As filed with the Securities and Exchange Commission on September 20, 2013

Registration No. 333-190538

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Amendment No. 4

to

FORM S-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

PATTERN ENERGY GROUP INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   4911   90-0893251

(State or other jurisdiction of

incorporation or organization)

 

(Primary Standard Industrial

Classification Code Number)

 

(I.R.S. Employer

Identification No.)

Pier 1, Bay 3

San Francisco, CA 94111

(415) 283-4000

(Address, including zip code, and telephone number, including area code, of the registrant’s principal executive offices)

 

 

Daniel M. Elkort

General Counsel

Pattern Energy Group Inc.

Pier 1, Bay 3

San Francisco, CA 94111

(415) 283-4000

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copies to:

Kirk A. Davenport II

Patrick H. Shannon

Latham & Watkins LLP

885 Third Avenue

New York, NY 10022

(212) 906-1200

 

Shelley A. Barber

Brenda K. Lenahan

Vinson & Elkins L.L.P.

666 Fifth Avenue

New York, NY 10103

(212) 237-0000

 

 

Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this registration statement.

If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box.   ¨

If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ¨

If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ¨

If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

¨   Large accelerated filer   ¨   Accelerated filer   x   Non-accelerated filer   ¨   Smaller reporting company

 

 

The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

 

EXPLANATORY NOTE

Pattern Energy Group Inc. is filing this Amendment No. 4 to the Registration Statement on Form S-1 (File No. 333-190538) to submit Exhibits 3.1, 5.1, 10.5 and 23.1. Accordingly, this amendment consists only of the facing page, this explanatory note, Item 16 of Part II of the Registration Statement, the signature pages to the Registration Statement and the filed exhibits. No changes are being made to the prospectus or Items 13, 14, 15, or 17 of Part II to the Registration Statement.

 

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PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 13. Other Expenses of Issuance and Distribution.

The actual and estimated expenses in connection with this offering, all of which will be borne by us, are as follows:

 

SEC Registration Fee

   $ 52,705   

FINRA Filing Fee

   $ 58,460   

Printing and Engraving Expense

   $ 350,000   

Legal Fees

   $ 7,000,000   

Accounting Fees

   $ 3,500,000   

Blue Sky Fees

     —     

Stock Exchange Listing Fees

   $ 300,000   

Transfer Agent Fee

   $ 5,000   

Miscellaneous

   $ 2,733,835   
  

 

 

 

Total

   $ 14,000,000   
  

 

 

 

Item 14. Indemnification of Directors and Officers

Reference is made to Section 102(b)(7) of the DGCL, which enables a corporation in its original certificate of incorporation or an amendment thereto to eliminate or limit the personal liability of a director for violations of the director’s fiduciary duty, except (1) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) pursuant to Section 174 of the DGCL, which provides for liability of directors for unlawful payments of dividends of unlawful stock purchase or redemptions or (4) for any transaction from which a director derived an improper personal benefit.

Reference is also made to Section 145 of the DGCL, which provides that a corporation may indemnify any person, including an officer or director, who is, or is threatened to be made, party to any threatened, pending or completed legal action, suit or proceeding, whether civil, criminal, administrative or investigative, other than an action by or in the right of such corporation, by reason of the fact that such person was an officer, director, employee or agent of such corporation or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such officer, director, employee or agent acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the Company’s best interest and, for criminal proceedings, had no reasonable cause to believe that his conduct was unlawful. A Delaware corporation may indemnify any officer or director in an action by or in the right of the corporation under the same conditions, except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses that such officer or director actually and reasonably incurred. If a claim for indemnification or advancement of expenses is not paid in full in accordance with our amended and restated by laws, the officer or director is entitled to file suit to recover the unpaid amount of such claim.

Our amended and restated certificate of incorporation filed as Exhibit 3.1 to this registration statement provides that our directors will not be personally liable to the Company or its stockholders for monetary damages resulting from breach of their fiduciary duties. However, nothing contained in such provision will eliminate or limit the liability of directors (1) for any breach of the director’s duty of loyalty to us or our stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law, (3) under Section 174 of the DGCL or (4) for any transaction from which the director derived an improper personal benefit.

Our amended and restated bylaws provide for indemnification of the officers and directors to the full extent permitted by applicable law.

In addition, we entered into agreements to indemnify our directors and executive officers containing provisions which are in some respects broader than the specific indemnification provisions contained in the DGCL. The indemnification agreements may require us, among other things, to indemnify our directors against certain liabilities that may arise by reason of their status or service as directors and to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified. The proposed form of such indemnification agreement is filed as Exhibit 10.4 to this registration statement.

 

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The proposed form of Underwriting Agreement filed as Exhibit 1.1 to this registration statement provides for indemnification by the underwriters of the registrant and its officers and directors for certain liabilities arising under the U.S. Securities Act, or otherwise.

Item 15. Recent Sales of Unregistered Securities.

On October 17, 2012, in connection with our formation, Pattern Renewables LP, a subsidiary of Pattern Energy Group LP, was issued 100 shares of our common stock for total consideration of $1,000 in cash in order to provide our initial capitalization.

Item 16. Exhibits and Financial Statement Schedules.

(A) Exhibits

 

EXHIBIT
NO.

 

DESCRIPTION OF EXHIBIT

  1.1**   Form of Underwriting Agreement
  3.1   Form of Amended and Restated Certificate of Incorporation of Pattern Energy Group Inc.
  3.2**   Form of Amended and Restated Bylaws of Pattern Energy Group Inc.
  4.1**   Form of Class A Stock Certificate
  5.1   Opinion of Latham & Watkins LLP
10.1**   Credit and Guaranty Agreement, among Pattern US Finance Company LLC, Pattern Canada Finance Company ULC, as borrowers, certain subsidiaries of the borrowers, the lenders party thereto from time to time, Royal Bank of Canada, as Administrative Agent and Collateral Agent, Bank of Montreal, as Syndication Agent, and Morgan Stanley Bank, N.A., as Documentation Agent, dated as of November 15, 2012.
10.2**   Form of Pattern Energy Group Inc. 2013 Equity Incentive Award Plan
10.3**   Form of Pattern Energy Group Inc. 2013 Incentive Bonus Plan
10.4**   Form of Stock Option Agreement under 2013 Equity Incentive Award Plan
10.5   Form of Restricted Stock Agreement under 2013 Equity Incentive Award Plan
10.6**   Form of Restricted Stock Unit Agreement under 2013 Equity Incentive Award Plan
10.7**   Form of Indemnification Agreement between the Registrant and each of its Executive Officers and Directors
10.8**   Form of Registration Rights Agreement
10.9**   Form of Contribution Agreement
10.10**   Form of Purchase Rights Agreement
10.11**   Form of Management Services Agreement
10.12**   Form of Non-Competition Agreement
10.13**   Form of Shareholder Agreement
10.14**   Form of Employment Agreement
21.1**   List of Subsidiaries
23.1   Consent of Latham & Watkins LLP (included in Exhibit 5.1)
23.2**   Consent of Ernst & Young LLP
23.3**   Consent of Garrad Hassan America, Inc.
24.1**   Powers of Attorney (included in the signature pages to this registration statement)
99.1**   Independent Engineer’s Report of Garrad Hassan America, Inc.
99.2**   Consent of Alan R. Batkin to be named as a board nominee
99.3**   Consent of The Lord Brown of Madingley to be named as a board nominee
99.4**   Consent of Douglas G. Hall to be named as a board nominee
99.5**   Consent of Patricia M. Newson to be named as a board nominee
99.6**   Consent of Patricia S. Bellinger to be named as a board nominee

 

* To be filed by amendment.
** Previously filed.

(B) Financial Statement Schedules

Schedule II — Valuation and Qualifying Accounts

Certain information required in Schedule II, Valuation and Qualifying Accounts, has been omitted because equivalent information has been included in the financial statements included in this registration statement.

 

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Other financial statement schedules have been omitted because they either are not required, are immaterial or are not applicable.

Item 17. Undertakings

The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

Insofar as indemnification for liabilities arising under the U.S. Securities Act may be permitted to our directors, officers, and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the U.S. Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by us of expenses incurred or paid by a director, officer, or controlling person of us in the successful defense of any action, suit, or proceeding) is asserted by such director, officer, or controlling person in connection with the securities being registered, we will, unless in the opinion of counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by us is against public policy as expressed in the U.S. Securities Act and will be governed by the final adjudication of such issue.

We hereby undertake that:

 

  (1) for purposes of determining any liability under the U.S. Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the U.S. Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective;

 

  (2) for purposes of determining any liability under the U.S. Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and

 

  (3) for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities:

 

  (i) that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

 

  (A) any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424,

 

  (B) any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant,

 

  (C) the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant, and

 

  (D) any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933 as amended, the registrant has duly caused this amendment no. 4 to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of San Francisco, state of California, on September 20, 2013.

 

  PATTERN ENERGY GROUP INC.
by:  

/s/    Michael M. Garland        

  Michael M. Garland
  Director, President and Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933 as amended, this amendment no. 4 to the registration statement has been signed by the following persons in the capacities indicated.

 

Signature

       

Title

     

/s/ Michael M. Garland

Michael M. Garland

    Director, President and Chief Executive Officer (Principal Executive Officer)  

/s/ Michael J. Lyon

Michael J. Lyon

    Chief Financial Officer (Principal Financial Officer)  

*

    Senior Vice President, Fiscal and  
Eric S. Lillybeck     Administrative Services (Principal Accounting Officer)  

*

    Director  
Michael B. Hoffman      

 

 

*By:   /s/ Michael J. Lyon
  Michael J. Lyon
  Attorney-in-fact

 

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EXHIBIT INDEX

 

EXHIBIT
NO.

 

DESCRIPTION OF EXHIBIT

  1.1**   Form of Underwriting Agreement
  3.1   Form of Amended and Restated Certificate of Incorporation of Pattern Energy Group Inc.
  3.2**   Form of Amended and Restated Bylaws of Pattern Energy Group Inc.
  4.1**   Form of Class A Stock Certificate
  5.1   Opinion of Latham & Watkins LLP
10.1**   Credit and Guaranty Agreement, among Pattern US Finance Company LLC, Pattern Canada Finance Company ULC, as borrowers, certain subsidiaries of the borrowers, the lenders party thereto from time to time, Royal Bank of Canada, as Administrative Agent and Collateral Agent, Bank of Montreal, as Syndication Agent, and Morgan Stanley Bank, N.A., as Documentation Agent, dated as of November 15, 2012.
10.2**   Form of Pattern Energy Group Inc. 2013 Equity Incentive Award Plan
10.3**   Form of Pattern Energy Group Inc. 2013 Incentive Bonus Plan
10.4**   Form of Stock Option Agreement under 2013 Equity Incentive Award Plan
10.5   Form of Restricted Stock Agreement under 2013 Equity Incentive Award Plan
10.6**   Form of Restricted Stock Unit Agreement under 2013 Equity Incentive Award Plan
10.7**   Form of Indemnification Agreement between the Registrant and each of its Executive Officers and Directors
10.8**   Form of Registration Rights Agreement
10.9**   Form of Contribution Agreement
10.10**   Form of Purchase Rights Agreement
10.11**   Form of Management Services Agreement
10.12**   Form of Non-Competition Agreement
10.13**   Form of Shareholder Agreement
10.14**   Form of Employment Agreement
21.1**   List of Subsidiaries
23.1   Consent of Latham & Watkins LLP (included in Exhibit 5.1)
23.2**   Consent of Ernst & Young LLP
23.3**   Consent of Garrad Hassan America, Inc.
24.1**   Powers of Attorney (included in the signature pages to this registration statement)
99.1**   Independent Engineer’s Report of Garrad Hassan America, Inc.
99.2**   Consent of Alan R. Batkin to be named as a board nominee
99.3**   Consent of The Lord Brown of Madingley to be named as a board nominee
99.4**   Consent of Douglas G. Hall to be named as a board nominee
99.5**   Consent of Patricia M. Newson to be named as a board nominee
99.6**   Consent of Patricia S. Bellinger to be named as a board nominee

 

* To be filed by amendment.
** Previously filed.

 

Exhibit 3.1

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

PATTERN ENERGY GROUP INC.

(Pursuant to Sections 242 and 245 of the General Corporation Law of the State of Delaware)

The present name of the corporation is Pattern Energy Group Inc. The corporation was incorporated under the name “Pattern Energy Group Inc.” by the filing of its original certificate of incorporation (the “ Original Certificate of Incorporation ”) with the Secretary of State of the State of Delaware on October 2, 2012. This Amended and Restated Certificate of Incorporation of the corporation, which restates and integrates and also further amends the provisions of the Original Certificate of Incorporation, was duly adopted in accordance with the provisions of Sections 242 and 245 of the General Corporation Law of the State of Delaware (the “ DGCL ”). The Original Certificate of Incorporation is hereby amended, integrated and restated to read in its entirety as follows:

FIRST : The name of the corporation (hereinafter called the “ Corporation ”) is:

Pattern Energy Group Inc.

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

THIRD : The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized and incorporated under the DGCL or any applicable successor act thereto, as the same may be amended from time to time.

FOURTH : The total number of shares of all classes of capital stock that the Corporation is authorized to issue is 620,000,000 shares. The Corporation is authorized to issue two classes of shares, designated “ Common Stock ” and “ Preferred Stock .” The total number of shares of Common Stock authorized to be issued is 520,000,000 shares, $0.01 par value per share, 500,000,000 of which are designated “ Class A Common Stock ” and 20,000,000 of which are designated “ Class B Common Stock .” The total number of shares of Preferred Stock authorized to be issued is 100,000,000 shares, $0.01 par value per share.

A. Common Stock .

1. Ranking . The powers, preferences and relative participating, optional or other special rights, and the qualifications, limitations and restrictions of the Class A Common Stock and the Class B Common Stock, shall be in all respects identical, except as otherwise required by law or expressly provided in this Amended and Restated Certificate of Incorporation (as amended from time to time, this “ Certificate of Incorporation ”). The voting, dividend and liquidation rights of the holders of the Common Stock are subject to and qualified by the rights of the holders of the Preferred Stock of any series as may be designated by the Board of Directors of the Corporation (the “ Board ”) upon any issuance of the Preferred Stock of any series.

 

1

2. Voting .

(a) Except as otherwise provided by law or this Certificate of Incorporation or by the resolution or resolutions providing for the issuance of any series of Preferred Stock, the holders of the outstanding shares of Class A Common Stock and Class B Common Stock shall vote together as a single class on all matters (including the election of directors). Each holder of Class A Common Stock and Class B Common Stock shall be entitled (i) with respect to each share of Common Stock held by such holder on the applicable record date, to one (1) vote in person or by proxy on all matters (including the election of directors) submitted to a vote or for the consent (if action by written consent of the stockholders is permitted at such time under this Certificate of Incorporation) of the stockholders of the Corporation, (ii) to notice of any stockholders’ meeting in accordance with the By-laws, and (iii) to vote upon such matters and in such manner as may be provided by applicable law.

(b) Subject to the rights of the holders of any series of Preferred Stock, the number of authorized shares of the Common Stock or Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority in voting power of the stock of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL, and no vote of the holders of either the Common Stock or Preferred Stock voting separately as a class shall be required therefor.

(c) Except as otherwise required by law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Certificate of Incorporation or to a Preferred Stock Designation that alters or changes the powers, preferences, rights or other terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other series of Preferred Stock, to vote thereon as a separate class pursuant to this Certificate of Incorporation or a Preferred Stock Designation or pursuant to the DGCL as currently in effect or as the same may hereafter be amended.

(d) Notwithstanding any provision of this Certificate of Incorporation to the contrary, any amendment, alteration or repeal of this Certificate of Incorporation, whether by amendment, merger, consolidation or otherwise, that affects the rights, powers and preferences of (i) the Class A Common Stock only, shall require, in addition to any vote required by law, the affirmative vote, consent or approval of (x) the holders of the then-outstanding shares of Class A Common Stock by a majority of votes cast at a meeting or by written consent of stockholders holding a majority of the outstanding shares of Class A Common Stock (if action by written consent is permitted) and (y) the holders of the then-outstanding shares of Class B Common Stock by a majority of votes cast at a meeting or by written consent of stockholders holding a majority of the outstanding shares of Class B Common Stock (if action by written consent is permitted), (ii) the Class B Common Stock only, shall require, in addition to any vote required by law, the affirmative vote, consent or approval of (x) the holders of the then-outstanding shares of Class A Common Stock by a majority of votes cast at a meeting or by written consent of stockholders holding a majority of the outstanding shares of Class A Common Stock (if action by written consent is permitted) and (y) the holders of the then-outstanding shares of Class B Common Stock by a majority of votes cast at a meeting or by written consent of stockholders holding a majority of the outstanding shares of Class B Common Stock (if action by written consent is permitted), and (iii) the Class A Common Stock and the Class B Common Stock, shall require, in addition to any vote required by law, the affirmative vote, consent or approval of (x) the holders of the then-outstanding shares of Class A Common Stock by a majority of votes cast at a meeting or by written consent of stockholders holding a majority of the outstanding shares of Class A Common Stock (if action by written consent is permitted) and (y) the holders of the then-outstanding shares of Class B Common Stock by a majority of votes cast at a meeting or by written consent of stockholders holding a majority of the outstanding shares of Class B Common Stock (if action by written consent is permitted). For the avoidance of doubt, this Article FOURTH, Section A.2(d) shall expire and be of no further force or effect upon the occurrence of a Conversion Event.

 

2

3. Dividends .

(a) Subject to the terms of any series of Preferred Stock, the holders of shares of Class A Common Stock shall be entitled to receive such dividends and other distributions in cash, property or shares of stock of the Corporation as may be declared thereon by the Board from time to time out of assets or funds of the Corporation legally available therefor.

(b) Except as otherwise provided in Article FOURTH, Section A.4 with respect to the distribution of assets in the event of any liquidation, dissolution or winding-up of the affairs of the Corporation, the holders of shares of Class B Common Stock shall not be entitled to receive any dividends or other distributions in cash, property or shares of stock of the Corporation in respect of their shares of Class B Common Stock.

4. Liquidation . In the event of any dissolution, liquidation or winding-up of the affairs of the Corporation, whether voluntary or involuntary, after payment or provision for payment of the debts and other liabilities of the Corporation and after making provision for the entitlements of holders of any series of Preferred Stock, the remaining assets and funds of the Corporation, if any, shall be divided among and paid ratably to the holders of the shares of Class A Common Stock and Class B Common Stock, treated as a single class. A consolidation, reorganization or merger of the Corporation with any other person or persons, or a sale of all or substantially all of the assets of the Corporation, shall not be considered a dissolution, liquidation, or winding-up of the Corporation within the meaning of this Article FOURTH, Section A.4.

5. Subdivision or Combination . If the Corporation in any manner subdivides or combines (by reclassification, stock split, stock dividend or otherwise) the then-outstanding shares of Class A Common Stock, the then-outstanding shares of Class B Common Stock shall be proportionately subdivided or combined, as the case may be. If the Corporation in any manner subdivides or combines (by reclassification, stock split, stock dividend or otherwise) the then-outstanding shares of Class B Common Stock, the then-outstanding shares of Class A Common Stock shall be proportionately subdivided or combined, as the case may be.

 

3

6. Consolidation, Reorganization or Merger . Subject to the terms of any series of Preferred Stock, in case of any consolidation, reorganization, share exchange or merger of the Corporation with or into another person or persons in which shares of Class A Common Stock or Class B Common Stock are converted into (or entitled to receive with respect thereto) shares of stock or other securities or property (including cash), each holder of a share of Class A Common Stock and each holder of a share of Class B Common Stock shall be entitled to receive with respect to each such share the same kind and amount of shares of stock and other securities and property (including cash). In the event that the holders of shares of Class A Common Stock or shares of Class B Common Stock are granted rights to elect to receive one of two or more alternative forms of consideration, the foregoing provision shall be deemed satisfied if holders of shares of Class A Common Stock and holders of shares of Class B Common Stock are granted identical election rights, as the case may be.

7. Conversion of Class B Common Stock .

(a) The Class B Common Stock shall automatically, without any further act or deed on the part of the Corporation or any other person be converted into Class A Common Stock on a share-for-share basis upon the occurrence of a Conversion Event. At such time of automatic conversion of Class B Common Stock pursuant to this Article FOURTH, Section A.7(a), the certificate(s) formerly representing the outstanding shares of Class B Common Stock, if such shares are certificated, or, if such shares are uncertificated, shares in book-entry form, so converted will thereafter be deemed to represent a like number of shares of Class A Common Stock. Shares of Class B Common Stock converted into shares of Class A Common Stock pursuant to this Article FOURTH, Section A.7 shall be retired and the Corporation shall not be authorized to reissue such shares of Class B Common Stock.

(b) As promptly as practicable after the presentation and surrender for conversion, during usual business hours at any office of the Corporation or the Corporation’s transfer agent and registrar, if applicable, of any certificate representing shares of Class B Common Stock, if such shares are certificated, or, if such shares are uncertificated, shares in book-entry form, that have been converted into shares of Class A Common Stock pursuant to Article FOURTH, Section A.7(a) hereof, the Corporation shall issue and deliver at such office or agency, to or upon the written order of the holder thereof, a certificate representing the number of shares of Class A Common Stock issuable upon such conversion, if such shares are certificated, or, if such shares are uncertificated, register such shares in book-entry form. The issuance of certificates or the registration of such shares in book-entry form representing shares of Class A Common Stock issuable upon the conversion of shares of Class B Common Stock by the registered holder thereof shall be made without charge to the converting holder for any tax imposed on the Corporation in respect to the issuance thereof. The Corporation shall not, however, be required to pay any tax which may be payable with respect to any transfer involved in the issuance and delivery of any certificate in a name other than that of the registered holder of the shares being converted, and the Corporation shall not be required to issue or deliver any such certificate unless and until the person requesting the issuance thereof shall have paid to the Corporation the amount of such tax or has established to the satisfaction of the Corporation that such tax has been paid.

 

4

(c) The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Class A Common Stock, solely for the purpose of effecting the conversion of the shares of Class B Common Stock pursuant to this Article FOURTH, Section A.7, such number of its shares of Class A Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of Class B Common Stock; and if at any time the number of authorized but unissued shares of Class A Common Stock shall not be sufficient for such purpose, in addition to such other remedies as shall be available to a holder of such Class B Common Stock, the Corporation will take such corporate action as may be necessary to increase its authorized but unissued shares of Class A Common Stock to such number of shares as shall be sufficient for such purpose, including, without limitation, engaging in best efforts to obtain the requisite stockholder approval of any necessary amendment to this Certificate of Incorporation.

8. Transfer of Class B Common Stock .

(a) No beneficial owner of shares of Class B Common Stock (herein referred to as a “ Class B Stockholder ”) may, directly or indirectly, transfer, and the Corporation shall not register the transfer of, shares of Class B Common Stock, whether by sale, assignment, gift or otherwise, except to a Class B Permitted Transferee. For purposes of this Article FOURTH, Section A.8, a “Class B Permitted Transferee” shall mean: (i) the Corporation and any Corporation Affiliate; (ii) any employee or officer of the Corporation or a Corporation Affiliate; (iii) any of the PEG LP Entities; (iv) any PEG LP Employee; (v) in the case of another person that acquires shares of Class B Common Stock in a Business Combination, such other person and such other person’s officers, employees and affiliates; and (vi) in the case of any Class B Stockholder that is a natural person, the estate of such natural person or any legatee, heir or distributees thereof. Notwithstanding anything in this Article FOURTH, Section A.8 to the contrary, and for the avoidance of doubt, the transfer restrictions contained in this Article FOURTH, Section A.8 (i) shall not apply to the transfer of shares of Class B Common Stock to the Corporation in exchange for shares of Class A Common Stock pursuant to Article FOURTH, Section A.7 hereof, (ii) shall not apply to a transfer or conversion of shares of Class B Common Stock in connection with a Business Combination, (iii) shall expire and be of no further force or effect upon the occurrence of a Conversion Event and (iv) shall not apply to the shares of Class A Common Stock into which shares of Class B Common Stock will be converted upon the occurrence of a Conversion Event.

(b) Any person who holds shares of Class B Common Stock for the beneficial ownership of another, including (i) any broker or dealer in securities; (ii) any clearing house; (iii) any bank, trust company, savings and loan association or other financial institution; (iv) any other nominee; and (v) any savings plan or account or related trust, such as an individual retirement account, principally for the benefit of any individual, may transfer such shares to the person or persons for whose benefit it holds such shares.

(c) Any purported transfer or assignment of shares of Class B Common Stock in violation of this Article FOURTH, Section A.8 shall be void ab initio . Any purported transferee of shares of Class B Common Stock pursuant to a transfer or assignment made in violation of this Article FOURTH, Section A.8 shall have no rights as a stockholder of the Corporation and no other rights against or with respect to the Corporation.

 

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(d) The Corporation and any transfer agent of Class B Common Stock may as a condition to the transfer or the registration of any transfer of shares of Class B Common Stock permitted by this Article FOURTH, Section A.8 require the furnishing of such affidavits or other proof as they deem necessary to establish that such transferee is a Class B Permitted Transferee.

9. Coattail Provision .

(a) For the purposes of this Article FOURTH, Section A.9:

“ affiliate ” has the meaning assigned by the OSA;

“ associate ” has the meaning assigned by the OSA;

“ Offeror ” means a person or entity that makes an offer or acts jointly or in concert with a person or entity making an offer to purchase the Class B Common Stock and such person’s or entity’s associates or affiliates; and

“ OSA ” means the Securities Act (Ontario), as amended from time to time.

(b) The shares of Class B Common Stock are not transferrable, directly or indirectly, pursuant to an offer to purchase the Class B Common Stock that, if such shares of Class B Common Stock had been shares of Class A Common Stock, would have required the Offeror, by reason of the OSA to make a take-over bid (as defined in the OSA) (a “ Class B Offer ”) to holders of Class A Common Stock on the same terms; provided that, these restrictions will not prevent a holder of Class B Common Stock from electing to deposit shares of Class B Common Stock pursuant to a Class B Offer if the Offeror concurrently makes an offer to purchase shares of Class A Common Stock that:

 

  (i) offers a price per share of Class A Common Stock at least as high as the highest price per share of Class B Common Stock pursuant to the Class B Offer;

 

  (ii) provides that the percentage of outstanding shares of Class A Common Stock to be taken up (exclusive of shares of Class A Common Stock owned immediately prior to the offer by the Offeror) is at least as high as the percentage of shares of Class B Common Stock to be taken up (exclusive of shares of Class B Common Stock owned immediately prior to the Class B Offer by the Offeror) and the Offeror does not acquire any shares of Class B Common Stock unless the Offeror also acquires a proportionate number of shares of Class A Common Stock actually tendered to such offer;

 

  (iii) has no conditions attached other than the conditions attached to the Class B Offer; and

 

  (iv) is in all other material respects identical to the Class B Offer.

 

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For greater certainty, the foregoing restrictions will not prevent a sale by a holder of Class B Common Stock if the offer to purchase such shares of Class B Common Stock would have constituted an exempt take-over bid (as defined in the OSA) or would not constitute a formal take-over bid (as defined in the OSA) had it been an offer to acquire from such holder, shares of Class A Common Stock rather than shares of Class B Common Stock.

B. Preferred Stock . Shares of Preferred Stock may be issued from time to time in one or more series. The Board is hereby authorized to provide, by resolution or resolutions from time to time, for the issuance, out of the unissued shares of Preferred Stock, of one or more series of Preferred Stock, without stockholder approval, by filing a certificate pursuant to the applicable law of the State of Delaware (the “ Preferred Stock Designation ”), setting forth such resolution and, with respect to each such series, establishing the number of shares to be included in such series, and fixing the voting powers, full or limited, or no voting power of the shares of such series, and the designation, preferences and relative, participating, optional or other special rights, if any, of the shares of each such series and any qualifications, limitations or restrictions thereof. The powers, designation, preferences and relative, participating, optional and other special rights of each series of Preferred Stock, and the qualifications, limitations and restrictions thereof, if any, may differ from those of any and all other series at any time outstanding. The authority of the Board with respect to each series of Preferred Stock shall include, but not be limited to, the determination of the following:

(a) the designation of the series, which may be by distinguishing number, letter or title;

(b) the number of shares of the series, which number the Board may thereafter (except where otherwise provided in the Preferred Stock Designation) increase or decrease (but not below the number of shares thereof then outstanding);

(c) the amounts or rates at which dividends will be payable on, and the preferences, if any, of shares of the series in respect of dividends, and whether such dividends, if any, shall be cumulative or noncumulative;

(d) the dates on which dividends, if any, shall be payable;

(e) the redemption rights and price or prices, if any, for shares of the series;

(f) the terms and amount of any sinking fund, if any, provided for the purchase or redemption of shares of the series;

(g) the amounts payable on, and the preferences, if any, of shares of the series in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the affairs of the Corporation;

(h) whether the shares of the series shall be convertible into or exchangeable for, shares of any other class or series, or any other security, of the Corporation or any other corporation, and, if so, the specification of such other class or series or such other security, the conversion or exchange price or prices or rate or rates, any adjustments thereof, the date or dates at which such shares shall be convertible or exchangeable and all other terms and conditions upon which such conversion or exchange may be made;

 

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(i) restrictions on the issuance of shares of the same series or any other class or series;

(j) the voting rights, if any, of the holders of shares of the series generally or upon specified events; and

(k) any other powers, preferences and relative, participating, optional or other special rights of each series of Preferred Stock, and any qualifications, limitations or restrictions of such shares,

all as may be determined from time to time by the Board and stated in the resolution or resolutions providing for the issuance of such Preferred Stock. Without limiting the generality of the foregoing, the resolutions providing for issuance of any series of Preferred Stock may provide that such series shall be superior or rank equally or be junior to any other series of Preferred Stock to the extent permitted by law. Any shares of Preferred Stock which may be redeemed, purchased or acquired by the Corporation may be reissued except as otherwise provided by law.

C. Reclassification .

1. Reclassification . Immediately upon the filing of this Certificate of Incorporation with the Secretary of State of the State of Delaware (the “ Effective Time ”), each share of common stock, par value $0.01 per share, of the Corporation (the “ Old Common Stock ”) issued and outstanding immediately prior to the Effective Time shall be automatically reclassified as and converted into one share of Class A Common Stock (the “ Reclassification ”).

2. Certificates . The Reclassification shall be deemed to occur at the Effective Time, regardless of when any certificate previously representing such shares of Old Common Stock (if such shares are held in certificated form) is physically surrendered to the Corporation in exchange for certificates representing Class A Common Stock. Each certificate outstanding immediately prior to the Effective Time representing shares of Old Common Stock shall, until surrendered to the Corporation in exchange for a certificate representing such shares of Class A Common Stock, automatically represent from and after the Effective Time the number of shares of Class A Common Stock prescribed by Article FOURTH, Section C.1 above.

3. Status . All shares of Class A Common Stock outstanding by operation of the Reclassification shall be duly and validly issued, fully paid and nonassessable and free from all taxes, liens and charges.

FIFTH : This Article FIFTH is inserted for the management of the business and for the conduct of the affairs of the Corporation.

A. General Powers . The business and affairs of the Corporation shall be managed by or under the direction of the Board, except as otherwise provided by law.

 

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B. Removal . Any director or the entire Board may be removed from office at any time, with or without cause, by the affirmative vote of the holders of shares representing at least a majority of the votes that would be entitled to be cast on such matter by the then-outstanding shares of all classes and series of capital stock of the Corporation at any annual or special meeting of stockholders, voting together as a single class.

C. Stockholder Nominations and Introduction of Business . Advance notice of stockholder nominations for election of directors and other business to be brought by stockholders before a meeting of stockholders shall be given in the manner provided by the by-laws of the Corporation (the “By-Laws”).

SIXTH : In furtherance and not in limitation of the power conferred by statute, the Board is expressly authorized to make, alter or repeal the By-laws subject to any limitations contained therein.

SEVENTH : No director of the Corporation shall be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

EIGHTH : Unless and except to the extent that the By-laws shall so require, the election of directors of the Corporation need not be by written ballot.

NINTH : The Corporation reserves the right to amend, alter, change or repeal any provisions contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by the DGCL. All rights conferred upon stockholders herein are granted subject to this reservation.

TENTH : The Corporation shall not be subject to the provisions of Section 203 of the DGCL.

ELEVENTH : Subject to the terms of any series of Preferred Stock, any action required or permitted to be taken by the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action to be taken, are signed by the holders of outstanding stock having at least the minimum number of votes necessary to authorize such action; provided , however , that, from and after the date that the Aggregate Ownership Interest of the PEG LP Entities represents less than 50% of the Common Stock of the Corporation then-outstanding, any action required or permitted to be taken by the stockholders of the Corporation must be effected at an annual or special meeting of the stockholders and may not be effected by written consent in lieu of a meeting.

TWELFTH : Special meetings of stockholders for any purpose or purposes may be called at any time by the Board, the Chairman of the Board or the Chief Executive Officer of the Corporation, or by the stockholders of the Corporation holding at least a majority of the total voting power of the then outstanding shares of capital stock of the Corporation; provided , however , that, from and after the date that the Aggregate Ownership Interest of the PEG LP Entities represents less than 50% of the Common Stock of the Corporation then-outstanding, special meetings of stockholders for any purpose or purposes may be called at any time by only the Board, the Chairman of the Board or the Chief Executive Officer of the Corporation, and may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purpose or purposes stated in the notice of meeting.

 

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THIRTEENTH : To the fullest extent permitted by applicable law, the Corporation renounces any interest or expectancy in, or in being offered an opportunity to participate in, any business opportunity that may be from time to time presented to Riverstone Holdings LLC or any of its respective officers, directors, agents, shareholders, members, partners, affiliates and subsidiaries (other than the Corporation and its subsidiaries) or business opportunities that such parties participate in or desire to participate in, even if the opportunity is one that the Corporation might reasonably have pursued or had the ability or desire to pursue if granted the opportunity to do so, and no such person shall be liable to the Corporation for breach of any fiduciary or other duty, as a director or controlling stockholder or otherwise, by reason of the fact that such person pursues or acquires any such business opportunity, directs any such business opportunity to another person or fails to present any such business opportunity, or information regarding any such business opportunity, to the Corporation, unless, in the case of any such person who is the Corporation’s director, any such business opportunity is expressly offered to such director in writing solely in his or her capacity as the Corporation’s director.

FOURTEENTH : Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by law, be the sole and exclusive forum for (1) any derivative action or proceeding brought on behalf of the Corporation, (2) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (3) any action asserting a claim arising pursuant to any provision of the DGCL, or (4) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article FOURTEENTH.

FIFTEENTH : Except as otherwise defined in this Certificate of Incorporation, the following terms shall have the meanings ascribed to them below:

A. “ Aggregate Ownership Interest ” means, with respect to the PEG LP Entities, the quotient, expressed as a percentage, obtained by dividing (a) the aggregate number of shares of Common Stock of the Corporation held or beneficially owned by the PEG LP Entities by (b) the aggregate number of outstanding shares of Common Stock of the Corporation.

B. “ beneficial ownership ” (or words or phrases of similar import) shall have the meaning given to such term in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended.

 

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C. “ Business Combination ” shall mean a take-over bid, tender offer, merger or similar business combination in respect of the Corporation.

D. “ Commercial Operation ” shall mean the date upon which the South Kent Project has achieved “Commercial Operation” under the South Kent Wind Project Power Purchase Agreement, dated August 2, 2011, between Ontario Power Authority and South Kent Wind LP.

E. “ Conversion Event ” shall mean the later of (i) December 31, 2014; and (ii) the date on which the South Kent Project has achieved Commercial Operation.

F. “ Corporation Affiliate ” shall mean (i) any person of which the Corporation is the beneficial owner (directly or indirectly) of 20% or more of the outstanding voting stock, voting power, partnership interests or similar voting interests or (ii) any other person that (directly or indirectly) is controlled by the Corporation.

G. “ person ” shall mean a natural person, corporation, partnership, limited liability company, unlimited liability company, joint venture, trust, association or legal entity of any kind; each reference to a “natural person” (or to a “record holder” of shares, if a natural person) shall be deemed to include in his or her representative capacity a guardian, committee, executor, administrator or other legal representative of such natural person or record holder.

H. “ PEG LP ” shall mean Pattern Energy Group LP, a Delaware limited partnership, any of its successors by way of merger or share exchange, any acquiror of all or substantially all of its assets and any person of which Pattern Energy Group LP becomes a subsidiary.

I. “ PEG LP Affiliate ” shall mean, other than the Corporation or any Corporation Affiliate, (i) any person of which PEG LP is the beneficial owner (directly or indirectly) of 20% or more of the outstanding voting stock, voting power, partnership interests or similar voting interests and (ii) any other person that (directly or indirectly) is controlled by PEG LP, controls PEG LP or is under common control with PEG LP.

J. “ PEG LP Employee ” shall mean any employee or officer of any of the PEG LP Entities.

K. “ PEG LP Entities ” shall mean, collectively, PEG LP and any PEG LP Affiliate.

L. “ South Kent Project ” shall mean the wind power project assets held by South Kent Wind LP, a limited partnership formed under the laws of the Province of Ontario, which upon commencement of commercial operations will have an owned capacity of 135 megawatts.

For purposes of the foregoing definitions, the term “control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.

 

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IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of Incorporation to be executed by the undersigned duly authorized officer this               day of September, 2013.

 

PATTERN ENERGY GROUP INC.
By:    
Name:  
Title:  

 

 

 

 

 

12

Exhibit 5.1

 

LOGO   53rd at Third

885 Third Avenue

New York, New York 10022-4834

Tel: +1.212.906.1200  Fax: +1.212.751.4864

www.lw.com

 

FIRM / AFFILIATE OFFICES

September 20, 2013

 

Pattern Energy Group Inc.

Pier 1, Bay 3

San Francisco, CA 94111

  Abu Dhabi

Barcelona

Beijing

Boston

Brussels

Chicago

Doha

Dubai

Düsseldorf

Frankfurt

Hamburg

Hong Kong

Houston

London

Los Angeles

Madrid

  Milan

Moscow

Munich

New Jersey

New York

Orange County

Paris

Riyadh

Rome

San Diego

San Francisco

Shanghai

Silicon Valley

Singapore

Tokyo

Washington, D.C.

Re: Registration Statement No. 333-190538; 18,400,000 shares of Class A Common Stock,

       par value $0.01 per share, of Pattern Energy Group Inc.

Ladies and Gentlemen:

We have acted as special counsel to Pattern Energy Group Inc., a Delaware corporation (the “Company”), in connection with the registration statement on Form S-1 filed by the Company with the Securities and Exchange Commission (the “Commission”) on August 9, 2013 (Registration No. 333-190538) (as amended, the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”). The Registration Statement relates to the registration of 18,400,000 shares of Class A common stock of the Company, par value $0.01 per share (the “Common Stock”), 16,000,000 shares of which are being offered by the Company (the “Company Shares”) and 2,400,000 shares of which may be purchased by the underwriters pursuant to an option to purchase additional shares granted to the underwriters by a stockholder of the Company (the “Selling Stockholder Shares” and, together with the Company Shares, the “Shares”). The term “Shares” includes any additional shares of common stock registered by the Company pursuant to Rule 462(b) under the Act in connection with the offering contemplated by the Registration Statement. This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or the related Prospectus (the “Prospectus”), other than as expressly stated herein with respect to the issue of the Shares.

As such counsel, we have examined such matters of fact, questions of law and documents, corporate records and other instruments as we have considered appropriate for purposes of this letter, including (i) the corporate and organizational documents of the Company, including the Amended and Restated Certificate of Incorporation of the Company (the “Amended and Restated Certificate”) to be filed with the Secretary of State of the State of Delaware prior to the sale of the Shares, (ii) the form of underwriting agreement filed as Exhibit 1.1 to the Registration Statement on September 5, 2013 and (iii) the form of contribution agreement filed as Exhibit 10.9 to the Registration Statement on September 3, 2013 that will become effective prior to the sale of the Shares. With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We are opining herein as to the General Corporation Law of the State of Delaware, and we express no opinion with respect to any other laws.

 

September 20, 2013

Page 2

 

LOGO

 

Subject to the foregoing and the other matters set forth herein, and upon the filing of the Amended and Restated Certificate with the Secretary of State of the State of Delaware, it is our opinion that, as of the date hereof:

 

  1. When the Company Shares have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the purchasers, and have been issued by the Company against payment therefor (not less than par value) in the circumstances contemplated by the form of underwriting agreement most recently filed as an exhibit to the Registration Statement, the issue and sale of the Company Shares will have been duly authorized by all necessary corporate action of the Company, and the Company Shares will be validly issued, fully paid and nonassessable. In rendering the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the General Corporation Law of the State of Delaware.

 

  2. The Selling Stockholder Shares have been duly authorized by all necessary corporate action of the Company, and when the Selling Stockholder Shares have been issued by the Company in the circumstances contemplated by the form of contribution agreement most recently filed as an exhibit to the Registration Statement, the Selling Stockholder Shares will be validly issued, fully paid and nonassessable.

This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act. We consent to your filing this opinion as an exhibit to the Registration Statement and to the reference to our firm in the Prospectus under the heading “Legal Matters.” We further consent to the incorporation by reference of this letter and consent into any registration statement filed pursuant to Rule 462(b) with respect to the Shares. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.

Very truly yours,

/s/ Latham & Watkins LLP

Exhibit 10.5

PATTERN ENERGY GROUP INC.

2013 EQUITY INCENTIVE AWARD PLAN

RESTRICTED STOCK GRANT NOTICE

Pattern Energy Group Inc., a Delaware corporation (the “ Company ”), pursuant to its 2013 Equity Incentive Award Plan, as amended from time to time (the “ Plan ”), hereby grants to the holder listed below (“ Participant ”) the number of shares of Restricted Stock (the “ Shares ”) set forth below. The Shares are subject to the terms and conditions set forth in this Restricted Stock Grant Notice (the “ Grant Notice ”) and the Restricted Stock Agreement attached hereto as Exhibit A (the “ Agreement ”) and the Plan, which are incorporated herein by reference. Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in the Grant Notice and the Agreement.

 

Participant:   
Grant Date:   
Total Number of Shares of Restricted Stock:   
Vesting Schedule:    To be specified in individual agreements

By his or her signature, and the Company’s signature below, Participant agrees to be bound by the terms and conditions of the Plan, the Agreement and the Grant Notice. Participant has reviewed the Agreement, the Plan and the Grant Notice in their entirety, has had an opportunity to obtain the advice of counsel prior to executing the Grant Notice and fully understands all provisions of the Grant Notice, the Agreement and the Plan. Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions arising under the Plan, the Grant Notice or the Agreement.

 

PATTERN ENERGY GROUP INC.     PARTICIPANT
By:         By:    
Print Name:         Print Name:    
Title:          
      Address:    
         

EXHIBIT A

TO RESTRICTED STOCK GRANT NOTICE

RESTRICTED STOCK AGREEMENT

Pursuant to the Grant Notice to which this Agreement is attached, the Company has granted to Participant the number of Shares set forth in the Grant Notice.

ARTICLE I.

GENERAL

1.1 Defined Terms . Capitalized terms not specifically defined herein shall have the meanings specified in the Plan or the Grant Notice.

1.2 Incorporation of Terms of Plan . The Shares issued to Participant pursuant to the Grant Notice are subject to the terms and conditions set forth in this Agreement and the Plan, which is incorporated herein by reference. In the event of any inconsistency between the Plan and this Agreement, the terms of the Plan shall control.

ARTICLE II.

ISSUANCE OF SHARES

2.1 Issuance of Shares . In consideration of Participant’s past and/or continued employment with or service to the Company or a Subsidiary and for other good and valuable consideration, effective as of the grant date set forth in the Grant Notice (the “ Grant Date ”), the Company has granted to Participant the number of Shares set forth in the Grant Notice, upon the terms and conditions set forth in the Grant Notice, this Agreement and the Plan.

2.2 Issuance Mechanics . As of the Grant Date, the Company shall issue the Shares in the form of Common Stock (“ Stock ”) to Participant and shall (a) cause a stock certificate or certificates representing such shares of Stock to be registered in the name of Participant, or (b) cause such shares of Stock to be held in book-entry form. If a stock certificate is issued, it shall be delivered to and held in custody by the Company and shall bear the restrictive legends required by Section 5.1. If the shares of Stock are held in book-entry form, then such entry will reflect that the shares are subject to the restrictions of this Agreement.

ARTICLE III.

FORFEITURE AND TRANSFER RESTRICTIONS

3.1 Forfeiture Restriction . Subject to the provisions of Section 3.2 below, in the event of Participant’s Termination of Service for any reason, including as a result of Participant’s death or disability, all of the Unreleased Shares (as defined below) shall thereupon be forfeited immediately and without any further action by the Company (the “ Forfeiture Restriction ”), except as otherwise provided in a written agreement between Participant and the Company. Upon the occurrence of such forfeiture, the Company shall become the legal and beneficial owner of the Unreleased Shares and all rights and interests therein or relating thereto, and the Company shall have the right to retain and transfer to its own name the number of Unreleased Shares being forfeited by Participant. The Unreleased Shares shall be held by the Company in accordance with Section 3.3 until the Shares are forfeited as provided in this Section 3.1, until such Unreleased Shares are fully released from the Forfeiture Restriction as provided in Section 3.2 or until such time as this Agreement is no longer in effect. Participant hereby authorizes and directs the Secretary of the Company, or such other person designated by the Administrator, to transfer any Unreleased Shares that are forfeited pursuant to this Section 3.1 from Participant to the Company.

 

A-1

3.2 Release of Shares from Forfeiture Restriction . The Shares shall be released from the Forfeiture Restriction in accordance with the vesting schedule set forth in the Grant Notice. Any of the Shares which, from time to time, have not yet been released from the Forfeiture Restriction are referred to herein as “ Unreleased Shares .” In the event any of the Unreleased Shares are released from the Forfeiture Restriction, any Retained Distributions (as defined below) paid on such Unreleased Shares shall be promptly paid by the Company to Participant. As soon as administratively practicable following the release of any Shares from the Forfeiture Restriction, the Company shall, as applicable, either deliver to Participant the certificate or certificates representing such Shares in the Company’s possession belonging to Participant, or, if the Shares are held in book-entry form, then the Company shall remove the notations indicating that the shares are subject to the restrictions of this Agreement. Participant (or the beneficiary or personal representative of Participant in the event of Participant’s death or incapacity, as the case may be) shall deliver to the Company any representations or other documents or assurances as the Company or its representatives deem necessary or advisable in connection with any such delivery.

 

3.3 Escrow .

(a) The Unreleased Shares shall be held by the Company until such Unreleased Shares are forfeited as provided in Section 3.1, until such Unreleased Shares are fully released from the Forfeiture Restriction as provided in Section 3.2 or until such time as this Agreement is no longer in effect. Participant shall not retain physical custody of any certificates representing Unreleased Shares issued to Participant. Participant, by acceptance of this Award, shall be deemed to appoint, and does so appoint, the Company and each of its authorized representatives as Participant’s attorney(s)-in-fact to effect any transfer of forfeited Unreleased Shares (and Retained Distributions, if any, paid on such forfeited Unreleased Shares) to the Company as may be required pursuant to the Plan or this Agreement, and to execute such representations or other documents or assurances as the Company or such representatives deem necessary or advisable in connection with any such transfer. To the extent allowable by Applicable Law, the Company, or its designee, shall not be liable for any act it may do or omit to do with respect to holding the Shares in escrow and while acting in good faith and in the exercise of its judgment.

(b) The Company will retain custody of all cash dividends and other distributions (“ Retained Distributions ”) made or declared with respect to Unreleased Shares (and such Retained Distributions will be subject to the Forfeiture Restriction and the other terms and conditions under this Agreement that are applicable to the Shares) until such time, if ever, as the Unreleased Shares with respect to which such Retained Distributions shall have been made, paid or declared shall have become vested pursuant to the Grant Notice. Retained Distributions that were made or declared in cash will be retained by the Company in a bookkeeping account until the Unreleased Shares with respect to which such Retained Distributions relate shall have become vested pursuant to the Grant Notice, at which time the Company shall release to Participant the amount retained in the Participant’s bookkeeping account, without interest, as cash. Any Retained Distributions with respect to Unreleased Shares shall be forfeited in the event such Unreleased Shares are forfeited.

3.4 Rights as Stockholder . Except as otherwise provided herein, upon issuance of the Shares by the Company, Participant shall have all the rights of a stockholder with respect to said Shares, subject to the restrictions herein, including the right to vote the Shares and to receive all dividends or other distributions paid or made with respect to the Shares.

 

A-2

ARTICLE IV.

TAXATION AND TAX WITHHOLDING

4.1 Representation . Participant represents to the Company that Participant has reviewed with his or her own tax advisors the federal, state, local and foreign tax consequences of this investment and the transactions contemplated by this Agreement. Participant is relying solely on such advisors and not on any statements or representations of the Company or any of its agents. Participant is ultimately liable and responsible for all taxes owed in connection with this investment and the transactions contemplated by this Agreement, regardless of any action the Company or any Subsidiary takes with respect to any tax withholding obligations that arise in connection with the Shares. Neither the Company nor any Subsidiary makes any representation or undertaking regarding the treatment of any tax withholding in connection with the Shares or the Participant’s sale of shares of Stock. The Company and the Subsidiaries do not commit and are under no obligation to structure this investment or the transactions contemplated by this Agreement to reduce or eliminate Participant’s tax liability.

4.2 Section 83(b) Election . If Participant makes an election under Section 83(b) of the Internal Revenue Code of 1986, as amended (the “ Code ”), to be taxed with respect to the Shares as of the date of transfer of the Shares rather than as of the date or dates upon which Participant would otherwise be taxable under Section 83(a) of the Code, Participant shall deliver a copy of such election to the Company promptly upon filing such election with the Internal Revenue Service.

4.3 Tax Withholding . Notwithstanding any other provision of this Agreement:

(a) The Company and its Subsidiaries have the authority to deduct or withhold, or require Participant to remit to the Company or the applicable Subsidiary, an amount sufficient to satisfy applicable federal, state, local and foreign taxes (including the employee portion of any FICA obligation) required by law to be withheld with respect to any taxable event arising pursuant to this Agreement. The Company and its Subsidiaries may withhold or Participant may make such payment in one or more of the forms specified below:

(i) by cash or check made payable to the Company or the Subsidiary with respect to which the withholding obligation arises;

(ii) by the deduction of such amount from other compensation payable to Participant;

(iii) with respect to any withholding taxes arising in connection with the vesting of the Shares, with the consent of the Administrator, by requesting that the Company and its Subsidiaries withhold a net number of vested Shares having a then current Fair Market Value not exceeding the amount necessary to satisfy the withholding obligation of the Company and its Subsidiaries based on the minimum applicable statutory withholding rates for federal, state, local and foreign income tax and payroll tax purposes;

(iv) with respect to any withholding taxes arising in connection with the vesting of the Shares, with the consent of the Administrator, by tendering to the Company vested shares of Stock having a then current Fair Market Value not exceeding the amount necessary to satisfy the withholding obligation of the Company and its Subsidiaries based on the minimum applicable statutory withholding rates for federal, state, local and foreign income tax and payroll tax purposes;

 

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(v) with respect to any withholding taxes arising in connection with the vesting of the Shares, through the delivery of a notice that Participant has placed a market sell order with a broker acceptable to the Company with respect to those Shares that are then becoming vested and that the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the Company or the Subsidiary with respect to which the withholding obligation arises in satisfaction of such withholding taxes; provided that payment of such proceeds is then made to the Company or the applicable Subsidiary at such time as may be required by the Administrator, but in any event not later the settlement of such sale; or

(vi) in any combination of the foregoing.

(b) With respect to any withholding taxes arising in connection with the Shares, in the event Participant fails to provide timely payment of all sums required pursuant to Section 4.3(a), the Company shall have the right and option, but not the obligation, to treat such failure as an election by Participant to satisfy all or any portion of Participant’s required payment obligation pursuant to Section 4.3(a)(ii) or Section 4.3(a)(iii) above, or any combination of the foregoing as the Company may determine to be appropriate. The Company shall not be obligated to deliver any certificate representing the Shares to Participant or his or her legal representative unless and until Participant or his or her legal representative shall have paid or otherwise satisfied in full the amount of all federal, state, local and foreign taxes applicable with respect to the taxable income of Participant resulting from the vesting of the Shares or any other taxable event related to the Shares.

(c) In the event any tax withholding obligation arising in connection with the Shares will be satisfied under Section 4.3(a)(iii), then the Company may elect to instruct any brokerage firm determined acceptable to the Company for such purpose to sell on Participant’s behalf a whole number of shares of Stock from those Shares that are then becoming vested as the Company determines to be appropriate to generate cash proceeds sufficient to satisfy the tax withholding obligation and to remit the proceeds of such sale to the Company or the Subsidiary with respect to which the withholding obligation arises. Participant’s acceptance of this Award constitutes Participant’s instruction and authorization to the Company and such brokerage firm to complete the transactions described in this Section 4.3(c), including the transactions described in the previous sentence, as applicable. The Company may refuse to deliver any certificate representing the Shares to Participant or his or her legal representative until the foregoing tax withholding obligations are satisfied.

(d) Participant is ultimately liable and responsible for all taxes owed in connection with the Shares, regardless of any action the Company or any Subsidiary takes with respect to any tax withholding obligations that arise in connection with the Shares. Neither the Company nor any Subsidiary makes any representation or undertaking regarding the treatment of any tax withholding in connection with the awarding, vesting or payment of the Shares or the subsequent sale of the Shares. The Company and the Subsidiaries do not commit and are under no obligation to structure this Award to reduce or eliminate Participant’s tax liability.

ARTICLE V.

RESTRICTIVE LEGENDS AND STOP-TRANSFER ORDERS

5.1 Legends . The certificate or certificates representing the Shares, if any, shall bear the following legend (as well as any legends required by the Company’s charter and Applicable Law):

 

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THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO FORFEITURE IN FAVOR OF THE COMPANY AND MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF A RESTRICTED STOCK AGREEMENT BETWEEN THE COMPANY AND THE STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.

5.2 Refusal to Transfer; Stop-Transfer Notices . The Company shall not be required (a) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Agreement or (b) to treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares shall have been so transferred. Participant agrees that, in order to ensure compliance with the restrictions referred to herein, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.

5.3 Removal of Legend . After such time as the Forfeiture Restriction shall have lapsed with respect to the Shares, and upon Participant’s request, a new certificate or certificates representing such Shares shall be issued without the legend referred to in Section 5.1 and delivered to Participant. If the Shares are held in book entry form, the Company shall cause any restrictions noted on the book form to be removed.

ARTICLE VI.

OTHER PROVISIONS

6.1 Administration . The Administrator shall have the power to interpret the Plan, the Grant Notice and this Agreement and to adopt such rules for the administration, interpretation and application of the Plan, the Grant Notice and this Agreement as are consistent therewith and to interpret, amend or revoke any such rules. All actions taken and all interpretations and determinations made by the Administrator will be final and binding upon Participant, the Company and all other interested persons. To the extent allowable pursuant to Applicable Law, no member of the Committee or the Board will be personally liable for any action, determination or interpretation made with respect to the Plan, the Grant Notice or this Agreement.

6.2 Shares Not Transferable . The Shares and Retained Distributions may not be sold, pledged, assigned or transferred in any manner unless and until the Forfeiture Restrictions have lapsed. No Unreleased Shares or Retained Distributions or any interest or right therein or part thereof shall be liable for the debts, contracts or engagements of Participant or his or her successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means whether such disposition be voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null and void and of no effect.

6.3 Adjustments . The Administrator may accelerate the vesting of all or a portion of the Unreleased Shares in such circumstances as it, in its sole discretion, may determine. Participant acknowledges that the Shares are subject to adjustment, modification and termination in certain events as provided in this Agreement and Section 12.2 of the Plan.

 

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6.4 Notices . Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of the Secretary of the Company at the Company’s principal office, and any notice to be given to Participant shall be addressed to Participant at Participant’s last address reflected on the Company’s records. By a notice given pursuant to this Section 6.4, either party may hereafter designate a different address for notices to be given to that party. Any notice shall be deemed duly given when sent via email or when sent by certified mail (return receipt requested) and deposited (with postage prepaid) in a post office or branch post office regularly maintained by the United States Postal Service.

6.5 Titles . Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Agreement.

6.6 Governing Law . The laws of the State of Delaware shall govern the interpretation, validity, administration, enforcement and performance of the terms of this Agreement regardless of the law that might be applied under principles of conflicts of laws.

6.7 Conformity to Securities Laws . Participant acknowledges that the Plan, the Grant Notice and this Agreement are intended to conform to the extent necessary with all Applicable Law, including, without limitation, the provisions of the Securities Act and the Exchange Act, and any and all regulations and rules promulgated thereunder by the Securities and Exchange Commission, and state securities laws and regulations. Notwithstanding anything herein to the contrary, the Plan shall be administered, and the Shares are granted, only in such a manner as to conform to Applicable Law. To the extent permitted by Applicable Law, the Plan and this Agreement shall be deemed amended to the extent necessary to conform to Applicable Law.

6.8 Amendment, Suspension and Termination . To the extent permitted by the Plan, this Agreement may be wholly or partially amended or otherwise modified, suspended or terminated at any time or from time to time by the Administrator or the Board , provided that, except as may otherwise be provided by the Plan, no amendment, modification, suspension or termination of this Agreement shall adversely affect the Shares in any material way without the prior written consent of Participant.

6.9 Successors and Assigns . The Company may assign any of its rights under this Agreement to single or multiple assignees, and this Agreement shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set forth in Section 6.2 and the Plan, this Agreement shall be binding upon and inure to the benefit of the heirs, legatees, legal representatives, successors and assigns of the parties hereto.

6.10 Limitations Applicable to Section 16 Persons . Notwithstanding any other provision of the Plan or this Agreement, if Participant is subject to Section 16 of the Exchange Act, the Plan, the Shares, the Grant Notice and this Agreement shall be subject to any additional limitations set forth in any applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule 16b-3 of the Exchange Act) that are requirements for the application of such exemptive rule. To the extent permitted by Applicable Law, this Agreement shall be deemed amended to the extent necessary to conform to such applicable exemptive rule.

6.11 Not a Contract of Employment . Nothing in this Agreement or in the Plan shall confer upon Participant any right to continue to serve as an employee or other service provider of the Company or any Subsidiary or shall interfere with or restrict in any way the rights of the Company and its Subsidiaries, which rights are hereby expressly reserved, to discharge or terminate the services of Participant at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between the Company or a Subsidiary and Participant.

 

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6.12 Entire Agreement . The Plan, the Grant Notice and this Agreement (including any exhibit hereto) constitute the entire agreement of the parties and supersede in their entirety all prior undertakings and agreements of the Company and Participant with respect to the subject matter hereof.

6.13 Section 409A . This Award is not intended to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code (together with any Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued after the date hereof, “ Section 409A ”). However, notwithstanding any other provision of the Plan, the Grant Notice or this Agreement, if at any time the Administrator determines that this Award (or any portion thereof) may be subject to Section 409A, the Administrator shall have the right in its sole discretion (without any obligation to do so or to indemnify Participant or any other person for failure to do so) to adopt such amendments to the Plan, the Grant Notice or this Agreement, or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, as the Administrator determines are necessary or appropriate for this Award either to be exempt from the application of Section 409A or to comply with the requirements of Section 409A.

6.14 Agreement Severable . In the event that any provision of the Grant Notice or this Agreement is held invalid or unenforceable, such provision will be severable from, and such invalidity or unenforceability will not be construed to have any effect on, the remaining provisions of the Grant Notice or this Agreement.

6.15 Limitation on Participant’s Rights . Participation in the Plan confers no rights or interests other than as herein provided. This Agreement creates only a contractual obligation on the part of the Company as to amounts payable and shall not be construed as creating a trust. Neither the Plan nor any underlying program, in and of itself, has any assets. Participant shall have only the rights of a general unsecured creditor of the Company with respect to amounts credited and benefits payable, if any, with respect to the Award.

6.16 Counterparts . The Grant Notice may be executed in one or more counterparts, including by way of any electronic signature, subject to Applicable Law, each of which shall be deemed an original and all of which together shall constitute one instrument.

6.17 Lock-Up . The Participant shall agree, if so requested by the Company and any underwriter in connection with any public offering of securities of the Company, not to directly or indirectly offer, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of or otherwise dispose of or transfer any shares of Common Stock held by him or her for such period, not to exceed one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with such public offering, as such underwriter shall specify reasonably and in good faith. The Company may impose stop-transfer instructions with respect to securities subject to the foregoing restrictions until the end of such 180-day period.

6.18 Broker-Assisted Sales . In the event of any broker-assisted sale of shares of Stock in connection with the payment of withholding taxes as provided in Section 4.3(a)(iii) or Section 4.3(a)(v): (A) any shares of Stock to be sold through a broker-assisted sale will be sold on the day the tax withholding obligation arises or as soon thereafter as practicable; (B) such shares of Stock may be sold as part of a block trade with other participants in the Plan in which all participants receive an average price; (C) Participant will be responsible for all broker’s fees and other costs of sale, and Participant agrees to indemnify and hold the Company harmless from any losses, costs, damages, or expenses relating to any such sale; (D) to the extent the proceeds of such sale exceed the applicable tax withholding obligation, the

 

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Company agrees to pay such excess in cash to Participant as soon as reasonably practicable; (E) Participant acknowledges that the Company or its designee is under no obligation to arrange for such sale at any particular price, and that the proceeds of any such sale may not be sufficient to satisfy the applicable tax withholding obligation; and (F) in the event the proceeds of such sale are insufficient to satisfy the applicable tax withholding obligation, Participant agrees to pay immediately upon demand to the Company or its Subsidiary with respect to which the withholding obligation arises an amount in cash sufficient to satisfy any remaining portion of the Company’s or the applicable Subsidiary’s withholding obligation.

***

 

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