this Section 7.1(d) shall not be available to STPK if any STPK Party’s breach of any of its covenants or obligations under this Agreement shall have proximately and primarily caused the failure to consummate the transactions contemplated by this Agreement on or before the Termination Date, and (ii) the right to terminate this Agreement pursuant to this Section 7.1(d) shall not be available to the Company if the Company’s breach of any of its covenants or obligations under this Agreement shall have proximately and primarily caused the failure to consummate the transactions contemplated by this Agreement on or before the Termination Date; provided, further, that the Termination Date shall be automatically extended for an additional two months to the extent there is any delay to the applicable waiting or review periods, or any extension thereof, by any Governmental Entity or NYSE (including any specific request from any Governmental Entity or NYSE to delay filings or for additional time to review the transactions contemplated hereby) that would, or would reasonably be expected to, have the effect of delaying, impeding, hindering or preventing the review of the transactions contemplated hereby and/or issuance of clearance or approval from such Governmental Entity to the extent required to satisfy the condition set forth in Section 6.1(b);

 

  85  

 

 

(e)           by either STPK or the Company, if any Governmental Entity shall have issued an Order or taken any other action permanently enjoining, restraining or otherwise prohibiting the transactions contemplated by this Agreement or any Ancillary Document and such Order or other action shall have become final and nonappealable;

 

(f)            by either STPK or the Company if the STPK Shareholders Meeting has been held (including any adjournment or postponement thereof), has concluded, STPK’s shareholders have duly voted, and the STPK Shareholder Approval was not obtained;

 

(g)            by STPK if the Written Consent is not received by the Company within ten (10) Business Days after the Registration Statement / Proxy Statement is declared effective by the SEC; or

 

(h)            by STPK if the Company shall have failed to deliver the PCAOB Financials to STPK within sixty (60) Business Days of the execution of this Agreement; provided, that STPK shall not be permitted to terminate this Agreement pursuant to this Section 7.1(h) after the filing of the preliminary Registration Statement / Proxy Statement with the SEC.

 

Section 7.2            Effect of Termination. In the event of the termination of this Agreement pursuant to Section 7.1, this entire Agreement shall forthwith become void (and there shall be no liability or obligation on the part of the Parties and their respective Representatives) with the exception of (a) this Section 7.2, Article 8 and Article 1 (to the extent related to the foregoing), each of which shall survive such termination and remain valid and binding obligations of the Parties and (b) the Confidentiality Agreement, which shall survive such termination and remain a valid and binding obligation of the Parties thereto in accordance with its terms. Notwithstanding the foregoing, the termination of this Agreement pursuant to Section 7.1 shall not affect any liability on the part of any Party for (i) a willful and material breach of any covenant or agreement set forth in this Agreement prior to such termination or (ii) Fraud.

 

Article 8
MISCELLANEOUS

 

Section 8.1           Survival. None of the representations, warranties, covenants and agreements set forth in this Agreement shall survive the Closing, except for those covenants and agreements set forth in this Agreement that by their respective terms contemplate performance after the Closing and except for the representations and warranties set forth in Section 3.24, Section 3.25, Section 4.18 and Section 4.19.

 

  86  

 

 

Section 8.2            Entire Agreement; Assignment. This Agreement (together with the Ancillary Documents) constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter hereof. This Agreement may not be assigned by any Party (whether by operation of Law or otherwise) without the prior written consent of STPK (prior to the Closing) or the Sponsor (after the Closing), on the one hand, and the Company, on the other hand. Any attempted assignment of this Agreement not in accordance with the terms of this Section 8.2 shall be void, ab initio.

 

Section 8.3            Amendment. This Agreement may be amended or modified only by a written agreement executed and delivered by duly authorized officers of STPK (prior to the Closing) or the Sponsor (after the Closing), on the one hand, and the Company, on the other hand. This Agreement may not be modified or amended except as provided in the immediately preceding sentence and any purported amendment by any Party or Parties effected in a manner which does not comply with this Section 8.3 shall be void, ab initio.

 

Section 8.4            Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given) when delivered in person, when delivered by e-mail (having obtained electronic delivery confirmation thereof), or when sent by registered or certified mail (postage prepaid, return receipt requested) (upon receipt thereof) to the other Parties as follows:

 

(a)          If to any STPK Party, prior to the Closing, or the Sponsor, to:

 

c/o Star Peak Energy Transition Corp.
1603 Orrington Avenue, 13th Floor 

Evanston, IL 60201

Attention: Tyson Taylor
E-mail: info@starpeakcorp.com

 

with a copy (which shall not constitute notice) to:

 

Kirkland & Ellis LLP
609 Main St. 

Houston, TX 77019

Attention: William J. Benitez, P.C.
  Matthew R. Pacey, P.C.
  David Thompson
E-mail: william.benitez@kirkland.com 
  matthew.pacey@kirkland.com 
  david.thompson@kirkland.com

 

(b)          If to the Company, to:

 

Stem, Inc.

100 Rollins Road 

Millbrae, CA 94030 

Attention: William Bush
E-mail: bill.bush@stem.com

 

  87  

 

 

with a copy (which shall not constitute notice) to:

 

Gibson, Dunn & Crutcher LLP 

200 Park Avenue 

New York, New York 10166-0193  

Attention: John Gaffney
  Evan D’Amico
Email: JGaffney@gibsondunn.com
  EDAmico@gibsondun.com

 

or to such other address as the Party to whom notice is given may have previously furnished to the others in writing in the manner set forth above.

 

Section 8.5           Governing Law. This Agreement and all related Proceedings shall be governed by and construed in accordance with the internal Laws of the State of Delaware, without giving effect to any choice of Law or conflict of Law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Delaware.

 

Section 8.6           Fees and Expenses. Except as otherwise set forth in this Agreement, all fees and expenses incurred in connection with this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby, including the fees and disbursements of a Party’s Representatives, shall be paid by the Party incurring such fees or expenses; provided that, for the avoidance of doubt, (a) if this Agreement is terminated in accordance with its terms, the Company shall pay, or cause to be paid, all Company Expenses and STPK shall pay, or cause to be paid, all STPK Transaction Expenses, and (b) if the Closing occurs, then STPK shall pay, or cause to be paid, all Company Expenses and all STPK Transaction Expenses.

 

  88  

 

 

Section 8.7           Construction; Interpretation. The term “this Agreement” means this Agreement and Plan of Merger together with the Schedules and Exhibits hereto, as the same may from time to time be amended, modified, supplemented or restated in accordance with the terms hereof. The headings set forth in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. No Party, nor its respective counsel, shall be deemed the drafter of this Agreement for purposes of construing the provisions hereof, and all provisions of this Agreement shall be construed according to their fair meaning and not strictly for or against any Party. Unless otherwise indicated to the contrary herein by the context or use thereof: (a) the words, “herein,” “hereto,” “hereof” and words of similar import refer to this Agreement as a whole, including the Schedules and Exhibits, and not to any particular section, subsection, paragraph, subparagraph or clause set forth in this Agreement; (b) masculine gender shall also include the feminine and neutral genders, and vice versa; (c) words importing the singular shall also include the plural, and vice versa; (d) the words “include,” “includes” or “including” shall be deemed to be followed by the words “without limitation”; (e) references to “$” or “dollar” or “US$” shall be references to United States dollars; (f) the word “or” is disjunctive but not necessarily exclusive; (g) the words “writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form; (h) the word “day” means calendar day unless Business Day is expressly specified; (i) the word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”; (j) all references to Articles, Sections, Exhibits or Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement; (k) the words “provided” or “made available” or words of similar import (regardless of whether capitalized or not) shall mean, when used with reference to documents or other materials required to be provided or made available to STPK, any documents or other materials posted to the electronic data room located at https://stem.firmex.com under the project name “Project Centurion” as of 5:00 p.m., Central Time, at least one (1) Business Day prior to the date hereof; (l) all references to any Law will be to such Law as amended, supplemented or otherwise modified from time to time; (m) whenever the words “in the ordinary course of business”, “in the ordinary course” or words of similar import are used in this Agreement, they shall be deemed to be followed by the words “consistent with its past practice” and shall be construed to mean in the ordinary and usual course of normal day-to-day operations of the business of such Person consistent with its past practice; and (n) all references to any Contract (except for any such references in the Schedules) are to that Contract as amended or modified from time to time in accordance with the terms thereof (subject to any restrictions on amendments or modifications set forth in this Agreement). If any action under this Agreement is required to be done or taken on a day that is not a Business Day, then such action shall be required to be done or taken not on such day but on the first succeeding Business Day thereafter. The Parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly 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.

 

Section 8.8           Exhibits and Schedules. All Exhibits and Schedules, or documents expressly incorporated into this Agreement, are hereby incorporated into this Agreement and are hereby made a part hereof as if set out in full in this Agreement. The Schedules shall be arranged in sections and subsections corresponding to the numbered and lettered sections and subsections set forth in this Agreement. The information and disclosures set forth in the Schedules that correspond to the section or subsections of Article 3 or 4 may not be limited to matters required to be disclosed in the Schedules, and any such additional information or disclosure is for informational purposes only and does not necessarily include other matters of a similar nature. The specification of any dollar amount in the representations, warranties or covenants set forth in this Agreement or the inclusion of any specific item in any Schedule is not intended to imply that such amounts, or higher or lower amounts or the items so included or other items, are or are not material or are within or outside of the ordinary course of business or consistent with past practice, and no Party shall use the fact of the setting of such amounts or the inclusion of any such item in any dispute or controversy as to whether any obligation, items or matter not described herein or included in a Schedule is or is not material for purposes of this Agreement. The information contained in this Agreement, in the Company Schedules or STPK Schedules and exhibits hereto is disclosed solely for purposes of this Agreement, and no information contained herein or therein will be deemed to be an admission by any party hereto to any third party of any matter whatsoever, including any violation of Law or breach of contract.

 

  89  

 

 

 

 

Section 8.9        Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of each Party and its successors and permitted assigns and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement, except for (a) from and after the Effective Time, the provisions of Article 2 (which shall be for the benefit of the Pre-Closing Holders to the extent necessary for such holders to receive the Total Merger Consideration due to such holders thereunder pursuant to the Allocation Schedule), (b) the provisions of Section 5.5 (which shall be for the benefit of the D&O Persons), (c) Section 8.13 (which shall be for the benefit of all Nonparty Affiliates), the provisions of Section 8.18 (which shall be for the benefit of Gibson Dunn and WSGR) and (d) the last sentence of this Section 8.9. Notwithstanding the foregoing, the Sponsor shall be an express third-party beneficiary of Section 2.2(e), Section 2.2(f), Section 5.4, Section 5.17, Section 7.2, Section 8.2, Section 8.3, Section 8.4, this Section 8.9 and Section 8.13, Section 8.14 and Section 8.19.

 

Section 8.10      Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable Law, but if any term or other provision of this Agreement is held to be invalid, illegal or unenforceable under applicable Law, all other provisions of this Agreement shall remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision of this Agreement is invalid, illegal or unenforceable under applicable Law, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.

 

Section 8.11      Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. The words “execution,” “signed,” “signature,” and words of like import in this Agreement or in any other certificate, agreement or document related to this Agreement or the other Ancillary Documents shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, “pdf”, “tif” or “jpg”) and other electronic signatures (including, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the Delaware Uniform Electronic Transactions Act and any other applicable law. Minor variations in the form of the signature page, including footers from earlier versions of this Agreement or any such other document, shall be disregarded in determining the party’s intent or the effectiveness of such signature.

 

Section 8.12      Knowledge of Company; Knowledge of STPK. For all purposes of this Agreement, the phrase “to the Company’s knowledge” and “known by the Company” and any derivations thereof shall mean as of the applicable date, the actual knowledge of the individuals set forth on Section 8.12(a) of the Company Schedules, assuming reasonable due inquiry and investigation. For all purposes of this Agreement, the phrase “to STPK’s knowledge” and “to the knowledge of STPK” and any derivations thereof shall mean as of the applicable date, the actual knowledge of the individuals set forth on Section 8.12(b) of the STPK Schedules, assuming reasonable due inquiry and investigation. For the avoidance of doubt, none of the individuals set forth on Section 8.12(a) of the Company Schedules or Section 8.12(b) of the STPK Schedules shall have any personal liability or obligations regarding such knowledge.

 

90

 

 

Section 8.13      No Recourse. All Proceedings, liabilities and causes of action (whether in contract or in tort, in Law or in equity or granted by statute) that may be based upon, be in respect of, arise under, out or by reason of, be connected with or relate in any manner to this Agreement, or the negotiation, execution or performance of this Agreement (including any representation or warranty made in this Agreement), may be made against only (and such representations and warranties are those solely of) the Persons that are expressly identified herein as Parties and their respective successors and permitted assigns. No Person who is not a Party, including any current, former or future director, officer, founder, employee, consultant, incorporator, member, partner, manager, shareholder, Affiliate, agent, attorney, representative, successor or assignee of, and any financial advisor to, any Party, or any current, former or future director, officer, employee, consultant, incorporator, member, partner, manager, shareholder, Affiliate, agent, attorney, representative, successor or assignee of, and any financial advisor to, any of the foregoing, and in the case of STPK, the Sponsor (or any successor or assignee thereof) (each in their capacity as such, a “Nonparty Affiliate”), shall have any liability (whether in contract or in tort, in Law or in equity, or granted by statute) for any Proceedings, liabilities or causes of action arising under, out or by reason of, in connection with, or related in any manner to this Agreement or based on, in respect of, or by reason of this Agreement or its negotiation, execution, performance or breach, and, to the maximum extent permitted by Law, each Party hereby waives and releases all such Proceedings, liabilities and causes of action against any such Nonparty Affiliates.

 

Section 8.14      Extension; Waiver. The Company may, prior to the Closing, (a) extend the time for the performance of any of the obligations or other acts of any STPK Party set forth herein, (b) waive any inaccuracies in the representations and warranties of any STPK Party set forth herein, or (c) waive compliance by any STPK Party with any of the agreements or conditions set forth herein. STPK may (prior to the Closing) and the Sponsor may (after the Closing) (in either case, on behalf of itself, and any other STPK Party) (i) extend the time for the performance of any of the obligations or other acts of the Company set forth herein, (ii) waive any inaccuracies in the representations and warranties of the Pre-Closing Holder or the Company set forth herein, or (iii) waive compliance by the Company with any of the agreements or conditions set forth herein. Any agreement on the part of any Party or the Sponsor to any such extension or waiver shall be valid only if set forth in a written instrument signed on behalf of such Person. Any waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition of this Agreement. The failure of any Party or the Sponsor to assert any of its rights hereunder shall not constitute a waiver of such rights.

 

Section 8.15      Waiver of Jury Trial. THE PARTIES EACH HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT OR UNDER ANY ANCILLARY DOCUMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES IN RESPECT OF THIS AGREEMENT OR ANY ANCILLARY DOCUMENT OR ANY OF THE TRANSACTIONS RELATED HERETO OR THERETO OR ANY FINANCING IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING IN RESPECT OF ANY ACTION AGAINST ANY FINANCING SOURCE (IF ANY), IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. THE PARTIES EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

 

91

 

 

Section 8.16      Jurisdiction. Any Proceeding based upon, arising out of or related to this Agreement or the transactions contemplated hereby must be brought in the Court of Chancery of the State of Delaware (or, to the extent such Court does not have subject matter jurisdiction, the Superior Court of the State of Delaware), or, if it has or can acquire jurisdiction, in the United States District Court for the District of Delaware, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such Proceeding, waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, agrees that all claims in respect of the Proceeding shall be heard and determined only in any such court, and agrees not to bring any Proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in any other court. Nothing herein contained shall be deemed to affect the right of any party to serve process in any manner permitted by Law or to commence legal Proceedings or otherwise proceed against any other party in any other jurisdiction, in each case, to enforce judgments obtained in any Proceeding brought pursuant to this Section 8.16.

 

Section 8.17      Remedies. Except as otherwise expressly provided herein, any and all remedies provided herein will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy. The failure on the part of any Party to exercise, and no delay in exercising, any right, power, or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power, or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. The Parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the Parties do not perform their respective obligations under the provisions of this Agreement (including failing to take such actions as are required of them hereunder to consummate the transactions contemplated by this Agreement) in accordance with their specific terms or otherwise breach such provisions. It is accordingly agreed that the Parties shall be entitled to an injunction or injunctions, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in each case without posting a bond or undertaking and without proof of damages and 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 and other equitable relief when expressly available pursuant to the terms of this Agreement 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.

 

92

 

 

Section 8.18      Legal Representation. STPK hereby agrees on behalf of its directors, members, partners, officers, employees and Affiliates (including after the Closing, the Company), and each of their respective successors and assigns (all such parties, the “Waiving Parties”), that Gibson, Dunn & Crutcher LLP (or any successor) (“Gibson Dunn”) and Wilson, Sonsini, Goodrich & Rosati, LLP (or any successor) (“WSGR”) may represent the Pre-Closing Holders or any of their respective directors, members, partners, officers, employees or Affiliates (other than the Company) (collectively, the “Stem Group”), in each case, in connection with any Proceeding or obligation arising out of or relating to this Agreement, any Ancillary Document or any of the transactions contemplated hereby or thereby, notwithstanding its representation (or any continued representation) of the Group Companies or other Waiving Parties, and each of STPK and the Company on behalf of itself and the Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising therefrom or relating thereto. STPK and the Company acknowledge that the foregoing provision applies whether or not Gibson Dunn or WSGR provides legal services to any Group Companies after the Closing Date. Each of STPK and the Company, for itself and the Waiving Parties, hereby further irrevocably acknowledges and agrees that all communications, written or oral, between any Group Company or any member of the Stem Group and its counsel, including Gibson Dunn or WSGR, made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Proceeding arising out of or relating to, this Agreement, any Ancillary Document or the transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company notwithstanding the Merger, and instead survive, remain with and are controlled by the Stem Group (the “Privileged Communications”), without any waiver thereof. STPK and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Privileged Communications, whether located in the records or email server of the Company or otherwise (including in the knowledge or the officers and employees of the Company), in any Proceeding against or involving any of the Parties after the Closing, and STPK and the Company agree not to assert that any privilege has been waived as to the Privileged Communications, whether located in the records or email server of the Company or otherwise (including in the knowledge of the officers and employees of the Company).

 

93

 

 

Section 8.19      Trust Account Waiver. Reference is made to the final prospectus of STPK, dated as of August 17, 2020, filed with the SEC (File No. 333-240267) on August 19, 2020 (the “Prospectus”). The Company acknowledge and agree and understand that STPK has established a trust account (the “Trust Account”) containing the proceeds of its initial public offering (the “IPO”) and from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of STPK’s public shareholders (including overallotment shares acquired by STPK’s underwriters, the “Public Shareholders”), and STPK may disburse monies from the Trust Account only in the express circumstances described in the Prospectus. For and in consideration of STPK entering into this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company hereby agrees on behalf of itself and its Representatives that, notwithstanding anything to the contrary in this Agreement, none of the Company, any Pre-Closing Holder, or any of their respective Representatives does now or shall at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Account or distribution therefrom to Public Shareholders or otherwise occurring prior to the Closing in accordance with the terms of the Trust Agreement (“Public Distributions”), or make any claim against the Trust Account (including any distributions therefrom), regardless of whether such claim arises as a result of, in connection with or relating in any way to, this Agreement, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (any and all such claims are collectively referred to hereafter as the “Trust Account Released Claims”). The Company on his, her or its own behalf and on behalf of his, her or its respective Representatives hereby irrevocably waives any Trust Account Released Claims that such Person and his, her or its respective Representatives may have against the Trust Account (including any distributions therefrom) now or in the future as a result of, or arising out of, any negotiations, or Contracts with STPK or its Representatives and will not seek recourse against the Trust Account (including any distributions therefrom) for any reason whatsoever (including for an alleged breach of any agreement with STPK or its Affiliates); provided, however, that STPK acknowledges and agrees that the foregoing shall not limit or prohibit any claims that the Company may have in the future pursuant to this Agreement or any Ancillary Document or related to the transactions contemplated hereby against STPK’s assets or funds that are not held in the Trust Account, including funds that have been released from the Trust Account to STPK upon the consummation of an initial business combination by STPK, and for the avoidance of doubt not including funds released to the Public Shareholders in respect of redemptions or to STPK’s underwriters for payment of their deferred discount from the IPO.

 

* * * * *

 

94

 

 

IN WITNESS WHEREOF, each of the Parties has caused this Agreement and Plan of Merger to be duly executed on its behalf as of the day and year first above written.

 

  STAR PEAK ENERGY TRANSITION CORP.

 

  By: /s/ Eric Scheyer
  Name: Eric Scheyer
  Title: Chief Executive Officer

 

  STPK MERGER SUB CORP.

 

  By: /s/ Eric Scheyer
  Name: Eric Scheyer
  Title: Chief Executive Officer

 

Signature page to Agreement and Plan of Merger

 

 

 

  STEM, INC.

 

  By: /s/ Bill Bush
  Name: Bill Bush
  Title: Chief Financial Officer

 

Signature page to Agreement and Plan of Merger

 

 

 

EXHIBIT A

 

Form of Support Agreement

 

(see attached)

 

Exhibit A to Agreement and Plan of Merger

 

 

 

EXHIBIT B

 

Form of Lock-Up Agreement

 

(see attached)

 

Exhibit B to Agreement and Plan of Merger

 

 

 

EXHIBIT C

 

Form of Investor Rights Agreement

 

(see attached)

 

Exhibit C to Agreement and Plan of Merger

 

 

 

EXHIBIT D

 

Form of Written Consent — Pre-Closing Holders

 

(see attached)

 

Exhibit D to Agreement and Plan of Merger

 

 

 

EXHIBIT E

 

Form of warrant EXERCISE Agreements

 

(see attached)

 

Exhibit E to Agreement and Plan of Merger

 

 

 

EXHIBIT F

 

Form of LETTER OF TRANSMITTAL

 

(see attached)

 

Exhibit F to Agreement and Plan of Merger

 

 

 

EXHIBIT G

 

Form of Certificate of Merger

 

(see attached)

 

Exhibit G to Agreement and Plan of Merger

 

 

 

EXHIBIT H

 

EXECUTED SUBSCRIPTION AGREEMENTS

 

(see attached)

 

Exhibit H to Agreement and Plan of Merger

 

 

 

EXHIBIT I

 

FORM OF NEW INCENTIVE PLAN

 

(see attached)

 

Exhibit I to Agreement and Plan of Merger

 

 

 

EXHIBIT J

 

Form of Governing Documents of STPK

 

(see attached)

 

Exhibit J to Agreement and Plan of Merger

 

 

 

Exhibit 10.1

 

Final Form

 

SUPPORT AGREEMENT

 

This SUPPORT AGREEMENT (this “Agreement”), dated as of December [●], 2020, is entered into by and among Star Peak Energy Transition Corp. (“STPK”) and each of the Pre-Closing Holders set forth on Schedule A hereto (the “Supporting Holders”). Capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings ascribed to such terms in the Merger Agreement (as defined below).

 

WHEREAS, STPK, STPK Merger Sub Corp., a Delaware corporation and wholly owned subsidiary of STPK (“Merger Sub”), and Stem, Inc. (the “Company”) propose to enter into, simultaneously herewith, a Merger Agreement (the “Merger Agreement”), a copy of which has been made available to each Supporting Holder, which provides, among other things, that, upon the terms and subject to the conditions thereof, (i) Merger Sub will be merged with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned subsidiary of STPK and (ii) immediately prior to, and conditioned upon, the effective time of the Merger, the holders of Senior Preferred Stock of the Company will effect a conversion (the “Senior Preferred Conversion”) of all of the Senior Preferred Stock to Company Common Stock (as defined below) in accordance with Section 4(b) of the Ninth Amended and Restated Certificate of Incorporation of Stem, Inc., as amended (the “Company Charter”);

 

WHEREAS, as of the date hereof, each Supporting Holder is the record owner of (a) the number of shares of Common Stock of the Company, par value $0.00001 per share (“Company Common Stock”), set forth opposite such Supporting Holder’s name on Schedule A under the column heading “Subject Common Shares” and (b) the number of shares of Preferred Stock of the Company, par value $0.00001 per share (“Company Preferred Stock”), set forth opposite such Supporting Holder’s name on Schedule A under the column heading “Subject Preferred Shares” (all such shares of Company Common Stock specified on Schedule A under the column heading “Subject Common Shares” shall be referred to herein as such Supporting Holder’s “Subject Common Shares”, all such shares of Company Preferred Stock specified on Schedule A under the column heading “Subject Preferred Shares” shall be referred to herein as such Supporting Holder’s “Subject Preferred Shares,” and such Supporting Holder’s Subject Common Shares and Subject Preferred Shares and any other shares of Company Common Stock or Company Preferred Stock such Supporting Holder may hereafter acquire prior to the termination of this Agreement pursuant to Section 5.2 shall be referred to herein collectively as such Supporting Holder’s “Subject Shares”); and

 

WHEREAS, as a condition to STPK’s willingness to enter into the Merger Agreement, and as an inducement and in consideration for STPK to enter into the Merger Agreement, each Supporting Holder has agreed to enter into this Agreement.

 

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:

 

Article I
AGREEMENT TO VOTE SUBJECT SHARES

 

1.1               Voting of Subject Shares. Each Supporting Holder holding Subject Shares hereby irrevocably and unconditionally agrees that, as promptly as practicable and in any event not later than two Business Days after the Registration Statement is declared effective by the SEC, such Supporting Holder shall deliver to STPK a written consent in the form attached to the Merger Agreement (the “Written Consent”) voting all of the Subject Shares in favor of (i) the adoption of the Merger Agreement, (ii) the approval of the transactions contemplated by the Merger Agreement (including the Merger) and (iii) the Senior Preferred Conversion. Each Supporting Holder covenants and agrees that, prior to the termination of this Agreement, such Supporting Holder will at any meeting of the stockholders of the Company (and at any adjournment or postponement thereof), however called, and in any written actions by consent of the stockholders of the Company, such Supporting Holder shall cause the Subject Shares to be voted (including via proxy): (a) in favor of the Merger and the transactions contemplated by the Merger Agreement (including the Senior Preferred Conversion), and any action in furtherance of any of the foregoing; and (b) against the following actions (other than the Merger and actions in furtherance of the Merger): (i) any extraordinary corporate transaction, such as a merger, consolidation or other business combination involving the Company or any of its Subsidiaries; (ii) any reorganization, recapitalization, dissolution or liquidation of the Company and its Subsidiaries that would be material to the Company and its Subsidiaries, taken as a whole; (iii) any material change in the capitalization of the Company or the Company’s corporate structure; (iv) any change in a majority of the board of directors of the Company; (v) any amendment to the Company’s certificate of incorporation or bylaws which is intended, or would reasonably be expected, to prohibit, impede, interfere with, discourage, delay or otherwise adversely affect the Merger; and (vi) any other action, proposal, agreement or transaction which is intended, or would reasonably be expected, to prohibit, impede, interfere with, discourage, delay or otherwise adversely affect the Merger.

 

 

 

 

Article II
REPRESENTATIONS AND WARRANTIES OF EACH SUPPORTING HOLDER

 

Each Supporting Holder represents and warrants to STPK that:

 

2.1               Authorization; Binding Agreement.

 

(a)                Such Supporting Holder, if not a natural person, is duly organized, validly existing and in good standing (where such concept is recognized) under the Laws of the jurisdiction in which it is incorporated or constituted. Such Supporting Holder has full legal capacity and power, right and authority to execute and deliver this Agreement and to perform its obligations hereunder and to consummate the transactions contemplated hereby.

 

(b)                This Agreement has been duly and validly executed and delivered by such Supporting Holder and, assuming the due authorization, execution and delivery by STPK, constitutes a legal, valid and binding obligation of such Supporting Holder, enforceable against such Supporting Holder in accordance with its terms, except that such enforceability (a) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws of general applicability affecting or relating to creditors’ rights generally and (b) is subject to general principles of equity (the “Enforceability Limitations”).

 

2.2               Non-Contravention. Neither the execution and delivery of this Agreement by such Supporting Holder nor performance by such Supporting Holder of the obligations herein nor the compliance by such Supporting Holder with any provisions herein will (a) violate the certificate or articles of incorporation, bylaws or other governing documents of such Supporting Holder, (b) require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority or any other Person on the part of such Supporting Holder, except as provided in the (i) Company Charter, (ii) the Fifth Amended and Restated Investors Rights Agreement of the Company (as amended from time to time), (iii) the Fifth Amended and Restated Voting Agreement of the Company (as amended from time to time), (iv) the Fourth Amended and Restated Right of First Refusal and Co-Sale Agreement of the Company (as amended from time to time) or (v) the amended and restated Bylaws of the Company (clauses (i) (v), collectively, the “Company Governing Documents”), (c) result (or, with the giving of notice, the passage of time or otherwise, would result) in the creation or imposition of any Encumbrance (as defined below) on the Subject Shares, other than any Permitted Encumbrance (as defined below), or (d) violate any Law applicable to such Supporting Holder or by which any of such Supporting Holder’s Subject Shares are bound, except, in the case of each of clauses (c) and (d), as would not reasonably be expected to materially impair such Supporting Holder’s ability to perform its obligations hereunder.

 

2

 

 

2.3               Ownership of Shares; Total Shares. Such Supporting Holder is the record and beneficial owner of all of such Supporting Holder’s Subject Shares and has good and marketable title to all of such Supporting Holder’s Subject Shares, free and clear of any Encumbrances, except for any such Restriction that may be imposed pursuant to (i) this Agreement, (ii) any Lock-Up Agreement entered into by and between such Supporting Holder, STPK and the Company, (iii) any applicable restrictions on transfer under applicable securities Laws and (iv) the Company Governing Documents (collectively, “Permitted Encumbrances”). The Equity Securities listed on Schedule A opposite such Supporting Holder’s name (collectively, the “Securities”) constitute all of the Company Common Shares, Company Preferred Stock, and any other securities of the Company owned by such Supporting Holder, as of the date hereof and such Supporting Holder does not own or have the power to vote any other shares of capital stock or other Equity Securities of the Company.

 

2.4               Voting Power. Such Supporting Holder has full voting power with respect to all of such Supporting Holder’s applicable Subject Shares and full power to agree to all of the matters set forth in this Agreement, in each case with respect to all such Supporting Holder’s Subject Shares. None of such Supporting Holder’s Subject Shares are subject to any stockholders’ agreement, proxy, voting trust or other agreement, arrangement or restriction of any kind or nature with respect to the voting of such Subject Shares, except for the Company Governing Documents.

 

2.5               Reliance. Such Supporting Holder understands and acknowledges that STPK is entering into the Merger Agreement in reliance upon such Supporting Holder’s execution, delivery and performance of this Agreement.

 

2.6               Brokers. Other than as expressly contemplated by the Merger Agreement or the disclosure schedules thereto, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Supporting Holder.

 

Article III
REPRESENTATIONS AND WARRANTIES OF STPK

 

STPK represents and warrants to each Supporting Holder that:

 

3.1               Organization and Qualification. STPK is duly organized, validly existing and in good standing under the Laws of the jurisdiction in which it is incorporated or constituted.

 

3.2               Authority for This Agreement. STPK has all requisite entity power and authority to execute, deliver and perform its obligations under this Agreement and to comply with any provisions herein. The execution and delivery of this Agreement by STPK has been duly and validly authorized by all necessary entity action on the part of STPK, and no other entity proceedings on the part of STPK are necessary to authorize this Agreement. This Agreement has been duly and validly executed and delivered by STPK and, assuming the due authorization, execution and delivery by the Supporting Holders, constitutes a legal, valid and binding obligation of each of STPK and Merger Sub, enforceable against STPK in accordance with its terms, subject to the Enforceability Limitations.

 

3

 

 

Article IV
ADDITIONAL COVENANTS OF THE SUPPORTING HOLDERS

 

Each Supporting Holder hereby covenants and agrees that:

 

4.1               No Transfer; No Inconsistent Arrangements.

 

(a)                Subject to Section 4.1(b), each Supporting Holder agrees that it shall not, directly or indirectly, (i) sell, assign, transfer (including by operation of Law), sell, gift, pledge, dispose of or otherwise encumber any of the Subject Shares or otherwise agree to do any of the foregoing, (ii) deposit any Subject Shares into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect thereto that is inconsistent with this Agreement, or (iii) enter into any contract, option or other arrangement or undertaking with respect to the direct or indirect acquisition or sale, assignment, transfer (including by operation of Law) or other disposition of any Subject Shares. Any action taken in violation of the foregoing sentence shall be null and void ab initio.

 

(b)                Section 4.1(a) shall not prohibit a transfer of Subject Shares by a Supporting Holder made: (A) in the case of a Supporting Holder that is an individual, by gift to a member of one of such Supporting Holder’s immediate family, an estate planning vehicle or to a trust, the beneficiary of which is a member of such Supporting Holder’s immediate family, an affiliate of such person or to a charitable organization; (B) in the case of a Supporting Holder that is an individual, by virtue of laws of descent and distribution upon death of such Supporting Holder; (C) in the case of a Supporting Holder being an individual, pursuant to a qualified domestic relations order; (D) by pro rata distributions from such Supporting Holder to its members, partners, or shareholders pursuant to such Supporting Holder’s organizational documents; (E) by virtue of applicable law or such Supporting Holder’s organizational documents upon liquidation or dissolution of such Supporting Holder; or (F) to any employees, officers, directors or members of the Supporting Holder or any affiliates of the Supporting Holder; provided, however, that a transfer referred to in this sentence shall be permitted only if, (x) as a precondition to such transfer, the transferee agrees in a written document, reasonably satisfactory in form and substance to STPK, to be bound by all of the terms of this Agreement, and (y) such transfer is effected no later than three Business Days prior to the date on which the Form S-4 is declared effective.

 

4.2               Exclusive Dealings. From the date of this Agreement until the earlier of the Closing or the termination of the Merger Agreement in accordance with its terms, each Supporting Holder shall not and shall cause its Representatives not to: (i) accept, initiate, respond to, encourage, entertain, solicit, negotiate, provide information with respect to or discuss any Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or that would reasonably be expected to lead to, an Acquisition Proposal; (iii) enter into any Contract regarding an Acquisition Proposal; (iv) prepare or take any steps in connection with a public offering of any Equity Securities of any Group Company (or any successor to or parent company of any Group Company); or (v) otherwise cooperate in any way with, or assist or participate in, or facilitate or encourage any effort or attempt by any Person to do or seek to do any of the foregoing or seek to circumvent this Section 4.2 or further an Acquisition Proposal. Each Supporting Holder agrees to (A) notify STPK promptly upon receipt (and in any event within forty-eight (48) hours after receipt) of any Acquisition Proposal of which they are aware, and to describe the terms and conditions of any such Acquisition Proposal in reasonable detail (including the identity of the Persons making such Acquisition Proposal), (B) keep STPK fully informed on a prompt basis of any modifications to such offer or information and (C) not (and shall cause its Subsidiaries and their respective Representatives not to) conduct any further discussions with, provide any information to, or enter into negotiations with such Persons. Each Supporting Holder shall immediately cease and cause to be terminated any discussions or negotiations with any Persons (other than STPK and its Representatives) that may be ongoing with respect to an Acquisition Proposal. Notwithstanding any to the contrary contained herein, this Section 4.2 shall not restrict any transfer permitted by Section 4.1(b) or any action taken in connection with any such permitted transfer.

 

4

 

 

4.3               No Legal Action. Each Supporting Holder shall not, and shall cause its Affiliates not to and shall direct its Representatives not to, bring, commence, institute, maintain, voluntarily aid or prosecute any claim, appeal or proceeding which (a) challenges the validity of or seeks to enjoin the operation of any provision of this Agreement, or (b) alleges that the execution and delivery of this Agreement by such Supporting Holder breaches any duty that such Supporting Holder has (or may be alleged to have) to the Company or to the other holders of Subject Shares; provided, that the foregoing shall not limit or restrict in any manner the rights of a Supporting Holder to enforce the terms of this Agreement.

 

4.4               Documentation and Information. Each Supporting Holder shall permit and hereby consents to and authorizes STPK and the Company to publish and disclose in all documents and schedules filed with the SEC, and any press release or other disclosure document that STPK and/or the Company reasonably determines to be necessary in connection with the Merger and any of the transactions contemplated by the Merger Agreement, a copy of this Agreement, the Supporting Holder’s identity and ownership of the Subject Shares and the nature of such Supporting Holder’s commitments and obligations under this Agreement; provided that the Supporting Holder’s identity will not be included in a press release or other public disclosure (other than a filing with the SEC) without the Supporting Holder’s prior consent. Each Supporting Holder agrees to be bound by Section 5.4 of the Merger Agreement to the same extent that the Company is bound thereunder.

 

4.5               Irrevocable Proxy. The Supporting Holders hereby revoke (or agree to cause to be revoked) any proxies that the Supporting Holders have heretofore granted with respect to the Subject Shares. The Supporting Holders hereby irrevocably and unconditionally appoint STPK, or any other individual designated by STPK with advance written notice to the Supporting Holders, and each individually, as attorney-in-fact and proxy, with full power of substitution, for and on behalf of the Supporting Holders, for and in the name, place and stead of the Supporting Holders, to: (a) attend any and all meetings of the Supporting Holders, (b) vote, express consent or dissent or issue instructions to the record holder to vote the Supporting Holders’ Subject Shares in accordance with the provisions of Section 1.1 at any and all meetings of the Supporting Holders or in connection with any action sought to be taken by written consent of the Supporting Holders without a meeting and (c) grant or withhold, or issue instructions to the record holder to grant or withhold, consistent with the provisions of Section 1.1, all written consents with respect to the Subject Shares at any and all meetings of the Supporting Holders or in connection with any action sought to be taken by written consent of the Supporting Holders without a meeting. The foregoing proxy is limited solely to the voting of each Supporting Holder’s Subject Shares or taking other actions with respect thereto solely in order to cause the Stockholder to perform the covenants set forth in Section 1.1 if and to the extent that such Supporting Holder otherwise fails to do so. The foregoing proxy shall be deemed to be a proxy coupled with an interest, is irrevocable (and as such shall survive and not be affected by the death, incapacity, mental illness or insanity of any Supporting Holder, as applicable) until the termination of this Agreement pursuant to Section 5.2 and shall not be terminated by operation of Law or upon the occurrence of any other event other than the termination of this Agreement pursuant to Section 5.2. The Supporting Holders authorize such attorney and proxy to substitute any other Person to act hereunder, to revoke any substitution and to file this proxy and any substitution or revocation with the Secretary of STPK. The Supporting Holders hereby affirm that the proxy set forth in this Section 4.5 is given in connection with and granted in consideration of and as an inducement to STPK to enter into the Merger Agreement and that such proxy is given to secure the obligations of the Supporting Holders under Section 1.1. The proxy set forth in this Section 4.5 is executed and intended to be irrevocable, subject, however, to its automatic termination upon the termination of this Agreement pursuant to Section 5.2.

 

5

 

 

4.6               Adjustments. In the event of any stock split, stock dividend or distribution, merger, reorganization, recapitalization, reclassification, combination, exchange of shares or the like of the capital stock of the Company affecting a Supporting Holder’s Shares, the terms of this Agreement shall apply to the resulting securities.

 

Article V
MISCELLANEOUS

 

5.1               Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given and received if delivered personally (notice deemed given upon receipt), by electronic mail (notice deemed given upon confirmation of receipt) or sent by a nationally recognized overnight courier service, such as Federal Express (notice deemed given upon receipt of proof of delivery); provided that the notice or other communication is sent to the address, facsimile number or email address set forth (i) if to STPK, to the address, facsimile number or email address set forth in Section 8.4 of the Merger Agreement and (ii) if to a Supporting Holder, to such Supporting Holder’s address, facsimile number or email address set forth on a signature page hereto, or to such other address, facsimile number or email address as such party may hereafter specify for the purpose by notice to each other party hereto.

 

5.2               Termination. This Agreement, the covenants and agreements contained herein and any proxy granted hereunder shall terminate automatically with respect to a Supporting Holder, without any notice or other action by any person, upon the first to occur of (a) the Effective Time and (b) the valid termination of the Merger Agreement in accordance with its terms. Upon termination of this Agreement, no party shall have any further obligations or liabilities under this Agreement; provided, however, that the provisions of this Article V shall survive any termination of this Agreement.

 

5.3               Amendments and Waivers. Any provision of this Agreement may be amended or waived if such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement or, in the case of a waiver, by each party against whom the waiver is to be effective. The waiver by any party of a breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

 

5.4               Expenses. All fees and expenses incurred in connection herewith shall be paid by the party incurring such fees and expenses, whether or not the Merger is consummated, except as expressly provided otherwise herein or in the Merger Agreement.

 

5.5               Entire Agreement; Assignment. This Agreement, together with Schedule A, and the other documents and certificates delivered pursuant hereto, constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter of this Agreement. This Agreement shall not be assigned by any party (including by operation of law, by merger or otherwise) without the prior written consent of (a) STPK, in the case of an assignment by a Supporting Holder (other than in the case of permitted transfer under Section 4.1(b)) and (b) the Supporting Holders, in the case of an assignment STPK. Any assignment in violation of this Section 5.5 shall be null and void ab initio.

 

5.6               Enforcement of the Agreement. The parties agree that irreparable damage may occur in the event that any Supporting Holder did not perform any of the provisions of this Agreement in accordance with their specific terms or otherwise breached any such provisions, and that monetary damages, even if available, would not be an adequate remedy therefor. It is accordingly agreed that STPK may be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in addition to any other remedy to which they are entitled at law or in equity without the requirement to post any bond or other security. Any and all remedies herein expressly conferred upon STPK will be deemed cumulative with and not exclusive of any other remedy conferred hereby or by Law or equity upon STPK, and the exercise by STPK of any one remedy will not preclude the exercise of any other remedy.

 

6

 

 

5.7               Jurisdiction; Waiver of Jury Trial; Governing Law. This Agreement and all related Proceedings shall be governed by and construed in accordance with the internal Laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Delaware. THE PARTIES HERETO EACH HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. THE PARTIES HERETO EACH HEREBY AGREE AND CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES HERETO MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. The parties hereto expressly incorporate by reference Section 8.16 (Jurisdiction) of the Merger Agreement to apply to this Agreement mutatis mutandis, with references to the Merger Agreement therein deemed to reference this Agreement and references to the “Parties” thereunder deemed to reference the parties hereto.

 

5.8               Descriptive Headings. The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.

 

5.9               Parties in Interest. This Agreement shall be binding upon and inure to the benefit of each party hereto, and nothing in this Agreement, express or implied, is intended to confer any rights or remedies of any nature whatsoever under or by reason of this Agreement upon any person other than each party hereto.

 

5.10           Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable Law, but if any term or other provision of this Agreement is held to be invalid, illegal or unenforceable under applicable Law, all other provisions of this Agreement shall remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto. Upon such determination that any term or other provision of this Agreement is invalid, illegal or unenforceable under applicable Law, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.

 

5.11           Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. The words “execution,” “signed,” “signature,” and words of like import in this Agreement or in any other certificate, agreement or document related to this Agreement or the other Ancillary Documents shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, “pdf”, “tif” or “jpg”) and other electronic signatures (including, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the Delaware Uniform Electronic Transactions Act and any other applicable law. Minor variations in the form of the signature page, including footers from earlier versions of this Agreement or any such other document, shall be disregarded in determining the party’s intent or the effectiveness of such signature.

 

7

 

 

5.12           Interpretation. The words “hereof,” “herein,” “hereby,” “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement, and article, section, paragraph and schedule references are to the articles, sections, paragraphs and schedules of this Agreement unless otherwise specified. Whenever the words “include,” “includes” or “including” are used in this Agreement they shall be deemed to be followed by the words “without limitation.” The words describing the singular number shall include the plural and vice versa, words denoting either gender shall include both genders and words denoting natural persons shall include all persons and vice versa. The word “extent” and the phrase “to the extent” when used in this Agreement shall mean the degree to which a subject or other things extends, and such word or phrase shall not merely mean “if.” The term “or” is not exclusive. The phrases “the date of this Agreement,” “the date hereof,” “of even date herewith” and terms of similar import, shall be deemed to refer to the date set forth in the preamble to this Agreement. Any reference in this Agreement to a date or time shall be deemed to be such date or time in Chicago, Illinois, unless otherwise specified. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any person by virtue of the authorship of any provision of this Agreement.

 

5.13           Further Assurances. Each Supporting Holder agrees that if any further agreements, deeds, assignments, assurances or other instruments are reasonably necessary to effectuate the covenants in this Agreement, such Supporting Holder will, upon reasonable written request of such Supporting Holder by STPK and at STPK’s cost and expense, execute and deliver all such proper agreements, deeds, assignments, assurances and other instruments and take other reasonable action as permissible to do all other things reasonably necessary to effectuate the covenants in this Agreement and otherwise to carry out the purposes of this Agreement.

 

5.14           Supporting Holder Obligation Several and Not Joint. The obligations of each Supporting Holder hereunder shall be several and not joint and several, and no Supporting Holder shall be liable for any breach of the terms of this Agreement by any other Supporting Holder.

 

5.15           No Agreement as Director or Officer. Each Supporting Holder is entering into this Agreement solely in such Supporting Holder’s capacity as record and/or beneficial owner of Subject Shares and nothing herein is intended to or shall limit, restrict or otherwise affect any votes or other actions taken by such Supporting Holder, or any employee, officer, director (or person performing similar functions), partner or other Affiliate of such Supporting Holder (including, for this purpose, any appointee or representative of such Supporting Holder to the board of directors of the Company) of such Supporting Holder, solely in his or her capacity as a director or officer of the Company (or a subsidiary of the Company) or other fiduciary capacity for the stockholders of the Company.

 

[Signature Pages Follow.]

 

8

 

 

The parties are executing this Agreement on the date set forth in the introductory clause.

 

  Star Peak Energy Transition Corp.
   
  By:                      
  Name:   

 

[Signature page to Voting Agreement]

 

 

 

 

  [SUPPORTING HOLDER]
   
  By:    
    Name:
    Title:
    Address:
    Facsimile:
    Email:

 

[Signature page to Voting Agreement]

 

 

 

 

Schedule A

 

Name of Supporting
Holder  
Subject
Common Shares  
Subject
Preferred Shares
Total Common
Shares
Total Preferred
Shares  
         

 

Schedule A

 

 

Exhibit 10.2

 

Final Form

 

FORM OF LOCK-UP AGREEMENT

 

THIS LOCK-UP AGREEMENT (this “Agreement”) is made and entered into as of [●], 2020 by and among (i) Star Peak Energy Transition Corp., a Delaware corporation (together with its successors, “STPK”), (ii) Stem, Inc., a Delaware corporation (the “Company”), and (iii) the undersigned (“Holder”). Any capitalized term used but not defined in this Agreement will have the meaning ascribed to such term in the Merger Agreement (as defined below).

 

WHEREAS, STPK, STPK Merger Sub Corp., a Delaware corporation and a direct wholly-owned subsidiary of STPK (“Merger Sub”), and the Company [entered into that // are substantially contemporaneously entering into that] certain Agreement and Plan of Merger, [dated as of [●] // on or about the date hereof] (as amended from time to time in accordance with the terms thereof, the “Merger Agreement”), pursuant to which, among other matters, upon the consummation of the transactions contemplated thereby (the “Closing”), Merger Sub will merge with and into the Company, with the Company continuing as the surviving entity and a wholly-owned subsidiary of STPK (the “Merger”), and as a result of which all of the issued and outstanding capital stock of the Company immediately prior to the Closing shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, in exchange for the right to receive newly issued STPK Common Shares and [STPK Options], all upon the terms and subject to the conditions set forth in the Merger Agreement and in accordance with the applicable provisions of the DGCL;

 

WHEREAS, as of the date hereof, Holder is a holder of equity securities of the Company in such amounts and classes or series as set forth underneath Holder’s name on the signature page hereto; and

 

WHEREAS, pursuant to the Merger Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties desire to enter into this Agreement, pursuant to which the STPK Common Shares and STPK Options, as applicable, to be received by Holder as consideration in the Merger, including any STPK Common Shares underlying the STPK Options (all such securities, together with any securities paid as dividends or distributions with respect to such securities or into which such securities are exchanged or converted, the “Restricted Securities”) shall become subject to limitations on disposition as set forth herein.

 

NOW, THEREFORE, in consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below, and intending to be legally bound hereby, the parties hereby agree as follows:

 

1.                   Lock-up Provisions.

 

(a)                Holder hereby agrees not to (1) Transfer any Restricted Securities from and after the Closing and until the earlier of (x) the six (6) month anniversary of the date of the Closing and (y) the date after the Closing on which STPK completes a liquidation, merger, capital stock exchange, reorganization or other similar transaction that results in all of STPK’s stockholders having the right to exchange their equity holdings in STPK for cash, securities or other property (clause (y), a “Liquidity Event”, and such period, the “Lock-up Period”), and (2) from and after the execution of the Merger Agreement and until the end of the Lock-Up Period, directly or indirectly, engage in any short sales or other hedging or derivative transactions in respect of STPK Common Shares or STPK Warrants; provided that the foregoing restrictions shall not apply to the Transfer of any or all of the Restricted Securities owned by Holder made in respect of a Permitted Transfer (as defined below); provided, further, that in any of case of a Permitted Transfer, it shall be a condition to such Transfer that the transferee executes and delivers to STPK and the Company an agreement, in substantially the same form of this Agreement, stating that the transferee is receiving and holding the Restricted Securities subject to the provisions of this Agreement applicable to Holder, and there shall be no further Transfer of such Restricted Securities except in accordance with this Agreement. As used herein, “Transfer” shall mean (i) the sale of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act, and the rules and regulations of the SEC promulgated thereunder with respect to, any security, (ii) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (iii) public announcement of any intention to effect any transaction specified in clause (i) or (ii). As used in this Agreement, the term “Permitted Transfer” shall mean a Transfer made: (A) in the case of Holder being an individual, by gift to a member of one of the individual’s immediate family, an estate planning vehicle or to a trust, the beneficiary of which is a member of the individual’s immediate family, an affiliate of such person or to a charitable organization; (B) in the case of Holder being an individual, by virtue of laws of descent and distribution upon death of Holder; (C) in the case of Holder being an individual, pursuant to a qualified domestic relations order; (D) by pro rata distributions from Holder to its members, partners, or shareholders pursuant to the Holder’s organizational documents; (E) by virtue of applicable law or the Holder’s organizational documents upon liquidation or dissolution of Holder; (F) to STPK for no value for cancellation in connection with the consummation of a Liquidity Event; (G) in the event of STPK’s liquidation prior to the completion of a Liquidity Event; (H) in the event of completion of a liquidation, merger, capital stock exchange, reorganization or other similar transaction which results in all of the STPK’s holders of STPK Common Shares having the right to exchange their STPK Common Shares for cash, securities or other property subsequent to the completion of a Liquidity Event; or (I) to any employees, officers, directors or members of the Holder or any affiliates of the Holder.

 

1

 

 

(b)                If any Transfer is made or attempted contrary to the provisions of this Agreement, such purported Transfer shall be null and void ab initio, and STPK shall refuse to recognize any such purported transferee of the Restricted Securities as one of its equity holders for any purpose. In order to enforce this Section 1, STPK may impose stop-transfer instructions with respect to the Restricted Securities of Holder (and Permitted Transferees and assigns thereof) until the end of the Lock-up Period.

 

(c)                During the Lock-up Period, each certificate evidencing any Restricted Securities shall be stamped or otherwise imprinted with a legend in substantially the following form, in addition to any other applicable legends:

 

“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A LOCK-UP AGREEMENT, DATED AS OF NOVEMBER [●], 2020, BY AND AMONG THE ISSUER OF SUCH SECURITIES (THE “ISSUER”), THE ISSUER’S SECURITY HOLDER NAMED THEREIN AND CERTAIN OTHER PARTIES NAMED THEREIN, AS AMENDED. A COPY OF SUCH LOCK-UP AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN REQUEST.”

 

(d)                For the avoidance of any doubt, (i) Holder shall retain all of its rights as a stockholder of STPK during the Lock-up Period, including the right to vote, and to receive any dividends and distributions in respect of, any Restricted Securities, and (ii) the restrictions contained in clause (1) of Section 1(a) shall not apply to any STPK Common Shares or other securities of STPK acquired by Holder in open market transactions or in any public or private capital raising transactions of STPK or otherwise to any STPK Common Shares (or other securities of STPK) other than the Restricted Securities.1

 

 

 

1        Note to Stem: The short sale, etc., restrictions in clause (2) need to apply to all common stock and warrants of STPK.

 

2

 

 

2.                   Miscellaneous.

 

(a)                Termination of Merger Agreement. Notwithstanding anything to the contrary contained herein, in the event that the Merger Agreement is terminated in accordance with its terms prior to the Closing, this Agreement and all rights and obligations of the parties hereunder shall automatically terminate and be of no further force or effect; provided that, such termination shall not affect any Liability on the part of any party for (i) a material breach of any covenant or agreement set forth in this Agreement prior to such termination or (ii) Fraud.

 

(b)                Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. This Agreement and all obligations of Holder are personal to Holder and may not be transferred or delegated by Holder at any time without the prior written consent of STPK, the Company and Sponsor. Each of STPK and the Company may freely assign any or all of its rights under this Agreement, in whole or in part, to any successor entity (whether by merger, consolidation, equity sale, asset sale or otherwise) without obtaining the consent or approval of Holder.

 

(c)                Third Parties. Nothing contained in this Agreement or in any instrument or document executed by any party in connection with the transactions contemplated hereby shall create any rights in, or be deemed to have been executed for the benefit of, any person or entity that is not a party hereto or thereto or a successor or permitted assign of such a party; provided, that Star Peak Sponsor, LLC, a Delaware limited liability company (“Sponsor”), shall be an express third party beneficiary of this Agreement and shall have the right to enforce the terms of this Agreement directly against Holder as if Sponsor were an original party hereto.

 

(d)                Governing Law; Jurisdiction; Waiver of Jury Trial; Remedies. This Agreement and all related Proceedings shall be governed by and construed in accordance with the internal Laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Delaware. THE PARTIES HERETO EACH HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. THE PARTIES HERETO EACH HEREBY AGREE AND CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES HERETO MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. The parties hereto expressly incorporate by reference Section 8.16 (Jurisdiction) of the Merger Agreement and, subject to Section 2(i) hereof, Section 8.17 (Remedies) of the Merger Agreement to apply to this Agreement mutatis mutandis, with references to the Merger Agreement therein deemed to reference this Agreement and references to the “Parties” thereunder deemed to reference the parties hereto.

 

3

 

 

(e)                Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable Law, but if any term or other provision of this Agreement is held to be invalid, illegal or unenforceable under applicable Law, all other provisions of this Agreement shall remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision of this Agreement is invalid, illegal or unenforceable under applicable Law, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.

 

(f)                 Construction; Interpretation. The headings set forth in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. No party hereto, nor its respective counsel, shall be deemed the drafter of this Agreement for purposes of construing the provisions hereof, and all provisions of this Agreement shall be construed according to their fair meaning and not strictly for or against any such party. Unless otherwise indicated to the contrary herein by the context or use thereof: (a) the words, “herein,” “hereto,” “hereof” and words of similar import refer to this Agreement as a whole, and not to any particular section, subsection, paragraph, subparagraph or clause set forth in this Agreement; (b) masculine gender shall also include the feminine and neutral genders, and vice versa; (c) words importing the singular shall also include the plural, and vice versa; (d) the words “include,” “includes” or “including” shall be deemed to be followed by the words “without limitation”; (e) references to “$” or “dollar” or “US$” shall be references to United States dollars; (f) the word “or” is disjunctive but not necessarily exclusive; (g) the words “writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form; (h) the word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”; (i) all references to Articles or Sections are to Articles or Sections of this Agreement; and (j) all references to any Law will be to such Law as amended, supplemented or otherwise modified from time to time. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly 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.

 

(g)                Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given) when delivered in person, when delivered by e-mail (having obtained electronic delivery confirmation thereof), or when sent by registered or certified mail (postage prepaid, return receipt requested) (upon receipt thereof) to the other parties hereto as follows:

 

   
If to STPK prior to the Closing, to: With a copy (which will not constitute notice) to:
   
Star Peak Energy Transition Corp. Kirkland & Ellis LLP
1603 Orrington Avenue, 13th Floor 609 Main Street
Evanston, Illinois 60201 Houston, Texas 77002
Attention: Secretary Attention: Matthew R. Pacey, P.C.
E-mail: info@starpeakcorp.com   William J. Benitez, P.C.
  Email: matt.pacey@kirkland.com
    william.benitez@kirkland.com
     

 

4

 

 

   
If to the Company prior to the Closing, to: With a copy (which shall not constitute notice) to:
   
Stem, Inc. Gibson, Dunn & Crutcher LLP
100 Rollins Road  200 Park Avenue
Millbrae, CA 94030 New York, New York 10166-0193
Attention: William Bush Attention: John Gaffney
Email: bill.bush@stem.com   Evan D’Amico
  Email: jgaffney@gibsondunn.com
    edamico@gibsondunn.com
   
   
If to STPK or the Company after the Closing, to: With copies (which shall not constitute notice) to:
   
Stem, Inc. Gibson, Dunn & Crutcher LLP
100 Rollins Road 200 Park Avenue
Millbrae, CA 94030 New York, New York 10166-0193
Attention: William Bush Attention: John Gaffney
Email: bill.bush@stem.com   Evan D’Amico
  Email: jgaffney@gibsondunn.com
    edamico@gibsondunn.com
   
   
If to Holder, to:  the address set forth below Holder’s name on the signature page to this Agreement.
 

 

(h)                Amendments and Waivers. This Agreement may be amended or modified only with the written consent of STPK, the Company, Sponsor and Holder. The observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of the party against whom enforcement of such waiver is sought. No failure or delay by a party in exercising any right hereunder shall operate as a waiver thereof. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision. STPK and the Company hereby represent, warrant, covenant and agree that (i) if any Lock-Up Agreement signed by a stockholder of the Company in connection with the transactions contemplated hereby is amended, modified or waived in a manner favorable to such stockholder and that would be favorable to Holder, this Agreement shall be contemporaneously amended in the same manner and STPK shall provide prompt notice thereof to Holder, and (ii) if any such stockholder is released from any or all of the lock-up restrictions under its Lock-UP Agreement, Holder will be similarly and contemporaneously released from the lock-up restrictions hereunder (which, for the avoidance, of doubt will include a release of the same percentage of Holder’s Restricted Securities) and STPK shall provide prompt notice thereof to Holder.

 

(i)                 Authorization on Behalf of STPK. In the event that Holder or Holder’s Affiliate serves as a director, officer, employee or other authorized agent of STPK or any of its current or future Affiliates, Holder and/or Holder’s Affiliate shall have no authority, express or implied, to act or make any determination on behalf of STPK or any of its current or future Affiliates in connection with this Agreement or any dispute or Proceeding with respect hereto.

 

(j)                 Specific Performance. Holder acknowledges that its obligations under this Agreement are unique, recognizes and affirms that in the event of a breach of this Agreement by Holder, money damages will be inadequate and STPK and the Company will have no adequate remedy at law, and agrees that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed by Holder in accordance with their specific terms or were otherwise breached. Accordingly, each of STPK and the Company (or Sponsor on their behalf) shall be entitled to an injunction or restraining order to prevent breaches of this Agreement by Holder and to enforce specifically the terms and provisions hereof, without the requirement to post any bond or other security or to prove that money damages would be inadequate, this being in addition to any other right or remedy to which such party may be entitled under this Agreement, at law or in equity.

 

5

 

 

(k)                Entire Agreement. This Agreement constitutes the full and entire understanding and agreement among the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties is expressly canceled; provided that, for the avoidance of doubt, the foregoing shall not affect the rights and obligations of the parties under the Merger Agreement or any Ancillary Documents. Notwithstanding the foregoing, nothing in this Agreement shall limit any of the rights or remedies of STPK and the Company or any of the obligations of Holder under any other agreement between Holder and STPK or the Company or any certificate or instrument executed by Holder in favor of STPK or the Company, and nothing in any other agreement, certificate or instrument shall limit any of the rights or remedies of STPK or the Company or any of the obligations of Holder under this Agreement.

 

(l)                 Further Assurances. From time to time, at another party’s written request and without further consideration (but at the requesting party’s reasonable cost and expense), each party shall execute and deliver such additional documents and take all such further action as may be reasonably necessary to consummate the transactions contemplated by this Agreement.

 

(m)              Counterparts; Electronic Signatures.  This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. The words “execution,” “signed,” “signature,” and words of like import in this Agreement or in any other certificate, agreement or document related to this Agreement shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, “pdf”, “tif” or “jpg”) and other electronic signatures (including, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the Delaware Uniform Electronic Transactions Act and any other applicable law. Minor variations in the form of the signature page, including footers from earlier versions of this Agreement or any such other document, shall be disregarded in determining the party’s intent or the effectiveness of such signature.

 

*   *   *   *   *

 

6

 

 

IN WITNESS WHEREOF, each of the parties has caused this Lock-up Agreement to be duly executed on its behalf as of the day and year first above written.

 

  Star Peak Energy Transition Corp.
   
  By:                
  Name:
  Title:
   
  Stem, Inc.
   
  By:  
  Name:
  Title:

 

Signature page to Lock-up Agreement

 

 

 

IN WITNESS WHEREOF, each of the parties has caused this Lock-up Agreement to be duly executed on its behalf as of the day and year first above written.

 

Holder:

 

Name of Holder:   [                                                                                                       ]  

 

By:     
Name:  
Title:  

 

Number and Type of Company Securities:  
   
[Company Common Stock]:    
     
[Company Preferred Stock]:    
     
[Company Options]:    
     
     

 

Address for Notice:  
   
Address:       
   
   
Facsimile No.:    
Telephone No.:     
Email:     :

 

Signature page to Lock-Up Agreement

 

 

 

Exhibit 10.3

 

Confidential

 

 

SUBSCRIPTION AGREEMENT

 

Star Peak Energy Transition Corp.

1603 Orrington Avenue, 13th Floor

Evanston, Illinois 60201

 

Ladies and Gentlemen:

 

In connection with the proposed business combination (the “Transaction”) between Star Peak Energy Transition Corp., a Delaware corporation (including any successor thereto pursuant to the terms of the Transaction Agreement, “STPK”), and Stem, Inc., a Delaware corporation (“Stem”), pursuant to a business combination agreement (the “Transaction Agreement”) to be entered into among Stem, STPK and a newly formed entity formed for the purpose of consummating the Transaction (the “Company”), STPK is seeking commitments from interested investors to purchase shares of Class A Common Stock, par value $0.0001 per share (the “Shares”), of STPK, for a purchase price of $10.00 per share. The aggregate purchase price to be paid by the undersigned (the “Investor”) for the subscribed Shares (as set forth on the signature page hereto) is referred to herein as the “Subscription Amount.”

 

In connection therewith, and in consideration of the foregoing and the mutual representations, warranties and covenants, and subject to the conditions, set forth herein, and intending to be legally bound hereby, the Investor and STPK agree as follows:

 

1.            Subscription. The Investor hereby irrevocably subscribes for and agrees to purchase from STPK such number of Shares as is set forth on the signature page of this Subscription Agreement on the terms provided for herein. Notwithstanding the foregoing or anything to the contrary in Section 9 below, in the event that the Closing Date (as defined below) shall not have occurred by the Outside Date (as defined in the Transaction Agreement) this Subscription Agreement shall be void and of no further effect and any monies paid by the Investor to STPK in connection herewith shall immediately be returned to the Investor.

 

2.            Closing. The closing of the sale of the Shares contemplated hereby (the “Closing”) is contingent upon the substantially concurrent consummation of the Transaction. The Closing shall occur on the date of, and promptly following the consummation of the Transaction. Upon (i) satisfaction or waiver of the conditions set forth in Section 3 below and (ii) delivery of written notice from (or on behalf of) STPK to the Investor (the “Closing Notice”), that STPK reasonably expects the closing of the Transaction to occur on a specified date that is not less than four (4) business days after the date on which the Closing Notice is delivered to the Investor (the “Closing Date”), the Investor shall deliver to STPK, two (2) business days prior to the Closing Date, the Subscription Amount by wire transfer of United States dollars in immediately available funds to the account(s) specified by STPK in the Closing Notice, to be held in escrow until the Closing. On the Closing Date, STPK shall issue the Shares to the Investor and subsequently cause the Shares to be registered in book entry form in the name of the Investor on STPK’s share register, and the Subscription Amount shall be released from escrow automatically and without further action by STPK or the Investor. This Subscription Agreement shall terminate and be of no further force or effect, without any liability to either party hereto, if STPK notifies the Investor in writing that it has abandoned its plans to move forward with the Transaction and/or terminates the Investor’s obligations without the delivery of the Shares having occurred. In the event that the consummation of the Transaction does not occur within one (1) business day after the anticipated Closing Date specified in the Closing Notice, STPK shall promptly (but in no event later than two (2) business days after the anticipated Closing Date specified in the Closing Notice) return the funds so delivered by the Investor to STPK by wire transfer in immediately available funds to the account specified by the Investor. For purposes of this Subscription Agreement, “business day” shall mean any day other than (a) any Saturday or Sunday or (b) any other day on which banks located in New York, New York are required or authorized by applicable law to be closed for business.

 

   

 

 

Confidential

 

3.            Closing Conditions.

 

a.            The obligation of the parties hereto to consummate the purchase and sale of the Shares pursuant to this Subscription Agreement is subject to the following conditions:

 

(i)            no applicable governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment, order, law, rule or regulation (whether temporary, preliminary or permanent) which is then in effect and has the effect of making consummation of the transactions contemplated hereby illegal or otherwise restraining or prohibiting consummation of the transactions contemplated hereby; and

 

(ii)            all conditions precedent to the closing of the Transaction set forth in Article 6 of the Transaction Agreement and including the approval of STPK’s stockholders and regulatory approvals, if any, shall have been satisfied (as determined by the parties to the Transaction Agreement and other than those conditions which, by their nature, are to be satisfied at the closing of the Transaction) or waived.

 

b.            The obligation of STPK to consummate the purchase and sale of the Shares at the Closing pursuant to this Subscription Agreement shall be subject to the satisfaction or valid waiver by STPK of the additional conditions that:

 

(i)            all representations and warranties of the Investor contained in this Subscription Agreement are true and correct in all material respects at and as of the Closing Date, and consummation of the Closing shall constitute a reaffirmation by the Investor of each of the representations, warranties, covenants and agreements of the Investor contained in this Subscription Agreement as of the Closing Date; and

 

(ii)            the Investor shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing.

 

c.            The obligation of the Investor to consummate the purchase and sale of the Shares at the Closing pursuant to this Subscription Agreement shall be subject to the satisfaction or valid waiver by the Investor of the additional conditions that:

 

(i)            all representations and warranties of STPK contained in this Subscription Agreement shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Material Adverse Effect (as defined below), which representations and warranties shall be true in all respects) at and as of the Closing Date, and consummation of the Closing shall constitute a reaffirmation by STPK of each of the representations, warranties, covenants and agreements of STPK contained in this Subscription Agreement as of the Closing Date;

 

(ii)            STPK shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing; and

 

(iii)            no suspension of the offering or sale of the Shares shall have been initiated or, to STPK’s knowledge, threatened by the Securities and Exchange Commission (the “SEC”).

 

4.            Further Assurances. At the Closing, STPK and the Investor shall execute and deliver such additional documents and take such additional actions as the parties reasonably may deem to be practical and necessary in order to consummate the subscription as contemplated by this Subscription Agreement.

 

5.            STPK Representations and Warranties. STPK represents and warrants to the Investor that:

 

a.            STPK has been duly formed as a Delaware corporation and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.

 

  2  

 

 

Confidential

 

b.            As of the Closing Date, the Shares will be duly authorized and, when issued and delivered to the Investor against full payment therefor in accordance with the terms of this Subscription Agreement, the Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under STPK’s certificate of incorporation (as amended to the Closing Date).

 

c.            This Subscription Agreement has been duly authorized, executed and delivered by STPK and, assuming that this Subscription Agreement constitutes the valid and binding agreement of the Investor, this Subscription Agreement is enforceable against STPK in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or (ii) principles of equity, whether considered at law or equity.

 

d.            The issuance and sale of the Shares and the compliance by STPK with all of the provisions of this Subscription Agreement and the consummation of the transactions contemplated herein will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of STPK or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which STPK or any of its subsidiaries is a party or by which STPK or any of its subsidiaries is bound or to which any of the property or assets of STPK is subject that would reasonably be expected to have a material adverse effect on the business, financial condition or results of operations of STPK and its subsidiaries, taken as a whole (a “Material Adverse Effect”) or materially affect the legal authority of STPK to comply in all material respects with the terms of this Subscription Agreement; (ii) result in any violation of the provisions of the organizational documents of STPK; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over STPK or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Material Adverse Effect or materially affect the validity of the Shares or the legal authority of STPK to comply in all material respects with this Subscription Agreement.

 

e.            As of the date hereof, STPK is not in default or violation (and no event has occurred which, with notice or the lapse of time or both, would constitute a default or violation) of any term, condition or provision of (i) the organizational documents of STPK, (ii) any loan or credit agreement, guarantee, note, bond, mortgage, indenture, lease or other agreement, permit, franchise or license to which, as of the date of this Subscription Agreement, STPK is a party or by which STPK’s properties or assets are bound or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency, taxing authority or regulatory body, domestic or foreign, having jurisdiction over STPK or any of its properties, except, in the case of clauses (ii) and (iii), for defaults or violations that would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.

 

f.            STPK is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance by STPK of this Subscription Agreement (including, without limitation, the issuance of the Shares), other than (i)  filings with the SEC, (ii) filings required by applicable state securities laws, (iii) filings required in accordance with Section 13 of this Subscription Agreement; (iv) those required by the New York Stock Exchange, including with respect to obtaining approval of STPK’s stockholders; and (vi) any filing, the failure of which to obtain would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.

 

g.            As of the date of this Subscription Agreement, the authorized capital stock of STPK consists of (i) 1,000,000 shares of preferred stock, par value $0.0001 per share (“Preferred Stock”) and (ii) 440,000,000 shares of common stock, par value $0.0001 per share (the “Common Stock”), including (1) 400,000,000 shares of Class A Common Stock, par value $0.0001 per share (“Class A Shares”) and (2) 40,000,000 shares of Class B Common Stock, par value $0.0001 (“Class B Common Stock”). As of the date of this Subscription Agreement, (i) no shares of Preferred Stock are issued and outstanding, (ii) 38,358,504 Class A Shares are issued and outstanding, (iii) 9,589,626 Class B Shares are issued and outstanding and (iv) 12,786,168 redeemable warrants and 7,181,134 private placement warrants are outstanding. All (i) issued and outstanding Class A Shares and Class B Shares have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights and (ii) outstanding warrants have been duly authorized and validly issued, are fully paid and are not subject to preemptive rights. Except as set forth above and pursuant to the Other Subscription Agreements (as defined below), the Transaction Agreement and the other agreements and arrangements referred to therein or in the SEC Reports (as defined below), as of the date hereof, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from STPK any shares of Common Stock or other equity interests in STPK, or securities convertible into or exchangeable or exercisable for such equity interests. As of the date hereof, other than STPK Merger Sub Corp., STPK has no subsidiaries and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are no stockholder agreements, voting trusts or other agreements or understandings to which STPK is a party or by which it is bound relating to the voting of any securities of STPK, other than (A) as set forth in the SEC Reports and (B) as contemplated by the Transaction Agreement. Except as disclosed in the SEC Reports, as of September 30, 2020, STPK had no outstanding indebtedness and will not have any outstanding long-term indebtedness as of the Closing Date.

3

 

 

Confidential

 

h.            As of the date hereof, STPK has not received any written communication from a governmental entity that alleges that STPK is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect.

 

i.            Assuming the accuracy of Investor’s representations and warranties set forth in Section 6 of this Subscription Agreement, no registration under the Securities Act (as defined below) is required for the offer and sale of the Shares by STPK to Investor in the manner contemplated by this Subscription Agreement.

 

j.            Neither STPK nor any person acting on its behalf has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) in connection with any offer or sale of the Shares.

 

k.            Other than the subscription agreements entered into on or about the date hereof (the “Other Subscription Agreements”) with certain other investors (the “Other Investors”), STPK has not entered into any side letter or similar agreement with any Other Investor in connection with such Other Investor’s direct or indirect investment in STPK (other than other than any side letter or similar agreement relating to the transfer to any investor of (i) securities of STPK by existing securityholders of STPK, which may be effectuated as a forfeiture to STPK and reissuance, or (ii) securities to be issued to the direct or indirect securityholders of the Company pursuant to the Transaction Agreement). No Other Subscription Agreement includes terms and conditions that are materially more advantageous to any such Other Investor than the Investor hereunder, and such Other Subscription Agreements have not been amended or modified in any material respect following the date of this Subscription Agreement.

 

l.            As of their respective filing dates, all reports required to be filed by STPK with the SEC (the “SEC Reports”) complied in all material respects with the applicable requirements of the Exchange Act, and the rules and regulations of the SEC promulgated thereunder. The financial statements of STPK included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing and fairly present in all material respects the financial position of STPK as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments. A copy of each SEC Report is available to the Investor via the SEC’s EDGAR system. There are no outstanding or unresolved comments in comment letters received by STPK from the staff of the Division of Corporation Finance of the SEC with respect to any of the SEC Reports.

 

m.            Except for such matters as have not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect, as of the date hereof, there is no (i) investigation, action, suit, claim or other proceeding, in each case by or before any governmental authority pending, or, to the knowledge of STPK, threatened against STPK or (ii) judgment, decree, injunction, ruling or order of any governmental entity outstanding against STPK.

 

n.            Neither STPK nor any of its subsidiaries has taken any steps to seek protection pursuant to any law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation, administration or winding up or failed to pay its debts when due, nor does STPK or any subsidiary have any knowledge or reason to believe that any of their respective creditors intend to initiate involuntary bankruptcy proceedings or seek to commence an administration.

4

 

 

Confidential

  

6.            Investor Representations and Warranties. The Investor represents and warrants to STPK that:

 

a.            The Investor (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”)), or an institutional “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, and an “Institutional Account” as defined in FINRA Rule 4512(c) (ii) is acquiring the Shares only for his, her or its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule A). The Investor is not an entity formed for the specific purpose of acquiring the Shares.

 

b.            The Investor understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. The Investor understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to STPK or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entry positions representing the Shares shall contain a restrictive legend to such effect; as a result the Investor may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges that the Shares will not immediately be eligible for resale pursuant to Rule 144 promulgated under the Securities Act. The Investor understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares.

 

c.            The Investor understands and agrees that the Investor is purchasing the Shares from STPK. The Investor further acknowledges that there have been no representations, warranties, covenants and agreements made to the Investor by Stem, STPK, or their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement.

 

d.            The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law.

 

e.            The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including, with respect to the Company, STPK, the Transaction and the business of Stem. Without limiting the generality of the foregoing, the Investor acknowledges that he, she or it has reviewed STPK’s filings with the SEC. The Investor represents and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares.

 

f.            The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and STPK, the Company, Stem or a representative of STPK, the Company or Stem or by means of contact from Goldman Sachs & Co. LLC, Credit Suisse Securities (USA) LLC or any of their affiliates (the “Placement Agents”), and the Shares were offered to the Investor solely by direct contact between the Investor and STPK, the Company, Stem or a representative of STPK, the Company or Stem or by contact between the Investor and the Placement Agents. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means. The Investor acknowledges that the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. Investor acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, the Company, STPK, Stem, the Placement Agents or their respective affiliates or any of its or their control persons, officers, directors, employees or representatives), other than the representations and warranties of STPK contained in Section 5 of this Subscription Agreement, in making its investment or decision to invest in STPK. The Investor further acknowledges that the Placement Agents have not made, do not make and shall not be deemed to make any express or implied representation or warranty with respect to STPK, the Company, Stem, this offering or the Transaction.

5

 

 

Confidential

 

 

g.            The Investor acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in STPK’s filings with the SEC. The Investor has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision.

 

h.            Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in STPK. The Investor acknowledges specifically that a possibility of total loss exists.

 

i.            In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the Investor and STPK’s representations in Section 5. Without limiting the generality of the foregoing, the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their affiliates or any of their control persons, officers, directors, employees or representatives concerning the Company, STPK, Stem, the Transaction, the Transaction Agreement, the Subscription Agreement or the transactions contemplated hereby or thereby, the Shares or the offer and sale of the Shares.

 

j.            The Investor understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment.

 

k.            The Investor has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement.

 

l.            The execution, delivery and performance by the Investor of this Subscription Agreement are within the powers of the Investor, have been duly authorized and will not constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, and, if the Investor is not an individual, will not violate any provisions of the Investor’s charter documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an individual the signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or (ii) principles of equity, whether considered at law or equity.

 

m.            The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. The Investor agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Investor is permitted to do so under applicable law. If the Investor is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Investor maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required by applicable law, the Investor maintains policies and procedures reasonably designed to ensure that the funds held by the Investor and used to purchase the Shares were legally derived.

6

 

 

Confidential

  

n.            No disclosure or offering document has been prepared by the Placement Agents in connection with the offer and sale of the Shares.

 

o.            The Placement Agents and each of their directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to STPK or the Shares or the accuracy, completeness or adequacy of any information supplied to the Investor by STPK.

 

p.            In connection with the issue and purchase of the Shares, the Placement Agents have not acted as the Investor’s financial advisor or fiduciary.

 

q.            At the Closing, the Investor will have sufficient funds to pay the Subscription Amount and consummate the purchase and sale of the Shares when required pursuant to this Subscription Agreement.

 

7.            Registration Rights

 

a.            In the event that the Shares are not registered in connection with the consummation of the Transaction, STPK agrees that, as soon as reasonably practicable (but in any case no later than thirty (30) calendar days after the consummation of the Transaction), it will file with the SEC (at its sole cost and expense) a registration statement registering such resale (the “Registration Statement”), and it shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) sixty (60) calendar days after the filing thereof (or, in the event the SEC reviews and has written comments to the Registration Statement, the ninetieth (90th) calendar day following the filing thereof) and (ii) the tenth (10th) business day after the date STPK is notified (orally or in writing, whichever is earlier) by the SEC that the Registration Statement will not be “reviewed” or will not be subject to further review ((i) and (ii) collectively, the “Effectiveness Deadline”); provided, that if such falls on a Saturday, Sunday or other day that the SEC is closed for business, the Effectiveness Deadline shall be extended to the next business day on which the SEC is open for business. STPK will provide a draft of the Registration Statement to the undersigned for review at least two (2) business days in advance of filing the Registration Statement. In no event shall the undersigned be identified as a statutory underwriter in the Registration Statement unless requested by the SEC. Notwithstanding the foregoing, if the SEC prevents STPK from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Shares by the applicable stockholders or otherwise, such Registration Statement shall register for resale such number of Shares which is equal to the maximum number of Shares as is permitted by the SEC. In such event, the number of Shares to be registered for each selling shareholder named in the Registration Statement shall be reduced pro rata among all such selling shareholders. STPK will use its commercially reasonable efforts to maintain the continuous effectiveness of the Registration Statement until all such securities cease to be Registrable Securities (as defined below) or such shorter period upon which all Investors with Registrable Securities included in such Registration Statement have notified STPK that such Registrable Securities have actually been sold. STPK will use its commercially reasonable efforts to (i) cause the removal of all restrictive legends from any Shares being sold under the Registration Statement or pursuant to Rule 144 under the Securities Act (“Rule 144”) at the time of sale of such Registrable Securities and, at the request of an applicable holder, cause the removal of all restrictive legends from any Registrable Securities held by such an applicable holder that may be sold by such an applicable holder without restriction under Rule 144, including without limitation, any volume and manner of sale restrictions, and (ii) cause its legal counsel to deliver the necessary legal opinions, if any, to the transfer agent in connection with the instruction under subclause (i) upon the receipt of such supporting documentation, if any, as reasonably requested by such counsel. STPK will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable Investor to resell Registrable Securities pursuant to the Registration Statement or Rule 144, as applicable, qualify the Registrable Securities for listing on the applicable stock exchange, update or amend the Registration Statement as necessary to include Registrable Securities and provide customary notice to holders of Registrable Securities. “Registrable Securities” shall mean, as of any date of determination, the Shares and any other equity security of STPK issued or issuable with respect to the Shares by way of share split, dividend, distribution, recapitalization, merger, exchange, replacement or similar event or otherwise. As to any particular Registrable Securities, once issued, such securities shall cease to be Registrable Securities (i) when they are sold, transferred, disposed or exchanged pursuant to an effective Registration Statement under the Securities Act, (ii) the earliest of (A) the fourth anniversary of the Closing, (B) such time that such holder has disposed such securities pursuant to Rule 144 or (C) if Rule 144(i) is no longer applicable to STPK or Rule 144(i)(2) is amended to remove the reporting requirement preceding a disposition of securities, such time that such holder is able to dispose of all of its, his or her Registrable Securities pursuant to Rule 144 without any volume limitations thereunder, (iii) when such securities shall have ceased to be outstanding or (iv) when such securities have been sold in a private transaction in which the transferor’s rights under this Section 7(a) are not assigned to the transferee of such securities. The Investor agrees to disclose its ownership to STPK upon request to assist it in making the determination described above. The Investor agrees that STPK may suspend the use of any such registration statement, for a continuous period of up to 60 days not more than twice in any 12-month period, if it determines that in order for such registration statement not to contain a material misstatement or omission, an amendment thereto would be needed to include information that would at that time not otherwise be required in a current, quarterly, or annual report under the Exchange Act of 1934, as amended (the “Exchange Act”). STPK’s obligations to include the Shares issued pursuant to this Subscription Agreement (or shares issued in exchange therefor) for resale in the Registration Statement are contingent upon the Investor furnishing in writing to STPK such information regarding the Investor, the securities of STPK held by the Investor and the intended method of disposition of such Shares as shall be reasonably requested by STPK to effect the registration of such Shares, and shall execute such documents in connection with such registration as STPK may reasonably request that are customary of a selling stockholder in similar situations.

7

 

 

Confidential

  

b.            STPK shall, notwithstanding any termination of this Subscription Agreement, indemnify, defend and hold harmless Investor (to the extent a seller under the Registration Statement), the officers, directors, trustees, agents, partners, members, managers, stockholders, affiliates, employees and investment advisers of each of them, each person who controls Investor (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, trustees, agents, partners, members, managers, stockholders, affiliates, employees and investment advisers of each such controlling person, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable costs of preparation and investigation and reasonable attorneys’ fees) and expenses (collectively, “Losses”), as incurred, that arise out of or are based upon any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any prospectus included in the Registration Statement or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, except insofar as the same are caused by or contained in any information furnished in writing to STPK by or on behalf of the Investor expressly for use therein.

 

c.            Investor shall, severally and not jointly with any other Investor, indemnify and hold harmless STPK, its directors, officers, agents and employees, each person who controls STPK (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or employees of such controlling persons, to the fullest extent permitted by applicable law, from and against all Losses, as incurred, arising out of or are based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any prospectus included in the Registration Statement, or any form of prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus, or any form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading to the extent, but only to the extent, that such untrue statements or omissions are based solely upon information regarding Investor furnished in writing to STPK by Investor expressly for use therein. In no event shall the liability of Investor be greater in amount than the dollar amount of the net proceeds received by Investor upon the sale of the Shares giving rise to such indemnification obligation. Notwithstanding the forgoing, Investor’s indemnification obligations shall not apply to amounts paid in settlement of any Losses or action if such settlement is effected without the prior written consent of Investor.

8

 

 

Confidential

  

8.            Additional Investor Agreement

 

a.            . The Investor hereby agrees that, from the date of this Subscription Agreement, the Investor, its controlled affiliates, or any person or entity acting on behalf of Investor or any of its controlled affiliates or pursuant to any understanding with Investor or any of its controlled affiliates will not engage in any Short Sales with respect to securities of STPK prior to the Closing. “Short Sales” shall include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, and all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage arrangements). Notwithstanding the foregoing, (i) nothing herein shall prohibit other entities under common management with the Investor that have no knowledge of this Subscription Agreement or of the Investor’s participation in the Transaction (including the Investor’s controlled affiliates and/or affiliates) from entering into any Short Sales; (ii) in the case of an Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Investor’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, this Section 8 shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Subscription Amount covered by this Subscription Agreement and (iii) nothing herein shall prohibit the Investor from engaging in derivative transactions of any kind, including, but not limited to, forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales and other transactions through U.S broker dealers or non-U.S. broker dealers or foreign regulated brokers. STPK acknowledges and agrees that, notwithstanding anything herein to the contrary, the Shares may be pledged by Investor in connection with a bona fide margin agreement, provided such pledge shall be (i) pursuant to an available exemption from the registration requirements of the Securities Act or (ii) pursuant to, and in accordance with, a registration statement that is effective under the Securities Act at the time of such pledge, and Investor effecting a pledge of Shares shall not be required to provide STPK with any notice thereof; provided, however, that neither STPK or their counsel shall be required to take any action (or refrain from taking any action) in connection with any such pledge, other than providing any such lender of such margin agreement with an acknowledgment that the Shares are not subject to any contractual prohibition on pledging or lock up, the form of such acknowledgment to be subject to review and comment by STPK in all respects.

 

9.            Termination. This Subscription Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earlier to occur of (a) such date and time as the Transaction Agreement is terminated in accordance with its terms, (b) upon the mutual written agreement of each of the parties hereto and Stem to terminate this Subscription Agreement, (c) STPK’s notification to the Investor in writing that it has abandoned its plans to move forward with the Transaction and/or terminates the Investor’s obligations with respect to the subscription without the delivery of the Shares having occurred, (d) the Outside Date (as defined in the Transaction Agreement), if the Closing has not occurred by such date, or (e) if any of the conditions to Closing set forth in Section 3 of this Subscription Agreement are not satisfied or waived, or are not capable of being satisfied, on or prior to the Closing and, as a result thereof, the transactions contemplated by this Subscription Agreement will not be and are not consummated at the Closing; provided that nothing herein will relieve any party from liability for any willful breach hereof prior to the time of termination, and each party will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from any such breach. STPK shall notify the Investor of the termination of the Transaction Agreement promptly after the termination of such agreement.

 

10.            Trust Account Waiver. The Investor acknowledges that STPK is a blank check company with the powers and privileges to effect a merger, asset acquisition, reorganization or similar business combination involving STPK and one or more businesses or assets. The Investor further acknowledges that, as described in STPK’s prospectus relating to its initial public offering dated August 17, 2020 (the “Prospectus”) available at www.sec.gov, substantially all of STPK’s assets consist of the cash proceeds of STPK’s initial public offering and private placement of its securities, and substantially all of those proceeds have been deposited in a trust account (the “Trust Account”) for the benefit of STPK, its public shareholders and the underwriter of STPK’s initial public offering. Except with respect to interest earned on the funds held in the Trust Account that may be released to STPK to pay its tax obligations, if any, the cash in the Trust Account may be disbursed only for the purposes set forth in the Prospectus. For and in consideration of STPK entering into this Subscription Agreement, the receipt and sufficiency of which are hereby acknowledged, the Investor hereby irrevocably waives any and all right, title and interest, or any claim of any kind it has or may have in the future, in or to any monies held in the Trust Account, and agrees not to seek recourse against the Trust Account as a result of, or arising out of, this Subscription Agreement, provided, however, that nothing in this Section 10 shall be deemed to limit the Investor’s right, title, interest or claim to any monies held in the Trust Account by virtue of its record or beneficial ownership of any Shares other than the Shares purchased by it pursuant to this Subscription Agreement, pursuant to a validly exercised redemption right with respect to any such Shares.

9

 

 

Confidential

  

11.            Miscellaneous.

 

a.            Neither this Subscription Agreement nor any rights that may accrue to the Investor hereunder (other than the Shares acquired hereunder, if any) may be transferred or assigned; provided that the Investor may assign its rights and obligations under this Subscription Agreement to one or more of its affiliates (including other investment funds or accounts managed or advised by the investment manager who acts on behalf of the Investor or an affiliate thereof); provided, that no such assignment shall relieve the Investor of its obligations hereunder.

 

b.            STPK may request from the Investor such additional information as STPK may deem necessary to evaluate the eligibility of the Investor to acquire the Shares, and the Investor shall promptly provide such information as may reasonably be requested to the extent readily available and to the extent consistent with its internal policies and procedures; provided, that, STPK agrees to keep any such information provided by Investor confidential except (i) as required by the federal securities law or pursuant to other routine proceedings of regulatory authorities or (ii) to the extent such disclosure is required by law, at the request of the staff of the SEC or regulatory agency or under the regulations of any national securities exchange on which STPK’s securities are listed for trading. The Investor acknowledges and agrees that if it does not provide STPK with such requested information, STPK may not be able to register the Investor's Shares for resale pursuant to Section 7 hereof. The Investor hereby agrees that its identity and the Subscription Agreement, as well as the nature of the Investor’s obligations hereunder, may be disclosed in any public announcement or disclosure required by the SEC and in any registration statement, proxy statement, consent solicitation statement or any other SEC filing to be filed by STPK in connection with the issuance of shares contemplated by this Subscription Agreement and/or the Transaction.

 

c.            The Investor acknowledges that the STPK, the Company (following the Closing), Stem (following the Closing), the Placement Agents and others will rely on the acknowledgments, understandings, agreements, representations and warranties contained in this Subscription Agreement. Prior to the Closing, the Investor agrees to promptly notify STPK and the Placement Agents if any of the acknowledgments, understandings, agreements, representations and warranties set forth in Section 6 above are no longer accurate in any material respect (other than those acknowledgments, understandings, agreements, representations and warranties qualified by materiality, in which case the Investor shall notify STPK and the Placement Agents if they are no longer accurate in all respects). The Investor agrees that each purchase by the Investor of Shares from STPK will constitute a reaffirmation of the acknowledgments, understandings, agreements, representations and warranties herein (as modified by any such notice) by the Investor as of the time of such purchase. The Investor further acknowledges and agrees that Stem and the Placement Agent shall be entitled to rely on the provisions of this Subscription Agreement of which Stem and the Placement Agent are each an express third party beneficiary on the terms and subject to the conditions set forth herein.

 

d.            The Company, Stem, STPK and the Placement Agents are each entitled to rely upon this Subscription Agreement and each is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.

 

e.            All of the agreements, representations and warranties made by each party hereto in this Subscription Agreement shall survive the Closing.

 

f.            This Subscription Agreement may not be modified, waived or terminated (other than pursuant to the terms of Section 9 above) except by an instrument in writing, signed by each of the parties hereto; providedhowever, that no modification or waiver by STPK of the provisions of this Subscription Agreement shall be effective without the prior written consent of Stem (other than modifications or waivers that are solely ministerial in nature or otherwise immaterial and do not affect any economic or any other material term of this Subscription Agreement). No failure or delay of either party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have hereunder. Notwithstanding anything to the contrary herein, Section 6, Section 11(c), Section 11(d), this Section 11(f) and Section 12 may not be modified, waived or terminated in a manner that is material and adverse to the Placement Agents without the written consent of the Placement Agents.

10

 

 

Confidential

  

g.            This Subscription Agreement (including the schedule hereto) constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof. Except as set forth in Section 9(b), Section 11(c), Section 11(d), Section 11(f) and this Section 11(g) with respect to the persons specifically referenced therein, this Subscription Agreement shall not confer any rights or remedies upon any person other than the parties hereto, and their respective successor and assigns, and the parties hereto acknowledge that such persons so referenced are third party beneficiaries of this Subscription Agreement with right of enforcement for the purposes of, and to the extent of, the rights granted to them, if any, pursuant to the applicable provisions.

 

h.            Except as otherwise provided herein, this Subscription Agreement shall be binding upon, and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives, and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors, legal representatives and permitted assigns.

 

i.            If any provision of this Subscription Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect.

 

j.            This Subscription Agreement may be executed in one or more counterparts (including by facsimile or electronic mail or in .pdf) and by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document. All counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement.

 

k.            The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Subscription Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Subscription Agreement, without posting a bond or undertaking and without proof of damages, to enforce specifically the terms and provisions of this Subscription Agreement, this being in addition to any other remedy to which such party is entitled at law, in equity, in contract, in tort or otherwise.

 

l.            Any notice or communication required or permitted hereunder shall be in writing and either delivered personally, emailed or sent by overnight mail via a reputable overnight carrier, or sent by certified or registered mail, postage prepaid, and shall be deemed to be given and received (i) when so delivered personally, (ii) when sent, with no mail undeliverable or other rejection notice, if sent by email, or (iii) three business days after the date of mailing to the address below or to such other address or addresses as such person may hereafter designate by notice given hereunder:

 

(i)            if to Investor, to such address(es) or email address(es) set forth herein;

 

(ii)            if to, prior to the Closing, STPK or the Company, to:

 

Star Peak Energy Transition Corp.

1603 Orrington Avenue, 13th Floor

Evanston, Illinois 60201

Attention:     Secretary

E-mail:         info@starpeakcorp.com

 

 

with a required copy to (which copy shall not constitute notice):

 

Kirkland & Ellis LLP

609 Main Street

Houston, Texas 77002

11

 

 

Confidential

 

Attention:     Matthew R. Pacey, P.C.

William J. Benitez, P.C.

Email:          matt.pacey@kirkland.com

      william.benitez@kirkland.com

 

m.            Each party hereto shall pay all of its own expenses in connection with this Subscription Agreement and the transactions contemplated herein except as otherwise set forth in this Subscription Agreement.

 

n.            THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND THE SUPREME COURT OF THE STATE OF NEW YORK SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS SUBSCRIPTION AGREEMENT AND THE DOCUMENTS REFERRED TO IN THIS SUBSCRIPTION AGREEMENT AND IN RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR INTERPRETATION OR ENFORCEMENT HEREOF OR ANY SUCH DOCUMENT THAT IS NOT SUBJECT THERETO OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS SUBSCRIPTION AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION, SUIT OR PROCEEDING SHALL BE HEARD AND DETERMINED BY SUCH A NEW YORK STATE OR FEDERAL COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH SUCH ACTION, SUIT OR PROCEEDING IN THE MANNER PROVIDED IN THIS SECTION 11(n) OF THIS SUBSCRIPTION AGREEMENT OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW SHALL BE VALID AND SUFFICIENT SERVICE THEREOF.

 

EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS SUBSCRIPTION AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (II) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THE FOREGOING WAIVER; (III) SUCH PARTY MAKES THE FOREGOING WAIVER VOLUNTARILY AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS SUBSCRIPTION AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 11(n).

 

12.            Non-Reliance and Exculpation. The Investor acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, the Placement Agents, any of their affiliates or any of its or their control persons, officers, directors and employees), other than the statements, representations and warranties of STPK expressly contained in Section 5 of this Subscription Agreement, in making its investment or decision to invest in STPK. The Investor agrees that none of (i) any other investor pursuant to this Subscription Agreement or any other subscription agreement related to the private placement of the Shares (including the respective controlling persons, officers, directors, partners, agents, or employees of any investor), (ii) the Placement Agents, their affiliates or any of its or their control persons, officers, directors or employees, or (iii) any other party to the Transaction Agreement, including any such party’s representatives, affiliates or any of its or their control persons, officers, directors or employees, that is not a party hereto shall be liable to the Investor, or to any other investor, pursuant to this Subscription Agreement or any other subscription agreement related to the private placement of the Shares for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Shares.

12

 

 

Confidential

 

13.            Disclosure. STPK shall, by 9:00 a.m., New York City time, on the first (1st) business day immediately following the date of this Subscription Agreement, issue one or more press releases or file with the SEC a Current Report on Form 8-K (collectively, the “Disclosure Document”) disclosing all material terms of the transactions contemplated hereby and by the Other Subscription Agreements, the Transaction and any other material, nonpublic information that STPK has provided to the Investor at any time prior to the filing of the Disclosure Document. Upon the issuance of the Disclosure Document, to the actual knowledge of STPK, the Investor shall not be in possession of any material, non-public information received from STPK or any of its officers, directors, or employees or agents, and the Investor shall no longer be subject to any confidentiality or similar obligations under any current agreement, whether written or oral, with STPK, the Placement Agent or any of their respective affiliates, relating to the transactions contemplated by this Subscription Agreement. Notwithstanding anything in this Subscription Agreement to the contrary, STPK shall not publicly disclose the name of the Investor, its investment advisor or any of their respective affiliates or advisers, or include the name of the Investor, its investment advisor or any of their respective affiliates or advisers in any press release or in any filing with the SEC or any regulatory agency or trading market, without the prior written consent of the Investor, except (i) as required by the federal securities law or pursuant to other routine proceedings of regulatory authorities or (ii) to the extent such disclosure is required by law, at the request of the staff of the SEC or regulatory agency or under the regulations of any national securities exchange on which STPK’s securities are listed for trading; provided, however, that STPK shall provide Investor with prior written notice of such disclosure permitted under clauses (i) and (ii).

 

[SIGNATURE PAGES FOLLOW]

13

 

 

 

 

IN WITNESS WHEREOF, the Investor has executed or caused this Subscription Agreement to be executed by its duly authorized representative as of the date set forth below.

 

Name of Investor: State/Country of Formation or Domicile:
   
By:               
Name:                     
Title:                      
   
Name in which Shares are to be registered (if different): Date: ________, 2020
   
Investor’s EIN:  
   
Business Address-Street: Mailing Address-Street (if different):
   
City, State, Zip: City, State, Zip:
   
Attn:            Attn:                
   
Telephone No.: Telephone No.:
Facsimile No.: Facsimile No.:
   
Number of Shares subscribed for:  
   
Aggregate Subscription Amount: $ Price Per Share: $10.00

 

You must pay the Subscription Amount by wire transfer of United States dollars in immediately available funds to the account specified by STPK in the Closing Notice. To the extent the offering is oversubscribed, the number of Shares received may be less than the number of Shares subscribed for.

 

  14  

 

 

IN WITNESS WHEREOF, Star Peak Energy Transition Corp. has accepted this Subscription Agreement as of the date set forth below.

 

  Star Peak Energy Transition Corp.
   
  By:  
  Name:        
  Title:  
   
Date:         , 2020  

 

  15  

 

 

SCHEDULE A

 

ELIGIBILITY REPRESENTATIONS OF THE INVESTOR

 

A. QUALIFIED INSTITUTIONAL BUYER STATUS
  (Please check the applicable subparagraphs):
   

  We are a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act).

 

B. INSTITUTIONAL ACCREDITED INVESTOR STATUS

 

  (Please check the applicable subparagraphs):

 

  1.   We are an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act or an entity in which all of the equity holders are accredited investors within the meaning of Rule 501(a) under the Securities Act), and have marked and initialed the appropriate box on the following page indicating the provision under which we qualify as an “accredited investor.”

 

  2.       We are not a natural person.

 

Rule 501(a), in relevant part, states that an “accredited investor” shall mean any person who comes within any of the below listed categories, or who the issuer reasonably believes comes within any of the below listed categories, at the time of the sale of the securities to that person. The Investor has indicated, by marking and initialing the appropriate box below, the provision(s) below which apply to the Investor and under which the Investor accordingly qualifies as an “accredited investor.”

 

  Any bank, registered broker or dealer, insurance company, registered investment company, business development company, or small business investment company;

 

  Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000;

 

  Any employee benefit plan, within the meaning of the Employee Retirement Income Security Act of 1974, if a bank, insurance company, or registered investment adviser makes the investment decisions, or if the plan has total assets in excess of $5,000,000;

 

  Any organization described in Section 501(c)(3) of the Internal Revenue Code, corporation, similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000;

 

  Any trust with assets in excess of $5,000,000, not formed to acquire the securities offered, whose purchase is directed by a sophisticated person; or

 

  Any entity in which all of the equity owners are accredited investors meeting one or more of the above tests.

 

C.

FINRA INSTITUTIONAL ACCOUNT STATUS

(Please check the applicable subparagraphs):

 

  1.   We are an “institutional account” under FINRA Rule 4512(c).

 

  2.     We are not an “institutional account” under FINRA Rule 4512(c).

16

 

 

This page should be completed by the Investor

and constitutes a part of the Subscription Agreement.

 

17

 

 

Exhibit 99.1

 

   

 

Stem, Inc. – Market Leader in AI-Driven Clean Energy Storage Systems – to Combine with Star Peak, Creating First Public Pure Play Smart Energy Storage Company

 

· Stem, Inc. to become publicly listed through business combination with Star Peak Energy Transition Corp. (NYSE: STPK).
· Founded in 2009, Stem is an energy storage leader that offers customers a complete solution of integrated battery storage systems, network integration and battery optimization via its proprietary AI-driven software platform called Athena™.

· Stem delivers significant customer value by lowering energy costs, stabilizing the grid, alleviating intermittency and reducing carbon emissions – addressing electric grid constraints and driving the rapid global transition to zero carbon, renewable generation.

· Transaction to provide up to $608 million in gross proceeds, comprised of Star Peak’s $383 million of cash held in trust, assuming no redemptions, and a $225 million fully-committed common stock PIPE at $10.00 per share, including investments from funds and accounts managed by BlackRock, Van Eck Associates Corporation, Adage Capital Management, L.P., Electron Capital Partners, and Senator Investment Group.
· Following the expected first quarter 2021 transaction close, the combined company will have an estimated equity value of approximately $1.35 billion and will remain listed on the New York Stock Exchange under the new ticker symbol “STEM.”
· All Stem shareholders will roll 100% of their equity holdings into the new public company.
· Transaction positions Stem to capitalize on significant growth opportunities, expand globally and continue to advance its Athena™ software platform.
· Stem’s energy storage systems address a $1.2 trillion market opportunity, and offers investors a unique ESG opportunity to invest in a pure play clean energy company helping to revolutionize the electric grid.

 

MILLBRAE, Calif. (December 4, 2020) Stem, Inc., (“Stem” or “the Company”), a global leader in artificial intelligence (AI)-driven clean energy storage systems, and Star Peak Energy Transition Corp. (“Star Peak”) (NYSE: STPK), a publicly-traded special purpose acquisition company, announced today a definitive agreement for a business combination that will result in Stem becoming a public company. Upon closing of the transaction, the combined company will be named Stem and remain listed on the New York Stock Exchange under the new ticker symbol “STEM.” The combined company will be led by John Carrington, Chief Executive Officer of Stem.

 

Founded in 2009, Stem is an industry leading provider of AI-driven energy storage systems and market leader in the clean energy ecosystem. The Company generates revenue by providing customers with integrated energy storage systems, long-term recurring software services and energy market participation through its proprietary software platform, called Athena™, which enables AI-automated system operations. The Company empowers its customers and partners to optimize energy usage by automatically switching between battery power, onsite generation and grid power. Its storage solutions address a $1.2 trillion opportunity for leading fortune 500 companies, commercial and industrial customers, independent power producers and renewable asset owners, among others.

 

 1

 

 

   

 

Stem’s smart energy storage technology solves many of the challenges facing today’s dynamic power market and is well positioned to manage the increasing decentralization and democratization of the electric grid, significantly accelerating renewable growth and virtual power plants. Stem’s network of energy storage systems supports utilities in reducing the dependency on conventional power sources. The network helps alleviate grid intermittency issues and promotes the adoption of renewable energy generation as a replacement for fossil fuels while supporting customers in meeting their ESG goals.

 

Management Commentary:

 

John Carrington, Chief Executive Officer of Stem, commented, “This transaction is transformative for us and we expect it to significantly accelerate our growth. Stem is a market leader and our Athena™ software platform is proven in the U.S., Japan and Canadian markets, and this merger will enable expansion to several additional global markets. Our systems deliver value to our customers by lowering energy costs, enhancing renewable returns, and meeting ESG and sustainability goals, while increasing grid reliability. We are excited to partner with the Star Peak team and share a collective vision. The balance sheet strength of the combined company will empower Stem to expand its technological leadership and geographic reach. We look forward to creating long-term value for our customers, employees and shareholders as a public company.”

 

Mike Morgan, Chairman of Star Peak who will join Stem’s Board of Directors, said, “Stem is a leader in one of the fastest growing markets in clean energy and the first pure play smart energy storage company to go public. Stem and its highly experienced management team perfectly align with Star Peak’s mission to provide growth capital to a market-leading business focused on climate change initiatives, emissions reductions and energy efficiency. In support of global decarbonization objectives, the entire power grid is being decentralized and democratized. We believe Stem is at the epicenter of this clean energy transition and its AI-driven software systems will be critical in accelerating renewables adoption and addressing climate change.”

 

Eric Scheyer, Chief Executive Officer of Star Peak, commented, “Stem is an exceptional investment opportunity. We completed an extensive due diligence process and view Stem as a market leader in one of the most exciting segments of the clean energy ecosystem. The Star Peak team has significant experience investing in the broader energy infrastructure, renewables and technology sectors, and we believe Stem represents a highly compelling opportunity to capitalize on the scarcity of high-quality, public clean energy companies with attractive ESG characteristics, significant scale and visible growth.”

 

Stem Investment Highlights:

 

· Large addressable market and strong macroeconomic tailwinds – the global energy storage market is expected to increase approximately 25-fold by 2030, driven by the convergence of two technologies (i) low-cost renewable generation and (ii) rapid reduction in battery costs and improving efficiency. The energy storage market is expected to grow materially faster than solar and wind generation.

 

· Market and technology leader:

 

o   More than 600 MWh of storage capacity commissioned since 2014. 

o   Over 900 systems operating or contracted with Stem’s proprietary Athena™ software platform, in more than 200 cities and representing approximately 1 GWh of storage capacity.

 

 2

 

 

   

 

o   75% market share in the California commercial and industrial storage market, the largest energy storage market in the U.S. 

o   First mover AI software platform has operated globally with over 40 utilities and 16 million runtime hours across its customer base.

 

· Balance sheet supports significant market expansion – strong balance sheet with approximately $525 million of cash to fully finance all U.S. and international forecasted growth.

 

· Highly visible growth – strong backlog and long-dated recurring software revenue streams enhance near-term revenue visibility.

 

· Capital light business model – AthenaTM AI-driven software leads to strong operating leverage with low expected capital intensity.

 

· Pure play clean energy company with attractive ESG characteristics – Stem facilitates rapid adoption of renewables and supports customer sustainability goals.

 

Transaction Overview

 

The business combination values the combined company at a $1.35 billion pro forma equity value, at a price of $10.00 per Star Peak share and assuming no redemptions by Star Peak shareholders. The transaction will provide $608 million of gross proceeds to the company, assuming no redemptions, including a $225 million fully committed common stock PIPE at $10.00 per share anchored by existing and new investors, including funds and accounts managed by BlackRock, Van Eck Associates Corporation, Adage Capital Management, L.P., Electron Capital Partners, and Senator Investment Group.

 

The Boards of Directors of each of Stem and Star Peak have unanimously approved the transaction. The transaction will require the approval of the stockholders of both Stem and Star Peak, and is subject to other customary closing conditions, including the receipt of certain regulatory approvals. The transaction is expected to close in the first quarter of 2021. All Stem shareholders will roll 100% of their equity holdings into the new public company.

 

Additional information about the proposed transaction, including a copy of the merger agreement and investor presentation, will be provided in a Current Report on Form 8-K to be filed by Star Peak with the Securities and Exchange Commission and will be available on the Stem investor relations page at www.stem.com/investors and at www.sec.gov.

 

Advisors

 

Goldman Sachs & Co. LLC is serving as exclusive financial advisor to Star Peak. Goldman Sachs & Co. LLC and Credit Suisse Securities (USA) LLC are serving as joint capital markets advisors to Star Peak and serving as co-placement agents on the PIPE offering. Kirkland & Ellis LLP is serving as legal advisor to Star Peak. Morgan Stanley & Co. LLC is serving as lead financial advisor to Stem, Nomura Greentech is serving as a financial advisor to Stem, and Gibson, Dunn & Crutcher LLP as well as Wilson, Sonsini, Goodrich & Rosati are serving as legal advisors to Stem.

 

Investor Conference Call Information

 

Star Peak and Stem will host a joint investor conference call to discuss the proposed transaction Friday, December 4, 2020 at 8:30am ET.

 

 3

 

 

   

 

Interested parties may listen to the prepared remarks call via telephone by dialing 877-407-0784, or for international callers, 201-689-8560. A telephone replay will be available until December 18, 2020 by dialing 844-512-2921, or for international callers, 412-317-6671 and entering the passcode 13713852.

 

About Stem

 

Stem provides solutions that address the challenges of today’s dynamic energy market. By combining advanced energy storage solutions with Athena™, a world-class artificial intelligence (AI)-powered analytics platform, Stem enables customers and partners to optimize energy use by automatically switching between battery power, onsite generation and grid power. Stem’s solutions help enterprise customers benefit from a clean, adaptive energy infrastructure and achieve a wide variety of goals, including expense reduction, resilience, sustainability, environmental and corporate responsibility and innovation. Stem also offers full support for solar partners interested in adding storage to standalone, community or commercial solar projects – both behind and in front of the meter.

 

Headquartered in Millbrae, Calif., Stem is directly funded by a consortium of leading investors including Activate Capital, Angeleno Group, BNP Paribas, Constellation Technology Ventures, Copec, Iberdrola (Inversiones Financieras Perseo), GE Ventures, Magnesium Capital, Mithril Capital Management, Mitsui & Co. LTD., Ontario Teachers’ Pension Plan, RWE Supply & Trading, Temasek and Total Energy Ventures. For more information, visit www.stem.com.

 

About Star Peak Energy Transition Corp.

 

Star Peak is a blank check company incorporated in Delaware for the purpose of effecting a merger, capital stock exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses. Star Peak is led by a management team with extensive experience investing in the energy, energy infrastructure and renewables sectors, including Chairman, Michael Morgan and Chief Executive Officer, Eric Scheyer. Michael Morgan is Chairman and Chief Executive Officer at Triangle Peak Partners LP and currently serves as a director of Sunnova Energy International (NYSE: NOVA) and lead director of Kinder Morgan, Inc. (NYSE: KMI), one of the largest energy infrastructure companies in North America, a company he joined at its founding in 1997. Eric Scheyer is a Partner at Magnetar and has served as the Head of the Magnetar Energy and Infrastructure Group since its inception in 2005. For more information, visit www.starpeakcorp.com.

 

Forward-Looking Statements

 

Certain statements in this press release may be considered “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 generally relate to future events of Star Peak or Stem’s future financial or operating performance. For example, projections of future revenue and other metrics are forward-looking statements. In some cases, you can identify forward-looking statements by terminology such as “may,” “should,” “expect,” “intend,” “will,” “estimate,” “anticipate,” “believe,” “predict,” “or“ or the negatives of these terms or variations of them or similar terminology. Such forward-looking statements are subject to risks, uncertainties, and other factors which could cause actual results to differ materially from those expressed or implied by such forward-looking statements. These forward-looking statements are based upon estimates and assumptions that, while considered reasonable by Star Peak and its management, and Stem and its management, as the case may be, are inherently uncertain factors that may cause actual results to differ materially from current expectations include, but are not limited to: 1) the occurrence of any event, change or other circumstances that could give rise to the termination of the definitive merger agreement with respect to the business combination; 2) the outcome of any legal proceedings that may be instituted against Star Peak, the combined company or others following the announcement of the business combination and any definitive agreements with respect thereto; 3) the inability to complete the business combination due to the failure to obtain approval of the stockholders of Star Peak, to obtain financing to complete the business combination or to satisfy other conditions to closing; 4) changes to the proposed structure of the business combination that may be required or appropriate as a result of applicable laws or regulations or as a condition to obtaining regulatory approval of the business combination; 5) the ability to meet the NYSE’s listing standards following the consummation of the business combination; 6) the risk that the business combination disrupts current plans and operations of Stem as a result of the announcement and consummation of the business combination; 7) the ability to recognize the anticipated benefits of the business combination, which may be affected by, among other things, competition, the ability of the combined company to grow and manage growth profitably, maintain relationships with customers and suppliers and retain its management and key employees; 8) costs related to the business combination; 9) changes in applicable laws or regulations; 10) the possibility that Stem or the combined company may be adversely affected by other economic, business and/or competitive factors; 11) Stem’s estimates of its financial performance; 12) the impact of the novel coronavirus disease pandemic and its effect on business and financial conditions; and 13) other risks and uncertainties set forth in the section entitled “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements” in Star Peak’s Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2020. Nothing in this press release should be regarded as a representation by any person that the forward-looking statements set forth herein will be achieved or that any of the contemplated results of such forward looking statements will be achieved. You should not place undue reliance on forward-looking statements, which speak only as of the date they are made. Neither Stark Peak nor Stem undertakes any duty to update these forward-looking statements, except as otherwise required by law.

 

 4

 

 

   

 

Important Information for Investors and Stockholders

 

In connection with the proposed transaction, Star Peak will file a registration statement on Form S-4 (the “Registration Statement”) with the SEC, which will include a preliminary proxy statement to be distributed to holders of Star Peak’s common stock in connection with Star Peak’s solicitation of proxies for the vote by Star Peak’s stockholders with respect to the proposed transaction and other matters as described in the Registration Statement, as well as the prospectus relating to the offer of securities to be issued to Stem’ stockholders in connection with the proposed transaction. After the Registration Statement has been filed and declared effective, Star Peak will mail a definitive proxy statement, when available, to its stockholders. Investors and security holders and other interested parties are urged to read the proxy statement/prospectus, any amendments thereto and any other documents filed with the SEC carefully and in their entirety when they become available because they will contain important information about Star Peak, Stem and the proposed transaction. Investors and security holders may obtain free copies of the preliminary proxy statement/prospectus and definitive proxy statement/prospectus (when available) and other documents filed with the SEC by Star Peak through the website maintained by the SEC at http://www.sec.gov, or by directing a request to: Star Peak Energy Transition Corp., 1603 Orrington Ave., 13 Floor, Evanston, IL 60201. The information contained on, or that may be accessed through, the websites referenced in this press release is not incorporated by reference into, and is not a part of, this press release.

 

 5

 

   

 

Use of Projections

 

This press release contains financial forecasts of Stem. Neither Stem’s independent auditors, nor the independent registered public accounting firm of Star Peak, audited, reviewed, compiled or performed any procedures with respect to the projections for the purpose of their inclusion in this press release, and accordingly, neither of them expressed an opinion or provided any other form of assurance with respect thereto for the purpose of this press release. These projections should not be relied upon as being necessarily indicative of future results. The projected financial information contained in this press release constitutes forward-looking information. The assumptions and estimates underlying such projected financial information are inherently uncertain and are subject to a wide variety of significant business, economic, competitive and other risks and uncertainties that could cause actual results to differ materially from those contained in the prospective financial information. See “Forward-Looking Statements” above. Actual results may differ materially from the results contemplated by the projected financial information contained in this press release, and the inclusion of such information in this press release should not be regarded as a representation by any person that the results reflected in such projections will be achieved.

 

Participants in the Solicitation

 

Star Peak and its directors and officers may be deemed participants in the solicitation of proxies of Star Peak’s shareholders in connection with the proposed business combination. Security holders may obtain more detailed information regarding the names, affiliations and interests of certain of Star Peak’s executive officers and directors in the solicitation by reading Star Peak’s final prospectus filed with the SEC on August 19, 2020, the registration statement / proxy statement and other relevant materials filed with the SEC in connection with the business combination when they become available. Information concerning the interests of Star Peak’s participants in the solicitation, which may, in some cases, be different than those of their stockholders generally, will be set forth in the registration statement / proxy statement relating to the business combination when it becomes available.

 

Investor Contact – Stem

Marc Silverberg, ICR, Inc.

stemIR@icrinc.com

 

Media Contact – Stem

Cory Ziskind, ICR, Inc.

stemPR@icrinc.com

 

Contact – Star Peak

Tricia Quinn

Courtney Kozel

info@starpeakcorp.com

847 905 4400

 

# # #

 

 6

 

Exhibit 99.2

 

37633-1_STEM INVESTOR PRESENTATION_PAGE001.JPG  Leader in AI-Driven Storage Solutions December 2020

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE002.JPG  This presentation was prepared exclusively by Goldman Sachs & Co. LLC (“GS”) and Credit Suisse Securities (USA) LLC (“Credit Suisse” and, together with GS, “we” or “us”) on a confidential basis and is being delivered to a limited number of accredited investors who have agreed to hold it in confidence. This presentation may not be copied or reproduced, or shown to or reviewed with any person other than the intended recipient and its authorized representatives. Although the information contained herein is believed to be accurate, GS, Credit Suisse and each of the other parties mentioned herein, including for the avoidance of doubt, Star Peak Energy Transition Corp. (“Star Peak”) and Stem, Inc. (“Stem”) (as well as each of their respective directors, officers, shareholders, members, partners and representatives), expressly disclaims liability for, and makes no expressed or implied representation or warranty with respect to, any information contained in or omitted from this presentation, or any other information or communication (whether written or oral) transmitted to any prospective investor. Only those representations and warranties made in a definitive agreement with any person shall have any legal effect. PAST PERFORMANCE IS NO GUARANTEE OF FUTURE PERFORMANCE. The recipient of this presentation acknowledges that it is (a) aware that United States securities laws prohibit any person who has material, non-public information concerning a company from purchasing and selling securities of such company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person may purchase or sell such securities and (b) that the recipient will neither use, nor cause any third party to use this investor presentation or any information contained herein in violation of the Securities Exchange Act of 1934, as amended, including, without limitation, Rule 10b-5 thereunder. Use of Projections and Financial Information This presentation contains financial forecasts relating to the anticipated future financial performance of Stem, the proposed acquiror and the combined company. For example, projections of future Operating Free Cash Flow, EBIT, EBITDA, Adjusted EBITDA and EBITDA Margin and other metrics are forward-looking statements. Such financial forecasts constitute forward-looking information, are for illustrative purposes only and should not be relied upon as necessarily being indicative of future results. Actual results may differ materially from the results contemplated by the financial forecasts contained in this presentation, and the inclusion of such information in this presentation should not be regarded as a representation by any person that the results reflected in such forecasts will be achieved. Financial Information This presentation also includes references to financial measures that are calculated and presented on the basis of methodologies other than in accordance with generally accepted accounting principles in the United States of America (“GAAP”). Any non-GAAP financial measures used in this presentation are in addition to, and should not be considered superior to, or a substitute for, financial statements prepared in accordance with GAAP. Non-GAAP financial measures should not be considered in isolation and are subject to significant inherent limitations. The non-GAAP measures presented herein not be comparable to similar non-GAAP measures presented by other companies. Stem believes these non-GAAP measures of financial results provide useful information to management and investors regarding certain financial and business trends relating to Stem’s financial condition and results of operations. Stem believes that the use of these non-GAAP financial measures provides an additional tool for investors to use in evaluating ongoing operating results and trends in and in comparing Stem’s financial measures with other similar companies, many of which present similar non-GAAP financial measures to investors. These non-GAAP financial measures are subject to inherent limitations as they reflect the exercise of judgments by management about which expense and income are excluded or included in determining these non-GAAP financial measures. The financial information and data contained in this Presentation is either audited in accordance with private company auditing standards or is unaudited and, in each case, does not conform to Regulation S-X or Public Company Accounting Oversight Board ("PCAOB") standards. Accordingly, such information and data may not be included in, may be adjusted in or may be presented differently in any proxy statement/prospectus to be filed with the SEC. Other Disclaimers Neither GS nor Credit Suisse has assumed any responsibility for independent verification of any of the information contained herein and GS and Credit Suisse have relied on such information being complete and accurate in all material respects. Accordingly, no representation or warranty, express or implied, can be made or is made by GS or Credit Suisse as to the accuracy or completeness of any such information. Except where otherwise indicated, this presentation speaks as of the date hereof and is necessarily based upon the information available to GS and Credit Suisse and financial, stock market and other conditions and circumstances existing and disclosed to GS and Credit Suisse as of the date hereof, all of which are subject to change. Neither GS nor Credit Suisse has any obligation to update, bring-down, review or reaffirm this presentation. Under no circumstances should the delivery of this presentation imply that any information or analyses included in this presentation would be the same if made as of any other date. Nothing contained in this presentation is, or shall be relied upon as, a promise or representation as to the past, present or future.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE003.JPG  This presentation provides summary information only and is being delivered solely for informational purposes. The recipient of this presentation acknowledges that: GS, Credit Suisse, Star Peak and Stem do not provide legal, tax or accounting advice of any kind. It is not relying on GS, Credit Suisse, Star Peak or Stem for legal, tax or accounting advice, and that the recipient should receive separate and qualified legal, tax and accounting advice in connection with any transaction or course of conduct. Nothing contained herein shall be deemed to be a recommendation from GS, Credit Suisse, Star Peak or Stem to any party to enter into any transaction or to take any course of action. This presentation is not intended to provide a basis for evaluating any transaction or other matter. This presentation is confidential and may not be copied by, or disclosed or made available to, any person without the prior written consent of GS and Credit Suisse. None of GS, Credit Suisse, Star Peak or Stem shall have any liability, whether direct or indirect, in contract or tort or otherwise, to any person in connection with this presentation. In connection with the proposed business combination between Star Peak and Stem (the “Business Combination”), Star Peak intends to file with the Securities and Exchange Commission (the “SEC”) a registration statement on Form S-4 containing a preliminary proxy statement and a preliminary prospectus of Star Peak, and after the registration statement is declared effective, Star Peak will mail a definitive proxy statement/prospectus relating to the proposed Business Combination to its stockholders. This presentation does not contain all the information that should be considered concerning the proposed Business Combination and is not intended to form the basis of any investment decision or any other decision in respect of the Business Combination. Star Peak’s stockholders and other interested persons are advised to read, when available, the preliminary proxy statement/prospectus and the amendments thereto and the definitive proxy statement/prospectus and other documents filed in connection with the proposed Business Combination, as these materials will contain important information about Star Peak, Stem and the Business Combination. When available, the definitive proxy statement/prospectus and other relevant materials for the proposed Business Combination will be mailed to stockholders of Star Peak as of a record date to be established for voting on the proposed Business Combination. Stockholders will also be able to obtain copies of the preliminary proxy statement/prospectus, the definitive proxy statement/prospectus and other documents filed with the SEC, without charge, once available, at the SEC’s website at www.sec.gov, or by directing a request to: Star Peak Energy Transition Corp., 1603 Orrington Avenue, 13th Floor, Evanston, IL 60201. Star Peak and its directors and executive officers may be deemed participants in the solicitation of proxies from Star Peak’s stockholders with respect to the proposed Business Combination. A list of the names of those directors and executive officers and a description of their interests in Star Peak is contained in Star Peak’s final prospectus related to its initial public offering dated August 17, 2020, which was filed with the SEC and is available free of charge at the SEC’s web site at www.sec.gov or by directing a request to: Star Peak Energy Transition Corp., 1603 Orrington Avenue, 13th Floor, Evanston, IL 60201. Additional information regarding the interests of such participants will be contained in the proxy statement/prospectus for the proposed Business Combination when available. Stem and its directors and executive officers may also be deemed to be participants in the solicitation of proxies from the stockholders of Star Peak in connection with the proposed Business Combination. A list of the names of such directors and executive officers and information regarding their interests in the proposed Business Combination will be included in the proxy statement for the proposed Business Combination when available. INVESTMENT IN ANY SECURITIES DESCRIBED HEREIN HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY OTHER REGULATORY AUTHORITY NOR HAS ANY REGULATORY AUTHORITY PASSED UPON OR ENDORSED THE MERITS OF THE OFFERING OR THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED HEREIN. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THIS PRESENTATION DOES NOT CONSTITUTE AN OFFER OR SOLICITATION OF ANY SECURITIES. STAR PEAK WILL MAKE ANY OFFER TO SELL SECURITIES ONLY PURSUANT TO A DEFINITIVE SUBSCRIPTION AGREEMENT, AND STAR PEAK RESERVES THE RIGHT TO WITHDRAW OR AMEND FOR ANY REASON ANY OFFERING AND TO REJECT ANY SUBSCRIPTION AGREEMENT IN WHOLE OR IN PART FOR ANY REASON.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE004.JPG  Star Peak has identified Stem as a market leader in the clean energy ecosystem Leader in AI-Driven Storage Solutions The Business Offering Size Founded in 2009, Stem is an industry leading AI-driven storage solutions business Star Peak Energy Transition Corp. (NYSE: STPK) is a special purpose acquisition company with over $383MM of cash in trust PIPE size of $225MM Leadership Valuation Capital Structure Stem’s Investors Pro forma equity value of $1.4B Attractively valued entry multiple Stem shareholders rolling 100% of their equity ~$525MM net cash (assuming no redemptions) retained to fully finance all forecasted growth S T A R P E A K John Carrington CEO & Director Eric Scheyer CEO Larsh Johnson CTO Mike C. Morgan Chairman Bill Bush CFO Adam Daley Director

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE005.JPG  Star Peak overview Magnetar Capital and Triangle Peak Partners Experienced Sponsor with Proven Track Record Star Peak’s Climate Focused Mission Backed by Compelling Economics Provide growth capital to a market-leading business focused on climate change Mike C. Morgan Chairman Co-founding partner, Chairman, and CEO of Triangle Peak Partners, LP Founding team member at Kinder Morgan, Inc. (NYSE: KMI), former President, current Lead Director of KMI Former Lead Director, current Director of Sunnova Energy International (NYSE: NOVA) Co-Chair, Stanford Precourt Institute Energy Advisory Council Eric Scheyer CEO Head of Magnetar Energy & Infrastructure Group since its inception in 2005 Member of Magnetar Investment Committee & Management Committee Former Director, Arc Logistics (NYSE: ARCX) initiatives, emissions reductions, and energy efficiency Capitalize on scarcity of high quality, public companies with attractive ESG characteristics RENEWABLESENERGY STORAGETECHNOLOGYSUPPLY CHAIN & LOGISTICS Successful investment track record (1) ›12yrs PARTNERSHIP HISTORY ›$6B 64 EQUITY CAPITAL COMMITTED INVESTMENTSCAPITAL DEALSEV ELECTRIC TRANSPORTATION FOOD INFRASTRUCTURE VEHICLES TECHNOLOGY TECHNOLOGY 48 VENTURE (1) Star Peak Energy Transition Corp. as of 9/30/2020.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE006.JPG Our Vision: Smart Storage is Key to Global Decarbonization Climate Change is the problem 27%60% Confidential 6 Electricity production is the #2 polluter responsible for 27% of greenhouse gas emissions(1) Fossil fuels still accounted for 60% of global electricity generation in 2019(4) 3x72% Natural catastrophe-related loss events since 1980(2) Companies actively publicize their sourcing of renewable energy(5) Risk$200bn Investors recognize climate change is one of the biggest risks impacting businesses(3) Over $200bn cumulative inflows into ESG funds since the beginning of 2019 versus ~$600bn cumulative outflows from non-ESG funds(6) Confidential (1) EPA: Sources of Greenhouse Gas Emissions report, Sep-2020. (2) Wall Street Research. (3) World Economic Forum. (4) British Petroleum. (5) Deloitte Insights, “Deloitte Resources 2019 Study.” (6) EPFR Global.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE007.JPG  A revolutionized grid, with Stem, is the solution Grid Storage STEM Since 2019, 90% of new interconnection requests were renewables and/or storage, but renewable generation suffers from intermittency(1) Distributed, renewable generation is supplementing and replacing traditional generation Battery production is becoming cheaper and more commercialized Energy storage is key to the build out of renewable generation, and represents a $1.2 trillion revenue opportunity through 2050(2) Battery optimization is difficult. Energy intelligence amplifies performance by anticipating demand cycle, energy prices, generation profile and other factors in real time (1) Wood Mackenzie Energy Storage Service. (2) Bloomberg New Energy Finance.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE008.JPG  Stem is the first pure play smart energy storage company to go public in the US Large Addressable Market + Strong Macro Tailwinds Market Leader with Best in Class Technology Balance Sheet Positioned to Capitalize on Growth Highly Visible Growth ~$1.2 trillion in new revenue opportunities for integrated storage expected to be deployed by 2050(1) Battery storage capacity expected to increase by 25x by 2030(2) 900+ systems operating or contracted with Stem’s Athena software(3) 75% market share in CA BTM storage market, largest in the US(2) First mover AI platform that operates with 40+ utilities, 5 grid operators and over 16MM runtime hours Ready to deploy net cash balance of ~$525m to target and fund high growth markets Transaction fully finances all forecasted growth Recurring revenue streams provide strong financial position to accelerate growth Revenues projected to grow at ~51% CAGR from 2021 to 2026 loomberg New Energy Finance. (2) Wood Mackenzie. (3) As of 31-Oct-2020.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE009.JPG  Hardware + Network IntegrationSoftwareMarket Participation Tier 1 standard hardware solutionsx Battery optimization via Athena AIx Upside sharing through sales into energy markets Smart Energy Storage Drives The Grid Transformation Lowers Energy CostsReduces Carbon Creates VPPs and Stabilizes the Grid EmissionsSolves Intermittency Storage Networks

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE010.JPG  Stem operates the world’s largest network of energy storage systems As cumulative installs grow, Athena becomes more intelligent, creating more value and a larger moat

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE011.JPG  Global Commitment to Decarbonization FERC 841 / FERC 2222 Confidential11 With the world committed to decarbonization, Stem is well positioned to capture this tailwind. Paris Accord California mandates zero non-EV passenger vehicle sales by 2035 NY, MA, VA set multi-GW energy storage targets Japan net zero emissions pledge REGULATORS UTILITIES & ASSET OWNERS CORPORATES Source: Company filings, EEI, S&P Global Market Intelligence.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE012.JPG  H I S T O R I C A L P O W E R S E C T O R

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE013.JPG  More distributed Power used to be all bulk centralized generation…now it is distributed and islanded to enhance reliability & resilience – requiring new solutions and business models More complex Power used to flow in one direction… now it flows bi-directionally – requiring new coordination and optimization systems More dynamic Power used to be predictable and controllable…now it is generated from a multitude of intermittent assets – requiring intelligent, adaptable 24/7 management Source: McKinsey. S T E M A I P O W E R S E C T O R

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE014.JPG  Renewables Lowest Cost Generation $ 400 Battery Hardware Rapid Cost Reductions $300 Storage Market 25x Growth Market Opportunity (2) 200 (1) 800 Levelized Cost of Energy ($/kW) $260 $280 $246 160 164 Cumulative Capacity GWh $ 200 $ 100 200920112013201520172019 $220 BESS hardware cost (US$/kWh) $140 $100 $210 $171 $145 $129 $117 Capacity GWh 80 40 0 611 101 62 40 30 400 200 0 201020122014201620182020 2018202020222024202620282030 2018 2020 2022 2024 2026 2028 2030 Nuclear Coal CCGT Wind Solar PV United StatesRest of WorldCumulative Capacity Source: Bloomberg New Energy Finance, Wood Mackenzie, Lazard LCOE. Note: BESS includes battery rack, PCS, balance of system, energy management system and transformer costs. (1) Wood Mackenzie. (2) Bloomberg New Energy Finance. (3) Includes all FTM, non-residential and residential storage.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE015.JPG  Stem is a Market Leader with Significant Scale and Visible Growth Confidential15 Stem is a Leader in Deployments Worldwide(1) One of the Top Systems Integrators by Disclosed Commissioned Projects 2014-3Q20 Stem, Inc 0100200300400500600700 1 Tesla, Inc Hyundai Electric Fluence Energy Nidec Corp1 NEC Corp Mitsubishi Electric Stem’s Total Pipeline Growth 125% Pipeline Growth Since Q3 2019 +125% $2.7B $1.2B $800MM 2.5 $ BILLIONS 1.5 1.0 0.5 0 900+ systems operating or contracted (~1 GWh)(2) Systems operating in 75 jurisdictions 200+ cities 75% BTM market share in California, largest storage market in the US(3) ` $145MM bookings in 2020E ~4.5x revenue growth in Q3 2018 Note: Includes only lithium ion providers. Q3 2019Q3 2020 2021E Confidential s of 31-Oct-2020. (3) Wood Mackenzie.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE016.JPG Stem’s Athena AI Platform is Built On 3 Generations and >10 Years of Data + Experience Confidential16 20M 900+ sites & ~1 GWh in operation & contracted(1) 16M 12M 8M 400+ sites & 100 MWh in operation 100+ sites in 4Moperation 0M 2014201520162017201820192020 Confidential ATHENA CUMULATIVE RUNTIME HOURS 2009 – 2015 5+ years inventing the market First to market with C&I storage First Hawaii Electric VPP First California ISO wholesale market participation Source: Stem. (1) As of 31-Oct-2020. Gen 2 2016 – 2018 2+ years commercial growth First storage VPP for California Resource Adequacy & distribution deferral First municipal storage VPP with Austin Energy First C&I storage in Arizona First storage VPP in Japan Gen 3 2019 – 2020 2+ years accelerating growth First Stem as a service contract via SK SUSI RFP award Serving 40 utilities & markets Delivering multiple value streams in Ontario market Partnering with solar IPP & energy market Supplying backup power >20,000 market dispatches/year

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE017.JPG  24 PATENTS GRANTED COVERING STEM’S SOFTWARE AND STORAGE DATA INTEGRATION WeatherPricesMarketsGrid

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE018.JPG  Stem’s Customer Services Stem offers more value streams in more markets with more asset types AI-Driven Athena platform facilitates monetization of 11 out of 13 identified energy storage value streams ITC & PV Self-Consumption (ITC) Demand Charge Reduction (DCM) Time-of-Use Bill Management Distribution Deferral Backup Power Energy Arbitrage (EA) Spin / Non-Spin Reserve Frequency Regulation Voltage Support Black Start Resource Adequacy Stem’s Virtual Power Plant & FTM Services Services that Stem is currently offering Transmission Deferral Transmission Congestion Relief Source: Rocky Mountain Institute.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE019.JPG  40,000 30,000 20,000 AGGREGATE SYSTEM POWER - KW 0 -10,000 -20,000 -30,000 -40,000 -50,000 CHARGING FROM GRID DISCHARGING TO GRID Its Electric Grid Under Strain, California Turns to Batteries New York Times “On Friday, Aug. 14, the first day California ordered rolling blackouts, Stem, an energy company based in the San Francisco Bay Area, delivered 50 megawatts — enough to power 20,000 homes — from batteries it had installed at businesses, local governments and other customers. ” SK SUSI select Stem Competitive RFP in 2020 to select software provider for 345 MWh 25 Tier 1 commercial and municipal customers in Los Angeles and Southern California Edison service territory Stem beat 10 bidders, including energy services firms, based on Athena’s advanced AI capability, demonstrated record of success and world-class management team as key differentiators -60,000 09:0012:0015:0018:0021:0000:0003:0006:0009:0012:00

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE020.JPG  BEHIND THE METER “BTM” COMMERCIAL & INDUSTRIAL Reducing Consumer Energy Bill Athena AI optimizes time-of-use and demand charges, resulting in 10% - 30% monthly electricity bill reductions Corporate ESG Objectives 35% of Fortune 500 have committed to carbon neutrality(1) 2,500 2,000 1,500 1,000 kW 0 (500) (1,000) (1,500) Discharging when prices are high Charging when prices low 09:30 13:00 16:30 20:00 23:30 03:00 06:30 10:00 13:30 17:00 Time of Day (2) BatteryFacilityGrid Sees FRONT OF THE METER “FTM” UTILITIES, IPPS, DEVELOPERS Increasing Asset Returns Athena AI enables solar generation time-shifting and participation in ancillary revenue streams, resulting in 10% - 30% unlevered IRRs 2,000 1,000 0 kW (2,000) Charging when prices low Discharging when prices are high Supports Grid Stability Athena AI reduces volatility and supports local grid capacity needs (3,000) (4,000) (5,000) 09:30 12:00 14:30 17:00 19:30 22:00 00:30 03:00 05:30 08:00 Time of Day Source: Stem (2) BatterySolar GenerationGrid Sees (1) Natural Capital Partners. (2) In the top chart, Grid Sees is the net power draw from the grid after the activity of the battery; In the bottom chart, Grid Sees is the net delivery to the grid including the activity of the battery.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE021.JPG  Direct sales Drives demand and “spec in” Stem solutions into enterprise procurement solicitations Sales channel partners Sells into commercial customers Distributors Reach broad based solar, electrical, building automation, HVAC market Large renewable project developers Drive demand within project developer and financing ecosystem Deep relationships across the Fortune 500 500+ sales executives across EPC / developer channels with Stem University Distributor relationships cover entire US market Consistently delivering differentiated returns to renewable asset managers

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE022.JPG  Net Cash Available for Growth Balance Sheet Strength Supports credit requirements to convert large projects in pipeline Athena Expansion & Tech Acquisitions Product development to further extend Athena AI leadership position and accelerate roadmap ~$525MM Supply Chain Savings Joint Venture Opportunities Debt on Balance Sheet $0(1) Capital to further reduce cost structure with OEMs Geographic Expansion Expansion into rapidly growing international markets with new and existing partners Capture enhanced economics ro forma for transaction.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE023.JPG  Seasoned leadership team with 150+ years of experience in the software and energy space Leadership experience at technology, energy, and industrial companies 145 employees 1. John Carrington (Stem) 5. TBD (Stem Designee) 2. Anil Tammineedi (Stem) 6. TBD (Stem Designee) 3. David Buzby (Stem) 7. TBD (Star Peak Designee) 4. Mike Morgan (Star Peak) Source: Stem.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE024.JPG  Confidential Section 2 Financial Forecast

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE025.JPG  Hardware + Network IntegrationSoftwareMarket Participation Total Deliveries (kWh) (x) Project Hardware ASP ($kWh) = Total Hardware Revenues ~10-30% Hardware Gross Margin Total AUM (kWh) (x) Software Subscription ($/kWh/month) = Total Software (Recurring) Revenues ~80% Software Gross Margin Total AUM (kWh) (x) Stem’s Market Participation Revenues ($/kWh) = Total Software (Variable) Revenues ~80% Market Participation Gross Margin Upfront payment for initial purchase Hardware agnostic platform Turnkey approach with focus on customer value Source: Stem. Recurring SaaS model 100% attach rate secured by 10-20 year contracts with monthly recurring cash flow Revenue recognized ratably during life of the contract Additional upsell revenue from Athena applications Revenues from differentiated Athena capabilities and VPPs Secured by 3-20 year contracts Revenue recognized when realized Significant long term value

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE026.JPG  Illustrative project revenue contribution Case Study Front of the Meter, New York Market Hardware + Software 10%Variable 5 MW / 20 MWh Standalone Storage Solution ~$10MM customer lifetime value 30% 60% DeliveryYear 1-20Total Revenue Recurring Upfront Hardware + Network Software Revenue(1) Market Participation(2) Source: Stem. Note: Values estimated based on historical experience and consultant forecasts. (1) Average of $0.84 / kWh per month (Year 1-20) starting at $0.39 / kWh per month with annual escalator. (2) Average of $0.33 / kWh per month (Year 1-20).

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE027.JPG  Business scales with accelerating storage adoption Bookings & Deliveries(1) (MWh) Bookings & Revenues ($MM) 8,000 6,000 5,593 7,183 5,965 $1,200 $900 Software and market participation growth driven by recurring software revenue streams and expanding $ 848 $ 1,159 $ 1,167 $ 974 $ 944 4,000 3,195 4,260 3,472 4,577 $600 market participation $ 342 $ 721 $ 526 $ 748 2,000 615 1,360 2,031 $300 $ 76 $ 88 $ 145 $ 198 $ 147 $ 315 129197 649281 0 708 332 $ 7$ 17 $0 $ 33 2018A2019A2020E2021E2022E2023E2024E2025E2026E 2018A2019A2020E2021E2022E2023E2024E2025E2026E BookingsDeliveries BookingsHardware RevenueSoftware RevenueMarket Participation Revenue Source: Stem. Note: Bookings represent value of executed customer contracts excluding Market Participation revenue. Stem total revenue calculation assumes recognition of all contracted backlog at system delivery and ratable recognition of software services over the contractual period; Hardware revenue assumes all contracted backlog recognized at system delivery; Software revenue includes SaaS Fees, revenue within the period from systems on balance sheet and O&M. (1) Excludes ~350MW of deliveries and bookings from Q32020 SK SUSI contract and excludes software bookings and deliveries.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE028.JPG  Bookings underpin significant visibility of 2021 $ 400 $ 300 $ 200 $ 100 $ 0 $ 130 $ 241 ~88% from executed contracts >14x coverage on remaining 12% of revenue target $ 147 Current Contracted Backlog 140 Projects in Process 43 Customers 2.5 MWh Average System Size Contracted RevenueNear-term Pipeline Revenue2021E Revenue All figures above as of end of October 2020 Source: Stem.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE029.JPG  Robust revenue growth by customer type and segment By Customer Type ($MM)By Segment ($MM) By Software Type ($MM) $1,500 $1,200 $900 $600 $300 $0 $33 $147 $315 $526 $748 $944 $1,167 $1,500 $1,200 $900 $600 $300 $0 $ 33 $ 147 $ 315 $ 526 $ 748 $ 944 $ 1,167 $300 $225 $150 $75 $0 Market participation revenue expands to ~28% of total software revenue by 2026, providing significant long term value $144 $83 $44 $14$17$24 $241 Market Participation Revenue Software RevenueSoftware RevenueMarket Participation Revenue Hardware Revenue 2020E 2021E 2022E 2023E 2024E 2025E 2026E 2020E 2021E 2022E 2023E 2024E 2025E 2026E FTMBTM Hardware RevenueSoftware RevenueMarket Participation Revenue Source: Stem. Note: Stem total revenue calculation assumes recognition of all contracted backlog at system delivery and ratable recognition of software services over the contractual period; Hardware revenue assumes all contracted backlog recognized at system delivery; Software revenue includes SaaS Fees, revenue within the period from systems on balance sheet and O&M.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE030.JPG  Gross margin expands with increasing scale and software growth Pro Forma Gross Profit by Type ($MM)(1) $600 $ 483 Gross Margins Driven by Increasing Software Margin(2) 60 % $450 $300 As Stem’s AUM grows, software becomes material portion of gross profit $ 169 $ 264 $ 360 45 % 30 % 18 %18 % 16 % 26 % 32 % 38 % 35 % 41 % $150 $0 $ 4$ 24 $ 82 15 % 12 % Hardware Gross Margin 2020E2021E2022E2023E2024E2025E2026E Hardware Gross ProfitSoftware Gross Profit 0 % 2018A2019A2020E2021E2022E2023E2024E2025E2026E Blended Gross Margin Source: Stem. tem total gross profit calculation assumes recognition of all contracted backlog at system delivery and ratable recognition of software services over the contractual period; Hardware gross profit assumes all contracted backlog recognized at system delivery; Software gross profit includes SaaS Fees, gross profit within the period from systems on balance sheet, O&M and ongoing Market Participation gross profits. (2) Historical gross margin adjusted for non-recurring and non-system related items.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE031.JPG (1) Stem delivers consistent growth and improving margins ~88% of Forecasted 2021 Revenues From Executed Contracts Source: Stem. Note: Stem’s fiscal year is 31-Dec. (1) Pro Forma Gross Profit adjusted for non-recurring, non-system related items and amortization related with product development (IDS) costs.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE032.JPG  Detailed transaction overview Transaction Highlights Star Peak has ~$383MM in cash held in the trust account Cash Sources•PIPE size of $225MM Sources $MM % Uses $MM % Committed Equity PIPE 225 17.9% Stock to Stem Shareholders 650 51.7% Star Peak Trust 383 30.4% Estimated Fees and Expenses 51 4.1% Stem Shareholder Equity Rollover 650 51.7% Estimated Repayment of Debt(3) 45 3.6% Cash to Stem Balance Sheet 512 40.7% Total Sources $ 1,258 Total Uses $ 1,258 Valuation Attractive entry multiple relative to clean energy peer group Capital Structure ~$525MM net cash to balance sheet (assuming no redemptions) to fund growth Pro Forma Valuation Pro Forma Ownership at $10.00 / Share(1) Star Peak Public Shareholders 28.3% PIPE Shareholders 16.6% (2) Stem Management Shareholders 4.6% Stem Shareholders(2) 43.4% Pro Forma Shares Outstanding Share Price 135.4 $10.00 Stem Equity Value $1,354 Pro Forma 3Q20 Net Debt (Cash) (525) Stem Enterprise Value $829 Ownership Breakdown Shares (MM) % Stem Shareholders(4) 65.0 48.0% Star Peak Public Shareholders 38.3 28.3% Star Peak Sponsor 9.6 7.1% PIPE Shareholders 22.5 16.6% Equity Ownership 135.4 100.0% Star Peak Sponsor 7.1% Source: Stem, Star Peak. (1) Pro forma ownership structure based on PIPE of $225MM, assuming no redemptions. Excludes Star Peak warrants. (2) Stem shareholdings includes common and preferred equity as well as warrants and equity which may be net settled at the transaction date. (3) $45MM debt pay down reflects repayment of all outstanding indebtedness at closing (inclusive of make whole). (4) Equity value to Stem’s existing shareholders is calculated as $650MM at $10.00 share price.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE033.JPG  Public comparable universe Solar Technology Solutions Distributed Solar Sustainable Infrastructure Diversified Energy Tech Stem Peers Relevance to Stem Robust upfront cash generation Serves similar end markets Diversified long-term contracted cash flows Increasing BTM storage attachment rates Upfront equipment margins augmented by recurring cash flows Emphasis on FTM and BTM energy storage business ESG-friendly High growth supported by large TAM Strong fundamental tailwinds Scarcity premium

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE034.JPG  Operational benchmarking CY 2021E Financials ~ 350% 115% 67% 14% 63%22%31%26%53%29%47%46% Median: 31% Revenue Growth (2) Gross Margin 16% 32% 22% 38%33% 60% 18% 27%27% 31% 22% Median: 27% 2021E2022E2023E EBITDA Margin 2021E2022E2023E 17%26% 19% 80% 9% (1) 12% NM (2) NM (2) 19% Median: 18% Solar Technology Solutions Distributed SolarSustainable InfrastructureDiversified Energy Tech Source: Stem, Bloomberg, CapIQ, IBES consensus estimates, analyst estimates and company disclosures; market data as of 01-Dec-2020. (1) Sunnova EBITDA adjusted to include loan business income (principal and interest). (2) Chargepoint forward-looking metrics based on management estimates.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE035.JPG  Valuation benchmarking (1) CY 2021E EV / Revenue 41.9 x 2021E 2022E 2.6 x x x 13.5 x8.1 x 27.7 x 3.0 x 11.8 x 5.2 x 14.3 x 5.6 x x EV / Revenue 2024E 1.6 x 1.1 x (2)(3)(1) CY 2022E EV / Revenue 24.0 x 20.4 x 2025E 0.9 x 4.9 x 10.7 x6.7 x 2.6 x 10.7 x 4.2 x 11.7 x 2.6 x (4) Median: 10.7 x 2026E 0.7 x (2)(3)(1) Solar Technology Solutions Distributed SolarSustainable InfrastructureDiversified Energy Tech Source: Stem, Bloomberg, CapIQ, IBES consensus estimates, analyst estimates and company disclosures; market data as of 01-Dec-2020. (1) Based on Stem enterprise value of $829MM. (2) Array enterprise value calculated using pro forma debt and cash figures from S-1 (as of 13-Oct-2020). (3) Based on Chargepoint EV of ~$8.3B; forward-looking metrics based on management estimates. (4) Median calculation excludes Stem.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE036.JPG  Valuation benchmarking (cont’d) (1) CY 2021E EV / EBITDA 75.1 x 2021ENM 33.1 x 52.1 x 42.9 x34.7 x33.6 x 43.9 x 2022E EV / EBITDA 2024E 2025E 2026E 7.3 x 4.1 x 2.8 x 2.0 x 29.1 x (2) CY 2022E EV / EBITDA 40.0 x33.9 x 29.0 x (2) NM (3) 23.9 x22.6 x NM (3) 27.4 x NMNM (4)(1) 60.3 x 29.1 x NM (4)(1) (5) Median: 42.9 x (5) Median: 29.0 x Solar Technology Solutions Distributed SolarSustainable InfrastructureDiversified Energy Tech Source: Stem, Bloomberg, CapIQ, IBES consensus estimates, analyst estimates and company disclosures; market data as of 01-Dec-2020. (1) Based on Stem enterprise value of $829MM. (2) Array enterprise value calculated using pro forma debt and cash figures from S-1 (as of 13-Oct-2020). (3) Sunnova EBITDA adjusted to include loan business income (principal and interest). (4) Based on Chargepoint EV of ~$8.3B; forward-looking metrics based on management estimates. (5) Median calculation excludes Stem.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE037.JPG  Stem has significant upside potential Enterprise Value ($MM) Post-Money $2,836 185% Midpoint Premium $ 829 $1,891 Enterprise Value 6.0x – 9.0x 2022E Revenue Source: Stem.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE038.JPG  Investment thesis Confidential Large Addressable Market and Strong Macro Tailwinds Exposure to Energy Transition and ESG

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE039.JPG  Appendix A Supplemental Information

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE040.JPG  Source: Stem.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE041.JPG  Stem has a proven track record of helping owners maximize the value of their assets, driving higher revenue FTM US Energy Storage Outlook (MWh) 30,000 25,000 20,000 17,10717,219 21,006 26,533 and ROI 15,000 14,107 Overview of Front of the Meter Market 10,000 9,679 Utilities, IPPs and other asset owners Typically 20 year software contracts System spec size of 27MWh and $10MM Wholesale market participation 5,000 0 2,381 2020202120222023202420252026 All OthersCaliforniaArizonaHawaiiNew YorkMassachusettsPJM (excl. NJ)Texas Source: EEI, Wood Mackenzie.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE042.JPG  Stem delivers lower net bill and clean power to C&I customers BTM US Energy Storage Outlook (MWh) 3,500 3,000 3,043 Overview of Behind the Meter Market Commercial, industrial and corporate customers Typically 10 year software contracts System spec size of 2.2MWh and $1MM Wholesale market participation 2,500 2,000 1,500 1,3361,252 1,761 2,238 1,000 500 292 593 0 2020202120222023202420252026 CaliforniaNew YorkAll OthersMassachusettsPJM (excl. NJ)ArizonaHawaiiTexas Source: EEI, Wood Mackenzie.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE043.JPG  Transaction capital will fuel growth into international markets with expanding TAM Worldwide Energy Storage Outlook (Ex-US) (MWh) 30,000 25,000 21,233 26,630 Overview of International TAM System cost declines and demand for renewable energy have led to increasing system durations and MWh capacities 254 GW of capacity expected to be deployed around the world over the next decade APAC expected to drive 70% of global demand growth through 2030 Policy tailwinds spurs growth in EMEARC markets 20,000 15,000 10,000 5,000 0 7,881 13,040 16,979 18,195 2020202120222023202420252026 Source: EEI, Wood Mackenzie.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE044.JPG  Global energy storage growth remains robust long-term Overview of Global Growth Trends All major global markets forecasted at double digit storage growth rates over the decade US and China lead energy storage growth with Global Energy Storage Outlook (GWh) 200 180 160 140 Capacity (GWh) 100 80 6048 40 101 79 62 128 164 800 700 Cumulative Capacity (GWh) 500 400 300 200 respective CAGRs of ~45% and ~41% respectively through 2030 Regulatory environment in Japan spur residential storage market with renewable growth spurring FTM storage to yield ~19% CAGR through 2030 37 4030 22 206511 0 100 0 Lack of market rules, policies, and incentives for storage markets stifle growth in Latin America 2018201920202021202220232024202520262027202820292030 United StatesChinaJapan EMEARest of APACRest of World Cumulative Capacity (1) Source: EEI, Wood Mackenzie. (1) Includes all FTM, non-residential and residential storage.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE045.JPG GAAP Income Statement ($000s) Year Ended December 31, 2019 Source: Stem financials.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE046.JPG GAAP Balance Sheet ($000s) Year Ended December 31, 2019 Assets Current assets: Source: Stem financials.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE047.JPG GAAP Balance Sheet (Cont’d) ($000s) Liabilities and Total Equity Current liabilities: Year Ended December 31, 2019 Common stock, $0.000001 par value, 386,728,323 shares authorized as of December 31, 2019; 9,392,682 shares issued and outstanding as of December 31, 2019 0 Additional paid-in capital 3,024 Accumulated other comprehensive income 54 Accumulated deficit (275,813) Total equity (272,735) Total Liabilities and Total Equity $ 188,454 Source: Stem financials.

 

 

37633-1_STEM INVESTOR PRESENTATION_PAGE048.JPG GAAP Cash Flow Statement ($000s) Year Ended December 31, 2019 Cash flows from operating activities: Cash flows from investing activities: Net cash used in investing activities$(54,237) Cash flows from financing activities: Net cash provided by financing activities$ 67,201 Effect of exchange rate changes on cash and cash equivalents(170) Net increase (decrease) in cash and cash equivalents(9,005) Cash and cash equivalents - beginning of year$ 21,894 Cash and cash equivalents - end of year$ 12,889 Source: Stem financials.

 

 

Exhibit 99.3

 

 

Stem Inc. Merger with Star Peak Energy Transition Corp.

 

Investor Conference Call Transcript

 

December 4, 2020

 

Operator

 

Good morning, and welcome to the Stem Inc. and Star Peak Energy Transition Corp. transaction conference call.

 

I would like to first remind everyone that this call may contain forward-looking statements including, but not limited to, Stem and Star Peak’s expectations or predictions of financial and business performance and conditions, expectations or assumptions as to completion of the proposed transaction between the parties, product development and performance, including but not limited to the timing of development milestones, competitive and industry outlook and the timing and completion of the transaction. Forward-looking statements are inherently subject to risks, uncertainties, and assumptions and they are not guarantees of performance. I encourage you to read the press release issued today and Star Peak’s filings with the SEC, which will include an investor presentation, for a discussion of the risks that can affect the business combination, Stem’s business and the business of the combined company after completion of the proposed business combination.

 

Star Peak and Stem are under no obligation and expressly disclaim any obligation to update, alter or otherwise revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law. I will now turn the call over to Mr. Mike Morgan, Chairman of Star Peak. Please go ahead, sir.

 

Mike Morgan – Chairman, Star Peak Energy Transition Corp.

 

Thank you, operator and thank you for joining today. We are very excited to announce today’s transaction between our two companies.

 

I've been in the energy industry for nearly three decades, and efficient energy storage has always been the key to enable rapid adoption of renewables onto the grid. Simply put, Stem has the most exciting clean energy storage solution that I have seen.

 

Briefly on my background – my entire career has been focused on building businesses during energy transitions. This includes Sunnova, where we invested shortly after its founding. We helped Sunnova build a team, raise capital, and complete a successful IPO a little over a year ago. I continue to serve as a Sunnova director. At Kinder Morgan, where I was President and remain the lead Director today, I helped build the business from 150 people to over 10,000 people and more than 60 billion dollars of enterprise value.

 

1

 

 

 

Turning to today’s announcement with Stem. Stem is a market leader in AI driven storage solutions – let me explain what that means. First, Stem’s customers pay them to create an installed base of energy storage, which they accomplish by using third party hardware and combining it with Stem's proprietary AI software. Then, Stem is paid under 10 to 20 year long-term software contracts to continue operating those systems. In short, Stem delivers three primary benefits to customers – they decarbonize power, they cut energy costs, and they improve power reliability.

 

The Company will have a 1.35 billion dollar market cap and a very attractive entry valuation. The transaction is backed by a 225 million dollar fully committed PIPE, and importantly, 100% of Stem’s current equity owners are rolling all their equity into the deal.

 

With that, I will pass it over to Eric.

 

Eric Scheyer – Chief Executive Officer, Star Peak Energy Transition Corp.

 

Thanks, Mike. Good morning, I’m Eric Scheyer, CEO of Star Peak.

 

Over the past 12 years, Mike and I have worked together with our teams to commit more than 6 billion dollars of capital in approximately 110 investments spanning energy infrastructure, renewables and technology.

 

Star Peak raised 383 million dollars in its IPO and launched with a clear vision and mission – to provide growth capital to a market leading company, focused on climate change initiatives, energy efficiency, and emissions reduction. Importantly, we were focused on partnering with a market leading company where our capital would be transformational and accelerate growth, while also capitalizing on the scarcity value of high-quality ESG focused companies.

 

We evaluated approximately 60 companies and after meeting with John and his team, we were immediately enthusiastic about the business and its position at the epicenter of the clean energy space and grid transformation. We conducted an extensive diligence process with exceptional advisors and consultants who supported our work. The results of our diligence validated our view on Stem’s leadership position, technology, and growth prospects.

 

2

 

 

 

With that, let me turn it back over to Mike to talk about our perspective.

 

Mike Morgan – Chairman, Star Peak Energy Transition Corp.

 

Thanks, Eric.

 

Simply put, climate change is the problem, and a revolutionized grid with Stem is the solution. Since 2019, 90% of grid interconnection requests have been from renewables and storage, which is up dramatically from just a few years ago when it was dominated by natural gas. Software is critical to making that storage more valuable – and that’s exactly what Stem delivers.

 

When we think about Stem, we identify four key attributes:

 

· First, a huge addressable market benefiting from strong macro tailwinds.

 

· Second, Stem is a clear technology leader, with a significant number of global deployments and millions of run time hours.

 

· Third, this transaction will load up Stem’s balance sheet, positioning Stem to attack this massive total addressable market.

 

· And fourth, highly visible growth. We believe this is differentiated, with nearly 90% of Stem’s expected revenue ramp for next year – which is a big ramp of nearly 4.5x – supported by signed customer contracts.

 

We're very excited about partnering with Stem, which with this transaction, will become the first publicly traded pure play, smart storage company.

 

With that, I’d like to pass it over to Stem’s CEO, John Carrington.

 

John Carrington – Chief Executive Officer, Stem

 

Thanks Mike.

 

I’ll start with some brief comments on the vision of the company and why I chose to join the team in 2013. After selling my last business, I was looking for a great opportunity at the nexus of energy and software. From my experience at First Solar, it was evident that storage would be integral to the energy grid transition and further increase the adoption of renewables. But the storage had to be intelligent, and a software driven smart storage solution was the key enabler. This is exactly where Stem is positioned today.

 

3

 

 

 

I was also intrigued by the land and expand aspect of Stem. In contrast to wind or solar, which produces fixed cash flows on a single deliverable, smart storage offers 13 value streams in more markets with more asset types than wind or solar. This is transformative and why I remain extremely excited about the future of the company.

 

Now turning to an overview of the business.

 

Stem provides its customers with a complete clean energy storage solution – that includes integrated battery systems, network integration and battery optimization via its proprietary AI-driven software platform called Athena.

 

We do not manufacture battery system hardware, but instead, procure this equipment from our global tier 1 partners – including LG, Tesla and Samsung – positioning us as completely hardware agnostic. We benefit from the significant cost decreases in battery hardware that are underway and ongoing.

 

With this integrated system, we deliver value to our customers by lowering energy costs, stabilizing the grid, solving intermittency and reducing carbon emissions.

 

This value is enabled by Athena, our trademark technology platform that optimizes battery hardware. We have a 100% attach rate for software services, with subscriptions ranging from 10 to 20 years, providing Stem with significant and predictable contracted revenue. Finally, there is a market participation component to our model, which occurs when we aggregate customer installations and monetize that capacity in the energy market.

 

We think smart energy storage accelerates the grid transformation and drives customer value in several ways:

 

· First, lower energy costs. Our AI platform predicts customer electricity usage on a second-by-second basis, and knows exactly when to dispatch the system at peak times when costs are the highest. This delivers up to a 30% monthly energy bill reduction for our customers.

 

4

 

 

 

· Second, by dispatching our systems when energy capacity is needed most, we reduce dependency on conventional generation while improving grid resiliency and reducing carbon emissions.

 

· Third, energy storage solves the intermittency challenges posed by solar and wind by acting as a dispatchable and fast-reacting reserve when generation of these sources is unavailable or offline.

 

· And finally, this network of customers is cloud-enabled, creating virtual power plants that can be called upon instantaneously to supply energy.

 

Athena is continuously collecting data on electricity usage across our entire customer base, creating a virtuous cycle of learning and deep insights to better inform our algorithm. As our installs grow, Athena optimizes and becomes even more intelligent, delivering more value and creating a higher competitive moat for the company.

 

Turning to the global focus on decarbonization, which is driving tremendous tailwinds for our business and being led by three significant stakeholders - corporates, utilities and regulators.

 

· First, on corporate customers. This group is committed to achieving sustainability targets, while deploying more solar and wind, focused on lowering energy spend and improving the ESG narrative for shareholders and employees. These companies are looking to become better grid citizens, and Athena automates this without requiring any operational changes to their business that are typically associated with legacy energy savings initiatives.

 

· Second, from a utilities standpoint, many are committed to greenhouse gas emissions reduction. This change will require more solar and wind, and in turn, drive the need for smart storage to manage the integration and intermittency of renewables.

 

· Third – regulators. This is a global initiative, regulators are focused on grid resiliency, decarbonization and increased adoption of renewables. Regulators understand the benefits of smart storage and how it enables additional renewables and stability on the grid. Here in the U.S., there's bipartisan support for the acceleration and adoption of energy storage, and I expect to see a standalone investment tax credit for storage but we have not included that in our financial model.

 

5

 

 

 

Today there is an inflection point underway in our market, driven by the dramatic decrease in cost for both renewable energy generation and battery hardware. Combined, these factors result in a market that is growing at 25 times over the next 10 years, leading to a 1.2 trillion-dollar market opportunity. Additionally, the energy storage attach rate is growing by approximately five times that of solar and wind in the U.S., and nearly four times on a global basis. Smart storage is at the center of growth in renewables.

 

As a result of this growth in renewables, the grid is being transformed. Historically, power on the grid has been produced by a centralized plant or source, delivering energy to the end-user in a one-way flow of power.

 

Now we are seeing a decentralized and democratized grid where every customer site has a combination of renewable generation and smart storage. The result is a more distributed grid that will require new solutions and business models. It will be far more complex, with power flowing bi-directionally, and requiring Athena to orchestrate and optimize the customer site and the grid. It will also be much more dynamic. On the historical grid, power was predictable and controllable, but is now being generated by intermittent renewable assets, requiring intelligent, adaptable 24/7 management. Athena is a vital component of this transformation enabling more renewable assets on the grid.

 

From a market position perspective, Stem is one of the market leaders in worldwide deployments. Our pipeline is significant and growing, the current pipeline is 2.7 billion dollars. We have over 900 systems operating or contracted across the U.S., Canada, Japan, and South America. Together, this represents approximately 1 gigawatt hour of capacity, which is roughly the equivalent of 12 gas peaking power plants – with zero carbon emissions.

 

As Mike mentioned, we have highly visible growth. Our solid bookings performance as of September 2020, have resulted in 180 million dollars of backlog and we expect to deliver 4.5x year-over-year revenue growth in 2021.

 

I will now introduce our technology and the Athena platform

 

Athena ingests over 700,000 data points per second from customer-sited energy storage systems and acquires very specific and localized information including weather, energy prices, energy market drivers and grid dynamics. This data is paired with our AI machine learning software which predicts future conditions, including customer loads, solar generation and energy prices and runs over 24 million of these scenarios daily to optimize battery value to our customers.

 

6

 

 

 

There’s a wide range of customer segments that benefit from flexible energy storage, including end consumers, renewable asset owners, distribution utilities and participants in the wholesale energy markets. There are 13 identified energy storage value streams, and today, Athena is offering 11 of these in multiple different markets. And while the initial customer uptake might be two, three, or maybe four different value streams, we think that over time, individual customers will subscribe to additional streams as fundamental market and regulatory dynamics offer new opportunities to monetize distributed energy storage.

 

I would now like to share a day in the life of Athena.

 

Throughout the day, Athena optimizes the value for individual customers as individual sites are consuming power based on their own business needs. Later in the day, typically at about three o'clock in the case of California, Athena, in response to utility requests and market price signals, begins to orchestrate hundreds of sites coordinated as virtual power plants to deliver energy to the grid. Athena automates system discharges across multiple different utility territories, collaborating with the utilities to provide instant grid support when and where it is needed.

 

In the early evening when grid demand has dropped, the systems resume normal operation. And when power prices drop at night Athena automates their recharging, using low cost power to restore energy so they can begin operation in a similar pattern for the following day.

 

I would now like to discuss our go-to-market strategy. We have built a partner network that includes 4 channels to ensure complete coverage across the U.S. It is evident that our strategy is working, as 90% of our bookings have come through our partner network this year. The network is comprised of direct sales, sales channel partners, distributors and large renewable project developers.

 

· Direct sales channel is targeted at large enterprise customers, including more than 30 Fortune 500 companies, where we have very strong relationships, and in many cases our first projects in new markets are from these customers.

 

· Second, our sales channel partners – this is a group that sells to mid-market customers and was created to help manage our customer acquisition cost. We have more than 500 sales executives in this channel and to maximize the value of this channel, we created Stem University – an online platform that helps educate these sales executives on how to effectively target customers, develop proposals and contract with customers on our behalf.

 

7

 

 

 

· The third element of our network are distributor partners. This channel includes the three largest solar distributors in the U.S. and reaches over 5,000 solar installers,

 

· And lastly, large renewable projects developers, where we provide economic uplift for their renewable projects all driven by our Athena platform.

 

This strategy provides outstanding coverage and reach while creating a significant moat against competitors.

 

I would now like to review how transformative this transaction is for Stem. Not only are we category-defining, we will now have an industry-leading balance sheet to accelerate our growth.

 

· First, we will have approximately 525 million dollars of cash and zero debt, enabling us to execute on much larger projects and expand our addressable market.

 

· Second, we intend to invest in our Athena software development team including more software developers and data scientists, and opportunistically evaluate technology acquisitions that would either accelerate our software roadmap or open new markets.

 

· Third, our stronger balance sheet will lower our supply chain costs, we estimate this to represent more than 100 million dollars over the next 24 months.

 

· Lastly, geographic expansion and joint venture opportunities. We have successfully taken Athena to Canada, Japan, and South America. The strengthened balance sheet will help expand our business globally with the goal of Athena’s adoption in all major geographies where customers and grids can benefit from smart storage.

 

I would like to close with an overview of the executive team and board of directors. Our team consists of seasoned executives with expertise in energy, software and finance. On our board, we will have 7 board members, 4 of which have been identified, and we will be filling the remaining 3 seats over the coming months.

 

We are very excited about the collaboration with Star Peak. Their due diligence process was significant and I respect the level of commitment and rigor the team has employed. Stem management and Star Peak are aligned on our collective vision, and I am confident that Star Peak’s clean energy and renewable experience will further enhance our competitive advantage.

 

8

 

 

 

With that, I’ll turn it over to our Chief Financial Officer, Bill Bush.

 

Bill Bush – Chief Financial Officer, Stem

 

Great, thanks, John.

 

Turning to our financials. Our business has three primary sources of revenue – Hardware, Software, and Market Participation – all enabled by Athena. On the Hardware side, we integrate with best-in-class energy storage systems from Tesla, LG and Samsung to provide turnkey, integrated hardware solutions to our customers, which carry gross margins in the 10 to 30% range, reflecting the premium services that we provide our customers. Our Software revenue has contract terms in the 10 to 20-year range, carrying gross margins in excess of 80%. Our software revenue is a combination of recurring software and system management fees, which have a 100% attach rate to our integrated hardware solution.

 

Market Participation is focused on enabling our installed base of integrated storage solutions to generate revenue. All of our business segments generate positive gross margins, and our businesses are all scaling quickly with modest additional capex requirements.

 

We have significant revenue visibility for 2021. Our currently executed contracts, included in backlog, represent 88% of our 2021 estimated revenue of 147 million dollars. Importantly, these contracts carry significant termination penalties. In addition, we have a near-term pipeline of 241 million dollars, comprised of unsigned project opportunities, reflecting 14 times coverage on the 12% of 2021 revenue not already covered by executed contracts today. Beyond 2021, our pipeline is significant, providing us with visibility into 2022.

 

Longer-term, we expect a significant increase in revenue, including more than a 50% CAGR between 2021 and 2026 driven by continued customer and market expansion. Importantly, we expect Software’s contribution to the overall growth in our business to increase, reflecting a material portion of our total revenue by 2026. On a blended basis, our software revenue is forecasted to drive an increase in the company’s gross margin from 16% in 2021 to more than 40% in 2026.

 

9

 

 

 

All in, we’re forecasting to achieve near break-even free cash flow in 2022 with significant FCF thereafter, reflecting the operating leverage in our business due to the low level of capex that is required to execute on our plan.

 

With that, I’ll turn it back over to Eric.

 

Eric Scheyer – Chief Executive Officer, Star Peak Energy Transition Corp.

 

Thanks, Bill.

 

From a transaction perspective, we’re coming out at a very attractive entry multiple relative to the clean energy peer group. The transaction reflects a pro-forma market cap for the combined company of 1.35 billion dollars, and a pro-forma enterprise value of approximately 830 million dollars. As noted earlier, Stem will have an extremely strong balance sheet and be well positioned to execute on its growth plan. Stem leadership will own an approximate 5% stake in the company, reflecting strong management alignment, and as discussed earlier, current Stem shareholders are rolling 100% of their equity.

 

From a public comparables perspective, we believe that Stem shares the characteristics of a number of leading ESG-focused, high growth clean energy public peers. We view the landscape in three primary peer groups – solar technology solution companies, distributed solar companies, and sustainable infrastructure companies. Relative to these buckets and their constituents, Stem is forecasted to deliver peer-leading growth on a multi-year basis. For example, in 2021 Stem is forecasted to grow revenues at 2-4x the rate of the peer group while a significant percentage of that forecasted growth is contractually committed in the backlog. We believe this growth is highly visible and reflects the fact that Stem is a market leader in one of the fastest growing clean energy end markets.

 

From a valuation perspective, the transaction is priced at 5.6x 2021 forecasted revenue on an EV-basis, reflecting an attractive discount versus peers. Looking out to 2022, the discount becomes even more attractive at just 2.6x forecasted revenue.

 

Perhaps most importantly is that you don’t need to look out 3-5 years with Stem, as the company is generating meaningful revenues today with strong momentum over the forecast period.

 

With that, I’ll pass it back to Mike for a few closing comments

 

10

 

 

 

Mike Morgan – Chairman, Star Peak Energy Transition Corp.

 

Thanks, Eric.

 

I’ll close by saying that John and his team have built a fantastic business. It's going to be the first pure play, smart energy storage company in the market. I am excited to join the board, roll up my sleeves and get to work helping them attack this very large market opportunity. Stem is the market leader in terms of technology, and they're now going to have a balance sheet ready to realize their growth potential.

 

Thanks again for joining us today. Have a great day.

 

Operator

 

That concludes today’s conference call. Thank you for joining. You may now disconnect.

 

11