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): April 7, 2021

 

RICE ACQUISITION CORP.

(Exact name of registrant as specified in its charter)

 

Delaware   001-39644   85-2867266
(State or other jurisdiction of
incorporation or organization)
  (Commission File Number)   (I.R.S. Employer
Identification Number)

 

102 East Main Street, Second Story

Carnegie, Pennsylvania

  15106
(Address of principal executive offices)   (Zip Code)

 

Registrant’s telephone number, including area code: (713) 446-6259

 

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:

 

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:

 

Title of each class   Trading
Symbol(s)
  Name of each exchange
on which registered
Units, each consisting of one share of Class A common stock, $0.0001 par value, and one-half of one warrant   RICE U   The New York Stock Exchange
Class A common stock, par value $0.0001 per share   RICE   The New York Stock Exchange
Warrants exercisable for one share of Class A common stock at an exercise price of $11.50 per share   RICE WS   The New York Stock Exchange

 

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  ☒

 

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.

 

The Business Combinations

 

On April 7, 2021, Rice Acquisition Corp., a Delaware corporation (“RAC”), entered into (i) the Business Combination Agreement (as may be amended, supplemented or otherwise modified from time to time, the “Aria Merger Agreement”), by and among RAC, Rice Acquisition Holdings LLC, a Delaware limited liability company and direct subsidiary of RAC (“RAC OpCo”), LFG Intermediate Co, LLC, a Delaware limited liability company and direct subsidiary of RAC OpCo (“RAC Intermediate”), LFG Buyer Co, LLC, a Delaware limited liability company and a direct subsidiary of RAC Intermediate (“RAC Buyer”), Inigo Merger Sub, LLC, a Delaware limited liability company and a direct subsidiary of RAC Buyer (“Aria Merger Sub”), Aria Energy LLC, a Delaware limited liability company (“Aria”), and the Equityholder Representative (as defined therein), pursuant to which, among other things, Aria Merger Sub will merge with and into Aria, with Aria surviving the merger and becoming a direct subsidiary of RAC Buyer, and (ii) the Business Combination Agreement, dated as of April 7, 2021 (as may be amended, supplemented or otherwise modified from time to time, the “Archaea Merger Agreement” and, together with the Aria Merger Agreement, the “Business Combination Agreements”), by and among RAC, RAC OpCo, RAC Intermediate, RAC Buyer, Fezzik Merger Sub, LLC, a Delaware limited liability company and direct subsidiary of RAC Buyer (“Archaea Merger Sub”), Archaea Energy LLC (“Archaea Seller”), a Delaware limited liability company, and Archaea Energy II LLC, a Delaware limited liability company (“Archaea” and, together with Archaea Seller and Aria, the “Companies”), pursuant to which, among other things, Archaea Merger Sub will merge with and into Archaea, with Archaea surviving the merger and becoming a direct subsidiary of RAC Buyer, in each case, on the terms and subject to the conditions therein (the transactions contemplated by the Business Combination Agreements, the “Business Combinations”).

 

Consideration

 

Pursuant to the terms of the Aria Merger Agreement and at the Effective Time (as defined therein), (i) all Class A Units of Aria held by a holder of Aria’s Class A Units shall be cancelled and converted into the right to receive (a) the number of Class A Units of RAC OpCo, (b) the number of shares of Class B common stock, par value $0.0001 (“Class B Common Stock”), of RAC and (c) the amount of cash as set forth in, and in accordance with, the Aria Merger Agreement, (ii) all Class B Units of Aria held by a holder of Aria’s Class B Units shall be cancelled and converted into the right to receive (A) the number of Class A Units of RAC OpCo, (B) the number of shares of Class B Common Stock and (C) the amount of cash as set forth in, and in accordance with, the Aria Merger Agreement, and (iii) all Class C Units of Aria shall be cancelled and extinguished without any conversion thereof.

 

Pursuant to the terms of the Archaea Merger Agreement and at the Effective Time (as defined therein), all equity interests of Archaea will be cancelled and converted into the right to receive (x) the number of Class A Units of RAC OpCo and (y) the number of shares of Class B Common Stock as set forth in, and in accordance with, the Archaea Merger Agreement.

 

Following the Business Combinations, holders of Class A Units of RAC OpCo (other than RAC) will have the right (an “exchange right”), subject to certain limitations, to exchange Class A Units of RAC OpCo (and a corresponding number of shares of Class B Common Stock) for, at RAC’s option, (i) shares of Class A Common Stock, par value $0.0001 per share (“Class A Common Stock”), of RAC on a one-for-one basis, subject to adjustment for stock splits, stock dividends, reorganizations, recapitalizations and the like, or (ii) a corresponding amount of cash. RAC’s decision to make a cash payment or issue shares upon an exercise of an exchange right will be made by RAC’s independent directors, and such decision will be based on facts in existence at the time of the decision, which RAC expects would include the relative value of the Class A Common Stock (including trading prices for the Class A Common Stock at the time), the cash purchase price, the availability of other sources of liquidity (such as an issuance of preferred stock) to acquire the Class A Units of RAC OpCo and alternative uses for such cash.

 

Holders of Class A Units of RAC OpCo (other than RAC) will generally be permitted to exercise the exchange right on a quarterly basis, subject to certain de minimis allowances. In addition, additional exchanges may occur in connection with certain specified events, and any exchanges involving more than a specified number of Class A Units of RAC OpCo (subject to RAC’s discretion to permit exchanges of a lower number of units) may occur at any time upon ten business days’ advanced notice. The exchange rights will be subject to certain limitations and restrictions intended to reduce the administrative burden of exchanges upon RAC and ensure that RAC OpCo will continue to be treated as a partnership for U.S. federal income tax purposes.

 

1

 

 

Following any exchange of Class A Units of RAC OpCo (and a corresponding number of shares of Class B Common Stock), RAC will retain the Class A Units of RAC OpCo and cancel the shares of Class B Common Stock. As the holders of Class A Units of RAC OpCo (other than RAC) exchange their Class A Units of RAC OpCo, RAC’s membership interest in RAC OpCo will be correspondingly increased, the number of shares of Class A Common Stock outstanding will be increased, and the number of shares of Class B Common Stock outstanding will be reduced.

 

Representations and Warranties

 

The Business Combination Agreements contain 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 Business Combination Agreements, (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 of the Business Combinations.

 

Covenants

 

The Business Combination Agreements include covenants of the Companies with respect to operation of the businesses prior to consummation of the Business Combinations. The Business Combination Agreements also contain additional covenants of the parties, including, among others, those relating to (a) 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 PIPE Financing (as defined below) and (c) the preparation and filing of a proxy statement of RAC relating to the Business Combinations (the “Proxy Statement”).

 

The Business Combination Agreements also contain exclusivity provisions prohibiting (a) the Companies and their subsidiaries and affiliates from initiating, soliciting, entertaining or otherwise encouraging a Competing Transaction (as defined in the Business Combination Agreements) (subject to limited exceptions specified therein) or entering into any contracts or agreements in connection therewith and (b) RAC from initiating, soliciting, entertaining or otherwise encouraging a Buyer Competing Transaction (as defined in the Business Combination Agreements) (subject to limited exceptions therein) or entering into any contracts or agreements in connection therewith.

 

Conditions to Consummation of the Business Combinations

 

Consummation of the Business Combinations is generally subject to customary conditions of the respective parties, and conditions customary to special purpose acquisition companies, including (i) expiration or termination of all applicable waiting periods under HSR, (ii) the absence of any law or governmental order, threatened or pending, preventing the consummation of the Business Combinations, (iii) completion of the RAC Share Redemptions (as defined in the Business Combination Agreements), (iv) receipt of requisite shareholder approval for consummation of the Business Combinations, (v) the consummation of the LES Sale (as defined in the Aria Merger Agreement) by Aria and (vi) the issuance by the Federal Energy Regulatory Commission of an order granting authorization for the Business Combinations pursuant to Section 203 of the Federal Power Act of 1935. In addition, the parties have the right to not consummate the Business Combinations in the event that the cash on the balance sheet of the combined company following the closing of the Business Combinations (the “Combined Company”) would be less than $150,000,000, subject to the terms of the Business Combination Agreements. Furthermore, the closing of the transactions contemplated by the Aria Merger Agreement is expressly conditioned on the closing of the transactions contemplated by the Archaea Merger Agreement and vice versa.

 

Termination

 

Each of the Business Combination Agreements may be terminated by the parties thereto under certain customary and limited circumstances at any time prior to the closing of the Business Combinations, including, without limitation, by mutual written consent or if the Business Combinations have not been consummated within 150 days from the date of the Business Combination Agreements (subject to certain extensions for up to 30 days for delays as set forth in the Business Combination Agreements).

 

2

 

 

A copy of each of the Aria Merger Agreement and the Archaea Merger Agreement is filed with this Current Report on Form 8-K as Exhibit 2.1 and Exhibit 2.2, respectively, and each is incorporated herein by reference. The foregoing description of the Business Combination Agreements and the Business Combinations is not complete and is subject to, and qualified in its entirety by, reference to the actual agreements. The Business Combination Agreements contain representations, warranties and covenants that the respective parties made to each other as of the date of the Business Combination Agreements 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. They are not intended to provide any other factual information about the parties to the Business Combination Agreements. In particular, the assertions embodied in the representations and warranties in the Business Combination Agreements 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 Business Combination Agreements, 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 Business Combination Agreements are not necessarily characterizations of the actual state of facts about RAC, the Companies or the other parties at the time they were made or otherwise and should only be read in conjunction with the other information that RAC makes publicly available in reports, statements and other documents filed with the U.S. Securities and Exchange Commission (the “SEC”).

 

Stockholders Agreement

 

In connection with the closing of the Business Combinations, RAC, RAC Buyer, RAC OpCo, Rice Acquisition Sponsor LLC, a Delaware limited liability company (“Sponsor”), and certain other individuals affiliated with the Companies (the “Company Holders”) will enter into a stockholders agreement (the “Stockholders Agreement”), which provides that, among other things, (i) the board of directors of the Combined Company (the “Board”) will consist of seven members, (ii) the holders of a majority of the Company Interests (as defined in the Stockholders Agreement) held by the RAC Sponsor Holders (as defined in the Stockholders Agreement) will have the right to designate two directors (the “RAC Sponsor Directors”) for appointment or election to the Board during the term of the Stockholders Agreement, (iii) the Ares Investor (as defined in the Stockholders Agreement) will have the right to designate one director (the “Ares Director”) for appointment or election to the Board for so long as the Ares Investor hold at least 50% of the Registrable Securities (as defined in the Stockholders Agreement) held by it on the date that the Business Combinations are consummated, (iv) the Board shall take all necessary action to designate the person then serving as the Chief Executive Officer of the Combined Company (the “CEO Director”) for appointment or election to the Board during the term of the Stockholders Agreement and (v) the Board shall designate three independent directors (the “Independent Directors”) to serve on the Board during the term of the Stockholders Agreement. The Ares Investor shall also have the right to consult on the persons to be designated as Independent Directors for so long as the Ares Investor hold at least 50% of the Registrable Securities held by it on the date that the Business Combinations are consummated.

 

Additionally, pursuant to the terms of the Stockholders Agreement, the Company Holders will be granted certain customary registration rights. Also, the Company Holders will agree not to effect any sale or distribution of certain RAC equity securities received in connection with the Business Combinations during the lock-up period described therein.

 

The form of Stockholders Agreement is included as Exhibit C in each of the Business Combination Agreements filed with this Current Report on Form 8-K and is incorporated herein by reference, and the foregoing description of the form of Stockholders Agreement is not complete and is subject to, and qualified in its entirety by, reference thereto. The Stockholders Agreement ultimately entered into in connection with the Business Combinations may differ from such form and may include such changes as are negotiated between the parties thereto.

 

3

 

 

PIPE Financing

 

On April 7, 2021, RAC 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 Rice has agreed to issue and sell to the PIPE Investors, an aggregate of 30,000,000 shares of Class A Common Stock for an aggregate purchase price of $300,000,000, on the terms and subject to the conditions set forth therein (the “PIPE Financing”). Each Subscription Agreement contains customary representations and warranties of RAC, on the one hand, and the PIPE Investor, on the other hand, and customary conditions to closing, including the substantially concurrent consummation of the Business Combinations. The form of the Subscription Agreement is attached as Exhibit 10.1 hereto and is incorporated herein by reference. The foregoing description of the Subscription Agreements is not complete and is subject to, and qualified in its entirety by, reference to the form filed herewith.

 

Additionally, on April 7, 2021, RAC, RAC OpCo, Sponsor and Atlas Point Energy Infrastructure Fund, LLC, a Delaware limited liability company (“Atlas”), entered into an Amendment to Forward Purchase Agreement (the “FPA Amendment”) pursuant to which the Forward Purchase Agreement, dated as of September 30, 2020 (the “Original Agreement”), by and among such parties was amended to provide that Atlas shall purchase a total of $20,000,000 of Forward Purchase Securities (as defined in the Original Agreement) and the Forward Purchase Warrants (as defined in the Original Agreement) will consist of one-eighth of one redeemable warrant (where each whole redeemable warrant is exercisable to purchase one share of Class A Common Stock at an exercise price of $11.50 per share).

 

Item 3.02 Unregistered Sales of Equity Securities.

 

The Class A Units of RAC OpCo and the shares of Class B Common Stock to be issued pursuant to the Business Combination Agreements as well as the shares of Class A 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”), and will be issued in reliance on the exemption from registration requirements thereof provided by Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder as a transaction by an issuer not involving a public offering. The disclosure set forth above in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.02.

 

Item 7.01 Regulation FD Disclosure.

 

On April 7, 2021, RAC and the Companies issued a press release announcing the execution of the Business Combination Agreements and the Subscription Agreements. The press release is furnished hereto as Exhibit 99.1 to this Current Report on Form 8-K.

 

Also on April 7, 2021, RAC posted an investor presentation relating to the Business Combinations on its website at https://ricespac.com. This presentation is furnished as Exhibit 99.2 to this Current Report. A substantially similar presentation was also used by RAC in connection with the PIPE Financing. In addition, RAC posted a recorded presentation from management discussing the Business Combinations on its website at https://ricespac.com. A transcript of this presentation is furnished as Exhibit 99.3 to this Current Report on Form 8-K. Notwithstanding the foregoing, information contained on RAC’s website and the websites of the Companies or any of their affiliates referenced in Exhibit 99.1, 99.2 or 99.3 or linked therein or otherwise connected thereto does not constitute part of, nor is it incorporated by reference into, this Current Report on Form 8-K.

 

Forward Looking Statements

 

This Current Report on Form 8-K includes “forward looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of words such as “may,” “might,” “will,” “would,” “could,” “should,” “forecast,” “intend,” “seek,” “target,” “anticipate,” “believe,” “expect,” “estimate,” “plan,” “outlook,” and “project” and other similar expressions, although not all forward looking statements contain such identifying words. All statements other than historical facts are forward looking statements. Such statements include, but are not limited to, statements concerning the Business Combination; the PIPE Financing; market conditions and trends; earnings, performance, strategies, prospects and other aspects of the businesses of RAC, the Companies and the Combined Company. Forward looking statements are based on RAC’s current expectations, estimates, projections, targets, opinions and/or beliefs, and such statements involve known and unknown risks, uncertainties and other factors.

 

4

 

 

The risks and uncertainties that could cause those actual results to differ materially from those expressed or implied by these forward looking statements include, but are not limited to: (a) the occurrence of any event, change or other circumstances that could give rise to the termination of the proposed Business Combinations and any transactions contemplated thereby; (b) the ability to complete the proposed Business Combinations, the PIPE Financing and other transactions contemplated by the Business Combination Agreements due to the failure to obtain approval of the stockholders of RAC or other conditions to closing of the proposed Business Combinations; (c) the ability to meet the New York Stock Exchange’s listing standards following the consummation of the transactions contemplated by the Business Combination Agreements; (d) the risk that the proposed transactions disrupt current plans and operations of the Companies as a result of the announcement and consummation of the proposed Business Combinations; (e) the ability to recognize the anticipated benefits of the proposed Business Combinations, which may be affected by, among other things, competition, the ability of the Combined Company to grow and manage growth profitably and retain its management and key employees; (f) costs related to the proposed Business Combinations and related transactions; (g) the possibility that either of the Companies may be adversely affected by other economic, business and/or competitive factors; (h) the Combined Company’s ability to develop and operate new projects; (i) the reduction or elimination of government economic incentives to the renewable energy market; (j) delays in acquisition, financing, construction and development of new projects; (k) the length of development cycles for new projects, including the design and construction processes for the Combined Company’s projects; (l) the Combined Company’s ability to identify suitable locations for new projects; (m) the Combined Company’s dependence on landfill operators; (n) existing regulations and changes to regulations and policies that effect the Combined Company’s operations; (o) decline in public acceptance and support of renewable energy development and projects; (p) sustained demand for renewable energy; (q) impacts of climate change, changing weather patterns and conditions, and natural disasters; (r) the ability to secure necessary governmental and regulatory approvals; and (s) other risks and uncertainties indicated in the preliminary or definitive proxy statement, including those under “Risk Factors” therein, and other documents filed or to be filed with the SEC by RAC.

 

The foregoing list of factors is not exclusive. You should not place undue reliance upon any forward looking statements, which speak only as of the date made. RAC, the Companies and the Combined Company do not undertake or accept any obligation or undertaking to update or revise the forward looking statements set forth herein, whether as a result of new information, future events or otherwise, except as may be required by law.

 

Important Information about the Business Combinations and Where to Find It

 

In connection with the proposed Business Combinations, RAC intends to file a preliminary proxy statement and a definitive proxy statement with the SEC. This Current Report on Form 8-K does not contain all the information that should be considered concerning the Business Combinations, and it is not intended to provide the basis for any investment decision or any other decision regarding the proposed Business Combinations. RAC’s stockholders and other interested persons are advised to read, when available, the preliminary proxy statement, the amendments thereto, and the definitive proxy statement and documents incorporated by reference therein filed in connection with the proposed Business Combinations, as these materials will contain important information about the Combined Company, RAC, the Companies and the proposed Business Combinations. When available, the definitive proxy statement will be mailed to the stockholders of RAC as of a record date to be established for voting on the proposed Business Combinations. Stockholders will also be able to obtain copies of the preliminary proxy statement, the definitive proxy statement and other documents filed with the SEC that will be incorporated by reference therein, without charge, once available, at the SEC’s website at http://www.sec.gov.

 

Participants in the Solicitation

 

RAC, the Companies and their respective directors, executive officers and other employees may be deemed to be participants in the solicitation of proxies of RAC’s stockholders in connection with the proposed Business Combination. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of RAC’s stockholders in connection with the proposed Business Combinations, including their names and a description of their interests in the proposed Business Combinations, will be set forth in the proxy statement relating to such transaction when it is filed with the SEC.

 

5

 

 

No Offer or Solicitation

 

This Current Report on Form 8-K shall not constitute a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the proposed Business Combinations. This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any states or jurisdictions in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of section 10 of the Securities Act.

 

Item 9.01. Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit
Number

 

Description

2.1†   Aria Merger Agreement
2.2†   Archaea Merger Agreement
10.1   Form of Subscription Agreement
10.2   FPA Amendment
99.1   Press release, dated April 7, 2021
99.2   Investor presentation, dated April 2021
99.3   Transcript of April 7, 2021 management presentation relating to the Business Combinations

 

 

Certain schedules and similar attachments have been omitted. RAC agrees to furnish supplementally a copy of any omitted schedule or attachment to the SEC upon its request.

 

6

 

 

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: April 8, 2021

 

  RICE ACQUISITION CORP.
     
  By: /s/ James Wilmot Rogers
  Name:   James Wilmot Rogers
  Title: Chief Accounting Officer and Secretary

 

 

7 

 

 

Exhibit 2.1

 

Execution Version

 

 

Business Combination AGREEMENT

 

by and among

 

RICE ACQUISITION HOLDINGS LLC

 

LFG Intermediate Co, LLC

 

LFG Buyer Co, LLC

 

ARIA ENERGY LLC,

 

ARIA RENEWABLE ENERGY SYSTEMS LLC,

 

Inigo Merger Sub, LLC

 

AND

 

solely for purposes of SECTion 2.2, Article IV, Article V, Article VI and Article XI

 

RICE ACQUISITION CORP.

 

Dated as of APRIL 7, 2021

 

 

 

 

 

TABLE OF CONTENTS

 

    Page
ARTICLE I CERTAIN DEFINITIONS   2
  Section 1.1 Certain Definitions   2
         
ARTICLE II THE MERGER; CLOSING   25
  Section 2.1 Closing Transactions; Merger   25
  Section 2.2 Estimated Merger Consideration   27
  Section 2.3 Procedures for Company Unitholders   28
  Section 2.4 Post-Closing Adjustment to Merger Consideration   28
  Section 2.5 Company Closing Deliveries   31
  Section 2.6 Buyer Deliveries   32
  Section 2.7 Withholding and Wage Payments   32
         
ARTICLE III REPRESENTATIONS AND WARRANTIES REGARDING THE GROUP COMPANIES   32
  Section 3.1 Organization; Authority; Enforceability   33
  Section 3.2 Non-contravention   33
  Section 3.3 Capitalization   34
  Section 3.4 Financial Statements; No Undisclosed Liabilities   35
  Section 3.5 No Material Adverse Effect   36
  Section 3.6 Absence of Certain Developments   36
  Section 3.7 Real Property   37
  Section 3.8 Tax Matters   37
  Section 3.9 Contracts   40
  Section 3.10 Intellectual Property   44
  Section 3.11 Information Supplied   44
  Section 3.12 Litigation   44
  Section 3.13 Brokerage   44
  Section 3.14 Labor Matters   44
  Section 3.15 Employee Benefit Plans   46
  Section 3.16 Insurance   48
  Section 3.17 Compliance with Laws; Permits   48
  Section 3.18 Environmental Matters   49
  Section 3.19 Regulatory Status.   49
  Section 3.20 Title to and Sufficiency of Assets   50
  Section 3.21 Affiliate Transactions   50
  Section 3.22 Trade & Anti-Corruption Compliance   50
  Section 3.23 No Other Representations and Warranties   51
         
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE BUYER PARTIES   51
  Section 4.1 Organization; Authority; Enforceability   51
  Section 4.2 Non-contravention   53
  Section 4.3 Buyer Parties Capitalization   53
  Section 4.4 Litigation   54
  Section 4.5 Brokerage   54
  Section 4.6 Business Activities   54
  Section 4.7 Compliance with Laws   55
  Section 4.8 Organization of Buyer Parties   55

 

i

 

 

  Section 4.9 Financing   55
  Section 4.10 Buyer Parties   56
  Section 4.11 Tax Matters   56
  Section 4.12 Non-contravention   58
  Section 4.14 RAC Capitalization   58
  Section 4.15 Information Supplied; Proxy Statement   58
  Section 4.16 Trust Account   59
  Section 4.17 RAC SEC Documents; Financial Statements; Controls   59
  Section 4.18 Listing   61
  Section 4.19 Investment Company; Emerging Growth Company   61
  Section 4.20 Inspections; Buyer’s Representations   61
  Section 4.21 PIPE Investment Amount   62
  Section 4.22 Related Person Transactions   62
  Section 4.23 Employees   62
  Section 4.24 Agreements, Contracts and Commitments   62
         
ARTICLE V COVENANTS RELATING TO THE CONDUCT OF THE GROUP COMPANIES AND THE BUYER   63
  Section 5.1 Interim Operating Covenants of the Group Companies   63
  Section 5.2 Interim Operating Covenants of the Buyer   66
         
ARTICLE VI PRE-CLOSING AGREEMENTS   68
  Section 6.1 Reasonable Best Efforts; Further Assurances   68
  Section 6.2 Trust & Closing Funding   68
  Section 6.3 Status Preservation   68
  Section 6.4 Confidential Information   69
  Section 6.5 Access to Information   69
  Section 6.6 Notification of Certain Matters   69
  Section 6.7 Regulatory Approvals; Efforts   69
  Section 6.8 Communications; Press Release; SEC Filings   70
  Section 6.9 RAC Stockholder Meeting   74
  Section 6.10 Expenses   75
  Section 6.11 Financing; Financing Cooperation   75
  Section 6.12 Directors and Officers   78
  Section 6.13 Subscription Agreements; Forward Purchase Agreement; Redemptions; Permitted Equity Financing   79
  Section 6.14 Affiliate Obligations   81
  Section 6.15 280G   81
  Section 6.16 No Buyer Stock Transactions   81
  Section 6.17 Name Change   81
  Section 6.18 Exclusivity   82
  Section 6.19 Archaea Agreement Efforts   82
  Section 6.20 Release.   83
  Section 6.21 MIP Cancellation   83
  Section 6.22 R&W Insurance Policy   83
         
ARTICLE VII ADDITIONAL AGREEMENTS   84
  Section 7.1 Access to Books and Records   84
  Section 7.2 Stock Exchange Listing   84

 

ii

 

 

ARTICLE VIII TAX MATTERS   85
  Section 8.1 Certain Tax Matters   85
         
ARTICLE IX CONDITIONS TO OBLIGATIONS OF PARTIES   88
  Section 9.1 Conditions to the Obligations of Each Party   88
  Section 9.2 Conditions to the Obligations of the Buyer and the Company Merger Sub   89
  Section 9.3 Conditions to the Obligations of the Company   90
  Section 9.4 Frustration of Closing Conditions   90
  Section 9.5 Waiver of Closing Conditions   90
         
ARTICLE X TERMINATION   90
  Section 10.1 Termination   90
  Section 10.2 Effect of Termination   91
         
ARTICLE XI MISCELLANEOUS   92
  Section 11.1 Amendment and Waiver   92
  Section 11.2 Notices   92
  Section 11.3 Assignment   93
  Section 11.4 Severability   93
  Section 11.5 Interpretation   94
  Section 11.6 Entire Agreement   94
  Section 11.7 Governing Law; Waiver of Jury Trial; Jurisdiction   95
  Section 11.8 Non-Survival   96
  Section 11.9 Trust Account Waiver   96
  Section 11.10 Counterparts; Electronic Delivery   96
  Section 11.11 Specific Performance   97
  Section 11.12 No Third-Party Beneficiaries   97
  Section 11.13 Schedules and Exhibits   97
  Section 11.14 No Recourse   98
  Section 11.15 Equitable Adjustments   99
  Section 11.16 Legal Representation and Privilege   99
  Section 11.17 Acknowledgements   101
         
ARTICLE XII AUTHORIZATION OF THE EQUITYHOLDER REPRESENTATIVE   102
  Section 12.1 Authorization of Equityholder Representative   102

 

iii

 

 

EXHIBITS

 

Exhibit A   Rice Holdings A&R LLCA
Exhibit B   Company A&R LLCA
Exhibit C   Form of Stockholders Agreement
Exhibit D   Capital Expenditure Budget

 

iv

 

 

BUSINESS COMBINATION AGREEMENT

 

This Business Combination Agreement (this “Agreement”) is made and entered into as of April 7, 2021 (the “Execution Date”) by and among (i) LFG Buyer Co, LLC (the “Buyer”), (ii) Inigo Merger Sub, LLC, a Delaware limited liability company and a direct wholly owned subsidiary of the Buyer (“Company Merger Sub”), (iii) LFG Intermediate Co, LLC, a Delaware limited liability company (“IntermediateCo”), (iv) Rice Acquisition Holdings LLC, a Delaware limited liability company (“Rice Holdings”, and together with the Buyer, Company Merger Sub, IntermediateCo and RAC, collectively, the “Buyer Parties”), (v) Aria Energy LLC, a Delaware limited liability company (the “Company”), (vi) Aria Renewable Energy Systems LLC, a Delaware limited liability company, solely in its capacity as representative of the Company Unitholders (the “Equityholder Representative”) and (vii) solely for purposes of Section 2.2(c), Article IV, Article V, Article VI and Article XI, Rice Acquisition Corp., a Delaware corporation (“RAC”). Each of the Buyer, the Company Merger Sub, the Company, the Equityholder Representative and, solely for purposes of Section 2.2, Article IV, Article V, Article VI and Article XI, RAC, is also referred to herein as a “Party” and, collectively, as the “Parties.

 

RECITALS

 

whereas, (a) RAC is a blank check company incorporated to acquire one or more operating businesses through a Business Combination and (b) the Buyer, an indirect Subsidiary of RAC, has formed Company Merger Sub.

 

WHEREAS, prior to the Execution Date, RAC, Sponsor and Rice Holdings entered into a forward purchase agreement (as amended as of the date hereof and as it may be amended and/or restated further from time to time in accordance with its terms, the “Forward Purchase Agreement”) with Atlas Point Energy Infrastructure Fund, LLC (the “Forward Purchaser”), for an aggregate investment of up to $20,000,000 (the “Forward Purchase Amount”) by the Forward Purchaser in exchange for the Forward Purchase Securities, which investment shall close concurrently with the Closing in accordance with the terms and subject to the conditions of the Forward Purchase Agreement.

 

WHEREAS, simultaneously with the execution and delivery of this Agreement, the Archaea Agreement has been executed pursuant to the terms thereof by the parties thereto.

 

WHEREAS, in connection with the transactions contemplated by this Agreement and the Archaea Agreement (collectively, the “Business Combination Transactions”), RAC has entered into subscription agreements (collectively, the “Subscription Agreements”) with certain third-party investors (the “PIPE Investors”) pursuant to which the PIPE Investors have committed to make a private investment in public equity in the form of RAC Common Stock in an aggregate amount of $300,000,000 (the “PIPE Investment”).

 

WHEREAS, in connection with the Business Combination Transactions, the Buyer and certain Debt Financing Sources have entered into and delivered to the Company the Debt Commitment Letter on the terms and subject to the conditions set forth therein.

 

WHEREAS, in order to effect the Business Combination Transactions, on the Closing, Company Merger Sub will merge with and into the Company, with the Company as the surviving company (the “Merger”), resulting in the Company becoming a wholly owned subsidiary of the Buyer.

 

WHEREAS, the boards of managers or directors, managing member or other governing body, as applicable, of each of RAC, the Buyer, Company Merger Sub and the Company have approved and declared advisable entry into this Agreement, the Merger, and the other transactions contemplated hereby, upon the terms and subject to the conditions hereof and in accordance with the Delaware General Corporation Law, as amended and the Delaware Limited Liability Company Act, as amended (the “DLLCA”), as applicable.

 

1

 

 

WHEREAS, simultaneously with the Closing, the Rice Holdings LLCA shall be amended and restated in the form attached hereto as Exhibit A (the “Rice Holdings A&R LLCA”) to, among other things, reflect the Business Combination Transactions.

 

WHEREAS, by virtue of the Merger, the Company LLCA shall be amended and restated in the form attached hereto as Exhibit B (the “Company A&R LLCA”) to, among other things, reflect the Merger.

 

WHEREAS, simultaneously with the Closing, the Sponsor, the Buyer, the Company Unitholders and certain other parties thereto will enter into the Stockholders Agreement in the form attached hereto as Exhibit C (the “Stockholders Agreement”).

 

WHEREAS, as a condition to the consummation of the transactions contemplated hereby and by the Ancillary Agreements, RAC shall provide an opportunity to its stockholders to exercise their rights to participate in the RAC Share Redemption, and on the terms and subject to the conditions and limitations, set forth herein and the applicable RAC Governing Documents in conjunction with, inter alia, obtaining the Required Vote.

 

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein, and subject to the terms and conditions set forth herein, the Parties, intending to be legally bound, hereby agree as follows:

 

Article I
CERTAIN DEFINITIONS

 

Section 1.1 Certain Definitions. For purposes of this Agreement, capitalized terms used but not otherwise defined herein shall have the meanings set forth below.

 

ACA” has the meaning set forth in Section 3.15(c).

 

Additional Cash Consideration” means (a) the amount of Cash and Cash Equivalents in an amount not to exceed $10,000,000, plus (b) the amount, if any, of the Specified Capital Expenditures.

 

Additional RAC Filings” has the meaning set forth in Section 6.8(f).

 

Affiliate” of any particular Person means any other Person controlling, controlled by or under common control with such Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, its capacity as a sole or managing member or otherwise; provided, that no portfolio company of a private equity fund or other investment fund that is an Affiliate of a Group Company shall be deemed an “Affiliate” for purposes of this Agreement. Notwithstanding the foregoing, except with respect to Section 2.2(b), for purposes of this Agreement, Archaea shall in no respects be considered an “Affiliate” of the Buyer or RAC.

 

Affiliated Group” means a group of Persons that elects to, is required to, or otherwise files a Tax Return or pays a Tax as an affiliated group, aggregate group, consolidated group, combined group, unitary group or other group recognized by applicable Tax Law.

 

Affiliated Transactions” has the meaning set forth in Section 3.21.

 

2

 

 

Agreement” has the meaning set forth in the Preamble.

 

Allocation” has the meaning set forth in Section 8.1(e).

 

Allocation Schedule” means a schedule dated as of the Closing Date, prepared by the Company and in a format reasonably acceptable to the Buyer, setting forth, for each Company Unitholder: (a) the name and payment instructions for such Company Unitholder, (b) the number and type of Company Units held as of the Closing Date by such Company Unitholder, (c) the Pro Rata Percentage for such Company Unitholder and (d) (i) for each Company Class A Unitholder, the Closing Company Class A Unitholder Merger Consideration for such Company Class A Unitholder and (ii) for each Company Class B Unitholder, the Closing Company Class B Unitholder Merger Consideration for such Company Class B Unitholder.

 

Ancillary Agreement” means each agreement, document, instrument or certificate contemplated hereby to be executed in connection with the consummation of the transactions contemplated hereby, including the Company A&R LLCA, the Rice Holdings A&R LLCA, the Subscription Agreements, the Stockholders Agreement, the Forward Purchase Agreement, the Permitted Equity Subscription Agreements and the documents entered in connection therewith, in each case only as applicable to the relevant Party or Parties to such Ancillary Agreement, as indicated by the context in which such term is used.

 

Anti-Corruption Laws” means all applicable U.S. and non-U.S. Laws relating to the prevention of corruption and bribery, including, to the extent applicable to the Company and its Subsidiaries, the U.S. Foreign Corrupt Practices Act of 1977, the Canada Corruption of Foreign Public Officials Act of 1999, the UK Bribery Act of 2010 and the legislation adopted in furtherance of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

 

Antitrust Laws” has the meaning set forth in Section 6.7(c).

 

Archaea” means, collectively, Archaea Energy LLC and its Subsidiaries.

 

Archaea Agreement” means that certain Business Combination Agreement, dated as of the Execution Date, by and among the Buyer, RAC, Rice Holdings, Archaea Energy LLC, Archaea Energy II LLC and Fezzik Merger Sub, LLC, as such agreement may be amended and/or restated from time to time in accordance with its terms and Section 6.19.

 

Archaea Closing” means the “Closing” defined in the Archaea Agreement.

 

Assets” has the meaning set forth in Section 3.19(e).

 

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

 

Available Closing Date Cash” means, as of immediately prior to the Closing, an aggregate amount equal to the sum of (without duplication) (a) the cash in the Trust Account (after reduction for the aggregate amount of payments required to be made in connection with the RAC Share Redemptions), plus (b) the amount of PIPE Proceeds, plus (c) the Forward Purchase Amount, plus (d) the Permitted Equity Financing Proceeds.

 

Base Aggregate Cash Amount” means (a) $450,000,000 plus (b) the Additional Cash Consideration.

 

Business Combination” has the meaning ascribed to such term in the RAC Governing Documents.

 

3

 

 

Business Combination Transactions” has the meaning set forth in the Recitals.

 

Business Day” means any day except a Saturday, a Sunday or any other day on which commercial banks are required or authorized to close in the State of New York; provided, however, that such commercial banks shall not be deemed to be authorized to be closed for purposes of this definition due to a “shelter in place,” “non-essential employee” or similar closure of physical branch locations.

 

Buyer Balance Sheet” has the meaning set forth in Section 4.6(c).

 

Buyer Bring-Down Certificate” has the meaning set forth in Section 9.3(d).

 

Buyer Cash Amount” has the meaning set forth in Section 2.2(c)(i)(A).

 

Buyer Certificate of Formation” means the certificate of formation of the Buyer, as it may be amended and/or restated from time to time.

 

Buyer Competing Transaction” means any transaction involving, directly or indirectly, any merger or consolidation with or acquisition of, purchase of a material amount of the assets or equity of, consolidation or similar business combination with or other transaction that would constitute a Business Combination with or involving the Buyer (or any Affiliate or Subsidiary of the Buyer) and any party other than the Company or the Company Unitholders. Notwithstanding the foregoing, in no event shall any of the transactions contemplated by the Archaea Agreement be deemed a Buyer Competing Transaction.

 

Buyer Disclosure Schedules” means the Disclosure Schedules delivered by the Buyer to the Company concurrently with the execution and delivery of this Agreement.

 

Buyer Fundamental Representations” means the representations and warranties set forth in Section 4.1 (Organization; Authority; Enforceability), Section 4.2(a) (Non-Contravention), Section 4.3 (Buyer Parties Capitalization), Section 4.5 (Brokerage), Section 4.6 (Business Activities), Section 4.8 (Organization of Buyer Parties), Section 4.14 (RAC Capitalization) and Section 6.2 (Trust Account).

 

Buyer Governing Documents” means the Buyer Certificate of Formation and the Buyer LLCA, as in effect at such time.

 

Buyer LLCA” means the amended and restated limited liability company agreement of the Buyer, dated as of April 5, 2021, as it may be amended and/or restated from time to time in accordance with its terms.

 

Buyer Member” means RAC, in its capacity as sole managing member of the Buyer.

 

Buyer Parties” has the meaning set forth in the Preamble.

 

Buyer Post-Closing Representation” has the meaning set forth in Section 11.16(b)(i).

 

Buyer Released Parties” has the meaning set forth in Section 6.20(b).

 

Cancelled Equity Interests” has the meaning set forth in Section 2.1(b).

 

Capital Expenditure Budget” means the budget setting forth the per project amount of Capital Expenditures that the Group Companies may make or pay or accrue during the Pre-Closing Period, as set forth on Exhibit D attached hereto.

 

4

 

 

Capital Expenditures” means amounts capitalized, including amounts of cash spent or expenses otherwise accrued by any Group Company to acquire assets of the Group Companies that will be capitalized, on the Group Companies’ balance sheet as fixed assets by the Group Companies in furtherance of the construction, connection, development, completion, expansion, acquisition and/or useful life improvement of the assets of the Group Companies directly used for the provision of services by the Group Companies in accordance with, and not in excess of, the Capital Expenditure Budget.

 

CARES Act” shall mean the Coronavirus Aid, Relief, and Economic Security Act of 2020.

 

Cash and Cash Equivalents” means the sum (expressed in United States dollars) of all cash and cash equivalents which are convertible within 90 days (including marketable securities, bank deposits, checks or wires received but not cleared, and deposits in transit of the Group Companies and any restricted cash released to the Group Companies upon repayment of the amounts outstanding under the Credit Agreement on the Closing Date) of the Group Companies as of the Measurement Time, in each case, calculated in accordance with GAAP; provided, that Cash and Cash Equivalents shall exclude security deposits, and shall be calculated net of any outstanding checks written or ACH transactions or wire transfers that have been issued but remain outstanding or uncleared as of the Measurement Time.

 

CBA” has the meaning set forth in Section 3.9(a)(i).

 

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

 

Class A Units” has the meaning set forth in the Company LLCA.

 

Class B Units” has the meaning set forth in the Company LLCA.

 

Class C Units” has the meaning set forth in the Company LLCA.

 

Clayton Act” means the Clayton Antitrust Act of 1914.

 

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

 

Closing Company Class A Unitholder Merger Consideration” means, with respect to each Company Class A Unitholder, (a) a number of Company Interests equal to (i) the Equity Consideration multiplied by (ii) such Company Class A Unitholder’s Pro Rata Percentage and (b) as initially estimated pursuant to Section 2.2 and as may be adjusted pursuant to Section 2.4, such Company Class A Unitholder’s Company Class A Unitholder Cash Consideration.

 

Closing Company Class B Unitholder Merger Consideration” means, with respect to each Company Class B Unitholder, (a) a number of Company Interests equal to (i) the Equity Consideration multiplied by (ii) such Company Class B Unitholder’s Pro Rata Percentage and (b) as initially estimated pursuant to Section 2.2 and as may be adjusted pursuant to Section 2.4, such Company Class B Unitholder’s Company Class B Unitholder Cash Consideration.

 

Closing Company Indebtedness” means the Company Indebtedness as of the Measurement Time, calculated in accordance with GAAP.

 

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

 

Closing Form 8-K” has the meaning set forth in Section 6.8(g).

 

5

 

 

Closing Press Release” has the meaning set forth in Section 6.8(g).

 

Closing Statement” has the meaning set forth in Section 2.4(a).

 

Code” means the Internal Revenue Code of 1986.

 

Commitment Letters” has the meaning set forth in Section 4.9.

 

Company” has the meaning set forth in the Preamble.

 

Company A&R LLCA” has the meaning set forth in the Recitals.

 

Company Accrued Income Taxes” means the sum of an amount determined with respect to each of the Group Companies equal to the aggregate excess, if any, in each jurisdiction of the current income Tax liabilities over the aggregate current income Tax assets of the Group Companies with respect to such jurisdiction attributable to any Pre-Closing Tax Period. The calculation of Company Accrued Income Taxes shall (a) exclude any deferred Tax liabilities or deferred Tax assets, (b) not take into account the effect of any transactions taken by the Group Companies outside the ordinary course of business during the portion of the Closing Date after the time of Closing, and (c) be determined in accordance with Section 8.1(b).

 

Company Bring-Down Certificate” has the meaning set forth Section 9.2(c).

 

Company Class A Unitholder” means each holder of Class A Units.

 

Company Class A Unitholder Cash Consideration” means, with respect to each Company Class A Unitholder, an amount in cash equal to (a) as initially estimated pursuant to Section 2.2 and as may be adjusted pursuant to Section 2.4, the Base Aggregate Cash Amount multiplied by (b) such Company Class A Unitholder’s Pro Rata Percentage.

 

Company Class B Unitholder” means each holder of Class B Units.

 

Company Class B Unitholder Cash Consideration” means, with respect to each Company Class B Unitholder, an amount in cash equal to (a) as initially estimated pursuant to Section 2.2 and as may be adjusted pursuant to Section 2.4, the Base Aggregate Cash Amount multiplied by (b) such Company Class B Unitholder’s Pro Rata Percentage.

 

Company Disclosure Schedules” means the Disclosure Schedules delivered by the Company to the Buyer concurrently with the execution and delivery of this Agreement.

 

Company Employee Benefit Plan” means each Employee Benefit Plan that is maintained, sponsored or contributed to (or required to be contributed to) by any of the Group Companies or under or with respect to which any of the Group Companies has any Liability.

 

Company Equity Interests” has the meaning set forth in Section 3.3(a).

 

Company Fundamental Representations” means the representations and warranties set forth in Section 3.1 (Organization; Authority; Enforceability), Section 3.2(a) (Non-contravention), Section 3.3 (Capitalization) and Section 3.13 (Brokerage).

 

6

 

 

Company Indebtedness” means, without duplication, with respect to the Group Companies, all obligations (including all obligations in respect of principal, accrued and unpaid interest, penalties, breakage costs, fees and premiums and other costs and expenses associated with repayment or acceleration) of the Group Companies (a) for borrowed money, (b) evidenced by notes, bonds, debentures or similar Contracts or security, (c) for the deferred purchase price of assets, property, goods or services, business (other than trade payables incurred in the Ordinary Course of Business or Specified Capital Expenditures) or with respect to any conditional sale, title retention, consignment or similar arrangements, (d) any obligation for a lease classified as a capital or finance Lease in the Financial Statements or any obligation capitalized or required to be capitalized in accordance with GAAP, (e) any letters of credit, bankers acceptances or other obligation by which any Group Company assured a creditor against loss, in each case to the extent drawn upon or currently payable, (f) except as set forth in Schedule 1.1(a), for earn-out or contingent payments related to acquisitions or investments (assuming the maximum amount earned), including post-closing price true-ups, indemnifications and seller notes, (g) in respect of dividends declared or distributions payable but unpaid, (h) under derivative financial instruments, including hedges, currency and interest rate swaps and other similar Contracts, (i) all obligations with respect to any unpaid and accrued bonuses and severance and deferred compensation, whether or not accrued or funded (including deferred compensation payable as deferred purchase price) with respect to 2020 plus the employer portion of any payroll Taxes incurred in respect of such obligations (determined as though all such obligations were payable as of the Closing Date), (j) all “applicable employment taxes” (as defined in Section 2302(d)(1) of the CARES Act) that any Group Company has elected to defer pursuant to Section 2302 of the CARES Act, (k) 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), (l) all Company Accrued Income Taxes, (m) all unfunded retiree welfare Liabilities, (n) all costs and expenses of the LES Sale and (o) in the nature of guarantees of the obligations described in clauses (a) through (n) above. For the avoidance of doubt, Company Indebtedness will (x) be measured on a consolidated basis and exclude any intercompany Company Indebtedness among the Group Companies which are wholly-owned, (y) exclude deferred revenue, and (z) exclude any items included as a current liability in the calculation of Transaction Expenses.

 

Company Interest” means, collectively, one OpCo Class A Unit and one share of RAC Class B Common Stock (i.e., one Company Interest is equivalent to one OpCo Class A Unit and one share of RAC Class B Common Stock).

 

Company LLCA” means the Second Amended and Restated Limited Liability Company Operating Agreement of the Company, dated as of February 14, 2011 (as may be amended and/or restated from time to time in accordance with its terms).

 

Company Merger Sub” has the meaning set forth in the Preamble.

 

Company Post-Closing Representation” has the meaning set forth in Section 11.16(a)(i).

 

Company Released Parties” has the meaning set forth in Section 6.20(a).

 

Company Subsidiaries” means (a) the direct and indirect Subsidiaries of the Company and (b) Mavrix, LLC, Sunshine Gas Producers, L.L.C., RNG Moovers, LLC, but shall exclude LES Project Holdings, LLC and its Subsidiaries.

 

Company Unitholder” means all holders of Company Units.

 

Company Units” means the Class A Units, the Class B Units and the Class C Units.

 

7

 

 

Company Written Consent” means a written consent of the Company Unitholders evidencing (a) the approval of this Agreement, the Merger and the transactions contemplated hereby, (b) the appointment of the Equityholder Representative pursuant to Section 12.1 and (c) an agreement to enter into, as applicable, (i) the Company A&R LLCA, (ii) the Stockholders Agreement, and (iii) any agreements or documentation reasonably required in connection with the obligations of the Company pursuant to the terms of this Agreement or required to be delivered at Closing hereunder.

 

Competing Buyer” has the meaning set forth in Section 6.18(a).

 

Competing Transaction” means (a) any transaction involving, directly or indirectly, any Group Company, which upon consummation thereof, would result in any Group Company becoming a public company, (b) any direct or indirect sale (including by way of a merger, consolidation, exclusive license, transfer, sale, option, right of first refusal with respect to a sale or similar preemptive right with respect to a sale or other business combination or similar transaction) of any material portion of the assets (including Intellectual Property) or business of the Group Companies, taken as a whole, (c) any direct or indirect sale (including by way of an issuance, dividend, distribution, merger, consolidation, transfer, sale, option, right of first refusal with respect to a sale or similar preemptive right with respect to a sale or other business combination or similar transaction) of equity, voting interests or debt securities convertible into equity of any Group Company, or rights, or securities that grant rights, to receive the same including profits interests, phantom equity, options, warrants, convertible or preferred stock or other equity-linked securities or (d) any direct or indirect acquisition (whether by merger, acquisition, share exchange, reorganization, recapitalization, joint venture, consolidation or similar business combination transaction), but excluding procurement of assets in the Ordinary Course Of Business (but not the acquisition of a Person or business via an asset transfer), by any Group Company of the equity or voting interests of, or a material portion of the assets or business of, a third party, in all cases of clauses (a) through (d), either in one or a series of related transactions, where such transaction(s) is to be entered into with a Competing Buyer (including any Company Unitholders, other direct or indirect equityholder of any Group Company or any of their respective directors, officers or Affiliates (other than any Group Company) or any representatives of the foregoing); provided that, for the avoidance of doubt, a Competing Transaction shall not include the LES Sale; provided that any such transaction would not result in a change of control of the Company. Notwithstanding anything in this Agreement to the contrary, any transaction, arrangement, Contract or understanding not involving a Group Company or any of the assets thereof, directly or indirectly, shall not be a “Competing Transaction” for purposes of this Agreement.

 

Confidential Information” has the meaning set forth in the Confidentiality Agreement.

 

Confidentiality Agreement” means that certain Confidentiality Agreement, dated as of February 4, 2021, by and between RAC and the Company as it may be amended and/or restated from time to time in accordance with its terms. 

 

Contract” means any written or oral contract, agreement, license or Lease (including any amendments thereto).

 

COVID-19” means the novel coronavirus, SARS-CoV-2 or COVID-19 (and all related strains, variants and sequences), including any intensification, resurgence or any evolutions or mutations thereof, and/or related or associated epidemics, pandemics, disease outbreaks or public health emergencies.

 

COVID-19 Measures” means any applicable quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down, closure, sequester or any other applicable Law, Order or directive by an applicable Governmental Entity in connection with or in response to the COVID-19 pandemic, including the Coronavirus Aid, Relief, and Economic Security Act (CARES).

 

8

 

 

Credit Agreement” means that certain Credit Agreement, dated May 27, 2015, among Aria Energy Operating LLC, the lenders party thereto, the issuing banks party thereto, Barclays Bank PLC, in its capacities as administrative agent and collateral agent and Comerica, as amended by that certain Limited Waiver and Amendment No. 1, dated June 28, 2016, as further amended by that certain Amendment No. 2 to Credit Agreement, dated September 29, 2017 and as further amended by that certain Amendment No. 3 to Credit Agreement, dated March 26, 2020.

 

Credit Agreement Payoff Letter” has the meaning set forth in Section 2.2(c)(i)(B).

 

D&O Provisions” has the meaning set forth in Section 6.12(a).

 

Data Room” has the meaning set forth in Section 11.5.

 

Databases” means any and all databases, data collections and data repositories of any type and in any form (and all corresponding data and organizational or classification structures or information), together with all rights therein.

 

Debt Commitment Letter” has the meaning set forth in Section 4.9.

 

Debt Financing” has the meaning set forth in Section 4.9.

 

Debt Financing Related Parties” means the Debt Financing Sources and other lenders from time to time party to agreements contemplated by or related to the Debt Financing their Affiliates and their and their Affiliates’ respective directors, officers, employees, agents, advisors and other representatives.

 

Debt Financing Sources” means the lenders, arrangers and bookrunners party from time to time to the Debt Commitment Letter, in each case in their capacities as such lenders, arrangers and bookrunners and not in any other capacity.

 

Deficit Amount” has the meaning set forth in Section 2.4(d)(ii).

 

Disclosure Schedules” means the Buyer Disclosure Schedules and the Company Disclosure Schedules.

 

Dispute Notice” has the meaning set forth in Section 2.4(b).

 

DLLCA” has the meaning set forth in the Recitals.

 

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

 

Employee Benefit Plan” mean an “employee benefit plan” (as such term is defined in Section 3(3) of ERISA, whether or not subject to ERISA) and each equity or equity-based compensation, retirement, pension, savings, profit sharing, bonus, incentive, severance, separation, employment, individual consulting or independent contractor, transaction, change in control, retention, deferred compensation, vacation, sick pay or paid time-off, medical, dental, life or disability, retiree or post-termination health or welfare, salary continuation, fringe or other compensation or benefit plan, program, policy, agreement, arrangement or Contract.

 

Enforceable” means, with respect to any Contract stated to be enforceable by or against any Person, that such Contract is a legal, valid and binding obligation enforceable by or against such Person in accordance with its terms, except to the extent that enforcement of the rights and remedies created thereby is subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws of general application affecting the rights and remedies of creditors and general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).

 

9

 

 

Enterprise Value” means $680,000,000.

 

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

 

Equity Consideration” means 23,000,000 Company Interests.

 

Equity Financing” has the meaning set forth in the definition of “Equity Financing Sources”.

 

Equity Financing Sources” means the Persons that have committed to provide or otherwise entered into agreements to subscribe for or acquire Equity Interests in the Buyer in exchange for cash prior to or in connection with the transactions contemplated hereby (the “Equity Financing”), including the parties named in any Subscription Agreement, any Permitted Equity Subscription Agreement or the Forward Purchase Agreement, together with their current or future limited partners, shareholders, managers, members, controlling Persons, respective Affiliates and their respective Affiliates and representatives involved in such subscription or acquisition and, in each case, their respective successors and assigns.

 

Equity Interests” means, with respect to any Person, all of the shares or quotas of capital stock or equity of (or other ownership or profit interests in) such Person, all of the warrants, trust rights, options or other rights for the purchase or acquisition from such Person of shares of capital stock or equity of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock or equity of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares or equity (or such other interests), restricted equity awards, restricted equity units, equity appreciation rights, phantom equity rights, profit participation and all of the other ownership or profit interests of such Person (including partnership, member or trust interests therein).

 

Equityholder Materials” has the meaning set forth in Section 2.3.

 

Equityholder Representative” has the meaning set forth in the Preamble.

 

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

 

ERISA Affiliate” means any Person that, together with any Group Company, is (or at a relevant time has been or would be) considered a single employer under Section 414 of the Code.

 

Estimated Closing Statement” has the meaning set forth in Section 2.2(a).

 

Estimated Merger Consideration” has the meaning set forth in Section 2.2(a).

 

Ex-Im Laws” means export, controls, import, deemed export, reexport, transfer, and retransfer controls, including, contained in the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, the customs and import Laws administered by the U.S. Customs and Border Protection, and the EU Dual Use Regulation.

 

Excess Amount” has the meaning set forth in Section 2.4(d)(i).

 

10

 

 

Execution Date” has the meaning set forth in the Preamble.

 

Executives” means Richard DiGia, Andrew Spence, Sheila Miller, Jay Hopper and Dennis Plaster.

 

Federal Trade Commission Act” means the Federal Trade Commission Act of 1914.

 

FERC” means the Federal Energy Regulatory Commission and any successor.

 

Final Closing Cash” has the meaning set forth in Section 2.4(a).

 

Final Closing Company Indebtedness” has the meaning set forth in Section 2.4(a).

 

Final Specified Capital Expenditures” has the meaning set forth in Section 2.4(a).

 

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

 

Financing” has the meaning set forth in Section 4.9.

 

Flow-Thru Entity” means (a) any entity, plan or arrangement that is treated for income Tax purposes as a partnership, (b) a “controlled foreign corporation” within the meaning of Code Section 957, (c) a “specified foreign corporation” within the meaning of Code Section 965 or (d) a “passive foreign investment company” within the meaning of Code Section 1297.

 

Forward Purchase Agreement” has the meaning set forth in the Recitals.

 

Forward Purchase Amount” has the meaning set forth in the Recitals.

 

Forward Purchase Securities” means 2,000,000 shares of RAC Common Stock and 666,666.67 warrants to purchase RAC Common Stock for $11.50 per share.

 

Forward Purchaser” has the meaning set forth in the Recitals.

 

FPA” means the Federal Power Act of 1935.

 

Fraud” means a knowing and intentional fraud committed by a Party in the making of a representation or warranty expressly set forth in this Agreement or any Ancillary Agreement or in any certificate or letter of transmittal delivered pursuant hereto or thereto, as applicable; provided that (a) such representation or warranty was false or inaccurate at the time such representation or warranty was made, (b) the Party making such representation or warranty had actual knowledge (and not imputed or constructive knowledge) that such representation or warranty was false or inaccurate when made, and (c) such Party had the specific intent to deceive another Party and induce such other Party to enter into this Agreement or consummate the transactions contemplated by this Agreement, as applicable. For the avoidance of doubt, (x) the term “Fraud” does not include any claim for equitable fraud, promissory fraud, unfair dealings fraud, or any torts (including a claim for fraud) based on negligence or recklessness, and (y) only the Party to this Agreement who committed a Fraud shall be responsible for such Fraud and only to the Party alleged to have suffered from such alleged Fraud.

 

Fully Diluted Number” means the total number of Company Units outstanding as of immediately prior to the Effective Time (but excluding, for the avoidance of doubt, the Class C Units), determined on a fully-diluted, as-if exercised basis, whether or not exercised, exercisable, settled, eligible for settlement or vested.

 

11

 

 

GAAP” means United States generally accepted accounting principles as in effect from time to time.

 

Governing Documents” means (a) in the case of a corporation, its certificate of incorporation (or analogous document) and bylaws or memorandum and articles of association, in each case, as amended and/or restated from time to time (as applicable), (b) in the case of a limited liability company, its certificate of formation (or analogous document) and limited liability company operating agreement, in each case, as amended and/or restated from time to time, or (c) in the case of a Person other than a corporation or limited liability company, the documents by which such Person (other than an individual) establishes its legal existence or which govern its internal affairs.

 

Governmental Entity” means any nation or government, any state, province or other political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any court, arbitrator (public or private) or other body or administrative, regulatory or quasi-judicial authority, agency, department, board, commission or instrumentality of any federal, state, local or foreign jurisdiction.

 

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

 

Hazardous Materials” means all substances, materials or wastes regulated by, or for which standards of conduct may be imposed pursuant to, Environmental Laws, including petroleum products or byproducts, asbestos, polychlorinated biphenyls, radioactive materials, lead, and per- and polyfluoroalkyl substances.

 

HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.

 

Improvements” has the meaning set forth in Section 3.7(c).

 

Insurance Policies” has the meaning set forth in Section 3.16.

 

Intellectual Property” means rights in all of the following in any jurisdiction throughout the world: (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice) and invention disclosures, all improvements thereto, and all patents, utility models and industrial designs and all applications for any of the foregoing, together with all reissuances, provisionals, continuations, continuations-in-part, divisions, extensions, renewals and reexaminations thereof, (b) all trademarks, service marks, certification marks, trade dress, logos, slogans, trade names, corporate and business names, Internet domain names and other indicia of origin, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (c) all works of authorship, copyrightable works, all copyrights and rights in databases, and all applications, registrations, and renewals in connection therewith and all moral rights associated with any of the foregoing, (d) all mask works and all applications, registrations, and renewals in connection therewith, (e) all trade secrets and confidential business information (including ideas, research and development, know-how, formulas, compositions, algorithms, source code, data analytics, manufacturing and production processes and techniques, technical data and information, designs, drawings, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals) (“Trade Secret”), (f) all Software, and (g) all other similar proprietary rights.

 

Interested Party” means the Company Unitholders, and any of their respective directors, executive officers or Affiliates (other than any Group Company).

 

IntermediateCo” has the meaning set forth in the Preamble.

 

12

 

 

IRS” has the meaning set forth in Section 3.15(a).

 

IT Assets” means Software, systems, Databases, servers, computers, hardware, firmware, middleware, networks, data communications lines, routers, hubs, switches and all other information technology equipment, used in the operation of the Group Companies.

 

JOBS Act” has the meaning set forth in Section 6.3(b).

 

Kirkland” has the meaning set forth in Section 11.16(b)(i).

 

Knowledge” (a) as used in the phrase “to the Knowledge of the Company” or phrases of similar import means the actual knowledge of any of the Executives, including after reasonable due inquiry of such Executive’s direct reports and (b) as used in the phrase “to the Knowledge of the Buyer” or phrases of similar import means the actual knowledge of Daniel Joseph Rice IV, J. Kyle Derham and James Wilmot Rogers, including after reasonable due inquiry.

 

Latest Balance Sheet Date” means January 31, 2021.

 

Laws” means all laws, common law, acts, statutes, constitutions, ordinances, codes, rules, regulations, rulings and any Orders of a Governmental Entity, and common law relating to fiduciary duties.

 

Leased Real Property” means all leasehold or subleasehold estates and other rights to use or occupy any land, buildings, structures, improvements, fixtures or other interest in real property held by any Group Company.

 

Leases” means all leases, subleases, licenses, concessions and other Contracts pursuant to which any Group Company holds any Leased Real Property (along with all amendments, modifications and supplements thereto) but excluding all Permits.

 

LES MIPA” means that certain Membership Interest Purchase Agreement, dated as of March 1, 2021, by and between LES Manager LLC and Energy Power Investment Company, LLC.

 

LES Sale” means the sale of all of the assets and interests of LES pursuant to the LES MIPA.

 

Liability” or “Liabilities” means any and all debts, liabilities, guarantees, commitments or obligations, whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured, liquidated or unliquidated, accrued or not accrued, due or to become due or determined or determinable.

 

Liens” means, with respect to any specified asset, any and all liens, mortgages, hypothecations, claims, encumbrances, options, pledges, licenses, rights of priority easements, covenants, restrictions and security interests thereon.

 

LLCA Amendment and Restatement” has the meaning set forth in Section 2.1(c).

 

Lookback Date” means the date which is three years prior to the Execution Date.

 

13

 

 

Material Adverse Effect” means any change, effect, event, circumstance, occurrence, state of facts or development that, individually or in the aggregate, has had or would reasonably be expected to (a) have a material adverse effect upon the business, results of operations or financial condition of the Group Companies, taken as a whole, or (b) prevents or materially delays, or would be reasonably expected to prevent or materially delay, the ability of the Group Companies, taken as a whole, to perform their respective obligations and to consummate the transactions contemplated hereby and by the Ancillary Agreements; provided, however, that, with respect to the foregoing clause (a), none of the following will constitute a Material Adverse Effect, or will be considered in determining whether a Material Adverse Effect has occurred: (i) changes that are generally applicable to the industries or markets in which the Group Companies operate; (ii) changes in Law or GAAP or the interpretation thereof, in each case effected after the Execution Date; (iii) any failure of any Group Company to achieve any projected periodic revenue or earnings projection, forecast or budget prior to the Closing (it being understood that the underlying event, circumstance or state of facts giving rise to such failure may be taken into account in determining whether a Material Adverse Effect has occurred, but only to the extent otherwise permitted to be taken into account); (iv) changes that are the result of economic factors affecting the national, regional or world economy or financial markets, including increases in prices due to the increase of raw materials or product inputs or transportation costs; (v) any earthquake, hurricane, tsunami, tornado, flood, mudslide, wildfire or other natural disaster or act of God, including the COVID-19 pandemic; (vi) any national or international political conditions in any jurisdiction in which the Group Companies conduct business; (vii) the engagement by the United States in hostilities or the escalation thereof, whether or not pursuant to the declaration of a national emergency or war, or the occurrence or the escalation of any military or terrorist attack upon the United States, or any United States territories, possessions or diplomatic or consular offices or upon any United States military installation, equipment or personnel; (viii) any consequences arising from any action by a Party and that is expressly required by this Agreement, (ix) epidemics, pandemics, disease outbreaks (including COVID-19), or public health emergencies (as declared by the World Health Organization or the Health and Human Services Secretary of the United States) or any Law or guideline issued by a Governmental Entity, the Centers for Disease Control and Prevention or the World Health Organization or industry group providing for business closures, “sheltering-in-place” or other restrictions that relate to, or arise out of, an epidemic, pandemic or disease outbreak (including COVID-19), or (x) effects, events, changes, occurrences or circumstances resulting from the announcement or the existence of, this Agreement or the transactions contemplated hereby or the identity of the Buyer or its Affiliates; provided, however, that any event, circumstance or state of facts resulting from a matter described in any of the foregoing clauses (i), (ii), (iv) (iv), (v), (vi), (vii), and (ix) may be taken into account in determining whether a Material Adverse Effect has occurred to the extent such event, circumstance or state of facts has a disproportionate effect on the Group Companies, taken as a whole, relative to other similarly situated entities operating in the industries or markets in which the Group Companies operate (in which case only the incremental disproportionate effect or effects may be deemed either alone or in combination to constitute, or be taken into account in determining whether there has been, a Material Adverse Effect).

 

Material Contract” has the meaning set forth in Section 3.9(b).

 

Material Customer” has the meaning set forth in Section 3.9(c).

 

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

 

Material Suppliers” means the top 10 suppliers of materials, products or services to the Group Companies, taken as a whole (measured by aggregate amount purchased by the Group Companies) during the 12 months ended December 31, 2020.

 

MBR Authority” means (a) authorization by FERC pursuant to section 205 of the FPA to sell electric energy, capacity and/or ancillary services at market-based rates, (b) acceptance by FERC of a tariff providing for such sales, and (c) conferral by FERC of such regulatory waivers and blanket authorizations as are customarily granted by FERC to holders of market-based rate authority, including blanket authorization under section 204 of the FPA to issue securities and assume liabilities.

 

Measurement Time” means 12:01 a.m. Eastern Time on the Closing Date.

 

14

 

 

Merger” has the meaning set forth in the Recitals.

 

Merger Consideration” means (a) Enterprise Value, plus (b) the amount of Cash and Cash Equivalents, minus (c) the amount of Closing Company Indebtedness, plus (d) the amount, if any, of the Specified Capital Expenditures.

 

Merger Sub Interests” means the limited liability company interests of Company Merger Sub.

 

Minimum Cash Amount” means $150,000,000 (after giving effect to the Merger and any borrowings set to occur on the Closing Date, but excluding, for the avoidance of doubt, any cash held at Assai Energy, LLC).

 

MIP” means the Aria Energy Management Incentive Plan dated March 1, 2018.

 

MIP Cancellation Agreement” means the cancellation agreement entered by each MIP Participant to establish the MIP Participant’s payout under the MIP in connection with the Business Combination Transactions and confirm the termination of any future rights under the MIP.

 

MIP Participant” means an individual who is eligible for a payment under the MIP.

 

NGA” means the Natural Gas Act of 1938.

 

Non-Party Affiliate” has the meaning set forth in Section 11.14.

 

OFAC” has the meaning set forth in the definition of “Sanctions”.

 

OpCo Class A Units” means, collectively, the issued and outstanding Class A Units of Rice Holdings, in each case as issued and outstanding pursuant to the terms of the Rice Holdings LLCA.

 

OpCo Class B Units” means, collectively, the issued and outstanding Class B Units of Rice Holdings, in each case as issued and outstanding pursuant to the terms of the Rice Holdings LLCA.

 

OpCo Common Units” means, collectively, the OpCo Class A Units and OpCo Class B Units.

 

Order” means any order, writ, judgment, injunction, temporary restraining order, stipulation, determination, decree or award entered by or with any Governmental Entity or arbitral institution.

 

Ordinary Course of Business” means, with respect to any Person, any action taken by such Person in the ordinary course of business consistent with past practice.

 

Ordinary Course Tax Sharing Agreement” means any written commercial agreement entered into in the ordinary course of business of which the principal subject matter is not Tax but which contains customary Tax indemnification provisions.

 

Orrick” has the meaning set forth in Section 11.16(a)(i).

 

Outside Date” has the meaning set forth in Section 10.1(c).

 

Owned Intellectual Property” means all Intellectual Property owned or purported to be owned by any of the Group Companies.

 

Party” has the meaning set forth in the Preamble.

 

15

 

 

Pass-Through Income Tax” means any income Tax with respect to which the Company Unitholders (or any of their direct or indirect owners) would be primarily liable as a matter of Tax Law (e.g., the income Tax liability for items of income, gain, loss, deduction and credit passed-through to owners of an entity treated as a partnership for U.S. federal income Tax purposes).

 

Payoff Amount” has the meaning set forth in Section 2.2(c)(i)(B).

 

PCAOB” means the Public Company Accounting Oversight Board.

 

Permits” has the meaning set forth in Section 3.17(b).

 

Permitted Equity Financing” means purchases of RAC Common Stock on or prior to the Closing by Equity Financing Sources pursuant to Section 6.13(c).

 

Permitted Equity Financing Proceeds” has the meaning set forth in Section 6.13(c)(i).

 

Permitted Equity Subscription Agreement” means a Contract executed by an Equity Financing Source pursuant to which such Equity Financing Source has agreed to purchase for cash RAC Common Stock from RAC on or prior to the Closing pursuant to Section 6.13(c).

 

Permitted Liens” means (a) easements, permits, rights of way, restrictions, covenants, reservations or encroachments, minor defects or irregularities in and other similar Liens of record affecting title to the underlying fee interest in the Leased Real Property or the applicable Group Company’s interests therein which do not materially impair the current use or occupancy of such Leased Real Property in the operation of the business of any of the Group Companies currently conducted thereon, (b) statutory liens for Taxes, assessments or governmental charges or levies imposed with respect to property which are not yet due and payable or which are being contested in good faith through appropriate proceedings (provided appropriate reserves required pursuant to GAAP have been made in respect thereof), (c) Liens in favor of suppliers of goods for which payment is not yet due or delinquent (provided appropriate reserves required pursuant to GAAP have been made in respect thereof), (d) mechanics’, materialmen’s, workmen’s, repairmen’s, warehousemen’s, carrier’s and other similar Liens arising or incurred in the Ordinary Course of Business which are not yet due and payable or which are being contested in good faith (provided appropriate reserves required pursuant to GAAP have been made in respect thereof), (e) Liens arising under workers’ compensation Laws or similar legislation, unemployment insurance or similar Laws, (f) municipal bylaws, development agreements, restrictions or regulations, and zoning, entitlement, land use, building or planning restrictions or regulations, in each case, promulgated by any Governmental Entity having jurisdiction over the Leased Real Property, which do not materially impair the applicable Group Company’s current use or occupancy of the Leased Real Property, (g) in the case of Leased Real Property, any Liens to which the underlying fee interest in the leased premises (or the land on which or the building in which the leased premises may be located) is subject, including rights of the landlord under the Lease and all superior, underlying and ground leases and renewals, extensions, amendments or substitutions thereof, or granted to a third party by the applicable Group Company pursuant to any sublease, license or other right to use or occupy its Leased Real Property or any portion thereof which do not materially impair the use or occupancy of such Leased Real Property in the operation of the business of such Group Company currently conducted thereon, (h) Securities Liens, (i) those Liens set forth on Schedule 1.6, (j) non-exclusive licenses of Intellectual Property granted in the Ordinary Course of Business or (k) Liens or encroachments disclosed in policies, surveys and mineral rights reports provided to a Buyer Party.

 

Person” means any natural person, sole proprietorship, partnership, joint venture, trust, unincorporated association, corporation, limited liability company, entity or Governmental Entity.

 

16

 

 

Personal Information” means the same as “personal information,” “personal data,” or similar terms under applicable Privacy Laws.

 

PIPE Investment” has the meaning set forth in the Recitals.

 

PIPE Investor” has the meaning set forth in the Recitals.

 

PIPE Proceeds” means an amount equal to the cash proceeds from the PIPE Investment.

 

Post-Closing Projection Materials” has the meaning set forth in Section 6.8(b).

 

Pre-Closing Period” has the meaning set forth in Section 5.1.

 

Pre-Closing Tax Period” means any taxable period ending on or before the Closing Date and the portion of any Straddle Period through and including the Closing Date.

 

Privacy and Security Requirements” means any and all of the following to the extent applicable to Processing by or on behalf of the Group Companies or otherwise relating to privacy, data and cyber security, or security breach notification requirements and applicable to the Group Companies: (a) all Privacy Laws, (b) provisions relating to Processing of Personal Information in all applicable Privacy Contracts, (c) all applicable Privacy Policies and (d) the Payment Card Industry Data Security Standard.

 

Privacy Contracts” means all Contracts between any Group Company and any Person that govern the Processing of Personal Information.

 

Privacy Laws” means all applicable Laws pertaining to data protection, data privacy, data security, and cybersecurity.

 

Privacy Policies” means all written, external-facing policies of any Group Company governing the Processing of Personal Information, including all website and mobile application privacy policies.

 

Pro Rata Percentage” means, with respect to each Company Unitholder, the percentage equal to the product of (a) 100%, multiplied by (b) the quotient of (i) the aggregate number of Company Units held by such Company Unitholder, as applicable, as of immediately prior to the Effective Time but after giving effect to the Class C Unit Cancellation, divided by (ii) the Fully Diluted Number.

 

Proceeding” means any claim, suit, charge, litigation, complaint, investigation, audit, notice of violation, citation, arbitration, or other proceeding at law or in equity (whether civil, criminal or administrative) by or before any Governmental Entity.

 

Processing” means the collection, use or processing, of Personal Information (whether electronically or in any other form or medium).

 

Profits Interest Units” means the Class C Units of the Company granted pursuant the applicable Profits Interest Unit grant agreement, subject to the terms of the Company LLCA.

 

Proxy Statement” has the meaning set forth in Section 6.8(c).

 

PUHCA” means the Public Utility Holding Company Act of 2005.

 

17

 

 

Qualifying Facility” means a “qualifying small power production facility” as defined in Section 3(17)(C) of the FPA, 16 U.S.C. § 796(17)(C), and FERC’s implementing regulations at 18 C.F.R. §§ 292.203(a) and 292.204.

 

R&W Insurance Policy” means that certain Buyer-Side Representations and Warranties Insurance Policy issued by Liberty Surplus Insurance Corporation and bound as of the Execution Date in favor of Rice Holdings as the named insured.

 

RAC” has the meaning set forth in the Preamble.

 

RAC Board” means the Board of Directors of RAC, including any special committee thereof formed and empowered to approve the Business Combination Transactions.

 

RAC Bylaws” means the bylaws of RAC as amended and/or restated from time to time.

 

RAC Certificate of Incorporation” means the certificate of incorporation of RAC as amended and/or restated from time to time.

 

RAC Class B Common Stock” means Class B Common Stock of RAC, as issued pursuant to the RAC Governing Documents.

 

RAC Common Stock” means the Class A common stock of RAC, authorized pursuant to the RAC Certificate of Incorporation.

 

RAC Governing Documents” means the RAC Certificate of Incorporation and the RAC Bylaws, as in effect at such time.

 

RAC Preferred Stock” means Preferred Stock of RAC, as issued pursuant to the RAC Governing Documents.

 

RAC Public Securities” means the issued and outstanding RAC Stock and the RAC Warrants.

 

RAC Record Date” has the meaning set forth in Section 6.8(c).

 

RAC SEC Documents” has the meaning set forth in Section 4.17(a).

 

RAC SEC Filings” means the forms, reports, schedules, registration statements and other documents filed by RAC with the SEC, including the Proxy Statement, Additional RAC Filings, the Signing Form 8-K and the Closing Form 8-K, and all amendments, modifications and supplements thereto.

 

RAC Share Redemption” means the election of an eligible holder of the RAC Common Stock (as determined in accordance with the applicable RAC Governing Documents and the Trust Agreement) to redeem all or a portion of such holder’s RAC Common Stock, at the per-share price, payable in cash, equal to such holder’s pro rata share of the Trust Account (as determined in accordance with the applicable RAC Governing Documents and the Trust Agreement) in connection with the RAC Stockholder Meeting.

 

RAC Special Committee” means the special committee of the RAC Board, as designated by the RAC Board pursuant to the RAC Governing Documents.

 

RAC Stock” means, collectively, RAC Common Stock, RAC Class B Common Stock and RAC Preferred Stock, in each case as issued and outstanding pursuant to the terms of the RAC Governing Documents.

 

18

 

 

RAC Stockholder Meeting” means a meeting of the RAC Stockholders to vote on the RAC Stockholder Voting Matters.

 

RAC Stockholder Voting Matters” means, collectively, proposals to approve (a) the adoption and approval by the RAC Board, upon recommendation of the RAC Special Committee, of this Agreement, the Archaea Agreement and the Business Combination Transactions and (b) the adoption and approval of the issuance of shares of RAC Common Stock, including any RAC Common Stock to be issued in connection with the Business Combination Transactions, including the PIPE Investment and the Permitted Equity Financing, as may be required under the Stock Exchange listing requirements.

 

RAC Stockholders” means the holders of RAC Stock.

 

RAC Warrants” means the warrants to buy shares of RAC issued pursuant to the Warrant Agreement.

 

Reference Price” means $10.00.

 

Representatives” means, with respect to any Person, the officers, directors, managers, employees, representatives or agents (including investment bankers, financial advisors, attorneys, accountants, brokers, engineers and other advisors or consultants) of such Person, to the extent that such officer, director, employee, representative or agent of such Person is acting in his or her capacity as an officer, director, employee, representative or agent of such Person.

 

Required Vote” means the affirmative vote of the holders of (a) a majority in voting power of the outstanding shares of RAC Stock, and (b) a majority in voting power of the outstanding shares of RAC Stock held by RAC Stockholders who are not Affiliates or associates of Rice Investment Group.

 

Resolution Period” has the meaning set forth in Section 2.4(b).

 

Retiree Welfare Plan” has the meaning set forth in Section 3.15(b).

 

Review Period” has the meaning set forth in Section 2.4(b).

 

Rice Holdings” has the meaning set forth in the Preamble.

 

Rice Holdings A&R LLCA” has the meaning set forth in the Recitals.

 

Rice Holdings LLCA” means the amended and restated limited liability company agreement of the Buyer, dated as of October 21, 2020 as it may be amended and/or restated from time to time in accordance with its terms.

 

Sanctioned Country” means any country or region that is the subject or target of a comprehensive embargo under Sanctions (including, Cuba, Iran, North Korea, Venezuela, Syria and the Crimea region of Ukraine).

 

Sanctioned Person” means any Person that is: (a) listed on any U.S. or non-U.S. sanctions-related restricted party list, including OFAC’s Specially Designated Nationals and Blocked Persons List, the EU Consolidated List and HM Treasury’s Consolidated List of Persons Subject to Financial Sanctions, (b) in the aggregate, 50% or greater owned, directly or indirectly, or otherwise controlled by a Person or Persons described in clause (a), or (c) organized, resident or located in a Sanctioned Country.

 

19

 

 

Sanctions” means all Laws and Orders relating to economic or trade sanctions administered or enforced by the United States (including by the U.S. Department of Treasury Office of Foreign Assets Control (“OFAC”), the U.S. Department of State and the U.S. Department of Commerce), Canada, the United Kingdom, the United Nations Security Council, or the European Union.

 

SEC” means the United States Securities and Exchange Commission.

 

Securities Act” means the Securities Act of 1933.

 

Securities Exchange Act” means the Securities Exchange Act of 1934.

 

Securities Liens” means Liens arising out of, under or in connection with (a) applicable federal, state and local securities Laws and (b) restrictions on transfer, hypothecation or similar actions contained in any Governing Documents.

 

Security Breach” means a data security breach or breach of Personal Information under applicable Laws.

 

Security Incident” means any successful unauthorized access, use, disclosure, modification or destruction of information or interference with IT Assets.

 

Seller Advisor Fees” means those advisor fees set forth on Schedule 1.7.

 

Sherman Act” means the Sherman Antitrust Act of 1890.

 

Signing Form 8-K” has the meaning set forth in Section 6.8(b).

 

Signing Press Release” has the meaning set forth in Section 6.8(b).

 

Software” means all computer software programs and Databases (and all derivative works, foreign language versions, enhancements, versions, releases, fixes, upgrades and updates thereto), whether in source code, object code or human readable form, and manuals, design notes, programmers’ notes and other documentation related to or associated with any of the foregoing.

 

Specified Capital Expenditures” means the aggregate amount of Capital Expenditures determined as of the Measurement Time.

 

Sponsor” means Rice Acquisition Sponsor LLC.

 

Sponsor Related Person Transactions” has the meaning set forth in Section 6.8(b).

 

State Commission” has the meaning set forth in 18 C.F.R. § 1.101(k).

 

Stock Exchange” means the New York Stock Exchange.

 

Stockholders Agreement” has the meaning set forth in the Recitals.

 

Straddle Period” means any taxable period that begins on or before (but does not end on) the Closing Date.

 

Subscription Agreement” has the meaning set forth in the Recitals.

 

20

 

 

Subsidiaries” means, of any Person, any corporation, association, partnership, limited liability company, joint venture or other business entity of which more than fifty percent (50%) of the voting power or equity is owned or controlled directly or indirectly by such Person, or one (1) or more of the Subsidiaries of such Person, or a combination thereof.

 

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

 

Tail Policy” has the meaning set forth in Section 6.12(b)(ii).

 

Tax” or “Taxes” means (a) all net or gross income, net or gross receipts, net or gross proceeds, payroll, employment, excise, severance, stamp, occupation, windfall or excess profits, profits, customs, capital stock, withholding, social security, unemployment, disability, real property, personal property (tangible and intangible), unclaimed property, escheat, sales, use, transfer, value added, alternative or add-on minimum, capital gains, user, leasing, lease, natural resources, ad valorem, franchise, gaming license, capital, estimated, goods and services, fuel, interest equalization, registration, recording, premium, environmental or other taxes, assessments, duties or similar charges, including all interest, penalties and additions imposed with respect to (or in lieu of) the foregoing, imposed by (or otherwise payable to) any Governmental Entity, and, in each case, whether disputed or not, (b) any Liability for, or in respect of the payment of, any amount of a type described in clause (a) of this definition as a result of Treasury Regulations Section 1.1502-6 (or any similar provision of any Law) or being a member of an affiliated, combined, consolidated, unitary, aggregate or other group for Tax purposes and (c) any Liability for, or in respect of the payment of, any amount described in clause (a) or (b) of this definition as a transferee or successor, by contract, by operation of Law, or otherwise.

 

Tax Basis Balance Sheet” has the meaning set forth in Section 8.1(e).

 

Tax Contest” has the meaning set forth in Section 8.1(i).

 

Tax Positions” has the meaning set forth in Section 8.1(g).

 

Tax Returns” means returns, declarations, reports, claims for refund, information returns, elections, disclosures, statements, or other documents (including any related or supporting schedules, attachments, statements or information, and including any amendments thereof) filed or required to be filed with a Governmental Entity in connection with, or relating to, Taxes.

 

Tax Sharing Agreement” means any agreement or arrangement (including any provision of a Contract) pursuant to which any Group Company is or may be obligated to indemnify any Person for, or otherwise pay, any Tax of or imposed on another Person, or indemnify, or pay over to, any other Person any amount determined by reference to actual or deemed Tax benefits, Tax assets, or Tax savings.

 

Taxing Authority” means any Governmental Entity having jurisdiction over the assessment, determination, collection, administration or imposition of any Tax.

 

Total Individual Company Class A Unitholder Merger Consideration” has the meaning set forth in Section 2.1(a)(iv)(A).

 

Total Individual Company Class B Unitholder Merger Consideration” has the meaning set forth in Section 2.1(a)(iv)(B).

 

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

 

21

 

 

Transaction Expenses” means to the extent not paid as of the Closing by the Buyer, any Group Company, the Equityholder Representative, or any Company Unitholder (including the Seller Advisor Fees):

 

(a) all fees, costs and expenses (including fees, costs and expenses of third-party advisors, legal counsel, accountants, investment bankers (including any deferred underwriting discount), or other advisors, service providers or Representatives) including brokerage fees and commissions, incurred or payable by the Buyer or the Sponsor through the Closing in connection with the preparation of the financial statements in connection with the filings required in connection with the transactions contemplated by this Agreement, the negotiation and preparation of this Agreement, the Ancillary Agreements and the Proxy Statement and the consummation of the transactions contemplated hereby and thereby (including due diligence) or in connection with Buyer’s pursuit of a Business Combination, and the performance and compliance with all agreements and conditions contained herein or therein to be performed or complied with;

 

(b) all fees, costs and expenses (including fees, costs and expenses of third-party advisors, legal counsel, investment bankers, or other Representatives), incurred or payable by the Group Companies, the Equityholder Representative or the Company Unitholders through the Closing in connection with the preparation of the Financial Statements, the negotiation and preparation of this Agreement, the Ancillary Agreements and the Proxy Statement and the consummation of the transactions contemplated hereby and thereby;

 

(c) any fees, costs and expenses incurred or payable by the Buyer, the Sponsor or any Group Company through the Closing in connection with entry into and the negotiation of the Subscription Agreements and any Permitted Equity Subscription Agreement and the consummation of the transactions contemplated by the Subscription Agreements and any Permitted Equity Subscription Agreement or otherwise related to any financing activities in connection with the transactions contemplated hereby and the performance and compliance with all agreements and conditions contained therein;

 

(d) any amounts incurred under or in connection with any retention, severance, transaction, change in control, phantom equity, and similar bonuses or arrangements that are owed by a Group Company to any current or former employee or other individual service provider and that will be triggered, as a result of the transactions contemplated by this Agreement plus the employer portion of any payroll or other employment Taxes related thereto (including, to the extent not included in the computation of Company Indebtedness, all “applicable employment taxes” (as defined in Section 2302(d)(1) of the CARES Act) that any Group Company has elected to defer pursuant to Section 2302 of the CARES Act, and all payroll or other employment 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)), in each case, determined as though all such obligations were payable as of the Closing Date and other than severance payments that are triggered by a termination of employment that occurs following the Closing at the direction of any Buyer Party and any amounts payable in connection with any agreement or termination of employment entered into or effectuated at the direction of the Buyer Parties;

 

(e) all fees, costs and expenses paid or payable pursuant to the Tail Policy;

 

(f) all filing fees paid or payable to a Governmental Entity in connection with any filing required to be made under the HSR Act;

 

(g) all fees, costs and expenses paid or payable to the Transfer Agent;

 

22

 

 

(h) any amounts unpaid under the terms of any Affiliated Transaction, or related to the termination of any Affiliated Transaction;

 

(i) all Transfer Taxes; and

 

(j) all fees, costs and expenses (including fees, costs and expenses of third-party advisors, legal counsel, accountants, investment bankers, or other advisors, service providers or Representatives) including original issue discount and brokerage fees and commissions, incurred or payable by any of the Buyer, the Sponsor, any of the Group Companies or any Company Unitholder in connection the negotiation, preparation or consummation of the Debt Financing.

 

Transaction Expenses Amount” has the meaning set forth in Section 2.2(c)(i)(C).

 

Transaction Tax Deductions” means any amount that is deductible for income Tax purposes that is incurred by any Group Company in connection with the transactions contemplated herein (excluding, for the avoidance of doubt, any amount (including with respect to any Transaction Expense) that is or was an obligation of, or incurred or payable by, the Buyer or the Sponsor or their relevant Affiliates), including (a) the payment of stay bonuses, sales bonuses, change in control payments, severance payments, retention payments or similar payments made by any Group Company on or around the Closing Date; (b) the fees, expenses and interest (including amounts treated as interest for U.S. federal income Tax purposes and any breakage fees or accelerated deferred financing fees) incurred by any Group Company with respect to the payment of Company Indebtedness by (or for the benefit of) the Group Companies on or prior to the Closing Date; (c) the employer portion of the amount of any employment taxes with respect to the amounts set forth in clause (a) of this definition paid by any Group Company on or prior to the Closing Date; and (d) the payment of any other Transaction Expenses not included in clauses (a) through (c). The amount of the Transaction Tax Deductions will be computed assuming that an election is made under Revenue Procedure 2011-29 to deduct 70% of any Transaction Tax Deductions that are success-based fees (as described in Revenue Procedure 2011-29).

 

Transfer Agent” means Continental Stock Transfer & Trust Company.

 

Transfer Taxes” means all transfer, documentary, sales, use, value added, goods and services, stamp, registration, notarial fees and other similar Taxes and fees incurred in connection with the transactions contemplated hereby.

 

Treasury Regulations” means the United States Treasury Regulations promulgated under the Code.

 

Trust Account” means the trust account established by RAC pursuant to the Trust Agreement.

 

Trust Agreement” means that certain Investment Management Trust Agreement, dated of October 23, 2020, by and between RAC and Continental Stock Transfer & Trust Company.

 

Trust Amount” has the meaning set forth in Section 4.16.

 

Trust Distributions” has the meaning set forth in Section 11.9.

 

Trustee” means Continental Stock Transfer & Trust Company, acting as trustee of the Trust Account.

 

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

 

23

 

 

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

 

Valuation Firm” has the meaning set forth in Section 2.4(b).

 

Waived 280G Benefits” has the meaning set forth in Section 6.15.

 

Waiving Parties” has the meaning set forth in Section 11.16(a)(i).

 

WARN Act” means the Worker Adjustment and Retraining Notification Act of 1988 or any similar or related Law.

 

Warrant Agreement” means that certain Warrant Agreement, dated as of October 21, 2020, between RAC and the Transfer Agent as it may be amended and/or restated from time to time in accordance with its terms.

 

24

 

 

Article II
THE MERGER; CLOSING

 

Section 2.1 Closing Transactions; Merger.

 

(a) Closing Transactions.

 

(i) Merger. Upon the terms and subject to the conditions set forth herein, and in accordance with the DLLCA, at the Effective Time, Company Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Company Merger Sub shall cease, and the Company shall continue as the surviving company (sometimes referred to, in such capacity, as the “Surviving Company”).

 

(ii) Closing; Effective Time. The closing of the Merger and the closing of the other transactions contemplated by or in connection with the Merger (the “Closing”) shall take place by conference call and by exchange of signature pages by email or other electronic transmission at 9:00 a.m. Eastern Time on (i) the fourth Business Day after the conditions set forth in Article IX have been satisfied, or, if permissible, waived by the Party entitled to the benefit of the same (other than those conditions which by their terms are required to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing) or (ii) such other date and time as the Parties mutually agree (the date upon which the Closing occurs, the “Closing Date”); provided, however, that without the written consent of the Company and the Buyer, the Closing shall occur no earlier than the first Business Day that is at least 45 days after the Execution Date. On the Closing Date, the Parties shall cause the Merger to be consummated by filing a certificate of merger with the Secretary of State of the State of Delaware (the “Certificate of Merger”), in such form as required by, and executed in accordance with, Section 18-209 of the DLLCA, as applicable (the date and time of the filing with the Secretary of State of the State of Delaware, or, if another later date and time is specified in such filing, such specified later date and time, being the “Effective Time”).

 

(iii) Effect of the Merger. At the Effective Time, the effect of the Merger shall be as provided in this Agreement, the Buyer Governing Documents, the RAC Governing Documents, the organizational documents of the Group Companies and in the applicable provisions of the DLLCA. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, except as otherwise provided herein, all the property, assets, rights, privileges, powers and franchises of the Company and Company Merger Sub shall vest in the Surviving Company, and all debts, liabilities, duties and obligations of the Company and Company Merger Sub shall become the debts, liabilities, duties and obligations of the Surviving Company. In addition, at the Effective Time, by virtue of the Merger and without any action on the part of any Party, all of the Merger Sub Interests shall be cancelled for no consideration, shall cease to exist and shall no longer be outstanding.

 

(iv) Company Units. At the Effective Time, by virtue of the Merger and without any action on the part of any Party, all the Company Units that are issued and outstanding immediately prior to the Effective Time (other than Cancelled Equity Interests) shall, at the Effective Time, be cancelled, shall cease to exist and shall no longer be outstanding and shall be converted into the right to receive (and upon such conversion pursuant to this Section 2.1(a)(iv) shall have no further rights with respect thereto):

 

25

 

 

(A) With respect to any Class A Units held by a Company Unitholder: in the aggregate with respect to all such Class A Units held by such Company Unitholder, the right to receive the Closing Company Class A Unitholder Merger Consideration ( “Total Individual Company Class A Unitholder Merger Consideration”); and

 

(B) With respect to any Class B Units held by a Company Unitholder: in the aggregate with respect to all such Class B Units held by such Company Unitholder, the right to receive the Closing Company Class B Unitholder Merger Consideration (collectively, the “Total Individual Company Class B Unitholder Merger Consideration”).

 

(b) Class C Units and Equity Interests Held in Treasury or Owned. At the Effective Time, by virtue of the Merger and without any action on the part of any Party, any Company Units that are denominated as Class C Units or held in the treasury of the Company or owned by any Subsidiary of the Company immediately prior to the Effective Time shall be cancelled and extinguished without any conversion thereof (the “Class C Unit Cancellation”), and no payment shall be made with respect thereto (any such limited liability company interests or other Equity Interests or such Company Units, “Cancelled Equity Interests”). At the Effective Time, the Company shall have taken all actions necessary to (i) effectuate this Section 2.1(b) in accordance with the Company LLCA and applicable equity plans and award agreements, if any, and (ii) terminate any and all applicable equity plans under which the Class C Units were issued.

 

(c) Company Certificate of Formation and Company LLCA Amendment and Restatement. At the Effective Time, the certificate of formation of the Company (as previously amended and/or restated) shall be the certificate formation of the Surviving Company until thereafter amended in accordance with applicable law. At the Effective Time, by virtue of the Merger, the Company LLCA shall be amended and restated as set forth on Exhibit B hereto and shall thereafter be the limited liability company agreement of the Surviving Company until thereafter amended in accordance with the provisions thereof and applicable law (the “LLCA Amendment and Restatement”).

 

(d) Directors and Officers. Effective as of the Closing, (i) the Sponsor, RAC and the Equityholder Representative shall cooperate and take any actions necessary so that the board of directors of RAC shall be composed as set forth in the Stockholders Agreement, to serve in accordance with the RAC Governing Documents, and (ii) the officers of RAC to be effective from and after the Closing shall be as set forth in the RAC Governing Documents. Immediately following the Closing, the Buyer (through the Buyer’s governing body), as sole member of the Surviving Company, shall appoint the officers of the Surviving Company, to be effective immediately after the Closing, each to hold office in accordance with the Company A&R LLCA. The Surviving Company shall be member-managed, and in connection with the LLCA Amendment and Restatement, the Buyer shall be admitted as a member and the managing member of the Company pursuant to the terms of the Company A&R LLCA.

 

26

 

 

Section 2.2 Estimated Merger Consideration.

 

(a) Estimated Merger Consideration. No later than five Business Days prior to the Closing, the Company shall deliver to the Buyer: (i) a good faith estimate of the Merger Consideration (the “Estimated Merger Consideration”) pursuant to which the Company shall (A) use the Enterprise Value and (B) estimate (1) the amount of Cash and Cash Equivalents (which amount of Cash and Cash Equivalents shall not exceed $10,000,000), (2) the amount of Closing Company Indebtedness, (3) the amount of Specified Capital Expenditures and (4) the amount of Transaction Expenses and (ii) the Allocation Schedule as a schedule thereto ((i) and (ii) together, the “Estimated Closing Statement”). Following delivery of the Estimated Closing Statement, the Company will provide the Buyer, Archaea, and their respective accountants and other Representatives with a reasonable opportunity to review the Estimated Closing Statement. At least two Business Days prior to the Closing Date, the Buyer or Archaea may notify the Company of any comments or questions with respect to the Estimated Closing Statement and the Company shall (x) consider in good faith such comments or questions to the Estimated Closing Statement and (y) prepare and deliver an updated Estimated Closing Statement to the Company prior the Closing Date reflecting any agreed upon changes resulting from such comments or questions. Notwithstanding the foregoing, the Company’s estimates set forth in the Estimated Closing Statement delivered to the Buyer in accordance with this Agreement shall control and be binding for purposes of the Closing except to the extent adjustments thereto have been agreed to in writing by the Parties (including any adjustments thereto resulting from the comments or questions raised in the immediately preceding sentence). Each of the Company and the Equityholder Representative (on behalf of the Company Unitholders) hereby acknowledge and agree that the Buyer may rely upon the Allocation Schedule, and in no event will the Buyer or any of its Affiliates (including the Surviving Company) have any liability to any Company Unitholder or other Person with respect to the allocation of the Merger Consideration payable under this Agreement or pursuant to the Merger or on account of payments made in accordance with the terms hereof as set forth in the Allocation Schedule; provided, however, that in no event shall the amounts set forth on the Allocation Schedule result in, or require the Buyer to issue or pay hereunder, an amount greater than the Merger Consideration.

 

(b) Payment of the Company Unitholder Merger Consideration. At the Effective Time, RAC shall, and shall cause Rice Holdings and the Buyer to, provide the Company Interest to the Company Unitholders pursuant to Section 2.1 and shall cause the Transfer Agent to provide to each Company Unitholder immediately prior to the Effective Time, evidence of book-entry shares representing the whole number of each component part of the Company Interests to which such Company Unitholder is entitled to, as applicable, pursuant to Section 2.1(a)(iv)(A) and Section 2.1(a)(iv)(B) receive in respect of such Equity Interests or Company Units held by such Company Unitholder. It is expressly understood and agreed that (x) the delivery of the Company Interests under this Section 2.2(b) and (y) payment of cash under Section 2.2(c) shall be in full satisfaction of Buyer’s obligation with respect to such amounts, and, once paid in accordance with the terms hereof, Buyer and its Affiliates shall have no liability to the Equityholder Representative, any Company Unitholder or any other Person for any amounts in respect of the same.

 

(c) Buyer Cash Amount; Payment of Other Amounts at Closing.

 

(i) Cash Amount. On the terms and subject to the conditions set forth herein, on the Closing Date, immediately after the Effective Time:

 

(A) RAC shall cause Rice Holdings to hold cash in the amount of Available Closing Date Cash (after reductions for the cash distributed to RAC to give effect to the RAC Share Redemptions and the cash payments contemplated by the Archaea Agreement), less the Base Aggregate Cash Amount (the “Buyer Cash Amount”).

 

27

 

 

(B) The Surviving Company shall pay or cause to be paid the amount set forth in the pay-off letter in respect of any Company Indebtedness as of the Measurement Time under the Credit Agreement (such amount the “Payoff Amount”), which pay-off letter shall be customary and reasonably acceptable to the Buyer, and provide that, if such aggregate amount so identified is paid on the Closing Date, such Company Indebtedness shall be repaid in full, that all Liens (except for Permitted Liens) affecting any property and/or proceeds of property of any Group Company will be released to the account(s) set forth therein and that the relevant lender and/or administrative agent shall forthwith execute and deliver to the Buyer all terminations and releases as reasonably requested necessary to evidence the foregoing termination (the “Credit Agreement Payoff Letter”);

 

(C) The Surviving Company shall pay or cause to be paid, out of the Buyer Cash Amount, the Transaction Expenses to the accounts provided by the Parties at least one (1) Business Day prior to the Closing Date (the “Transaction Expenses Amount”); and

 

(ii) Payment of Company Class A Unitholder Cash Consideration and Company Class B Unitholder Cash Consideration. On the terms and subject to the conditions set forth herein, on the Closing Date, immediately after the Effective Time, RAC shall cause the Buyer to pay to each Company Unitholder the Company Class A Unitholder Cash Consideration and Company Class B Unitholder Cash Consideration allocable to such Company Unitholder, in each case to an account designated by such Company Unitholder on the Allocation Schedule attached hereto.

 

(iii) Payment of Other Amounts at Closing. On the terms and subject to the conditions set forth herein, on the Closing Date, immediately after the Effective Time, RAC shall cause the Buyer to pay, on behalf of the Company Unitholders, the Seller Advisor Fees to the account or accounts provided to the Buyer by the Equityholder Representative (in good faith and with reasonable supporting documentation) at least three Business Days prior to the Closing Date.

 

Section 2.3 Procedures for Company Unitholders. Prior to the Closing Date, the Company shall request in writing that the Persons set forth on Schedule 1.2 deliver, or cause to be delivered, not less than five Business Days prior to the Closing Date, duly executed counterparts to the Stockholders Agreement, in each case, executed by such Persons (such materials, collectively, the “Equityholder Materials”).

 

Section 2.4 Post-Closing Adjustment to Merger Consideration.

 

(a) Within 90 days after the Closing Date, the Buyer shall prepare and deliver to the Equityholder Representative a statement (the “Closing Statement”) setting forth in reasonable detail the Buyer’s good faith calculation of (i) the amount of Cash and Cash Equivalents (the “Final Closing Cash), (ii) the amount of Closing Company Indebtedness (the “Final Closing Company Indebtedness), (iii) the amount of Specified Capital Expenditures (the “Final Specified Capital Expenditures”) and (iv) the Merger Consideration, in each case prepared in accordance with the definitions thereof and GAAP and including reasonably detailed calculations of the components thereof to enable a review thereof by the Equityholder Representative.

 

28

 

 

(b) The Equityholder Representative shall have 30 days after its receipt of the Closing Statement (the “Review Period”) within which to review the Closing Statement and to deliver to the Buyer written notice of the Equityholder Representative’s disagreement with any item contained in the Closing Statement, which notice shall set forth in reasonable detail the basis for such disagreement and dollar amount of such dispute (to the extent possible) and attaching reasonable supporting details to enable a review thereof by the Buyer (a “Dispute Notice”). The Closing Statement shall become final, conclusive and binding on the Parties following the Review Period unless the Equityholder Representative delivers to the Buyer a Dispute Notice within the Review Period. If the Equityholder Representative timely delivers a Dispute Notice, any amounts on the Closing Statement not objected to by Equityholder Representative in the Dispute Notice (or by the Buyer as a result of the items disputed by the Equityholder Representative in such Dispute Notice) shall be final, conclusive and binding on the Parties, and the Buyer and the Equityholder Representative shall, within 30 days following the Buyer’s receipt of such Dispute Notice (the “Resolution Period”), seek in good faith to resolve in writing their differences with respect to the items set forth in the Dispute Notice, and any such resolution shall be final, conclusive and binding on the Parties. If, at the conclusion of the Resolution Period, any amounts remain in dispute, then each of the Buyer and the Equityholder Representative shall promptly, and in any event, within 10 days, execute any reasonable engagement letter requested by the Valuation Firm and submit all items remaining in dispute to (i) with respect to all matters on the Closing Statement other than the Final Specified Capital Expenditures, an independent nationally recognized firm of independent certified public accountants and (ii) with respect to the Final Specified Capital Expenditures, an independent nationally recognized firm that has qualified expertise to assess the determination of the Final Specified Capital Expenditures, in each case, as determined mutually by the Parties (as applicable, the “Valuation Firm”) for resolution, acting as an accounting expert (and not as an arbitrator) and in accordance with the standards set forth in this Section 2.4(b), by delivering, within 10 days after engagement of the Valuation Firm, their written position with respect to such items remaining in dispute. The Valuation Firm’s determination shall be based on (x) one written presentation submitted by each of the Equityholder Representative and the Buyer (which the Valuation Firm shall be instructed to distribute to the Equityholder Representative and the Buyer upon receipt of both presentations) and (y) on one written response by each of the Equityholder Representative and the Buyer (which the Valuation Firm shall be instructed to distribute to the Equityholder Representative and the Buyer upon receipt of both such responses) (i.e., not on the basis of an independent review). The Buyer and the Equityholder Representative shall each cooperate fully with the Valuation Firm so as to enable the Valuation Firm to make such determination as quickly and as accurately as practicable; provided that no Party (or any of its Affiliates, advisors or Representatives) shall engage in any ex parte communications with the Valuation Firm. The Valuation Firm shall determine, based solely on the presentations and responses submitted by the Equityholder Representative and the Buyer, and not by independent review, only those issues set forth in the Dispute Notice (and those raised by the Buyer in response thereto) that remain in dispute and shall determine a value for any such disputed item which is equal to or between the final values proposed by the Buyer and the Equityholder Representative in their respective submissions. The Parties shall request that the Valuation Firm make a decision with respect to all remaining disputed items in the Dispute Notice within 30 days after the submissions of the Parties, as provided above, and in any event as promptly as practicable. The final determination with respect to all disputed items in the Dispute Notice submitted to the Valuation Firm shall be set forth in a written statement by the Valuation Firm delivered to the Equityholder Representative and the Buyer and shall be final, conclusive and binding on the Parties, absent fraud or manifest error. Judgment may be entered upon the determination of the Valuation Firm in any court having jurisdiction over the Party against which such determination is to be enforced. The fees and expenses of the Valuation Firm incurred pursuant to this Section 2.4(b) shall be borne by Equityholder Representative, on the one hand, and the Buyer, on the other hand, in inverse proportion to the final allocation made by such Valuation Firm of any disputed items in the Dispute Notice submitted to the Valuation Firm such that the prevailing Party pays the lesser proportion of such fees, costs and expenses. For example, if the Equityholder Representative claims that the appropriate adjustments are $1,000 greater than the amount determined by the Buyer and if the Valuation Firm ultimately resolves the dispute by awarding to the Equityholder Representative $700 of the $1,000 disputed, then the fees, costs and expenses of the Valuation Firm will be allocated 70% (i.e., 700 ÷ 1,000) to the Buyer and 30% (i.e., 300 ÷ 1,000) to the Equityholder Representative.

 

29

 

 

(c) From and after the Equityholder Representative’s receipt of the Closing Statement until the Final Closing Cash, Final Closing Company Indebtedness and the Final Specified Capital Expenditures are finally determined pursuant to this Section 2.4, the Equityholder Representative, its Affiliates and their auditors, accountants and other representatives shall be, upon reasonable advance notice to the Buyer, permitted reasonable access during normal business hours to the Company, its Subsidiaries and the Buyer and their respective auditors, accountants, personnel, books and records and any other documents or information reasonably requested by such Person relating to any item properly raised in a Dispute Notice (including the information, data and work papers used by the Buyer and/or the Company’s or its subsidiaries’ auditors or accountants to prepare and calculate the Final Closing Cash, Final Closing Company Indebtedness and the Final Specified Capital Expenditures, but excluding information the disclosure of which, Buyer has been advised by legal counsel in good faith, could reasonably be expected to jeopardize any applicable privilege (including the attorney-client privilege) and, subject to such Person and their auditors, accountants and other Representatives entering into any such access letters reasonably required).

 

(d) Adjustment to Merger Consideration.

 

(i) If the Merger Consideration, as finally determined pursuant to Section 2.4(b) exceeds the Estimated Merger Consideration (such excess amount, the “Excess Amount”) then, within five Business Days after the date on which the Merger Consideration is finally determined, the Buyer shall pay the Excess Amount to the Equityholder Representative in immediately available funds to an account designated in writing by the Equityholder Representative.

 

(ii) If the Estimated Merger Consideration exceeds the Merger Consideration as finally determined pursuant to Section 2.4(b) (such amount, the “Deficit Amount”) then, within five Business Days after the date on which the Merger Consideration is finally determined, the Equityholder Representative shall (x) pay the Deficit Amount to the Buyer in immediately available funds to an account designated by the Buyer; provided that, if the Equityholder Representative fails to deliver the Deficit Amount to the Buyer within five Business Days after the date on which the Merger Consideration is finally determined, the RAC shall, and shall cause Rice Holdings to cancel:

 

(A) a whole number of each component part of the Company Interests issued to each Company Class A Unitholder on the Closing Date such that the aggregate number of Company Interests issued to such Company Class A Unitholder pursuant to this Agreement and not so cancelled is equal to the sum of (1) the number of Company Interests such Company Class A Unitholder would have received on the Closing Date if the finally determined Merger Consideration, rather than the Estimated Merger Consideration, were used for purposes of determining the Closing Company Class A Unitholder Merger Consideration, in each case as rounded down to the nearest whole OpCo Class A Unit and share of RAC Class B Common Stock that comprise such Company Interests to the extent of any fractional units (if any) plus (2) a number of Company Interests (rounded down to the lowest whole OpCo Class A Unit and share of RAC Class B Common Stock that comprise such Company Interests) equal to (x) the Company Class A Unitholder Cash Consideration such Company Class A Unitholder would have received on the Closing Date if the finally determined Merger Consideration, rather than the Estimated Merger Consideration, were used for purposes of determining the Closing Company Class A Unitholder Merger Consideration divided by (y) the Reference Price;

 

30

 

 

(B) a whole number of each component part of the Company Interests issued to each Company Class B Unitholder on the Closing Date such that the aggregate number of Company Interests issued to such Company Class B Unitholder pursuant to this Agreement and not so cancelled is equal to the sum of (1) the number of Company Interests such Company Class B Unitholder would have received on the Closing Date if the finally determined Merger Consideration, rather than the Estimated Merger Consideration, were used for purposes of determining the Closing Company Class B Unitholder Merger Consideration, in each case as rounded down to the nearest whole OpCo Class A Unit and share of RAC Class B Common Stock that comprise such Company Interests to the extent of any fractional units (if any) plus (2) a number of Company Interests (rounded down to the lowest whole OpCo Class A Unit and share of RAC Class B Common Stock that comprise such Company Interests) equal to (x) the Company Class B Unitholder Cash Consideration such Company Class B Unitholder would have received on the Closing Date if the finally determined Merger Consideration, rather than the Estimated Merger Consideration, were used for purposes of determining the Closing Company Class B Unitholder Merger Consideration divided by (y) the Reference Price.

 

(e) Any such payments or surrender, as applicable, made pursuant to this Section 2.4 shall be deemed an adjustment to the Merger Consideration for all purposes, including for income Tax purposes, to the extent permitted by applicable Law.

 

(f) For the avoidance of doubt, the adjustments under Section 2.4(d)(i) and Section 2.4(d)(ii) shall be calculated in a manner such that the amount of Equity Interests issued or cancelled on a per share basis, as relevant, shall be equal to (i) the difference between (x) the Estimated Merger Consideration and (y) the Merger Consideration as finally determined in accordance with Section 2.4(b) divided by (ii) the Reference Price.

 

Section 2.5 Company Closing Deliveries. At the Closing, the Company shall deliver, or shall cause to be delivered, the following:

 

(a) to the Buyer, duly executed counterparts of the Stockholders Agreement;

 

(b) to the Buyer, duly executed counterparts of each of the applicable Company Unitholders in respect of the Rice Holdings A&R LLCA, executed by each respective applicable Company Unitholders;

 

(c) to the Buyer, a duly executed copy of the Certificate of Merger;

 

(d) to the Buyer, written resignations, effective as of the Closing, of those directors and officers of the Company that the Buyer designates in writing to the Company at least two Business Days prior to the Closing;

 

(e) to the Buyer, (i) a properly completed IRS Form W-9, duly executed by each Company Unitholder and (ii) a certificate, duly executed and acknowledged by the Company, certifying that 50% or more of the value of the gross assets of the Company does not consist of U.S. real property interests, or that 90% or more of the value of the gross assets of the Company does not consist of U.S. real property interests plus cash or cash equivalents;

 

(f) to the Buyer evidence of the termination of the Affiliated Transactions pursuant to Section 6.14;

 

(g) to the Buyer, a duly executed Company Bring-Down Certificate from an authorized Person of the Company; and

 

(h) to the Buyer at least three (3) Business Days prior to Closing, the Credit Agreement Payoff Letter.

 

31

 

 

Section 2.6 Buyer Deliveries. At Closing, the Buyer shall deliver, or shall cause to be delivered, the following:

 

(a) to the Company Unitholders, as applicable, the amounts payable to them pursuant to Section 2.2(c)(ii);

 

(b) to each Company Unitholder, evidence of the issuance of the whole Company Interests in book-entry form and not certificated, issuable to such Company Unitholder in respect of the Company Units held by such Company Unitholder pursuant to the Merger as provided in Section 2.1(a)(iv);

 

(c) to the Equityholder Representative, a duly executed counterpart from the Buyer and, to the extent applicable, RAC to each of (i) the Company A&R LLCA and (ii) the Stockholders Agreement; and

 

(d) to the Equityholder Representative, a duly executed Buyer Bring-Down Certificate from an authorized Person of the Buyer.

 

Section 2.7 Withholding and Wage Payments.

 

(a) The Buyer and the Company shall be entitled to deduct and withhold (or cause to be deducted and withheld) from any amount otherwise payable under this Agreement such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code or any other provision of applicable Laws; provided, however, that such Person shall use commercially reasonable efforts to notify any applicable payee prior to the making of such deduction or withholding and shall reasonably cooperate with such payee to determine whether any such deduction or withholding are required under applicable Law and to use commercially reasonable efforts to obtain any available exemption or reduction of, or otherwise minimize to the extent permitted by applicable Law, such deduction and withholding. To the extent that such withheld amounts are paid over to or deposited with the applicable Governmental Entity on behalf of the Person with respect to whom such withholding was made, such withheld amounts shall be treated for all purposes hereof as having been paid to the Person in respect of which such deduction and withholding were made.

 

(b) Notwithstanding the foregoing, to the extent that any amount payable pursuant to this Agreement is being paid to any employee or similar Person of any Group Company that constitutes “wages” or other relevant compensatory amount, such amount shall be deposited in the payroll account of the applicable Group Company and the amounts due to such employee or similar Person (net of withholding) shall be paid to such Person pursuant to the next practicable scheduled payroll of the applicable Group Company.

 

Article III
REPRESENTATIONS AND WARRANTIES REGARDING THE GROUP COMPANIES

 

As an inducement to the Buyer Parties to enter into this Agreement and consummate the transactions contemplated hereby, except as set forth in the Group Company Disclosure Schedules, the Company represents and warrants to the Buyer Parties as follows that the following representations and warranties are true and correct as of the Execution Date and as of the Closing Date (except, as to any representations and warranties that specifically relate to an earlier date, in which case such representations and warranties were true and correct as of such earlier date):

 

32

 

 

Section 3.1 Organization; Authority; Enforceability.

 

(a) The Company is a limited liability company formed under the Laws of the State of Delaware. Each other Group Company is a corporation, limited liability company or other business entity, as the case may be, and each Group Company is duly organized, validly existing and in good standing (or the equivalent thereof, if applicable) under the Laws of its respective jurisdiction of formation or organization (as applicable).

 

(b) Each Group Company has all the requisite corporate, limited liability company or other applicable power and authority to own, lease and operate its assets and properties and to carry on its businesses as presently conducted in all material respects.

 

(c) Each Group Company is duly qualified, licensed or registered to do business under the Laws of each jurisdictions in which the conduct of its business or locations of its assets and/or properties makes such qualification necessary except where the failure to be so qualified would not, individually or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole.

 

(d) No Group Company is in material violation of any of its Governing Documents. None of the Group Companies is the subject of any bankruptcy, dissolution, liquidation, reorganization (other than internal reorganizations conducted in the Ordinary Course of Business) or similar proceeding.

 

(e) Other than as set forth on Schedule 3.2, the Company has the requisite limited liability company power and authority to execute and deliver this Agreement and each Group Company has the requisite corporate, limited liability company or other business entity power and authority, as applicable, to execute and deliver the Ancillary Agreements to which it is or will be a party and to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. Other than as set forth on Schedule 3.2, the execution and delivery of this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby by the Group Companies have been duly authorized by all necessary corporate, limited liability company or other business entity actions, as applicable. This Agreement has been, and each of the Ancillary Agreements to which each Group Company will be a party will be, duly executed and delivered by such Group Company and are Enforceable against each applicable Group Company, assuming the approvals set forth on Schedule 3.2 are obtained.

 

Section 3.2 Non-contravention. Except as set forth on Schedule 3.2, neither the execution and delivery of this Agreement or any Ancillary Agreement nor the consummation of the transactions contemplated hereby or by any Ancillary Agreement by a Group Company will (a) conflict with or result in any material breach of any provision of the Governing Documents of any Group Company; (b) other than the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, require any material filing with, or the obtaining of any material consent or approval of, any Governmental Entity; (c) result in a material violation of or a material default (or give rise to any right of termination, cancellation, or acceleration of material rights) under, any of the terms, conditions or provisions of any Material Contract or Material Lease or material Company Employee Benefit Plan (in each case, whether with or without the giving of notice, the passage of time or both); (d) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of any Group Company; or (e) except for violations which would not prevent or delay the consummation of the transactions contemplated hereby, violate in any material respect any Law, Order, or Lien applicable to any Group Company, excluding from the foregoing clauses (b), (c), (d) and (e), such requirements, violations or defaults which would not reasonably be expected to be material to the Group Companies, taken as a whole.

 

33

 

 

Section 3.3 Capitalization.

 

(a) Schedule 3.3(a) sets forth the Equity Interests of the Company (including the number and class or series (as applicable) of Equity Interests) (the “Company Equity Interests”) and the record and beneficial ownership (including the percentage interests held thereby) thereof. The Equity Interests set forth on Schedule 3.3(a) comprise all of the authorized capital stock, limited liability company interests or other Equity Interests of the Company that are issued and outstanding, in each case, as of the Execution Date and immediately prior to giving effect to the transactions occurring on the Closing Date contemplated hereby and by the Ancillary Agreements.

 

(b) Except as set forth on Schedule 3.3(b) or for this Agreement or the Company LLCA:

 

(i) there are no outstanding options, warrants, Contracts, calls, puts, rights to subscribe, conversion rights or other similar rights to which the Company is a party or which are binding upon the Company providing for the offer, issuance, redemption, exchange, conversion, voting, transfer, disposition or acquisition of any of its Equity Interests (other than this Agreement);

 

(ii) the Company is not subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any of its Equity Interests, either of itself or of another Person;

 

(iii) the Company is not a party to any voting trust, proxy or other agreement or understanding with respect to the voting of any of its Equity Interests;

 

(iv) there are no contractual equityholder preemptive or similar rights, rights of first refusal, rights of first offer or registration rights in respect of the Company Equity Interests; and

 

(v) the Company has not violated in any material respect any applicable securities Laws or any preemptive or similar rights created by Law, Governing Document or Contract to which the Company is a party in connection with the offer, sale, issuance or allotment of any of the Company Equity Interests.

 

(c) All of the Company Equity Interests have been duly authorized and validly issued, and were not issued in violation of any preemptive rights, call options, rights of first refusal, subscription rights, transfer restrictions or similar rights of any Person (other than Securities Liens and other than as set forth in the Governing Documents of the Company) or applicable Law. Neither the Group Companies nor any Company Unitholder has, or has had, any record and/or beneficial ownership of RAC Stock.

 

(d) Schedule 3.3(d)(i) sets forth a true and complete list of the Company Subsidiaries, listing for each Company Subsidiary its name, legal entity type and the jurisdiction of its formation or organization (as applicable) and its parent company (if wholly-owned) or its owners (if not-wholly owned). Except as set forth on Schedule 3.3(d)(ii), all of the outstanding capital stock or other Equity Interests, as applicable, of each Company Subsidiary are duly authorized, validly issued, free of preemptive rights, restrictions on transfer (other than restrictions under applicable federal, state and other securities Laws), and, if applicable, fully paid and non-assessable, and are owned by the Company, whether directly or indirectly, free and clear of all Liens (other than Permitted Liens). There are no options, warrants, convertible securities, stock appreciation, phantom stock, stock-based performance unit, profit participation, restricted equity, restricted equity unit, other equity or equity-based compensation award or similar rights with respect to any Company Subsidiary and no rights, exchangeable securities, securities, “phantom” rights, appreciation rights, performance units, commitments or other agreements obligating the Company or any Company Subsidiary to issue or sell, or cause to be issued or sold, any equity securities of, or any other interest in, any Company Subsidiary, including any security convertible or exercisable into equity securities of any Company Subsidiary. There are no Contracts to which any Company Subsidiary is a party which require such Company Subsidiary to repurchase, redeem or otherwise acquire any Equity Interests or securities convertible into or exchangeable for such equity securities or to make any investment in any other Person.

 

34

 

 

Section 3.4 Financial Statements; No Undisclosed Liabilities.

 

(a) Attached as Schedule 3.4 are true and complete copies of the following financial statements (such financial statements, the “Financial Statements”):

 

(i) the audited consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2017, December 31, 2018 and December 31, 2019 and the related audited consolidated statements of comprehensive loss, cash flows and members’ equity for the fiscal years ended on such dates, together with all related notes and schedules thereto, accompanied by the reports thereon of the Company’s independent auditors (which reports shall be unqualified) (the “Audited Financial Statements”); and

 

(ii) the unaudited consolidated balance sheet of the Company and its Subsidiaries as of the Latest Balance Sheet Date (the “Unaudited Balance Sheet”) and the related unaudited consolidated statements of comprehensive loss, cash flows for the one month period then ended (collectively, together with the Unaudited Balance Sheet, the “Unaudited Financial Statements”).

 

(b) Except as set forth on Schedule 3.4(b), the Financial Statements (i) have been prepared from the books and records of the Group Companies; (ii) have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated, except as may be indicated in the notes thereto and subject, in the case of the Unaudited Financial Statements, to the absence of footnotes and year-end adjustments; and (iii) fairly present, in all material respects, the consolidated financial position of the Company and its Subsidiaries as of the dates thereof and their consolidated results of operations and cash flows for the periods then ended, except in each of clauses (ii) and (iii): (w) as otherwise noted therein, (x) that the Unaudited Financial Statements do not include footnotes, schedules, statements of equity and statements of cash flow and disclosures required by GAAP, (y) that the Audited Financial Statements and the Unaudited Financial Statements have not been prepared in accordance with Regulation S-X of the SEC or the standards of the PCAOB, and (z) that the Unaudited Financial Statements do not include all year-end adjustments required by GAAP, in each case of clauses (x), (y) or (z), which are not, expected to be material, individually or in the aggregate, in amount or effect.

 

(c) The books of account and other financial records of each Group Company have been kept accurately in all material respects in the Ordinary Course of Business, the transactions entered therein represent bona fide transactions, and the revenues, expenses, assets and liabilities of the Group Companies have been properly recorded therein in all material respects. Each Group Company has devised and maintains a system of internal accounting policies and controls sufficient to provide reasonable assurances that (i) transactions are executed in all material respects in accordance with management’s authorization; (ii) the transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP and to maintain accountability for assets; and (iii) the amount recorded for assets on the books and records of each Group Company is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any difference (collectively, “Internal Controls”).

 

35

 

 

(d) The Company has not identified and has not received written notice from an independent auditor of (i) any significant deficiency or material weakness in the system of Internal Controls utilized by the Group Companies; (ii) any fraud, whether or not material, that involves the Group Companies’ management or other employees who have a role in the preparation of financial statements or the Internal Controls utilized by the Group Companies; or (iii) any claim or allegation regarding any of the foregoing. There are no significant deficiencies or material weaknesses in the design or operation of the Internal Controls over financial reporting that would reasonably be expected to materially and adversely affect the Group Companies’ ability to record, process, summarize and report financial information.

 

(e) Except for the Transaction Expenses, Liabilities incurred since the Latest Balance Sheet Date and Liabilities set forth on Schedule 3.4(e), (i) the Company (A) has not conducted and does not conduct any material business or engage in any material activities other than those directly related to holding 100% of the limited liability company interests of the Company Subsidiaries, (B) has no Liabilities in excess of $250,000 that would be required to be reflected on an Unaudited Financial Statement prepared in accordance with GAAP and (ii) the Company (A) was formed solely for the purpose of holding 100% of the limited liability company interests of the Company Subsidiaries, (B) has not conducted any material business or engaged in any material activities other than those directly related to holding 100% of the limited liability company interests of the Company Subsidiaries, (C) has never engaged in any other activities other than incident to its ownership of the Company Subsidiaries and (D) has no Liabilities in excess of $250,000 that would be required to be reflected on an Unaudited Financial Statement prepared in accordance with GAAP.

 

(f) Except as set forth on Schedule 3.4(f), no Group Company has any Liabilities of any nature whatsoever in excess of $250,000 that would be required to be reflected on an Unaudited Financial Statement prepared in accordance with GAAP, except (i) Liabilities expressly set forth in or reserved against in the Financial Statements or identified in the notes thereto; (ii) Liabilities which have arisen after the Latest Balance Sheet Date in the Ordinary Course of Business (none of which results from, arises out of, relates to, is in the nature of, or was caused by any breach of Contract or, infringement or violation of Law); (iii) Liabilities arising under this Agreement, the Ancillary Agreements and/or the performance by the Company of its obligations hereunder or thereunder, other than those arising in compliance with Section 5.1; or (iv) for fees, costs and expenses for advisors and Affiliates of the Group Companies, including with respect to legal, accounting or other advisors incurred by the Group Companies in connection with the transaction contemplated by this Agreement.

 

(g) No Group Company maintains any “off-balance sheet arrangement” within the meaning of Item 303 of Regulation S-K of the Securities Exchange Act.

 

Section 3.5 No Material Adverse Effect. Since December 31, 2020 through the Execution Date, there has been no Material Adverse Effect.

 

Section 3.6 Absence of Certain Developments. Since the Latest Balance Sheet Date, each Group Company has conducted its business in the Ordinary Course of Business in all material respects. Except as set forth on Schedule 3.6, from the Latest Balance Sheet Date through the Execution Date, no Group Company has taken or omitted to be taken any action that would, if taken or omitted to be taken after the Execution Date, require the Buyer’s consent in accordance with Section 5.1.

 

36

 

 

Section 3.7 Real Property.

 

(a) As of the Execution Date, Schedule 3.7 sets forth a true, correct and complete list of all Leases with annual rental payments of over $100,000 (including all amendments, extensions, renewals, guaranties and other agreements with respect thereto) for such Leased Real Property (such Leases together with any such Lease entered into during the Pre-Closing Period, the “Material Leases”). Except as set forth on Schedule 3.7, with respect to each of the Material Leases: (i) no Group Company has subleased, licensed or otherwise granted any right to use or occupy the Leased Real Property or any portion thereof to a third party (other than Permitted Liens); (ii) the Group Company’s possession and quiet enjoyment of the Leased Real Property under such Material Lease has not been disturbed and there are no disputes with respect to such Material Lease; (iii) no Group Company is currently in material default under, nor has any event occurred or, to the Knowledge of the Group Company, does any circumstance exist that, with notice or lapse of time or both would constitute a material default by the Group Company under any Material Lease; (iv) to the Knowledge of the Group Company, no material default, event or circumstance exists that, with notice or lapse of time, or both, would constitute a material default by any counterparty to any such Material Lease; and (v) except as set forth on Schedule 3.7, no Group Company has collaterally assigned or granted any other security interest in such Material Lease or any interest therein. The Group Company has made available to the Buyer a true, correct and complete copy of all Material Leases. Except as set forth on Schedule 3.7, no Group Company owns fee title to any land.

 

(b) The Leased Real Property identified in Schedule 3.7 comprises all of the material real property used in the business of the Group Companies.

 

(c) To the Knowledge of the Company, the buildings, material building components, structural elements of the improvements, roofs, foundations, parking and loading areas, mechanical systems (including all heating, ventilating, air conditioning, plumbing, electrical, elevator, security, utility and fire/life safety systems) (collectively, the “Improvements”) included in the Leased Real Property are in good working condition and repair and sufficient for the operation of the business by each Group Company as currently conducted. No Group Company has received written notice of (i) any condemnation, eminent domain or similar Proceedings affecting any parcel of Leased Real Property; (ii) any special assessment or pending improvement liens to be made by any Governmental Entity affecting any parcel of Leased Real Property; or (iii) violations of any building codes, zoning ordinances, governmental regulations or covenants or restrictions affecting any Leased Real Property. To the Knowledge of the Company, there are no recorded or unrecorded agreements, easements or encumbrances that materially interfere with the continued access to or operation of the business of the Group Companies as currently conducted on the Leased Real Property.

 

Section 3.8 Tax Matters.

 

(a) All income and other material Tax Returns required to be filed by or with respect to each Group Company has been timely filed pursuant to applicable Laws. All income and other material Tax Returns filed by or with respect to each of the Group Companies are true, complete and correct in all material respects and have been prepared in material compliance with all applicable Laws. Each Group Company has timely paid all material amounts of Taxes due and payable by it (whether or not shown as due and payable on any Tax Return). Each Group Company has timely and properly withheld and paid to the applicable Governmental Entity all material Taxes required to have been withheld and paid by it in connection with any amounts paid or owing to any employee, independent contractor, creditor, equityholder or other third party and has otherwise complied in all material respects with all applicable Laws relating to such withholding and payment of Taxes. Each Group Company has complied in all material respects with all applicable Laws relating to the payment of stamp duties and the reporting and payment of sales, use, ad valorem and value added Taxes.

 

37

 

 

(b) No written claim has been made by a Taxing Authority in a jurisdiction where a Group Company does not file a particular type of Tax Return, or pay a particular type of Tax, that such Group Company is or may be subject to taxation of that type by, or required to file that type of Tax Return in, that jurisdiction. The income Tax Returns made available to the Buyer reflect all of the jurisdictions in which the Group Companies are required to remit material income Tax.

 

(c) There is no Tax audit or examination or any Proceeding now being conducted, pending or threatened in writing (or, to the Knowledge of the Company, otherwise threatened) with respect to any Taxes or Tax Returns of or with respect to any Group Company. No Group Company has commenced a voluntary disclosure proceeding in any jurisdiction that has not been fully resolved or settled. 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, to the Knowledge of the Company, no such deficiency has been threatened or proposed against any Group Company.

 

(d) No Group Company has agreed to (or has had agreed to on its behalf) any extension or waiver of the statute of limitations applicable to any Tax or Tax Return, or any extension of time with respect to a period of Tax collection, assessment or deficiency, which period (after giving effect to such extension or waiver) has not yet expired, and no request for any such waiver or extension is currently pending. No Group Company is the beneficiary of any extension of time (other than an automatic extension of time not requiring the consent of the applicable Governmental Entity) within which to file any Tax Return not previously filed. No private letter ruling, administrative relief, technical advice, request for a change of any method of accounting or other similar ruling or request has been granted or issued by, or is pending with, any Governmental Entity that relates to the Taxes or Tax Returns of any Group Company. No power of attorney granted by any Group Company with respect to any Taxes is currently in force.

 

(e) No Group Company has been a party to any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) (or any similar provision of U.S. state or local or non-U.S. Tax Law).

 

(f) The Company is (and has been for its entire existence) properly treated as a partnership for U.S. federal and all applicable state and local income Tax purposes. Each Company Subsidiary is (and has been for its entire existence) properly treated for U.S. federal and all applicable state and local income tax purposes as the type of entity set forth opposite its name on Schedule 3.8(f). No election has been made (or is pending) to change any of the foregoing.

 

(g) No Group Company will be required to include any material item of income, or exclude any material item of deduction, for any period after the Closing Date (determined with and without regard to the transactions contemplated hereby) as a result of: (i) an installment sale transaction occurring on or before the Closing Date governed by Code Section 453 (or any similar provision of state, local or non-U.S. Laws); (ii) a transaction occurring on or before the Closing Date 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 or paid on or prior to the Closing Date or deferred revenue realized, accrued or received on or prior to the Closing Date, in each case, outside of the Ordinary Course of Business; (iv) a change in method of accounting made under Code Section 481(c) (or any corresponding or similar provision of any applicable state or local tax law) with respect to a Pre-Closing Tax Period that occurs or was requested on or prior to the Closing Date (or as a result of an impermissible method used in a Pre-Closing Tax Period); (v) an agreement entered into with any Governmental Entity (including a “closing agreement” under Code Section 7121) on or prior to the Closing Date; or (vi) intercompany transaction occurring or any excess loss account existing on or prior to the Closing Date, in each case described in Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local, or non-U.S. Laws). No Group Company uses the cash method of accounting for income Tax purposes or will be required to make any payment after the Latest Balance Sheet Date as a result of an election under Section 965 of the Code (or any similar provision of state, local, or non-U.S. Laws). No Group Company has any “long-term contracts” that are subject to a method of accounting provided for in Code Section 460. No Group Company is party to or bound by any closing agreement or similar agreement with any Taxing Authority the terms of which would have an effect on any Group Company after the Latest Balance Sheet Date.

 

38

 

 

(h) There is no Lien for Taxes on any of the assets of any Group Company, other than Liens for Taxes not yet due and payable.

 

(i) No Group Company has ever been a member of any Affiliated Group (other than an Affiliated Group the common parent of which is a Group Company). No Group Company has any actual or potential liability for Taxes of any other Person (other than any Group Company) as a result of Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or non-U.S. Laws), successor liability, transferee liability, joint or several liability, by contract, by operation of Law, or otherwise (other than pursuant to an Ordinary Course Tax Sharing Agreement). No Group Company is party to or bound by any Tax Sharing Agreement, except for any Ordinary Course Tax Sharing Agreement.

 

(j) The unpaid Taxes of the Group Companies (i) did not, as of the Latest Balance Sheet Date, exceed the reserves for Tax liabilities (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Unaudited Balance Sheet (rather than in any notes thereto) and (ii) do not exceed such reserves as adjusted for the passage of time through the Closing Date in accordance with the past practices of the Group Companies in filing their Tax Returns.

 

(k) Other than with respect to other U.S. states and localities, no Group Company (i) has or has had in the last five (5) years an office, permanent establishment, branch, agency or taxable presence outside the jurisdiction of its organization (other than such jurisdictions with respect to which such Group Company has filed income Tax Returns) or (ii) is or has been in the last five years a resident for Tax purposes in any jurisdiction outside the jurisdiction of its organization (other than such jurisdictions with respect to which such Group Company has filed income Tax Returns).

 

(l) No holder of Company Units is a “foreign person” within the meaning of Code Section 1445 or Code Section 1446(f).

 

(m) No Group Company has been, in the past two years, a party to a transaction reported or intended to qualify as a reorganization under Code Section 368. No Group Company has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was governed, or intended or reported to be governed, in whole or in part by Section 355 or Section 361 of the Code in the past two (2) years or that could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Code Section 355(e)) that includes the transactions contemplated hereby.

 

(n) No election has been made under Treasury Regulations Section 301.9100-22 (or any similar provision of state, local, or non-U.S. Laws) with respect to any Group Company.

 

(o) No Group Company has (i) elected to defer the payment of any “applicable employment taxes” (as defined in Section 2302(d)(1) of the CARES Act) pursuant to Section 2302 of the CARES Act, (ii) deferred payment of any Taxes (including withholding Taxes) 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) or (iii) claimed any “employee retention credit” pursuant to Section 2301 of the CARES Act.

 

39

 

 

Section 3.9 Contracts.

 

(a) Except as set forth on Schedule 3.9(a), as of the Execution Date, no Group Company is a party to, or bound by, and no asset of any Group Company is bound by, any:

 

(i) collective bargaining agreement or other Contract with any labor union, labor organization, or works council (each a “CBA”);

 

(ii) Contract with any Material Customer or Material Supplier;

 

(iii) Contract providing for retention, transaction or change of control payments or benefits, accelerated vesting or any other payment or benefit that may or will become due, in whole or in part, in connection with the consummation of the transactions contemplated hereby; Contracts pursuant to which the Company or any Company Subsidiary is obligated to pay or entitled to receive more than $500,000 in a calendar year or more than $2,000,000 in the aggregate over the life of the Contract;

 

(iv) any employment agreement with any employee of the Company or any Company Subsidiary that has future required scheduled payments in excess of $150,000 per annum and is not terminable by the Company or such Company Subsidiary, as applicable, upon notice of sixty (60) calendar days or less for a cost less than $150,000;

 

(v) Contract under which any Group Company has created, incurred, assumed or borrowed any money or issued any note, indenture or other evidence of Company Indebtedness or guaranteed Company Indebtedness of others;

 

(vi) Contract resulting in any Lien (other than any Permitted Lien) on any material portion of the assets of any of the Group Companies;

 

(vii) (x) Contract entered into within the three year period preceding the Execution Date, for the settlement or avoidance of any material dispute regarding the ownership, use, validity or enforceability of material Intellectual Property (including consent-to-use and similar contracts) with material ongoing obligations of any Group Company, (y) Contract that materially restricts the use or licensing of any Owned Intellectual Property or (z) license or royalty Contract under which the Group Companies license any material Intellectual Property with annual or one-time payments in excess of $50,000 and other than non-exclusive licenses of commercially-available Software;

 

(viii) Contract providing for any Group Company to make any capital contribution to, in, any Person;

 

(ix) Contract providing for aggregate future payments to or from any Group Company in excess of $1,000,000 in any calendar year, other than those that can be terminated without material penalty by such Group Company upon 90 days’ notice or less and can be replaced with a similar Contract on materially equivalent terms in the Ordinary Course of Business;

 

(x) joint venture, partnership, strategic alliance or similar Contract;

 

(xi) power of attorney in the Material Contracts;

 

40

 

 

(xii) Contract that limits or restricts, or purports to limit or restrict, any Group Company (or after the Closing, the Buyer or any Group Company) from (x) engaging or competing in any line of business or business activity in any jurisdiction or (y) acquiring any product or asset or receiving services from any Person or selling any product or asset or performing services for any Person;

 

(xiii) Contract that binds any Group Company to any of the following restrictions or terms: (v) a “most favored nation” or similar provision with respect to any Person; (w) a provision providing for the sharing of any revenue or cost-savings with any other Person; (x) “minimum purchase” requirement; (y) rights of first refusal or first offer (other than those related to real property Leases) or (z) a “take or pay” provision;

 

(xiv) Contract pursuant to which any Group Company has granted any sponsorship rights, exclusive marketing, sales representative relationship, franchising consignment, distribution or any other similar right to any third party (including in any geographic area or with respect to any product of the business);

 

(xv) Contract involving the settlement, conciliation or similar agreement (x) of any Proceeding or threatened Proceeding since December 31, 2020, (y) with any Governmental Entity or (z) pursuant to which any Group Company will have any material outstanding obligation after the Execution Date;

 

(xvi) any Contract under which any Group Company is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any Contract under which the aggregate annual rental payments do not exceed $50,000;

 

(xvii) any Contract under which any Group Company is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by such Group Company, except for any Contract under which the aggregate annual rental payments do not exceed $50,000;

 

(xviii) any Contract requiring any capital commitment or capital expenditure (or series of capital commitments or expenditures) by any Group Company in an amount in excess of $500,000 annually or $1,000,000 over the life of the Contract;

 

(xix) Contract requiring any Group Company to guarantee the Liabilities of any Person (other than any other Group Company) or pursuant to which any Person (other than a Group Company) has guaranteed the Liabilities of a Group Company;

 

(xx) material interest rate, currency, or other hedging Contracts;

 

(xxi) Contracts providing for indemnification by any Group Company, except for any such Contract that is entered into in the Ordinary Course of Business and is not material to any Group Company;

 

(xxii) Contract that relates to the future disposition or acquisition by any Group Company of (x) any business (whether by merger, consolidation or other business combination, sale of securities, sale of assets or otherwise) or (y) any material assets or properties, except for (i) any agreement related to the transactions contemplated hereby, (ii) any non-disclosure or similar agreement entered into in connection with the potential sale of the Company or (iii) any agreement for the purchase or sale of inventory in the Ordinary Course of Business;

 

41

 

 

(xxiii) Contract that relates to any completed disposition or acquisition by any Group Company of (x) any business (whether by merger, consolidation or other business combination, sale of securities, sale of assets or otherwise) or (y) any material assets or properties in each case, entered into or consummated after December 31, 2020, other than sales of inventory in the Ordinary Course of Business;

 

(xxiv) Contract involving the payment of any earn-out or similar contingent payment on or after the Execution Date; and

 

(xxv) Contracts between any of the Group Companies, on the one hand, and any of their respective Affiliates (except for any other Group Company), on the other hand.

 

(b) Except as disclosed on Schedule 3.9(b), each Contract listed on Section 3.9(a) (together with any such Contract entered into during the Pre-Closing Period, each, a “Material Contract”) is in full force and effect and is Enforceable against the applicable Group Company party thereto and, to the Knowledge of the Company, against each other party thereto. The Company has delivered to, or made available for inspection by, the Buyer a complete and accurate copy of each Material Contract (including all exhibits thereto and all amendments, waivers or other changes thereto). With respect to all Material Contracts, none of the Group Companies or, to the Knowledge of the Company any other party to any such Material Contract, is in material breach thereof or default thereunder. During the last 12 months, no Group Company has received any written, claim or notice of material breach of or material default under any such Material Contract. To the Knowledge of the Company, no event has occurred, which individually or together with other events, would reasonably be expected to result in a material breach of or a material default under any such Material Contract by any Group Company or, to the Knowledge of the Company, any other party thereto (in each case, with or without notice or lapse of time or both). During the last 12 months, no Group Company has received written notice from any other party to any such Material Contract that such party intends to terminate or not renew any such Material Contract.

 

(c) Since December 31, 2020, (i) none of the ten (10) largest customers of the Group Companies (measured by aggregate billings) during the 12 months ended December 31, 2020 (each, a “Material Customer”) has canceled, terminated or materially and adversely altered its relationship with any Group Company or, to the Knowledge of the Company, threatened to cancel, terminate or materially and adversely alter its relationship with any Group Company and (ii) there have been no material disputes between any Group Company and any Material Customer.

 

(d) Since December 31, 2020, (i) no Material Supplier has canceled, terminated or materially and adversely altered its relationship with any Group Company or, to the Knowledge of the Company, threatened to cancel, terminate or materially and adversely alter its relationship with any Group Company and (ii) there have been no material disputes between any Group Company and any Material Supplier.

 

Section 3.10 Intellectual Property.

 

(a) None of the Group Companies nor any of the former and current products, services or operation of the business of the Group Companies have since the Lookback Date infringed, misappropriated or otherwise violated, or currently infringe, misappropriate or otherwise violate, any Intellectual Property of any Person. Except as set forth on Schedule 3.10(a), no Group Company has since the Lookback Date received any written charge, complaint, claim, demand, or notice alleging any such infringement, misappropriation or other violation (including any claim that such Group Company must license or refrain from using any Intellectual Property rights of any Person) or challenging the ownership, registration, validity or enforcement of any material Owned Intellectual Property. To the Knowledge of the Company, no Person is challenging, infringing upon, misappropriating or otherwise violating any material Owned Intellectual Property.

 

42

 

 

(b) Each Group Company owns, or has a valid right to use, all material Intellectual Property that is used in or necessary for the business of such Group Company as currently conducted. As of the Execution Date, Schedule 3.10(b) identifies each patented, issued or registered Intellectual Property and applications for the foregoing, in each case which is owned by or filed in the name of a Group Company. To the Knowledge of the Company, all the Intellectual Property disclosed in Schedule 3.10(b) and any of such Intellectual Property that comes into existence during the Pre-Closing Period is subsisting, valid and enforceable. Each Group Company is the sole and exclusive owner of all right, title and interest in and to all Owned Intellectual Property, free and clear of any Liens other than Permitted Liens, and the Owned Intellectual Property is not subject to any outstanding Order materially restricting the use or licensing thereof by such Group Company.

 

(c) Each Group Company has taken commercially reasonable measures to protect the confidentiality of all material trade secrets and any other material confidential information owned by such Group Company. Except as required by applicable Law, no such material trade secret or material confidential information has been disclosed by any Group Company to any Person other than to Persons subject to a duty of confidentiality or pursuant to a written agreement restricting the disclosure and use of such trade secrets or confidential information by such Person. Each Person who has developed any material Owned Intellectual Property for any Group Company has assigned all right, title and interest in and to such Intellectual Property to a Group Company by a valid written assignment or by operation of law. To the Knowledge of the Company, no Person is in violation of any such confidentiality or Intellectual Property assignment agreement.

 

(d) The IT Assets are sufficient in all material respects for the purposes for which such IT Assets are used in current business operations of the Group Companies. The Group Companies have in place reasonable security procedures and have taken commercially reasonable steps designed to safeguard the availability, security and integrity of the IT Assets and all Personal Information, material confidential data and other information stored thereon, including from unauthorized access.

 

(e) Except as set forth on Schedule 3.10(e), to the Knowledge of the Company, the Group Companies have not experienced any Security Breaches or material Security Incidents since the Lookback Date and none of the Group Companies has received any written complaints, claims, demands, inquiries or other notices of investigation, from any Person (including any Governmental Entity or self-regulatory authority) or entity regarding any of the Group Companies’ Processing of Personal Information or compliance with applicable Privacy and Security Requirements.

 

(f) Except as set forth on Schedule 3.10(f), to the Knowledge of the Company, the Group Companies are, and since the Lookback Date, have been, in compliance in all material respects with all applicable Privacy and Security Requirements. To the Knowledge of the Company, the Group Companies have a valid and legal right (whether contractually, by Law or otherwise) to access or use all material Personal Information and material business data processed by or on behalf of the Group Companies in connection with the use and/or operation of its products, services and business.

 

(g) No source code that constitutes a Trade Secret within the Owned Intellectual Property has been disclosed, licensed, released, escrowed, or made available to any third party, other than an escrow agent or a contractor, consultant or developer pursuant to a written confidentiality agreement. No event has occurred that would require that an escrow agent disclose or deliver any such source code to any third party by any Group Company. None of the Software included in the Owned Intellectual Property links to or integrates with any code licensed under an “open source”, “copyleft” or analogous license (including any license approved by the Open Source Initiative and listed at http://www.opensource.org/licenses, GPL, AGPL or other open source software license) in a manner that, to the Knowledge of the Company, has or would require any public distribution of any material Software, or a requirement that any other licensee of such Software be permitted to modify, make derivative works of or reverse-engineer any such Software.

 

43

 

 

Section 3.11 Information Supplied . The information supplied or to be supplied by the Group Companies or their respective Affiliates on behalf of any of the Group Companies for inclusion or incorporation by reference in the Proxy Statement, any other document submitted or to be submitted to any other Governmental Entity or any announcement or public statement regarding the transactions contemplated hereby (including the Signing Press Release and the Closing Press Release) shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading at (a) the time such information is filed, submitted or made publicly available (provided, if such information is revised by any subsequently filed amendment or supplement to the Proxy Statement prior to the time the Proxy Statement is mailed to the RAC Stockholders, this clause (a) shall solely refer to the time of such subsequent revision); (b) the time the Proxy Statement is first mailed to the RAC Stockholders; (c) the time of the RAC Stockholder Meeting; or (d) the Closing (subject, in each case, to the qualifications and limitations set forth in the materials provided by the Group Companies or that are included in such filings and/or mailings); provided that for the avoidance of doubt, no warranty or representation is made by the Company or the Group Companies with respect to statements made or incorporated by reference in the Proxy Statement (or any amendment or supplement thereto) based on information supplied by the Buyer Parties, Archaea or any other party, or their respective Affiliates for inclusion therein.

 

Section 3.12 Litigation. Except as set forth on Schedule 3.12 or that has been fully resolved, there have been since the Lookback Date, and there are no, Proceedings or Orders (including those brought or threatened by or before any Governmental Entity) pending, or to the Knowledge of the Company, threatened against or otherwise relating to any Group Company or any of their respective properties at Law or in equity, or, to the Knowledge of the Company, any director, officer or employee of any Group Company related to the business of the Group Companies. Except as set forth on Schedule 3.12, there are no Proceedings pending, initiated or threatened by any Group Company against any other Person, and since the Lookback Date there have not been any such Proceedings.

 

Section 3.13 Brokerage. Except as set forth on Schedule 3.13, no Group Company has any Liability in connection with this Agreement or the Ancillary Agreements, or the transactions contemplated hereby or thereby, that would result in the obligation of any Group Company or any of its Affiliates, or the Buyer or any of its Affiliates to pay any finder’s fee, brokerage or agent’s commissions or other like payments.

 

Section 3.14 Labor Matters.

 

(a) The Company has delivered to the Buyer Parties a complete list of all employees, workers and individual consultants of each of the Group Companies as of April 5, 2021 and, as applicable, their classification as exempt or non-exempt under the Fair Labor Standards Act, job title, leave status (including type of leave and return date), employing entity and job location, and with respect to each employee, compensation (current annual base salary or wage rate and current target bonus opportunity, if any). All employees of the Group Companies are legally permitted to be employed by the Group Companies in the United States. Except as set forth on Schedule 3.14(a) and except as would not reasonably be expected to result in material Liabilities to the Group Companies, no freelancer, consultant or other contracting party treated as self-employed whose services the Group Companies uses or has used can effectively claim the existence of an employment relationship with one of these companies.

 

44

 

 

(b) No Group Company is a party to or bound by any CBA (including generally applicable collective bargaining agreements), works agreements and company practices relating to employees of any Group Company and no employees of any Group Company are represented by any labor union, works council, trade union, employee organization or other labor organization with respect to their employment with the Group Companies. In the past three years, no labor union or other labor organization, or group of employees of any Group Company has made a demand for recognition or certification, and there are no representation or certification proceedings presently pending or, to the Knowledge of the Company, threatened to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. There are no ongoing or, to the Knowledge of the Company, threatened union organizing activities with respect to employees of any Group Company and no such activities have occurred in the past three years. Since the Lookback Date, there has been no actual or, to the Knowledge of the Company, threatened, unfair labor practice charges, material labor grievances, strikes, walkouts, work stoppages, slowdowns, picketing, hand billing, material labor arbitrations, or other material labor disputes arising under a CBA or against or affecting any Group Company. The Group Companies have no notice or consultation obligations to any labor union, labor organization or works council, which is representing any employee of the Group Companies, in connection with the execution of this Agreement or consummation of the transactions contemplated hereby.

 

(c) Except as set forth in Schedule 3.14(c), the Group Companies are and, since the Lookback Date, have been in compliance in all material respects with all applicable Laws relating to labor, employment and employment practices, including provisions thereof relating to wages and hours, classification (including employee-independent contractor classification and the proper classification of employees as exempt employees and nonexempt employees under the Fair Labor Standards Act and applicable state and local Laws), equal opportunity, employment harassment, discrimination or retaliation, disability rights or benefits, maternity benefits, accessibility, pay equity, workers’ compensation, affirmative action, COVID-19, collective bargaining, workplace health and safety, immigration (including the completion of Forms I-9 for all employees and the proper confirmation of employee visas), whistleblowing, plant closures and layoffs (including the WARN Act), employee trainings and notices, workers’ compensation, labor relations, employee leave issues, affirmative action, unemployment insurance and the payment of social security, employee provident fund and other Taxes. Except as set forth in Schedule 3.14(c), (i) there are no material Proceedings pending or, to the Knowledge of the Company, threatened against any Group Company with respect to or by any current or former employee or individual independent contractor of any Group Company and (ii) since the Lookback Date, none of the Group Companies has implemented any plant closing or layoff of employees triggering notice requirements under the WARN Act, nor is there presently any outstanding liability under the WARN Act, and no such plant closings or employee layoffs are currently planned or announced.

 

(d) Since the Lookback Date, no Group Company has been party to any Proceeding, Order or other dispute involving, or had any material Liability with respect to, any single employer, joint employer or co-employer claims or causes of action by any individual who was employed or engaged by a third party and providing services to any Group Company.

 

45

 

 

(e) Except as would not reasonably be expected to result in material Liabilities to the Group Companies: since the Lookback Date, (i) each of the Group Companies has withheld all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to employees; (ii) no Group Company has been liable for any arrears of wages, compensation, Taxes, penalties or other sums; (iii) each of the Group Companies has paid in full (or properly accrued) to all employees and individual independent contractors all wages, salaries, commissions, bonuses, benefits and other compensation due and payable to or on behalf of such employees or individual independent contractor; and (iv) each individual who has provided or is currently providing services to any Group Company, and has been classified as (x) an independent contractor, consultant, leased employee, or other non-employee service provider, or (y) an exempt employee, has been properly classified as such under all applicable Laws including relating to wage and hour and Tax. None of the Group Companies is materially liable for any delinquent payment to any trust or other fund or to any Governmental Entity with respect to unemployment compensation benefits, social security or other benefits or obligations for any Group Company personnel (other than routine payments to be made in the Ordinary Course of Business).

 

(f) Except as set forth on Schedule 3.14(f), no senior executive or employee with annualized base compensation at or above $150,000 of any Group Company has provided written notice, of any present intention to terminate his or her relationship with any Group Company within the first 12 months following the Closing.

 

(g) To the Knowledge of the Company, no current or former employee or independent contractor of any Group Company is in any material respect in violation of any term of any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, noncompetition agreement, restrictive covenant or other obligation owed to (i) any Group Company or (ii) any third party with respect to such person’s right to be employed or engaged by the Group Company.

 

(h) To the Knowledge of the Company, except as would not reasonably be expected to result in material liability to the Company, no employee or individual independent contractor has filed a written complaint or allegation of sexual harassment in the last five years.

 

(i) Except as set forth on Schedule 3.14(i), 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 or individual independent contractors of any Group Company has occurred since March 1, 2020 or is currently contemplated, planned or announced, including as a result of COVID-19 or any Law, Order, directive, guideline or recommendation by any Governmental Entity in connection with or in response to COVID-19. The Company has not otherwise experienced any material employment related liability with respect to COVID-19. No current or former employee of any Group Company has filed or, to the Knowledge of the Company, has threatened, any claims against any Group Company related to COVID-19.

 

Section 3.15 Employee Benefit Plans.

 

(a) Schedule 3.15(a) sets forth a list of each Company Employee Benefit Plan. With respect to each Company Employee Benefit Plan, the Company has made available to the Buyer true and complete copies of, as applicable, (i) the current plan document (and all amendments thereto), (ii) the most recent summary plan description (with all summaries of material modifications thereto), (iii) the most recent determination, advisory or opinion letter received from the Internal Revenue Service (the “IRS”), (iv) the most recently filed Form 5500 annual report with all schedules and attachments as filed, (v) the most recent actuarial valuation report, and (vi) all related insurance Contracts, trust agreements or other funding arrangements.

 

46

 

 

(b) Except as set forth on Schedule 3.15(b), (i) no Company Employee Benefit Plan provides, and no Group Company has any Liability to provide, retiree, post-ownership or post- termination health or life insurance or any other retiree, post-ownership or post- termination welfare-type benefits to any Person other than as required under Section 4980B of the Code or any similar state Law and for which the covered Person pays the full cost of coverage (each, a “Retiree Welfare Plan”), (ii) no Company Employee Benefit Plan is, and no Group Company sponsors, maintains or contributes to (or is required to contribute to), or has any Liability (including on account of an ERISA Affiliate) under or with respect to a “defined benefit plan” (as defined in Section 3(35) of ERISA) or a plan that is or was subject to Title IV of ERISA or Section 412 or 430 of the Code, and (iii) no Group Company contributes to or has any obligation to contribute to, or has any Liability (including on account of an ERISA Affiliate) under or with respect to, any “multiemployer plan,” as defined in Section 3(37) of ERISA. No Company Employee Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA, or (y) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA). No Group Company has any, or is reasonably expected to have any, Liability under Title IV of ERISA or on account of being considered a single employer under Section 414 of the Code with any other Person. With respect to each Retiree Welfare Plan, the Group Companies have reserved the right to amend, modify or terminate such plan at any time without Liability to any Group Company.

 

(c) Each Company Employee Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code has timely received, or may rely upon, a current favorable determination, advisory or opinion letter from the IRS and nothing has occurred that would reasonably be expected to cause the loss of the tax-qualified status or to adversely affect the qualification of such Company Employee Benefit Plan. Each Company Employee Benefit Plan has been established, operated, maintained, funded and administered in accordance in all material respects with its respective terms and in compliance in all material respects with all applicable Laws, including ERISA and the Code. There have been no “prohibited transactions” within the meaning of Section 4975 of the Code or Section 406 or 407 of ERISA that are not otherwise exempt under Section 408 of ERISA and no breaches of fiduciary duty (as determined under ERISA) with respect to any Company Employee Benefit Plan. There is no claim or Proceeding (other than routine and uncontested claims for benefits) pending or, to the Knowledge of the Company, threatened, with respect to any Company Employee Benefit Plan or against the assets of any Company Employee Benefit Plan. The Group Companies have complied in all material respects with the requirements of the Patient Protection and Affordable Care Act, including the Health Care and Education Reconciliation Act of 2010, as amended (the “ACA”), and none of the Group Companies has incurred (whether or not assessed) any penalty or Tax under the ACA (including with respect to the reporting requirements under Sections 6055 and 6056 of the Code, as applicable) or under Section 4980H, 4980B or 4980D of the Code. With respect to each Company Employee Benefit Plan, all contributions, distributions, reimbursements and premium payments that are due have been timely made in accordance with the terms of the Company Employee Benefit Plan and in compliance with the requirements of applicable Law, and all contributions, distributions, reimbursements and premium payments for any period ending on or before the Closing Date that are not yet due have been made or properly accrued.

 

(d) Except as set forth on Schedule 3.15(d), neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated hereby, alone or together with any other event could, directly or indirectly, (i) result in any compensation or benefit becoming due or payable, or required to be provided, to any current or former officer, employee, director or individual independent contractor of the Group Companies under a Company Employee Benefit Plan or otherwise, (ii) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any current or former officer, employee, director or individual independent contractor of the Group Companies under a Company Employee Benefit Plan or otherwise, (iii) result in the acceleration of the time of payment, vesting or funding, or forfeiture, of any such benefit or compensation under a Company Employee Benefit Plan or otherwise, (iv) result in the forgiveness in whole or in part of any outstanding loans made by the Group Companies to any current or former officer, employee, director or individual independent contractor of the Group Companies, or (v) limit or restrict the Group Companies’ or the Buyer’s ability to merge, amend or terminate any Company Employee Benefit Plan.

 

47

 

 

(e) Each Company Employee Benefit Plan or other arrangement that is, in any part, a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code has been documented, operated and maintained in compliance with Section 409A of the Code and applicable guidance thereunder in all material respects. No Person has any current or contingent right against the Group Companies to be grossed up for, reimbursed or otherwise indemnified or made whole for any Tax or related interest or penalties incurred by such Person, including under Sections 409A or 4999 of the Code or otherwise.

 

(f) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated hereby could, either alone or in conjunction with any other event, result in the payment or provision of any amount or benefit that could, individually or in combination with any other amount or benefit, constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code).

 

Section 3.16 Insurance. As of the Execution Date, the Group Companies maintain property, casualty, workers compensation, professional lines, fidelity and other insurance with insurance carriers against operational risks and risks to the assets, properties, and employees of the Group Companies with respect to the policy year that includes the Execution Date (the “Insurance Policies”). Each Insurance Policy is Enforceable against the applicable Group Company and no written notice of cancellation or termination has been received by any Group Company with respect to any such Insurance Policy. All premiums due under such policies have been paid in accordance with the terms of such Insurance Policy. No Group Company is in material breach or material default under, nor has it taken any action or failed to take any action which, with notice or the lapse of time, or both, would constitute a material breach or material default under, or permit a material increase in premium, cancellation, material reduction in coverage, material denial or non-renewal with respect to any Insurance Policy. During the 12 months prior to the Execution Date, there have been no material claims by or with respect to the Group Companies under any Insurance Policy as to which coverage has been denied or disputed in any material respect by the underwriters of such Insurance Policy.

 

Section 3.17 Compliance with Laws; Permits.

 

(a) Except as set forth on Schedule 3.17(a) or that has been fully resolved, (i) each Group Company is and since the Lookback Date has been in compliance in all material respects with all Laws and Orders applicable to the conduct of the Group Companies and (ii) since the Lookback Date, no Group Company has received any written or oral notice from any Person alleging a material violation of or noncompliance with any such Laws or Orders.

 

(b) Each Group Company holds all material permits, licenses, registrations, approvals, consents, accreditations, waivers, exemptions and authorizations of any Governmental Entity required under Law for the ownership and use of its assets and properties or the conduct of its business as currently conducted (collectively, “Permits”) and is in compliance with all terms and conditions of such Permits, except where the failure to have such Permits would not be reasonably expected to be, individually or in the aggregate, material to the business of the Group Companies. All of such Permits are valid and in full force and effect and none of such Permits will be terminated as a result of, or in connection with, the consummation of the transactions contemplated hereby. No Group Company is in default under any such Permit and no condition exists that, with the giving of notice or lapse of time or both, would be reasonably expected to constitute a default under such Permit, and no Proceeding is pending or threatened in writing, to suspend, revoke, withdraw, modify or limit any such Permit in a manner that has had or would reasonably be expected to have a material impact on the ability of the applicable Group Company to use such Permit or conduct its business.

 

48

 

 

Section 3.18 Environmental Matters. Except as set forth in Schedule 3.18, (a) each Group Company is, and since the Lookback Date, has been, in compliance in all material respects with all Environmental Laws and any Permits required by Environmental Law; (b) in the last three (3) years, (i) no Group Company has received any notice or Order regarding any material violation of, or material Liabilities under, any Environmental Laws, the subject of which remains unresolved, and (ii) there are no pending, or, to the Knowledge of the Company, threatened Proceedings against any of the Group Companies relating to a material violation of, or material Liabilities under, any Environmental Law; (c) no Group Company has used, generated, manufactured, distributed, sold, treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled, released, exposed any Person to, or owned, leased or operated any property or facility contaminated by, any Hazardous Materials, that has resulted or would reasonably be expected to result in material Liability to any of the Group Companies under Environmental Laws; (c) no consent, approval or authorization of or registration or filing with any Governmental Entity is required by the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6, et seq. in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby; and (d) except in the ordinary course pursuant to Material Contracts, no Group Company has assumed, undertaken or become subject to any material Liability of any other Person, or provided an indemnity with respect to any material Liability, in each case under Environmental Laws. The Group Companies have provided to the Buyer true and correct copies of all material environmental, health and safety assessments, reports and audits and all other material environmental, health, and safety documents relating to any of the Group Companies or their current or former properties, facilities or operations, that in each case are in the Group Companies’ possession or control.

 

Section 3.19 Regulatory Status.

 

(a) Each electric generating facility that is owned by a Group Company is a Qualifying Facility. Each Group Company that directly owns one or more electric generating facilities has filed with FERC a Form 556 notice of self-certification for each electric generating facility as a Qualifying Facility, and each such Form 556 self-certification is in full force and effect. Each Qualifying Facility qualifies for the exemptions from regulation that are set forth in 18 C.F.R. §§ 292.601(c), 292.602(b), and 292.602(c); however, Seneca Energy II, LLC does not qualify for exemption from regulation pursuant to 18 C.F.R. §§ 292.601(c), 292.602(b), or 292.602(c); and provided further that Innovative Energy Systems, LLC (i) is a “public utility” under the FPA, although not an “electric utility company” under PUHCA, (ii) does not directly own any Qualifying Facility, and (iii) holds no exemption from regulation pursuant to 18 C.F.R. §§ 292.601(c), 292.602(b), or 292.602(c). No Group Company is currently subject to, or not exempt from, regulation under PUHCA, except to the extent provided for under 18 C.F.R. § 366.3(a). To the extent any Group Company qualifies as a “holding company” pursuant to PUHCA or FERC’s implementing regulations thereunder, it is a “holding company” solely with respect to one or more Qualifying Facilities.

 

(b) For each Group Company that has MBR Authority, the Group Company’s MBR Authority is in full force and effect.

 

(c) No Group Company is subject to regulation as a “natural gas company” as defined in the NGA with respect to rates, terms and conditions of service, accounting and recordkeeping, or other matters.

 

(d) No Group Company is subject to, or not exempt from, financial, organizational or rate regulation by any State Commission.

 

(e) Except for prior authorization under Section 203 of the FPA, required for the Business Combination Transactions taken together, no pre-Closing consent, approval or authorization, registration or filing is required by FERC or any State Commission in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby.

 

49

 

 

Section 3.20 Title to and Sufficiency of Assets. Each Group Company has sole and exclusive, good and marketable title to, or, in the case of leased or subleased assets, an Enforceable leasehold interest in, or, in the case of licensed assets, a valid license in, all of its material personal property assets, properties, rights and interests (whether real, personal, tangible or intangible) free and clear of all Liens other than Permitted Liens (collectively, the “Assets”). Other than assets, properties, rights and interests necessary to develop, construct or maintain projects after the Execution Date, the Assets constitute all of the material assets, properties, rights and interests necessary to conduct the business of the Group Companies after the Closing, in all material respects, as it has been operated for the 12 months prior to the Execution Date.

 

Section 3.21 Affiliate Transactions. Except for (a) employment relationships and compensation and benefits, (b) arrangements with Archaea or related to the Archaea Agreement, (c) arrangements related to the Class C Units pursuant to the Company LLCA, (d) arrangements with the portfolio companies of the Company Unitholders in the Ordinary Course of Business or (e) as disclosed on Schedule 3.21, (x) there are no Contracts (except for the Governing Documents) between any of the Group Companies, on the one hand, and any Interested Party on the other hand and (y) no Interested Party (i) owes any amount to any Group Company, (ii) owns any property or right, tangible or intangible, that is used by any Group Company, or (iii) owns any direct or indirect interest of any kind in, or controls or is a director, officer, employee, stockholder, partner or member of, or consultant to, or lender to or borrower from, or has the right to participate in the profits of, any Person which is a competitor, supplier, customer or landlord, of any Group Company (other than in connection with ownership of less than 2% of the stock of a publicly traded company) (such transactions or arrangements described in clauses (x) and (y), “Affiliated Transactions”).

 

Section 3.22 Trade & Anti-Corruption Compliance.

 

(a) Neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any of its respective directors, officers, managers or employees or any agent or third party representative acting on behalf of the Company of any of its Subsidiaries, a Sanctioned Person. Neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any of their respective directors, officers, managers or employees or any agent or third party representative acting on behalf of the Company of any of its Subsidiaries, is or has been in the last five years: (i) operating in, conducting business with, or otherwise engaging in dealings or transactions with or for the benefit of any Sanctioned Person or in any Sanctioned Country in either case in violation of applicable Sanctions in connection with the business of the Company; (ii) engaging in any export, re-export, transfer or provision of any goods, software, technology, data or service without, or exceeding the scope of, any required or applicable licenses or authorizations under all applicable Ex-Im Laws; or (iii) otherwise in violation of any applicable Sanctions or applicable Ex-Im Laws or U.S. anti-boycott requirements (together “Trade Controls”), in connection with the business of the Company.

 

(b) In the last five years, in connection with or relating to the business of the Company, neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any of the directors, officers, managers or employees of the Company or any agent or third party representative acting on behalf of the Company or any of its Subsidiaries: (i) has made, authorized, solicited or received any bribe or any unlawful rebate, payoff, influence payment or kickback, (ii) has established or maintained, or is maintaining, any unlawful fund of corporate monies or properties, (iii) has used or is using any corporate funds for any illegal contributions, gifts, entertainment, hospitality, travel or other unlawful expenses, or (iv) has, directly or indirectly, made, offered, authorized, facilitated, received or promised to make or receive, any payment, contribution, gift, entertainment, bribe, rebate, kickback, financial or other advantage, or anything else of value, regardless of form or amount, to or from any Governmental Entity or any other Person, in each case in violation of applicable Anti-Corruption Laws.

 

(c) As of the Execution Date, there are no, and since the Lookback Date there have been no, Proceedings or Orders alleging any such violation of any Trade Controls or Anti-Corruption Laws by or on behalf of any Group Company.

 

50

 

 

Section 3.23 No Other Representations and Warranties. EACH BUYER PARTY, ON BEHALF OF ITSELF AND ITS AFFILIATES, INCLUDING RAC AND THE SPONSOR, HEREBY ACKNOWLEDGES AND AGREES THAT, NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, (A) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE BY THE COMPANY IN THIS ARTICLE III OR IN ANY ANCILLARY AGREEMENT, NO GROUP COMPANY OR AFFILIATE THEREOF NOR ANY OTHER PERSON MAKES ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE GROUP COMPANIES OR ANY OTHER PERSON OR THEIR RESPECTIVE BUSINESSES, OPERATIONS, ASSETS, LIABILITIES, CONDITION (FINANCIAL OR OTHERWISE) OR PROSPECTS, NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO THE BUYER PARTIES, RAC, THE SPONSOR OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES OF ANY DOCUMENTATION, FORECASTS, PROJECTIONS OR OTHER INFORMATION WITH RESPECT TO ANY ONE OR MORE OF THE FOREGOING, AND (B) NONE OF THE BUYER PARTIES NOR THEIR ANY OF THEIR RESPECTIVE AFFILIATES, INCLUDING RAC AND THE SPONSOR, RELIED ON ANY REPRESENTATION OR WARRANTY FROM OR ANY OTHER INFORMATION PROVIDED BY ANY GROUP COMPANY OR ANY AFFILIATE THEREOF, INCLUDING ANY COMPANY UNITHOLDER. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE BY THE COMPANY IN THIS ARTICLE III OR IN ANY ANCILLARY AGREEMENT, ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE EXPRESSLY DISCLAIMED BY THE COMPANY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NOTHING IN THIS SECTION 3.23 SHALL LIMIT ANY CLAIM OR CAUSE OF ACTION (OR RECOVERY IN CONNECTION THEREWITH) WITH RESPECT TO FRAUD.

 

Article IV
REPRESENTATIONS AND WARRANTIES OF THE BUYER PARTIES

 

As an inducement to the Company to enter into this Agreement and consummate the transactions contemplated hereby, except as set forth in the applicable section of the Buyer Disclosure Schedules or as disclosed in the RAC SEC Documents and publicly available prior to the Execution Date (to the extent the qualifying nature of such disclosure is readily apparent from the content of such RAC SEC Documents, but excluding disclosures referred to in “Forward-Looking Statements”, “Risk Factors” and any other disclosures therein to the extent they are of a predictive or cautionary nature or related to forward-looking statements) (it being acknowledged that nothing disclosed in such a RAC SEC Report will be deemed to modify or qualify the representations and warranties set forth in the Buyer Fundamental Representations), the Buyer Parties and RAC each hereby represent and warrant that the following representations and warranties are true and correct as of the Execution Date and as of the Closing Date (except, as to any representations and warranties that specifically relate to an earlier date, in which case such representations and warranties were true and correct as of such earlier date):

 

Section 4.1 Organization; Authority; Enforceability.

 

(a) The Buyer is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of Delaware. Company Merger Sub is a limited liability company and is duly organized, validly existing and in good standing under the Laws of the State of Delaware. Rice Holdings is a limited liability company and is duly organized, validly existing and in good standing under the Laws of the State of Delaware. IntermediateCo is a limited liability company and is duly organized, validly existing and in good standing under the Laws of the State of Delaware. RAC is a corporation and is duly incorporated, validly existing and in good standing under the Laws of the State of Delaware.

 

51

 

 

(b) The Buyer Parties, other than RAC, have all the requisite limited liability company power and authority to own, lease and operate their respective assets and properties and to carry on their respective businesses as presently conducted in all material respects. RAC has all corporate power and authority to own, lease and operate its assets and properties and to carry on its businesses as presently conducted in all material respects.

 

(c) Each Buyer Party is duly qualified, licensed or registered to do business under the Laws of each jurisdiction in which the conduct of its business or locations of its assets and/or properties makes such qualification necessary, except where the failure to be so qualified would not, individually or in the aggregate, reasonably be expected to be material to the Buyer Parties, taken as a whole.

 

(d) No Buyer Party is the subject of any bankruptcy, dissolution, liquidation, reorganization or similar proceeding.

 

(e) Each Buyer Party, other than RAC, has the requisite limited liability company power and authority to execute and deliver this Agreement and the Ancillary Agreements to which it is a party and to perform its obligations hereunder and thereunder, and, subject to the receipt of the requisite approval of this Agreement by the Buyer Member, to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance of this Agreement and the Ancillary Agreements and, subject to the receipt of the requisite approval of this Agreement by the Buyer Member, the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary limited liability company and/or corporate actions, as applicable. This Agreement has been (and each of the Ancillary Agreements to which each Buyer Party will be a party will be) duly executed and delivered by such Buyer Party and are or will be Enforceable against such Buyer Party. No other proceedings on the part of the Buyer, except for the Required Vote of the RAC Stockholders, are necessary to approve and authorize the execution, delivery or performance of this Agreement and the Ancillary Agreements. RAC has the requisite corporate power and authority, as applicable, to execute and deliver this Agreement and the Ancillary Agreements to which it is a party and to perform its obligations hereunder and thereunder, and, subject to the receipt of the Required Vote of the RAC Stockholders with respect to the RAC Stockholder Voting Matters, to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance of this Agreement and the Ancillary Agreements has been authorized by the special committee of independent directors of RAC and the board of directors of RAC and, subject to the receipt of the Required Vote of the RAC Stockholders with respect to the RAC Stockholders Voting Matters, the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate actions. No other vote of the equityholders of RAC, other than the Required Vote of the RAC Stockholders is necessary to approve this Agreement and the Ancillary Agreements and the transactions contemplated thereby.

 

(f) A correct and complete copy of the RAC Governing Documents, as in effect on the Execution Date, are filed as Exhibit 3.1 to the Form 8-K filed with the SEC on October 27, 2020 and Exhibit 3.3 to the Form S-1 filed with the SEC on October 6, 2020. RAC is not the subject of any bankruptcy, dissolution, liquidation, reorganization or similar proceeding.

 

52

 

 

Section 4.2 Non-contravention. Subject to the receipt of the requisite approval of this Agreement by the Buyer Member and except as set forth on Schedule 4.2, and assuming the truth and accuracy of the Company’s representations and warranties contained in Section 3.1(a), neither the execution and delivery of this Agreement or any Ancillary Agreement nor the consummation of the transactions contemplated hereby or thereby will (a) conflict with or result in any material breach of any provision of the Governing Documents of any Buyer Party; (b) other than the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, require any material filing with, or the obtaining of any material consent or approval of, any Governmental Entity; (c) result in a material violation of or a material default (or give rise to any right of termination, cancellation, or acceleration) under, any of the terms, conditions or provisions of any note, mortgage, other evidence of indebtedness, guarantee, license agreement, lease or other Contract to which any Buyer Party is a party or by which any Buyer Party or any of their respective assets may be bound; (d) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of the Buyer; or (e) except for violations which would not prevent or delay the consummation of the transactions contemplated hereby, violate in any material respect any Law, Order, or Lien applicable to any Buyer Party, excluding from the foregoing clauses (b), (c), (d) such requirements, violations or defaults which would not reasonably be expected to be material to the Buyer Parties, taken as a whole, or materially affect any Buyer Parties’ ability to perform its obligations under this Agreement and the Ancillary Agreements or to consummate the transactions hereby or thereby.

 

Section 4.3 Buyer Parties Capitalization.

 

(a) As of the Execution Date, the authorized capitalization of the Buyer is as set forth on Schedule 4.3(a). All outstanding OpCo Common Units are (i) issued in compliance in all material respects with applicable Law and (ii) not issued in breach or violation of preemptive rights, rights of first refusal, rights of first offer or Contract. As of the Execution Date, except in each case as set forth in the RAC Governing Documents, the Buyer Governing Documents, the Archaea Agreement, any Permitted Equity Subscription Agreement, the Subscription Agreements, this Agreement, or the RAC SEC Documents, there are no outstanding (A) outstanding Equity Interests of the Buyer, (B) options, warrants, convertible securities, stock appreciation, phantom stock, stock-based performance unit, profit participation, restricted stock, restricted stock unit, other equity-based compensation award or similar rights with respect to the Buyer or other rights (including preemptive rights) or agreements, arrangement or commitments of any character, whether or not contingent, of the Buyer to acquire from any Person, and no obligation of the Buyer to issue or sell, or cause to be issued or sold, any Equity Interest of the Buyer, or (C) obligations of the Buyer to repurchase, redeem, or otherwise acquire any of the foregoing securities, shares, Equity Interests, securities convertible into or exchangeable for such Equity Interests, options, equity equivalents, interests or rights or to make any investment in any other Person (other than this Agreement). Except as set forth on Schedule 4.3(a), as described in the Archaea Agreement and the Equity Interests the Buyer holds in Company Merger Sub, the Buyer does not hold any direct or indirect Equity Interests, participation or voting right or other investment (whether debt, equity or otherwise) in any Person (including any Contract in the nature of a voting trust or similar agreement or understanding).

 

(b) Company Merger Sub is wholly-owned by the Buyer, and Company Merger Sub does not hold any equity interests or rights, options, warrants, convertible or exchangeable securities, subscriptions, calls, puts or other analogous rights, interests, agreements, arrangements or commitments to acquire or otherwise relating to any equity or voting interest of any other Person. The Buyer is wholly-owned by IntermediateCo, and IntermediateCo does not hold any equity interests or rights, options, warrants, convertible or exchangeable securities, subscriptions, calls, puts or other analogous rights, interests, agreements, arrangements or commitments to acquire or otherwise relating to any equity or voting interest of any other Person. IntermediateCo is wholly-owned by Rice Holdings, and Rice Holdings does not hold any equity interests or rights, options, warrants, convertible or exchangeable securities, subscriptions, calls, puts or other analogous rights, interests, agreements, arrangements or commitments to acquire or otherwise relating to any equity or voting interest of any other Person. Rice Holdings is wholly-owned by RAC, and RAC does not hold any equity interests or rights, options, warrants, convertible or exchangeable securities, subscriptions, calls, puts or other analogous rights, interests, agreements, arrangements or commitments to acquire or otherwise relating to any equity or voting interest of any other Person.

 

53

 

 

(c) The Company Interests to be issued to the Company Unitholders pursuant to this Agreement will, upon issuance and delivery at the Closing, (i) be duly authorized and validly issued, and fully paid and nonassessable, (ii) be issued in compliance in all material respects with applicable Law, (iii) not be issued in breach or violation of any preemptive rights (or similar rights) created by Law, Governing Documents or Contract, and (iv) be issued to the Company Unitholders with good and valid title, free and clear of any Liens other than Securities Liens and any restrictions set forth in the RAC Governing Documents, the Buyer Certificate of Formation, the Stockholders Agreement and the Rice Holdings A&R LLCA.

 

(d) Other than as set forth on Schedule 4.3(d), the Buyer Parties have no obligations with respect to or under any indebtedness for borrowed money.

 

Section 4.4 Litigation. There is no material Proceeding pending or, to the Knowledge of the Buyer, threatened against or affecting a Buyer Party or its properties or rights.

 

Section 4.5 Brokerage. Except as set forth on Schedule 4.5, none of the Buyer Parties have incurred any Liability, in connection with this Agreement or the Ancillary Agreements, or the transactions contemplated hereby or thereby, that would result in the obligation of any Buyer Party to pay a finder’s fee, brokerage or agent’s commissions or other like payments.

 

Section 4.6 Business Activities.

 

(a) Since its formation, no Buyer Party has conducted any material business activities other than activities directed toward the accomplishment of a Business Combination. Except as set forth in the RAC Governing Documents, Buyer Governing Documents, and the Archaea Agreement there is no Contract, commitment, or Order binding upon any Buyer Party or to which any Buyer Party is a party which has or would reasonably be expected to have the effect of prohibiting or impairing any business practice of the Buyer Parties or any acquisition of property by the Buyer Parties or the conduct of business by the Buyer Parties after the Closing, other than such effects, individually or in the aggregate, which are not, and would not reasonably be expected to be, material to the Buyer Parties.

 

(b) Except for this Agreement, the Archaea Agreement and the Business Combination Transactions, no Buyer Party has any interests, rights, obligations or Liabilities with respect to, and the Buyer is not party to, bound by or has its assets or property subject to, in each case whether directly or indirectly, any Contract or transaction which is, or could reasonably be interpreted as constituting, a Business Combination. Other than as set forth in this Agreement and the Archaea Agreement, the Buyer Parties have not, directly or indirectly (whether by merger, consolidation or otherwise), acquired, purchased, leased or licensed (or agreed to acquire, purchase, lease or license) any business, corporation, partnership, association or other business organization or division or part thereof.

 

(c) The Buyer Parties have no Liabilities that are required to be disclosed on a balance sheet in accordance with GAAP, other than (i) Liabilities expressly set forth in or reserved against in the balance sheets of the respective Buyer Parties as of December 31, 2020 (as applicable, the “Buyer Balance Sheet”); (ii) Liabilities arising under this Agreement, the Ancillary Agreements or the performance by the Buyer Parties of their respective obligations hereunder or thereunder; (iii) Liabilities which have arisen after the date of the applicable Buyer Balance Sheet in the Ordinary Course of Business (none of which results from, arises out of or was caused by any breach of warranty or Contract, infringement or violation of Law); and (iv) Liabilities for fees, costs and expenses for advisors, vendors and Affiliates of the Buyer Parties or the Sponsor, including with respect to legal, accounting or other advisors incurred by the Buyer Parties or the Sponsor in connection with the Business Combination Transactions.

 

54

 

 

Section 4.7 Compliance with Laws. The Buyer Parties, and have been since their formation date, in compliance in all material respects with all Laws applicable to the conduct of the Buyer Parties and the Buyer Parties have not received any written notices from any Governmental Entity or any other Person alleging a material violation of or noncompliance with any such Laws.

 

Section 4.8 Organization of Buyer Parties. The Buyer Parties were formed solely for the purpose of engaging in the transactions contemplated hereby, other than entry into this Agreement or the Archaea Agreement, has not conducted any business activities, and has no assets or Liabilities other than those incident to its formation.

 

Section 4.9 Financing. The Buyer has delivered to the Company true, correct and complete copies of (i) each of the Subscription Agreements entered into by the Buyer with the PIPE Investors and (ii) an executed debt commitment letter, dated as of the Execution Date (including all exhibits, schedules and annexes thereto, collectively, as amended, the “Debt Commitment Letter”, and together with the Subscription Agreements and Forward Purchase Agreement, the “Commitment Letters”), from the Debt Financing Sources and all fee letters associated therewith (the “Fee Letter”) (provided that provisions in the fee letters related solely to fees and economic terms and “market flex” provisions agreed to by the parties may be redacted (none of which redacted provisions adversely affect the availability of or impose additional conditions on, the availability of the Debt Financing at the Closing)) to provide, subject to the terms and conditions therein, the amount of the financing set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing, the “Financing”). To the Knowledge of the Buyer and assuming the accuracy of the representations and warranties of the applicable Debt Financing Sources and Equity Financing Source set forth in the Commitment Letters, with respect to the Debt Financing Sources and each Equity Financing Source, as applicable, as of the Execution Date, the Commitment Letters are in full force and effect and have not been withdrawn or terminated, or otherwise amended or modified, and no withdrawal, termination, amendment or modification is currently contemplated by any party thereto. Each of the Commitment Letters is Enforceable against the Buyer and, to the Knowledge of the Buyer and assuming the accuracy of the representations and warranties of the applicable Debt Financing Source and Equity Financing Source set forth in the Commitment Letters, each Debt Financing Source and Equity Financing Source. The Subscription Agreements provide that the Company is a third-party beneficiary thereof and is entitled to enforce such agreement against the applicable Equity Financing Source, to the extent set forth therein. Other than the Fee Letter, there are no other agreements, side letters, or arrangements between the Buyer and (i) Debt Financing Source related to the Debt Financing or (ii) any Equity Financing Source relating to any Subscription Agreement or the Forward Purchase Agreement. As of the Execution Date, there are no facts or circumstances that (i) would reasonably be expected to constitute a default or a breach of the Commitment Letters by the Buyer or, to Buyer’s Knowledge, the other parties thereto or (ii) to Buyer’s Knowledge, would reasonably be expected to result in any of the conditions set forth in any Commitment Letter not being satisfied, or the aggregate amount of the Financing not being available to the Buyer, on the Closing Date. Except as set forth in the Commitment Letters there are no conditions precedent to the obligations of the Debt Financing Sources or the Equity Financing Sources to provide the Financing or any contingencies that would permit the Debt Financing Sources or the Equity Financing Sources, as applicable, to reduce the total amount of the Financing (including any condition or other contingency relating to the availability of the Financing pursuant to any “flex” provisions). As of the date of this Agreement, Buyer has paid in full any and all commitment fees or other fees required to be paid pursuant to the terms of the Commitment Letters or Fee Letter on or before the date of this Agreement, and will pay in full any such amounts due on or before the Closing Date.

 

55

 

 

Section 4.10 Buyer Parties. Company Merger Sub: (a) has been or will be formed solely for the purposes of executing and delivering this Agreement and/or the Ancillary Agreements and consummating the transactions contemplated by this Agreement or thereby (as applicable); (b) is, or when formed will be, and at all times prior to the Closing will be, directly or indirectly, wholly-owned by Buyer; (c) has not engaged, and prior to the Closing will not engage, in any business or activity other than the activities related to its organization and the execution of this Agreement and/or the Ancillary Agreements and the consummation of the transactions contemplated by this Agreement or thereby (as applicable); (d) other than its Governing Documents, this Agreement and any Ancillary Agreement (as applicable) such Person is not, and at all times prior to the Closing will not be, party to or bound by any Contract, commitment or Order; or (e) other than the performance of its obligations under its Governing Documents, this Agreement and/or any Ancillary Agreement (as applicable), such Person, has no Liabilities that are required to be disclosed on a balance sheet in accordance with GAAP.

 

Section 4.11 Tax Matters. Except as set forth on Schedule 4.11:

 

(a) Each of the Buyer Parties and RAC has filed all income Tax Returns and other material Tax Returns required to be filed by each such entity on or prior to the Closing Date pursuant to applicable Laws (taking into account any validly obtained extension of time within which to file). All income Tax Returns and other material Tax Returns filed by each of the Buyer Parties and RAC are correct and complete in all material respects and have been prepared in material compliance with all applicable Laws. All material amounts of Taxes due and payable by any of the Buyer Parties or RAC (taking into account applicable extensions) and for which the applicable statute of limitations remains open have been paid (whether or not shown as due and payable on any Tax Return).

 

(b) Each of the Buyer Parties and RAC has properly withheld or collected and paid to the applicable Taxing Authority all material amounts of Taxes required to have been withheld and paid by each such entity in connection with any amounts paid or owing to any employee, individual independent contractor, creditor, equityholder or other third party and all material sales, use, ad valorem, value added, and similar Taxes and has otherwise complied in all material respects with all applicable Laws relating to the withholding, collection and payment of such Taxes.

 

(c) None of the Buyer Parties nor RAC has received any written claim made by a Taxing Authority in a jurisdiction where any such entity does not file a particular type of Tax Return, or pay a particular type of Tax, that any such entity is or may be subject to taxation of that type by, or required to file that type of Tax Return in, that jurisdiction that has not been settled or resolved.

 

(d) None of the Buyer Parties nor RAC is currently nor has been within the last five years the subject of any Tax proceeding with respect to any Taxes or Tax Returns of or with respect to such entity, no such Tax proceeding is pending, and to the Knowledge of any of the Buyer Parties or RAC, no such Tax Proceeding has been threatened in writing, in each case, that has not been settled or resolved. None of the Buyer Parties nor RAC has ever commenced a voluntary disclosure proceeding in any jurisdiction that has not been resolved or settled. All material deficiencies for Taxes asserted or assessed in writing against any of the Buyer Parties or RAC have been paid, settled or withdrawn, and, to the Knowledge of each such entity, no such deficiency has been threatened or proposed in writing against any of the Buyer Parties or RAC.

 

(e) Except for extensions resulting from the extension of the time to file any applicable Tax Return, there are no outstanding agreements extending or waiving the statute of limitations applicable to any Tax or Tax Return with respect to any of the Buyer Parties or RAC or extending a period of Tax collection, assessment or deficiency, which period (after giving effect to such extension or waiver) has not yet expired, and no written request for any such waiver or extension is currently pending. None of the Buyer Parties nor RAC is the beneficiary of any extension of time (other than a validly obtained extension of time not requiring the consent of the applicable Governmental Entity or other extension of time obtained in the Ordinary Course of Business) within which to file any Tax Return not previously filed. No private letter ruling, administrative relief, technical advice, or other similar ruing or request has been granted or issued by, or is pending with, any Governmental Entity that relates to the Taxes or Tax Returns of any of the Buyer Parties or RAC.

 

56

 

 

(f) None of the Buyer Parties nor RAC will be required to include any material item of income, or exclude any material item of deduction, for any period (or portion thereof) beginning 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 on or before the Closing Date governed by Code Section 453 (or any similar provision of state, local or non-U.S. Laws); (ii) a disposition occurring on or before the Closing Date 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 or deferred revenue realized, accrued or received, in each case, outside the Ordinary Course of Business on or prior to the Closing Date; (iv) a change in method of accounting with respect to a Pre-Closing Tax Period that occurs or was requested on or prior to the Closing Date (or as a result of an impermissible method used in a Pre-Closing Tax Period); (v) an agreement entered into with any Governmental Entity (including a “closing agreement” under Code Section 7121) on or prior to the Closing Date; or (vi) as a result of application of Code Section 965 or any similar provision of U.S. state or local or non-U.S. Tax Law.

 

(g) None of the Buyer Parties nor RAC has deferred any “applicable employment taxes” under Section 2303 of the CARES Act, and each of the Buyer Parties and RAC has properly complied with all requirements for obtaining for all material credits that each such entity has claimed under Section 2301 of the CARES Act or any similar provision of U.S. state or local or non-U.S. Tax Law.

 

(h) There is no Lien for Taxes on any of the assets of the Buyer Parties or RAC, other than Permitted Liens.

 

(i) None of the Buyer Parties nor RAC has ever been a member of 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) and none of such entities has any liability for Taxes of any other Person as a result of Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Laws), successor liability, transferee liability, joint or several liability, by contract, by operation of Law, or otherwise (other than pursuant to this Agreement or any of the Ancillary Agreements, if any). None of the Buyer Parties nor RAC is party to or bound by any Tax Sharing Agreement except for any Ordinary Course Tax Sharing Agreement.

 

(j) The unpaid Taxes of each of the Buyer Parties and RAC does not materially exceed reserves for Tax liabilities maintained by each such entity in accordance with GAAP, as adjusted for the passage of time through the Closing Date in accordance with the past practices of each such entity in filing its Tax Returns.

 

(k) Since the date of its respective formation, other than RAC, each of the Buyer Parties has at all times been classified for all U.S. federal and applicable state and local tax purposes as a partnership or an entity which is disregarded as an entity separate from its owner (as described in Section 301.7701-3 of the Treasury Regulations). Since the date of its formation, RAC has at all times been classified for all U.S. federal and applicable state and local tax purposes as a domestic corporation (within the meaning of Section 7701 of the Code).

 

(l) None of the Buyer Parties nor RAC has taken or agreed to take any action not contemplated by this Agreement and/or any Ancillary Agreements that could reasonably be expected to prevent, impair or impeded the intended tax treatment of the transactions described in this Agreement.

 

57

 

 

Section 4.12 Non-contravention. Subject to the receipt of the Required Vote of the RAC Stockholders with respect to the RAC Stockholder Voting Matters, and assuming the truth and accuracy of the Company’s representations and warranties contained in Section 3.1(a), neither the execution, delivery and performance of this Agreement or any Ancillary Agreement nor the consummation of the transactions contemplated hereby or thereby will (a) conflict with or result in any material breach of any provision of the RAC Governing Documents; (b) other than the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, require any material filing with, or the obtaining of any material consent or approval of, any Governmental Entity; (c) result in a material violation of or a material default (or give rise to any right of termination, cancellation, or acceleration) under, any of the terms, conditions or provisions of any note, mortgage, other evidence of indebtedness, guarantee, license agreement, lease or other Contract to which RAC is a party or by which RAC or any of their respective assets may be bound; (d) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of RAC; or (e) except for violations which would not prevent or delay the consummation of the transactions contemplated hereby, violate in any material respect any Law, Order, or Lien applicable to RAC, excluding from the foregoing clauses (b), (c), (d) and Section 4.13 such requirements, violations or defaults which would not reasonably be expected to be material to RAC, taken as a whole. The Required Vote is the only vote of the holders of any class or series of RAC capital stock necessary to approve the transactions contemplated by this Agreement and the Ancillary Agreements. RAC is in compliance in all material respects with the related party policies set forth in the RAC Governing Documents.

 

Section 4.14 RAC Capitalization.

 

(a) As of the Execution Date, the authorized share capital of RAC is as set forth on Schedule 4.14(a). All outstanding RAC Common Stock and RAC Warrants are (1) issued in compliance in all material respects with applicable Law and (2) not issued in breach or violation of preemptive rights, rights of first refusal, rights of first offer or Contract. As of the Execution Date, except in each case (i) as set forth in the RAC Governing Documents, the Subscription Agreements, this Agreement, or the RAC SEC Documents and (ii) for RAC Common Stock and RAC Warrants, the Forward Purchase Securities and the RAC Share Redemption, there are no outstanding (x) outstanding Equity Interests of the Buyer, (y) options, warrants, convertible securities, stock appreciation, phantom stock, stock-based performance unit, profit participation, restricted stock, restricted stock unit, other equity-based compensation award or similar rights with respect to RAC or other rights (including preemptive rights) or agreements, arrangement or commitments of any character, whether or not contingent, of RAC to acquire from any Person, and no obligation of RAC to issue or sell, or cause to be issued or sold, any Equity Interest of the Buyer, or (z) obligations of RAC to repurchase, redeem, or otherwise acquire any of the foregoing securities, shares, Equity Interests, securities convertible into or exchangeable for such Equity Interests, options, equity equivalents, interests or rights or to make any investment in any other Person (other than this Agreement). Except as set forth on Schedule 4.14(a) and the Equity Interests RAC holds in the Buyer and its Subsidiaries, RAC does not hold any direct or indirect Equity Interests, participation or voting right or other investment (whether debt, equity or otherwise) in any Person (including any Contract in the nature of a voting trust or similar agreement or understanding).

 

(b) Other than as set forth on Schedule 4.14(b), RAC has no obligations with respect to or under any indebtedness for borrowed money.

 

Section 4.15 Information Supplied; Proxy Statement. The information supplied or to be supplied by RAC or the Buyer Parties or their respective Affiliates on behalf of RAC or a Buyer Party for inclusion or incorporation by reference in the Proxy Statement, the Additional RAC Filings, any other RAC SEC Filing, any other document submitted to any other Governmental Entity or any announcement or public statement regarding the transactions contemplated hereby (including the Signing Press Release and the Closing Press Release) shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading at (a) the time such information is filed, submitted or made publicly available (provided, if such information is revised by any subsequently filed amendment to the Proxy Statement prior to the time the Proxy Statement is mailed to the RAC Stockholders, this clause (a) shall solely refer to the time of such subsequent revision); (b) the time the Proxy Statement is first mailed to the RAC Stockholders; (c) the time of the RAC Stockholder Meeting; or (d) the Closing (subject to the qualifications and limitations set forth in the materials provided by the Buyer or that are included in such filings and/or mailings). The Proxy Statement will, at the time it is mailed to the RAC Stockholders, comply in all material respects with the applicable requirements of the Securities Exchange Act and the rules and regulations of the SEC thereunder applicable to the Proxy Statement.

 

58

 

 

Section 4.16 Trust Account. As of the Execution Date, the Buyer has at least $237,000,000 (the “Trust Amount”) in the Trust Account, with such funds invested in United States government securities or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act of 1940, and held in trust by the Trustee pursuant to the Trust Agreement. The Trust Agreement is in full force and effect and is Enforceable against the Buyer. The Trust Agreement has not been terminated, repudiated, rescinded, amended, supplemented or modified, in any respect by the Buyer or the Trustee, and no such termination, repudiation, rescission, amendment, supplement or modification is contemplated by the Buyer. The Buyer is not a party to or bound by any side letters with respect to the Trust Agreement or (except for the Trust Agreement) any Contracts, arrangements or understandings, whether written or oral, with the Trustee or any other Person that would (a) cause the description of the Trust Agreement in the RAC SEC Documents to be inaccurate in any material respect or (b) entitle any Person (other than (i) the RAC Stockholders who shall have exercised their rights to participate in the RAC Share Redemption, (ii) the underwriters of the Buyer’s initial public offering, who are entitled to a deferred underwriting discount and (iii) the Buyer, with respect to income earned on the proceeds in the Trust Account to cover any of its Tax obligations and up to $100,000 of interest on such proceeds to pay dissolution expenses), to any portion of the proceeds in the Trust Account. There are no Proceedings (or to the Knowledge of the Buyer, investigations) pending or, to the Knowledge of the Buyer, threatened with respect to the Trust Account.

 

Section 4.17 RAC SEC Documents; Financial Statements; Controls.

 

(a) RAC has timely filed or furnished all forms, reports, schedules, statements and other documents required to be filed or furnished by it with the SEC pursuant to the Securities Act or the Securities Exchange Act, as applicable, since the consummation of the initial public offering of RAC’s securities (all such forms, reports, schedules, statements and other documents filed or furnished with the SEC together with any amendments, restatements, supplements, exhibits and schedules thereto and other information incorporated therein, the “RAC SEC Documents”). As of their respective dates, each of the RAC SEC Documents, as amended (including all financial statements included therein, exhibits and schedules thereto and documents incorporated by reference therein), complied in all material respects with the applicable requirements of the Securities Act, or the Securities Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such RAC SEC Documents (including, as applicable, the Sarbanes-Oxley Act and any rules and regulations promulgated thereunder). None of (i) the RAC SEC Documents contained, when filed or, if amended prior to the Execution Date, as of the date of such amendment with respect to those disclosures that are amended, any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or (ii) any other RAC SEC Filings, any document submitted to any other Governmental Entity or any announcement or public statement regarding the transactions contemplated by this Agreement (including the Signing Press Release and the Closing Press Release) submitted after the Execution Date and prior to the Closing 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 not misleading. There are no outstanding or unresolved comments in comment letters received from the SEC with respect to the RAC SEC Documents. To the Knowledge of the Buyer, as of the Execution Date, neither the SEC nor other Governmental Entity is conducting any investigation or review of any RAC SEC Document. No notice of any SEC review or investigation of the Buyer or the RAC SEC Documents has been received by the Buyer. Since the consummation of the initial public offering, all comment letters received by the Buyer from the SEC or the staff thereof and all responses to such comment letters filed by or on behalf of the Buyer are publicly available on the SEC’s EDGAR website.

 

59

 

 

(b) The RAC SEC Documents contain true and complete copies of RAC’s financial statements. Each of the financial statements of RAC included in the RAC SEC Documents, including all notes and schedules thereto, complied in all material respects, when filed or if amended prior to the Execution Date, as of the date of such amendment, with the rules and regulations of the SEC, the Securities Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable) with respect thereto, were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or, in the case of the unaudited statements, as permitted by Rule 10-01 of Regulation S-X of the Securities Exchange Act), in the case of audited financials, were audited in accordance with the standards of the PCAOB and fairly present in all material respects in accordance with applicable requirements of GAAP (subject, in the case of the unaudited statements, to normal year-end audit adjustments) the financial position of RAC, as of their respective dates and the results of operations and the cash flows of RAC, for the periods presented therein.

 

(c) The books of account and other financial records of RAC have been kept accurately in all material respects in the Ordinary Course of Business, the transactions entered therein represent bona fide transactions, and the revenues, expenses, assets and liabilities of RAC have been properly recorded therein in all material respects. RAC has devised and maintains a system of internal accounting policies and controls sufficient to provide reasonable assurances that (i) transactions are executed in all material respects in accordance with management’s authorization; (ii) the transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP and to maintain accountability for assets; and (iii) the amount recorded for assets on the books and records of RAC is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any difference.

 

(d) RAC has not identified and has not received written notice from an independent auditor of (i) any significant deficiency or material weakness in the system of Internal Controls utilized by RAC; (ii) any fraud, whether or not material, that involves RAC’s management or other employees who have a role in the preparation of financial statements or the Internal Controls utilized by RAC; or (iii) any claim or allegation regarding any of the foregoing. There are no significant deficiencies or material weaknesses in the design or operation of the Internal Controls over financial reporting that would reasonably be expected to materially and adversely affect RAC’s ability to record, process, summarize and report financial information.

 

(e) Since the consummation of the initial public offering of RAC’s securities, RAC has timely filed all certifications and statements required by (i) Rule 13a-14 or Rule 15d-14 under the Securities Exchange Act or (ii) 18 U.S.C. Section 1350 (Section 906 of the Sarbanes-Oxley Act of 2002) with respect to any RAC SEC Document. Each such certification is correct and complete. RAC maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are reasonably designed to ensure that all material information concerning RAC is made known on a timely basis to the individuals responsible for the preparation of RAC’s SEC filings. As used in this Section 4.17‎(e), the term “file” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.

 

60

 

 

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

 

(g) As of their respective dates, all forms, reports, schedules, statements and other documents filed by RAC with the SEC during the Pre-Closing Period, under the Securities Act and the Securities Exchange Act, as amended (including all financial statements included therein, exhibits and schedules thereto and documents incorporated by reference therein), will have complied in all material respects with the applicable requirements of the Securities Act, or the Securities Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such documents (including, as applicable, the Sarbanes-Oxley Act and any rules and regulations promulgated thereunder). None of such forms, reports, schedules, statements and other documents will contain, when filed or, if amended during the Pre-Closing Period, as of the date of such amendment with respect to those disclosures that are amended, any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

 

Section 4.18 Listing. Since its initial public offering, RAC has complied, and is currently in compliance, in all material respects with all applicable listing and corporate governance rules and regulations of the Stock Exchange. The classes of securities representing issued and outstanding shares of RAC Common Stock and RAC Warrants are registered pursuant to Section 12(b) of the Securities Exchange Act and are listed for trading on the Stock Exchange. There is no Proceeding or investigation pending or, to the Knowledge of the Buyer, threatened against RAC by the Stock Exchange or the SEC with respect to any intention by such entity to deregister the RAC Public Securities or prohibit or terminate the listing of the RAC Public Securities on the Stock Exchange. RAC has taken no action that would reasonably be likely to result in the termination of the registration of the RAC Public Securities under the Securities Exchange Act. RAC has not received any written or, to the Knowledge of the Buyer, oral deficiency notice from the Stock Exchange relating to the continued listing requirements of the RAC Public Securities.

 

Section 4.19 Investment Company; Emerging Growth Company. RAC is not an “investment company” within the meaning of the Investment Company Act of 1940. RAC constitutes an “emerging growth company” within the meaning of the JOBS Act.

 

Section 4.20 Inspections; Buyer’s Representations. RAC is an informed and sophisticated purchaser, and has engaged advisors, experienced in the evaluation and investment in businesses such as the Group Companies’ business. RAC has undertaken such investigation and has been provided with and has evaluated such documents and information as it has deemed necessary to enable it to make an informed and intelligent decision with respect to the execution, delivery and performance of this Agreement (as applicable). RAC agrees to engage in the transactions contemplated by this Agreement based upon, and has relied on, its own inspection and examination of the Group Companies’ business and on the accuracy of the representations and warranties set forth in Article III and any Ancillary Agreement or certificate delivered by the Company pursuant to this Agreement and disclaims reliance upon any express or implied representations or warranties of any nature made by the Group Companies or their respective Affiliates or representatives, except for those set forth in Article III and in any Ancillary Agreement or certificate delivered by the Group Companies pursuant to this Agreement.

 

61

 

 

Section 4.21 PIPE Investment Amount. RAC has delivered to the Company true, accurate and complete copies of each of the Subscription Agreements pursuant to which the PIPE Investors have committed to provide equity financing to RAC in the aggregate amount of the PIPE Investment. As of the Execution Date, to the Knowledge of the Buyer, with respect to each PIPE Investor, the Subscription Agreements have not been withdrawn or terminated, or otherwise amended or modified, in any respect. Each Subscription Agreement is (A) a legal, valid and binding obligation of RAC and, to the Knowledge of the Buyer, each PIPE Investor and (B) Enforceable against RAC and, to the Knowledge of the Buyer, each PIPE Investor. There are no other agreements, side letters, or arrangements between RAC and any PIPE Investor relating to any Subscription Agreement that could affect the obligation of the PIPE Investors to contribute to RAC the applicable portion of the PIPE Investment set forth in the Subscription Agreements and, as of the Execution Date, RAC does not know of any facts or circumstances that would reasonably be expected to result in any of the conditions set forth in any Subscription Agreement not being satisfied, or the PIPE Investment not being available to RAC, on the Closing Date. No event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of RAC under any material term or condition of any Subscription Agreement and, as of the Execution Date, RAC has no reason to believe that it will be unable to satisfy in all material respects on a timely basis any term or condition of closing to be satisfied by it contained in any Subscription Agreement.

 

Section 4.22 Related Person Transactions. Except as set forth on Schedule Section 4.22 and other than the private placement of securities in connection with RAC’s initial public offering, there are no transactions or Contracts, or series of related transactions or Contracts (the “Sponsor Related Person Transactions”) between Sponsor or its Affiliates, on the one hand, and the Buyer, any officer, director, manager or Affiliate of the Buyer or, to the Knowledge of the Buyer, any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, required to be disclosed pursuant to Item 404 of Regulation S-K promulgated by the SEC that has not been disclosed by RAC in the RAC SEC Filings.

 

Section 4.23 Employees. Other than any officers as described in the RAC SEC Reports, none of the Buyer Parties have any employees on their payroll, and have retained any contractors, other than consultants and advisors in the Ordinary Course of Business. Other than reimbursement of any out-of-pocket expenses incurred by RAC’s officers and directors in connection with activities on RAC’s behalf in an aggregate amount not in excess of the amount of cash held by RAC outside of the Trust Account, no Buyer Party has any unsatisfied material liability with respect to any employee, officer or director. No Buyer Party has never and does not currently maintain, sponsor, contribute to, have any obligation to contribute to or have any direct or indirect Liability under any Employee Benefit Plan. Neither the execution and delivery of this Agreement nor the consummation of the Transactions contemplated hereunder (either alone or upon the occurrence of any additional or subsequent events or the passage of time) will (i) cause any compensatory payment or benefit, including any retention, bonus, fee, distribution, remuneration, or other compensation payable to any Person who is or has been an employee of or independent contractor to Acquiror (other than salaries, wages, or bonuses payable in the ordinary course of business) to increase or become due to any such Person or (ii) result in forgiveness of indebtedness with respect to any employee of Acquiror.

 

Section 4.24 Agreements, Contracts and Commitments.

 

(a) Schedule 4.24 sets forth a true, correct and complete list of each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) of a Buyer Party, including contracts by and among a Buyer Party, on the one hand, and any director, officer, stockholder or Affiliate of such party (the “Buyer Party Material Contracts”), other than any such Buyer Party Material Contract that is listed as an exhibit to any RAC SEC Report.

 

(b) No Buyer Party nor, to the Knowledge of the Buyer Parties, any other party thereto, is in material breach of or in material default under, and no event has occurred which with notice or lapse of time or both would become a breach of or default under, any Buyer Party Material Contract.

 

62

 

 

Article V
COVENANTS RELATING TO THE CONDUCT
OF THE GROUP COMPANIES AND THE BUYER

 

Section 5.1 Interim Operating Covenants of the Group Companies. From and after the Execution Date until the earlier of the date this Agreement is terminated in accordance with Article X and the Closing Date (such period, the “Pre-Closing Period”):

 

(a) the Company shall, and the Company shall cause the other Group Companies to the extent the Company (directly or indirectly) has the right, authority, power, or is not otherwise prevented from doing so under its or its Subsidiaries’ Governing Documents, to: (i) conduct and operate their business in the Ordinary Course of Business and (ii) maintain intact their respective businesses in all material respects and preserve their relationships with material customers, suppliers, distributors and others with whom such Group Company has a material business relationship, except, in each case, (x) with the prior written consent of the Buyer; (y) as expressly required hereby; or (z) as set forth on Schedule 5.1(a); and

 

(b) without limiting Section 5.1(a), except (A) with the prior written consent of the Buyer (such consent not to be unreasonably withheld, conditioned or delayed); (B) as expressly required hereby; (C) as set forth on Schedule 5.1(b) and (D) other than to the extent that any action is reasonably required to be taken in respect of any actual protocols or policies associated with any COVID-19 Measures, cause the Company Subsidiaries to:

 

(i) amend or otherwise modify any of its Governing Documents (including by merger, consolidation or otherwise);

 

(ii) except as may be required by Law, GAAP or any Governmental Entity with competent jurisdiction, make any material change in the financial or tax accounting methods, principles or practices (or change an annual accounting period);

 

(iii) except to the extent required by applicable Law, make, change or revoke any material election relating to Taxes, enter into any agreement, settlement or compromise with any Taxing Authority relating to any material Tax matter, abandon or fail to diligently conduct any material audit, examination or other Proceeding in respect of a material Tax or material Tax Return, make any request for a private letter ruling, administrative relief, technical advice, change of any method of accounting or other similar request with a Taxing Authority, file any amendment of any material Tax Return, fail to timely file (taking into account valid extensions) any material Tax Return required to be filed, file any Tax Return in a manner inconsistent with the past practices of the Group Companies, fail to pay any material amount of Tax as it becomes due, consent to any extension or waiver of the statutory period of limitations applicable to any material Tax or material Tax Return, enter into any Tax Sharing Agreement (other than an Ordinary Course Tax Sharing Agreement), surrender any right to claim any refund of material Taxes, take any action, or fail to take any action, which action or failure to act prevents, impairs or impedes, or could reasonably be expected to prevent, impair or impede, the intended tax treatment hereunder, or defer payment of any Taxes (including withholding Taxes) 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);

 

(iv) issue or sell, or authorize to issue or sell, any membership interests, shares of its capital stock or any other Equity Interests, as applicable, or issue or sell, or authorize to issue or sell, any securities convertible into or exchangeable for, or options, warrants or rights to purchase or subscribe for, or enter into any Contract with respect to the issuance or sale of, any shares of its membership interests, capital stock or any other Equity Interests;

 

63

 

 

(v) declare, set aside or pay any dividend or make any other distribution other than the payment of cash dividends or cash distributions prior to the Measurement Time or to another Group Company;

 

(vi) split, combine, redeem or reclassify, or purchase or otherwise acquire, any membership interests, shares of its capital stock or any other Equity Interests, as applicable;

 

(vii) (x) incur, assume, guarantee or otherwise become liable or responsible for (whether directly, contingently or otherwise) any Company Indebtedness, as applicable; (y) make any loans, advances or capital contributions to, or investments in, any Person or (z) amend or modify any Company Indebtedness other than, in each case, indebtedness under existing credit facilities incurred in the Ordinary Course of Business in an amounts not to exceed $1,000,000;

 

(viii) cancel or forgive any Company Indebtedness owed to any Group Company;

 

(ix) make any Capital Expenditure or incur any Liabilities in connection therewith, except for Capital Expenditures with respect to specific projects as set forth in and consistent with the Capital Expenditure Budget;

 

(x) make or effect any amendment or termination (other than an expiration in accordance with the terms thereof) of any Material Contract, enter into any Contract that if entered into prior to the Execution Date would be a Material Contract, in each case other than in the Ordinary Course of Business;

 

(xi) enter into, renew, modify or revise any Affiliated Transaction, as applicable, other than those that will be terminated at Closing;

 

(xii) sell, lease, license, assign, transfer, permit to lapse, abandon, or otherwise dispose of any of its properties or assets that are, with respect to the Company or any other Group Company, material to the businesses of the Group Companies, except in the Ordinary Course of Business pursuant to clause (a) of the definition thereof;

 

(xiii) adopt or effect a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization;

 

(xiv) grant or otherwise create or consent to the creation of any Lien (other than a Permitted Lien) on any of its material assets or Leased Real Property;

 

(xv) fail to maintain in full force and effect any Insurance Policies or allow any coverage thereunder to be reduced, except as replaced by a substantially similar insurance policy;

 

64

 

 

(xvi) make, increase, decrease, accelerate (with respect to funding, payment or vesting) or grant any base salary, base wages, bonus opportunity, equity or equity-based award or other compensation or employee benefits other than (A) as required by applicable Law or pursuant to a Company Employee Benefit Plan as in effect on the Execution Date that has been provided to Buyer prior to the Execution Date and set forth on Schedule 3.15(a); (B) annual base compensation increases made in the Ordinary Course of Business pursuant to clause (a) of the definition thereof for employees or individual independent contractors who are eligible to earn total annual compensation equal to or less than $150,000 both before and after any such increase, or (C) entering into any Company Employee Benefit Plan with any employee or independent contractor hired, engaged or promoted by any of the Group Companies following the Execution Date in the Ordinary Course of Business pursuant to clause (a) of the definition thereof, providing for eligibility to earn total annual compensation equal to or less than $250,000, and only in the form of cash compensation and benefits (other than equity or equity-based compensation, retention or transaction bonuses, severance and/or deferred compensation) for such individuals that are substantially similar to the cash compensation and benefits (other than equity or equity-based compensation, retention or transaction bonuses, severance and/or deferred compensation) made available to other similarly situated employees and service providers of the Group Companies;

 

(xvii) pay or promise to pay, grant or fund, accelerate (with respect to payment or vesting) or announce the grant or award of any equity or equity-based incentive awards, retention, sale, change-in-control or other discretionary bonus, severance or similar compensation or benefits; in each case, other than as required pursuant to a Company Employee benefit Plan as in effect on the Execution Date or applicable Law.

 

(xviii) establish, modify, amend (other than as required by applicable Law or as required for the annual insurance renewal for health and/or welfare benefits), terminate, enter into, commence participation in, or adopt any Company Employee Benefit Plan or any benefit or compensation plan, program, policy, agreement or arrangement that would be a Company Employee Benefit Plan if in effect on the Execution Date;

 

(xix) hire, engage, furlough, temporarily lay off or terminate (other than for cause) any individual with total annual compensation in excess of $250,000;

 

(xx) negotiate, modify, extend, or enter into any CBA or recognize or certify any labor union, labor organization, works council, or group of employees as the bargaining representative for any employees of the Group Companies;

 

(xxi) implement or announce any employee layoffs, plant closings, reductions in force, furloughs, temporary layoffs, salary or wage reductions, work schedule changes or other such actions affecting any group of three or more employees or contractors;

 

(xxii) waive or release any non-competition, non-solicitation, non-disclosure, non-interference, non-disparagement, or other restrictive covenant obligation of any current or former employee or independent contractor or enter into any agreement that restricts the ability of the Group Companies, as applicable, to engage or compete in any line of business in any respect material to any business of the Group Companies, as applicable;

 

(xxiii) buy, purchase or otherwise acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses, other than (A) inventory and supplies in the Ordinary Course of Business or (B) other assets in an amount not to exceed $1,000,000 individually or $5,000,000 in the aggregate;

 

(xxiv) take any action, or fail to take any action, which action or failure to act could reasonably be expected to result in (A) loss of Qualifying Facility status, (B) the loss (by any Group Company that directly owns a Qualifying Facility, other than Seneca Energy II, LLC) of any of the exemptions set forth in 18 C.F.R. §§ 292.601(c), 292.602(b), and 292.602(c), (C) loss of MBR Authority, or (D) financial, organizational or rate regulation under the Laws of any State Commission;

 

(xxv) enter into any new line of business;

 

65

 

 

(xxvi) make any material change to any of the cash management practices, including materially deviating from or materially altering any of its practices, policies or procedures in paying accounts payable or collecting accounts receivable;

 

(xxvii) make or effect any amendment to, waiver of, or termination (other than an expiration in accordance with the terms thereof) of, the LES MIPA; or

 

(xxviii) agree to, authorize or commit in writing to do any of the foregoing.

 

(c) From the Measurement Time until the Closing, the Company shall not, and the Company shall cause the other Group Companies not to, use any Cash and Cash Equivalents to pay any Transaction Expenses, make any distributions, repay any Company Indebtedness, as applicable, or make any payments in respect of Taxes or that may increase the amounts payable to the Company Unitholders at the Closing.

 

(d) Nothing contained herein shall be deemed to give the Buyer or Company Merger Sub, directly or indirectly, the right to control or direct the Company or any operations of any Group Company prior to the Closing. Prior to the Closing, the Group Companies shall exercise, consistent with the terms and conditions hereof, control over their respective businesses and operations. In addition, nothing herein shall be deemed to prohibit or restrict any Group Company from making Capital Expenditures with respect to specific projects as set forth in and consistent with the Capital Expenditure Budget.

 

Section 5.2 Interim Operating Covenants of the Buyer.

 

(a) During the Pre-Closing Period, except (x) with the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed); (y) as expressly required by this Agreement or pursuant to the Archaea Agreement or (z) as set forth on Schedule 5.2(a), RAC shall not, the Buyer shall not (and Buyer shall cause each Buyer Party not to):

 

(i) amend or otherwise modify any of the RAC Governing Documents, the Buyer Governing Documents or the Trust Agreement;

 

(ii) withdraw any of the Trust Amount, other than as permitted by the RAC Governing Documents, Buyer Governing Documents or the Trust Agreement;

 

(iii) other than in connection a RAC Share Redemption, the Forward Purchase Agreement, any Permitted Equity Financing, the repayment of any working capital loan under Section 5.2(a)(vii) in RAC Warrants, or the Subscription Agreements, issue or sell, or authorize to issue or sell, any Equity Interests, or issue or sell, or authorize to issue or sell, any securities convertible into or exchangeable for, or options, warrants or rights to purchase or subscribe for, or enter into any Contract with respect to the issuance or sale of, any Equity Interests of any Buyer Party;

 

(iv) enter into any Tax Sharing Agreement (other than an Ordinary Course Tax Sharing Agreement);

 

(v) other than in connection with a RAC Share Redemption, declare, set aside or pay any dividend or make any other distribution or return of capital (whether in cash or in kind) to the equityholders of the Buyer;

 

66

 

 

(vi) adjust, split, combine, redeem (other than a RAC Share Redemption) or reclassify any of its Equity Interests;

 

(vii) (x) incur, assume, guarantee or otherwise become liable or responsible for (whether directly, contingently or otherwise) any indebtedness for borrowed money, other than indebtedness in order to finance working capital needs (including to pay amounts which would be treated as a Transaction Expense if unpaid as of the Closing Date and any ordinary course operating expenses), which indebtedness permits or allows all or any portion of such indebtedness to be converted into the number of RAC Warrants not to exceed $3,000,000 (with such RAC Warrants issued at $1.00 per RAC Warrant and at an exercise price of $11.50 per RAC Warrant) or which may be otherwise repaid in cash, (y) make any loans, advances or capital contributions to, or investments in, any Person or (z) amend or modify any indebtedness for borrowed money;

 

(viii) enter into any transaction or Contract with the Sponsor or any of its Affiliates for the payment of finder’s fees, consulting fees, monies in respect of any payment of a loan or other compensation paid by Buyer to the Sponsor, Buyer’s officers or directors, or any Affiliate of the Sponsor or Buyer’s officers, for services rendered prior to, or for any services rendered in connection with, the consummation of the transactions contemplated hereby;

 

(ix) make any material changes to its accounting policies, methods or practices, other than as required by GAAP or applicable Law;

 

(x) reduce the exercise price of any RAC Warrants;

 

(xi) compromise, commence or settle any pending or threatened Proceeding (A) involving payments (exclusive of attorney’s fees) by the Buyer not covered by insurance in excess of $1,000,000 or in excess of $5,000,000 in the aggregate, (B) granting material injunctive or other equitable remedy against the Buyer, (C) which imposes any material restrictions on the operations of businesses of the Buyer or (D) by the public stockholders or any other third party Person which relates to the transactions contemplated by this Agreement;

 

(xii) except to the extent required by applicable Law, (A) make, change or revoke any material election relating to Taxes, (B) enter into any agreement, settlement or compromise with any Taxing Authority relating to a material amount of Taxes, (C) consent to any extension or waiver of the statutory period of limitations applicable to any material Tax matter (other than extensions resulting from the extension of the time to file any applicable Tax Return), (D) file any amended material Tax Return, (E) fail to timely file (taking into account valid extensions) any material Tax Return required to be filed, (F) fail to pay any material amount of Tax as it becomes due, (G) enter into any tax sharing agreement (other than an Ordinary Course Tax Sharing Agreement) or (H) surrender any right to claim any refund of a material amount of Taxes;

 

(xiii) enter into any new line of business; or

 

(xiv) agree or commit in writing to do any of the foregoing.

 

(b) Nothing contained herein shall be deemed to give any Group Company, directly or indirectly, the right to control or direct the Buyer prior to the Closing. Prior to the Closing, the Buyer shall exercise, consistent with the terms and conditions hereof, control over its business.

 

67

 

 

Article VI
PRE-CLOSING AGREEMENTS

 

Section 6.1 Reasonable Best Efforts; Further Assurances. Subject to the terms and conditions set forth herein, and to applicable Laws, during the Pre-Closing Period, the Parties shall cooperate and use their respective reasonable best efforts to take, or cause to be taken, all appropriate action (including executing and delivering any documents, certificates, instruments and other papers that are necessary for the consummation of the transactions contemplated hereby), and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated hereby and the Group Companies shall use reasonable best efforts, and the Buyer shall cooperate in all reasonable respects with the Group Companies, to solicit and obtain any consents of any Persons that may be required in connection with the transactions contemplated hereby, by the Archaea Agreement or by the Ancillary Agreements prior to the Closing; provided, however, that other than any fees payable in connection with Notification and Report Forms required pursuant to the HSR Act, no Party or any of their Affiliates shall be required to pay or commit to pay any amount to (or incur any obligation in favor of) any Person from whom any such consent may be required (unless such payment is required in accordance with the terms of the relevant Contract requiring such consent). Subject to the terms set forth herein, each Party shall take such further actions (including the execution and delivery of such further instruments and documents) as reasonably requested by any other Party to effect, consummate, confirm or evidence the transactions contemplated hereby and carry out the purposes of this Agreement.

 

Section 6.2 Trust & Closing Funding. Subject to the satisfaction or waiver of the conditions set forth in Article IX (other than those conditions that by their nature are to be satisfied at Closing, but subject to the satisfaction or waiver of those conditions) and provision of notice thereof to the Trustee (which notice RAC shall provide to the Trustee in accordance with the terms of the Trust Agreement), in accordance with the Trust Agreement and the RAC Governing Documents, at the Closing, RAC shall (a) cause the documents, opinions and notices required to be delivered to the Trustee pursuant to the Trust Agreement to be so delivered and (b) use its best efforts to cause the Trustee to pay as and when due all amounts payable to RAC Stockholders who shall have validly elected to redeem their RAC Stock and use its best efforts to cause the Trustee to pay as and when due the amounts due pursuant to the terms of the Trust Agreement.

 

Section 6.3 Status Preservation.

 

(a) Listing. During the Pre-Closing Period, RAC shall use reasonable best efforts to ensure RAC remains listed as a public company, and to ensure the RAC Common Stock and RAC Warrants continue to be listed, on the Stock Exchange.

 

(b) Qualification as an Emerging Growth Company. RAC shall, at all times during the Pre-Closing Period use reasonable best efforts to (a) take all customary actions necessary to continue to qualify as an “emerging growth company” within the meaning of the Jumpstart Our Business Startups Act of 2012 (“JOBS Act”); and (b) not take any action that in and of itself would cause RAC to not qualify as an “emerging growth company” within the meaning of the JOBS Act.

 

(c) Public Filings. During the Pre-Closing Period, RAC will use reasonable best efforts to have timely filed or furnished all forms, reports, schedules, statements and other documents required to be filed by it with the SEC, under the Securities Act and the Securities Exchange Act and will otherwise comply in all material respects with its reporting obligations under applicable Laws.

 

68

 

 

Section 6.4 Confidential Information. During the Pre-Closing Period, each Party acknowledges and agrees that they shall be bound by and comply with the provisions set forth in the Confidentiality Agreement as if such provisions were set forth herein; provided that any restriction set forth in the Confidentiality Agreement which requires the consent of the Company to share Confidential Information (as defined in the Confidentiality Agreement) with potential debt or equity financing sources shall be waived, subject to customary obligations of confidentiality. Each Party acknowledges and agrees that each is aware, and each of their respective Affiliates and representatives is aware (or upon receipt of any material nonpublic information of the other Party, will be advised), of the restrictions imposed by the United States federal securities Laws and other applicable foreign and domestic Laws on Persons possessing material nonpublic information about a public company. Each Party hereby agrees, that during the Pre-Closing Period, except in connection with or support of the transactions contemplated by this Agreement (including any communications with potential Equity Financing Sources) or at the request of the Buyer or any of its Affiliates or its or their representatives, while any of them are in possession of such material nonpublic information, none of such Persons shall, directly or indirectly (through its Affiliates or otherwise), acquire, offer or propose to acquire, agree to acquire, sell or transfer or offer or propose to sell or transfer any securities of the Buyer, communicate such information to any other Person or cause or encourage any Person to do any of the foregoing.

 

Section 6.5 Access to Information. During the Pre-Closing Period, upon reasonable prior notice, the Company shall, and the Company shall cause the Company Subsidiaries to, afford the representatives of RAC and the Buyer reasonable access, during normal business hours, to the properties, employees, books and records of the Group Companies, as applicable, and furnish to the representatives of RAC and the Buyer such additional financial and operating data and other information regarding the business of the Group Companies as RAC and the Buyer or its representatives may from time to time reasonably request for purposes of consummating the transactions contemplated hereby and preparing to operate the business of the Group Companies following the Closing; provided, nothing herein shall require any Group Company to provide access to, or to disclose any information to, RAC and the Buyer Parties or any of their representatives if such access or disclosure, in the good faith reasonable belief of the Company, as applicable, (a) would waive any legal privilege or (b) would be in violation of applicable Contracts, Laws or regulations of any Governmental Entity (including the HSR Act).

 

Section 6.6 Notification of Certain Matters. During the Pre-Closing Period, each Party shall disclose to the other Parties in writing any development, fact or circumstance of which such Party has Knowledge, arising before or after the Execution Date, that would cause or would reasonably be expected to result in the failure of the conditions set forth in Section 9.1 or Section 9.2 to be satisfied.

 

Section 6.7 Regulatory Approvals; Efforts.

 

(a) Each Party shall use commercially reasonable efforts to promptly file all notices, reports and other documents required to be filed by such party with any Governmental Entity with respect to the transactions contemplated by this Agreement, and to submit promptly any additional information requested by any such Governmental Entity. Without limiting the generality of the foregoing, each of the Parties will (i) cause the Notification and Report Forms required pursuant to the HSR Act and the joint application pursuant to Section 203 of the FPA with respect to the transactions contemplated hereby to be filed no later than 15 Business Days after the Execution Date; (ii) to the extent available, request early termination of the waiting period relating to such HSR Act filings; (iii) make an appropriate response to any requests for additional information and documentary material made by a Governmental Entity pursuant to the HSR Act or the FPA; and (iv) otherwise use its reasonable best efforts to cause the expiration or termination of the applicable waiting periods under the HSR Act with respect to the transactions contemplated as soon as practicable. The Parties shall use reasonable best efforts to promptly obtain, and to cooperate with each other to promptly obtain, all authorizations, approvals, clearances, consents, actions or non-actions of any Governmental Entity in connection with the above filings, applications or notifications. Each Party shall promptly inform the other Parties of any material communication between itself (including its representatives) and any Governmental Entity regarding any of the transactions contemplated hereby. All filing fees required by applicable Law to any Governmental Entity in order to obtain any such approvals, consents, or Orders shall be Transaction Expenses.

 

69

 

 

(b) The Parties shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated hereby and, to the extent permissible, promptly furnish the other with copies of notices or other communications between any Party (including their respective Affiliates and representatives), as the case may be, and any third party and/or Governmental Entity with respect to such transactions. Each Party shall give the other Party and its counsel a reasonable opportunity to review in advance, to the extent permissible, and consider in good faith the views and input of the other Party in connection with, any proposed material written communication to any Governmental Entity relating to the transactions contemplated hereby, and to the extent reasonably practicable, give the other party the opportunity to attend and participate in any substantive meeting, conference or discussion, either in person or by telephone, with any Governmental Entity in connection with the transactions contemplated hereby.

 

(c) Each Party shall use reasonable best efforts to resolve objections, if any, as may be asserted by any Governmental Entity with respect to the transactions contemplated hereby under the HSR Act, the Sherman Act, the Clayton Act, the Federal Trade Commission Act, and any other United States federal or state or foreign statutes, rules, regulations, Orders, decrees, administrative or judicial doctrines or other Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or constituting anticompetitive conduct (collectively, the “Antitrust Laws”). Subject to the other terms of this Section 6.7(c), each Party shall use reasonable best efforts to take such action as may be required to cause the expiration of the notice periods under the HSR Act or other Antitrust Laws with respect to such transactions as promptly as possible after the Execution Date.

 

Section 6.8 Communications; Press Release; SEC Filings.

 

(a) Prior to the Closing, none of the Parties shall and each Party shall cause its Affiliates not to, make or issue any public release or public announcement concerning this Agreement or the transactions contemplated hereby without the prior written consent of each of the Parties, which consent, in each case, shall not be unreasonably withheld, conditioned or delayed; provided, however, that (i) each Party may make any such announcement which it in good faith believes is necessary or advisable in connection with any required Law or which is required by the requirements of any national securities exchange applicable to such Party and (ii) each Company Unitholder or Affiliate of a Party that is a private equity, venture capital or investment fund may make customary disclosures to its existing or potential financing sources, including direct or indirect limited partners and members (whether current or prospective) solely to the extent that such disclosures do not constitute material nonpublic information and are subject to customary obligations of confidentiality (it being understood that, to the extent practicable, the Party making such public announcement shall provide such announcement to the other Parties prior to release and consider in good faith any comments from such other Parties); and provided, further, that each Party may make announcements regarding this Agreement and the transactions contemplated by this Agreement consisting solely of information contained in and otherwise consistent with any such mutually agreed press release or public announcement (including, for the avoidance of doubt, the Proxy Statement, Signing Form 8-K and Closing Form 8-K) to their directors, officers, employees, service providers, other material business relationships and other interested parties without the consent of the other Parties.

 

70

 

 

(b) As promptly as practicable following the Execution Date (but in any event within four (4) Business Days thereafter), RAC shall prepare and file a Current Report on Form 8-K pursuant to the Securities Exchange Act to report the execution of this Agreement and the Subscription Agreements, and make public all material nonpublic information provided to potential PIPE Investors prior to the Execution Date (the “Signing Form 8-K”), and RAC, the Buyer and the Company shall issue a mutually agreeable press release announcing the execution of this Agreement (the “Signing Press Release”). Prior to filing with the SEC, RAC will make available to the Company and the Equityholder Representative a draft of the Signing Form 8-K and the press release and will provide the Company and the Equityholder Representative with a reasonable opportunity to comment on such drafts and shall consider such comments in good faith.

 

(c) As promptly as reasonably practicable after the date of this Agreement, the Parties shall prepare and RAC shall file with the SEC a proxy statement (as amended or supplemented, the “Proxy Statement”), which shall comply as to form, in all material respects, with, as applicable, the provisions of the Securities Exchange Act and the rules and regulations promulgated thereunder, for the purpose of soliciting proxies from the RAC Stockholders to vote at the RAC Stockholder Meeting in favor of the RAC Stockholder Voting Matters. RAC shall file a definitive version of the Proxy Statement with the SEC and cause the same to be mailed to its stockholders of record, as of the record date (the “RAC Record Date”) to be established by the RAC Board as promptly as practicable after, but in any event within five (5) Business Days of, the SEC confirming that they have completed their review of the Proxy Statement. RAC shall promptly commence a “broker search” in accordance with Rule 14a-12 of the Securities Exchange Act. Those portions of the Proxy Statement filed by RAC in connection with the transactions contemplated hereby containing post-Closing twenty-four month financial forecasts of the Surviving Company (such portions, the “Post-Closing Projection Materials”) shall require the Company’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) prior to inclusion in the Proxy Statement. For the avoidance of doubt, the Company and its counsel shall have a reasonable opportunity to review the proxy statement and to comment on such drafts and RAC shall consider such comments in good faith; provided that other than with respect to the Post-Closing Projection Materials, the Company’s prior written consent shall not be required for any other portions of the Proxy Statement.

 

(d) Prior to filing with the SEC, RAC will make available to the Company and the Equityholder Representative drafts of the Proxy Statement and any other documents to be filed with the SEC, both preliminary and final or definitive, and drafts of any amendment or supplement to the Proxy Statement or such other document, including responses to any SEC comment letters, and will provide the Company and the Equityholder Representative with a reasonable opportunity to comment on such drafts and shall consider such comments in good faith. RAC will advise the Company and the Equityholder Representative, promptly after it receives notice thereof, of (i) the time when the Proxy Statement has been filed; (ii) receipt of oral or written notification of the completion of the review by the SEC; (iii) the filing of any supplement or amendment to the Proxy Statement; (iv) any request by the SEC for amendment of, or supplements to, the Proxy Statement; (v) any comments, written or oral, from the SEC relating to the Proxy Statement and responses thereto; and (vi) requests by the SEC for additional information in connection with the Proxy Statement, and shall consult with the Company regarding, and supply the Company with copies of, all material correspondence between RAC, the Buyer or any of their respective Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement. In consultation with the Company, RAC shall promptly respond to any comments of the SEC on the Proxy Statement, and the Parties shall use their respective reasonable best efforts to respond promptly to any comments made by the SEC with respect to the Proxy Statement. RAC will advise the other Parties, promptly after RAC receives notice that the SEC has completed review of the Proxy Statement. For the avoidance of doubt, the Company and its counsel shall have a reasonable opportunity to review any amendments and supplements to the Proxy Statement and to comment on such drafts and RAC shall consider such comments in good faith.

 

71

 

 

(e) The Parties shall ensure that none of the information supplied by it or them or on its or their behalf, respectively, for inclusion or incorporation by reference in (i) the Proxy Statement will, at the time the Proxy Statement is filed with the SEC and at each time at which it is amended, 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, not misleading or (ii) the Proxy Statement will, at the date it is first mailed to the RAC Stockholders and at the time of the RAC Stockholders Meeting 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. If, at any time prior to the RAC Stockholder Meeting, any Party discovers or becomes aware of any information that should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, such Party shall inform the other Parties hereto and, subject to Section 6.8(c), RAC shall promptly file (and Buyer, RAC and the Company shall cooperate in preparing, to the extent necessary) an appropriate amendment or supplement describing such information with the SEC and, to the extent required by Law, transmit to the RAC Stockholders such amendment or supplement to the Proxy Statement containing such information.

 

(f) The Parties acknowledge that a substantial portion of the Proxy Statement and certain other forms, reports and other filings required to be made by RAC and the Buyer under the Securities Act and Securities Exchange Act in connection with the transactions contemplated hereby (collectively, “Additional RAC Filings”) shall include disclosure regarding (i) the Group Companies and the business of the Group Companies and the management, operations and financial condition of the Group Companies and (ii) RAC, the Buyer and the business of RAC and the management, operations and financial condition of RAC. Accordingly, the Company agrees to, and the Company agrees to cause the Group Companies to, as promptly as reasonably practicable, provide RAC and the Buyer with all information concerning the Company Unitholders, the Company and the Group Companies, and their respective business, management, operations and financial condition, in each case, that if not disclosed therein, would cause the Proxy Statement and/or any other RAC SEC Filing to contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements, in light of the circumstances, under which they were made, not misleading. The Buyer Parties agree to, as promptly as reasonably practicable, provide the Buyer Parties and the Group Companies with all information concerning such parties and their respective business, management, operations and financial condition, in each case, that if not disclosed therein, would cause the Proxy Statement and/or any other RAC SEC Filing to contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements, in light of the circumstances, under which they were made, not misleading. The Company shall, and the Company shall cause the Group Companies to, make and RAC and the Buyer shall make, and, with respect to each party, shall cause their respective directors, officers, managers and employees, in each case during normal business hours and upon reasonable advanced notice, to make, available to RAC, the Buyer, the Company and the Group Companies, as applicable, and their respective counsel, auditors and other Representatives in connection with the drafting of the Proxy Statement, Additional RAC Filings and any other RAC SEC Filing as reasonably requested by the applicable party, and responding in a timely manner to comments thereto from the SEC all information concerning such party, their respective businesses, management, operations and financial condition, in each case, that is reasonably required to be included in the Proxy Statement, such Additional RAC Filing or other RAC SEC Filing. RAC and the Buyer shall use reasonable best efforts to make all necessary filings with respect to the transactions contemplated hereby under the Securities Act, the Securities Exchange Act and applicable blue sky Laws and the rules and regulations thereunder, shall provide the Company and the Equityholder Representative with a reasonable opportunity to comment on drafts of any such filings and shall consider such comments in good faith, and the Company shall reasonably cooperate in connection therewith. Without limiting the generality of the foregoing, RAC shall be responsible, and the Company shall reasonably cooperate with RAC, in connection with (i) preparation for inclusion in the Proxy Statement and the Closing Form 8-K of pro forma financial statements that comply with the requirements of Regulation S-X under the rules and regulations of the SEC (as interpreted by the staff of the SEC) to the extent such pro forma financial statements are required by the Proxy Statement or the Closing Form 8-K and (ii) obtaining the consents of their respective auditors as required in connection with the Proxy Statement, the Closing Form 8-K, the transactions set forth under this Agreement or applicable Law. The Company shall have a reasonable opportunity to review the pro forma financial statements described in the foregoing sentence and to comment on such drafts and RAC shall consider such comments in good faith.

 

72

 

 

(g) At least five days prior to Closing, RAC shall begin preparing a draft Current Report on Form 8-K in connection with and announcing the Closing, together with, or incorporating by reference, such information that is or may be required to be disclosed with respect to the transactions contemplated hereby pursuant to Form 8-K (the “Closing Form 8-K”). Prior to the Closing, the Parties shall prepare a mutually agreeable press release announcing the consummation of the transactions contemplated hereby (“Closing Press Release”). The Buyer and RAC shall provide the Company with a reasonable opportunity to review and comment on the press release and the Closing Form 8-K prior to its filing and shall consider such comments in good faith. Concurrently with the Closing, RAC and the Buyer shall distribute the Closing Press Release, and as soon as practicable thereafter, file the Closing Form 8-K with the SEC.

 

(h) The Company shall provide to RAC as promptly as practicable after the Execution Date (i) audited consolidated balance sheet of the Company and its Subsidiaries as of December 31. 2018, December 31, 2019 and December 31, 2020, and the related audited consolidated statements of comprehensive loss, cash flows and members equity for the fiscal years ended on such dates, together with all related notes and schedules thereto, accompanied by the reports thereon of the Company’s independent auditors (which reports shall be unqualified) in each case audited in accordance with the standards of the PCAOB; (ii) unaudited consolidated financial statements of the Company and its Subsidiaries including consolidated balance sheets, consolidated statements of comprehensive loss, cash flows and members equity as of and for the three month period ended March 31, 2021 together with all related notes and schedules thereto, prepared in accordance with GAAP applied on a consistent basis throughout the covered periods and Regulation S-X of the Securities Exchange Act and reviewed by the Company’s independent auditor in accordance with Statement on Auditing Standards No. 100 issued by the American Institute of Certified Public Accountants; (iii) all other audited and unaudited financial statements of the Group Companies and any company or business units acquired by the Group Companies, as applicable, required under the applicable rules and regulations and guidance of the SEC to be included in the Proxy Statement and/or the Closing Form 8-K (including pro forma financial information); and (iv) management’s discussion and analysis of financial condition and results of operations prepared in accordance with Item 303 of Regulation S-K of the Securities Exchange Act (as if the Group Companies were subject thereto) with respect to the periods described in clauses (i), (ii) and (iii) above, as necessary for inclusion in the Proxy Statement and Closing Form 8-K.

 

(i) RAC shall provide to the Company as promptly as practicable after the Execution Date (i) audited consolidated balance sheet of RAC and its Subsidiaries as of December 31, 2020, and the related audited consolidated statements of comprehensive loss, cash flows and members equity for the fiscal years ended on such date, together with all related notes and schedules thereto, accompanied by the reports thereon of RAC’s independent auditor (which reports shall be unqualified) in each case audited in accordance with the standards of the PCAOB; (ii) unaudited consolidated financial statements of RAC and its Subsidiaries including consolidated balance sheets, consolidated statements of comprehensive loss, cash flows and members equity as of and for the three month period ended March 31, 2021 together with all related notes and schedules thereto, prepared in accordance with GAAP applied on a consistent basis throughout the covered periods and Regulation S-X of the Securities Exchange Act and reviewed by the RAC’s independent auditor in accordance with Statement on Auditing Standards No. 100 issued by the American Institute of Certified Public Accountants; (iii) all other audited and unaudited financial statements of RAC and any company or business units acquired by RAC, as applicable, required under the applicable rules and regulations and guidance of the SEC to be included in the Proxy Statement and/or the Closing Form 8-K (including pro forma financial information); and (iv) management’s discussion and analysis of financial condition and results of operations prepared in accordance with Item 303 of Regulation S-K of the Securities Exchange Act with respect to the periods described in clauses (i), (ii) and (iii) above, as necessary for inclusion in the Proxy Statement and Closing Form 8-K.

 

73

 

 

Section 6.9 RAC Stockholder Meeting. Each of the Buyer and RAC, acting through the RAC Board, upon recommendation of the RAC Special Committee, shall take all actions in accordance with applicable Law, and the RAC Governing Documents, and the rules of the Stock Exchange to duly call, give notice of, convene and promptly hold the RAC Stockholder Meeting for the purpose of considering and voting upon the RAC Stockholder Voting Matters, which meeting shall be held not more than 25 days after the date on which RAC completes the mailing of the Proxy Statement to the RAC Stockholders pursuant to the terms of this Agreement. The RAC Board, upon recommendation of the RAC Special Committee, shall recommend adoption of this Agreement and approval of the RAC Stockholder Voting Matters and include such recommendation in the Proxy Statement, and, unless this Agreement has been duly terminated in accordance with the terms herein, neither the RAC Board nor any committee thereof shall (a) change, withdraw, withhold, qualify or modify, or publicly propose or resolve to change, withdraw, withhold, qualify or modify the recommendation of the RAC Board that the RAC Stockholders vote in favor of the approval of the RAC Stockholder Voting Matters, (b) adopt, approve, endorse or recommend any Buyer Competing Transaction or (c) agree to take any of the foregoing actions. Notwithstanding the foregoing, the RAC Board, upon recommendation of the RAC Special Committee, may change, withdraw, withhold, qualify or modify, or publicly propose to or resolve to change, withdraw withhold, qualify, or modify the recommendation of the RAC Special Committee and the RAC Board that the RAC Stockholders vote in favor of the approval of the RAC Stockholder Voting Matters if the RAC Special Committee determines in good faith, after consultation with its legal counsel, that a take such action would constitute a breach by the RAC Special Committee and the RAC Board of its fiduciary obligations to RAC’s stockholders under applicable Law. Each of the Buyer and RAC agrees that its obligation to establish the RAC Record Date, duly call, give notice of, convene and hold the RAC Stockholder Meeting for the purpose of seeking approval of the RAC Stockholder Voting Matters shall not be affected by any change, withdrawal, or modification by the RAC Special Committee or the RAC Board of its recommendation to RAC stockholders, intervening event or other circumstance, and each of the Buyer and RAC agrees to establish the RAC Record Date, duly call, give notice of, convene and hold the RAC Stockholder Meeting and submit for the approval of the RAC Stockholders the RAC Stockholder Voting Matters, in each case as contemplated by this Section 6.9, regardless of whether there shall have occurred any such change, withdrawal, modification of recommendation, intervening event or other circumstance. Unless this Agreement has been duly terminated in accordance with the terms herein, RAC shall take all reasonable lawful action to solicit from the RAC Stockholders proxies in favor of the proposal to adopt this Agreement and approve the RAC Stockholder Voting Matters and shall take all other action reasonably necessary or advisable to secure the approval of the RAC Stockholder Voting Matters. Notwithstanding anything to the contrary contained in this Agreement, RAC may (and in the case of the following clauses (ii) and (iv), at the request of the Company, shall) adjourn or postpone the RAC Stockholder Meeting for a period of no longer than 15 calendar days: (i) after consultation with the Company, to the extent necessary to ensure that any supplement or amendment to the Proxy Statement that the RAC Board has determined in good faith is required by applicable Law be provided to the RAC Stockholders; (ii), in each case, for one or more periods, (x) if as of the time for which the RAC Stockholder Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient voting Equity Interests of RAC represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the RAC Stockholder Meeting or (y) in order to solicit additional proxies from the RAC Stockholders for purposes of obtaining approval of the Required Vote; (iii) to seek withdrawals of redemption requests from the RAC Stockholders; or (iv) in order to solicit additional proxies from stockholders for purposes of obtaining approval of the RAC Stockholder Voting Matters; provided, that in the event of any such postponement or adjournment, the RAC Stockholder Meeting shall be reconvened as promptly as practicable following such time as the matters described in such clauses have been resolved.

 

74

 

 

Section 6.10 Expenses. Except as otherwise provided herein, each Party shall be solely liable for and pay all of its own costs and expenses (including attorneys’, accountants’ and investment bankers’ fees and other out-of-pocket expenses) incurred by such Party or its Affiliates in connection with the negotiation and execution of this Agreement, the Archaea Agreement and the Ancillary Agreements, the performance of such Party’s obligations hereunder and thereunder and the consummation of the Business Combination Transactions; provided, that if the Closing occurs, at and in connection therewith, RAC shall pay or reimburse each Party for all Transaction Expenses, which shall be paid: (a) first, from the cash released from the Trust Account; and (b) second, thereafter, if such cash is not sufficient to cover all Transaction Expenses, from other cash available to RAC. From and after the Closing, RAC shall, or shall cause its Subsidiaries to, promptly pay or reimburse each Party for all Transaction Expenses to the extent not previously paid.

 

Section 6.11 Financing; Financing Cooperation.

 

(a) Obligations of the Buyer.

 

(i) Prior to the Closing, the Buyer shall, assuming cooperation by the Company and its Subsidiaries in accordance with Section 6.11(b), use reasonable best efforts to, and shall use reasonable best efforts to cause its Subsidiaries and controlled Affiliates to use reasonable best efforts to, and shall cause their respective officers, employees, advisors and other representatives to use its reasonable best efforts to, take, or cause to be taken, all actions, and to do, or cause to be done, all things reasonably necessary, customary or advisable to arrange and obtain the Financing on the terms and conditions described in the Commitment Letters, including (w) maintaining in effect the Commitment Letters, (x) satisfying on a timely basis (or obtaining the waiver of) all conditions applicable to it and its Affiliates in the Commitment Letters, (y) consummating the Financing at or prior to the Closing, including using its reasonable best efforts to cause the Debt Financing Sources and Equity Financing Sources to fund the Debt Financing and Equity Financing at the Closing in accordance with the terms set forth in the respective Commitment Letter, and (z) complying with its covenants and other obligations under the Commitment Letters.

 

(ii) Buyer shall not, without the prior written consent of the Company, (A) terminate either Commitment Letter (other than in connection with a replacement of the Commitment Letter permitted pursuant to this Section 6.11) or (B) agree to or permit any amendment or modification to be made to, or grant any waiver of any provision under, either Commitment Letter (except for any amendments to the Commitment Letters that would not or would not reasonably be expected to (I) amend, modify or expand the conditions precedent, or impose new or additional conditions or contingencies, to the Debt Financing or the Equity Financing, (II) reduce the aggregate amount of the Financing below the amount required (after taking into account available cash of the Company and its Subsidiaries) to make the Closing Date payments, (III) prevent, impede or delay the availability of or consummation of the Financing or (IV) adversely impact the ability of Buyer or any of its Affiliates to enforce its right against the parties to the Commitment Letters or the definitive agreements with respect thereto).

 

75

 

 

(iii) Buyer shall give the Company prompt written notice of (A) any termination of either Commitment Letter, (B) any actual breach, default, termination or repudiation of any provisions of either Commitment Letter by any party thereto, (C) the receipt of any written notice or other written communication with respect to any actual breach, default, termination or repudiation of any provisions of either Commitment Letter by any party thereto and (D) the occurrence of any other event or development, in the case of this clause (D), solely to the extent that Buyer believes in good faith that such event or development would adversely impact the ability of Buyer to obtain all or any portion of the Financing contemplated by the Commitment Letters on the terms and conditions, in the manner or from the sources contemplated by the Commitment Letters, in each case of the foregoing, with respect to the Debt Financing, solely to the extent the Debt Financing or a material portion thereof would reasonably be expected to become unavailable. Promptly after the Company delivers to Buyer a written request, Buyer shall provide any information reasonably requested by the Company relating to any circumstance referred to in the immediately preceding sentence. Buyer shall promptly after execution thereof deliver to Company copies of any amendment, replacement, supplement, modification or waiver to either Commitment Letter.

 

(iv) For the avoidance of doubt, it is understood that, subject to the limitations set forth in this Section 6.11 and in the Debt Commitment Letter, Buyer may amend or replace the Debt Commitment Letter to (A) add or replace additional lenders, lead arrangers, syndication agents or similar entities or reallocate commitments or reassign titles so long as the aggregate amount of the Debt Financing is not reduced below the amount as is necessary to make the Closing Date payments and any such amendment or replacement would not reasonably be expected to delay or prevent the Closing or (B) modify pricing and implement or exercise any “flex” provisions as in effect on the date of this Agreement.

 

76

 

 

(b) Obligations of the Company. During the period from the Execution Date to the earlier of the Closing and the termination of this Agreement in accordance with its terms, the Company shall use reasonable best efforts, and shall cause the Company’s Subsidiaries and its and their officers, directors and employees to use reasonable best efforts to provide, and shall use its reasonable best efforts to direct its and their accountants, legal counsel and other representatives to provide, all cooperation as may be reasonably requested by Buyer as necessary in connection with causing the conditions of the Debt Financing to be satisfied or otherwise in connection with the arrangement of the Debt Financing, including using reasonable best efforts to: (i) participate at reasonable times in a reasonable number of meetings, drafting sessions, presentations, road shows, and rating agency and due diligence sessions, in each case, that are customary for financings of a type similar to the Debt Financing and upon reasonable advance notice (provided that such participation may be over conference call or other electronic means, and need not be in person); (ii) furnish Buyer and its Debt Financing Sources with such financial and operating data and other relevant information with respect to the Company and its Subsidiaries that is readily available to the Company or can be prepared by the Company without unreasonable effort and as is required under the Debt Commitment Letter or as reasonably requested by Buyer or any of its Debt Financing Sources for the preparation of the confidential information memoranda, ratings agency presentations or the definitive documentation, in each case in connection with the Debt Financing (provided that, (A) the Buyer shall be solely responsible for the preparation of pro forma financial information (other than, for the avoidance of doubt, the Company’s historical financial statements required for Buyer to prepare the pro forma financial statements), including pro forma cost savings, synergies, capitalization or other adjustments desired to be incorporated into any financial information, (B) the Company shall not be required to provide any description of all or any component of the Debt Financing, including any such description to be included in any liquidity or capital resources disclosure or any “description of notes” and (C) the Company shall not be required to provide projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing); (iii) assist Buyer and its Debt Financing Source, as may be reasonably requested by Buyer, in the preparation of (A) bank offering memoranda, (B) customary marketing material, confidential information memoranda and syndication materials to be used in a syndication of the Debt Financing and (C) materials for rating agency presentations; (iv) cooperate with the marketing efforts of Buyer and its Debt Financing Sources for any portion of the Debt Financing as reasonably requested by Buyer; (v) cooperate with Buyer’s legal counsel in connection with any customary legal opinions that such counsel may be required to deliver in connection with the Debt Financing, as may be reasonably requested by Buyer; (vi) execute and deliver (but not before and not to be effective until the Closing) any pledge and security documents, other definitive financing documents, or other related certificates or documents with respect to the Company and its Subsidiaries as may be reasonably requested by Buyer and customary for financings of a type similar to the Debt Financing and otherwise facilitate the pledging of collateral (including cooperation in connection with the pay-off of existing Company Indebtedness to the extent contemplated by this Agreement) and the release of related Liens and termination of security interests (including delivering prepayment or termination notices as required by the terms of any Company Indebtedness and delivering termination agreements and/or UCC-3 or equivalent financing statements or notices); (vii) assist Buyer in obtaining from the Company and/or its Subsidiaries’ auditors customary comfort letters (including as to negative assurances) reasonably requested by the Buyer in connection with the Debt Financing; (viii) inform Buyer if the chief executive officer, chief financial officer, treasurer or controller of the Company or any of its Subsidiaries or any member, director, manager or equivalent authorized entity, body or individual of the Company or any of its Subsidiaries shall have any knowledge of any facts as a result of which a restatement of any financial statements to comply with GAAP is probable or under consideration; and (ix) provide, at least five Business Days prior to the Closing, all documentation required by applicable “know your customer” and anti-money laundering laws, including the USA PATRIOT Act, to the extent requested in writing at least 10 Business Days prior to Closing; provided, in each case, that (A) neither the Company nor any of its Subsidiaries shall be required to incur or satisfy any liability (including the payment of any fees) in connection with the Debt Financing prior to the Effective Time that is not subject to reimbursement hereunder, (B) the pre-Closing Board of Directors of the Company and the directors and managers of the Company’s Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained that are not contingent on the Closing, (C) neither the Company nor any of its Subsidiaries shall be required to execute or deliver prior to the Effective Time any definitive financing documents, including any credit or other agreements, pledge or security documents, or other certificates, legal opinions or documents in connection with the Debt Financing (other than authorization letters with respect to any bank information memoranda, offering memoranda or similar document), (D) except as expressly provided above, neither the Company nor any of its Subsidiaries shall be required to take any corporate or similar actions prior to the Effective Time to permit the consummation of the Debt Financing, (E) no Affiliate of the Company shall have any obligations under this Section 6.11 following the consummation of the transactions contemplated by this Agreement, and (F) neither the Company nor any of its Subsidiaries shall be required to provide any assistance or cooperation that would unreasonably interfere with its business operations, conflict with the organizational documents of the Company or any of its Subsidiaries or any Laws or result in a violation or breach of, or a default under, any contract to which the Company or any of its Subsidiaries is a party. The Company hereby consents to the use of the logos of the Company solely as reasonably necessary in connection with the Debt Financing; provided, that such logos shall be used solely in a manner that is not reasonably likely to harm, disparage or otherwise adversely affect the Company or its reputation or goodwill.

 

77

 

 

(c) Buyer shall (i) after the termination of this Agreement in connection with the Closing reasonably promptly upon request, reimburse the Group Companies for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorney’s fees and expenses) incurred by the Group Companies in connection with performing its obligations required under Section 7.11(b) and (ii) indemnify, defend and hold harmless the Group Companies and their respective representatives from and against any and all liabilities, losses, damages, claims, documented out-of-pocket costs and expenses, interest, awards, judgments and penalties suffered or incurred by any of them in connection with the Debt Financing and any information utilized (other than historical financial statements provided by the Group Companies or other information provided by the Group Companies and their respective representatives specifically for inclusion in the marketing materials for the Debt Financing) or any assistance or activities provided in connection therewith, except for the extent such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are a result of the willful breach, bad faith, gross negligence or willful misconduct of the Group Companies or any of their respective representatives.

 

(d) No Recourse. Notwithstanding anything to the contrary contained herein, the Company (on behalf of itself and its Affiliates and each officer, director, employee, member, manager, partner, controlling person, advisor, attorney, agent and representative thereof) (i) hereby waives any claims or rights against any Debt Financing Source relating to or arising out of this Agreement, the Debt Financing and the transactions and performance contemplated hereby and thereby, whether at law or in equity and whether in tort, contract or otherwise, (ii) hereby agrees not to bring or support any suit, action or proceeding against any Debt Financing Source in connection with this Agreement, the Debt Financing and the transactions and performance contemplated hereby and thereby, whether at law or in equity and whether in tort, contract or otherwise, and (iii) hereby agrees to cause any suit, action or proceeding asserted against any Debt Financing Source by or on behalf of the Company or any of its Affiliates or any officer, director, employee, member, manager, partner, controlling person, advisor, attorney, agent and representative thereof in connection with this Agreement, the Debt Financing and the transactions and performance contemplated hereby and thereby to be dismissed or otherwise terminated. In furtherance and not in limitation of the foregoing waivers and agreements, it is acknowledged and agreed that no Debt Financing Source shall have any liability for any claims or damages to the Company in connection with this Agreement, the Debt Financing and the transactions contemplated hereby and thereby. For the avoidance of doubt, this Section 6.11(c) does not limit or affect any rights or remedies that the Buyer or any of its Subsidiaries may have against the parties to the Commitment Letter pursuant to the terms and conditions of the Commitment Letter.

 

Section 6.12 Directors and Officers.

 

(a) From and after the Effective Time, the Buyer shall cause the Group Companies to indemnify and hold harmless (and advance expenses in connection with the defense of any Proceeding to) each Person that prior to the Closing served as a director or officer of any Group Company or who, at the request of any Group Company, served as a director or officer of another Person (collectively, with such Person’s heirs, executors or administrators, the “Indemnified Persons”) from and against any penalties, costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Proceeding arising out of or pertaining to circumstances, facts or events that occurred on or before the Effective Time, to the fullest extent permitted under applicable Law, the Governing Documents in effect as of the Execution Date and any indemnification agreement between any Group Company and any Indemnified Person in effect as of the Execution Date (“D&O Provisions”) and acknowledges and agrees such D&O Provisions are rights of Contract. Without limiting the foregoing, the Buyer shall cause each of the Group Companies to (i) maintain, for a period of six years following the Closing Date, provisions in its Governing Documents concerning the indemnification, advancement of expenses and exculpation of officers and directors/managers that are no less favorable to the Indemnified Persons than the D&O Provisions in effect as of the Execution Date, and not amend, repeal or otherwise modify such provisions in any respect that would affect in any manner the Indemnified Persons’ rights, or any Group Company’s obligations, thereunder.

 

78

 

 

(b) Tail Policy.

 

(i) For a period of six years from and after the Closing Date, the Buyer shall purchase and maintain in effect policies of directors’ and officers’ liability insurance covering the Indemnified Persons and the Buyer with respect to claims arising from facts or events that occurred on or before the Closing and with substantially the same coverage and amounts as, and contain terms and conditions no less advantageous than, in the aggregate, the coverage currently provided by such current policy.

 

(ii) At or prior to the Closing Date, the Company shall purchase and maintain in effect for a period of six years thereafter, “run-off” coverage as provided by any Group Company’s and the Buyer’s fiduciary policies, in each case, covering those Persons who are covered on the Execution Date by such policies and with terms, conditions, retentions and limits of liability that are no less advantageous than the coverage provided under any Group Company’s or the Buyer’s existing policies (the policies contemplated by the foregoing clauses (i) and (ii), collectively, the “Tail Policy”). No claims made under or in respect of such Tail Policy related to any fiduciary or employee of any Group Company shall be settled without the prior written consent of the Company. The Indemnified Persons are intended third party beneficiaries of this Section 6.12.

 

Section 6.13 Subscription Agreements; Forward Purchase Agreement; Redemptions; Permitted Equity Financing.

 

(a) Subscription Agreements. The Buyer and RAC may not modify or waive, or provide consent to modify or waive (including consent to termination, to the extent required), any provisions of a Subscription Agreement or any remedy under any Subscription Agreement, in each case, without the prior written consent of the Company; provided, that any modification or waiver that is solely ministerial in nature and does not affect any economic or any other material term (including any conditions to closing) of a Subscription Agreement shall not require the prior written consent of the Company. The Buyer and RAC shall use their reasonable best efforts to take, or cause to be taken, all actions and take reasonable best efforts to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by the Subscription Agreements on the terms and subject to the conditions described therein, including maintaining in effect the Subscription Agreements and to: (i) satisfy on a timely basis all conditions and covenants applicable to the Buyer and RAC in the Subscription Agreements and otherwise comply with its obligations thereunder, (ii) if all conditions in the Subscription Agreements (other than those conditions that by their nature are to be satisfied at the Closing, but which conditions are then capable of being satisfied) have been satisfied, consummate the transactions contemplated by the Subscription Agreements at or prior to the Closing; (iii) deliver notices to counterparties to the Subscription Agreements as required by and in the manner set forth in the Subscription Agreements in order to cause timely funding in advance of the Closing; (iv) enforce the Buyer’s and RAC’s rights under the Subscription Agreements, subject to all provisions thereof, if all conditions in the Subscription Agreements (other than those conditions that by their nature are to be satisfied at the Closing, but which conditions are then capable of being satisfied) have been satisfied, to cause the applicable Equity Financing Sources fund the amounts set forth in the Subscription Agreements in accordance with their terms and (v) provide prompt notice to the Company if any counterparty to a Subscription Agreement notifies Buyer of any breach of any representation or other agreement contained in such Subscription Agreement by such counterparty.

 

79

 

 

(b) Forward Purchase Agreement. Unless otherwise approved in writing by the Company, the Sponsor and the Buyer Parties shall not (i) (A) permit any amendment or modification to be made to, (B) waive (in whole or in part) or (C) provide consent to modify or waive (including consent to termination, to the extent required), any provision or remedy under the Forward Purchase Agreement or (ii) permit any assignment of the Forward Purchase Agreement, other than assignments to Affiliates. The Buyer and RAC shall use reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by the Forward Purchase Agreement at the Closing on the terms and subject to the conditions in the Forward Purchase Agreement, including maintaining in effect the Forward Purchase Agreement, and to: (i) satisfy on a timely basis all conditions and covenants applicable to Rice Holdings and RAC in the Forward Purchase Agreement and otherwise comply with their obligations thereunder, (ii) if all conditions in the Forward Purchase Agreement (other than those conditions that by their nature are to be satisfied at the Closing, but which conditions are then capable of being satisfied) have been satisfied, consummate the transactions contemplated by the Forward Purchase Agreement at or prior to the Closing; (iii) deliver notices to counterparties to the Forward Purchase Agreement (if any) as required by and in the manner set forth in the Forward Purchase Agreement in order to cause timely funding in advance of the Closing; and (iv) enforce the Buyer Parties’ and Sponsor’s rights under the Forward Purchase Agreement, subject to the provisions thereof, if all conditions in the Forward Purchase Agreement (other than those conditions that by their nature are to be satisfied at the Closing, but which conditions are then capable of being satisfied), have been satisfied, to cause the Purchaser (as defined in the Forward Purchase Agreement) to fund the amount set forth in the Forward Purchase Agreement in accordance with its terms.

 

(c) Permitted Equity Financing.

 

(i) During the Pre-Closing Period, RAC may execute Permitted Equity Subscription Agreements that would constitute a Permitted Equity Financing; provided that, without the prior written consent of the Company, (A) each Permitted Equity Subscription Agreement shall not be in any form other than in substantially the form of the Subscription Agreement, (B) no such Permitted Equity Subscription Agreement shall provide for a purchase price of RAC Common Stock at a price per share of less than $10 per share (including of any discounts, rebates, equity kicker or promote), (C) all the Permitted Equity Subscription Agreements shall not in the aggregate provide for the issuance of RAC Common Stock in exchange for cash proceeds from all Permitted Equity Financings (the “Permitted Equity Financing Proceeds”) in excess of $50,000,000, and (D) no such Permitted Equity Subscription Agreement shall provide for the issuance of any security other than RAC Common Stock. Notwithstanding the foregoing, RAC shall provide drafts of any Permitted Equity Subscription Agreement to the Company prior to its entry thereinto, with a reasonable opportunity to comment on such drafts and shall consider such comments in good faith. RAC shall deliver to the Company true, accurate and complete copies of each of the Permitted Equity Subscription Agreements entered into promptly after such entry.

 

(ii) Prior to the earlier of the Closing and the termination of this Agreement pursuant to Section 10.1, the Company agrees, and shall cause the appropriate officers and employees thereof, to use commercially reasonable efforts to cooperate, at Buyer’s sole cost and expense (which expense shall be treated as a Transaction Expense hereunder), in connection with the arrangement of any Permitted Equity Financing as may be reasonably requested by the Buyer, including by (A) upon reasonable prior notice and during normal business hours, participating in meetings, calls, drafting sessions, presentations, and due diligence sessions (including accounting due diligence sessions) and sessions with prospective investors at mutually agreeable times and locations and upon reasonable advance notice (including the participation in any relevant “roadshow”), (B) reasonably assisting with the preparation of customary materials, (C) providing the Financial Statements and such other financial information regarding the Group Companies readily available to the Company as is reasonably requested in connection therewith, subject to confidentiality obligations acceptable to the Company and (D) otherwise reasonably cooperating in the Buyer’s efforts to obtain Permitted Equity Financing; provided, that (1) none of (x) the Company Unitholders, the Company, any other Group Company or any of their respective Affiliates, officers, directors, representatives or agents shall be required to incur any Liability in respect of the Permitted Equity Financing or any assistance provided in connection therewith, unless and solely to the extent such Liability is treated as a Transaction Expense, (2) nothing in this Section 6.13(ii) shall require such cooperation to the extent it could unreasonably interfere with the business of any Group Company, or conflict with or violate any applicable Law or Contract, or require any Company Unitholder, or Group Company to breach, waive or amend any terms of this Agreement, and (3) no Company Unitholder, or any of their respective Affiliates or representatives or agents shall have any obligation to approve, authorize or ratify the execution of any of the definitive documents in respect of the Permitted Equity Financing.

 

80

 

 

(iii) At the Closing, the Buyer shall be permitted to consummate the Permitted Equity Financing, and issue the equity contemplated thereunder, in accordance with the terms and conditions of the Permitted Equity Subscription Agreements.

 

Section 6.14 Affiliate Obligations. On or before the Closing Date, except as provided for in this Agreement, the Archaea Agreement and any Ancillary Agreements, the Company shall take all actions necessary to cause all Liabilities and obligations of the Group Companies under any Affiliated Transaction to be terminated in full without any further force and effect and without any cost to or other Liability to or obligations of any Group Company or the Buyer.

 

Section 6.15 280G. Prior to the Closing, the Company shall use reasonable best efforts to (i) obtain an executed waiver from each Person who is a “disqualified individual” (as defined in Section 280G of the Code) of that portion of any payments or economic benefits received or payable to such Person that could, individually or in the aggregate, constitute “parachute payments” (as defined in Section 280G(b) of the Code) (the “Waived 280G Benefits”), and (ii) solicit the approval of its equityholders of any Waived 280G Benefits, in a manner that complies with Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder. The Company shall forward to the Buyer at least seven (7) days prior to distribution to the intended recipients, copies of all documents prepared by the Company in connection with this Section 6.15 (including supporting analysis and calculations, form of waiver agreement, equityholder consent and disclosure statement) for the Buyer’s review and comment, and the Company shall incorporate all reasonable comments received from the Buyer on such documents at least two (2) days prior to the distribution to the intended recipients. Prior to the Closing, the Company shall deliver to the Buyer evidence of the results of such vote. Such equityholder approval, if obtained, shall establish the disqualified individual’s right to receive or retain the Waived 280G Benefits, such that if such equityholder approval is not obtained, no portion of the Waived 280G Benefits shall be paid, payable, received or retained. For the avoidance of doubt, with respect to any Buyer Arrangement (defined as any arrangement agreed upon or entered into by, or at the direction of, Buyer and/or its Affiliates, on the one hand, and a “disqualified individual,” on the other hand, on or prior to the Closing Date) of which the Company is aware prior to the Closing Date, the Company shall cooperate with Buyer in good faith to calculate or determine the value (for purposes of Section 280G of the Code) of any payments or benefits granted or contemplated therein that could reasonably be expected to constitute a “parachute payment” under Section 280G of the Code, and incorporate such Buyer Arrangements (defined as any arrangement agreed upon or entered into by, or at the direction of, Buyer and/or its Affiliates, on the one hand, and a “disqualified individual,” on the other hand, on or prior to the Closing Date) into its calculations and 280G equityholder approval process described above.

 

Section 6.16 No Buyer Stock Transactions. During the Pre-Closing Period, except as otherwise explicitly contemplated by this Agreement, neither the Company nor any of its Affiliates, directly or indirectly, shall engage in any transactions involving the securities of the Buyer without the prior written consent of the Buyer.

 

Section 6.17 Name Change. In connection with the Closing, RAC shall change its name to “Archaea Energy Inc.”.

 

81

 

 

Section 6.18 Exclusivity.

 

(a) From the Execution Date until the earlier of the Closing or the termination of this Agreement in accordance with Section 10.1, the Company and its Affiliates shall not, and shall cause their Subsidiaries and their respective representatives not to, directly or indirectly, (a) solicit, initiate or take any action to knowingly facilitate or encourage any inquiries or the making, submission or announcement of, any proposal or offer from any Person or group of Persons other than the Buyer and the Sponsor (and their respective representatives, acting in their capacity as such) (a “Competing Buyer”) that may constitute, or would reasonably be expected to lead to, a Competing Transaction; (b) enter into, participate in, continue or otherwise engage in, any discussions or negotiations with any Competing Buyer regarding a Competing Transaction; (c) furnish (including through any virtual data room) any information relating to any Group Company or any of their assets or businesses, or afford access to the assets, business, properties, books or records of any Group Company to a Competing Buyer, in all cases for the purpose of assisting with or facilitating, or that would otherwise reasonably be expected to lead to, a Competing Transaction; (d) approve, endorse or recommend any Competing Transaction; or (e) enter into a Competing Transaction or any agreement, arrangement or understanding (including any letter of intent or term sheet) relating to a Competing Transaction or publicly announce an intention to do so.

 

(b) From the Execution Date, until the earlier of the Closing or the termination of this Agreement in accordance with Section 10.1, the Buyer, the Sponsor and their respective Affiliates shall not, and shall cause their respective representatives not to, directly or indirectly, (a) solicit, initiate or take any action to knowingly facilitate or encourage any inquiries or the making, submission or announcement of, any proposal or offer from the Buyer, the Sponsor, any Person or group of Persons other than the Company and the Company Unitholders that may constitute, or would reasonably be expected to lead to, a Buyer Competing Transaction; (b) enter into, participate in, continue or otherwise engage in, any discussions or negotiations regarding a Buyer Competing Transaction; (c) commence due diligence with respect to any Person, in all cases for the purpose of assisting with or facilitating, or that would otherwise reasonably be expected to lead to, a Buyer Competing Transaction; (d) approve, endorse or recommend any Buyer Competing Transaction; or (e) enter into a Buyer Competing Transaction or any agreement, arrangement or understanding (including any letter of intent or term sheet) relating to a Buyer Competing Transaction or publicly announce an intention to do so.

 

Section 6.19 Archaea Agreement Efforts. Subject to the terms and conditions of this Agreement, RAC will, and will cause each of its Affiliates to, use the level of efforts set forth in the Archaea Agreement to consummate the transactions contemplated by the Archaea Agreement in the manner provided and on the terms and conditions described therein, including using the level of efforts set forth in the Archaea Agreement to (a) comply with its obligations under the Archaea Agreement, (b) satisfy all conditions applicable to RAC contained in the Archaea Agreement (and any other definitive agreements related to transactions contemplated by the Archaea Agreement the consummation of which is a condition thereto) within its control, and (c) upon satisfaction of such conditions, enforce all of its rights under the Archaea Agreement (or any other definitive agreements related thereto) in an attempt to consummate the transactions contemplated by the Archaea Agreement at or prior to the Outside Date (as it may be extended and as defined in the Archaea Agreement) of the Archaea Agreement. RAC will keep the Company informed on a reasonable basis and in reasonable detail of the status of its efforts to consummate, and the status of, the transactions contemplated by the Archaea Agreement, and will provide the Company, as promptly as reasonably practicable upon request, with updates as to the status and timing of the transactions contemplated by the Archaea Agreement. RAC will notify the Company promptly and in any event within twenty-four hours upon having Knowledge (which definition of Knowledge shall, for purposes of this Section 6.19, not include an obligation of reasonable inquiry) of any notice of breach or of threatened breach (written or otherwise) received or delivered by RAC or any notice of termination or of threatened termination (written or otherwise) of the Archaea Agreement received or delivered by RAC. RAC will not amend, modify, supplement, agree to the termination of or waive any of the conditions to the Archaea Agreement or any other material provision of, or remedies under, the Archaea Agreement without Equityholder Representative’s consent, which shall not be unreasonably withheld. RAC shall be liable to the Company to the extent of any damages arising from the termination of this Agreement, in each case, solely to the extent (i) such termination resulted from Archaea’s Fraud or willful and material breach of the Archaea Agreement and (ii) such damages are recoverable by RAC against Archaea in accordance with the Archaea Agreement. Notwithstanding anything in this Agreement to the contrary, neither the Company’s nor the Equityholder Representative’s consent shall be required for Archaea to incur any capital expenditures approved by RAC in accordance with Section 5.1(d) of the Archaea Agreement.

 

82

 

 

Section 6.20 Release.

 

(a) Effective upon and following the Closing, each Buyer Party on its own behalf and on behalf of its respective Affiliates and Representatives, generally, irrevocably, unconditionally and completely releases and forever discharges each Company Unitholder, each of their respective Affiliates, and each of their respective successors and assigns (collectively, the “Company Released Parties”) from all disputes, claims, losses, controversies, demands, rights, liabilities, actions and causes of action of every kind and nature, whether known or unknown, arising from any matter concerning the Company occurring prior to the Closing Date (other than as contemplated by this Agreement), including for controlling equityholder liability or breach of any fiduciary duty relating to any pre-Closing actions or failures to act by the Company Released Parties; provided, however, that nothing in this Section 6.20 shall release any Company Released Parties from: (i) their obligations under this Agreement or the other Ancillary Agreements; (ii) as applicable, any disputes, claims, losses, controversies, demands, rights, liabilities, breaches of fiduciary duty, actions and causes of action arising out of such Company Released Party’s employment by the Company; or (iii) any claim based on Fraud.

 

(b) Effective upon and following the Closing, each Company Unitholder, on its own behalf and on behalf of each of its Affiliates and Representatives, generally, irrevocably, unconditionally and completely releases and forever discharges each Buyer Party and the Company, each of their respective Affiliates, and each of their respective successors and assigns (collectively, the “Buyer Released Parties”) from all disputes, claims, losses, controversies, demands, rights, liabilities, actions and causes of action of every kind and nature, whether known or unknown, arising from any matter concerning the Company occurring prior to the Closing Date (other than as contemplated by this Agreement); provided, however, that nothing in this Section 6.20 shall release the Buyer Released Parties from their obligations: (i) under this Agreement or the other Ancillary Agreements; (ii) with respect to any salary, bonuses, vacation pay or employee benefits accrued as of the date of this Agreement or any expense reimbursement pursuant to a policy of the Company in effect as of the date of this Agreement and consistent with past practice; or (iii) any claim based on Fraud.

 

Section 6.21 MIP Cancellation. Prior to the Effective Time, the Company shall cause each MIP Participant to enter into a MIP Cancellation Agreement. Prior to the Effective Time, the Company shall payout the amounts contemplated by the MIP Cancellation Agreements, such that all rights under the MIP shall be extinguished as of the Effective Time.

 

Section 6.22 R&W Insurance Policy. Rice Holdings shall not (and shall cause its Affiliates not to) modify the explicit subrogation provisions of the R&W Insurance Policy to the extent such modification would adversely impact the Unitholders without the prior written consent of the Equityholder Representative. The Equityholder Representative shall, and shall cause the Unitholders and their applicable Affiliates, to reasonably assist the Buyer Entities in the implementation of the R&W Insurance Policy, including by executing declarations and providing notices as may be required under the terms of the R&W Insurance Policy.

 

83

 

 

Article VII
ADDITIONAL AGREEMENTS

 

Section 7.1 Access to Books and Records. From and after the Closing, the Buyer and its Affiliates shall make or cause to be made available to the Equityholder Representative (at the Equityholder Representative’s sole expense) all books, records, and documents relating to periods prior to the Closing Date of any Group Company (and the assistance of employees responsible for such books, records and documents) during regular business hours and upon reasonable prior written request as may be reasonably necessary for (a) investigating, settling, preparing for the defense or prosecution of, defending or prosecuting any Proceeding (other than an actual or potential Proceeding (i) brought or threatened to be brought by the Equityholder Representative or the Company arising under this Agreement or (ii) brought or threatened to be brought by the Buyer or its Affiliates against the Equityholder Representative, any Group Company arising under this Agreement), (b) preparing reports to Governmental Entities or (c) such other purposes (that do not involve an actual or potential Proceeding brought by the Equityholder Representative or their Affiliates against the Buyer or by the Buyer or its Affiliates against the Equityholder Representative relating to or arising out of this Agreement) for which access to such documents is reasonably necessary. The Buyer shall (at the Company’s sole expense) cause each Group Company to maintain and preserve all such books, records and other documents in the possession of the Group Companies as of the Closing Date for the greater of (x) six years after the Closing Date and (y) any applicable statutory or regulatory retention period, as the same may be extended. Notwithstanding anything herein to the contrary, the Buyer shall not be required to provide any access or information to the Equityholder Representative or any of its respective representatives, which the Buyer reasonably believes constitutes information protected by attorney-client privilege or which could violate any obligation owed to a third party under Contract or Law. This Section 7.1 shall not apply to Taxes or Tax matters, which are the subject of Section 8.1.

 

Section 7.2 Stock Exchange Listing. Prior to the Closing, RAC shall use reasonable best efforts to cause the shares of RAC Common Stock to be issued in connection with the Business Combination Transactions to be approved for listing on the Stock Exchange, including by submitting prior to the Closing an initial listing application with the Stock Exchange (the “NYSE Listing Application”) with respect to such shares, subject to official notice of issuance. RAC and the Company shall promptly furnish all information concerning itself and its Affiliates as may be reasonably requested by the other Parties and shall otherwise reasonably assist and cooperate with the other Parties in connection with the preparation, filing and distribution of the NYSE Listing Application. RAC will use its reasonable best efforts to (i) cause the NYSE Listing Application, when filed, to comply in all material respects with all legal requirements applicable thereto, (ii) respond as promptly as reasonably practicable to and resolve all comments received from the Stock Exchange or its staff concerning the NYSE Listing Application and (iii) have the NYSE Listing Application approved by the Stock Exchange as promptly as practicable after such filing. No submission of, or amendment or supplement to, the NYSE Listing Application, or response to Stock Exchange comments with respect thereto, will be made by RAC without providing such other Parties a reasonable opportunity to review and comment thereon. RAC will promptly notify the Company and the Equityholder Representative upon the receipt of any comments from the Stock Exchange or any request from the Stock Exchange for amendments or supplements to the NYSE Listing Application and will, as promptly as practicable after receipt thereof, provide the Company and the Equityholder Representative with copies of all material correspondence between it, on the one hand, and the Stock Exchange, on the other hand, and all written comments with respect to the NYSE Listing Application received from the Stock Exchange and advise the other on any oral comments with respect to the NYSE Listing Application received from the Stock Exchange. RAC will advise the Company and the Equityholder Representative, promptly after RAC receives notice thereof, of the time of the approval of the NYSE Listing Application and the approval of the shares of RAC Common Stock to be issued in connection with the Business Combination Transactions for listing on the Stock Exchange, subject only to official notice of issuance.

 

84

 

 

Article VIII
TAX MATTERS

 

Section 8.1 Certain Tax Matters.

 

(a) Preparation of Tax Returns.

 

(i) The Buyer shall prepare, or cause to be prepared, at the cost and expense of the Company all income Tax Returns with respect to Pass-Through Income Taxes of each Group Company for any taxable period ending on or before the Closing Date and any Straddle Period, in each case, that are due after the Closing Date (taking into account applicable extensions). Each such Tax Return shall be prepared in a manner consistent with the Group Companies’ past practice except to the extent not “more likely than not” to be upheld under applicable Law. Each such Tax Return shall be submitted to the Equityholder Representative for review no later than 30 days prior to the due date for filing such Tax Return (taking into account applicable extensions). The Buyer shall incorporate, or cause to be incorporated, all reasonable comments received from the Equityholder Representative no later than 1) days prior to the due date for filing any such Tax Return (taking into account applicable extensions) and the Buyer will cause such Tax Returns to be timely filed and will provide a copy of such filed Tax Returns to the Equityholder Representative.

 

(ii) Notwithstanding the foregoing, each Tax Return described in this Section 8.1(a) for a taxable period that includes the Closing Date (i) for which the “interim closing method” under Section 706 of the Code (or any similar provision of state, local or non-U.S. Law) is available shall be prepared in accordance with such method and (ii) for which an election under Section 754 of the Code (or any similar provision of state, local or non-U.S. Law) may be made shall make such election. Notwithstanding anything herein to the contrary, the Company Unitholders, as applicable, at their sole cost and expense, shall be solely responsible for filing all of the Tax Returns required to be filed by the Company Unitholders, as applicable, and paying all of the Taxes due and owing by the Company Unitholders, as applicable (including to the extent attributable to income of any Group Company that flows up to the Company Unitholders).

 

(b) For purposes of determining whether the following Taxes are attributable to a Pre-Closing Tax Period:

 

(i) in the case of property Taxes and other similar periodic Taxes imposed for a Straddle Period, the amounts that are allocable to the Pre-Closing Tax Period shall be deemed to be the amount of such Tax for the entire taxable period multiplied by a fraction, the numerator of which is the number of days in the portion of the taxable period ending on and including the Closing Date and the denominator of which is the number of days in the entire Straddle Period;

 

(ii) in the case of Taxes imposed on any Group Company (or the Buyer or any of its Affiliates as a result of its direct or indirect ownership of an Group Company) as a result of income of any Flow-Thru Entity realized on or prior to the Closing Date (such income being computed assuming the Flow-Thru Entity had a year that ends as of the end of the day on the Closing Date and closed its books), such Taxes shall be treated as Taxes of an Group Company for a Pre-Closing Tax Period;

 

85

 

 

(iii) in the case of all other Taxes for a Straddle Period (including Taxes based on or measured by income, receipts, payments, or payroll (to the extent not covered by clauses (i)-(ii) above)), the amount allocable to the Pre-Closing Tax Period shall be determined based on an interim closing of the books as of the end of the day on the Closing Date using a “closing of the books” methodology; provided that for purposes of this clause (iii), any item determined on an annual or periodic basis (including amortization and depreciation deductions and the effects of graduated rates) shall be allocated to the portion of the Straddle Period ending on the Closing Date based on the mechanics set forth in clause (i) for periodic Taxes;

 

(iv) in the case of Taxes in the form of interest, penalties or additions, all such Taxes shall be treated as attributable to a Pre-Closing Tax Period to the extent relating to a Tax for a Pre-Closing Tax Period (determined in accordance with clauses (i)-(iii) above) whether such items are incurred, accrued, assessed or similarly charged on, before or after the Closing Date; and

 

(v) all Transaction Tax Deductions will, in each case, be allocated and attributable to a Pre-Closing Tax Period, to the extent permitted by applicable Law at a “more likely than not” or higher level of comfort.

 

(c) Each Party shall reasonably cooperate (and cause its Affiliates to reasonably cooperate), as and to the extent reasonably requested by each other Party, in connection with the preparation and filing of Tax Returns pursuant to Section 8.1(a) and any examination or other Proceeding with respect to Taxes or Tax Returns of any Group Company. Such cooperation shall include the provision of records and information that are reasonably relevant to any such audit or other Proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Following the Closing, the Company, the Company Unitholders shall (and the Company Unitholders shall cause their respective Affiliates to) retain all books and records with respect to Tax matters pertinent to the Group Companies relating to any taxable period beginning before the Closing Date until the expiration of the statute of limitations (and, to the extent notified by the Equityholders’ Representative, any extensions thereof) of the respective taxable periods, and to abide by all record retention agreements entered into with any Taxing Authority. Each Party shall furnish the other Parties with copies of all relevant correspondence received from any Taxing Authority in connection with any Tax audit or information request with respect to any Taxes for which the other may have an indemnification obligation under this Agreement. The Company Unitholders shall (and shall cause their respective Affiliates to) provide any information reasonably requested to allow the Buyer or any Group Company to comply with any information reporting or withholding requirements contained in the Code or other applicable Laws or to compute the amount of payroll or other employment Taxes due with respect to any payment made in connection with this Agreement. For the avoidance of doubt, this Section 8.1(c) shall not apply to any dispute or threatened dispute among the Parties.

 

(d) The Buyer shall cause the Company, as applicable, to prepare and file, or cause to be prepared and filed, all necessary Tax Returns and other documentation with respect to all Transfer Taxes, and, if required by applicable Law, the Company Unitholders, the Company, and the Buyer will, and will cause their respective Affiliates to, reasonably cooperate and join in the execution of any such Tax Returns and other documentation. The Parties shall reasonably cooperate to establish any available exemption from (or reduction in) any Transfer Tax.

 

86

 

 

(e) RAC and each of the Parties acknowledges and agrees that for U.S. federal and, as applicable, state and local Tax purposes, they each intend that (i) the Merger shall be treated as an “assets-over” partnership merger under Treasury Regulations Section 1.708-1(c)(3)(i) in which the Company is treated as a “terminated partnership,” and Rice Holdings is treated as the continuing partnership ‎‎(ii) to the extent of cash consideration paid to the Company Unitholders, the transactions shall be treated as a taxable sale of Company Units by the Company Unitholders occurring immediately prior to such mergers in accordance with Treasury Regulations Section 1.708-1(c)(4), (which shall give rise to an adjustment to the basis in a portion of the direct and indirect assets of the Company and Archaea pursuant to Section 743 of the Code (and any comparable provisions of applicable state or local Tax law)), if an applicable election pursuant to Section 754 of the Code (and any comparable provision of applicable state or local tax law) has been made, (iii) the Company shall be treated as contributing all of its assets to Rice Holdings in exchange for partnership interests therein in a transaction described in Section 721(a) of the Code and then distributing such interests to its owners in liquidation and (iv) RAC Class B Common Stock to be issued by RAC in connection with the Business Combination Transactions shall be treated as having a fair market value of $0.00 as of the time of the Business Combination Transactions. RAC and each of the Parties hereto agrees that they will report the Business Combination Transactions for U.S. federal and applicable state and local tax purposes, and will each file all Tax Returns (and cause each of their affiliates to file all Tax Returns) in a manner consistent with the intentions described in this paragraph, unless otherwise required by a Governmental Entity as a result of a “determination” within the meaning of Section 1313(a) of the Code.

 

(f) Within 120 days following the Closing Date, (i) the Buyer will prepare, and deliver to the Equityholder Representative, an allocation statement allocating the Base Aggregate Cash Amount and any other amounts treated as consideration for U.S. federal income Tax purposes (A) among the equity interests of the Company Units acquired by Buyer pursuant to this Agreement and (B) with respect to the amount allocated to the Company Units pursuant to clause (A), among the assets of the Company and the Company Subsidiaries that are classified as entities that are disregarded as separate from the Company for U.S. federal income Tax purposes, in each case, in accordance with Section 1060 of the Code (and any other applicable section of the Code), the Treasury Regulations thereunder (and any similar provision of state or local Law) which shall be based on a third-party valuation of the assets of the Company and the Company Subsidiaries by a nationally recognized independent valuation firm selected by RAC following reasonable consultation with the Equityholder Representative (the “Allocation”) and (ii) the Equityholder Representative will prepare, and deliver to the Buyer, a balance sheet, as of the Closing Date, that sets out the Tax basis of the assets then owned by the Company and the Company Subsidiaries that are classified as entities that are disregarded as separate from the Company for U.S. federal income Tax purposes on the Closing Date and the amount of the liabilities of the Company and such Company Subsidiaries on the Closing Date (the “Tax Basis Balance Sheet”); provided that, the Parties agree that the allocation to accounts receivable, inventory and tangible personal property shall be based on the net book value of such assets. The Allocation shall contain sufficient detail to permit the Parties to make the computations and adjustments required under Sections 743(b), 751 and 755 of the Code and the Treasury Regulations thereunder.

 

(g) The Parties shall, and shall cause each of their respective applicable Affiliates to: (i) prepare and file all Tax Returns consistent with the Tax Basis Balance Sheet, Allocation and intended tax treatment hereunder (collectively, the “Tax Positions”); (ii) take no position in any communication (whether written or unwritten) with any Governmental Entity or any other action inconsistent with the Tax Positions; (iii) promptly inform each other of any challenge by any Governmental Entity to any portion of the Tax Positions; and (iv) consult with and keep one another informed with respect to the status of, and any discussion, proposal or submission with respect to, any such challenge to any portion of the Tax Positions.

 

87

 

 

(h) Without the prior written consent of the Buyer, the Company Unitholders and the Company shall not, and shall cause their respective Affiliates not to, make or cause to be made any election under Treasury Regulations Section 301.9100-22 (or any similar provision of state, local, or non-U.S. Laws) with respect to any Group Company. With respect to any audit, examination or other Proceeding of any Group Company for any Pre-Closing Tax Period and for which the election provided for in Section 6226 of the Code (or any similar provision of state, local, or non-U.S. Laws) is available, the Company Unitholders and the Company shall, or shall cause their respective applicable Affiliates to, timely make, and to the extent required, fully cooperate with the Buyer and the Company to make, all such available elections in accordance with applicable Laws. The Company Unitholders and the Company shall, and shall cause their respective applicable Affiliates to, comply with all applicable Laws with respect to the making and implementation of any such election.

 

(i) In the event of any proposed audit, adjustment, assessment, examination, claim or other controversy or proceeding relating to Pass-Through Income Taxes for any Pre-Closing Tax Period (a “Tax Contest”), the Buyer will, or will cause the applicable Group Company to, within 15 days of becoming aware of such Tax Contest, notify the Equityholder Representative of such Tax Contest; provided, that no failure or delay of Buyer in providing such notice shall reduce or otherwise affect the obligations of the Company Unitholders pursuant to this Agreement, except to the extent that the Company Unitholders are materially and adversely prejudiced as a result of such failure or delay. Buyer or the applicable Group Company shall endeavor in good faith to include, to the extent reasonably practicable, in such notice any written notice or other documents received from any Governmental Entity with respect to such Tax Contest. The Buyer will control the contest or resolution of any such Tax Contest; provided, the Buyer will obtain the prior consent of the Equityholder Representative (which consent will not be unreasonably withheld, conditioned or delayed) before entering into any settlement of a claim or ceasing to defend such claim; provided, further, the Equityholder Representative will be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose, in each case the fees and expenses of which will be borne solely by the Company Unitholders.

 

(j) After the Closing, the Buyer and its Affiliates (including the Group Companies) will not, without the consent of the Equityholder Representative (which consent will not be unreasonably withheld, conditioned or delayed), (a) amend or otherwise modify any income Tax Return of any Group Company (including with respect to Pass-Through Income Taxes for Pre-Closing Tax Periods), (b) extend or waive, or cause to be extended or waived, any statute of limitations or other period for the assessment of any Group Company (including Pass-Through Income Taxes) for Pre-Closing Tax Periods, or (c) make or change any income election or accounting method or practice with respect to any Group Company (including Pass-Through Income Taxes) for Pre-Closing Tax Periods.

 

Article IX
CONDITIONS TO OBLIGATIONS OF PARTIES

 

Section 9.1 Conditions to the Obligations of Each Party. The obligation of each Party to consummate the transactions to be performed by it in connection with the Closing is subject to the satisfaction or written waiver, as of the Closing Date, of each of the following conditions:

 

(a) Hart-Scott-Rodino Act. The waiting period (and any extension thereof) applicable to the consummation of the transactions contemplated hereby under the HSR Act shall have expired or been terminated.

 

(b) No Orders or Illegality. There shall not be any applicable Law in effect that makes the consummation of the transactions contemplated hereby illegal or any Order in effect preventing the consummation of the transactions contemplated hereby.

 

(c) Required Vote. The Required Vote shall have been obtained.

 

(d) Archaea Agreement. The Archaea Closing shall occur contemporaneously with, or have occurred prior to, the Closing.

 

88

 

 

(e) RAC Share Redemption. The RAC Share Redemptions shall have been completed in accordance with the terms hereof, the applicable RAC Governing Documents and the Trust Agreement.

 

(f) Listing. The RAC Common Stock being issued in connection with the transactions contemplated by this Agreement, including the PIPE Investment, shall have been approved for listing on the NYSE, subject only to official notice of issuance.

 

(g) Federal Power Act. FERC has issued an order granting authorization pursuant to Section 203 of the FPA for the Business Combination Transactions taken together, and FERC shall not have stayed the effectiveness of such order.

 

Section 9.2 Conditions to the Obligations of the Buyer and the Company Merger Sub. The obligations of the Buyer and the Company Merger Sub to consummate the transactions to be performed by the Buyer in connection with the Closing is subject to the satisfaction or written waiver, at or prior to the Closing Date, of each of the following conditions:

 

(a) Representations and Warranties.

 

(i) The representations and warranties of the Group Companies set forth in Article III (other than the Company Fundamental Representations), in each case, without giving effect to any materiality or Material Adverse Effect qualifiers contained therein (other than in respect of the defined term “Material Contract” and in respect of Section 3.5), shall be true and correct as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct as of such date), except in each case, to the extent such failure of the representations and warranties to be so true and correct, when taken as a whole, would not have a Material Adverse Effect; and

 

(ii) the Company Fundamental Representations, in each case, without giving effect to any materiality or Material Adverse Effect qualifiers contained therein, shall be true and correct in all respects as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct in all respects as of such date) other than, in each case, de minimis inaccuracies.

 

(b) Performance and Obligations of the Company, Equityholder Representative. The respective covenants and agreements of the Company and the Equityholder Representative to be performed or complied with on or before the Closing in accordance with this Agreement shall have been performed in all material respects.

 

(c) Officers Certificate. The Company shall deliver to the Buyer a duly executed certificate from an authorized Person of the Company (the “Company Bring-Down Certificate”), in each case, dated as of the Closing Date, certifying, with respect to the Company, that the conditions set forth in Section 9.2(a) and (b) have been satisfied.

 

(d) Company Deliverables. The Company shall have delivered to the Buyer the various certificates, instruments and documents referred to in Section 2.5.

 

(e) Minimum Cash Amount. Immediately following the Closing, the cash on the balance sheet of the Company shall be equal to or greater than the Minimum Cash Amount.

 

(f) LES Sale. The Company shall have consummated the LES Sale.

 

89

 

 

Section 9.3 Conditions to the Obligations of the Company. The obligation of the Company to consummate the transactions to be performed by the Company, as applicable, in connection with the Closing is subject to the satisfaction or written waiver by the Company, at or prior to the Closing Date, of each of the following conditions:

 

(a) Representations and Warranties.

 

(i) The representations and warranties of the Buyer set forth in Article IV (other than the Buyer Fundamental Representations), in each case, without giving effect to any materiality or material adverse effect qualifiers contained therein, shall be true and correct as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct as of such date), except, in each case, to the extent such failure of the representations and warranties to be so true and correct when taken as a whole, would have a material adverse effect on the Buyer.

 

(ii) The Buyer Fundamental Representations in each case, without giving effect to any materiality or material adverse effect qualifiers contained therein, shall be true and correct in all respects as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct in all respects as of such date) other than, in each case, de minimis inaccuracies.

 

(b) Performance and Obligations of the Buyer. The covenants and agreements of the Buyer Parties to be performed or complied with on or before the Closing in accordance with this Agreement shall have been performed in all material respects.

 

(c) Minimum Cash Amount. Immediately following the Closing, the cash on the balance sheet of the Company shall be equal to or greater than the Minimum Cash Amount.

 

(d) Officers Certificate. The Buyer shall deliver to the Company, a duly executed certificate from a director or an officer of the Buyer (the “Buyer Bring-Down Certificate”) dated as of the Closing Date, certifying that the conditions set forth in Section 9.3(a) and Section 9.3(b) have been satisfied.

 

(e) Buyer Deliverables. Buyer shall have delivered to the Company the various certificates, instruments and documents referred to in Section 2.6.

 

Section 9.4 Frustration of Closing Conditions

 

. None of the Company or the Buyer may rely on the failure of any condition set forth in this Article IX to be satisfied if such failure was caused by such Party’s failure to act in good faith or to use reasonable best efforts to cause the Closing conditions of each such other Party to be satisfied.

 

Section 9.5 Waiver of Closing Conditions. Upon the occurrence of the Closing, any condition set forth in this Article IX that was not satisfied as of the Closing shall be deemed to have been waived as of and from the Closing.

 

Article X
TERMINATION

 

Section 10.1 Termination. This Agreement may be terminated and the transactions contemplated hereby abandoned at any time prior to the Closing only as follows:

 

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

 

90

 

 

(b) by either the Company or the Buyer by written notice to the other Party if any Governmental Entity has enacted any Law which has become final and non-appealable and has the effect of making the consummation of the transactions contemplated hereby illegal or any final, non-appealable Order is in effect permanently preventing the consummation of the transactions contemplated hereby; provided, however, that the right to terminate this Agreement pursuant to this Section 10.1(b) shall not be available to any Party whose breach of any representation, warranty, covenant or agreement hereof results in or is the primary cause of such final, non-appealable Law or Order;

 

(c) by either the Company or the Buyer by written notice to the other if the consummation of the transactions contemplated hereby shall not have occurred on or before 150 days following the date of this Agreement, which date shall be extended automatically for up to 30 days to the extent the Expiration Date (as defined in the Debt Commitment Letter) is extended in accordance with its terms (as may be extended, the “Outside Date”); provided that the right to terminate this Agreement under this Section 10.1(c) shall not be available to any Party or any of its applicable Affiliates (including, with respect to the Company, the Equityholder Representative) then in material breach of its representations, warranties, covenants or agreements under this Agreement or, with respect to Archaea, the Archaea Agreement, and such material breach is the primary cause of or has resulted in the failure of the closing of the transactions contemplated hereby on or before the Outside Date;

 

(d) by the Company by written notice to the Buyer, if any Buyer Party or RAC breaches in any material respect any of its representations or warranties contained herein or breaches or fails to perform in any material respect any of its covenants contained herein, which breach or failure to perform (i) would render a condition precedent to the Company’s to consummate the transactions set forth in Section 9.1 or Section 9.3 hereof not capable of being satisfied and (ii) after the giving of written notice of such breach or failure to perform to the Buyer by the Company, cannot be cured or has not been cured by the earlier of (x) the Outside Date and (y) 30 Business Days after receipt of such written notice and the Company has not waived in writing such breach or failure; provided, however, that the right to terminate this Agreement under this Section 10.1(d) shall not be available to the Company if any Group Company or the Equityholder Representative is then in material breach of any representation, warranty, covenant or agreement contained herein;

 

(e) by the Buyer by written notice to the Company, if any Group Company breaches in any material respect any of their representations or warranties contained herein or any Group Company or the Equityholder Representative breaches or fails to perform in any material respect any of its covenants contained herein, which breach or failure to perform (i) would render a condition precedent to the Buyer’s and Company Merger Sub’s obligations to consummate the transactions set forth in Section 9.1 or Section 9.2 not capable of being satisfied, and (ii) after the giving of written notice of such breach or failure to perform to the Equityholder Representative by the Buyer, cannot be cured or has not been cured by the later of (x) the Outside Date and (y) 30 Business Days after the delivery of such written notice (in the case of clause (B), the Outside Date, as applicable, shall automatically be extended until the end of such 30 Business Day period, but in no event on more than one occasion) and the Buyer has not waived in writing such breach or failure; provided, however, that the right to terminate this Agreement under this Section 10.1(e) shall not be available to the Buyer if any Buyer Party or RAC is then in breach of any representation, warranty, covenant or agreement contained herein and such breach would give rise to a failure of any condition to the Company’s obligations to consummate the transactions set forth in Section 9.3.

 

Section 10.2 Effect of Termination. In the event of the termination of this Agreement pursuant to Section 10.1, this Agreement shall immediately become null and void, without any Liability on the part of any Party or any other Person, and all rights and obligations of each Party shall cease; provided that (a) the Confidentiality Agreement and the agreements contained in Section 6.8(a), Section 6.10, this Section 10.2 and Article XI hereof survive any termination of this Agreement and remain in full force and effect and (b) no such termination shall relieve any Party from any Liability arising out of or incurred as a result of its Fraud or its willful and material breach of this Agreement.

 

91

 

 

Article XI
MISCELLANEOUS

 

Section 11.1 Amendment and Waiver. No amendment of any provision hereof shall be valid unless the same shall be in writing and signed by the Buyer, the Company and the Equityholder Representative. No waiver of any provision or condition hereof shall be valid unless the same shall be in writing and signed by the Party against which such waiver is to be enforced. No waiver by any Party of any default, breach of representation or warranty or breach of covenant hereunder, whether intentional or not, shall be deemed to extend to any other, prior or subsequent default or breach or affect in any way any rights arising by virtue of any other, prior or subsequent such occurrence. No amendment or waiver to this Section 11.1, Section 11.3, Section 11.7 or Section 11.12 or defined term used therein (or to any other provision or definition of this Agreement to the extent that such amendment or waiver would modify the substance of any such foregoing Section or defined term used therein) that is materially adverse in any respect to a Debt Financing Related Party shall be effective as to such Debt Financing Related Party without the written consent of such Debt Financing Related Party.

 

Section 11.2 Notices. All notices, demands, requests, instructions, claims, consents, waivers and other communications to be given or delivered under this Agreement shall be in writing and shall be deemed to have been given (a) when personally delivered (or, if delivery is refused, upon presentment), (b) when received by e-mail (with confirmation of transmission requested or received) prior to 5:00 p.m. Eastern Time on a Business Day, and, if otherwise, on the next Business Day, (c) one Business Day following sending by reputable overnight express courier (charges prepaid) or (d) three days following mailing by certified or registered mail, postage prepaid and return receipt requested. Unless another address is specified in writing pursuant to the provisions of this Section 11.2, notices, demands and communications to the Company, the Buyer, and Equityholder Representative shall be sent to the addresses indicated below (or to such other address or addresses as the Parties may from time to time designate in writing):

 

Notices to the Buyer Parties:

 

Rice Acquisition Corp.

102 East Main Street, Second Story

Carnegie, Pennsylvania 15106
Attention: Daniel Joseph Rice IV; J. Kyle Derham
E-mail: danny@teamrice.com; kyle@riceinvestmentgroup.com

 

with copies to (which shall not constitute notice):

 

Kirkland & Ellis LLP

601 Lexington Avenue

New York, New York 10002
Attention: David B. Feirstein, P.C.
E-mail: david.feirstein@kirkland.com

 

and

 

Kirkland & Ellis LLP

609 Main Street

Houston, Texas 77002
Attention: Cyril V. Jones, P.C.
E-mail: cyril.jones@kirkland.com

 

92

 

 

Notices to Equityholder Representative:

 

Aria Renewable Energy Systems LLC

c/o Ares Management LLC

Three Charles River Place, Suite 101

63 Kendrick Street

Needham, MA 02494

Attention: Legal Department

 

with copies to (which shall not constitute notice):

 

Orrick Herrington & Sutcliffe LLP
405 Howard Street

San Francisco, CA 94105

Attention: John Cook
E-mail: jcook@orrick.com

 

   
Notices to the Surviving Company and, following the Closing, the Buyer:

 

Archaea Energy Inc.
Attention: Daniel Joseph Rice IV; J. Kyle Derham
E-mail: danny@teamrice.com; kyle@riceinvestmentgroup.com

 

with copies to (which shall not constitute notice):

 

Kirkland & Ellis LLP

609 Main Street

Houston, Texas 77002
Attention: David B. Feirstein, P.C.; Cyril V. Jones, P.C.
E-mail: david.feirstein@kirkland.com; cyril.jones@kirkland.com

 

Section 11.3 Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns; provided that neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned or delegated by any Party (including by operation of Law, including in connection with a merger or consolidation or conversion of the Buyer) without the prior written consent of the other Parties; provided that the Buyer may assign its rights under this Agreement to the Debt Financing Sources as collateral security. Any purported assignment or delegation not permitted under this Section 11.3 shall be null and void.

 

Section 11.4 Severability. Whenever possible, each provision hereof (or part thereof) shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision hereof (or part thereof) or the application of any such provision (or part thereof) to any Person or circumstance shall be held to be prohibited by or invalid, illegal or unenforceable under applicable Law in any respect by a court of competent jurisdiction, such provision (or part thereof) shall be ineffective only to the extent of such prohibition or invalidity, illegality or unenforceability, without invalidating the remainder of such provision or the remaining provisions hereof. Furthermore, in lieu of such illegal, invalid or unenforceable provision (or part thereof), there shall be added automatically as a part hereof a legal, valid and enforceable provision as similar in terms to such illegal, invalid, or unenforceable provision (or part thereof) as may be possible.

 

93

 

 

Section 11.5 Interpretation. The headings and captions used herein and the table of contents to this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any capitalized terms used in any Schedule or Exhibit attached hereto and not otherwise defined therein shall have the meanings set forth herein. The use of the word “including” herein shall mean “including without limitation.” The words “hereof,” “herein,” and “hereunder” and words of similar import, when used herein, shall refer to this Agreement as a whole and not to any particular provision hereof. References herein to a specific Section, Subsection, Recital, Schedule or Exhibit shall refer, respectively, to Sections, Subsections, Recitals, Schedules or Exhibits hereof. Terms defined in the singular shall have a comparable meaning when used in the plural, and vice versa. References herein to any gender shall include each other gender. The word “or” shall not be exclusive unless the context clearly requires the selection of one (but not more than one) of a number of items. References to “written” or “in writing” include in electronic form. References herein to any Person shall include such Person’s heirs, executors, personal representatives, administrators, successors and permitted assigns; provided, however, that nothing contained in this Section 11.5 is intended to authorize any assignment or transfer not otherwise permitted by this Agreement. References herein to a Person in a particular capacity or capacities shall exclude such Person in any other capacity. Any reference to “days” shall mean calendar days unless Business Days are specified; provided that if any action 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. References herein to any Contract (including this Agreement) mean such Contract as amended, restated, supplemented or modified from time to time in accordance with the terms thereof; provided that with respect to any Contract listed (or required to be listed) on the Disclosure Schedules, all material amendments thereto (or with respect to customer or supplier Contracts, only those amendments that include a restrictive covenant or place any other material restriction on the ability of any Group Company to operate) (for the avoidance, excluding in either case any purchase orders, work orders or statements of work) must also be listed on the appropriate section of the applicable schedule and disclosed. With respect to the determination of any period of time, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding.” References herein to any Law shall be deemed also to refer to such Law, as amended, and all rules and regulations promulgated thereunder. The word “extent” in the phrase “to the extent” (or similar phrases) shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.” An accounting term not otherwise defined herein has the meaning assigned to it in accordance with GAAP. Except where otherwise provided, all amounts herein are stated and shall be paid in United States dollars. The Parties and their respective counsel have reviewed and negotiated this Agreement as the joint agreement and understanding of the Parties, and the language used herein shall be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Person. Any information or materials shall be deemed provided, made available or delivered to the Buyer if such information or materials have been uploaded to the electronic data room maintained by the Company and its financial advisor on the “Project Opera” online data site hosted by Intralinks for purposes of the transactions contemplated hereby (the “Data Room”) or otherwise provided to the Buyer’s Representatives (including counsel) via e-mail, in each case with respect to the representations and warranties contained in Article III and Article IV, at least one Business Day prior to the Execution Date or the Closing Date.

 

Section 11.6 Entire Agreement. This Agreement (together with the Disclosure Schedules and Exhibits to this Agreement), the Ancillary Agreements and the Confidentiality Agreement (together with the Schedules and Exhibits to this Agreement) contain the entire agreement and understanding among the Parties with respect to the subject matter hereof and thereof and supersede all prior and contemporaneous agreements, understandings and discussions (including the letter of intent among RAC and the Company dated as of February 22, 2021), whether written or oral, relating to such subject matter in any way. The Parties have voluntarily agreed to define their rights and Liabilities with respect to the transactions contemplated by this Agreement and the Ancillary Agreements exclusively pursuant to the express terms and provisions of this Agreement and the Ancillary Agreements, and the Parties disclaim that they are owed any duties or are entitled to any remedies not set forth in this Agreement and the Ancillary Agreements. Furthermore, this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations and no Person has any special relationship with another Person that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction. Notwithstanding anything to the contrary in this Section 11.6, in the event the Closing is not consummated pursuant to this Agreement, nothing set forth in this Agreement shall in any way amend, alter, terminate, supersede or otherwise effect the Parties’ or their respective Affiliates’ Equity Interests or any Contract to which the Parties or their respective Affiliates are party or are bound (other than (x) this Agreement and (y) the Confidentiality Agreements), including the certificates of incorporation, formation or limited partnership, bylaws, limited liability company agreements, limited partnership agreements and/or other similar governing documents of any of the Parties or their respective Subsidiaries.

 

94

 

 

Section 11.7 Governing Law; Waiver of Jury Trial; Jurisdiction. The Law of the State of Delaware shall govern (a) all claims or matters related to or arising from this Agreement (including any tort or non-contractual claims) and (b) any questions concerning the construction, interpretation, validity and enforceability hereof, and the performance of the obligations imposed by this Agreement, in each case without giving effect to any choice-of-law or conflict-of-law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Delaware. EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG ANY OF THE PARTIES (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS AGREEMENT (INCLUDING ANY proceeding against or involving any Debt Financing RELATED PARTY arising out of this Agreement or the Debt Financing), THE TRANSACTIONS CONTEMPLATED HEREBY AND/OR THE RELATIONSHIPS ESTABLISHED AMONG THE PARTIES UNDER THIS AGREEMENT. THE PARTIES HERETO FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. Each of the Parties submits to the exclusive jurisdiction of first, the Chancery Court of the State of Delaware or, in the event, but only in the event, that the Court of Chancery of the State of Delaware does not have subject matter jurisdiction, the Superior Court of the State of Delaware (Complex Commercial Division) or, if subject matter jurisdiction over the Proceeding is vested exclusively in the federal courts of the United States of America, the United States District Court for the District of Delaware, in any Proceeding arising out of or relating to this Agreement, agrees that all claims in respect of the Proceeding shall be heard and determined in any such court and agrees not to bring any Proceeding arising out of or relating to this Agreement in any other courts. Nothing in this Section 11.7, however, shall affect the right of any Party to serve legal process in any other manner permitted by Law or at equity. Each Party agrees that a final judgment in any Proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by Law or at equity. Notwithstanding anything to the contrary contained herein, each Party to this Agreement acknowledges and irrevocably agrees (a) any right or obligation of any Debt Financing Related Party in connection with this Agreement, the Debt Financing and the transactions and the performance contemplated hereby and thereby, and any Proceeding involving a Debt Financing Related Party relating thereto or arising thereunder, shall be governed by and construed in accordance with the law of the State of New York, without regard to conflict of law principles thereof, and subject to the exclusive jurisdiction of any state or federal court sitting in the Borough of Manhattan in the State of New York, and any appellate court from any thereof, (b) not to bring or permit any of their Affiliates to bring or support anyone else in bringing any such Proceeding against any Debt Financing Related Party in any other court and (c) to waive any right it may have to a trial by jury in respect to any Proceeding against any Debt Financing Related Party in connection with this Agreement, the Debt Financing and the transactions contemplated hereby and thereby, whether at law or in equity and whether in tort, contract or otherwise, (d) the Company (on behalf of itself and any of its Affiliates, directors, officers, employees, agents and representatives) hereby (A) waives any and all rights, claims and causes of action against any Debt Financing Related Party arising out of or relating to this Agreement, the Commitment Letter or the Debt Financing or the performance hereunder or thereunder or in respect of any oral representations made or alleged to have been made in connection herewith or therewith, including any dispute arising out of or relating in any way to the Debt Financing or the performance thereof or the financings contemplated thereby, whether at law or equity, in contract, in tort or otherwise and (B) agrees not to commence any action or proceeding against any Debt Financing Related Party in connection with this Agreement, the Commitment Letter, the Debt Financing, the definitive financing agreements or in respect of any other document or theory of law or equity and agrees to cause any such action or proceeding asserted by any Person in connection with this Agreement, the Commitment Letter, the Debt Financing, the definitive financing agreements or in respect of any other document or theory of law or equity against any Debt Financing Related Party to be dismissed or otherwise terminated.

 

95

 

 

Section 11.8 Non-Survival. The Parties, intending to modify any applicable statute of limitations, agree that none of the representations, warranties, covenants or agreements set forth in this Agreement or in any Ancillary Agreement or any certificate or letter of transmittal delivered hereunder including any rights arising out of any breach of such representations, warranties, covenants or agreements, shall survive the Closing (and there shall be no Liability after the Closing in respect thereof), in each case, except for those covenants and agreements that by their terms contemplate performance, in each case, in whole or in part after the Closing, and then only with respect to the period following the Closing (including any breaches occurring after the Closing), which shall survive until 30 days following the date of the expiration, by its terms of the obligation of the applicable Party under such covenant or agreement. Notwithstanding anything to the contrary contained herein, none of the provisions set forth herein shall be deemed a waiver by any Party of any right or remedy which such Party may have at Law or in equity in the case of Fraud.

 

Section 11.9 Trust Account Waiver. Each of the Company and the Equityholder Representative acknowledge that RAC has established the Trust Account for the benefit of its public RAC Stockholders, which holds proceeds of its initial public offering. For and in consideration of the Buyer entering into this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each of the Company and the Equityholder Representative, for itself and the Affiliates and Persons it has the authority to bind, hereby agrees it does not now and shall not at any time hereafter have any right, title, interest or claim of any kind in or to any assets in the Trust Account (or distributions therefrom to (a) the public RAC Stockholders upon the redemption of their shares and (b) the underwriters of Buyer’s initial public offering in respect of their deferred underwriting commissions held in the Trust Account, in each case as set forth in the Trust Agreement (collectively, the “Trust Distributions”)), and hereby waives any claims it has or may have at any time solely against the Trust Account (including the Trust Distributions) as a result of, or arising out of, any discussions, Contracts or agreements (including this Agreement) among the Buyer and the Company or the Company’s Unitholders and will not seek recourse against the Trust Account (including the Trust Distributions) for any reason whatsoever. The Company and the Equityholder Representative agree and acknowledge that such irrevocable waiver is material to this Agreement and specifically relied upon by the Buyer and the Sponsor to induce the Buyer to enter into this Agreement, and the Company and the Equityholder Representative further intend and understand such waiver to be Enforceable against the Company, the Equityholder Representative and each of their respective Affiliates and Persons that they have the authority to bind under applicable Law. To the extent that the Company or the Equityholder Representative or any of their respective Affiliates or Persons that they have the authority to bind commences any Proceeding against the Buyer or any of its Affiliates based upon, in connection with, relating to or arising out of any matter relating to the Buyer or its representatives, which proceeding seeks, in whole or in part, monetary relief against the Buyer or its representatives, the Company and the Equityholder Representative hereby acknowledge and agree that their respective and their respective Affiliates’ sole remedy shall be against assets of the Buyer not in the Trust Account and that such claim shall not permit the Company or the Equityholder Representative or such Affiliates (or any Person claiming on any of their behalves) to have any claim against the Trust Account (including the Trust Distributions) or any amounts contained in the Trust Account while in the Trust Account.

 

Section 11.10 Counterparts; Electronic Delivery. This Agreement, the Ancillary Agreements and the other agreements, certificates, instruments and documents delivered pursuant to this Agreement may be executed and delivered in one or more counterparts and by email or other electronic transmission, each of which shall be deemed an original and all of which shall be considered one and the same agreement. No Party shall raise the use of email to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of email as a defense to the formation or enforceability of a Contract and each Party forever waives any such defense.

 

96

 

 

Section 11.11 Specific Performance. Each Party acknowledges that the rights of each Party to consummate the transactions contemplated hereby are unique and recognizes and affirms that in the event any of the provisions hereof are not performed in accordance with their specific terms or otherwise are breached, money damages would be inadequate (and therefore the non-breaching Party would have no adequate remedy at Law) and the non-breaching Party would be irreparably damaged. Accordingly, each Party agrees that each other Party shall be entitled to specific performance, an injunction or other equitable relief (without posting of bond or other security or needing to prove irreparable harm) to prevent breaches of the provisions hereof and to enforce specifically this Agreement or any Ancillary Agreement to the extent expressly contemplated herein or therein and the terms and provisions hereof in any Proceeding, in addition to any other remedy to which such Person may be entitled. Each Party agrees that it will not oppose the granting of specific performance and other equitable relief on the basis that the other Parties have an adequate remedy at Law or that an award of specific performance is not an appropriate remedy for any reason at Law or equity. The Parties acknowledge and agree that any Party seeking an injunction to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in accordance with this Section 11.11 shall not be required to provide any bond or other security in connection with any such injunction.

 

Section 11.12 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their permitted assigns and nothing herein expressed or implied shall give or be construed to give any Person, other than the Parties and such permitted assigns, any legal or equitable rights hereunder (other than (x) Non-Party Affiliates, each of whom is an express third-party beneficiary hereunder to the provisions of Section 11.14, (y) the Indemnified Persons, each of whom is an express third-party beneficiary hereunder to the provisions of Section 6.13 and (z) the Debt Financing Sources, each of whom is an express third-party beneficiary hereunder to the provisions of Section 6.11). Notwithstanding the foregoing and anything to the contrary contained herein, each Debt Financing Source is intended to be, and shall be, an express third-party beneficiary of this Section 11.12, Section 11.1, Section 11.3, and Section 11.7 (and the definitions related thereto).

 

Section 11.13 Schedules and Exhibits. All Schedules and Exhibits attached hereto or referred to herein are (a) each hereby incorporated in and made a part of this Agreement as if set forth in full herein and (b) qualified in their entirety by reference to specific provisions of this Agreement. Any fact or item disclosed in any Section of the Schedules shall be deemed disclosed in each other Section of the applicable Schedule to which such fact or item may apply so long as (i) such other Section is referenced by applicable cross-reference or (ii) it is reasonably apparent on the face of such disclosure that such disclosure is applicable to such other Section or portion of the Schedule. The headings contained in the Schedules are for convenience of reference only and shall not be deemed to modify or influence the interpretation of the information contained in the Schedules. The Schedules are not intended to constitute, and shall not be construed as, an admission or indication that any such fact or item is required to be disclosed. The Schedules shall not be deemed to expand in any way the scope or effect of any representations, warranties or covenants described herein. Any fact or item, including the specification of any dollar amount, disclosed in the Schedules shall not by reason only of such inclusion be deemed to be material, to establish any standard of materiality or to define further the meaning of such terms for purposes hereof, and matters reflected in the Schedules are not necessarily limited to matters required by this Agreement to be reflected herein and may be included solely for information purposes. Moreover, in disclosing the information in the Schedules, the Parties, to the fullest extent permitted by law, expressly do not waive any attorney-client privilege associated with such information or any protection afforded by the work-product doctrine with respect to any of the matters disclosed or discussed therein. The information contained in the Schedules shall be kept strictly confidential in accordance with Section 6.4 by the Parties and no third party may rely on any information disclosed or set forth therein.

 

97

 

 

Section 11.14 No Recourse. Notwithstanding anything that may be expressed or implied herein (except in the case of the immediately succeeding sentence) or any document, agreement, or instrument delivered contemporaneously herewith, and notwithstanding the fact that any Party may be a partnership or limited liability company, each Party hereto, by its acceptance of the benefits of this Agreement, covenants, agrees and acknowledges that no Persons other than the Parties shall have any obligation hereunder and that it has no rights of recovery hereunder against, and no recourse hereunder or under any documents, agreements, or instruments delivered contemporaneously herewith or in respect of any oral representations made or alleged to be made in connection herewith or therewith shall be had against, any former, current or future director, officer, agent, Affiliate, manager, assignee, incorporator, controlling Person, fiduciary, representative or employee of any Party (or any of their successors or permitted assignees), against any former, current, or future general or limited partner, manager, stockholder or member of any Party (or any of their successors or permitted assignees) or any Affiliate thereof or against any former, current or future director, officer, agent, employee, Affiliate, manager, assignee, incorporator, controlling Person, fiduciary, representative, general or limited partner, stockholder, manager or member of any of the foregoing, but in each case not including the Parties (each, but excluding for the avoidance of doubt, the Parties, a “Non-Party Affiliate”), whether by or through attempted piercing of the corporate veil, by or through a claim (whether in tort, Contract or otherwise) by or on behalf of such Party against the Non-Party Affiliates, by the enforcement of any assessment or by any Proceeding, or by virtue of any statute, regulation or other applicable Law, or otherwise; it being agreed and acknowledged that no personal Liability whatsoever shall attach to, be imposed on, or otherwise be incurred by any Non-Party Affiliate, as such, for any obligations of the applicable Party under this Agreement or the transactions contemplated hereby, under any documents or instruments delivered contemporaneously herewith, at or prior to Closing, in respect of any oral representations made or alleged to be made in connection herewith or therewith, or for any claim (whether in tort, Contract or otherwise) based on, in respect of, or by reason of, such obligations or their creation. Notwithstanding the forgoing, a Non-Party Affiliate may have obligations under any documents, agreements, or instruments delivered contemporaneously herewith or otherwise contemplated hereby if such Non-Party Affiliate is party to such document, agreement or instrument. Except to the extent otherwise set forth in, and subject in all cases to the terms and conditions of and limitations herein, this Agreement may only be enforced against, and any claim or cause of action of any kind based upon, arising out of, or related to this Agreement, or the negotiation, execution or performance hereof, may only be brought against the entities that are named as Parties hereto and then only with respect to the specific obligations set forth herein with respect to such Party. Each Non-Party Affiliate is intended as a third-party beneficiary of this Section 11.14. Notwithstanding any provision hereof to the contrary, in no event shall the Group Companies or the Equityholder Representative or any of their respective Affiliates or representatives seek to recover monetary damages from any Equity Financing Source in connection with the obligations of the Equity Financing Sources for the Equity Financing under the applicable Subscription Agreement or the Forward Purchase Agreement (other than pursuant to the Subscription Agreements in accordance with their terms to the extent expressly set forth therein). Nothing in this Section 11.14 shall in any way limit or qualify the rights and obligations of the Equity Financing Sources for the applicable Equity Financing and the other parties to the Subscription Agreements or the Forward Purchase Agreement, as applicable, to each other thereunder or in connection therewith (including the Company’s rights as a third party beneficiary to the Subscription Agreements and the Forward Purchase Agreement in accordance with their terms to the extent expressly set forth therein). Each Non-Party Affiliate is intended as a third-party beneficiary of this Section 11.14.

 

98

 

 

Section 11.15 Equitable Adjustments. If, during the Pre-Closing Period, the outstanding shares of OpCo Common Units or shares of Common Stock shall have been changed into a different number of shares or a different class, with the prior written consent of the Company to the extent required by this Agreement, by reason of any stock dividend, share recapitalization, subdivision, reclassification, recapitalization, split, combination, consolidation or exchange of shares, or any similar event shall have occurred, then any number or amount contained herein which is based upon the number of shares or units of Company Interests will be appropriately adjusted to provide to the Company Unitholders and the RAC Stockholders the same economic effect as contemplated hereby prior to such event.

 

Section 11.16 Legal Representation and Privilege.

 

(a) The Company.

 

(i) Each Party hereby agrees, on behalf of itself, its Affiliates, and its and their directors, managers, officers, owners and employees and each of their successors and assigns (all such parties, the “Waiving Parties”), that Orrick, Herrington & Sutcliffe LLP (or any successor thereto) (“Orrick”) may represent the Company or any direct or indirect director, manager, officer, owner, employee or Affiliate thereof (other than, following the Closing, the Buyer or any of its Subsidiaries), in connection with any dispute, claim, Proceeding or Liability arising out of or relating to this Agreement, any Ancillary Agreement or the transactions contemplated hereby or thereby (any such representation, the “Company Post-Closing Representation”) notwithstanding its representation (or any continued representation) of the Company in connection with the transactions contemplated by this Agreement, and each Party on behalf of itself and the Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest or any objection arising therefrom or relating thereto, even though the interests of the Company Post-Closing Representation may be directly adverse to the Waiving Parties.

 

(ii) Each of the Parties acknowledges that the foregoing provision applies whether or not Orrick provides legal services to any Group Company after the Closing Date. Each of the Parties, for itself and the Waiving Parties, hereby irrevocably acknowledges and agrees that all communications among Orrick (or any other counsel that represented any Group Company), the Group Companies and/or any director, manager, officer, owner, employee or Representative of any of the foregoing made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute, claim, Proceeding or Liability arising out of or relating to, this Agreement, any Ancillary Agreement or the transactions contemplated hereby or thereby or any matter relating to any of the foregoing are privileged communications, and shall remain privileged after the Closing, and the attorney-client privilege and the expectation of client confidence and work product and other immunities belong solely to the applicable Group Company (but in all cases, for the avoidance of doubt, excluding any other Subsidiary of Buyer) and is exclusively controlled by such member, and shall not pass to or be claimed by Buyer, any Subsidiary of Buyer or any other Party or Waiving Party, other than the Company. From and after the Closing, each Party (other than the Company) shall not, and shall cause its Waiving Parties not to, access the same or seek to obtain the same by any process. From and after the Closing, each of the Parties (other than the Company), on behalf of itself and the Waiving Parties, irrevocably waives and will not assert any attorney-client privilege or work product or other immunities with respect to any communication among Orrick (or any other counsel that represented the Group Companies), any Group Company and/or any director, manager, officer, owner, employee or Representative of any of the foregoing occurring prior to the Closing in connection with any the Company Post-Closing Representation. Notwithstanding the foregoing, in the event that a dispute arises between any Party or its Waiving Parties, on the one hand, and a third party, on the other hand, such Party or its Waiving Party, as applicable, may assert the attorney-client privilege or work product or other immunities to prevent disclosure of confidential communications to such third party; provided, however, that no Party (or its Waiving Party) may waive such privilege or other immunity without the prior written consent of the Company.

 

99

 

 

(b) Buyer.

 

(i) Each Party hereby agrees, on behalf of itself and the Waiving Parties, that Kirkland & Ellis LLP (“Kirkland”) (or any successor thereto) may represent Buyer or any direct or indirect director, manager, officer, owner, employee or Affiliate thereof, in connection with any dispute, claim, Proceeding or Liability arising out of or relating to this Agreement, any Ancillary Agreement or the transactions contemplated hereby or thereby (any such representation, the “Buyer Post-Closing Representation”) notwithstanding its representation (or any continued representation) of Buyer in connection with the transactions contemplated by this Agreement, and each Party on behalf of itself and the Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest or any objection arising therefrom or relating thereto, even though the interests of the Buyer Post-Closing Representation may be directly adverse to the Waiving Parties.

 

(ii) Each of the Parties acknowledges that the foregoing provision applies whether or not Kirkland provides legal services to Buyer after the Closing Date. Each of the Parties, for itself and the Waiving Parties, hereby irrevocably acknowledges and agrees that all communications among Kirkland (or any other counsel that represented the Buyer), the Buyer and/or any director, manager, officer, owner, employee or representative of any of the foregoing made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute, claim, Proceeding or Liability arising out of or relating to, this Agreement, any Ancillary Agreement or the transactions contemplated hereby or thereby or any matter relating to any of the foregoing are privileged communications, and shall remain privileged after the Closing, and the attorney-client privilege and the expectation of client confidence and work product and other immunities belongs solely to Buyer and is exclusively controlled by such member, and shall not pass to or be claimed by any other Party or Waiving Party, other than Buyer. From and after the Closing, each Party (other than Buyer) shall not, and shall cause its Waiving Parties not to, access the same or seek to obtain the same by any process. From and after the Closing, each of the Parties (other than Buyer), on behalf of itself and the Waiving Parties, irrevocably waives and will not assert any attorney-client privilege or work product or other immunities with respect to any communication among Kirkland (or any other counsel that represented the Buyer), Buyer and/or any director, manager, officer, owner, employee or representative of any of the foregoing occurring prior to the Closing in connection with any Buyer Post-Closing Representation. Notwithstanding the foregoing, in the event that a dispute arises between any Party or its Waiving Parties, on the one hand, and a third party, on the other hand, such Party or its Waiving Party, as applicable, may assert the attorney-client privilege or work product or other immunities to prevent disclosure of confidential communications to such third party; provided, however, that no Party (or its Waiving Party) may waive such privilege or other immunity without the prior written consent of Buyer.

 

100

 

 

Section 11.17 Acknowledgements.

 

(a) The Company. The Company specifically acknowledges and agrees to the Buyer’s and RAC’s disclaimers of any representations or warranties other than those set forth in Article IV and any Ancillary Agreement or certificate delivered by the Buyer or RAC pursuant to this Agreement, whether made by the Buyer Parties or any of their respective Affiliates or representatives, and of all Liability and responsibility for any representation, warranty, projection, forecast, statement, or information made, communicated, or furnished (orally or in writing) to the Company, its Affiliates or Representatives (including any opinion, information, projection, or advice that may have been or may be provided to the Company, its Affiliates or Representatives by either the Buyer Parties or any of their respective Affiliates or Representatives), other than those set forth in Article IV and any Ancillary Agreement or certificate delivered by the Buyer Parties pursuant to this Agreement. The Company (i) specifically acknowledges and agrees that except for the representations and warranties set forth in Article IV and any Ancillary Agreement or certificate delivered by the Buyer Parties pursuant to this Agreement, neither the Buyer Parties nor any of their respective Affiliates or Representatives has made, any other express or implied representation or warranty with respect to the Buyer Parties, their respective assets or Liabilities, their respective business or the transactions contemplated by this Agreement or the Ancillary Agreements and (ii) with respect to the Buyer Parties, irrevocably and unconditionally waives and relinquishes any and all rights, Proceedings or causes of action (in each case, whether accrued, absolute, contingent or otherwise, known or unknown, or due or to become due, express or implied, in law or in equity, or based on contract, tort or otherwise) based on or relating to any such other representation or warranty.

 

(b) Buyer. The Buyer specifically acknowledges and agrees to the Company’s disclaimer of any representations or warranties other than those set forth in Article III and any Ancillary Agreement or certificate delivered by the Company pursuant to this Agreement, whether made by the Company or any of their respective Affiliates or Representatives, and of all Liability and responsibility for any representation, warranty, projection, forecast, statement, or information made, communicated, or furnished (orally or in writing) to the Buyer Parties, their Affiliates or Representatives (including any opinion, information, projection, or advice that may have been or may be provided to the Buyer Parties, their Affiliates or Representatives by the Company or any of their respective Affiliates or Representatives), other than those set forth in Article III and any Ancillary Agreement or certificate delivered by the Company pursuant to this Agreement. The Buyer (i) specifically acknowledges and agrees that, except for the representations and warranties set forth in Article III and any Ancillary Agreement or certificate delivered by the Company pursuant to this Agreement, neither the Company nor any of its Affiliates or Representatives has made, any other express or implied representation or warranty with respect to the Company, its assets or Liabilities, its business or the transactions contemplated by this Agreement or the Ancillary Agreements and (ii) with respect to the Group Companies, irrevocably and unconditionally waives and relinquishes any and all rights or Proceedings (in each case, whether accrued, absolute, contingent or otherwise, known or unknown, or due or to become due, express or implied, in law or in equity, or based on contract, tort or otherwise) based on or relating to any such other representation or warranty.

 

101

 

 

Article XII
AUTHORIZATION OF THE EQUITYHOLDER REPRESENTATIVE

 

Section 12.1 Authorization of Equityholder Representative.

 

(a) Appointment. By adoption of this Agreement, execution of the Company Written Consent or the acceptance of any portion of the Merger Consideration, each Company Unitholder hereby irrevocably constitutes and appoints the Equityholder Representative as his, her or its, agent and representative to, in addition to the other rights and authority granted to the Equityholder Representative elsewhere in this Agreement, to execute any and all instruments or other documents on behalf of such Company Unitholder, and to do any and all other acts or things on behalf of such Company Unitholder, which the Equityholder Representative may deem necessary, advisable, convenient or appropriate, or which may be required pursuant to this Agreement, the Ancillary Agreements or otherwise, in connection with the facilitation of the consummation of the transactions contemplated hereby or thereby and the performance of all obligations hereunder or thereunder at or following the Closing, including the exercise of the power to: (i) execute the Ancillary Agreements, instruments or certificates on behalf of each Company Unitholder; (ii) act for each Company Unitholder with respect to any adjustment to the Estimated Merger Consideration and the Ancillary Agreements; (iii) give and receive notices and communications to or from the Buyer Parties relating to this Agreement, the Ancillary Agreements or any of the transactions and other matters contemplated hereby or thereby (except to the extent that this Agreement or any Ancillary Agreement expressly contemplates that any such notice or communication shall be given or received by such Company Unitholder individually); (iv) administration of the provisions of this Agreement; (v) give or agree to, on behalf of all or any of the Company Unitholders, any and all consents, waivers, amendments or modifications deemed by the Equityholder Representative, in its sole and absolute discretion, to be necessary or appropriate under this Agreement and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; (vi) amending this Agreement, any Ancillary Agreement or any of the instruments to be delivered to the Buyer hereunder or thereunder; (vii) (A) dispute or refrain from disputing, on behalf of each Company Unitholder, any amounts to be received by such Company Unitholder under this Agreement or any claim made by the Buyer Parties under this Agreement, (B) negotiate and compromise, on behalf of each such Company Unitholder, any dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement, and (C) execute, on behalf of each such Company Unitholder, any settlement agreement, release or other document with respect to such dispute or remedy; (viii) engage attorneys, accountants, agents or consultants on behalf of the Company Unitholders in connection with this Agreement or any Ancillary Agreement and pay any fees related thereto, and (ix) take all actions necessary or appropriate in the judgment of the Equityholder Representative for the accomplishment of the foregoing. For the avoidance of doubt, the Equityholder Representative shall have authority and power to act on behalf of each Company Unitholder with respect to the disposition, settlement or other handling of all claims under this Agreement or the Ancillary Agreements and all rights or obligations arising under this Agreement or thereunder. The Company Unitholders shall be bound by all actions taken and documents executed by the Equityholder Representative in connection with this Agreement and the Ancillary Agreements, and the Buyer Parties shall be entitled to rely on any action or decision of the Equityholder Representative. Notices or communications to or from the Equityholder Representative shall constitute notice to or from any Company Unitholder.

 

(b) Indemnification; Expenses. Each Company Unitholder shall severally (based on each such Company Unitholder’s Pro Rata Percentage), and not jointly, indemnify and hold harmless the Equityholder Representative from and against any loss incurred without gross negligence or willful misconduct (as determined in a final and non-appealable judgment of a court of competent jurisdiction) on the part of the Equityholder Representative and arising out of or in connection with the acceptance or administration of its duties hereunder. Any expenses or taxable income incurred by the Equityholder Representative in connection with the performance of its duties under this Agreement or any Ancillary Agreement shall not be the personal obligation of the Equityholder Representative but shall be payable by and attributable to the Company Unitholders based on each such Company Unitholder’s Pro Rata Percentage. From and after the Closing, if the Equityholder Representative incurs any expenses or taxable income in connection with the performance of its duties under this Agreement or any Ancillary Agreement, it shall be entitled to withhold on a pro rata basis from amounts otherwise due to the Company Unitholders under this Agreement or under any Ancillary Agreement amounts as it deems necessary to provide for such expenses or taxable income. The Equityholder Representative may also from time to time submit invoices to the Company Unitholders covering such expenses and liabilities, which shall be paid by the Company Unitholders promptly following the receipt thereof based on their respective Pro Rata Percentages. Upon the request of any Company Unitholder, the Equityholder Representative shall provide such Company Unitholder with an accounting of all material expenses and liabilities paid by the Equityholder Representative in its capacity as such.

 

 

* * * * *

 

102

 

 

Each of the undersigned has caused this Business Combination Agreement to be duly executed as of the date first above written.

 

  BUYER:
     
  LFG BUYER CO, LLC
     
  By: /s/ Jamie Rogers
  Name: Jamie Rogers
  Title: Authorized Person
     
  INTERMEDIATECO:
     
  LFG Intermediate Co, LLC
     
  By: /s/ Jamie Rogers
  Name: Jamie Rogers
  Title: Authorized Person
     
  RICE HOLDINGS:
     
  RICE ACQUISITION HOLDINGS LLC
     
  By: /s/ Jamie Rogers
  Name: Jamie Rogers
  Title: Authorized Person
     
  COMPANY MERGER SUB:
     
  Inigo Merger Sub, LLC
     
  By: /s/ Jamie Rogers
  Name: Jamie Rogers
  Title: Authorized Person
     
  COMPANY:  
     
  ARIA ENERGY LLC
     
  By: /s/ Richard DiGia
  Name: Richard DiGia
  Title: Authorized Signatory

  

Signature Page to Business Combination Agreement

 

103

 

 

  EQUITYHOLDER REPRESENTATIVE:
     
  ARIA RENEWABLE ENERGY SYSTEMS LLC
     
  By: /s/ Scott Parkes
  Name: Scott Parkes
  Title: Vice President
     
  SOLELY FOR PURPOSES OF SECTION 2.2 Article IV, Article V, Article VI and Article XI
     
  RAC:
     
  RICE ACQUISITION CORP.
     
  By: /s/ Jamie Rogers
  Name: Jamie Rogers
  Title: Chief Accounting Officer

  

Signature Page to Business Combination Agreement 

 

104

 

 

EXHIBIT C

 

FORM OF STOCKHOLDERS’ AGREEMENT

 

This Stockholders’ Agreement (this “Agreement”) is made as of [●], 2021, by and among (a) [BuyerCo LLC] (the “Buyer”); (b) the stockholders listed on Schedule I hereto1 (together with their respective Affiliates and their respective Permitted Transferees hereunder, the “Aria Holders”); (c) Archaea Energy, LLC (“Archaea” and together with its Permitted Transferees hereunder, the “Archaea Holders”); (d) Rice Acquisition Holdings LLC (“OpCo”); (e) Rice Acquisition Sponsor LLC (“RAC Sponsor” and together with the Aria Holders and the Archaea Holders, the “Stockholder Parties”) and (f) Rice Acquisition Corp. (including any of its successors by merger, acquisition, reorganization, conversion or otherwise, the “Company”).2

 

RECITALS

 

WHEREAS, Buyer has entered into that certain Business Combination Agreement, dated as of April [●], 2021 (as it may be amended or supplemented from time to time, the “Aria Agreement”), by and among (a) Buyer, (b) [●] Merger Sub, LLC, a Delaware limited liability company and a direct wholly owned Subsidiary of the Buyer, (c) Aria Energy LLC, (d) OpCo, (e) [●], a [●], solely in its capacity as representative of the Company Unitholders (as defined in the Aria Agreement) and (f) solely for purposes of [Article V, Article VI, Article VII and Article XIII] thereof, the Company;

 

WHEREAS, Buyer has entered into that certain Business Combination Agreement, dated as of April [●], 2021 (as it may be amended or supplemented from time to time, the “Archaea Agreement” and, together with the Aria Agreement, the “Business Combination Agreements,” and the transactions contemplated by the Business Combination Agreements, collectively, the “Transaction”), by and among (a) Buyer, (b) [●] Merger Sub, LLC, a Delaware limited liability company, (c) Archaea Energy, LLC, (d) OpCo, (e) [TargetCo], a Delaware limited liability company, and (f) solely for purposes of [Article V, Article VI, Article VII and Article XIII] thereof, the Company;

 

WHEREAS, on October 21, 2020, the Company and RAC Sponsor entered into that certain Private Placement Warrants and Warrant Rights Purchase Agreement, pursuant to which RAC Sponsor committed to purchase 5,693,400 warrants in a private placement transaction occurring simultaneously with the closing of the Company’s initial public offering (the “Private Placement Warrants”);

 

WHEREAS, among other things, (a) pursuant to the Aria Agreement, OpCo issued a number of [Class A Units (as defined below)] to the Aria Holders in accordance with the terms thereof, (b) pursuant to the Archaea Agreement, OpCo issued a number of [Class A Units] to Archaea in accordance with the terms thereof, and (c) the Company issued certain shares of Class B Common Stock (as defined below) to the Aria Holders and Archaea;

 

 

1 Note to Draft: Final stockholder information, including notice information to be populated in connection with Closing along with director information.
2 Note to Draft: Description/parties to the BCA subject to finalization based on transaction structuring.

 

C-1

 

 

WHEREAS, as of immediately following the closing of the Transaction (the “Closing”), each of the Stockholder Parties Beneficially Owns the respective number of Class A Units of OpCo (the “Class A Units”) and Class B Common Stock, par value $0.0001 per share of the Company (the “Class B Common Stock,” and together with the Class A Units, collectively, the “Company Interests”), set forth on Exhibit A hereto; and

 

WHEREAS, the number of Company Interests Beneficially Owned by each Stockholder Party may change from time to time, in accordance with the terms of (a) the Business Combination Agreements, (b) the Amended and Restated Certificate of Incorporation of the Company, as it may be amended, supplemented and/or restated from time to time (the “Charter”), (c) the by-laws of the Company, as they may be amended, supplemented and/or restated from time to time (the “By-laws”) and (d) the OpCo A&R LLCA (as defined below), which changes shall be reported by each Stockholder Party in accordance with the applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and

 

WHEREAS, in connection with the Transaction, the Stockholder Parties have agreed to execute and deliver this Agreement.

 

NOW THEREFORE, in consideration of the foregoing and of the promises and covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

AGREEMENT

 

1. Definitions.3 In addition to the terms defined elsewhere in this Agreement, the following terms shall have the meanings indicated when used in this Agreement with initial capital letters:

 

Affiliate” shall mean, with respect to any specified Person, any other Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, such specified Person; provided, that (i) the Company and its Subsidiaries shall not be deemed to be Affiliates of the Stockholder Parties or any of their respective Affiliates and (ii) neither portfolio companies in which any Stockholder Party or any of their respective Affiliates has an investment (whether as debt or equity) nor limited partners, non-managing members or other similar direct or indirect investors in a Stockholder Party or its respective Affiliates shall be deemed to be Affiliates of the Stockholder Party or the Stockholder Party’s Affiliates. For the purposes of this definition, “control”, when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling,” “controlled,” “controlled by” and “under common control with” have meanings correlative to the foregoing.

 

 

3 Note to Draft: Defined terms to correspond with finalized defined terms in the Archaea Agreement and Aria Agreement, as applicable.

 

C-2

 

 

Ares Investor” shall mean [ ] and [ ] and their respective Affiliates, and in each case their Permitted Transferees.

 

Beneficially Own” shall have the meaning ascribed to such term in Rule 13d-3 under the Exchange Act.

 

Board” shall mean the board of directors of the Company.

 

Business Day” shall mean any day except a Saturday, a Sunday or any other day on which commercial banks are required or authorized to close in the State of New York.

 

Class A Common Stock” shall mean Class A Common Stock, par value $0.0001 per share of the Company.

 

Class A Common Units” shall mean the “Class A Common Units” of OpCo as defined in the OpCo A&R LLCA.

 

Class B Common Units” shall mean the “Class B Common Units” of OpCo as defined in the OpCo A&R LLCA.

 

Closing Date” shall mean the later of (a) the Closing Date as defined in the Archaea Agreement and (b) the Closing Date as defined in the Aria Agreement.

 

Common Stock” shall mean Class A Common Stock, Class B Common Stock and any other equity security of the Company issued or issuable with respect to the shares of Class A Common Stock or Class B Common Stock, in each case by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or reorganization or similar transaction.

 

Competitor” shall mean a Person engaged, directly or indirectly (including through any partnership, limited liability company, corporation, other entity, joint venture or similar arrangement (whether now existing or formed hereafter)), in the provision or development of renewable natural gas (or power derived therefrom) (excluding the Ares Investor and any financial investment firm or collective investment vehicle that holds less than [20]% of the outstanding equity of any Competitor).

 

C-3

 

 

Confidential Information” shall mean all information (whether or not specifically identified as confidential), in any form or medium, that is disclosed to, or developed or learned by, the Company or any of its Subsidiaries, or a Stockholder Party, as the case may be, in the performance of duties for, or on behalf of, the Company or any of its Subsidiaries, including, without limitation: (a) internal business information of the Company and its Subsidiaries (including, without limitation, information relating to strategic plans and practices, business, accounting, financial or marketing plans, practices or programs, training practices and programs, salaries, bonuses, incentive plans and other compensation and benefits information and accounting and business methods); (b) identities of, individual requirements of, specific contractual arrangements with, and information about, the Company or any of its Subsidiaries, its Affiliates, their respective customers and their respective confidential information; (c) any confidential or proprietary information of any third party that the Company or any of its Subsidiaries has a duty to maintain confidentiality of, or use only for certain limited purposes; (d) industry research compiled by, or on behalf of the Company or any of its Subsidiaries, including, without limitation, identities of potential target companies, management teams, and transaction sources identified by, or on behalf of, the Company or any of its Subsidiaries; (e) compilations of data and analyses, processes, methods, track and performance records, data and data bases relating thereto; and (f) information related to the Company’s intellectual property and updates of any of the foregoing; provided that, “Confidential Information” shall not include any information that has (i) become generally known and widely available for use other than as a result of the acts or omissions of such Stockholder Party or any Person over which such Stockholder Party has control to the extent such acts or omissions are not authorized by such Stockholder Party in the performance of such Person’s assigned duties for such Stockholder Party, (ii) was independently developed by such Stockholder Party or its representatives without the use of any other Confidential Information or (iii) is or has been made known or disclosed to such Stockholder Party by a third party (other than an Affiliate of such Stockholder Party) without a breach of any obligation of confidentiality such third party may have.

 

Contract” shall mean any written or oral contract, agreement, license or Lease (including any amendments thereto).

 

Economic Interests” shall mean (a) the issued and outstanding shares of Class A Common Stock, (b) the issued and outstanding Class A Common Units and (c) any other equity security of (i) the Company issued or issuable with respect to the shares of Class A Common Stock referenced in clauses (a) or (ii) OpCo issued or issuable with respect to Class A Common Units referenced in clauses (b), in each case by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or reorganization or similar transaction.

 

Equity Securities” means, with respect to any Person, all of the shares of capital stock or equity of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock or equity of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock or equity of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares or equity (or such other interests), restricted stock awards, restricted stock units, equity appreciation rights, phantom equity rights, profit participation and all of the other ownership or profit interests of such Person (including partnership or member interests therein), whether voting or nonvoting.

 

Existing Investors” shall mean any holders of Founder Interests or Private Placement Warrants immediately prior to the Closing that is a party hereto or any such holder’s Permitted Transferees.

 

Existing Registration Rights Agreement” shall mean the Registration Rights Agreement, dated as of October 21, 2020, as may be amended from time to time, by and among the Company, Rice Energy Sponsor LLC, a Delaware limited liability company, Atlas Point Energy Infrastructure Fund, LLC, a Delaware limited liability company, and the undersigned parties listed under Holder on the signature page thereto.

 

C-4

 

 

FINRA” shall mean the Financial Industry Regulatory Authority, Inc.

 

Founder Interests” shall mean those Class B Common Units granted to the Existing Investors prior to the date hereof and shall be deemed to include the Company Interests issued upon conversion thereof.

 

Governmental Entity” shall mean any nation or government, any state, province or other political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any court, arbitrator (public or private) or other body or administrative, regulatory or quasi-judicial authority, agency, department, board, commission or instrumentality of any federal, state, local or foreign jurisdiction.

 

Law” shall mean any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order.

 

Lease” shall mean all leases, subleases, licenses, concessions and other Contracts pursuant to which the Company or any Subsidiaries holds any leased real property (along with all amendments, modifications and supplements thereto).

 

Liabilities” shall mean any and all debts, liabilities, guarantees, commitments or obligations, whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured, liquidated or unliquidated, accrued or not accrued, direct or indirect, due or to become due or determined or determinable.

 

Liens” shall mean, with respect to any specified asset, any and all liens, mortgages, hypothecations, claims, encumbrances, options, pledges, licenses, rights of priority easements, covenants, restrictions and security interests thereon.

 

Lock-up Period” shall mean (a) with respect to the Aria Holders, subject to Section 7(d), the period beginning on the Closing Date and ending on the date that is 180 days following the Closing Date and (b) with respect to the Archaea Holders, the period beginning on the Closing Date and ending on the date that is [●]4 days following the Closing Date.

 

Lock-up Shares” shall mean (a) the Company Interests received by the Aria Holders and (b) the Company Interests received by the Archaea Holders, in each case in connection with the Transaction and as of the Closing Date. For all purposes under this Agreement, any securities owned by RAC Sponsor and its Affiliates (other than the Archaea Holders) as of the date of this Agreement, shall not constitute Lock-up Shares of the Archaea Holders.

 

 

 

4 Note to Draft: The lockup arrangements for the Archaea stockholders will be finalized as soon as practicable following the deal announcement and will be generally consistent with the framework provided in the letter of intent dated as of February 22, 2021. Without limiting the foregoing, in no event will the lockup obligations on any Archaea stockholder be more favorable than the terms of the Aria/Ares lockup.

 

C-5

 

 

Necessary Action” shall mean, with respect to any party and a specified result, all actions (to the extent such actions are not prohibited by applicable Law, within such party’s control and do not directly conflict with any rights expressly granted to such party in this Agreement, the Business Combination Agreements, the Charter or the By-laws) reasonably necessary and desirable within his, her or its control to cause such result, including, without limitation (a) calling special meetings of the Board and the stockholders of the Company, (b) voting or providing a proxy with respect to the Company Interests Beneficially Owned by such party, (c) voting in favor of the adoption of stockholders’ resolutions in connection with the Transaction and any amendments to the Charter or the By-laws, (d) requesting members of the Board (to the extent such members were elected, nominated or designated by the party obligated to undertake such action) to act (subject to any applicable fiduciary duties) in a certain manner and voting or providing a proxy with respect to the Company Interests Beneficially Owned by such party to remove any such director that does not act in such a manner and (e) making, or causing to be made, with governmental, administrative or regulatory authorities, all filings, registrations or similar actions that are required to achieve such a result.

 

OpCo A&R LLCA” shall mean that certain amended and restated limited liability company agreement of OpCo, dated as of the date hereof, as may be amended from time to time in accordance with its terms.

 

Permanent Incapacity” shall mean, with respect to any Person, when a competent medical authority who is treating such Person has given a written opinion to the Company stating that such Person has become permanently incapable of carrying out his or her functions as an officer or member of the Board, as applicable.

 

Permitted Transferees” shall mean, with respect to any Stockholder Party or any of their respective Permitted Transferees: (a) the Company, Buyer, or any of their Subsidiaries; (b) any Person approved in writing by the Board, in its sole discretion (such consent not to be unreasonably withheld, conditioned or delayed); (c) in the case of the Archaea Holders, the Aria Holders and RAC Sponsor or any of their respective Permitted Transferees, in each case, each of their respective equityholders and Affiliates (including any partner, shareholder, member controlling or under common control with such member and affiliated investment fund or vehicle); (d) any passive Person, vehicle, account or fund that is managed, sponsored or advised by, any Stockholder Party, a Permitted Transferee or any respective Affiliate thereof, so long as the decision-making control with respect to such interests after such Transfer to such passive Person, vehicle, account or fund remains with such Stockholder Party, Permitted Transferee or any respective Affiliate thereof; or (e) if a Stockholder Party or their Permitted Transferee is a natural Person, any of such Stockholder Party’s and Permitted Transferee’s controlled Affiliates, or any trust or other estate planning vehicle that is under the control of such Stockholder Party or Permitted Transferee, as applicable, and for the sole benefit of such Stockholder Party and/or such Stockholder Party’s and such Permitted Transferee and/or such Permitted Transferee’s spouse, former spouse, ancestors and descendants (whether natural or adopted), parents and their descendants and any spouse of the foregoing Persons, in the case of each of clauses (a) through (e), only if such transferee becomes a party to this Agreement and only for so long as such party continues to qualify as a Permitted Transferee.

 

C-6

 

 

Person” shall mean individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization or any other entity, including a governmental authority.

 

Proceeding” shall mean any action, claim, suit, charge, litigation, complaint, investigation, audit, notice of violation, citation, arbitration, inquiry, or other proceeding at Law or in equity (whether civil, criminal or administrative) by or before any Governmental Entity.

 

RAC Sponsor Holders” shall mean RAC Sponsor and its Permitted Transferees.

 

Registrable Securities” shall mean (a) the shares of Class A Common Stock issuable upon the exchange of Company Interests held by a Registration Rights Party (as defined below) immediately after the Closing in accordance with the terms of the OpCo A&R LLCA, (b) any outstanding shares of Class A Common Stock and any shares of Class A Common Stock issuable upon the exercise of any other equity securities of the Company held by a Registration Rights Party as of the date of this Agreement and (c) any other equity security of the Company issued or issuable with respect to the shares of Class A Common Stock referenced in clauses (a) through (b) by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or reorganization or other similar transaction; provided, however, that as to any particular Registrable Security, such security shall cease to be a Registrable Security when: (i) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged pursuant to such Registration Statement; (ii) such securities shall have been otherwise transferred, new certificates for such securities not bearing a legend restricting further Transfer shall have been delivered by the Company and subsequent public distribution of such securities shall not require registration under the Securities Act; (iii) such securities shall have ceased to be outstanding; or (iv) such securities may be sold without registration pursuant to Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission (as defined below)) within 90 days with no volume, manner of sale or other restrictions or limitations provided that any such security that ceases to be a Registrable Security under this clause (iv) will again be deemed a Registrable Security if a subsequent decrease in trading volume results in the holder thereof not being able to sell such securities during such period without restriction as to volume or manner of sale pursuant to Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission (as defined below).

 

Registration Statement” shall mean a registration statement filed by the Company or its successor with the Commission (as defined below) in compliance with the Securities Act and the rules and regulations promulgated thereunder for a public offering and sale of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into, equity securities (other than a registration statement on Form S-4 or Form S-8, or their successors, or any registration statement covering only securities proposed to be issued in exchange for securities or assets of another entity), including any related prospectus, amendments and supplements to such registration statement, including pre- and post-effective amendments, and all exhibits and all material incorporated by reference in such registration statement.

 

C-7

 

 

Securities Act” shall mean the Securities Act of 1933, as amended.

 

Shelf Registration Statement” shall mean a registration statement filed with the Commission (as defined below) for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act.

 

Stockholder Designating Party” shall mean the Aria Holders and/or RAC Sponsor, as applicable.

 

Stockholder Shares” shall mean all securities of the Company and OpCo registered in the name of, or Beneficially Owned by the Stockholder Parties, including any and all securities of the Company acquired and held in such capacity subsequent to the date hereof. For all purposes under this Agreement, any securities owned by RAC Sponsor and its Affiliates (other than the Archaea Holders) as of the date of this Agreement, shall not constitute Stockholder Shares of the Archaea Holders.

 

Subsidiary” shall mean, with respect to any Person, any corporation, association, partnership, limited liability company, joint venture or other business entity of which more than 50% of the voting power or equity is owned or controlled directly or indirectly by such Person, or one or more of the Subsidiaries of such Person, or a combination thereof.

 

Transfer” shall mean the (a) 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 with respect to, any security or (b) 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.

 

Underwriter” shall mean a securities dealer who purchases any Registrable Securities as principal in an Underwritten Offering and not as part of such dealer’s market-making activities.

 

Underwritten Offering” shall mean an offering for cash pursuant to an effective Registration Statement under the Securities Act (other than a Registration Statement on Form S-4 or Form S-8 or any successor form) in which securities of the Company are sold to an Underwriter in a firm commitment underwriting for distribution to the public.

 

Voting Shares” shall mean all securities of the Company that may be voted in the election of the Directors (as defined below) registered in the name of, or Beneficially Owned by any Person, including any and all securities of the Company acquired and held by such Person subsequent to the date hereof, which as of the date hereof, shall include the Class A Common Stock and Class B Common Stock.

 

C-8

 

 

2. Registration Rights.

 

(a) Registration Statement Covering Resale of Registrable Securities.

 

(i) Within 30 calendar days after the Closing Date, the Company will file with the Securities and Exchange Commission (the “Commission”) (at its sole cost and expense) a Registration Statement on Form S-3 or any similar short-form registration that may be available at such time or its successor form (“Form S-3”), or, if the Company is ineligible to use Form S-3, a Registration Statement on Form S-1 or any similar long-form registration that may be available at such time or its successor form (“Form S-1”), for an offering to be made on a continuous basis pursuant to Rule 415 of the Securities Act registering the resale from time to time by the Aria Holders and the Archaea Holders (each, a “Registration Rights Party” and, collectively, the “Registration Rights Parties”) of all of the Registrable Securities then held by the Registration Rights Parties pursuant to any method or combination of methods legally available to, and requested by any Registration Rights Party (the “Resale Shelf Registration Statement”) (it being agreed that the Resale Shelf Registration Statement shall be an automatic shelf registration statement that shall become effective upon filing with the SEC pursuant to Rule 462(e) if Rule 462(e) is available to the Company for the resale of the Registrable Securities). The Company shall use its commercially reasonable efforts to have the Resale Shelf Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earlier of (A) 60 calendar days after the filing thereof (or, if the Commission reviews and has written comments to the Resale Shelf Registration Statement, the 90th calendar day following the filing thereof) and (B) the seventh Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by the Commission that the Resale Shelf Registration Statement will not be “reviewed” or will not be subject to further review (the earlier of (A) and (B), the “Effectiveness Deadline”); provided, that if such deadline falls on a Saturday, Sunday or other day that the Commission is closed for business, the Effectiveness Deadline shall be extended to the next Business Day on which the Commission is open for business. The Company agrees to cause such Resale Shelf Registration Statement, or another shelf registration statement that includes the Registration Rights Parties’ Registrable Securities, to remain effective until the earliest of (x) the fifth anniversary of the later of (i) the date the initial Resale Shelf Registration Statement hereunder is declared effective and (ii) the date on which the Lock-up Period has expired with respect to the Aria Holders and (y) the date on which none of the Registration Rights Parties hold any Registrable Securities (the “Effectiveness Period”). If the Company files a Form S-1 pursuant to this Section 2(a)(i), the Company shall use its commercially reasonable efforts to convert the Form S-1 to a Form S-3 as soon as practicable after the Company is eligible to use Form S-3 (it being agreed that the Company shall file an automatic shelf registration statement that shall become effective upon filing with the SEC pursuant to Rule 462(e) if Rule 462(e) is available to the Company for the resale of the Registrable Securities).

 

(ii) Notification and Distribution of Materials. The Company shall notify the Registration Rights Parties in writing of the effectiveness of the Resale Shelf Registration Statement promptly and shall furnish to them, without charge, such number of copies of the Resale Shelf Registration Statement (including any amendments, supplements and exhibits), the prospectus contained therein (including each preliminary prospectus and all related amendments and supplements) and any documents incorporated by reference in the Resale Shelf Registration Statement or such other documents as the Registration Rights Parties may reasonably request in order to facilitate the sale of the Registrable Securities in the manner described in the Resale Shelf Registration Statement.

 

C-9

 

 

(iii) Amendments and Supplements; Subsequent Shelf Registration. Subject to the provisions of Section 2(a)(i) above, the Company shall promptly prepare and file with the Commission from time to time such amendments and supplements to the Resale Shelf Registration Statement and prospectus used in connection therewith or any document that is to be incorporated by reference into such Resale Shelf Registration Statement or prospectus as may be reasonably requested by a Registration Rights Party, as may be necessary to keep the Resale Shelf Registration Statement effective or as may be required by the rules, regulations or instructions applicable to the form used by the Company or by the Securities Act or rules and regulations thereunder with respect to the disposition of all Registrable Securities during the Effectiveness Period. If any Resale Shelf Registration Statement ceases to be effective under the Securities Act for any reason during the Effectiveness Period, the Company shall use its reasonable best efforts to as promptly as practicable cause such Resale Shelf Registration Statement to again become effective under the Securities Act (including obtaining the prompt withdrawal of any order suspending the effectiveness of such Resale Shelf Registration Statement), and shall use its reasonable best efforts to as promptly as practicable amend such Resale Shelf Registration Statement in a manner reasonably expected to result in the withdrawal of any order suspending the effectiveness of such Shelf or file an additional Registration Statement as a Shelf Registration (a “Subsequent Shelf Registration”) registering the resale of all outstanding Registrable Securities from time to time, and pursuant to any method or combination of methods legally available to, and requested by, any Registration Rights Party; provided that the Effectiveness Period shall be extended by the amount of time during which any of the Registrable Securities of the Registration Parties are not registered under an effective Resale Shelf Registration Statement. If a Subsequent Shelf Registration is filed, the Company shall use its reasonable best efforts to (i) cause such Subsequent Shelf Registration to become effective under the Securities Act as promptly as practicable after the filing thereof and (ii) keep such Subsequent Shelf Registration continuously effective, in compliance with the provisions of the Securities Act and available for use during the Effectiveness Period. Any references herein to Resale Shelf Registration Statement shall include any Subsequent Shelf Registration.

 

(iv) Suspensions. The Registration Rights Parties acknowledge and agree that upon receipt of written notice from the Company, the Company may suspend the use of the Resale Shelf Registration Statement if it determines that in order for such registration statement not to contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading, an amendment thereto would be needed to include information that would at that time not otherwise be required to be disclosed in a current, quarterly or annual report under the Exchange Act and the Company has a bona fide business purpose for not making such information public, provided, that, (i) the Company shall suspend the use of the Resale Shelf Registration Statement for the shortest period of time, but in no event for a period of more than 60 consecutive days or more than a total of 120 calendar days in any 360-day period; provided, however, that the Company shall not defer its obligations in this manner more than three times in any 360-day period; (ii) the Company shall suspend the use of any other Registration Statement and prospectus and shall not sell any securities for its own account or that of any other stockholder, in each case during such time as the Resale Shelf Registration Statement is suspended pursuant to this Section 2.1(a)(iv); and (iii) the Company shall use commercially reasonable efforts to make such Resale Shelf Registration Statement available for the sale by the Registration Rights Parties of such securities promptly thereafter. The Company shall immediately notify the Registration Rights Parties in writing of (i) the date on which such suspension will begin pursuant to this Section 2(a)(iv) and (ii) the date on which such suspension period will end pursuant to this Section 2(a)(iv). The Effectiveness Period shall be extended by the amount of time during which the use of any Registration Statement is suspended pursuant to this Section 2(a)(iv).

 

C-10

 

 

(v) Registration of Additional Registrable Securities. If a Resale Shelf Registration Statement is then effective, within seven Business Days after the Company has received a written request from a Permitted Transferee holding Registrable Securities not covered by an effective Resale Shelf Registration Statement, the Company shall file a prospectus supplement or amendment to the Resale Shelf Registration Statement to add such Permitted Transferee as a selling stockholder in such Resale Shelf Registration Statement to the extent permitted under the rules and regulations promulgated by the Commission.

 

(vi) Shelf Takedown. Subject to the other applicable provisions of this Agreement, at any time that any Resale Shelf Registration Statement is effective, if a Registration Rights Party delivers a notice to the Company (a “Take-Down Notice”) stating that it intends to effect a sale or distribution of all or part of its Registrable Securities included by it on any Resale Shelf Registration Statement (a “Shelf Offering”) and stating the number of Registrable Securities to be included in such Shelf Offering, then, subject to the other applicable provisions of this Agreement, the Company shall, as promptly as practicable, amend or supplement the Resale Shelf Registration Statement as may be necessary in order to enable such Registrable Securities to be sold and distributed pursuant to the Shelf Offering.

 

(b) Underwritten Takedown.

 

(i) At any time and from time to time after the Resale Shelf Registration Statement has been declared effective by the Commission, the Registration Rights Parties may request (such requesting Person, the “Demanding Holder”) to sell all or any portion of their Registrable Securities in an Underwritten Offering that is registered pursuant to the Resale Shelf Registration Statement (each, an “Underwritten Shelf Takedown”); provided that the Company shall only be obligated to effect an Underwritten Shelf Takedown if (A) such offering shall include securities with a total offering price (before deduction of underwriting discounts and commissions) reasonably expected to exceed, in the aggregate, $25,000,000 or (B) if the Ares Investor is the Demanding Holder, such request shall be made with respect to all of the then outstanding Registrable Securities of the Ares Investor (clauses (A) and (B) are referred to herein as the “Underwritten Shelf Takedown Conditions”). All requests for Underwritten Shelf Takedowns shall be made by giving written notice to the Company, which shall specify the approximate number of Registrable Securities proposed to be sold in the Underwritten Shelf Takedown (an “Underwritten Demand”). Notwithstanding the foregoing, the Company is not obligated to effect more than an aggregate of three Underwritten Offerings pursuant to Section 2(b) in any 12-month period and is not obligated to effect an Underwritten Offering pursuant to this Section 2(b) within 90 days after the closing of any Underwritten Offering (the “Underwritten Offering Limitations”); provided, that an Underwritten Offering shall not be considered made for purposes of this Section 2(b)(i) unless it has resulted in the disposition by the Demanding Holder of at least 75% of the amount of Registrable Securities requested to be included. For the avoidance of doubt, Underwritten Shelf Takedowns shall include underwritten block trades. No securities other than the Registrable Securities of the Registration Rights Parties may be included in any block trade initiated by a Demanding Holder without the prior written consent of the Demanding Holder.

 

C-11

 

 

(ii) The Company shall, within three Business Days of the Company’s receipt of an Underwritten Demand (one Business Day if such offering is a block trade or a “bought deal” or “overnight transaction” (a “Bought Deal”)), notify, in writing, all other Registration Rights Parties of such demand, and each Registration Rights Party who thereafter wishes to include all or a portion of such Registration Rights Party’s Registrable Securities in such Underwritten Offering (a “Requesting Holder”) shall so notify the Company, in writing, within three Business Days (one Business Day if such offering is a block trade or a Bought Deal) after the receipt by the Registration Rights Party of the notice from the Company. Upon receipt by the Company of any such written notification from a Requesting Holder, such Requesting Holder shall be entitled to have its Registrable Securities included in the Underwritten Offering pursuant to an Underwritten Demand, subject to compliance with Section 2(b)(iii).

 

(iii) The Demanding Holder shall have the right to select the Underwriters for such offering (which shall consist of one or more reputable nationally or regionally recognized investment banks and which selection shall be subject to the consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed) and to agree to the pricing and other terms of such offering. In connection with an Underwritten Shelf Takedown, the Company and all Requesting Holders proposing to distribute their Registrable Securities through an Underwritten Offering under this Section 2(b) shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the Demanding Holders initiating the Underwritten Offering, and the Company shall take such other actions as are reasonably required in order to expedite or facilitate the disposition of the Registrable Securities in such Underwritten Shelf Takedown.

 

(iv) If the managing Underwriter for an Underwritten Shelf Takedown advises the Demanding Holder that in its opinion the inclusion of all securities requested to be included in the Underwritten Shelf Takedown (whether by the Demanding Holder, the Requesting Holders, the Company or any other Person) may materially and adversely affect the price, timing, distribution or success of the offering (a “Negative Impact”), then all such securities to be included in such Underwritten Shelf Takedown shall be limited to the securities that the managing Underwriter believes can be sold without a Negative Impact and shall be allocated as follows: (A) first, the Registrable Securities of the Demanding Holder and the Requesting Holders (on a pro rata basis based on the number of shares of Registrable Securities properly requested by such Demanding Holder and Requesting Holders to be included in the Underwritten Shelf Takedown), (B) second, to the extent that any additional securities can, in the opinion of such managing Underwriter, be sold without a Negative Impact, to the parties to the Existing Registration Rights Agreement who properly requested to include their securities in such Underwritten Shelf Takedown pursuant to such agreement in accordance with the terms of such agreement, (C) third, to the extent that any additional securities can, in the opinion of the managing Underwriter, be sold without a Negative Impact, to the Company and (D) fourth, to the extent that any additional securities can, in the opinion of the managing Underwriter, be sold without a Negative Impact, to the Company’s other securityholders who properly requested to include their securities in such Underwritten Shelf Takedown pursuant to an agreement, other than this Agreement, with the Company that provides for registration rights in accordance with the terms of such agreement.

 

C-12

 

 

(v) Withdrawal Rights. Any Demanding Holder initiating an Underwritten Shelf Takedown for any or no reason whatsoever may withdraw from such Underwritten Shelf Takedown by giving written notice to the Company prior to the public announcement of the Underwritten Shelf Takedown by the Company; provided that a Registration Rights Party not so withdrawing may elect to have the Company continue an Underwritten Shelf Takedown if the Underwritten Shelf Takedown Conditions would still be satisfied. Following the receipt of any withdrawal notice, the Company shall promptly forward such notice to any other Registration Rights Party that had elected to participate in such Underwritten Shelf Takedown. A withdrawn Underwritten Shelf Takedown will be considered as an Underwritten Offering for purposes of the Underwritten Offering Limitations unless (i) the Demanding Holder pays all Registration Expenses in connection with such withdrawn Underwritten Shelf Takedown, (ii) subsequent to the delivery of the Underwritten Demand to the Company, material adverse information regarding the Company is disclosed that was not known by the Demanding Holder at the time the Underwritten Demand was made, (iii) subsequent to the delivery of the Underwritten Demand to the Company, the Company suspends the use of the Resale Shelf Registration Statement pursuant to Section 2(a)(iv) hereto, or (iv) the Company has not complied in all material respects with its obligations hereunder required to have been taken prior to such withdrawal.

 

(c) Piggyback Rights.

 

(i) Piggyback Rights. Subject to Section 7, at any time and from time to time after the Closing Date, if the Company proposes to (A) file a registration statement under the Securities Act with respect to an offering of Equity Securities of the Company or securities or other obligations exercisable or exchangeable for or convertible into Equity Securities of the Company (other than a form not available for registering the resale of the Registrable Securities to the public), for its own account or for the account of a stockholder of the Company that is not a party to this Agreement, or (B) conduct an offering of Equity Securities of the Company or securities or other obligations exercisable or exchangeable for or convertible into Equity Securities of the Company, for its own account or for the account of a stockholder that is not a party to this Agreement (such offering referred to in clause (A) or (B), a “Piggyback Offering”), the Company shall promptly give written notice (the “Piggyback Notice”) of such Piggyback Offering to the Registration Rights Parties. The Piggyback Notice shall include the amount and type of securities to be included in such offering, the expected date of commencement of marketing efforts and any proposed managing underwriter and shall offer the Registration Rights Parties the opportunity to include in such Piggyback Offering such amount of Registrable Securities as each Registration Rights Party may request. Subject to Section 2(c)(ii) and Section 2(c)(iv), the Company will include in each Piggyback Offering all Registrable Securities for which the Company has received written requests for inclusion within ten days after the date the Piggyback Notice is given (provided that, in the case of a block trade or a Bought Deal, such written requests for inclusion must be received within one Business Day after the date the Piggyback Notice is given); provided, however, that, in the case of a Piggyback Offering in the form of a “takedown” under a Shelf Registration Statement, such Registrable Securities are covered by an existing and effective Shelf Registration Statement that may be utilized for the offering and sale of the Registrable Securities requested to be offered. All Registration Rights Parties proposing to distribute their securities through a Piggyback Offering, as a condition for inclusion of their Registrable Securities therein, shall agree to enter into an underwriting agreement with the Underwriters for such Piggyback Offering; provided, however, that the underwriting agreement is in customary form.

 

C-13

 

 

(ii) Company Right to Abandon or Delay. If at any time after giving the Piggyback Notice and prior to the time sales of securities are confirmed pursuant to the Piggyback Offering, the Company determines for any reason not to register or delay the Piggyback Offering, the Company may, at its election, give notice of its determination to all Registration Rights Parties, and in the case of such a determination, will be relieved of its obligation set forth in Section 2(c) in connection with the abandoned or delayed Piggyback Offering, without prejudice. Notwithstanding any such withdrawal, the Company shall pay all expenses incurred by the holders of Registrable Securities in connection with such Piggyback Offering as provided in Section 2(d)(xi).

 

(iii) Withdrawal Rights. Any Registration Rights Party requesting to be included in a Piggyback Offering may withdraw its request for inclusion by giving written notice to the Company, (A) at least three Business Days prior to the anticipated effective date of the registration statement filed in connection with such Piggyback Offering if the registration statement requires acceleration of effectiveness or (B) in all other cases, one Business Day prior to the anticipated date of the filing by the Company under Rule 424 of a supplemental prospectus (which shall be the preliminary supplemental prospectus, if one is used in the “takedown”) with respect to such offering; provided, however, that the withdrawal will be irrevocable and, after making the withdrawal, a Registration Rights Party will no longer have any right to include its Registrable Securities in that Piggyback Offering.

 

(iv) Unlimited Piggyback Registration Rights. For the avoidance of doubt, any Registration or Underwritten Offering pursuant to Section 2(c) of this Agreement shall not be counted as an Underwritten Offering under Section 2(b) of this Agreement.

 

(v) Reduction of Offering. If the managing Underwriter for a Piggyback Offering advises the Company that in its opinion the inclusion of all securities requested to be included in such Piggyback Offering (whether by the Company, the Registration Rights Parties or any other Person) may have a Negative Impact, then all such shares to be included therein shall be limited to the shares that the managing Underwriter believes can be sold without a Negative Impact and shall be allocated as follows:

 

C-14

 

 

(A) If the Piggyback Offering is initiated by the Company for its own account: (1) first, to the Company, (2) second, to the extent that any additional shares can, in the opinion of such managing Underwriter, be sold without a Negative Impact, to the parties to the Existing Registration Rights Agreement who properly requested to include their securities in such Piggyback Offering pursuant to such agreement in accordance with the terms of such agreement, (3) third, to the extent that any additional shares can, in the opinion of such managing Underwriter, be sold without a Negative Impact, to the Registration Rights Parties who properly requested to include their Registrable Securities in such Piggyback Offering (on a pro rata basis based on the number of Registrable Securities properly requested by such Persons to be included in the Piggyback Offering), and (4) fourth, to the extent that any additional shares can, in the opinion of such managing Underwriter, be sold without a Negative Impact, to other securityholders who properly requested to include their securities in such Piggyback Offering pursuant to an agreement, other than this Agreement and other than the Existing Registration Rights Agreement, with the Company that provides for registration rights in accordance with the terms of such agreement; and

 

(B) If the Piggyback Offering is initiated by the Company for the account of a Person pursuant to an agreement, other than this Agreement, with the Company that provides for registration rights: (1) first, to such Person, (2) second, to the extent that any additional shares can, in the opinion of such managing Underwriter, be sold without a Negative Impact, to the parties to the Existing Registration Rights Agreement who properly requested to include their securities in such Piggyback Offering pursuant to such agreement in accordance with the terms of such agreement, (3) third, to the extent that any additional shares can, in the opinion of such managing Underwriter, be sold without a Negative Impact, to the Registration Rights Parties who properly requested to include their Registrable Securities in such Piggyback Offering (on a pro rata basis based on the number of Registrable Securities properly requested by such Persons to be included in the Piggyback Offering), (4) fourth, to the extent that any additional shares can, in the opinion of such managing Underwriter, be sold without a Negative Impact, to the Company, and (5) fifth, to the extent that any additional shares can, in the opinion of such managing Underwriter, be sold without a Negative Impact, to other securityholders who properly requested to include their securities in such Piggyback Offering pursuant to an agreement, other than this Agreement and other than the Existing Registration Rights Agreement, with the Company that provides for registration rights in accordance with the terms of such agreement.

 

C-15

 

 

(d) Registration and Offering Procedures.

 

(i) Notification. After the effectiveness of the Resale Shelf Registration Statement, the Company shall promptly notify the Registration Rights Parties with Registrable Securities included in such Registration Statement: (A) when the Resale Shelf Registration Statement becomes effective; (B) when any post-effective amendment to the Resale Shelf Registration Statement becomes effective; (C) the issuance or threatened issuance by the Commission of any stop order (and the Company shall take all actions required to prevent the entry of such stop order or to remove it if entered); and (D) any request by the Commission for any amendment or supplement to the Resale Shelf Registration Statement or any prospectus relating thereto or for additional information or of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of the securities covered by the Resale Shelf Registration Statement, such prospectus will not contain an 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 not misleading, and promptly make available to the holders of Registrable Securities included in the Resale Shelf Registration Statement any such supplement or amendment. Prior to filing with the Commission a Registration Statement or prospectus or any amendment or supplement thereto, including all exhibits thereto and documents incorporated by reference therein, the Company shall furnish to the Underwriters, if any, the holders of Registrable Securities included in such Registration Statement and to the legal counsel for any such holders, copies of all such documents proposed to be filed and such other documents as the Underwriters or such holders or their counsel may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such holders sufficiently in advance, but in no event later than at least three calendar days in advance, of filing to provide such Underwriters, such holders and legal counsel with a reasonable opportunity to review such documents and comment thereon.

 

(ii) In no event shall any Registration Rights Party be identified as a statutory underwriter in a Registration Statement unless in response to a comment or request from the staff of the Commission; provided, however, that if the Commission requests that any Registration Rights Party be identified as a statutory underwriter in a Registration Statement, the Registration Rights Party will have an opportunity to withdraw from the Registration Statement.

 

(iii) If the Commission prevents the Company from including any or all of the Registrable Securities in the Resale Shelf Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Registrable Securities by the applicable shareholders or otherwise, (A) such Registration Statement shall register for resale such number of Registrable Securities that is equal to the maximum number as is permitted by the Commission, (B) the number of Registrable Securities to be registered for each Registration Rights Party shall be reduced pro rata among all securities registered thereunder, and (C) promptly inform each of the Registration Rights Parties and as expeditiously as possible after being permitted to register additional Registrable Securities under Rule 415 under the Securities Act, the Company shall amend such Resale Shelf Registration Statement or file a new Resale Shelf Registration Statement to register such additional Registrable Securities and cause such amendment or new Resale Shelf Registration Statement to become effective as expeditiously as possible; provided, however, that prior to filing such amendment or new Resale Shelf Registration Statement, the Company shall use its reasonable best efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the Commission staff (the “SEC Guidance”), including without limitation, the Manual of Publicly Available Telephone Interpretations D.29; provided further that the Effectiveness Period shall be extended by the amount of time during which any of the Registrable Securities of the Registration Parties are not registered as a result of the foregoing.

 

C-16

 

 

(iv) Securities Laws Compliance and FINRA. The Company shall use its reasonable best efforts to (A) register or qualify the Registrable Securities covered by the Resale Shelf Registration Statement under such securities or “blue sky” Laws of such jurisdictions in the United States as the holders of Registrable Securities included in the Resale Shelf Registration Statement (in light of their intended plan of distribution) may reasonably request and (B) take such action necessary to cause such Registrable Securities covered by the Resale Shelf Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph or subject itself to taxation in any such jurisdiction where it is not then otherwise so subject. The Company shall cooperate with the holders of the Registrable Securities and the Underwriters, if any, or agent(s) participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA.

 

(v) Cooperation. The Company shall (A) enter into such agreements (including an underwriting agreement in customary form) and take such other actions as the Registration Rights Parties included in a Registration Statement or the Underwriters, if any, shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities, including customary indemnification, and (B) provide reasonable cooperation, including taking such actions as may be reasonably requested by the holders of the Registrable Securities in connection with such Registration and causing at least one executive officer and a senior financial officer to attend and participate in “road shows” and other information meetings organized by the Underwriters, if any, or with attorneys, accountants or potential investors, in each case as reasonably requested; provided, however, that the Company shall have no obligation to participate in more than three “road shows” in any 12-month period and such participation shall not unreasonably interfere with the business operations of the Company. The Company shall cooperate with the holders of the Registrable Securities and the Underwriters, if any, or agent(s), if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing securities to be sold under the Registration Statement and enable such securities to be in such denominations and registered in such names as the Underwriters, or agent, if any, or the holders of such Registrable Securities may request.

 

C-17

 

 

(vi) Opinions and Comfort Letters. The Company shall use its reasonable best efforts to obtain and, if obtained, furnish an opinion and negative assurances letter of outside counsel for the Company, dated as of a date reasonably requested by a Registration Rights Party, to the extent such opinions or letters are customary, or, in the event of an Underwritten Public Offering, as of the date of the closing under the underwriting agreement, and addressed to the holders of Registrable Securities participating in such offering (to the extent required or customary in such offering), the placement agent, sales agent or Underwriter, if any, reasonably satisfactory in form and substance to such party, covering such legal matters as are customarily included in such opinions and negative assurances letters. With respect to any Underwritten Offering pursuant to this Agreement, the Company shall use its reasonable best efforts to obtain and, if obtained, furnish a “comfort” letter, dated the date of the underwriting agreement and another dated the date of the closing under the underwriting agreement and addressed to the Underwriters and signed by the independent public accountants who have certified the Company’s financial statements included or incorporated by reference in the applicable Registration Statement, reasonably satisfactory in form and substance to such Underwriters.

 

(vii) Transfer Agent. The Company shall provide and maintain a transfer agent and registrar for the Registrable Securities.

 

(viii) Records. Upon execution of confidentiality agreements, the Company shall make available for inspection by the holders of Registrable Securities included in such Registration Statement, any Underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other professional retained by any holder of Registrable Securities included in such Registration Statement or any Underwriter, all financial and other records, pertinent corporate documents and properties of the Company, as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, Directors (as defined below) and employees to supply all information reasonably requested by any of them in connection with such Registration Statement.

 

(ix) Earnings Statement. The Company shall comply with all applicable rules and regulations of the Commission and the Securities Act, and make available to its shareholders, as soon as practicable, an earnings statement covering a period of 12 months, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission).

 

(x) Listing. The Company shall use its reasonable best efforts to cause all Registrable Securities included in any Registration Statement to be listed on such exchanges or otherwise designated for trading in the same manner as similar securities issued by the Company are then listed or designated.

 

C-18

 

 

(xi) Registration Expenses. The Company shall bear all costs and expenses incurred in connection with the Resale Shelf Registration Statement pursuant to Section 2(a), any Resale Shelf Takedown pursuant to Section 2(a), any Underwritten Shelf Takedown pursuant to Section 2(b), any Piggyback Offering pursuant to Section 2(c), and all expenses incurred in performing or complying with its other obligations under this Agreement, whether or not the Resale Shelf Registration Statement becomes effective, including, without limitation: (A) all registration and filing fees; (B) fees and expenses of compliance with securities or “blue sky” Laws (including fees and disbursements of counsel in connection with blue sky qualifications of the Registrable Securities); (C) printing, messenger and delivery expenses; (D) the Company’s internal expenses (including, without limitation, all salaries and expenses of its officers and employees); (E) the fees and expenses incurred in connection with the listing of the Registrable Securities as required by the terms hereof; (F) FINRA fees; (G) fees and disbursements of counsel for the Company and fees and expenses for independent certified public accountants retained by the Company; (H) the fees and expenses of any special experts retained by the Company in connection with such registration; (I) the reasonable fees and expenses of one legal counsel selected by the holders of a majority-in-interest of the Registrable Securities included in such registration or Transfer and (J) the costs and expenses of the Company relating to analyst and investor presentations or any “road show” undertaken in connection with such registration and/or marketing of the Registrable Securities (collectively, the “Registration Expenses”). The Company shall have no obligation to pay any underwriting discounts or selling commissions attributable to the Registrable Securities being sold by the holders thereof, which underwriting discounts or selling commissions shall be borne by such holders, but the Company shall pay any underwriting discounts or selling commissions attributable to the securities it sells for its own account.

 

(xii) Information. The holders of Registrable Securities shall promptly provide such customary information as may reasonably be requested by the Company, or the managing Underwriter, if any, in connection with the preparation of any Registration Statement, including amendments and supplements thereto, in order to effect the registration of any Registrable Securities under the Securities Act and in connection with the Company’s obligation to comply with Federal and applicable state securities laws; provided that the Company may exclude a Registration Rights Party from the Resale Shelf Registration Statement if following the Company’s request for such information at least five Business Days prior to the anticipated filing date of the Resale Shelf Registration Statement, such Registration Rights Party unreasonably fails to furnish such information that is, in the opinion of the Company’s counsel, necessary to effect the registration under the Resale Shelf Registration Statement; provided further that the Company shall use commercially reasonable efforts to include such Registration Rights Party in the Resale Shelf Registration Statement when such Registration Statement is next amended or supplemented or a Subsequent Shelf Registration is filed if the Registration Rights Party has then timely provided such necessary information.

 

(xiii) Other Obligations. At any time and from time to time after the expiration of any lock-up period to which such shares are subject, if any, in connection with a sale or Transfer of Registrable Securities exempt from registration under the Securities Act or through any broker-dealer transactions described in the plan of distribution set forth within any prospectus and pursuant to the Registration Statement of which such prospectus forms a part, the Company shall, subject to the receipt of customary documentation required from the applicable holders in connection therewith and subject to applicable securities and other laws, (A) promptly instruct its transfer agent to remove any restrictive legends applicable to the Registrable Securities being sold or transferred and (B) cause its legal counsel to deliver the necessary legal opinions, if any, to the transfer agent in connection with the instruction under subclause (A). In addition, the Company shall cooperate reasonably with, and take such customary actions as may reasonably be requested by such holders in connection with the aforementioned sales or Transfers.

 

C-19

 

 

(xiv) Legend Removal Obligations. If any Registration Rights Party (A) proposes to sell or Transfer any Registrable Securities exempt from Section 5 of the Securities Act, pursuant to an effective Registration Statement, or pursuant to Rule 144, including in each case in connection with any trading program under Rule 10b5-1 of the Exchange Act, (B) holds Registrable Securities that are eligible for resale pursuant to Rule 144 without the requirement for the Company to be in compliance with the current public information requirement under Rule 144 and without volume or manner-of-sale restrictions applicable to the sale or transfer of such Shares or (C) holds Registrable Securities which do not require a legend under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission) as determined in good faith by counsel to the Company or set forth in a legal opinion delivered by nationally recognized counsel to the Registration Rights Party, then the Company shall, at the sole expense of the Company, promptly, and in any event no later than within two trading days, take any and all actions necessary or reasonably requested by such Registration Rights Party to facilitate and permit the removal of any restrictive legends from such Registrable Securities, including, without limitation, the delivery of any opinions of counsel or instruction letters to the transfer agent as are requested by the same. Each Registration Rights Party agrees to provide the Company, its counsel or the transfer agent with the evidence reasonably requested by it to cause the removal of such legends, including, as may be appropriate, any information the Company reasonably deems necessary to determine that such legend is no longer required under the Securities Act or applicable state Laws.

 

(xv) Rule 144. With a view to making available to the Registration Rights Parties the benefits of Rule 144 that may, at such times as Rule 144 is available to shareholders of the Company, permit the Registration Rights Parties to sell securities of the Company to the public without registration, the Company agrees to: (A) make and keep public information available, as those terms are understood and defined in Rule 144, for so long as necessary to permit sales that would otherwise be permitted by this Agreement pursuant to Rule 144, 144A or Regulation S under the Securities Act, as such rules may be amended from time to time or any similar rule or regulation hereafter adopted by the Commission; (B) file with the Commission in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act so long as the Company remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144; and (C) furnish to each Registration Rights Party so long as such Registration Rights Party owns Registrable Securities, within two Business Days following its receipt of a written request, (I) a written statement by the Company, if true, that it has complied with the reporting requirements of Rule 144, the Securities Act and the Exchange Act, (II) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company (it being understood that the availability of such report on the Commission’s EDGAR system shall satisfy this requirement) and (III) such other information as may be reasonably requested in writing to permit the Registration Rights Party to sell such securities pursuant to Rule 144 without registration.

 

C-20

 

 

(xvi) In Kind Distributions. If any holder of Registrable Securities seeks to effectuate an in-kind distribution of all or part of its Registrable Securities to its direct or indirect equityholders, the Company will reasonably cooperate with and assist such holder, such equityholders and the Company’s transfer agent to facilitate such in-kind distribution in the manner reasonably requested by such holder (including the delivery of instruction letters by the Company or its counsel to the Company’s transfer agent, the delivery of customary legal opinions by counsel to the Company and the delivery of Registrable Securities without restrictive legends, to the extent no longer applicable).

 

(xvii) No Inconsistent Agreements; Additional Rights. Neither the Company nor any of its Subsidiaries shall hereafter enter into, and neither the Company nor any of its Subsidiaries is currently a party to, any agreement with respect to its securities that is inconsistent with the rights granted to the holders of Registrable Securities by this Agreement. Without the prior written consent of each Registration Rights Party, neither the Company nor any of its Subsidiaries shall grant to any Person or agree to otherwise become obligated in respect of the rights of registration in the nature or substantially in the nature of those set forth in Section 2 of this Agreement that would have priority over or parity with the Registrable Securities with respect to the inclusion of such securities in any registration, and the Company hereby represents and warrants that, as of the date hereof, no registration or similar rights have been granted to any other Person other than pursuant to this Agreement, the Existing Registration Rights Agreement and the Subscription Agreements (as defined in the Business Combination Agreements); provided that, without the prior written consent of each Registration Rights Party, neither the Existing Registration Rights Agreement nor the Subscription Agreements may be amended in a way that would result in such agreements being inconsistent with or violating the rights granted to the Registration Rights Parties by this Agreement or resulting in the holders thereunder having rights that are more favorable to such holders or prospective holders than the rights granted to the Registration Rights Parties hereunder; provided further that no additional parties shall be granted registration rights under the Existing Registration Rights Agreement (other than “Permitted Transferees” as defined therein) without the prior written consent of the Registration Rights Parties. For the avoidance of doubt, the Registration Rights Party acknowledge and agree that the Company may include securities of the parties to the Existing Registration Rights Agreement and the Subscription Agreement on the Resale Shelf Registration Statement.

 

(xviii) 10b5-1 Plan. In no event shall the Company or any officer unreasonably withhold, condition or delay approval of any trading plan under Rule 10b5-1 of the Exchange Act presented by a Registration Rights Party; and for the avoidance of doubt, within five calendar days of receipt of any such Rule 10b5-1 plan, the Company shall review and approve such plan or, after consulting with legal counsel, notify the Registration Rights Party of the reasons counsel believes it cannot approve such plan.

 

C-21

 

 

(e) Indemnification.

 

(i) The Company agrees to indemnify and hold harmless, to the extent permitted by law, each Registration Rights Party, its directors, and officers, employees, and agents, and each person who controls the Registration Rights Party (within the meaning of the Securities Act or the Exchange Act) and each affiliate of the Registration Rights Party (within the meaning of Rule 405 under the Securities Act) from and against any and all out-of-pocket losses, claims, damages, liabilities and expenses (including, without limitation, any reasonable and documented attorneys’ fees and expenses incurred in connection with defending or investigating any such action or claim) caused by (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement filed pursuant to the terms of this Agreement, prospectus included in any such Registration Statement or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any violation or alleged violation by the Company of any federal, state, common or other law, rule or regulation applicable to the Company in connection with such registration, including the Securities Act, any state securities or “blue sky” laws or any rule or regulation thereunder in connection with such registration, except insofar as the same are caused by or contained in any information furnished in writing to the Company by or on behalf of the Registration Rights Party expressly for use therein.

 

(ii) Each Registration Rights Party agrees, severally and not jointly with the other parties to this Agreement, to indemnify and hold harmless the Company, its directors and officers and agents and each person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expenses (including, without limitation, reasonable and documented attorneys’ fees) resulting from any untrue statement of material fact contained in any Registration Statement filed pursuant to the terms of this Agreement, prospectus included in any such Registration Statement or preliminary prospectus or any amendment thereof or supplement thereto or any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any information or affidavit so furnished in writing by or on behalf of the Registration Rights Party expressly for use therein; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Registration Rights Parties. In no event shall the liability of the Registration Rights Party be greater in amount than the dollar amount of the net proceeds received by the Registration Rights Party upon the sale of the Registrable Securities giving rise to such indemnification obligation.

 

C-22

 

 

(iii) Any person entitled to indemnification herein shall (A) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (B) unless in such indemnified party’s reasonable judgment a conflict of interest may exist between such indemnified and indemnifying parties with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of legal counsel to any indemnified party a conflict of interest exists between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.

 

(iv) The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, employee, agent, affiliate or controlling person of such indemnified party and shall survive the transfer of the Registrable Securities.

 

(v) If the indemnification provided under this Section 2(e) from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by or on behalf of, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 2(e)(v) from any person who was not guilty of such fraudulent misrepresentation. Any contribution pursuant to this Section 2(e)(v) by any Registration Rights Party shall be limited in amount to the amount of net proceeds received by such Registration Rights Party from the sale of Registrable Securities pursuant to a Registration Statement filed pursuant to the terms of this Agreement. Notwithstanding anything to the contrary herein, in no event will any party be liable for consequential, special, exemplary or punitive damages in connection with this Agreement.

 

C-23

 

 

3. Board of Directors.

 

(a) Board Representation. The Board shall initially consist of seven directors designated by the Stockholder Parties and the Company pursuant to and in accordance with the terms hereof (each, a “Director”). Subject to the terms and conditions of this Agreement, from and after the date of this Agreement, the Company and each Stockholder Party shall take all Necessary Action to cause, effective beginning immediately following the Closing Date, the Board to be comprised of seven Directors (including three independent Directors as so designated on Exhibit B hereto) who, initially, shall be the Persons identified on Exhibit B hereto. From and after the Closing Date, until the earlier of [●]’s retirement or resignation from the Board, each Stockholder Party shall take all Necessary Action to cause [●] to be the chairperson of the Board.

 

(b) Company Directors.

 

(i) [During the term of this Agreement], in advance of each annual meeting of stockholders (or other election of Directors), the Board shall be entitled to designate, nominate and include on the Company’s slate of director nominees three independent Directors (the “Company Directors” and each a “Company Director”) to serve on the Board, who shall initially be the Persons designated as the Company Directors on Exhibit B hereto. Prior to the Aria Fall-Away Date, the Board shall consult with the Aria Holders concerning the Persons to be designated by the Board as the Company Directors for such annual meeting or other election of Directors.

 

(c) Aria Directors.

 

(i) Prior to the Aria Fall-Away Date, in advance of each annual meeting of stockholders (or other election of Directors), subject to Section 3(c)(ii) and Section 3(g), the holders of a majority of the Common Stock held by the Ares Investor, shall have the right to designate, and the Board will take all Necessary Action to nominate and include on the Company’s slate of director nominees for such annual meeting or other election of Directors, one Director (the “Aria Director”), who shall initially be the Person designated as the Aria Director on Exhibit B hereto. Any such Aria Director shall in no event be considered to be an Affiliate of the Ares Investor based solely on its status as a Director and the Ares Investor shall in no event be imputed or deemed to have material non-public information, including under the Company’s insider trading policy, as a result of its rights under Section 3 of this Agreement.

 

(ii) Notwithstanding the foregoing, on the first date (the “Aria Fall-Away Date”) after the Closing Date that (A) the Ares Investor, collectively, fails to hold at least 50% of the Registrable Securities held by it on the Closing Date, the right of the Ares Investor to designate the Aria Director shall cease, the term of the then current Aria Director shall thereupon automatically end. The parties hereto will take all Necessary Action such that the Person formerly serving as the Aria Director is no longer a Director from and after the Aria Fall-Away Date.

 

C-24

 

 

(d) RAC Sponsor Directors.

 

(i) [During the term of this Agreement], in advance of each annual meeting of stockholders (or other election of Directors), subject to Section 3(g), the holders of a majority of the Company Interests held by the RAC Sponsor Holders, shall have the right to designate, and the Board will take all Necessary Actions to nominate and include on the Company’s slate of director nominees for such annual meeting or other election of Directors, two Directors (the “RAC Sponsor Directors”), who shall initially be the Persons designated as such on Exhibit B hereto.

 

(e) Chief Executive Officer. During the term of this Agreement, prior to each annual meeting (or other election of Directors), the Board will take all Necessary Action to nominate and include on the Company’s slate of director nominees for such annual meeting or other election of Directors, the Person then serving as the Company’s chief executive officer, who shall initially be Nicholas Stork (such Person, the “CEO Director”).

 

(f) Expansion of the Board to Maintain Independent Majority. Notwithstanding the foregoing, if neither of the RAC Sponsor Directors are reasonably determined, based on the advice of the Company’s counsel, to be “independent directors” for purposes of the applicable stock exchange listing standards, the Board shall be permitted in its sole discretion to increase the size of the Board to nine total Directors, and to fill the two additional directorships with two additional independent Directors nominated by the Board.

 

(g) Additional Lapse of Designation Rights. Notwithstanding anything to the contrary set forth in this Agreement, the right of any Stockholder Designating Party to designate nominees for appointment to the Board as set forth in Sections 3(b)-(d) shall terminate if at any time (i) such Stockholder Designating Party or any of its Affiliates becomes a Competitor of the Company, (ii) such Stockholder Designating Party or any of its Affiliates commences any legal Proceeding against the Company, its Subsidiaries, any other member of the Board of Directors or any officer of the Company; or (iii) such Stockholder Designating Party or any of its Affiliates exercises the right to designate or appoint a member of or observer to the board of directors (or similar governing body) of any Competitor.

 

(h) Resignation; Removal; Vacancies. Any member of the Board designated pursuant to Sections 3(b)-(d) may resign at any time as provided in the Bylaws. The parties hereto agree to not vote any Company Interests held by them to remove any member of the Board designated pursuant to Sections 3(b)-(d) except (i) at the direction of the Stockholder Designating Party who designated such member of the Board, or (ii) upon the affirmative written vote or written consent of a majority of the remaining Directors upon death, disability, Permanent Incapacity or disqualification of such Director. The Stockholder Designating Party who designated the Director who resigned or who was so removed (or such Stockholder Designating Party’s successors or Permitted Transferees) shall, for so long as such Stockholder Designating Party (or such Stockholder Designating Party’s successors Permitted Transferees) is entitled to designate such nominee pursuant to such sections, have the exclusive right to designate a replacement director to fill the vacancy created by such resignation or removal, and the Board shall take all Necessary Actions to cause such individual to be appointed by the Board to fill the vacancy resulting from such removal or resignation.

 

C-25

 

 

(i) Voting. Each of the Company, RAC Sponsor, RAC Sponsor Holders and the Ares Investor agree not to take, directly or indirectly, any actions (including, in their capacities as stockholders of the Company, removing Directors in a manner inconsistent with this Agreement) that would knowingly frustrate, obstruct or otherwise affect the provisions of this Agreement and the intention of the parties hereto with respect to the composition of the Board as herein stated. Each of the RAC Sponsor Holders, the Archaea Holders and the Ares Investor (i) shall vote all Voting Shares held by such holder in such manner as may be necessary to elect and/or maintain in office as members of the Board those individuals designated in accordance with this Section 3 and (ii) further agrees until the Aria Fall-Away Date not to grant, or enter into a binding agreement with respect to, any proxy to any Person in respect of such holders’ equity securities of the Company that would prohibit such holder from casting such votes in accordance with this Section 3. From and after the lapse or termination of a Board designation rights set forth in Sections 3(b)-(d) in accordance with the terms of this Agreement, the Board seat that would have been designated pursuant to such designation right had such right not lapsed or terminated will be filled in accordance with the Charter and the By-laws.

 

4. Director Requirements.

 

(a) The Company’s and the Stockholder Parties’ obligations with respect to the designation and nomination of Directors pursuant to this Agreement shall in each case be subject to each Director’s satisfaction of all requirements set forth in this Section 4. Each of the Stockholder Designating Parties agrees that they shall designate only Directors that satisfy, and shall cause each of the Directors nominated by them to, at all times satisfy, the requirements set forth in this Section 4.

 

(b) Each Director (other than the CEO Director) shall, at all times, (i) satisfy all requirements regarding service as a Director under applicable Law and the listing rules of New York Stock Exchange (the “NYSE Rules”), regardless of whether the NYSE Rules then apply to the Company, solely to the extent as has been or will be applicable to all other non-executive Directors, and all other criteria and qualifications for service as a Director applicable to all non-executive Directors and (ii) satisfy any other requirements for Director qualification adopted by the Board and generally applicable to non-employee Directors.

 

(c) Each Stockholder Designating Party shall cause each Director designated by it: (i) to make himself or herself reasonably available for interviews; (ii) to consent to such reference and background checks or other investigations as the Board may reasonably request in order to determine such Director meets the requirements to serve as a Director, solely to the extent such checks or investigations have been or will be required from all other non-executive Directors, and (iii) to provide to the Company a completed copy of the directors and officers questionnaire submitted by the Company to its other Directors in the ordinary course of business.

 

(d) No Director (or any replacement thereof designated by a Stockholder Designating Party) shall be eligible to serve as a Director if he or she (i) has been involved in any of the events enumerated under Item 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f), other than Item 401(f)(1), of Regulation S-K of the Securities Act, (ii) has been or could be disqualified as a “Bad Actor” under Section 506 of Regulation D of the Securities Act or (iii) is subject to any outstanding order, judgment, injunction, ruling, writ or decree of any governmental authority prohibiting service as a director of any public company. If a Director no longer satisfies all the requirements set forth in (A) the immediately preceding sentence and (B) Section 4(b), such Director shall automatically cease to be a Director and his or her term of office shall immediately terminate in accordance with the Charter and the By-laws, and the vacancy resulting from the termination of such Director’s term of office may be filled as provided by this Agreement and the Charter and the By-laws. Each Stockholder Designating Party agrees that, in the event a Director designated by it no longer satisfies the requirements set forth in the immediately preceding sentence, it shall take all Necessary Action to cause such Director to resign from the Board or vote its Voting Shares in favor of such Director’s removal from the Board.

 

C-26

 

 

(e) As a condition to a Director’s designation or election to the Board, pursuant to Section 3, such Director must provide to the Company:

 

(i) all information reasonably requested by the Company that is required to be or is customarily disclosed for Directors, candidates for Directors and their respective Affiliates and representatives in a proxy statement or other filings in accordance with applicable Law, the NYSE Rules or the Charter, the By-laws or other corporate governance guidelines;

 

(ii) all information reasonably requested by the Company in connection with assessing eligibility, independence and other criteria applicable to Directors or satisfying compliance and legal or regulatory obligations, solely to the extent such information has been or will be required from all other non-executive Directors; and

 

(iii) an undertaking in writing by such Director:

 

(A) to be subject to, bound by and duly comply with a standard confidentiality agreement in a form acceptable to the Company, the code of conduct and other policies of the Company, in each case, solely to the extent applicable to all other non-executive Directors; and

 

(B) at the request of the Board, to recuse himself or herself from any deliberations or discussions of the Board or any committee thereof regarding matters that, in the reasonable determination of the Board, present actual or potential conflicts of interest with the Company or other matters that, in the reasonable determination of the Board, present actual or potential conflicts of interest with the Company.

 

5. Representations and Warranties of Each Stockholder Party. Each Stockholder Party on its own behalf hereby represents and warrants to the Company and each other Stockholder Party, severally and not jointly, with respect to such Stockholder Party and such Stockholder Party’s ownership of his, her or its Stockholder Shares set forth on Exhibit A, as of the Closing Date:

 

(a) Organization; Authority. If Stockholder Party is a legal entity, Stockholder Party (i) is duly incorporated or organized, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization and (ii) has all requisite power and authority to enter into this Agreement and to perform its obligations hereunder. This Agreement has been duly authorized, executed and delivered by Stockholder Party. This Agreement constitutes a valid and binding obligation of Stockholder Party enforceable in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a Proceeding in equity or at Law).

 

C-27

 

 

(b) No Consent. Except as provided in this Agreement and for filing requirements under applicable securities laws, no consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity or other Person on the part of Stockholder Party is required in connection with the execution, delivery and performance of this Agreement, except where the failure to obtain such consents, approvals, authorizations or to make such designations, declarations or filings would not materially interfere with a Stockholder Party’s ability to perform his, her or its obligations pursuant to this Agreement. If Stockholder Party is a trust, no consent of any beneficiary is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.

 

(c) No Conflicts; Litigation. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, nor compliance with the terms hereof, will (i) conflict with or violate any provision of the organizational documents of Stockholder Party, or (ii) violate, conflict with or result in a breach of, or constitute a default (with or without notice or lapse of time or both) under any provision of, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, Lease or other agreement, instrument, concession, franchise, license, notice or Law, applicable to a Stockholder Party or to a Stockholder Party’s property or assets, except, in the case of clause (ii), that would not reasonably be expected to impair, individually or in the aggregate, Stockholder Party’s ability to fulfill its obligations under this Agreement. As of the date of this Agreement, there is no Proceeding pending or, to the knowledge of a Stockholder Party, threatened, against such Stockholder Party or any of Stockholder Party’s Affiliates or any of their respective assets or properties that would materially interfere with such Stockholder Party’s ability to perform his, her or its obligations pursuant to this Agreement or that would reasonably be expected to prevent, enjoin, alter or delay any of the transactions contemplated hereby.

 

(d) Ownership of Shares. Each Stockholder Party Beneficially Owns his, her or its Stockholder Shares free and clear of all Liens. Except pursuant to this Agreement and the Business Combination Agreements, there are no Options, warrants or other rights, agreements, arrangements or commitments of any character to which Stockholder Party is a party relating to the pledge, acquisition, disposition, Transfer or voting of Stockholder Shares and there are no voting trusts or voting agreements with respect to the Stockholder Shares. Each Stockholder Party does not Beneficially Own (i) any shares of capital stock of the Company other than the Stockholder Shares set forth on Exhibit A and (ii) any options, warrants or other rights to acquire any additional shares of capital stock of the Company or any security exercisable for or convertible into shares of capital stock of the Company, other than as set forth on Exhibit A (collectively, “Options”).

 

6. Covenants of the Company. The Company shall take any and all action reasonably necessary to effect the provisions of this Agreement and the intention of the parties hereto with respect to the terms of this Agreement.

 

(b) The Company shall (i) purchase and maintain in effect at all times directors’ and officers’ liability insurance in an amount and pursuant to terms determined by the Board to be reasonable and customary, and (ii) cause the Charter and the By-laws to at all times provide for the indemnification, exculpation and advancement of expenses of all Directors to the fullest extent permitted under applicable Law.

 

C-28

 

 

(c) The Company shall pay all reasonable and documented out-of-pocket expenses incurred by the members of the Board in connection with the performance of his or her duties as a Director and in connection with his or her attendance at any meeting of the Board. The Company shall enter into customary indemnification agreements with each member of the Board and each officer of the Company from time to time.

 

7. Lock-up.

 

(a) Subject to Sections 7(b) and 7(c), each Stockholder Party agrees that it, he or she shall not Transfer any Lock-up Shares of such Stockholder Party (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”).

 

(b) Notwithstanding the provisions set forth in Section 7(a), any Stockholder Party or its Permitted Transferees may Transfer the Lock-up Shares of such Stockholder Party (if any and to the extent applicable) during the Lock-up Period (i) to any of such Stockholder Party’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.

 

(c) Notwithstanding the provisions set forth in Section 7(a), (i) to the extent applicable, any Company Interests or shares of Common Stock issued to any Stockholder Party upon exercise of any of such Stockholder Party’s warrants to purchase Company Interests or shares of Common Stock shall be deemed to be Company Interests or shares of Common Stock, as the case may be, Beneficially Owned by such Stockholder Party as of the Closing and such exercise shall not be deemed a Transfer for purposes of this Section 7 and (ii) the retirement of shares of Class B Common Stock pursuant to Section [●] of the [Charter] shall not be deemed a Transfer for purposes of this Section 7.

 

(d) Notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the New York Stock Exchange, for any 10 trading days within any 15 trading-day period commencing 15 days after the Closing, exceeds (i) $13.50 per share, then the Aria Holders, together with their Permitted Transferees, may Transfer their applicable Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Lock-up Shares Beneficially Owned by the Aria Holders and their respective Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “Closing Shares”), (ii) $16.00 per share, then the Aria Holders, together with their Permitted Transferees, may Transfer up to an additional one-third of the Closing Shares in excess of the Closing Shares described in the foregoing clause (i) (i.e., up to two-thirds of the Closing Shares in the aggregate) without restriction under this Section 7, and (iii) $19.00 per share, then the Aria Holders, together with their Permitted Transferees, may Transfer any of the Closing Shares without restriction under this Section 7. For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of Closing Shares under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.

 

C-29

 

 

8. [Reserved].

 

9. Additional Shares. Each Ares Investor agrees that all securities of the Company that may vote in the election of the Directors that such Ares Investor purchases, acquires the right to vote or otherwise acquires Beneficial Ownership of (including by the exercise or conversion of any security exercisable or convertible for Company Interests) after the execution of this Agreement shall be subject to the terms of this Agreement and shall constitute Voting Shares for all purposes of this Agreement.

 

10. No Agreement as Director or Officer. Each Stockholder Party is signing this Agreement solely in his, her or its capacity as a stockholder of the Company. No Stockholder Party makes any agreement or understanding in this Agreement in such Stockholder Party’s capacity as a Director or officer of the Company or any of its Subsidiaries (if Stockholder Party holds such office). Nothing in this Agreement will limit or affect any actions or omissions taken by a Stockholder Party in his, her or its capacity as a Director or officer of the Company, and no actions or omissions taken in such Stockholder Party’s capacity as a Director or officer shall be deemed a breach of this Agreement. Nothing in this Agreement will be construed to prohibit, limit or restrict a Stockholder Party from exercising his or her fiduciary duties as an officer or Director to the Company or its stockholders.

 

11. Confidentiality. Each Stockholder Party agrees, and agrees to cause its Affiliates, to keep confidential and not disclose, divulge, or use for any purpose (other than to monitor its investment in the Company) any Confidential Information; provided, however, that a Stockholder Party may disclose Confidential Information to (a) its attorneys, accountants, consultants, and other professionals to the extent necessary to obtain their services in connection with monitoring its investment in the Company, (b) to any Affiliate, partner, member, equityholder or wholly-owned Subsidiary of such Stockholder Party in the ordinary course of business; provided, further, that, such Stockholder Party informs such Person that such information is confidential and directs such Person to maintain the confidentiality of such information or (c) as may otherwise be required by law, regulation, rule, court order or subpoena or by obligations pursuant to any listing agreement with any securities exchange or securities quotation system; provided that, such Stockholder Party promptly notifies the Company of such disclosure and takes reasonable steps to minimize the extent of any such required disclosure.

 

C-30

 

 

12. Specific Enforcement. Each party hereto acknowledges that the rights of each party hereto to consummate the transactions contemplated hereby are unique and recognize and affirm that in the event any of the provisions hereof are not performed in accordance with their specific terms or otherwise are breached, money damages would be inadequate (and therefore the non-breaching party hereto would have no adequate remedy at Law) and the non-breaching party hereto would be irreparably damaged. Accordingly, each party hereto agrees that each other party hereto shall be entitled to specific performance, an injunction or other equitable relief (without posting of bond or other security or needing to prove irreparable harm) to prevent breaches of the provisions hereof and to enforce specifically this Agreement to the extent expressly contemplated herein and the terms and provisions hereof in any Proceeding, in addition to any other remedy to which such Person may be entitled. Each party hereto agrees that it will not oppose the granting of specific performance and other equitable relief on the basis that the other parties hereto have an adequate remedy at Law or that an award of specific performance is not an appropriate remedy for any reason at Law or equity. The parties hereto acknowledge and agree that any party hereto seeking an injunction to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in accordance with this Section 12 shall not be required to provide any bond or other security in connection with any such injunction.

 

13. Termination.

 

(a) Following the Closing, with respect to each Stockholder Party, except as set forth in Section 13(b), (i) Section 3 (Board of Directors) and Section 4 (Director Requirements) shall terminate with respect to the Aria Holders automatically (without any action by any party hereto) on the first date on which the Aria Holders no longer have the right to designate a Director under this Agreement; and (ii) the remainder of this Agreement shall terminate automatically (without any action by any party hereto or any other Person) as to each Stockholder Party when such Stockholder Party ceases to Beneficially Own any Stockholder Shares.

 

(b) Notwithstanding the foregoing, the obligations set forth in Section 11 (Confidentiality), Section 12 (Specific Enforcement), Section 13 (Termination), Section 14 (Amendments and Waivers), Section 16 (Assignment), Section 18 (Severability) and Section 19 (Governing Law; Jurisdiction; Waiver of Jury Trial) shall survive termination of this Agreement.

 

14. Amendments and Waivers. Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by each Stockholder Party that (a) remains a party to this Agreement at such time and (b) (i) in the case of any amendment to the rights of any Stockholder Party hereunder, has such right at the time of such amendment and (ii) in the case of an amendment to any obligation of a Stockholder Party hereunder, remains subject to such obligation at the time of such amendment; provided that for the avoidance of doubt, no amendment or waiver that may adversely affect a Registration Rights Party may be entered into without the prior written consent of such Registration Rights Party. 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. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by Law.

 

C-31

 

 

15. Stock Splits, Stock Dividends, etc. In the event of any stock split, stock dividend, recapitalization, reorganization or similar transaction, any securities issued with respect to Voting Shares held by the Stockholder Parties shall become Voting Shares for purposes of this Agreement (and any securities issued with respect to Lock-up Shares held by Stockholder Parties shall become Lock-up Shares for purposes of this Agreement). During the term of this Agreement, all dividends paid to the Stockholder Parties in Company Interests or other equity or securities convertible into equity shall become Voting Shares (and all dividends on Lock-up Shares paid to the Stockholder Parties in Company Interests or other equity or securities convertible into equity shall become Lock-up Shares) for purposes of this Agreement.

 

16. Assignment.

 

(a) Neither this Agreement nor any of the rights, duties, interests or obligations of the Company hereunder shall be assigned or delegated by the Company in whole or in part.

 

(b) No Stockholder Party may assign or delegate such Stockholder Party’s rights, duties or obligations under this Agreement, in whole or in part, except in connection with a Transfer of Stockholder Shares by such Stockholder Party to a Permitted Transferee in accordance with the terms of this Agreement and this Section 16.

 

(c) This Agreement and the provisions hereof shall, subject to Section 16(b), inure to the benefit of, shall be enforceable by and shall be binding upon the respective assigns and successors in interest of each Stockholder Party, as applicable, including with respect to any of such Stockholder Party’s Stockholder Shares that are Transferred to a Permitted Transferee in accordance with the terms of this Agreement.

 

(d) No assignment in accordance with this Section 16 by any party hereto (including pursuant to a Transfer of any Stockholder Party’s Stockholder Shares) of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company or any other party hereto unless and until each of the other parties hereto shall have received (i) written notice of such assignment as provided in Section 21 and (ii) the executed written agreement, in a form reasonably satisfactory to the Company, of the assignee to be bound by the terms and provisions of this Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement) as fully as if it were an initial signatory hereto. Each Stockholder Party shall not permit the Transfer of any such Stockholder Party’s Stockholder Shares to a Permitted Transferee unless and until the Person to whom such securities are to be Transferred has executed a written agreement as provided in clause (ii) of the preceding sentence.

 

(e) Any Transfer or assignment made other than as provided in this Section 16 shall be null and void.

 

(f) Notwithstanding anything herein to the contrary, for purposes of determining the number of shares of capital stock of the Company held by each Stockholder Party, the aggregate number of shares so held by such Stockholder Party shall include any shares of capital stock of the Company Transferred or assigned to a Permitted Transferee in accordance with the provisions of this Section 16; provided, that any such Permitted Transferee has executed a written agreement agreeing to be bound by the terms and provisions of this Agreement as contemplated by Section 16(d).

 

C-32

 

 

17. Other Rights. Except as provided by this Agreement, each Stockholder Party shall retain the full rights of a holder of shares of capital stock of the Company with respect to the Stockholder Shares, including the right to vote the Stockholder Shares subject to this Agreement.

 

18. Severability. Whenever possible, each provision hereof (or part thereof) shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision hereof (or part thereof) or the application of any such provision (or part thereof) to any Person or circumstance shall be held to be prohibited by or invalid, illegal or unenforceable under applicable Law in any respect by a court of competent jurisdiction, such provision (or part thereof) shall be ineffective only to the extent of such prohibition or invalidity, illegality or unenforceability, without invalidating the remainder of such provision or the remaining provisions hereof. Furthermore, in lieu of such illegal, invalid or unenforceable provision (or part thereof), there shall be added automatically as a part hereof a legal, valid and enforceable provision as similar in terms to such illegal, invalid, or unenforceable provision (or part thereof) as may be possible.

 

19. Governing Law; Waiver of Jury Trial; Jurisdiction. The Law of the State of Delaware shall govern (a) all claims or matters related to or arising from this Agreement (including any tort or non-contractual claims) and (b) any questions concerning the construction, interpretation, validity and enforceability hereof, and the performance of the obligations imposed by this Agreement, in each case without giving effect to any choice-of-law or conflict-of-law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Delaware. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG ANY OF THE PARTIES HERETO (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS AGREEMENT, THE TRANSACTION AND/OR THE RELATIONSHIPS ESTABLISHED AMONG THE PARTIES HERETO. THE PARTIES HERETO FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. Each of the parties hereto submits to the exclusive jurisdiction of first, the Chancery Court of the State of Delaware or, in the event, but only in the event, that the Court of Chancery of the State of Delaware does not have subject matter jurisdiction, the Superior Court of the State of Delaware (Complex Commercial Division) or, if subject matter jurisdiction over the action or Proceeding is vested exclusively in the federal courts of the United States of America, the United States District Court for the District of Delaware, in any Proceeding arising out of or relating to this Agreement, agrees that all claims in respect of the Proceeding shall be heard and determined in any such court and agrees not to bring any Proceeding arising out of or relating to this Agreement in any other courts. Nothing in this Section 19, however, shall affect the right of any party hereto to serve legal process in any other manner permitted by Law or at equity. Each party hereto agrees that a final judgment in any Proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by Law or at equity.

 

C-33

 

 

20. Counterparts. This Agreement and the other agreements, certificates, instruments and documents delivered pursuant to this Agreement may be executed and delivered in one or more counterparts and by e-mail, each of which shall be deemed an original and all of which shall be considered one and the same agreement. No party hereto shall raise the use of e-mail to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of e-mail as a defense to the formation or enforceability of a Contract and each party hereto forever waives any such defense. 

 

21. Notices. All notices, demands, requests, instructions, claims, consents, waivers and other communications to be given or delivered under this Agreement shall be in writing and shall be deemed to have been given (a) when personally delivered (or, if delivery is refused, upon presentment), (b) when received by e-mail prior to 5:00 p.m. Eastern Time on a Business Day, and, if otherwise, on the next Business Day, (c) one Business Day following sending by reputable overnight express courier (charges prepaid) or (d) three days following mailing by certified or registered mail, postage prepaid and return receipt requested. Unless another address is specified in writing pursuant to the provisions of this Section 21, notices, demands and communications to the Stockholder Parties shall be sent to the addresses indicated on Exhibit A (or to such other address or addresses as the Stockholder Parties may from time to time designate in writing).

 

22. Entire Agreement. This Agreement contains the entire agreement and understanding among the parties hereto with respect to the subject matter hereof and thereof and supersede all prior and contemporaneous agreements, understandings and discussions, whether written or oral, relating to such subject matter in any way. The parties hereto have voluntarily agreed to define their rights and Liabilities with respect to the Transaction exclusively pursuant to the express terms and provisions hereof, and the parties hereto disclaim that they are owed any duties or are entitled to any remedies not set forth herein. Furthermore, this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations and no Person has any special relationship with another Person that would justify any expectation beyond that of an ordinary Person in an arm’s-length transaction.

 

23. Effectiveness. Notwithstanding anything contained in this Agreement to the contrary, this Agreement shall be effective upon the Closing. If the Business Combination Agreements are terminated in accordance with their respective terms, this Agreement shall terminate on concurrently therewith and shall be of no further force and effect.

 

 

[Remainder of page intentionally left blank; signature pages follow]

 

C-34

 

 

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

 

  [Aria Holders]
     
  By:
  Name:  
  Title:  

 

 

  [Archaea Holders]
     
  By:
  Name:  
  Title:  

 

 

  Rice Acquisition Sponsor LLC
     
  By:
  Name:  
  Title:  

 

 

  Rice Acquisition Corporation
     
  By:
  Name:  
  Title:  

 

 

  Rice Acquisition Holdings LLC
     
  By:
  Name:  
  Title:  

 

 

Exhibit C to Business Combination Agreement

 

C-35

 

 

Schedule I

 

Initial Aria Holders

 

 

 

 

 

 

 

C-36

 

 

Exhibit A

 

Stockholder Shares

 

Holder Address Class A
Units

Class B
Common Stock

Warrants Options Other Equity
Securities/Rights
to Acquire
Equity Securities

 

 

           

 

 

           

 

 

           

 

C-37

 

 

Exhibit B

 

Initial Board DIRECTORS

 

1. [COMPANY DIRECTOR]

 

2. [COMPANY DIRECTOR]

 

3. [COMPANY DIRECTOR]

 

4. [ARIA DIRECTOR]

 

5. [RAC SPONSOR DIRECTOR]

 

6. [RAC SPONSOR DIRECTOR]

 

7. [RAC SPONSOR DIRECTOR]

 

 

 C-38

 

 

 

Exhibit 2.2

 

Execution Version

 

 

Business Combination AGREEMENT

 

by and among

 

RICE ACQUISITION HOLDINGS LLC

 

LFG INTERMEDIATE CO, LLC

 

LFG Buyer co, llc

 

ARCHAEA ENERGY LLC,

 

ARCHAEA ENERGY II LLC,

 

FEZZIK MERGER SUB, LLC

 

AND

 

solely for purposes of section 2.2, Article IV, Article V, Article VI and Article XI

 

RICE ACQUISITION CORP.

 

Dated as of April 7, 2021

 

 

 

 

 

TABLE OF CONTENTS

 

      Page
Article I CERTAIN DEFINITIONS   2
  Section 1.1 Certain Definitions   2
         
Article II THE MERGER; CLOSING   23
  Section 2.1 Closing Transactions; Merger   23
  Section 2.2 Estimated Merger Consideration   24
  Section 2.3 Post-Closing Adjustment to Merger Consideration   25
  Section 2.4 Company Closing Deliveries   28
  Section 2.5 Buyer Deliveries   28
  Section 2.6 Withholding and Wage Payments   29
         
Article III REPRESENTATIONS AND WARRANTIES REGARDING THE GROUP COMPANIES   29
  Section 3.1 Organization; Authority; Enforceability   29
  Section 3.2 Non-contravention   30
  Section 3.3 Capitalization   30
  Section 3.4 Financial Statements; No Undisclosed Liabilities   31
  Section 3.5 No Material Adverse Effect   33
  Section 3.6 Absence of Certain Developments   33
  Section 3.7 Real Property   33
  Section 3.8 Tax Matters   34
  Section 3.9 Contracts   36
  Section 3.10 Intellectual Property   39
  Section 3.11 Information Supplied   41
  Section 3.12 Litigation   41
  Section 3.13 Brokerage   41
  Section 3.14 Labor Matters   41
  Section 3.15 Employee Benefit Plans   43
  Section 3.16 Insurance   45
  Section 3.17 Compliance with Laws; Permits   45
  Section 3.18 Environmental Matters   46
  Section 3.19 Regulatory Status   46
  Section 3.20 Title to and Sufficiency of Assets   46
  Section 3.21 Affiliate Transactions   47
  Section 3.22 Trade & Anti-Corruption Compliance   47
  Section 3.23 Company Business Activities   48
  Section 3.24 No Other Representations and Warranties   48
         
Article IV REPRESENTATIONS AND WARRANTIES OF THE BUYER PARTIES   49
  Section 4.1 Organization; Authority; Enforceability   49
  Section 4.2 Non-contravention   50
  Section 4.3 Buyer Parties Capitalization   50
  Section 4.4 Litigation   51
  Section 4.5 Brokerage   51
  Section 4.6 Business Activities   51
  Section 4.7 Compliance with Laws   52
  Section 4.8 Organization of Buyer Parties   52

 

i

 

 

  Section 4.9 Financing   52
  Section 4.10 Buyer Parties   53
  Section 4.11 Tax Matters   53
  Section 4.12 Non-contravention   55
  Section 4.14 RAC Capitalization   55
  Section 4.15 Information Supplied; Proxy Statement   56
  Section 4.16 Trust Account   56
  Section 4.17 RAC SEC Documents; Financial Statements; Controls   57
  Section 4.18 Listing   58
  Section 4.19 Investment Company; Emerging Growth Company   58
  Section 4.20 Inspections; Buyer’s Representations   58
  Section 4.21 PIPE Investment Amount   59
         
Article V COVENANTS RELATING TO THE CONDUCT OF THE GROUP COMPANIES AND THE BUYER   59
  Section 5.1 Interim Operating Covenants of the Group Companies   59
  Section 5.2 Interim Operating Covenants of the Buyer   62
         
Article VI PRE-CLOSING AGREEMENTS   64
  Section 6.1 Reasonable Best Efforts; Further Assurances   64
  Section 6.2 Trust & Closing Funding   64
  Section 6.3 Status Preservation   64
  Section 6.4 Confidential Information   65
  Section 6.5 Access to Information   65
  Section 6.6 Notification of Certain Matters   65
  Section 6.7 Regulatory Approvals; Efforts   65
  Section 6.8 Communications; Press Release; SEC Filings   66
  Section 6.9 RAC Stockholder Meeting   70
  Section 6.10 Expenses   71
  Section 6.11 Financing; Financing Cooperation   71
  Section 6.12 Directors and Officers   74
  Section 6.13 Subscription Agreements; Forward Purchase Agreement; Redemptions; Permitted Equity Financing   75
  Section 6.14 Affiliate Obligations   77
  Section 6.15 280G   77
  Section 6.16 No Buyer Stock Transactions   77
  Section 6.17 Name Change   77
  Section 6.18 Exclusivity   78
  Section 6.19 Aria Agreement Efforts   78
  Section 6.20 Release   79
  Section 6.21 Pre-Closing Reorganization   79
  Section 6.22 R&W Insurance Policy   80
         
Article VII ADDITIONAL AGREEMENTS   80
  Section 7.1 Access to Books and Records   80
         
Article VIII TAX MATTERS   80
  Section 8.1 Certain Tax Matters   80
         
Article IX CONDITIONS TO OBLIGATIONS OF PARTIES   83
  Section 9.1 Conditions to the Obligations of Each Party   83

 

ii

 

 

  Section 9.2 Conditions to the Obligations of the Buyer and the Company Merger Sub   84
  Section 9.3 Conditions to the Obligations of the Company   84
  Section 9.4 Frustration of Closing Conditions   85
  Section 9.5 Waiver of Closing Conditions   85
         
Article X TERMINATION   85
  Section 10.1 Termination   85
  Section 10.2 Effect of Termination   86
         
Article XI MISCELLANEOUS   87
  Section 11.1 Amendment and Waiver   87
  Section 11.2 Notices   87
  Section 11.3 Assignment   88
  Section 11.4 Severability   88
  Section 11.5 Interpretation   89
  Section 11.6 Entire Agreement   89
  Section 11.7 Governing Law; Waiver of Jury Trial; Jurisdiction   90
  Section 11.8 Non-Survival   91
  Section 11.9 Trust Account Waiver   91
  Section 11.10 Counterparts; Electronic Delivery   91
  Section 11.11 Specific Performance   92
  Section 11.12 No Third-Party Beneficiaries   92
  Section 11.13 Schedules and Exhibits   92
  Section 11.14 No Recourse   93
  Section 11.15 Equitable Adjustments   94
  Section 11.16 Legal Representation and Privilege   94
  Section 11.17 Acknowledgements   96

 

iii

 

 

EXHIBITS    
     
Exhibit A   Rice Holdings A&R LLCA
Exhibit B   Company A&R LLCA
Exhibit C   Form of Stockholders Agreement
Exhibit D   Capital Expenditure Budget
Exhibit E   Pre-Closing Reorganization

 

iv

 

 

BUSINESS COMBINATION AGREEMENT

 

This Business Combination Agreement (this “Agreement”) is made and entered into as of April 7, 2021 (the “Execution Date”) by and among (i) LFG BuyerCo LLC (the “Buyer”), (ii) Fezzik Merger Sub, LLC, a Delaware limited liability company and a direct wholly owned subsidiary of the Buyer (“Company Merger Sub”), (iii) LFG Intermediate Co, LLC (“IntermediateCo”), (iv) Rice Acquisition Holdings LLC (“Rice Holdings”, and together with the Buyer, Company Merger Sub, IntermediateCo and RAC, collectively, the “Buyer Parties”), (v) Archaea Energy LLC, a Delaware limited liability company (“Archaea”), (vi) Archaea Energy II LLC, a Delaware limited liability company (the “Company”), (vii) solely for purposes of Section 2.2(c), Article IV, Article V, Article VI and Article XI, Rice Acquisition Corp., a Delaware corporation (“RAC”). Each of the Buyer, the Company Merger Sub, the Company and, solely for purposes of Section 2.2, Article IV, Article V, Article VI and Article XI, RAC, is also referred to herein as a “Party” and, collectively, as the “Parties.

 

RECITALS

 

whereas, (a) RAC is a blank check company incorporated to acquire one or more operating businesses through a Business Combination and (b) the Buyer, an indirect Subsidiary of RAC, has formed Company Merger Sub.

 

WHEREAS, prior to the Execution Date, RAC entered into a forward purchase agreement (as amended as of the date hereof and as it may be amended and/or restated from time to time in accordance with its terms, the “Forward Purchase Agreement”) with Atlas Point Energy Infrastructure Fund, LLC (the “Forward Purchaser”), for an aggregate investment of up to $20,000,000 (the “Forward Purchase Amount”) by the Forward Purchaser in exchange for the Forward Purchase Securities, which investment shall close concurrently with the Closing in accordance with the terms and subject to the conditions of the Forward Purchase Agreement.

 

WHEREAS, simultaneously with the execution and delivery of this Agreement, the Aria Agreement has been executed pursuant to the terms thereof by the parties thereto.

 

WHEREAS, in connection with the transactions contemplated by this Agreement and the Aria Agreement (collectively, the “Business Combination Transactions”), RAC has entered into subscription agreements (collectively, the “Subscription Agreements”) with certain third-party investors (the “PIPE Investors”) pursuant to which the PIPE Investors have committed to make a private investment in public equity in the form of RAC Common Stock in an aggregate amount of $300,000,000 (the “PIPE Investment”).

 

WHEREAS, in connection with the Business Combination Transactions, the Buyer and certain Debt Financing Sources have entered into and delivered to Archaea the Debt Commitment Letter on the terms and subject to the conditions set forth therein.

 

WHEREAS, following the Pre-Closing Reorganization, but prior to the Closing, Archaea will own, collectively, 100% of the Company Units and the Company will own the interests in the Group Companies owned by Archaea immediately prior to the Pre-Closing Reorganization.

 

WHEREAS, in order to effect the Business Combination Transactions, on the Closing, Company Merger Sub will merge with and into the Company, with the Company as the surviving company (the “Merger”), resulting in the Company becoming a wholly owned subsidiary of the Buyer.

 

1

 

 

WHEREAS, the boards of managers or directors, managing member or other governing body, as applicable, of each of RAC, the Buyer, Company Merger Sub, Archaea and the Company have approved and declared advisable entry into this Agreement, the Merger, and the other transactions contemplated hereby, upon the terms and subject to the conditions hereof and in accordance with the Delaware General Corporation Law, as amended and the Delaware Limited Liability Company Act, as amended (the “DLLCA”), as applicable.

 

WHEREAS, simultaneously with the Closing, the Rice Holdings LLCA shall be amended and restated in the form attached hereto as Exhibit A (the “Rice Holdings A&R LLCA”) to, among other things, reflect the Business Combination Transactions.

 

WHEREAS, by virtue of the Merger, the Company LLCA shall be amended and restated in the form attached hereto as Exhibit B (the “Company A&R LLCA”) to, among other things, reflect the Merger.

 

WHEREAS, simultaneously with the Closing, the Sponsor, the Buyer, Archaea and certain other parties thereto will enter into the Stockholders Agreement in the form attached hereto as Exhibit C (the “Stockholders Agreement”).

 

WHEREAS, as a condition to the consummation of the transactions contemplated hereby and by the Ancillary Agreements, RAC shall provide an opportunity to its stockholders to exercise their rights to participate in the RAC Share Redemption, and on the terms and subject to the conditions and limitations, set forth herein and the applicable RAC Governing Documents in conjunction with, inter alia, obtaining the Required Vote.

 

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein, and subject to the terms and conditions set forth herein, the Parties, intending to be legally bound, hereby agree as follows:

 

Article I
CERTAIN DEFINITIONS

 

Section 1.1 Certain Definitions. For purposes of this Agreement, capitalized terms used but not otherwise defined herein shall have the meanings set forth below.

 

ACA” has the meaning set forth in Section 3.15(c).

 

Additional RAC Filings” has the meaning set forth in Section 6.8(f).

 

Affiliate” of any particular Person means any other Person controlling, controlled by or under common control with such Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, its capacity as a sole or managing member or otherwise; provided, that no portfolio company of a private equity fund or other investment fund that is an Affiliate of a Group Company shall be deemed an “Affiliate” for purposes of this Agreement. Notwithstanding the foregoing, except with respect to Section 2.2(b), for purposes of this Agreement, Archaea and the Company shall in no respects be considered an “Affiliate” of any of the Buyer Parties.

 

Affiliated Group” means a group of Persons that elects to, is required to, or otherwise files a Tax Return or pays a Tax as an affiliated group, aggregate group, consolidated group, combined group, unitary group or other group recognized by applicable Tax Law.

 

2

 

 

Affiliated Transactions” has the meaning set forth in Section 3.21.

 

Agreement” has the meaning set forth in the Preamble.

 

Allocation” has the meaning set forth in Section 8.1(e).

 

Ancillary Agreement” means each agreement, document, instrument or certificate contemplated hereby to be executed in connection with the consummation of the transactions contemplated hereby, including the Company A&R LLCA, the Rice Holdings A&R LLCA, the Subscription Agreements, the Stockholders Agreement, the Forward Purchase Agreement, the Permitted Equity Subscription Agreements, the documents effecting the Pre-Closing Reorganization and, in each case, the documents entered in connection therewith, in each case only as applicable to the relevant Party or Parties to such Ancillary Agreement, as indicated by the context in which such term is used.

 

Anti-Corruption Laws” means all applicable U.S. and non-U.S. Laws relating to the prevention of corruption and bribery, including, to the extent applicable to Archaea and its Subsidiaries, the U.S. Foreign Corrupt Practices Act of 1977, the Canada Corruption of Foreign Public Officials Act of 1999, the UK Bribery Act of 2010 and the legislation adopted in furtherance of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

 

Antitrust Laws” has the meaning set forth in Section 6.7(c).

 

Aria” means, collectively, Aria Energy LLC and its Subsidiaries.

 

Aria Agreement” means that certain Business Combination Agreement, dated as of the Execution Date, by and among the Buyer, RAC, Aria Energy LLC and Inigo Merger Sub, LLC as such agreement may be amended and/or restated from time to time in accordance with its terms.

 

Aria Closing” means the “Closing” defined in the Aria Agreement.

 

Assets” has the meaning set forth in Section 3.19(a).

 

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

 

Available Closing Date Cash” means, as of immediately prior to the Closing, an aggregate amount equal to the sum of (without duplication) (a) the cash in the Trust Account (after reduction for the aggregate amount of payments required to be made in connection with the RAC Share Redemptions), plus (b) the amount of PIPE Proceeds, plus (c) the Forward Purchase Amount, plus (d) the Permitted Equity Financing Proceeds.

 

Business Combination” has the meaning ascribed to such term in the RAC Governing Documents.

 

Business Combination Transactions” has the meaning set forth in the Recitals.

 

Business Day” means any day except a Saturday, a Sunday or any other day on which commercial banks are required or authorized to close in the State of New York; provided, however, that such commercial banks shall not be deemed to be authorized to be closed for purposes of this definition due to a “shelter in place,” “non-essential employee” or similar closure of physical branch locations.

 

Buyer Balance Sheet” has the meaning set forth in Section 4.6(c).

 

Buyer Bring-Down Certificate” has the meaning set forth in Section 9.3(d).

 

3

 

 

Buyer Cash Amount” has the meaning set forth in Section 2.2(c)(i)(A).

 

Buyer Certificate of Formation” means the certificate of formation of the Buyer, as it may be amended and/or restated from time to time.

 

Buyer Competing Transaction” means any transaction involving, directly or indirectly, any merger or consolidation with or acquisition of, purchase of a material amount of the assets or equity of, consolidation or similar business combination with or other transaction that would constitute a Business Combination with or involving the Buyer (or any Affiliate or Subsidiary of the Buyer) and any party other than the Company or Archaea. Notwithstanding the foregoing, in no event shall any of the transactions contemplated by the Aria Agreement be deemed a Buyer Competing Transaction.

 

Buyer Disclosure Schedules” means the Disclosure Schedules delivered by the Buyer to Archaea concurrently with the execution and delivery of this Agreement.

 

Buyer Fundamental Representations” means the representations and warranties set forth in Section 4.1 (Organization; Authority; Enforceability), Section 4.2(a) (Non-Contravention), Section 4.3 (Buyer Parties Capitalization), Section 4.5 (Brokerage), Section 4.6 (Business Activities), Section 4.8 (Organization of Buyer Parties), Section 4.14 (RAC Capitalization) and Section 6.2 (Trust Account).

 

Buyer Governing Documents” means the Buyer Certificate of Formation and the Buyer LLCA, as in effect at such time.

 

Buyer LLCA” means the amended and restated limited liability company agreement of the Buyer, dated as of April 5, 2021, as it may be amended and/or restated from time to time in accordance with its terms.

 

Buyer Member” means RAC, in its capacity as sole managing member of the Buyer.

 

Buyer Parties” has the meaning set forth in the Preamble.

 

Buyer Post-Closing Representation” has the meaning set forth in Section 11.16(b)(i).

 

Buyer Released Parties” has the meaning set forth in Section 6.20(b).

 

Capital Expenditure Budget” means the budget setting forth the per project amount of Capital Expenditures that the Group Companies may make or pay or accrue during the Pre-Closing Period, as set forth on Exhibit D attached hereto; provided that prior to paying or accruing any expenses with respect to those items noted with a “*” on the Capital Expenditure Budget, the Company shall first obtain the Buyer’s prior written consent.

 

Capital Expenditures” means amounts capitalized, including amounts of cash spent or expenses otherwise accrued by any Group Company to acquire assets of the Group Companies that will be capitalized, on the Group Companies’ balance sheet as fixed assets by the Group Companies in furtherance of the construction, connection, development, completion, expansion, acquisition and/or useful life improvement of the assets of the Group Companies directly used for the provision of services by the Group Companies in accordance with, and not in excess of, the Capital Expenditure Budget, which amounts shall only constitute Capital Expenditures, if when paid or accrued, such amounts are Cash Capex Incurred or financed through the incurrence of Company Indebtedness.

 

CARES Act” shall mean the Coronavirus Aid, Relief, and Economic Security Act of 2020.

 

4

 

 

Cash and Cash Equivalents” means the sum (expressed in United States dollars) of all cash and cash equivalents which are convertible within 90 days (including marketable securities, bank deposits, checks or wires received but not cleared, and deposits in transit of the Group Companies) of the Group Companies as of the Measurement Time, in each case, calculated in accordance with GAAP; provided, that Cash and Cash Equivalents shall exclude security deposits, and shall be calculated net of any outstanding checks written or ACH transactions or wire transfers that have been issued but remain outstanding or uncleared as of the Measurement Time.

 

Cash Capex Incurred” means Capital Expenditures (a) paid or accrued by the Group Companies, (b) financed by the Group Companies other than through the use of Company Indebtedness in an amount not to exceed $7,000,000 and (c) incurred otherwise in accordance with the Capital Expenditure Budget.

 

CBA” has the meaning set forth in Section 3.9(a)(i).

 

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

 

Clayton Act” means the Clayton Antitrust Act of 1914.

 

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

 

Closing Company Indebtedness” means the Company Indebtedness as of the Measurement Time, calculated in accordance with GAAP.

 

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

 

Closing Form 8-K” has the meaning set forth in Section 6.8(g).

 

Closing Merger Consideration” means, with respect to Archaea, a number of Company Interests equal to (a) the Estimated Merger Consideration divided by (b) the Reference Price.

 

Closing Press Release” has the meaning set forth in Section 6.8(g).

 

Closing Statement” has the meaning set forth in Section 2.3(a).

 

Code” means the Internal Revenue Code of 1986.

 

Commitment Letters” has the meaning set forth in Section 4.9.

 

Company” has the meaning set forth in the Preamble.

 

Company A&R LLCA” has the meaning set forth in the Recitals.

 

Company Accrued Income Taxes” means the sum of an amount determined with respect to each of the Group Companies equal to the aggregate excess, if any, in each jurisdiction of the current income Tax liabilities over the aggregate current income Tax assets of the Group Companies with respect to such jurisdiction attributable to any Pre-Closing Tax Period. The calculation of Company Accrued Income Taxes shall (a) exclude any deferred Tax liabilities or deferred Tax assets, (b) not take into account the effect of any transactions taken by the Group Companies outside the ordinary course of business during the portion of the Closing Date after the time of Closing, and (c) be determined in accordance with Section 8.1(b).

 

Company Bring-Down Certificate” has the meaning set forth Section 9.2(c).

 

5

 

 

Company Disclosure Schedules” means the Disclosure Schedules delivered by Archaea to the Buyer concurrently with the execution and delivery of this Agreement.

 

Company Employee Benefit Plan” means each Employee Benefit Plan that is maintained, sponsored or contributed to (or required to be contributed to) by any of the Group Companies or under or with respect to which any of the Group Companies has any Liability.

 

Company Equity Interests” has the meaning set forth in Section 3.3(a).

 

Company Fundamental Representations” means the representations and warranties set forth in Section 3.1 (Organization; Authority; Enforceability), Section 3.2(a) (Non-contravention), Section 3.3 (Capitalization) and Section 3.13 (Brokerage).

 

Company Indebtedness” means, without duplication, with respect to the Group Companies, all obligations (including all obligations in respect of principal, accrued and unpaid interest, penalties, breakage costs, fees and premiums and other costs and expenses associated with repayment or acceleration) of the Group Companies (a) for borrowed money, (b) evidenced by notes, bonds, debentures or similar Contracts or security, (c) for the deferred purchase price of assets, property, goods or services, business (other than trade payables incurred in the Ordinary Course of Business or Specified Capital Expenditures) or with respect to any conditional sale, title retention, consignment or similar arrangements, (d) any obligation for a lease classified as a capital or finance Lease in the Financial Statements or any obligation capitalized or required to be capitalized in accordance with GAAP, (e) any letters of credit, bankers acceptances or other obligation by which any Group Company assured a creditor against loss, in each case to the extent drawn upon or currently payable, (f) for earn-out or contingent payments related to acquisitions or investments (assuming the maximum amount earned), including post-closing price true-ups, indemnifications and seller notes, (g) in respect of dividends declared or distributions payable but unpaid, (h) under derivative financial instruments, including hedges, currency and interest rate swaps and other similar Contracts, (i) all obligations with respect to any unpaid and accrued bonuses and severance and deferred compensation, whether or not accrued or funded (including deferred compensation payable as deferred purchase price) plus the employer portion of any payroll Taxes incurred in respect of such obligations (determined as though all such obligations were payable as of the Closing Date), (j) all “applicable employment taxes” (as defined in Section 2302(d)(1) of the CARES Act) that any Group Company has elected to defer pursuant to Section 2302 of the CARES Act, (k) 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), (l) all Company Accrued Income Taxes, (m) all unfunded retiree welfare Liabilities, and (n) in the nature of guarantees of the obligations described in clauses (a) through (m) above. For the avoidance of doubt, Company Indebtedness will (x) be measured on a consolidated basis and exclude any intercompany Company Indebtedness among the Group Companies which are wholly-owned, (y) exclude deferred revenue, and (z) exclude any items included as a current liability in the calculation of Transaction Expenses.

 

Company Interest” means, collectively, one OpCo Class A Unit and one share of RAC Class B Common Stock (i.e., one Company Interest is equivalent to one OpCo Class A Unit and one share of RAC Class B Common Stock).

 

Company LLCA” means the Limited Liability Company Agreement of the Company, dated as of April 6, 2021 (as may be amended and/or restated from time to time in accordance with its terms).

 

Company Merger Sub” has the meaning set forth in the Preamble.

 

6

 

 

Company Post-Closing Representation” has the meaning set forth in Section 11.16(a)(i).

 

Company Released Parties” has the meaning set forth in Section 6.20(a).

 

Company Subsidiaries” means the direct and indirect Subsidiaries of Archaea.

 

Company Units” means the Equity Interests of the Company, which, as of the Execution Date are 100% owned by Archaea.

 

Competing Buyer” has the meaning set forth in Section 6.18(a).

 

Competing Transaction” means (a) any transaction involving, directly or indirectly, any Group Company, which upon consummation thereof, would result in any Group Company becoming a public company, (b) any direct or indirect sale (including by way of a merger, consolidation, exclusive license, transfer, sale, option, right of first refusal with respect to a sale or similar preemptive right with respect to a sale or other business combination or similar transaction) of any material portion of the assets (including Intellectual Property) or business of the Group Companies, taken as a whole, (c) any direct or indirect sale (including by way of an issuance, dividend, distribution, merger, consolidation, transfer, sale, option, right of first refusal with respect to a sale or similar preemptive right with respect to a sale or other business combination or similar transaction) of equity, voting interests or debt securities convertible into equity of any Group Company, or rights, or securities that grant rights, to receive the same including profits interests, phantom equity, options, warrants, convertible or preferred stock or other equity-linked securities or (d) any direct or indirect acquisition (whether by merger, acquisition, share exchange, reorganization, recapitalization, joint venture, consolidation or similar business combination transaction), but excluding procurement of assets in the Ordinary Course Of Business (but not the acquisition of a Person or business via an asset transfer), by any Group Company of the equity or voting interests of, or a material portion of the assets or business of, a third party, in all cases of clauses (a) through (d), either in one or a series of related transactions, where such transaction(s) is to be entered into with a Competing Buyer (including any direct or indirect equityholder of any Group Company or any of their respective directors, officers or Affiliates (other than any Group Company) or any representatives of the foregoing). Notwithstanding anything in this Agreement to the contrary, any transaction, arrangement, Contract or understanding not involving a Group Company or any of the assets thereof, directly or indirectly, shall not be a “Competing Transaction” for purposes of this Agreement.

 

Confidential Information” has the meaning set forth in the Confidentiality Agreement.

 

Confidentiality Agreement” means that certain Confidentiality Agreement, dated as of December 8, 2020, by and between RAC and Archaea as it may be amended and/or restated from time to time in accordance with its terms. 

 

Contract” means any written or oral contract, agreement, license or Lease (including any amendments thereto).

 

COVID-19” means the novel coronavirus, SARS-CoV-2 or COVID-19 (and all related strains, variants and sequences), including any intensification, resurgence or any evolutions or mutations thereof, and/or related or associated epidemics, pandemics, disease outbreaks or public health emergencies.

 

COVID-19 Measures” means any applicable quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down, closure, sequester or any other applicable Law, Order or directive by an applicable Governmental Entity in connection with or in response to the COVID-19 pandemic, including the Coronavirus Aid, Relief, and Economic Security Act (CARES).

 

7

 

 

Credit Facilities” means, collectively, (a) that certain Credit Agreement, dated as of November 10, 2020, by and among Comerica Bank, Archaea Holdings, LLC and Big Run Power Producers, LLC, (b) that certain Noble Environmental, Inc. Lien on Big Run Power Producers, LLC’s Equity Interests and (c) that certain Master Revolving Note, dated as of February 16, 2021, by and between Archaea Holdings, LLC and Comerica Bank.

 

Credit Facilities Payoff Letter” has the meaning set forth in Section 2.2(c)(i)(B).

 

D&O Provisions” has the meaning set forth in Section 6.12(a).

 

Data Room” has the meaning set forth in Section 11.5.

 

Databases” means any and all databases, data collections and data repositories of any type and in any form (and all corresponding data and organizational or classification structures or information), together with all rights therein.

 

Debt Commitment Letter” has the meaning set forth in Section 4.9.

 

Debt Financing” has the meaning set forth in Section 4.9.

 

Debt Financing Related Parties” means the Debt Financing Sources and other lenders from time to time party to agreements contemplated by or related to the Debt Financing their Affiliates and their and their Affiliates’ respective directors, officers, employees, agents, advisors and other representatives.

 

Debt Financing Sources” means the lenders, arrangers and bookrunners party from time to time to the Debt Commitment Letter, in each case in their capacities as such lenders, arrangers and bookrunners and not in any other capacity.

 

Deficit Amount” has the meaning set forth in Section 2.3(d)(ii).

 

Disclosure Schedules” means the Buyer Disclosure Schedules and the Company Disclosure Schedules.

 

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

 

DLLCA” has the meaning set forth in the Recitals.

 

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

 

Employee Benefit Plan” mean an “employee benefit plan” (as such term is defined in Section 3(3) of ERISA, whether or not subject to ERISA) and each equity or equity-based compensation, retirement, pension, savings, profit sharing, bonus, incentive, severance, separation, employment, individual consulting or independent contractor, transaction, change in control, retention, deferred compensation, vacation, sick pay or paid time-off, medical, dental, life or disability, retiree or post-termination health or welfare, salary continuation, fringe or other compensation or benefit plan, program, policy, agreement, arrangement or Contract.

 

Enforceable” means, with respect to any Contract stated to be enforceable by or against any Person, that such Contract is a legal, valid and binding obligation enforceable by or against such Person in accordance with its terms, except to the extent that enforcement of the rights and remedies created thereby is subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws of general application affecting the rights and remedies of creditors and general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).

 

8

 

 

Enterprise Value” means $347,000,000.

 

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

 

Equity Financing” has the meaning set forth in the definition of “Equity Financing Sources”.

 

Equity Financing Sources” means the Persons that have committed to provide or otherwise entered into agreements to subscribe for or acquire Equity Interests in the Buyer in exchange for cash prior to or in connection with the transactions contemplated hereby (the “Equity Financing”), including the parties named in any Subscription Agreement, any Permitted Equity Subscription Agreement or the Forward Purchase Agreement, together with their current or future limited partners, shareholders, managers, members, controlling Persons, respective Affiliates and their respective Affiliates and representatives involved in such subscription or acquisition and, in each case, their respective successors and assigns.

 

Equity Interests” means, with respect to any Person, all of the shares or quotas of capital stock or equity of (or other ownership or profit interests in) such Person, all of the warrants, trust rights, options or other rights for the purchase or acquisition from such Person of shares of capital stock or equity of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock or equity of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares or equity (or such other interests), restricted equity awards, restricted equity units, equity appreciation rights, phantom equity rights, profit participation and all of the other ownership or profit interests of such Person (including partnership, member or trust interests therein).

 

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

 

ERISA Affiliate” means any Person that, together with any Group Company, is (or at a relevant time has been or would be) considered a single employer under Section 414 of the Code.

 

Estimated Closing Statement” has the meaning set forth in Section 2.2(a).

 

Estimated Merger Consideration” has the meaning set forth in Section 2.2(a).

 

Ex-Im Laws” means export, controls, import, deemed export, reexport, transfer, and retransfer controls, including, contained in the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, the customs and import Laws administered by the U.S. Customs and Border Protection, and the EU Dual Use Regulation.

 

Excess Amount” has the meaning set forth in Section 2.3(d)(i).

 

Execution Date” has the meaning set forth in the Preamble.

 

Executives” means Nick Stork, Rich Walton, Brian McCarthy, Chet Benham, Charlie Anderson, Ted Yowonske, Tom Kappelmeier, Chad Clark, Whit Martin and David Smith.

 

Federal Trade Commission Act” means the Federal Trade Commission Act of 1914.

 

9

 

 

FERC” means the Federal Energy Regulatory Commission.

 

Final Closing Cash” has the meaning set forth in Section 2.3(a).

 

Final Closing Company Indebtedness” has the meaning set forth in Section 2.3(a).

 

Final Specified Capital Expenditures” has the meaning set forth in Section 2.3(a).

 

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

 

Financing” has the meaning set forth in Section 4.9.

 

Flow-Thru Entity” means (a) any entity, plan or arrangement that is treated for income Tax purposes as a partnership, (b) a “controlled foreign corporation” within the meaning of Code Section 957, (c) a “specified foreign corporation” within the meaning of Code Section 965 or (d) a “passive foreign investment company” within the meaning of Code Section 1297.

 

Forward Purchase Agreement” has the meaning set forth in the Recitals.

 

Forward Purchase Amount” has the meaning set forth in the Recitals.

 

Forward Purchase Securities” means 2,000,000 shares of RAC Common Stock and 666,666.67 warrants to purchase RAC Common Stock for $11.50 per share.

 

Forward Purchaser” has the meaning set forth in the Recitals.

 

FPA” means the Federal Power Act of 1935.

 

Fraud” means a knowing and intentional fraud committed by a Party in the making of a representation or warranty expressly set forth in this Agreement or any Ancillary Agreement or in any certificate or letter of transmittal delivered pursuant hereto or thereto, as applicable; provided that (a) such representation or warranty was false or inaccurate at the time such representation or warranty was made, (b) the Party making such representation or warranty had actual knowledge (and not imputed or constructive knowledge) that such representation or warranty was false or inaccurate when made, and (c) such Party had the specific intent to deceive another Party and induce such other Party to enter into this Agreement or consummate the transactions contemplated by this Agreement, as applicable. For the avoidance of doubt, (x) the term “Fraud” does not include any claim for equitable fraud, promissory fraud, unfair dealings fraud, or any torts (including a claim for fraud) based on negligence or recklessness, and (y) only the Party to this Agreement who committed a Fraud shall be responsible for such Fraud and only to the Party alleged to have suffered from such alleged Fraud.

 

GAAP” means United States generally accepted accounting principles as in effect from time to time.

 

Governing Documents” means (a) in the case of a corporation, its certificate of incorporation (or analogous document) and bylaws or memorandum and articles of association, in each case, as amended and/or restated from time to time (as applicable), (b) in the case of a limited liability company, its certificate of formation (or analogous document) and limited liability company operating agreement, in each case, as amended and/or restated from time to time, or (c) in the case of a Person other than a corporation or limited liability company, the documents by which such Person (other than an individual) establishes its legal existence or which govern its internal affairs.

 

10

 

 

Governmental Entity” means any nation or government, any state, province or other political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any court, arbitrator (public or private) or other body or administrative, regulatory or quasi-judicial authority, agency, department, board, commission or instrumentality of any federal, state, local or foreign jurisdiction.

 

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

 

Hazardous Materials” means all substances, materials or wastes regulated by, or for which standards of conduct may be imposed pursuant to, Environmental Laws, including petroleum products or byproducts, asbestos, polychlorinated biphenyls, radioactive materials, lead, and per- and polyfluoroalkyl substances.

 

HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.

 

Improvements” has the meaning set forth in Section 3.7(c).

 

Insurance Policies” has the meaning set forth in Section 3.16.

 

Intellectual Property” means rights in all of the following in any jurisdiction throughout the world: (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice) and invention disclosures, all improvements thereto, and all patents, utility models and industrial designs and all applications for any of the foregoing, together with all reissuances, provisionals, continuations, continuations-in-part, divisions, extensions, renewals and reexaminations thereof, (b) all trademarks, service marks, certification marks, trade dress, logos, slogans, trade names, corporate and business names, Internet domain names and other indicia of origin, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (c) all works of authorship, copyrightable works, all copyrights and rights in databases, and all applications, registrations, and renewals in connection therewith and all moral rights associated with any of the foregoing, (d) all mask works and all applications, registrations, and renewals in connection therewith, (e) all trade secrets and confidential business information (including ideas, research and development, know-how, formulas, compositions, algorithms, source code, data analytics, manufacturing and production processes and techniques, technical data and information, designs, drawings, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals) (“Trade Secret”), (f) all Software, and (g) all other similar proprietary rights.

 

Interested Party” means Archaea and any of its directors, executive officers or Affiliates (other than any Group Company).

 

IntermediateCo” has the meaning set forth in the Preamble.

 

IRS” has the meaning set forth in Section 3.15(a).

 

IT Assets” means Software, systems, Databases, servers, computers, hardware, firmware, middleware, networks, data communications lines, routers, hubs, switches and all other information technology equipment, used in the operation of the Group Companies.

 

JOBS Act” has the meaning set forth in Section 6.3(b).

 

Kirkland” has the meaning set forth in Section 11.16(b)(i).

 

11

 

 

Knowledge” (a) as used in the phrase “to the Knowledge of the Company” or phrases of similar import means the actual knowledge of any of the Executives, including after reasonable due inquiry of such Executive’s direct reports and (b) as used in the phrase “to the Knowledge of the Buyer” or phrases of similar import means the actual knowledge of Daniel Joseph Rice IV, J. Kyle Derham and James Wilmot Rogers, including after reasonable due inquiry.

 

Latest Balance Sheet Date” means December 31, 2020.

 

Laws” means all laws, common law, acts, statutes, constitutions, ordinances, codes, rules, regulations, rulings and any Orders of a Governmental Entity, and common law relating to fiduciary duties.

 

Leased Real Property” means all leasehold or subleasehold estates and other rights to use or occupy any land, buildings, structures, improvements, fixtures or other interest in real property held by any Group Company.

 

Leases” means all leases, subleases, licenses, concessions and other Contracts pursuant to which any Group Company holds any Leased Real Property (along with all amendments, modifications and supplements thereto) but excluding all Permits.

 

Liability” or “Liabilities” means any and all debts, liabilities, guarantees, commitments or obligations, whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured, liquidated or unliquidated, accrued or not accrued, due or to become due or determined or determinable.

 

Liens” means, with respect to any specified asset, any and all liens, mortgages, hypothecations, claims, encumbrances, options, pledges, licenses, rights of priority easements, covenants, restrictions and security interests thereon.

 

LLCA Amendment and Restatement” has the meaning set forth in Section 2.1(b).

 

Lookback Date” means the date which is three years prior to the Execution Date.

 

12

 

 

Material Adverse Effect” means any change, effect, event, circumstance, occurrence, state of facts or development that, individually or in the aggregate, has had or would reasonably be expected to (a) have a material adverse effect upon the business, results of operations or financial condition of the Group Companies, taken as a whole, or (b) prevents or materially delays, or would be reasonably expected to prevent or materially delay, the ability of the Group Companies, taken as a whole, to perform their respective obligations and to consummate the transactions contemplated hereby and by the Ancillary Agreements; provided, however, that, with respect to the foregoing clause (a), none of the following will constitute a Material Adverse Effect, or will be considered in determining whether a Material Adverse Effect has occurred: (i) changes that are generally applicable to the industries or markets in which the Group Companies operate; (ii) changes in Law or GAAP or the interpretation thereof, in each case effected after the Execution Date; (iii) any failure of any Group Company to achieve any projected periodic revenue or earnings projection, forecast or budget prior to the Closing (it being understood that the underlying event, circumstance or state of facts giving rise to such failure may be taken into account in determining whether a Material Adverse Effect has occurred, but only to the extent otherwise permitted to be taken into account); (iv) changes that are the result of economic factors affecting the national, regional or world economy or financial markets, including increases in prices due to the increase of raw materials or product inputs or transportation costs; (v) any earthquake, hurricane, tsunami, tornado, flood, mudslide, wildfire or other natural disaster or act of God, including the COVID-19 pandemic; (vi) any national or international political conditions in any jurisdiction in which the Group Companies conduct business; (vii) the engagement by the United States in hostilities or the escalation thereof, whether or not pursuant to the declaration of a national emergency or war, or the occurrence or the escalation of any military or terrorist attack upon the United States, or any United States territories, possessions or diplomatic or consular offices or upon any United States military installation, equipment or personnel; (viii) any consequences arising from any action by a Party and that is expressly required by this Agreement, (ix) epidemics, pandemics, disease outbreaks (including COVID-19), or public health emergencies (as declared by the World Health Organization or the Health and Human Services Secretary of the United States) or any Law or guideline issued by a Governmental Entity, the Centers for Disease Control and Prevention or the World Health Organization or industry group providing for business closures, “sheltering-in-place” or other restrictions that relate to, or arise out of, an epidemic, pandemic or disease outbreak (including COVID-19), or (x) effects, events, changes, occurrences or circumstances resulting from the announcement or the existence of, this Agreement or the transactions contemplated hereby or the identity of the Buyer or its Affiliates; provided, however, that any event, circumstance or state of facts resulting from a matter described in any of the foregoing clauses (i), (ii), (iv) (iv), (v), (vi), (vii), and (ix) may be taken into account in determining whether a Material Adverse Effect has occurred to the extent such event, circumstance or state of facts has a disproportionate effect on the Group Companies, taken as a whole, relative to other similarly situated entities operating in the industries or markets in which the Group Companies operate (in which case only the incremental disproportionate effect or effects may be deemed either alone or in combination to constitute, or be taken into account in determining whether there has been, a Material Adverse Effect).

 

Material Contract” has the meaning set forth in Section 3.9(b).

 

Material Customer” has the meaning set forth in Section 3.9(c).

 

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

 

Material Suppliers” means the top 10 suppliers of materials, products or services to the Group Companies, taken as a whole (measured by aggregate amount purchased by the Group Companies) during the 12 months ended December 31, 2020.

 

MBR Authority” means (a) authorization by FERC pursuant to section 205 of the FPA to sell electric energy, capacity and/or ancillary services at market-based rates, (b) acceptance by FERC of a tariff providing for such sales, and (c) granting by FERC of such regulatory waivers and blanket authorizations as are customarily granted by FERC to holders of market-based rate authority, including blanket authorization under section 204 of the FPA to issue securities and assume liabilities.

 

Measurement Time” means 12:01 a.m. Eastern Time on the Closing Date.

 

Merger” has the meaning set forth in the Recitals.

 

Merger Consideration” means (a) Enterprise Value, plus (b) the amount of Cash and Cash Equivalents, minus (c) the amount of Closing Company Indebtedness, plus (d) the amount, if any, of the Specified Capital Expenditures.

 

Merger Sub Interests” means the limited liability company interests of Company Merger Sub.

 

13

 

 

Minimum Cash Amount” means $150,000,000 (after giving effect to the Merger and any borrowings set to occur on the Closing Date, but excluding, for the avoidance of doubt, any cash held at Assai Energy, LLC).

 

NGA” means the Natural Gas Act of 1938.

 

Non-Party Affiliate” has the meaning set forth in Section 11.14.

 

OFAC” has the meaning set forth in the definition of “Sanctions”.

 

OpCo Class A Units” means, collectively, the issued and outstanding Class A Units of Rice Holdings, in each case as issued and outstanding pursuant to the terms of the Rice Holdings LLCA.

 

OpCo Class B Units” means, collectively, the issued and outstanding Class B Units of Rice Holdings, in each case as issued and outstanding pursuant to the terms of the Rice Holdings LLCA.

 

OpCo Common Units” means, collectively, the OpCo Class A Units and OpCo Class B Units.

 

Order” means any order, writ, judgment, injunction, temporary restraining order, stipulation, determination, decree or award entered by or with any Governmental Entity or arbitral institution.

 

Ordinary Course of Business” means, with respect to any Person, any action taken by such Person in the ordinary course of business consistent with past practice.

 

Ordinary Course Tax Sharing Agreement” means any written commercial agreement entered into in the ordinary course of business of which the principal subject matter is not Tax but which contains customary Tax indemnification provisions.

 

Outside Date” has the meaning set forth in Section 10.1(c).

 

Owned Intellectual Property” means all Intellectual Property owned or purported to be owned by any of the Group Companies.

 

Party” has the meaning set forth in the Preamble.

 

Pass-Through Income Tax” means any income Tax with respect to which Archaea (or any of its direct or indirect owners) would be primarily liable as a matter of Tax Law (e.g., the income Tax liability for items of income, gain, loss, deduction and credit passed-through to owners of an entity treated as a partnership for U.S. federal income Tax purposes).

 

Payoff Amount” has the meaning set forth in Section 2.2(c)(i)(B).

 

PCAOB” means the Public Company Accounting Oversight Board.

 

Permits” has the meaning set forth in Section 3.17(b).

 

Permitted Equity Financing” means purchases of RAC Common Stock on or prior to the Closing by Equity Financing Sources pursuant to Section 6.13(c).

 

Permitted Equity Financing Proceeds” has the meaning set forth in Section 6.13(c)(i).

 

Permitted Equity Subscription Agreement” means a Contract executed by an Equity Financing Source pursuant to which such Equity Financing Source has agreed to purchase for cash RAC Common Stock from RAC on or prior to the Closing pursuant to Section 6.13(c).

 

14

 

 

Permitted Liens” means (a) easements, permits, rights of way, restrictions, covenants, reservations or encroachments, minor defects or irregularities in and other similar Liens of record affecting title to the underlying fee interest in the Leased Real Property or the applicable Group Company’s interests therein which do not materially impair the current use or occupancy of such Leased Real Property in the operation of the business of any of the Group Companies currently conducted thereon, (b) statutory liens for Taxes, assessments or governmental charges or levies imposed with respect to property which are not yet due and payable or which are being contested in good faith through appropriate proceedings (provided appropriate reserves required pursuant to GAAP have been made in respect thereof), (c) Liens in favor of suppliers of goods for which payment is not yet due or delinquent (provided appropriate reserves required pursuant to GAAP have been made in respect thereof), (d) mechanics’, materialmen’s, workmen’s, repairmen’s, warehousemen’s, carrier’s and other similar Liens arising or incurred in the Ordinary Course of Business which are not yet due and payable or which are being contested in good faith (provided appropriate reserves required pursuant to GAAP have been made in respect thereof), (e) Liens arising under workers’ compensation Laws or similar legislation, unemployment insurance or similar Laws, (f) municipal bylaws, development agreements, restrictions or regulations, and zoning, entitlement, land use, building or planning restrictions or regulations, in each case, promulgated by any Governmental Entity having jurisdiction over the Leased Real Property, which do not materially impair the applicable Group Company’s current use or occupancy of the Leased Real Property, (g) in the case of Leased Real Property, any Liens to which the underlying fee interest in the leased premises (or the land on which or the building in which the leased premises may be located) is subject, including rights of the landlord under the Lease and all superior, underlying and ground leases and renewals, extensions, amendments or substitutions thereof, or granted to a third party by the applicable Group Company pursuant to any sublease, license or other right to use or occupy its Leased Real Property or any portion thereof which do not materially impair the use or occupancy of such Leased Real Property in the operation of the business of such Group Company currently conducted thereon, (h) Securities Liens, (i) those Liens set forth on Schedule 1.6, (j) non-exclusive licenses of Intellectual Property granted in the Ordinary Course of Business or (k) Liens or encroachments disclosed in policies, surveys and mineral rights reports provided to a Buyer Party.

 

Person” means any natural person, sole proprietorship, partnership, joint venture, trust, unincorporated association, corporation, limited liability company, entity or Governmental Entity.

 

Personal Information” means the same as “personal information,” “personal data,” or similar terms under applicable Privacy Laws.

 

Pillsbury” has the meaning set forth in Section 11.16(a)(i).

 

PIPE Investment” has the meaning set forth in the Recitals.

 

PIPE Investor” has the meaning set forth in the Recitals.

 

PIPE Proceeds” means an amount equal to the cash proceeds from the PIPE Investment.

 

Pre-Closing Period” has the meaning set forth in Section 5.1.

 

Pre-Closing Reorganization” means the transactions set forth on Exhibit E.

 

Pre-Closing Tax Period” means any taxable period ending on or before the Closing Date and the portion of any Straddle Period through and including the Closing Date.

 

Privacy and Security Requirements” means any and all of the following to the extent applicable to Processing by or on behalf of the Group Companies or otherwise relating to privacy, data and cyber security, or security breach notification requirements and applicable to the Group Companies: (a) all Privacy Laws, (b) provisions relating to Processing of Personal Information in all applicable Privacy Contracts, (c) all applicable Privacy Policies and (d) the Payment Card Industry Data Security Standard.

 

15

 

 

Privacy Contracts” means all Contracts between any Group Company and any Person that govern the Processing of Personal Information.

 

Privacy Laws” means all applicable Laws pertaining to data protection, data privacy, data security, and cybersecurity.

 

Privacy Policies” means all written, external-facing policies of any Group Company governing the Processing of Personal Information, including all website and mobile application privacy policies.

 

Proceeding” means any claim, suit, charge, litigation, complaint, investigation, audit, notice of violation, citation, arbitration, or other proceeding at law or in equity (whether civil, criminal or administrative) by or before any Governmental Entity.

 

Processing” means the collection, use or processing, of Personal Information (whether electronically or in any other form or medium).

 

Proxy Statement” has the meaning set forth in Section 6.8(c).

 

PUHCA” means the Public Utility Holding Company Act of 2005.

 

R&W Insurance Policy” means that certain Buyer-Side Representations and Warranties Insurance Policy issued by Liberty Surplus Insurance Corporation and bound as of the Execution Date in favor of Rice Holdings as the named insured.

 

RAC” has the meaning set forth in the Preamble.

 

RAC Board” means the Board of Directors of RAC, including any special committee thereof formed and empowered to approve the Business Combination Transactions.

 

RAC Bylaws” means the bylaws of RAC as amended and/or restated from time to time.

 

RAC Certificate of Incorporation” means the certificate of incorporation of RAC as amended and/or restated from time to time.

 

RAC Class B Common Stock” means Class B Common Stock of RAC, as issued pursuant to the RAC Governing Documents.

 

RAC Common Stock” means the Class A common stock of RAC, authorized pursuant to the RAC Certificate of Incorporation.

 

RAC Governing Documents” means the RAC Certificate of Incorporation and the RAC Bylaws, as in effect at such time.

 

RAC Preferred Stock” means Preferred Stock of RAC, as issued pursuant to the RAC Governing Documents.

 

RAC Public Securities” means the issued and outstanding RAC Stock and the RAC Warrants.

 

RAC Record Date” has the meaning set forth in Section 6.8(c).

 

RAC SEC Documents” has the meaning set forth in Section 4.17(a).

 

16

 

 

RAC SEC Filings” means the forms, reports, schedules, registration statements and other documents filed by RAC with the SEC, including the Proxy Statement, Additional RAC Filings, the Signing Form 8-K and the Closing Form 8-K, and all amendments, modifications and supplements thereto.

 

RAC Share Redemption” means the election of an eligible holder of the RAC Common Stock (as determined in accordance with the applicable RAC Governing Documents and the Trust Agreement) to redeem all or a portion of such holder’s RAC Common Stock, at the per-share price, payable in cash, equal to such holder’s pro rata share of the Trust Account (as determined in accordance with the applicable RAC Governing Documents and the Trust Agreement) in connection with the RAC Stockholder Meeting.

 

RAC Special Committee” means the special committee of the RAC Board, as designated by the RAC Board pursuant to the RAC Governing Documents.

 

RAC Stock” means, collectively, RAC Common Stock, RAC Class B Common Stock and RAC Preferred Stock, in each case as issued and outstanding pursuant to the terms of the RAC Governing Documents.

 

RAC Stockholder Meeting” means a meeting of the RAC Stockholders to vote on the RAC Stockholder Voting Matters.

 

RAC Stockholder Voting Matters” means, collectively, proposals to approve (a) the adoption and approval by the RAC Board, upon recommendation of the RAC Special Committee, of this Agreement, the Aria Agreement and the Business Combination Transactions and (b) the adoption and approval of the issuance of shares of RAC Common Stock, including any RAC Common Stock to be issued in connection with the Business Combination Transactions, including the PIPE Investment, as may be required under the Stock Exchange listing requirements.

 

RAC Stockholders” means the holders of RAC Stock.

 

RAC Warrants” means the warrants to buy shares of RAC issued pursuant to the Warrant Agreement.

 

Reference Price” means $10.00.

 

Representatives” means, with respect to any Person, the officers, directors, managers, employees, representatives or agents (including investment bankers, financial advisors, attorneys, accountants, brokers, engineers and other advisors or consultants) of such Person, to the extent that such officer, director, employee, representative or agent of such Person is acting in his or her capacity as an officer, director, employee, representative or agent of such Person.

 

Required Vote” means the affirmative vote of the holders of (a) a majority in voting power of the outstanding shares of RAC Stock, and (b) a majority in voting power of the outstanding shares of RAC Stock held by RAC Stockholders who are not Affiliates or associates of Rice Investment Group.

 

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

 

Retiree Welfare Plan” has the meaning set forth in Section 3.15(b).

 

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

 

Rice Holdings” has the meaning set forth in the Preamble.

 

17

 

 

Rice Holdings A&R LLCA” has the meaning set forth in the Recitals.

 

Rice Holdings LLCA” means the amended and restated limited liability company agreement of the Buyer, dated as of October 21, 2020 as it may be amended and/or restated from time to time in accordance with its terms.

 

Sanctioned Country” means any country or region that is the subject or target of a comprehensive embargo under Sanctions (including, Cuba, Iran, North Korea, Venezuela, Syria and the Crimea region of Ukraine).

 

Sanctioned Person” means any Person that is: (a) listed on any U.S. or non-U.S. sanctions-related restricted party list, including OFAC’s Specially Designated Nationals and Blocked Persons List, the EU Consolidated List and HM Treasury’s Consolidated List of Persons Subject to Financial Sanctions, (b) in the aggregate, 50% or greater owned, directly or indirectly, or otherwise controlled by a Person or Persons described in clause (a), or (c) organized, resident or located in a Sanctioned Country.

 

Sanctions” means all Laws and Orders relating to economic or trade sanctions administered or enforced by the United States (including by the U.S. Department of Treasury Office of Foreign Assets Control (“OFAC”), the U.S. Department of State and the U.S. Department of Commerce), Canada, the United Kingdom, the United Nations Security Council, or the European Union.

 

SEC” means the United States Securities and Exchange Commission.

 

Securities Act” means the Securities Act of 1933.

 

Securities Exchange Act” means the Securities Exchange Act of 1934.

 

Securities Liens” means Liens arising out of, under or in connection with (a) applicable federal, state and local securities Laws and (b) restrictions on transfer, hypothecation or similar actions contained in any Governing Documents.

 

Security Breach” means a data security breach or breach of Personal Information under applicable Laws.

 

Security Incident” means any successful unauthorized access, use, disclosure, modification or destruction of information or interference with IT Assets.

 

Sherman Act” means the Sherman Antitrust Act of 1890.

 

Signing Form 8-K” has the meaning set forth in Section 6.8(b).

 

Signing Press Release” has the meaning set forth in Section 6.8(b).

 

Software” means all computer software programs and Databases (and all derivative works, foreign language versions, enhancements, versions, releases, fixes, upgrades and updates thereto), whether in source code, object code or human readable form, and manuals, design notes, programmers’ notes and other documentation related to or associated with any of the foregoing.

 

Specified Capital Expenditures” means the aggregate amount of Capital Expenditures determined as of the Measurement Time.

 

Sponsor” means Rice Acquisition Sponsor LLC.

 

18

 

 

State Commission” has the meaning set forth in 18 C.F.R. § 1.101(k).

 

Stock Exchange” means the New York Stock Exchange.

 

Stockholders Agreement” has the meaning set forth in the Recitals.

 

Straddle Period” means any taxable period that begins on or before (but does not end on) the Closing Date.

 

Subscription Agreement” has the meaning set forth in the Recitals.

 

Subsidiaries” means, of any Person, any corporation, association, partnership, limited liability company, joint venture or other business entity of which more than fifty percent (50%) of the voting power or equity is owned or controlled directly or indirectly by such Person, or one (1) or more of the Subsidiaries of such Person, or a combination thereof.

 

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

 

Tail Policy” has the meaning set forth in Section 6.12(b)(ii).

 

Tax” or “Taxes” means (a) all net or gross income, net or gross receipts, net or gross proceeds, payroll, employment, excise, severance, stamp, occupation, windfall or excess profits, profits, customs, capital stock, withholding, social security, unemployment, disability, real property, personal property (tangible and intangible), unclaimed property, escheat, sales, use, transfer, value added, alternative or add-on minimum, capital gains, user, leasing, lease, natural resources, ad valorem, franchise, gaming license, capital, estimated, goods and services, fuel, interest equalization, registration, recording, premium, environmental or other taxes, assessments, duties or similar charges, including all interest, penalties and additions imposed with respect to (or in lieu of) the foregoing, imposed by (or otherwise payable to) any Governmental Entity, and, in each case, whether disputed or not, (b) any Liability for, or in respect of the payment of, any amount of a type described in clause (a) of this definition as a result of Treasury Regulations Section 1.1502-6 (or any similar provision of any Law) or being a member of an affiliated, combined, consolidated, unitary, aggregate or other group for Tax purposes and (c) any Liability for, or in respect of the payment of, any amount described in clause (a) or (b) of this definition as a transferee or successor, by contract, by operation of Law, or otherwise.

 

Tax Basis Balance Sheet” has the meaning set forth in Section 8.1(e).

 

Tax Contest” has the meaning set forth in Section 8.1(h).

 

Tax Positions” has the meaning set forth in Section 8.1(g).

 

Tax Returns” means returns, declarations, reports, claims for refund, information returns, elections, disclosures, statements, or other documents (including any related or supporting schedules, attachments, statements or information, and including any amendments thereof) filed or required to be filed with a Governmental Entity in connection with, or relating to, Taxes.

 

Tax Sharing Agreement” means any agreement or arrangement (including any provision of a Contract) pursuant to which any Group Company is or may be obligated to indemnify any Person for, or otherwise pay, any Tax of or imposed on another Person, or indemnify, or pay over to, any other Person any amount determined by reference to actual or deemed Tax benefits, Tax assets, or Tax savings.

 

19

 

 

Taxing Authority” means any Governmental Entity having jurisdiction over the assessment, determination, collection, administration or imposition of any Tax.

 

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

 

Transaction Expenses” means to the extent not paid as of the Closing by the Buyer, any Group Company:

 

(a) all fees, costs and expenses (including fees, costs and expenses of third-party advisors, legal counsel, accountants, investment bankers (including any deferred underwriting discount), or other advisors, service providers or Representatives) including brokerage fees and commissions, incurred or payable by the Buyer or the Sponsor through the Closing in connection with the preparation of the financial statements in connection with the filings required in connection with the transactions contemplated by this Agreement, the negotiation and preparation of this Agreement, the Ancillary Agreements and the Proxy Statement and the consummation of the transactions contemplated hereby and thereby (including due diligence) or in connection with Buyer’s pursuit of a Business Combination, and the performance and compliance with all agreements and conditions contained herein or therein to be performed or complied with;

 

(b) all fees, costs and expenses (including fees, costs and expenses of third-party advisors, legal counsel, investment bankers, or other Representatives), incurred or payable by the Group Companies through the Closing in connection with the preparation of the Financial Statements, the negotiation and preparation of this Agreement, the Ancillary Agreements and the Proxy Statement and the consummation of the transactions contemplated hereby and thereby;

 

(c) any fees, costs and expenses incurred or payable by the Buyer, the Sponsor or any Group Company through the Closing in connection with entry into and the negotiation of the Subscription Agreements and any Permitted Equity Subscription Agreement and the consummation of the transactions contemplated by the Subscription Agreements and any Permitted Equity Subscription Agreement or otherwise related to any financing activities in connection with the transactions contemplated hereby and the performance and compliance with all agreements and conditions contained therein;

 

(d) any amounts incurred under or in connection with any retention, severance, transaction, change in control, phantom equity, and similar bonuses or arrangements that are owed by a Group Company to any current or former employee or other individual service provider and that will be triggered, as a result of the transactions contemplated by this Agreement plus the employer portion of any payroll or other employment Taxes related thereto (including, to the extent not included in the computation of Company Indebtedness, all “applicable employment taxes” (as defined in Section 2302(d)(1) of the CARES Act) that any Group Company has elected to defer pursuant to Section 2302 of the CARES Act, and all payroll or other employment 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)), in each case, determined as though all such obligations were payable as of the Closing Date and other than severance payments that are triggered by a termination of employment that occurs following the Closing at the direction of any Buyer Party and any amounts payable in connection with any agreement or termination of employment entered into or effectuated at the direction of the Buyer Parties;

 

(e) all fees, costs and expenses paid or payable pursuant to the Tail Policy;

 

(f) all filing fees paid or payable to a Governmental Entity in connection with any filing required to be made under the HSR Act;

 

20

 

 

(g) all fees, costs and expenses paid or payable to the Transfer Agent;

 

(h) any amounts unpaid under the terms of any Affiliated Transaction, or related to the termination of any Affiliated Transaction;

 

(i) all Transfer Taxes; and

 

(j) all fees, costs and expenses (including fees, costs and expenses of third-party advisors, legal counsel, accountants, investment bankers, or other advisors, service providers or Representatives) including original issue discount and brokerage fees and commissions, incurred or payable by any of the Buyer, the Sponsor or any of the Group Companies in connection the negotiation, preparation or consummation of the Debt Financing.

 

Transaction Expenses Amount” has the meaning set forth in Section 2.2(c)(i)(C).

 

Transaction Tax Deductions” means any amount that is deductible for income Tax purposes that is incurred by any Group Company in connection with the transactions contemplated herein (excluding, for the avoidance of doubt, any amount (including with respect to any Transaction Expense) that is or was an obligation of, or incurred or payable by, the Buyer or the Sponsor or their relevant Affiliates), including (a) the payment of stay bonuses, sales bonuses, change in control payments, severance payments, retention payments or similar payments made by any Group Company on or around the Closing Date; (b) the fees, expenses and interest (including amounts treated as interest for U.S. federal income Tax purposes and any breakage fees or accelerated deferred financing fees) incurred by any Group Company with respect to the payment of Company Indebtedness by (or for the benefit of) the Group Companies on or prior to the Closing Date; (c) the employer portion of the amount of any employment taxes with respect to the amounts set forth in clause (a) of this definition paid by any Group Company on or prior to the Closing Date; and (d) the payment of any other Transaction Expenses not included in clauses (a) through (c). The amount of the Transaction Tax Deductions will be computed assuming that an election is made under Revenue Procedure 2011-29 to deduct 70% of any Transaction Tax Deductions that are success-based fees (as described in Revenue Procedure 2011-29).

 

Transfer Agent” means Continental Stock Transfer & Trust Company.

 

Transfer Taxes” means all transfer, documentary, sales, use, value added, goods and services, stamp, registration, notarial fees and other similar Taxes and fees incurred in connection with the transactions contemplated hereby.

 

Treasury Regulations” means the United States Treasury Regulations promulgated under the Code.

 

Trust Account” means the trust account established by RAC pursuant to the Trust Agreement.

 

Trust Agreement” means that certain Investment Management Trust Agreement, dated of October 23, 2020, by and between RAC and Continental Stock Transfer & Trust Company.

 

Trust Amount” has the meaning set forth in Section 4.16.

 

Trust Distributions” has the meaning set forth in Section 11.9.

 

Trustee” means Continental Stock Transfer & Trust Company, acting as trustee of the Trust Account.

 

21

 

 

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

 

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

 

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

 

Waived 280G Benefits” has the meaning set forth in Section 6.15.

 

Waiving Parties” has the meaning set forth in Section 11.16(a)(i).

 

WARN Act” means the Worker Adjustment and Retraining Notification Act of 1988 or any similar or related Law.

 

Warrant Agreement” means that certain Warrant Agreement, dated as of October 21, 2020, between RAC and the Transfer Agent as it may be amended and/or restated from time to time in accordance with its terms.

 

22

 

 

Article II
THE MERGER; CLOSING

 

Section 2.1 Closing Transactions; Merger.

 

(a) Closing Transactions.

 

(i) Merger. Upon the terms and subject to the conditions set forth herein, and in accordance with the DLLCA, at the Effective Time, Company Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Company Merger Sub shall cease, and the Company shall continue as the surviving company (sometimes referred to, in such capacity, as the “Surviving Company”).

 

(ii) Closing; Effective Time. The closing of the Merger and the closing of the other transactions contemplated by or in connection with the Merger (the “Closing”) shall take place by conference call and by exchange of signature pages by email or other electronic transmission at 9:00 a.m. Eastern Time on (i) the fourth Business Day after the conditions set forth in Article IX have been satisfied, or, if permissible, waived by the Party entitled to the benefit of the same (other than those conditions which by their terms are required to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing) or (ii) such other date and time as the Parties mutually agree (the date upon which the Closing occurs, the “Closing Date”); provided, however, that without the written consent of Archaea and the Buyer, the Closing shall occur no earlier than the first Business Day that is at least 45 days after the Execution Date. On the Closing Date, the Parties shall cause the Merger to be consummated by filing a certificate of merger with the Secretary of State of the State of Delaware (the “Certificate of Merger”), in such form as required by, and executed in accordance with, Section 18-209 of the DLLCA, as applicable (the date and time of the filing with the Secretary of State of the State of Delaware, or, if another later date and time is specified in such filing, such specified later date and time, being the “Effective Time”).

 

(iii) Effect of the Merger. At the Effective Time, the effect of the Merger shall be as provided in this Agreement, the Buyer Governing Documents, the RAC Governing Documents, the organizational documents of the Group Companies and in the applicable provisions of the DLLCA. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, except as otherwise provided herein, all the property, assets, rights, privileges, powers and franchises of the Company and Company Merger Sub shall vest in the Surviving Company, and all debts, liabilities, duties and obligations of the Company and Company Merger Sub shall become the debts, liabilities, duties and obligations of the Surviving Company. In addition, at the Effective Time, by virtue of the Merger and without any action on the part of any Party, all of the Merger Sub Interests shall be cancelled for no consideration, shall cease to exist and shall no longer be outstanding.

 

(iv) Company Units. At the Effective Time, by virtue of the Merger and without any action on the part of any Party, all the Company Units that are issued and outstanding immediately prior to the Effective Time shall, at the Effective Time, be cancelled, shall cease to exist, shall no longer be outstanding and shall be converted into the right to receive (and upon such conversion pursuant to this Section 2.1(a)(iv) shall have no further rights with respect thereto) the Closing Merger Consideration.

 

23

 

 

(b) Company Certificate of Formation and Company LLCA Amendment and Restatement. At the Effective Time, the certificate of formation of the Company (as previously amended and/or restated) shall be the certificate formation of the Surviving Company until thereafter amended in accordance with applicable law. At the Effective Time, by virtue of the Merger, the Company LLCA shall be amended and restated as set forth on Exhibit B hereto and shall thereafter be the limited liability company agreement of the Surviving Company until thereafter amended in accordance with the provisions thereof and applicable law (the “LLCA Amendment and Restatement”).

 

(c) Directors and Officers. Effective as of the Closing, (i) the Sponsor, RAC and Archaea shall cooperate and take any actions necessary so that the board of directors of RAC shall be composed as set forth in the Stockholders Agreement, to serve in accordance with the RAC Governing Documents, and (ii) the officers of RAC to be effective from and after the Closing shall be as set forth in the RAC Governing Documents. Immediately following the Closing, the Buyer (through the Buyer’s governing body), as sole member of the Surviving Company, shall appoint the officers of the Surviving Company, to be effective immediately after the Closing, each to hold office in accordance with the Company A&R LLCA. The Surviving Company shall be member-managed, and in connection with the LLCA Amendment and Restatement, the Buyer shall be admitted as a member and the managing member of the Company pursuant to the terms of the Company A&R LLCA.

 

Section 2.2 Estimated Merger Consideration.

 

(a) Estimated Merger Consideration. No later than five Business Days prior to the Closing, Archaea shall deliver to the Buyer: a good faith estimate of the Merger Consideration (the “Estimated Merger Consideration”) pursuant to which Archaea shall (i) use the Enterprise Value and (ii) estimate (A) the amount of Cash and Cash Equivalents, (B) the amount of Closing Company Indebtedness, (C) the amount of Specified Capital Expenditures and (D) the amount of Transaction Expenses (together, the “Estimated Closing Statement”). Following delivery of the Estimated Closing Statement, Archaea will provide the Buyer, Aria, and their respective accountants and other Representatives with a reasonable opportunity to review the Estimated Closing Statement. At least two Business Days prior to the Closing Date, the Buyer or Aria may notify Archaea of any comments or questions with respect to the Estimated Closing Statement and Archaea shall (x) consider in good faith such comments or questions to the Estimated Closing Statement and (y) prepare and deliver an updated Estimated Closing Statement to Archaea prior the Closing Date reflecting any agreed upon changes resulting from such comments or questions. Notwithstanding the foregoing, Archaea’s estimates set forth in the Estimated Closing Statement delivered to the Buyer in accordance with this Agreement shall control and be binding for purposes of the Closing except to the extent adjustments thereto have been agreed to in writing by the Parties (including any adjustments thereto resulting from the comments or questions raised in the immediately preceding sentence).

 

(b) Payment of the Merger Consideration. At the Effective Time, RAC shall, and shall cause Rice Holders and the Buyer to, cause the Transfer Agent to provide to Archaea immediately prior to the Effective Time, evidence of book-entry shares representing the whole number of each component part of the Company Interests to which Archaea is entitled to, as applicable, pursuant to Section 2.1(a)(iv) receive in respect of the Company Units. It is expressly understood and agreed that the delivery of the Company Interests under this Section 2.2(b) shall be in full satisfaction of Buyer’s obligation with respect to such amounts, and, once paid in accordance with the terms hereof, Buyer and its Affiliates shall have no liability to Archaea or any other Person for any amounts in respect of the same.

 

24

 

 

(c) Buyer Cash Amount; Payment of Other Amounts at Closing.

 

(i) Buyer Contribution. On the terms and subject to the conditions set forth herein, on the Closing Date, immediately after the Effective Time:

 

(A) RAC shall cause Rice Holdings to hold cash in the amount of Available Closing Date Cash (after reductions for the cash distributed to RAC to give effect to the RAC Share Redemptions and the cash payments contemplated by the Aria Agreement) (the “Buyer Cash Amount”).

 

(B) The Surviving Company shall pay or cause to be paid the amount set forth in the pay-off letter in respect of any Company Indebtedness as of the Measurement Time under the Credit Facilities (such amount the “Payoff Amount”), which pay-off letter shall be customary and reasonably acceptable to the Buyer, and provide that, if such aggregate amount so identified is paid on the Closing Date, such Company Indebtedness shall be repaid in full, that all Liens (except for Permitted Liens) affecting any property and/or proceeds of property of any Group Company will be released to the account(s) set forth therein and that the relevant lender and/or administrative agent shall forthwith execute and deliver to the Buyer all terminations and releases as reasonably requested necessary to evidence the foregoing termination (the “Credit Facilities Payoff Letter”); and

 

(C) The Surviving Company shall pay or cause to be paid, out of the Buyer Cash Amount, the Transaction Expenses to the accounts provided by the Parties at least one (1) Business Day prior to the Closing Date (the “Transaction Expenses Amount”).

 

(ii) Cash Capex Incurred. On the terms and subject to the conditions set forth herein, on the Closing Date, immediately after the Effective Time and notwithstanding anything to the contrary contained in this Agreement, if there is an aggregate upward adjustment to the Merger Consideration deliverable to Archaea after taking into account the applicable adjustments contemplated herein and a portion of such adjustment is attributable to Cash Capex Incurred, then RAC shall cause the Buyer to pay to Archaea in cash (and not, for the avoidance of doubt, in additional Company Interests), the amount of such upward adjustment to the extent attributable to Cash Capex Incurred after giving effect to the other applicable adjustments contemplated herein.

 

Section 2.3 Post-Closing Adjustment to Merger Consideration.

 

(a) Within 90 days after the Closing Date, the Buyer shall prepare and deliver to Archaea a statement (the “Closing Statement”) setting forth in reasonable detail the Buyer’s good faith calculation of (i) the amount of Cash and Cash Equivalents (the “Final Closing Cash), (ii) the amount of Closing Company Indebtedness (the “Final Closing Company Indebtedness), (iii) the amount of Specified Capital Expenditures (the “Final Specified Capital Expenditures”) and (iv) the Merger Consideration, in each case prepared in accordance with the definitions thereof and GAAP and including reasonably detailed calculations of the components thereof to enable a review thereof by Archaea.

 

25

 

 

(b) Archaea shall have 30 days after its receipt of the Closing Statement (the “Review Period”) within which to review the Closing Statement and to deliver to the Buyer written notice of Archaea’s disagreement with any item contained in the Closing Statement, which notice shall set forth in reasonable detail the basis for such disagreement and dollar amount of such dispute (to the extent possible) and attaching reasonable supporting details to enable a review thereof by the Buyer (a “Dispute Notice”). The Closing Statement shall become final, conclusive and binding on the Parties following the Review Period unless Archaea delivers to the Buyer a Dispute Notice within the Review Period. If Archaea timely delivers a Dispute Notice, any amounts on the Closing Statement not objected to by Archaea in the Dispute Notice (or by the Buyer as a result of the items disputed by Archaea in such Dispute Notice) shall be final, conclusive and binding on the Parties, and the Buyer and Archaea shall, within 30 days following the Buyer’s receipt of such Dispute Notice (the “Resolution Period”), seek in good faith to resolve in writing their differences with respect to the items set forth in the Dispute Notice, and any such resolution shall be final, conclusive and binding on the Parties. If, at the conclusion of the Resolution Period, any amounts remain in dispute, then each of the Buyer and Archaea shall promptly, and in any event, within 10 days, execute any reasonable engagement letter requested by the Valuation Firm and submit all items remaining in dispute to (i) with respect to all matters on the Closing Statement other than the Final Specified Capital Expenditures, an independent nationally recognized firm of independent certified public accountants and (ii) with respect to the Final Specified Capital Expenditures, an independent nationally recognized firm that has qualified expertise to assess the determination of the Final Specified Capital Expenditures, in each case, as determined mutually by the Parties (as applicable, the “Valuation Firm”) for resolution, acting as an accounting expert (and not as an arbitrator) and in accordance with the standards set forth in this Section 2.3(b), by delivering, within 10 days after engagement of the Valuation Firm, their written position with respect to such items remaining in dispute. The Valuation Firm’s determination shall be based on (x) one written presentation submitted by each of Archaea and the Buyer (which the Valuation Firm shall be instructed to distribute to Archaea and the Buyer upon receipt of both presentations) and (y) on one written response by each of Archaea and the Buyer (which the Valuation Firm shall be instructed to distribute to Archaea and the Buyer upon receipt of both such responses) (i.e., not on the basis of an independent review). The Buyer and Archaea shall each cooperate fully with the Valuation Firm so as to enable the Valuation Firm to make such determination as quickly and as accurately as practicable; provided that no Party (or any of its Affiliates, advisors or Representatives) shall engage in any ex parte communications with the Valuation Firm. The Valuation Firm shall determine, based solely on the presentations and responses submitted by Archaea and the Buyer, and not by independent review, only those issues set forth in the Dispute Notice (and those raised by the Buyer in response thereto) that remain in dispute and shall determine a value for any such disputed item which is equal to or between the final values proposed by the Buyer and Archaea in their respective submissions. The Parties shall request that the Valuation Firm make a decision with respect to all remaining disputed items in the Dispute Notice within 30 days after the submissions of the Parties, as provided above, and in any event as promptly as practicable. The final determination with respect to all disputed items in the Dispute Notice submitted to the Valuation Firm shall be set forth in a written statement by the Valuation Firm delivered to Archaea and the Buyer and shall be final, conclusive and binding on the Parties, absent fraud or manifest error. Judgment may be entered upon the determination of the Valuation Firm in any court having jurisdiction over the Party against which such determination is to be enforced. The fees and expenses of the Valuation Firm incurred pursuant to this Section 2.3(b) shall be borne by Archaea, on the one hand, and the Buyer, on the other hand, in inverse proportion to the final allocation made by such Valuation Firm of any disputed items in the Dispute Notice submitted to the Valuation Firm such that the prevailing Party pays the lesser proportion of such fees, costs and expenses. For example, if Archaea claims that the appropriate adjustments are $1,000 greater than the amount determined by the Buyer and if the Valuation Firm ultimately resolves the dispute by awarding to Archaea $700 of the $1,000 disputed, then the fees, costs and expenses of the Valuation Firm will be allocated 70% (i.e., 700 ÷ 1,000) to the Buyer and 30% (i.e., 300 ÷ 1,000) to Archaea.

 

26

 

 

(c) From and after Archaea’s receipt of the Closing Statement until the Final Closing Cash, Final Closing Company Indebtedness and the Final Specified Capital Expenditures are finally determined pursuant to this Section 2.3, Archaea, its Affiliates and their auditors, accountants and other representatives shall be, upon reasonable advance notice to the Buyer, permitted reasonable access during normal business hours to Archaea and the Company Subsidiaries, and the Buyer and their respective auditors, accountants, personnel, books and records and any other documents or information reasonably requested by such Person relating to any item properly raised in a Dispute Notice (including the information, data and work papers used by the Buyer and/or Archaea’s auditors or accountants, to prepare and calculate the Final Closing Cash, Final Closing Company Indebtedness and the Final Specified Capital Expenditures, but excluding information the disclosure of which, Buyer has been advised by legal counsel in good faith, could reasonably be expected to jeopardize any applicable privilege (including the attorney-client privilege) and, subject to such Person and their auditors, accountants and other Representatives entering into any such access letters reasonably required).

 

(d) Adjustment to Merger Consideration.

 

(i) If the Merger Consideration, as finally determined pursuant to Section 2.3(b) exceeds the Estimated Merger Consideration (such excess amount, the “Excess Amount”) then, within five Business Days after the date on which the Merger Consideration is finally determined, RAC shall, and shall cause Rice Holdings to, issue a whole number of the Company Interests issued to Archaea on the Closing Date such that the aggregate number of Company Interests issued to Archaea pursuant to this Agreement is equal to the number of Company Interests Archaea would have received on the Closing Date if the finally determined Merger Consideration, rather than the Estimated Merger Consideration, were used for purposes of determining the Closing Merger Consideration, in each case as rounded down to the nearest whole OpCo Class A Unit and share of RAC Class B Common Stock that comprise such Company Interests to the extent of any fractional units (if any); and

 

(ii) If the Estimated Merger Consideration exceeds the Merger Consideration as finally determined pursuant to Section 2.3(b) (such amount, the “Deficit Amount”) then, within five Business Days after the date on which the Merger Consideration is finally determined, RAC shall, and shall cause Rice Holdings to, cancel a whole number of the Company Interests issued to Archaea on the Closing Date such that the aggregate number of Company Interests issued to Archaea pursuant to this Agreement and not so cancelled is equal to the number of Company Interests Archaea would have received on the Closing Date if the finally determined Merger Consideration, rather than the Estimated Merger Consideration, were used for purposes of determining the Closing Merger Consideration, in each case as rounded down to the nearest whole OpCo Class A Unit and share of RAC Class B Common Stock that comprise such Company Interests to the extent of any fractional units (if any).

 

(iii) Notwithstanding anything to the contrary contained in this Agreement but consistent with Section 2.2(c)(ii), to the extent any upward adjustment to the Merger Consideration is attributable to Cash Capex Incurred, such adjustment shall be paid to Archaea in cash to the extent of such Cash Capex Incurred and not, for the avoidance of doubt, in additional Company Interests.

 

(e) Any such payments or surrender, as applicable, made pursuant to this Section 2.3 shall be deemed an adjustment to the Merger Consideration for all purposes, including for income Tax purposes, to the extent permitted by applicable Law.

 

(f) For the avoidance of doubt, the adjustments under Section 2.3(d)(i) and Section 2.3(d)(ii) shall be calculated in a manner such that the amount of Equity Interests issued or cancelled on a per share basis, as relevant, shall be equal to (i) the difference between (x) the Estimated Merger Consideration and (y) the Merger Consideration as finally determined in accordance with Section 2.3(b) divided by (ii) the Reference Price.

 

27

 

 

Section 2.4 Company Closing Deliveries. At the Closing, Archaea shall deliver, or shall cause to be delivered, the following:

 

(a) to the Buyer, a duly executed counterpart of the Stockholders Agreement;

 

(b) to the Buyer, a duly executed counterpart in respect of the Rice Holdings A&R LLCA;

 

(c) to the Buyer, a duly executed copy of the Certificate of Merger;

 

(d) to the Buyer, written resignations, effective as of the Closing, of those directors and officers of the Company that the Buyer designates in writing to Archaea at least two Business Days prior to the Closing;

 

(e) to the Buyer, (i) a properly completed IRS Form W-9 duly executed by Archaea and (ii) a certificate, duly executed and acknowledged by the Company, certifying that 50% or more of the value of the gross assets of the Company, after giving effect to the Pre-Closing Reorganization, does not consist of U.S. real property interests, or that 90% or more of the value of the gross assets of the Company, after giving effect to the Pre-Closing Reorganization, does not consist of U.S. real property interests plus cash or cash equivalents;

 

(f) to the Buyer evidence of the termination of the Affiliated Transactions pursuant to Section 6.14;

 

(g) to the Buyer, a duly executed Company Bring-Down Certificate from an authorized Person of the Company; and

 

(h) to the Buyer at least three (3) Business Days prior to Closing, the Credit Facilities Payoff Letter.

 

Section 2.5 Buyer Deliveries. At Closing, the Buyer shall deliver, or shall cause to be delivered, the following:

 

(a) to Archaea, evidence of the issuance of the whole Company Interests in book-entry form and not certificated, issuable to Archaea in respect all of the Company Units held by Archaea pursuant to the Merger as provided in Section 2.1(a)(iv);

 

(b) to Archaea, a duly executed counterpart from the Buyer and, to the extent applicable, RAC to each of (i) the Company A&R LLCA and (ii) the Stockholders Agreement; and

 

(c) to Archaea, a duly executed Buyer Bring-Down Certificate from an authorized Person of the Buyer.

 

28

 

 

Section 2.6 Withholding and Wage Payments.

 

(a) The Buyer, the Company and Archaea shall be entitled to deduct and withhold (or cause to be deducted and withheld) from any amount otherwise payable under this Agreement such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code or any other provision of applicable Laws; provided, however, that such Person shall, other than in the case of any compensatory payments due to any current or former employees, use commercially reasonable efforts to notify any applicable payee prior to the making of such deduction or withholding and shall reasonably cooperate with such payee to determine whether any such deduction or withholding are required under applicable Law and to use commercially reasonable efforts to obtain any available exemption or reduction of, or otherwise minimize to the extent permitted by applicable Law, such deduction and withholding. To the extent that such withheld amounts are paid over to or deposited with the applicable Governmental Entity on behalf of the Person with respect to whom such withholding was made, such withheld amounts shall be treated for all purposes hereof as having been paid to the Person in respect of which such deduction and withholding were made. The Buyer, the Company and Archaea shall provide written notice as soon as is reasonably practicable after becoming aware of any required withholding to each person or entity with respect to whom such withholding is to be made under this Section 2.6(a) and agree to use commercially reasonable efforts to cooperate with each such person or entity to obtain reduction of or relief from such withholding and to resolve any disputes with respect to the requirement to withholding or the amount to be withheld.

 

(b) Notwithstanding the foregoing, to the extent that any amount payable pursuant to this Agreement is being paid to any employee or similar Person of any Group Company that constitutes “wages” or other relevant compensatory amount, such amount shall be deposited in the payroll account of the applicable Group Company and the amounts due to such employee or similar Person (net of withholding) shall be paid to such Person pursuant to the next practicable scheduled payroll of the applicable Group Company.

 

Article III
REPRESENTATIONS AND WARRANTIES REGARDING THE GROUP COMPANIES

 

As an inducement to the Buyer Parties to enter into this Agreement and consummate the transactions contemplated hereby, except as set forth in the Group Company Disclosure Schedules, Archaea represents and warrants to the Buyer Parties as follows that the following representations and warranties are true and correct as of the Execution Date and as of the Closing Date (except, as to any representations and warranties that specifically relate to an earlier date, in which case such representations and warranties were true and correct as of such earlier date, and except as to any representations and warranties that can only be true following the Pre-Closing Reorganization, in which case such representations and warranties would be true and correct as of the date of this Agreement if the Pre-Closing Reorganization were to occur as of the date of this Agreement):

 

Section 3.1 Organization; Authority; Enforceability.

 

(a) Archaea and the Company are each a limited liability company formed under the Laws of the State of Delaware. Each other Group Company is a corporation, limited liability company or other business entity, as the case may be, and each Group Company is duly organized, validly existing and in good standing (or the equivalent thereof, if applicable) under the Laws of its respective jurisdiction of formation or organization (as applicable).

 

(b) Each Group Company has all the requisite corporate, limited liability company or other applicable power and authority to own, lease and operate its assets and properties and to carry on its businesses as presently conducted in all material respects.

 

(c) Each Group Company is duly qualified, licensed or registered to do business under the Laws of each jurisdictions in which the conduct of its business or locations of its assets and/or properties makes such qualification necessary except where the failure to be so qualified would not, individually or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole.

 

29

 

 

(d) No Group Company is in material violation of any of its Governing Documents. None of the Group Companies is the subject of any bankruptcy, dissolution, liquidation, reorganization (other than the Pre-Closing Reorganization and any internal reorganizations conducted in the Ordinary Course of Business) or similar proceeding.

 

(e) Other than as set forth on Schedule 3.2, the Company has the requisite limited liability company power and authority to execute and deliver this Agreement and each Group Company has the requisite corporate, limited liability company or other business entity power and authority, as applicable, to execute and deliver the Ancillary Agreements to which it is or will be a party and to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. Other than as set forth on Schedule 3.2, the execution and delivery of this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate, limited liability company or other business entity actions, as applicable. This Agreement has been, and each of the Ancillary Agreements to which each Group Company will be a party will be, duly executed and delivered by such Group Company and are Enforceable against each applicable Group Company, assuming the approvals set forth on Schedule 3.2 are obtained.

 

Section 3.2 Non-contravention. Except for consents and approvals as set forth on Schedule 3.2 that will be obtained in connection with the Closing, neither the execution and delivery of this Agreement or any Ancillary Agreement nor the consummation of the transactions contemplated hereby or by any Ancillary Agreement by a Group Company will (a) conflict with or result in any material breach of any provision of the Governing Documents of any Group Company; (b) other than the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, require any material filing with, or the obtaining of any material consent or approval of, any Governmental Entity; (c) result in a material violation of or a material default (or give rise to any right of termination, cancellation, or acceleration of material rights) under, any of the terms, conditions or provisions of any Material Contract or Material Lease or material Company Employee Benefit Plan (in each case, whether with or without the giving of notice, the passage of time or both); (d) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of any Group Company; or (e) except for violations which would not prevent or delay the consummation of the transactions contemplated hereby, violate in any material respect any Law, Order, or Lien applicable to any Group Company, excluding from the foregoing clauses (b), (c), (d) and (e), such requirements, violations or defaults which would not reasonably be expected to be material to the Group Companies, taken as a whole.

 

Section 3.3 Capitalization.

 

(a) Schedule 3.3(a) sets forth the Equity Interests of the Group Companies (including the number and class or series (as applicable) of Equity Interests) (the “Company Equity Interests”) and the record and beneficial ownership (including the percentage interests held thereby) thereof. The Equity Interests set forth on Schedule 3.3(a) comprise all of the authorized capital stock, limited liability company interests or other Equity Interests of the Group Companies that are issued and outstanding, in each case, as of the Execution Date, after giving effect to the Pre-Closing Reorganization and immediately prior to giving effect to the transactions occurring on the Closing Date contemplated hereby and by the Ancillary Agreements.

 

(b) Except as set forth on Schedule 3.3(b) or for this Agreement, the Pre-Closing Reorganization or the Company LLCA:

 

(i) there are no outstanding options, warrants, Contracts, calls, puts, rights to subscribe, conversion rights or other similar rights to which any Group Company is a party or which are binding upon any Group Company providing for the offer, issuance, redemption, exchange, conversion, voting, transfer, disposition or acquisition of any of its Equity Interests (other than this Agreement);

 

30

 

 

(ii) no Group Company is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any of its Equity Interests, either of itself or of another Person;

 

(iii) no Group Company is a party to any voting trust, proxy or other agreement or understanding with respect to the voting of any of its Equity Interests;

 

(iv) there are no contractual equityholder preemptive or similar rights, rights of first refusal, rights of first offer or registration rights in respect of the Company Equity Interests; and

 

(v) no Group Company has violated in any material respect any applicable securities Laws or any preemptive or similar rights created by Law, Governing Document or Contract to which such Company is a party in connection with the offer, sale, issuance or allotment of any of the Company Equity Interests applicable to such Group Company.

 

(c) All of the Company Equity Interests have been duly authorized and validly issued, and were not issued in violation of any preemptive rights, call options, rights of first refusal, subscription rights, transfer restrictions or similar rights of any Person (other than Securities Liens and other than as set forth in the Governing Documents of the Group Companies) or applicable Law.

 

(d) Schedule 3.3(d)(i) sets forth a true and complete list of the Company Subsidiaries, listing for each Company Subsidiary its name, legal entity type and the jurisdiction of its formation or organization (as applicable) and its parent company (if wholly-owned) or its owners (if not-wholly owned). Except as set forth on Schedule 3.3(d)(ii), and after giving effect to the Pre-Closing Reorganization, all of the outstanding capital stock or other Equity Interests, as applicable, of each Company Subsidiary are duly authorized, validly issued, free of preemptive rights, restrictions on transfer (other than restrictions under applicable federal, state and other securities Laws), and, if applicable, fully paid and non-assessable, and are owned by the Company, whether directly or indirectly, free and clear of all Liens (other than Permitted Liens). There are no options, warrants, convertible securities, stock appreciation, phantom stock, stock-based performance unit, profit participation, restricted equity, restricted equity unit, other equity or equity-based compensation award or similar rights with respect to any Company Subsidiary and no rights, exchangeable securities, securities, “phantom” rights, appreciation rights, performance units, commitments or other agreements obligating the Company or any Company Subsidiary to issue or sell, or cause to be issued or sold, any equity securities of, or any other interest in, any Company Subsidiary, including any security convertible or exercisable into equity securities of any Company Subsidiary. Other than the Pre-Closing Reorganization, there are no Contracts to which any Company Subsidiary is a party which require such Company Subsidiary to repurchase, redeem or otherwise acquire any Equity Interests or securities convertible into or exchangeable for such equity securities or to make any investment in any other Person.

 

Section 3.4 Financial Statements; No Undisclosed Liabilities.

 

(a) Attached as Schedule 3.4 are true and complete copies of the following financial statements (such financial statements, the “Financial Statements”):

 

(i) the audited consolidated balance sheet of Archaea and its Subsidiaries as of December 31, 2018 and December 31, 2019 and the related audited consolidated statements of comprehensive loss, cash flows and members’ equity for the fiscal years ended on such dates, together with all related notes and schedules thereto, accompanied by the reports thereon of Archaea’s independent auditors (which reports shall be unqualified) (the “Audited Financial Statements”); and

 

31

 

 

(ii) the unaudited consolidated balance sheet of Archaea and its Subsidiaries as of December 31, 2020 (the “Unaudited Balance Sheet”) and the related unaudited consolidated statements of comprehensive loss, cash flows for the 12 month period then ended (collectively, together with the Unaudited Balance Sheet, the “Unaudited Financial Statements”).

 

(b) Except as set forth on Schedule 3.4(b), the Financial Statements (i) have been prepared from the books and records of the Group Companies; (ii) have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated, except as may be indicated in the notes thereto and subject, in the case of the Unaudited Financial Statements, to the absence of footnotes and year-end adjustments; and (iii) fairly present, in all material respects, the consolidated financial position of Archaea and its Subsidiaries as of the dates thereof and its consolidated results of operations and cash flows for the periods then ended (subject, in the case of the Unaudited Financial Statements, to the absence of footnotes and year-end adjustments, none of which would be expected to be material (in nature or amount) individually or in the aggregate).

 

(c) The books of account and other financial records of each Group Company have been kept accurately in all material respects in the Ordinary Course of Business, the transactions entered therein represent bona fide transactions, and the revenues, expenses, assets and liabilities of the Group Companies have been properly recorded therein in all material respects. Each Group Company has devised and maintains a system of internal accounting policies and controls sufficient to provide reasonable assurances that (i) transactions are executed in all material respects in accordance with management’s authorization; (ii) the transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP and to maintain accountability for assets; and (iii) the amount recorded for assets on the books and records of each Group Company is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any difference (collectively, “Internal Controls”).

 

(d) Archaea has not identified and has not received written notice from an independent auditor of (i) any significant deficiency or material weakness in the system of Internal Controls utilized by the Group Companies; (ii) any fraud, whether or not material, that involves the Group Companies’ management or other employees who have a role in the preparation of financial statements or the Internal Controls utilized by the Group Companies; or (iii) any claim or allegation regarding any of the foregoing. There are no significant deficiencies or material weaknesses in the design or operation of the Internal Controls over financial reporting that would reasonably be expected to materially and adversely affect the Group Companies’ ability to record, process, summarize and report financial information.

 

(e) Except for the Transaction Expenses, the transactions contemplated by the Pre-Closing Reorganization, Liabilities incurred since the Latest Balance Sheet Date and Liabilities set forth on Schedule 3.4(e), (i) (A) the Company has not conducted and does not conduct any material business or engage in any material activities other than those directly related to holding 100% of the limited liability company interests of the Company Subsidiaries, (B) the Group Companies have no Liabilities in excess of $250,000 in the aggregate that would be required to be reflected on an Unaudited Financial Statement prepared in accordance with GAAP and (ii) the Company (A) was formed solely for the purpose of holding 100% of the limited liability company interests of the Company Subsidiaries, (B) has not conducted any material business or engaged in any material activities other than those directly related to holding 100% of the limited liability company interests of the Company Subsidiaries, (C) has never engaged in any other activities other than incident to its ownership of the Company Subsidiaries and (D) has no Liabilities in excess of $250,000 in the aggregate that would be required to be reflected on an Unaudited Financial Statement prepared in accordance with GAAP.

 

32

 

 

(f) Except as set forth on Schedule 3.4(f), no Group Company has any Liabilities of any nature whatsoever in excess of $250,000 in the aggregate that would be required to be reflected on an Unaudited Financial Statement prepared in accordance with GAAP, except (i) Liabilities expressly set forth in or reserved against in the Financial Statements or identified in the notes thereto; (ii) Liabilities which have arisen after the Latest Balance Sheet Date in the Ordinary Course of Business (none of which results from, arises out of, relates to, is in the nature of, or was caused by any breach of Contract or, infringement or violation of Law); (iii) Liabilities arising under this Agreement, the Ancillary Agreements and/or the performance by the Group Companies of their respective obligations hereunder or thereunder, other than those arising in compliance with Section 5.1; or (iv) for fees, costs and expenses for advisors and Affiliates of the Group Companies, including with respect to legal, accounting or other advisors incurred by the Group Companies in connection with the transaction contemplated by this Agreement.

 

(g) No Group Company maintains any “off-balance sheet arrangement” within the meaning of Item 303 of Regulation S-K of the Securities Exchange Act.

 

Section 3.5 No Material Adverse Effect. Since December 31, 2020, through the Execution Date, there has been no Material Adverse Effect.

 

Section 3.6 Absence of Certain Developments. Since the Latest Balance Sheet Date and without giving effect to the Pre-Closing Reorganization, each Group Company (other than the Company) has conducted its business in the Ordinary Course of Business in all material respects. Except as set forth on Schedule 3.6, from the Latest Balance Sheet Date through the Execution Date, no Group Company has taken or omitted to be taken any action that would, if taken or omitted to be taken after the Execution Date, require the Buyer’s consent in accordance with Section 5.1.

 

Section 3.7 Real Property.

 

(a) Schedule 3.7 sets forth a true, correct and complete list of all Leases with annual rental payments of over $100,000 (including all amendments, extensions, renewals, guaranties and other agreements with respect thereto) for such Leased Real Property (such Leases, the “Material Leases”). Except as set forth on Schedule 3.7, with respect to each of the Material Leases: (i) no Group Company has subleased, licensed or otherwise granted any right to use or occupy the Leased Real Property or any portion thereof to a third party; (ii) such Material Lease is legal, valid, binding, enforceable against the applicable Group Company and in full force and effect; (iii) the Group Company’s possession and quiet enjoyment of the Leased Real Property under such Material Lease has not been disturbed and there are no disputes with respect to such Material Lease; (iv) no Group Company is currently in default under, nor has any event occurred or, to the Knowledge of the Group Company, does any circumstance exist that, with notice or lapse of time or both would constitute a default by the Group Company under any Material Lease; (v) to the Knowledge of the Group Company, no default, event or circumstance exists that, with notice or lapse of time, or both, would constitute a default by any counterparty to any such Material Lease; and (vi) except as set forth on Schedule 3.7, no Group Company has collaterally assigned or granted any other security interest in such Material Lease or any interest therein. The Group Company has made available to the Buyer a true, correct and complete copy of all Material Leases. No Group Company owns any real property.

 

(b) The Leased Real Property identified in Schedule 3.7 comprises all of the material real property used in the business of the Group Companies.

 

33

 

 

(c) The buildings, material building components, structural elements of the improvements, roofs, foundations, parking and loading areas, mechanical systems (including all heating, ventilating, air conditioning, plumbing, electrical, elevator, security, utility and fire/life safety systems) (collectively, the “Improvements”) included in the Leased Real Property are in good working condition and repair and sufficient for the operation of the business by each Group Company as currently conducted. No Group Company has received written notice of (i) any condemnation, eminent domain or similar Proceedings affecting any parcel of Leased Real Property; (ii) any special assessment or pending improvement liens to be made by any Governmental Entity affecting any parcel of Leased Real Property; or (iii) violations of any building codes, zoning ordinances, governmental regulations or covenants or restrictions affecting any Leased Real Property. There are no recorded or unrecorded agreements, easements or encumbrances that materially interfere with the continued access to or operation of the business of the Group Companies as currently conducted on the Leased Real Property.

 

Section 3.8 Tax Matters.

 

(a) All income and other material Tax Returns required to be filed by or with respect to each Group Company has been timely filed pursuant to applicable Laws. All income and other material Tax Returns filed by or with respect to each of the Group Companies are true, complete and correct in all material respects and have been prepared in material compliance with all applicable Laws. Each Group Company has timely paid all material amounts of Taxes due and payable by it (whether or not shown as due and payable on any Tax Return). Each Group Company has timely and properly withheld and paid to the applicable Governmental Entity all material Taxes required to have been withheld and paid by it in connection with any amounts paid or owing to any employee, independent contractor, creditor, equityholder or other third party and has otherwise complied in all material respects with all applicable Laws relating to such withholding and payment of Taxes. Each Group Company has complied in all material respects with all applicable Laws relating to the payment of stamp duties and the reporting and payment of sales, use, ad valorem and value added Taxes.

 

(b) No written claim has been made by a Taxing Authority in a jurisdiction where a Group Company does not file a particular type of Tax Return, or pay a particular type of Tax, that such Group Company is or may be subject to taxation of that type by, or required to file that type of Tax Return in, that jurisdiction. The income Tax Returns made available to the Buyer reflect all of the jurisdictions in which the Group Companies are required to remit material income Tax.

 

(c) There is no Tax audit or examination or any Proceeding now being conducted, pending or threatened in writing (or, to the Knowledge of the Company, otherwise threatened) with respect to any Taxes or Tax Returns of or with respect to any Group Company. No Group Company has commenced a voluntary disclosure proceeding in any jurisdiction that has not been fully resolved or settled. 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, to the Knowledge of the Company, no such deficiency has been threatened or proposed against any Group Company.

 

(d) No Group Company has agreed to (or has had agreed to on its behalf) any extension or waiver of the statute of limitations applicable to any Tax or Tax Return, or any extension of time with respect to a period of Tax collection, assessment or deficiency, which period (after giving effect to such extension or waiver) has not yet expired, and no request for any such waiver or extension is currently pending. No Group Company is the beneficiary of any extension of time (other than an automatic extension of time not requiring the consent of the applicable Governmental Entity) within which to file any Tax Return not previously filed. No private letter ruling, administrative relief, technical advice, request for a change of any method of accounting or other similar ruling or request has been granted or issued by, or is pending with, any Governmental Entity that relates to the Taxes or Tax Returns of any Group Company. No power of attorney granted by any Group Company with respect to any Taxes is currently in force.

 

34

 

 

(e) No Group Company has been a party to any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) (or any similar provision of U.S. state or local or non-U.S. Tax Law).

 

(f) Archaea is (and has been for its entire existence) properly treated as a partnership for U.S. federal and all applicable state and local income Tax purposes. The Company and each Company Subsidiary is (and has been for its entire existence) properly treated for U.S. federal and all applicable state and local income tax purposes as the type of entity set forth opposite its name on Schedule 3.8(f). No election has been made (or is pending) to change any of the foregoing.

 

(g) No Group Company will be required to include any material item of income, or exclude any material item of deduction, for any period after the Closing Date (determined with and without regard to the transactions contemplated hereby) as a result of: (i) an installment sale transaction occurring on or before the Closing Date governed by Code Section 453 (or any similar provision of state, local or non-U.S. Laws); (ii) a transaction occurring on or before the Closing Date 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 or paid on or prior to the Closing Date or deferred revenue realized, accrued or received on or prior to the Closing Date, in each case, outside of the Ordinary Course of Business; (iv) a change in method of accounting with respect to a Pre-Closing Tax Period that occurs or was requested on or prior to the Closing Date (or as a result of an impermissible method used in a Pre-Closing Tax Period); (v) an agreement entered into with any Governmental Entity (including a “closing agreement” under Code Section 7121) on or prior to the Closing Date; or (vi) intercompany transaction occurring or any excess loss account existing on or prior to the Closing Date, in each case described in Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local, or non-U.S. Laws). No Group Company uses the cash method of accounting for income Tax purposes or will be required to make any payment after the Latest Balance Sheet Date as a result of an election under Section 965 of the Code (or any similar provision of state, local, or non-U.S. Laws). No Group Company has any “long-term contracts” that are subject to a method of accounting provided for in Code Section 460. No Group Company is party to or bound by any closing agreement or similar agreement with any Taxing Authority the terms of which would have an effect on any Group Company after the Latest Balance Sheet Date.

 

(h) There is no Lien for Taxes on any of the assets of any Group Company, other than Liens for Taxes not yet due and payable.

 

(i) No Group Company has ever been a member of any Affiliated Group (other than an Affiliated Group the common parent of which is a Group Company). No Group Company has any actual or potential liability for Taxes of any other Person (other than any Group Company) as a result of Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or non-U.S. Laws), successor liability, transferee liability, joint or several liability, by contract, by operation of Law, or otherwise (other than pursuant to an Ordinary Course Tax Sharing Agreement). No Group Company is party to or bound by any Tax Sharing Agreement, except for any Ordinary Course Tax Sharing Agreement. All amounts payable with respect to (or reference to) Taxes pursuant to any Ordinary Course Tax Sharing Agreement have been timely paid in accordance with the terms of such contracts.

 

(j) The unpaid Taxes of the Group Companies (i) did not, as of the Latest Balance Sheet Date, exceed the reserves for Tax liabilities (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Unaudited Balance Sheet (rather than in any notes thereto) and (ii) do not exceed such reserves as adjusted for the passage of time through the Closing Date in accordance with the past practices of the Group Companies in filing their Tax Returns.

 

35

 

 

(k) Other than with respect to other U.S. states and localities, no Group Company (i) has or has had in the last five (5) years an office, permanent establishment, branch, agency or taxable presence outside the jurisdiction of its organization (other than such jurisdictions with respect to which such Group Company has filed income Tax Returns) or (ii) is or has been in the last five years a resident for Tax purposes in any jurisdiction outside the jurisdiction of its organization (other than such jurisdictions with respect to which such Group Company has filed income Tax Returns).

 

(l) No holder of Company Units is a “foreign person” within the meaning of Code Section 1445 or Code Section 1446(f).

 

(m) No Group Company has been, in the past two years, a party to a transaction reported or intended to qualify as a reorganization under Code Section 368. No Group Company has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was governed, or intended or reported to be governed, in whole or in part by Section 355 or Section 361 of the Code in the past two (2) years or that could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Code Section 355(e)) that includes the transactions contemplated hereby.

 

(n) No election has been made under Treasury Regulations Section 301.9100-22 (or any similar provision of state, local, or non-U.S. Laws) with respect to any Group Company.

 

(o) No Group Company has (i) elected to defer the payment of any “applicable employment taxes” (as defined in Section 2302(d)(1) of the CARES Act) pursuant to Section 2302 of the CARES Act, (ii) deferred payment of any Taxes (including withholding Taxes) 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) or (iii) claimed any “employee retention credit” pursuant to Section 2301 of the CARES Act.

 

Section 3.9 Contracts.

 

(a) Except as set forth on Schedule 3.9(a), no Group Company is a party to, or bound by, and no asset of any Group Company is bound by, any:

 

(i) collective bargaining agreement or other Contract with any labor union, labor organization, or works council (each a “CBA”);

 

(ii) Contract with any Material Customer or Material Supplier;

 

(iii) Contract (A) governing the terms of, or otherwise related to, the employment or engagement of any former (to the extent of any ongoing Liability) or current directors, officers, employees or individual independent contractors providing for total annual compensation in excess of $250,000 (other than “at-will” Contracts that may be terminated upon 30 days’ or less notice without the payment of severance), or (B) providing for retention, transaction or change of control payments or benefits, accelerated vesting or any other payment or benefit that may or will become due, in whole or in part, in connection with the consummation of the transactions contemplated hereby;

 

36

 

 

(iv) Contracts pursuant to which Archaea or any Company Subsidiary is obligated to pay or entitled to receive more than $250,000 in a calendar year or more than $2,000,000 in the aggregate over the life of the Contract;

 

(v) any employment agreement with any employee of Archaea or any Company Subsidiary or Contract with any individual independent contractor that has future required scheduled payments in excess of $250,000 per annum and is not terminable by Archaea or such Company Subsidiary, as applicable, upon notice of thirty (30) calendar days or less;

 

(vi) Contract under which any Group Company has created, incurred, assumed or borrowed any money or issued any note, indenture or other evidence of Company Indebtedness or guaranteed Company Indebtedness of others;

 

(vii) Contract resulting in any Lien (other than any Permitted Lien) on any material portion of the assets of any of the Group Companies;

 

(viii) (x) Contract entered into within the five year period preceding the Execution Date, for the settlement or avoidance of any material dispute regarding the ownership, use, validity or enforceability of material Intellectual Property (including consent-to-use and similar contracts) with material ongoing obligations of any Group Company, (y) Contract that materially restricts the use or licensing of any Owned Intellectual Property or (z) license or royalty Contract under which the Group Companies license any material Intellectual Property with annual or one-time payments in excess of $25,000 and other than non-exclusive and user license of commercially-available Software;

 

(ix) Contract providing for any Group Company to make any capital contribution to, in, any Person;

 

(x) Contract providing for aggregate future payments to or from any Group Company in excess of $1,000,000 in any calendar year, other than those that can be terminated without material penalty by such Group Company upon 90 days’ notice or less and can be replaced with a similar Contract on materially equivalent terms in the Ordinary Course of Business;

 

(xi) joint venture, partnership, strategic alliance or similar Contract;

 

(xii) power of attorney;

 

(xiii) Contract that limits or restricts, or purports to limit or restrict, any Group Company (or after the Closing, the Buyer or any Group Company) from (x) engaging or competing in any line of business or business activity in any jurisdiction or (y) acquiring any product or asset or receiving services from any Person or selling any product or asset or performing services for any Person;

 

(xiv) Contract that binds any Group Company to any of the following restrictions or terms: (v) a “most favored nation” or similar provision with respect to any Person; (w) a provision providing for the sharing of any revenue or cost-savings with any other Person; (x) “minimum purchase” requirement; (y) rights of first refusal or first offer (other than those related to real property Leases) or (z) a “take or pay” provision;

 

(xv) Contract pursuant to which any Group Company has granted any sponsorship rights, exclusive marketing, sales representative relationship, franchising consignment, distribution or any other similar right to any third party (including in any geographic area or with respect to any product of the business);

 

37

 

 

(xvi) Contract involving the settlement, conciliation or similar agreement (x) of any Proceeding or threatened Proceeding since December 31, 2020, (y) with any Governmental Entity or (z) pursuant to which any Group Company will have any material outstanding obligation after the Execution Date;

 

(xvii) any Contract under which any Group Company is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any Contract under which the aggregate annual rental payments do not exceed $50,000;

 

(xviii) any Contract under which any Group Company is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by such Group Company, except for any Contract under which the aggregate annual rental payments do not exceed $50,000;

 

(xix) any Contract requiring any capital commitment or capital expenditure (or series of capital commitments or expenditures) by any Group Company in an amount in excess of $500,000 annually or $1,000,000 over the life of the Contract;

 

(xx) Contract requiring any Group Company to guarantee the Liabilities of any Person (other than any other Group Company) or pursuant to which any Person (other than a Group Company) has guaranteed the Liabilities of a Group Company;

 

(xxi) material interest rate, currency, or other hedging Contracts;

 

(xxii) Contracts providing for indemnification by any Group Company, except for any such Contract that is entered into in the Ordinary Course of Business and is not material to any Group Company;

 

(xxiii) Contract concerning confidentiality or non-solicitation obligations that are on-going (other than confidentiality and non-solicitation agreements with customers or prospective customers of the Group Companies or with any of the Group Company’s employees set forth in the applicable Group Company’s standard terms and conditions of sale or standard form of employment agreement, copies of which have previously been delivered to the Buyer, or non-disclosure agreements entered into by the Group Companies with respect to possible business transactions);

 

(xxiv) Contract that relates to the future disposition or acquisition by any Group Company of (x) any business (whether by merger, consolidation or other business combination, sale of securities, sale of assets or otherwise) or (y) any material assets or properties, except for (i) any agreement related to the transactions contemplated hereby, (ii) any non-disclosure or similar agreement entered into in connection with the potential sale of Archaea or (iii) any agreement for the purchase or sale of inventory in the Ordinary Course of Business;

 

(xxv) Contract that relates to any completed disposition or acquisition by any Group Company of (x) any business (whether by merger, consolidation or other business combination, sale of securities, sale of assets or otherwise) or (y) any material assets or properties in each case, entered into or consummated after December 31, 2020, other than sales of inventory in the Ordinary Course of Business;

 

38

 

 

(xxvi) Contract involving the payment of any earn-out or similar contingent payment on or after the Execution Date; and

 

(xxvii) Contracts between any of the Group Companies, on the one hand, and any of their respective Affiliates (except for any other Group Company), on the other hand.

 

(b) Except as disclosed on Schedule 3.9(b), each Contract listed on Section 3.9(a) (each, a “Material Contract”) is in full force and effect and is Enforceable against the applicable Group Company party thereto and, to the Knowledge of the Company, against each other party thereto. Archaea has delivered to, or made available for inspection by, the Buyer a complete and accurate copy of each Material Contract (including all exhibits thereto and all amendments, waivers or other changes thereto). With respect to all Material Contracts, none of the Group Companies or, to the Knowledge of the Company any other party to any such Material Contract, is in material breach thereof or default thereunder and there does not exist under any Material Contract any event or circumstance which, with the giving of notice or the lapse of time (or both), would constitute such a material breach or default thereunder by any Group Company thereunder or, to the Knowledge of the Company, any other party to such Material Contract. During the last 12 months, no Group Company has received any written, claim or notice of material breach of or material default under any such Material Contract. To the Knowledge of the Company, no event has occurred, which individually or together with other events, would reasonably be expected to result in a material breach of or a material default under any such Material Contract by any Group Company or, to the Knowledge of the Company, any other party thereto (in each case, with or without notice or lapse of time or both). During the last 12 months, no Group Company has received written notice from any other party to any such Material Contract that such party intends to terminate or not renew any such Material Contract.

 

(c) Schedule 3.9(c) sets forth a complete and accurate list of the names of the ten (10) largest customers of the Group Companies (measured by aggregate billings) during the 12 months ended December 31, 2020 (each, a “Material Customer”) and the amount of revenue generated by such Material Customer during such 12 month period then ended. Since December 31, 2020, (x) no such Material Customer has canceled, terminated or materially and adversely altered its relationship with any Group Company or, to the Knowledge of the Company, threatened to cancel, terminate or materially and adversely alter its relationship with any Group Company and (y) there have been no material disputes between any Group Company and any Material Customer.

 

(d) Schedule 3.9(d) sets forth a complete and accurate list of the names of the Material Suppliers and the amount paid by the Group Companies during such twelve (12) month period then ended. Since December 31, 2020, (x) no such Material Supplier has canceled, terminated or materially and adversely altered its relationship with any Group Company or, to the Knowledge of the Company, threatened to cancel, terminate or materially and adversely alter its relationship with any Group Company and (y) there have been no material disputes between any Group Company and any Material Supplier.

 

Section 3.10 Intellectual Property.

 

(a) None of the Group Companies nor any of the former and current products, services or operation of the business of the Group Companies have since the Lookback Date infringed, misappropriated or otherwise violated, or currently infringe, misappropriate or otherwise violate, any Intellectual Property of any Person. Except as set forth on Schedule 3.10(a), no Group Company has since the Lookback Date received any written charge, complaint, claim, demand, or notice alleging any such infringement, misappropriation or other violation (including any claim that such Group Company must license or refrain from using any Intellectual Property rights of any Person) or challenging the ownership, registration, validity or enforcement of any material Owned Intellectual Property. To the Knowledge of the Company, no Person is challenging, infringing upon, misappropriating or otherwise violating any material Owned Intellectual Property.

 

39

 

 

(b) Each Group Company owns, or has a valid right to use, all material Intellectual Property that is used in or necessary for the business of such Group Company as currently conducted. Schedule 3.10(b) identifies each patented, issued or registered Intellectual Property and applications for the foregoing, in each case which is owned by or filed in the name of a Group Company. To the Knowledge of the Company, all the Intellectual Property disclosed in Schedule 3.10(b) is subsisting, valid and enforceable. Each Group Company is the sole and exclusive owner of all right, title and interest in and to all Owned Intellectual Property, free and clear of any Liens other than Permitted Liens, and the Owned Intellectual Property is not subject to any outstanding Order materially restricting the use or licensing thereof by such Group Company.

 

(c) Each Group Company has taken commercially reasonable measures to protect the confidentiality of all material trade secrets and any other material confidential information owned by such Group Company. Except as required by applicable Law, no such material trade secret or material confidential information has been disclosed by any Group Company to any Person other than to Persons subject to a duty of confidentiality or pursuant to a written agreement restricting the disclosure and use of such trade secrets or confidential information by such Person. Each Person who has developed any material Owned Intellectual Property for any Group Company has assigned all right, title and interest in and to such Intellectual Property to a Group Company by a valid written assignment or by operation of law. To the Knowledge of the Company, no Person is in violation of any such confidentiality or Intellectual Property assignment agreement.

 

(d) The IT Assets are sufficient in all material respects for the purposes for which such IT Assets are used in current business operations of the Group Companies. The Group Companies have in place reasonable security procedures and have taken commercially reasonable steps designed to safeguard the availability, security and integrity of the IT Assets and all Personal Information, material confidential data and other information stored thereon, including from unauthorized access.

 

(e) Except as set forth on Schedule 3.10(e), to the Knowledge of the Company, the Group Companies have not experienced any Security Breaches or material Security Incidents since the Lookback Date and none of the Group Companies has received any written complaints, claims, demands, inquiries or other notices of investigation, from any Person (including any Governmental Entity or self-regulatory authority) or entity regarding any of the Group Companies’ Processing of Personal Information or compliance with applicable Privacy and Security Requirements.

 

(f) Except as set forth on Schedule 3.10(f), to the Knowledge of the Company, the Group Companies are, and since the Lookback Date, have been, in compliance in all material respects with all applicable Privacy and Security Requirements. To the Knowledge of the Company, the Group Companies have a valid and legal right (whether contractually, by Law or otherwise) to access or use all material Personal Information and material business data processed by or on behalf of the Group Companies in connection with the use and/or operation of its products, services and business.

 

(g) No source code that constitutes a Trade Secret within the Owned Intellectual Property has been disclosed, licensed, released, escrowed, or made available to any third party, other than an escrow agent or a contractor, consultant or developer pursuant to a written confidentiality agreement. No event has occurred that (whether with or without the passage of time, the giving of notice or both) would require that an escrow agent disclose or deliver any such source code to any third party by any Group Company. None of the Software included in the Owned Intellectual Property links to or integrates with any code licensed under an “open source”, “copyleft” or analogous license (including any license approved by the Open Source Initiative and listed at http://www.opensource.org/licenses, GPL, AGPL or other open source software license) in a manner that, to the Knowledge of the Company, has or would require any public distribution of any Software, or a requirement that any other licensee of such Software be permitted to modify, make derivative works of or reverse-engineer any such Software.

 

40

 

 

Section 3.11 Information Supplied. The information supplied or to be supplied by the Group Companies or their respective Affiliates on behalf of any of the Group Companies for inclusion or incorporation by reference in the Proxy Statement, any other document submitted or to be submitted to any other Governmental Entity or any announcement or public statement regarding the transactions contemplated hereby (including the Signing Press Release and the Closing Press Release) shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading at (a) the time such information is filed, submitted or made publicly available (provided, if such information is revised by any subsequently filed amendment to the Proxy Statement prior to the time the Proxy Statement is mailed to the RAC Stockholders, this clause (a) shall solely refer to the time of such subsequent revision); (b) the time the Proxy Statement is first mailed to the RAC Stockholders; (c) the time of the RAC Stockholder Meeting; or (d) the Closing (subject, in each case, to the qualifications and limitations set forth in the materials provided by the Group Companies or that are included in such filings and/or mailings).

 

Section 3.12 Litigation. Except as set forth on Schedule 3.12, there have been since the Lookback Date, and there are no Proceedings or Orders (including those brought or threatened by or before any Governmental Entity) pending, or to the Knowledge of the Company, threatened against or otherwise relating to any Group Company or any of their respective properties at Law or in equity, or any director, officer or employee of any Group Company. Except as set forth on Schedule 3.12, there are no Proceedings pending, initiated or threatened by any Group Company against any other Person, and since the Lookback Date there have not been any such Proceedings.

 

Section 3.13 Brokerage. Except as set forth on Schedule 3.13, no Group Company has any Liability in connection with this Agreement or the Ancillary Agreements, or the transactions contemplated hereby or thereby, that would result in the obligation of any Group Company or any of its Affiliates, or the Buyer or any of its Affiliates to pay any finder’s fee, brokerage or agent’s commissions or other like payments.

 

Section 3.14 Labor Matters.

 

(a) Archaea has delivered to the Buyer Parties a complete list of all employees, workers and individual consultants of each of the Group Companies as of April 5, 2021 and, as applicable, their classification as exempt or non-exempt under the Fair Labor Standards Act, job title, leave status (including type of leave and return date), employing entity and job location, and with respect to each employee, compensation (current annual base salary or wage rate and current target bonus opportunity, if any). All employees of the Group Companies are legally permitted to be employed by the Group Companies in the United States. Except as set forth on Schedule 3.14(a) and except as would not reasonably be expected to result in material Liabilities to the Group Companies, no freelancer, consultant or other contracting party treated as self-employed whose services the Group Companies uses or has used can effectively claim the existence of an employment relationship with one of these companies.

 

41

 

 

(b) No Group Company is a party to or bound by any CBA (including generally applicable collective bargaining agreements), works agreements and company practices relating to employees of any Group Company and no employees of any Group Company are represented by any labor union, works council, trade union, employee organization or other labor organization with respect to their employment with the Group Companies. In the past three years, no labor union or other labor organization, or group of employees of any Group Company has made a demand for recognition or certification, and there are no representation or certification proceedings presently pending or, to the Knowledge of the Company, threatened to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. There are no ongoing or, to the Knowledge of the Company, threatened union organizing activities with respect to employees of any Group Company and no such activities have occurred in the past three years. Since the Lookback Date, there has been no actual or, to the Knowledge of the Company, threatened, unfair labor practice charges, material labor grievances, strikes, walkouts, work stoppages, slowdowns, picketing, hand billing, material labor arbitrations, or other material labor disputes arising under a CBA or against or affecting any Group Company. The Group Companies have no notice or consultation obligations to any labor union, labor organization or works council, which is representing any employee of the Group Companies, in connection with the execution of this Agreement or consummation of the transactions contemplated hereby.

 

(c) Except as set forth in Schedule 3.14(c), the Group Companies are and, since the Lookback Date, have been in compliance in all material respects with all applicable Laws relating to labor, employment and employment practices, including provisions thereof relating to wages and hours, classification (including employee-independent contractor classification and the proper classification of employees as exempt employees and nonexempt employees under the Fair Labor Standards Act and applicable state and local Laws), equal opportunity, employment harassment, discrimination or retaliation, disability rights or benefits, maternity benefits, accessibility, pay equity, workers’ compensation, affirmative action, COVID-19, collective bargaining, workplace health and safety, immigration (including the completion of Forms I-9 for all employees and the proper confirmation of employee visas), whistleblowing, plant closures and layoffs (including the WARN Act), employee trainings and notices, workers’ compensation, labor relations, employee leave issues, affirmative action, unemployment insurance and the payment of social security, employee provident fund and other Taxes. Except as set forth in Schedule 3.14(c), (i) there are no material Proceedings pending or, to the Knowledge of the Company, threatened against any Group Company with respect to or by any current or former employee or individual independent contractor of any Group Company and (ii) since the Lookback Date, none of the Group Companies has implemented any plant closing or layoff of employees triggering notice requirements under the WARN Act, nor is there presently any outstanding liability under the WARN Act, and no such plant closings or employee layoffs are currently planned or announced.

 

(d) Since the Lookback Date, no Group Company has been party to any Proceeding, Order or other dispute involving, or had any material Liability with respect to, any single employer, joint employer or co-employer claims or causes of action by any individual who was employed or engaged by a third party and providing services to any Group Company.

 

(e) Except as would not reasonably be expected to result in material Liabilities to the Group Companies: since the Lookback Date, (i) each of the Group Companies has withheld all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to employees; (ii) no Group Company has been liable for any arrears of wages, compensation, Taxes, penalties or other sums; (iii) each of the Group Companies has paid in full (or properly accrued) to all employees and individual independent contractors all wages, salaries, commissions, bonuses, benefits and other compensation due and payable to or on behalf of such employees or individual independent contractor; and (iv) each individual who has provided or is currently providing services to any Group Company, and has been classified as (x) an independent contractor, consultant, leased employee, or other non-employee service provider, or (y) an exempt employee, has been properly classified as such under all applicable Laws including relating to wage and hour and Tax. None of the Group Companies is materially liable for any delinquent payment to any trust or other fund or to any Governmental Entity with respect to unemployment compensation benefits, social security or other benefits or obligations for any Group Company personnel (other than routine payments to be made in the Ordinary Course of Business).

 

42

 

 

(f) Except as set forth on Schedule 3.14(f), no senior executive or employee with annualized base compensation at or above $250,000 of any Group Company has provided written notice, of any present intention to terminate his or her relationship with any Group Company within the first 12 months following the Closing.

 

(g) To the Knowledge of the Company, no current or former employee or independent contractor of any Group Company is in any material respect in violation of any term of any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, noncompetition agreement, restrictive covenant or other obligation owed to (i) any Group Company; or (ii) any third party with respect to such person’s right to be employed or engaged by any Group Company.

 

(h) To the Knowledge of the Company, except as would not reasonably be expected to result in material liability to the Company, no employee or individual independent contractor has filed a written complaint or allegation of sexual harassment in the last five years.

 

(i) Except as set forth on Schedule 3.14(i), 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 or individual independent contractors of any Group Company has occurred since March 1, 2020 or is currently contemplated, planned or announced, including as a result of COVID-19 or any Law, Order, directive, guideline or recommendation by any Governmental Entity in connection with or in response to COVID-19. Archaea has not otherwise experienced any material employment related liability with respect to COVID-19. No current or former employee of any Group Company has filed or, to the Knowledge of the Company, has threatened, any claims against any Group Company related to COVID-19.

 

Section 3.15 Employee Benefit Plans.

 

(a) Schedule 3.15(a) sets forth a list of each Company Employee Benefit Plan. With respect to each Company Employee Benefit Plan, Archaea has made available to the Buyer true and complete copies of, as applicable, (i) the current plan document (and all amendments thereto), (ii) the most recent summary plan description (with all summaries of material modifications thereto), (iii) the most recent determination, advisory or opinion letter received from the Internal Revenue Service (the “IRS”), (iv) the most recently filed Form 5500 annual report with all schedules and attachments as filed, (v) the most recent actuarial valuation report, and (vi) all related insurance Contracts, trust agreements or other funding arrangements.

 

(b) Except as set forth on Schedule 3.15(b), (i) no Company Employee Benefit Plan provides, and no Group Company has any Liability to provide, retiree, post-ownership or post- termination health or life insurance or any other retiree, post-ownership or post- termination welfare-type benefits to any Person other than as required under Section 4980B of the Code or any similar state Law and for which the covered Person pays the full cost of coverage (each, a “Retiree Welfare Plan”), (ii) no Company Employee Benefit Plan is, and no Group Company sponsors, maintains or contributes to (or is required to contribute to), or has any Liability (including on account of an ERISA Affiliate) under or with respect to a “defined benefit plan” (as defined in Section 3(35) of ERISA) or a plan that is or was subject to Title IV of ERISA or Section 412 or 430 of the Code, and (iii) no Group Company contributes to or has any obligation to contribute to, or has any Liability (including on account of an ERISA Affiliate) under or with respect to, any “multiemployer plan,” as defined in Section 3(37) of ERISA. No Company Employee Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA, or (y) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA). No Group Company has any, or is reasonably expected to have any, Liability under Title IV of ERISA or on account of being considered a single employer under Section 414 of the Code with any other Person. With respect to each Retiree Welfare Plan, the Group Companies have reserved the right to amend, modify or terminate such plan at any time without Liability to any Group Company.

 

43

 

 

(c) Each Company Employee Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code has timely received, or may rely upon, a current favorable determination, advisory or opinion letter from the IRS and nothing has occurred that would reasonably be expected to cause the loss of the tax-qualified status or to adversely affect the qualification of such Company Employee Benefit Plan. Each Company Employee Benefit Plan has been established, operated, maintained, funded and administered in accordance in all material respects with its respective terms and in compliance in all material respects with all applicable Laws, including ERISA and the Code. There have been no “prohibited transactions” within the meaning of Section 4975 of the Code or Section 406 or 407 of ERISA that are not otherwise exempt under Section 408 of ERISA and no breaches of fiduciary duty (as determined under ERISA) with respect to any Company Employee Benefit Plan. There is no claim or Proceeding (other than routine and uncontested claims for benefits) pending or, to the Knowledge of the Company, threatened, with respect to any Company Employee Benefit Plan or against the assets of any Company Employee Benefit Plan. The Group Companies have complied in all material respects with the requirements of the Patient Protection and Affordable Care Act, including the Health Care and Education Reconciliation Act of 2010, as amended (the “ACA”), and none of the Group Companies has incurred (whether or not assessed) any penalty or Tax under the ACA (including with respect to the reporting requirements under Sections 6055 and 6056 of the Code, as applicable) or under Section 4980H, 4980B or 4980D of the Code. With respect to each Company Employee Benefit Plan, all contributions, distributions, reimbursements and premium payments that are due have been timely made in accordance with the terms of the Company Employee Benefit Plan and in compliance with the requirements of applicable Law, and all contributions, distributions, reimbursements and premium payments for any period ending on or before the Closing Date that are not yet due have been made or properly accrued.

 

(d) Except as set forth on Schedule 3.15(d), neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated hereby, alone or together with any other event could, directly or indirectly, (i) result in any compensation or benefit becoming due or payable, or required to be provided, to any current or former officer, employee, director or individual independent contractor of the Group Companies under a Company Employee Benefit Plan or otherwise, (ii) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any current or former officer, employee, director or individual independent contractor of the Group Companies under a Company Employee Benefit Plan or otherwise, (iii) result in the acceleration of the time of payment, vesting or funding, or forfeiture, of any such benefit or compensation under a Company Employee Benefit Plan or otherwise, (iv) result in the forgiveness in whole or in part of any outstanding loans made by the Group Companies to any current or former officer, employee, director or individual independent contractor of the Group Companies, or (v) limit or restrict the Group Companies’ or the Buyer’s ability to merge, amend or terminate any Company Employee Benefit Plan.

 

(e) Each Company Employee Benefit Plan or other arrangement that is, in any part, a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code has been documented, operated and maintained in compliance with Section 409A of the Code and applicable guidance thereunder in all material respects. No Person has any current or contingent right against the Group Companies to be grossed up for, reimbursed or otherwise indemnified or made whole for any Tax or related interest or penalties incurred by such Person, including under Sections 409A or 4999 of the Code or otherwise.

 

44

 

 

(f) Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated hereby could, either alone or in conjunction with any other event, result in the payment or provision of any amount or benefit that could, individually or in combination with any other amount or benefit, constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code).

 

Section 3.16 Insurance. Schedule 3.16 contains a true, correct and complete list of all material insurance policies carried by or for the benefit of the Group Companies (the “Insurance Policies”) and the scope of coverage of each such Insurance Policy. Each Insurance Policy is Enforceable against the applicable Group Company, and no written notice of cancellation or termination has been received by any Group Company with respect to any such Insurance Policy. All premiums due under such policies have been paid in accordance with the terms of such Insurance Policy. No Group Company is in material breach or material default under, nor has it taken any action or failed to take any action which, with notice or the lapse of time, or both, would constitute a material breach or material default under, or permit a material increase in premium, cancellation, material reduction in coverage, material denial or non-renewal with respect to any Insurance Policy. During the 12 months prior to the Execution Date, there have been no material claims by or with respect to the Group Companies under any Insurance Policy as to which coverage has been denied or disputed in any material respect by the underwriters of such Insurance Policy.

 

Section 3.17 Compliance with Laws; Permits.

 

(a) Except as set forth on Schedule 3.17(a), (i) each Group Company is and, since the Lookback Date has been, in compliance in all material respects with all Laws and Orders applicable to the conduct of the Group Companies and (ii) since the Lookback Date, no Group Company has received any written, or oral notice from any Governmental Entity or any other Person alleging a material violation of or noncompliance with any such Laws or Orders.

 

(b) Each Group Company holds all material permits, licenses, registrations, approvals, consents, accreditations, waivers, exemptions and authorizations of any Governmental Entity required or advisable for the ownership and use of its assets and properties or the conduct of its business (including for the occupation and use of the Leased Real Property) as currently conducted (collectively, “Permits”) and is in compliance with all terms and conditions of such Permits, except where the failure to have such Permits would not be reasonably expected to be, individually or in the aggregate, material to the business of the Group Companies. All of such Permits are valid and in full force and effect and none of such Permits will be terminated as a result of, or in connection with, the consummation of the transactions contemplated hereby. No Group Company is in default under any such Permit and no condition exists that, with the giving of notice or lapse of time or both, would constitute a default under such Permit, and no Proceeding is pending or threatened, to suspend, revoke, withdraw, modify or limit any such Permit in a manner that has had or would reasonably be expected to have a material impact on the ability of the applicable Group Company to use such Permit or conduct its business. Each such Permit will continue in full force and effect immediately following Closing.

 

45

 

 

Section 3.18 Environmental Matters. Except as set forth in Schedule 3.18, (a) each Group Company is, and since the Lookback Date, has been, in compliance in all material respects with all Environmental Laws, which compliance includes and has included obtaining, maintaining and complying with all permits, licenses, registrations, approvals, consents, accreditations, waivers, exemptions and authorizations required by Environmental Laws; (b) no Group Company has received any notice, report, Order, directive or other information regarding any actual or alleged material violation of, or material Liabilities under, any Environmental Laws, the subject of which remains unresolved, and there are no pending, or, to the Knowledge of the Company, threatened Proceedings against any of the Group Companies relating to a material violation of, or material Liabilities under, any Environmental Law; (c) no Group Company has used, generated, manufactured, distributed, sold, treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled, released, exposed any Person to, or owned, leased or operated any property or facility contaminated by, any Hazardous Materials, that has resulted or would result in material Liability to any of the Group Companies under Environmental Laws; (d) no consent, approval or authorization of or registration or filing with any Governmental Entity is required by the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6, et seq. in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby; and (e) except in the ordinary course pursuant to Material Contracts, no Group Company has assumed, undertaken or become subject to any material Liability of any other Person, or provided an indemnity with respect to any material Liability, in each case under Environmental Laws. The Group Companies have provided to the Buyer true and correct copies of all material environmental, health and safety assessments, reports and audits and all other material environmental, health, and safety documents relating to any of the Group Companies or their current or former properties, facilities or operations, that in each case are in the Group Companies’ possession or control.

 

Section 3.19 Regulatory Status.

 

(a) To the extent any Group Company qualifies as a “holding company” pursuant to PUHCA or FERC’s implementing regulations thereunder, it is a “holding company” solely with respect to one or more “exempt wholesale generators,” as defined in PUHCA or FERC’s implementing regulations thereunder.

 

(b) Each Group Company that sells electric energy, capacity and/or ancillary services has MBR Authority, and such Group Company’s MBR Authority is in full force and effect.

 

(c) No Group Company is subject to regulation as a “natural gas company” as defined in the NGA with respect to rates, terms and conditions of service, accounting and recordkeeping, or other matters.

 

(d) No Group Company is subject to, or not exempt from, financial, organizational or rate regulation by any State Commission.

 

(e) Except for prior authorization under Section 203 of the FPA, required for the Business Combination Transactions taken together, no pre-Closing consent, approval or authorization, registration or filing is required by FERC or any State Commission in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby.

 

Section 3.20 Title to and Sufficiency of Assets. Each Group Company has sole and exclusive, good and marketable title to, or, in the case of leased or subleased assets, an Enforceable leasehold interest in, or, in the case of licensed assets, a valid license in, all of its material personal property assets, properties, rights and interests (whether real, personal, tangible or intangible) free and clear of all Liens other than Permitted Liens (collectively, the “Assets”). The Assets constitute all of the material assets, properties, rights and interests necessary to conduct the business of the Group Companies after the Closing, in all material respects, as it has been operated for the 12 months prior to the Execution Date.

 

46

 

 

Section 3.21 Affiliate Transactions. Except for (a) employment relationships and compensation and benefits, (b) arrangements with Aria or related to the Aria Agreement or (c) as disclosed on Schedule 3.21, (x) there are no Contracts (except for the Governing Documents) between any of the Group Companies, on the one hand, and any Interested Party on the other hand and (y) no Interested Party (i) owes any amount to any Group Company, (ii) owns any property or right, tangible or intangible, that is used by any Group Company, or (iii) owns any direct or indirect interest of any kind in, or controls or is a director, officer, employee, stockholder, partner or member of, or consultant to, or lender to or borrower from, or has the right to participate in the profits of, any Person which is a competitor, supplier, customer or landlord, of any Group Company (other than in connection with ownership of less than 2% of the stock of a publicly traded company) (such transactions or arrangements described in clauses (x) and (y), “Affiliated Transactions”).

 

Section 3.22 Trade & Anti-Corruption Compliance.

 

(a) Neither the Company nor, after giving effect to the Pre-Closing Reorganization, any of the Company’s Subsidiaries, nor, to the Knowledge of the Company, any of its respective directors, officers, managers or employees or any agent or third party representative acting on behalf of the Company, or after giving effect to the Pre-Closing Reorganization, of any of its Subsidiaries, a Sanctioned Person. Neither the Company nor, after giving effect to the Pre-Closing Reorganization, any of the Company’s Subsidiaries, nor, to the Knowledge of the Company, any of their respective directors, officers, managers or employees or any agent or third party representative acting on behalf of the Company, or after giving effect to the Pre-Closing Reorganization, of any of the Company’s Subsidiaries, is or has been in the last five years: (i) operating in, conducting business with, or otherwise engaging in dealings or transactions with or for the benefit of any Sanctioned Person or in any Sanctioned Country in either case in violation of applicable Sanctions in connection with the business of the Group Companies; (ii) engaging in any export, re-export, transfer or provision of any goods, software, technology, data or service without, or exceeding the scope of, any required or applicable licenses or authorizations under all applicable Ex-Im Laws; or (iii) otherwise in violation of any applicable Sanctions or applicable Ex-Im Laws or U.S. anti-boycott requirements (together “Trade Controls”), in connection with the business of the Group Companies.

 

(b) In the last five years, in connection with or relating to the business of the Group Companies, no Group Company, nor, to the Knowledge of the Company, any of the directors, officers, managers or employees of Archaea or any agent or third party representative acting on behalf of the Group Companies: (i) has made, authorized, solicited or received any bribe or any unlawful rebate, payoff, influence payment or kickback, (ii) has established or maintained, or is maintaining, any unlawful fund of corporate monies or properties, (iii) has used or is using any corporate funds for any illegal contributions, gifts, entertainment, hospitality, travel or other unlawful expenses, or (iv) has, directly or indirectly, made, offered, authorized, facilitated, received or promised to make or receive, any payment, contribution, gift, entertainment, bribe, rebate, kickback, financial or other advantage, or anything else of value, regardless of form or amount, to or from any Governmental Entity or any other Person, in each case in violation of applicable Anti-Corruption Laws.

 

(c) As of the Execution Date, there are no, and since the Lookback Date there have been no, Proceedings or Orders alleging any such violation of any Trade Controls or Anti-Corruption Laws by or on behalf of any Group Company.

 

47

 

 

Section 3.23 Company Business Activities.

 

(a) Since its formation, the Company has not conducted any material business activities other than activities directed toward the accomplishment of a Business Combination. There is no Contract, commitment, or Order binding upon the Company or to which the Company is a party which has or would reasonably be expected to have the effect of prohibiting or impairing any business practice of the Company or any acquisition of property by the Company or the conduct of business by the Company after the Closing, other than such effects, individually or in the aggregate, which are not, and would not reasonably be expected to be, material to the Company.

 

(b) Except for this Agreement, the Aria Agreement and the Business Combination Transactions, the Company has no interests, rights, obligations or Liabilities with respect to, and the Company is not party to, bound by or has its assets or property subject to, in each case whether directly or indirectly, any Contract or transaction which is, or could reasonably be interpreted as constituting, a Business Combination. Other than as set forth in this Agreement and the Aria Agreement, the Company has not, directly or indirectly (whether by merger, consolidation or otherwise), acquired, purchased, leased or licensed (or agreed to acquire, purchase, lease or license) any business, corporation, partnership, association or other business organization or division or part thereof.

 

(c) The Company has no Liabilities that are required to be disclosed on a balance sheet in accordance with GAAP, other than (i) Liabilities arising under this Agreement, the Ancillary Agreements or the performance by the Company of its obligations hereunder or thereunder; (ii) Liabilities which have arisen in the Ordinary Course of Business (none of which results from, arises out of or was caused by any breach of warranty or Contract, infringement or violation of Law); and (iii) Liabilities for fees, costs and expenses for advisors, vendors and Affiliates of the Company, including with respect to legal, accounting or other advisors incurred by the Company in connection with the Business Combination Transactions.

 

Section 3.24 No Other Representations and Warranties. EACH BUYER PARTY, ON BEHALF OF ITSELF AND ITS AFFILIATES, INCLUDING RAC AND THE SPONSOR, HEREBY ACKNOWLEDGES AND AGREES THAT, NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, (A) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE BY ARCHAEA IN THIS ARTICLE III OR IN ANY ANCILLARY AGREEMENT, NO GROUP COMPANY OR AFFILIATE THEREOF NOR ANY OTHER PERSON MAKES ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE GROUP COMPANIES OR ANY OTHER PERSON OR THEIR RESPECTIVE BUSINESSES, OPERATIONS, ASSETS, LIABILITIES, CONDITION (FINANCIAL OR OTHERWISE) OR PROSPECTS, NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO THE BUYER PARTIES, RAC, THE SPONSOR OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES OF ANY DOCUMENTATION, FORECASTS, PROJECTIONS OR OTHER INFORMATION, WITH RESPECT TO ANY ONE OR MORE OF THE FOREGOING, AND (B) NONE OF THE BUYER PARTIES NOR THEIR ANY OF THEIR RESPECTIVE AFFILIATES, INCLUDING RAC AND THE SPONSOR, RELIED ON ANY REPRESENTATION OR WARRANTY FROM OR ANY OTHER INFORMATION PROVIDED BY ANY GROUP COMPANY OR ANY AFFILIATE THEREOF. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE BY ARCHAEA IN THIS ARTICLE III OR IN ANY ANCILLARY AGREEMENT, ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE EXPRESSLY DISCLAIMED BY ARCHAEA. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NOTHING IN THIS SECTION 3.24 SHALL LIMIT ANY CLAIM OR CAUSE OF ACTION (OR RECOVERY IN CONNECTION THEREWITH) WITH RESPECT TO FRAUD.

 

48

 

Article IV
REPRESENTATIONS AND WARRANTIES OF THE BUYER PARTIES

 

As an inducement to the Group Companies to enter into this Agreement and consummate the transactions contemplated hereby, except as set forth in the applicable section of the Buyer Disclosure Schedules or as disclosed in the RAC SEC Documents and publicly available prior to the Execution Date (to the extent the qualifying nature of such disclosure is readily apparent from the content of such RAC SEC Documents, but excluding disclosures referred to in “Forward-Looking Statements”, “Risk Factors” and any other disclosures therein to the extent they are of a predictive or cautionary nature or related to forward-looking statements), the Buyer Parties and RAC each hereby represent and warrant that the following representations and warranties are true and correct as of the Execution Date and as of the Closing Date (except, as to any representations and warranties that specifically relate to an earlier date, in which case such representations and warranties were true and correct as of such earlier date):

 

Section 4.1 Organization; Authority; Enforceability. The Buyer is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of Delaware. Company Merger Sub is a limited liability company and is duly organized, validly existing and in good standing under the Laws of the State of Delaware. Rice Holdings is a limited liability company and is duly organized, validly existing and in good standing under the Laws of the State of Delaware. IntermediateCo is a limited liability company and is duly organized, validly existing and in good standing under the Laws of the State of Delaware. RAC is a corporation and is duly incorporated, validly existing and in good standing under the Laws of the State of Delaware.

 

(b) The Buyer Parties, other than RAC, have all the requisite limited liability company power and authority to own, lease and operate their respective assets and properties and to carry on their respective businesses as presently conducted in all material respects. RAC has all corporate power and authority to own, lease and operate its assets and properties and to carry on its businesses as presently conducted in all material respects.

 

(c) Each Buyer Party is duly qualified, licensed or registered to do business under the Laws of each jurisdiction in which the conduct of its business or locations of its assets and/or properties makes such qualification necessary, except where the failure to be so qualified would not, individually or in the aggregate, reasonably be expected to be material to the Buyer Parties, taken as a whole.

 

(d) No Buyer Party is the subject of any bankruptcy, dissolution, liquidation, reorganization or similar proceeding.

 

(e) Each Buyer Party, other than RAC, has the requisite limited liability company power and authority to execute and deliver this Agreement and the Ancillary Agreements to which it is a party and to perform its obligations hereunder and thereunder, and, subject to the receipt of the requisite approval of this Agreement by the Buyer Member, to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance of this Agreement and the Ancillary Agreements and, subject to the receipt of the requisite approval of this Agreement by the Buyer Member, the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary limited liability company and/or corporate actions, as applicable. This Agreement has been (and each of the Ancillary Agreements to which each Buyer Party will be a party will be) duly executed and delivered by such Buyer Party and are or will be Enforceable against such Buyer Party. No other proceedings on the part of the Buyer, except for the Required Vote of the RAC Stockholders, are necessary to approve and authorize the execution, delivery or performance of this Agreement and the Ancillary Agreements. RAC has the requisite corporate power and authority, as applicable, to execute and deliver this Agreement and the Ancillary Agreements to which it is a party and to perform its obligations hereunder and thereunder, and, subject to the receipt of the Required Vote of the RAC Stockholders with respect to the RAC Stockholder Voting Matters, to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance of this Agreement and the Ancillary Agreements has been authorized by the special committee of independent directors of RAC and the board of directors of RAC and, subject to the receipt of the Required Vote of the RAC Stockholders with respect to the RAC Stockholders Voting Matters, the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate actions. No other vote of the equityholders of RAC, other than the Required Vote of the RAC Stockholders is necessary to approve this Agreement and the Ancillary Agreements and the transactions contemplated thereby.

 

49

 

 

(f) A correct and complete copy of the RAC Governing Documents, as in effect on the Execution Date, are filed as Exhibit 3.1 to the Form 8-K filed with the SEC on October 27, 2020 and Exhibit 3.3 to the Form S-1 filed with the SEC on October 6, 2020. RAC is not the subject of any bankruptcy, dissolution, liquidation, reorganization or similar proceeding.

 

Section 4.2 Non-contravention. Subject to the receipt of the requisite approval of this Agreement by the Buyer Member and except as set forth on Schedule 4.2, and assuming the truth and accuracy of the Group Companies’ representations and warranties contained in Section 3.1(a), neither the execution and delivery of this Agreement or any Ancillary Agreement nor the consummation of the transactions contemplated hereby or thereby will (a) conflict with or result in any material breach of any provision of the Governing Documents of any Buyer Party; (b) other than the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, require any material filing with, or the obtaining of any material consent or approval of, any Governmental Entity; (c) result in a material violation of or a material default (or give rise to any right of termination, cancellation, or acceleration) under, any of the terms, conditions or provisions of any note, mortgage, other evidence of indebtedness, guarantee, license agreement, lease or other Contract to which any Buyer Party is a party or by which any Buyer Party or any of their respective assets may be bound; (d) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of the Buyer; or (e) except for violations which would not prevent or delay the consummation of the transactions contemplated hereby, violate in any material respect any Law, Order, or Lien applicable to any Buyer Party, excluding from the foregoing clauses (b), (c), (d) such requirements, violations or defaults which would not reasonably be expected to be material to the Buyer Parties, taken as a whole, or materially affect any Buyer Parties’ ability to perform its obligations under this Agreement and the Ancillary Agreements or to consummate the transactions hereby or thereby.

 

Section 4.3 Buyer Parties Capitalization.

 

(a) As of the Execution Date, the authorized capitalization of the Buyer is as set forth on Schedule 4.3(a). All outstanding OpCo Common Units are (i) issued in compliance in all material respects with applicable Law and (ii) not issued in breach or violation of preemptive rights, rights of first refusal, rights of first offer or Contract. As of the Execution Date, except in each case as set forth in the RAC Governing Documents, the Buyer Governing Documents, the Aria Agreement, any Permitted Equity Subscription Agreement, the Subscription Agreements, this Agreement, or the RAC SEC Documents, there are no outstanding (A) outstanding Equity Interests of the Buyer, (B) options, warrants, convertible securities, stock appreciation, phantom stock, stock-based performance unit, profit participation, restricted stock, restricted stock unit, other equity-based compensation award or similar rights with respect to the Buyer or other rights (including preemptive rights) or agreements, arrangement or commitments of any character, whether or not contingent, of the Buyer to acquire from any Person, and no obligation of the Buyer to issue or sell, or cause to be issued or sold, any Equity Interest of the Buyer, or (C) obligations of the Buyer to repurchase, redeem, or otherwise acquire any of the foregoing securities, shares, Equity Interests, securities convertible into or exchangeable for such Equity Interests, options, equity equivalents, interests or rights or to make any investment in any other Person (other than this Agreement). Except as set forth on Schedule 4.3(a), as described in the Aria Agreement and the Equity Interests the Buyer holds in Company Merger Sub, the Buyer does not hold any direct or indirect Equity Interests, participation or voting right or other investment (whether debt, equity or otherwise) in any Person (including any Contract in the nature of a voting trust or similar agreement or understanding).

 

50

 

 

(b) Company Merger Sub is wholly-owned by the Buyer, and Company Merger Sub does not hold any equity interests or rights, options, warrants, convertible or exchangeable securities, subscriptions, calls, puts or other analogous rights, interests, agreements, arrangements or commitments to acquire or otherwise relating to any equity or voting interest of any other Person. The Buyer is wholly-owned by IntermediateCo, and IntermediateCo does not hold any equity interests or rights, options, warrants, convertible or exchangeable securities, subscriptions, calls, puts or other analogous rights, interests, agreements, arrangements or commitments to acquire or otherwise relating to any equity or voting interest of any other Person. IntermediateCo is wholly-owned by Rice Holdings, and Rice Holdings does not hold any equity interests or rights, options, warrants, convertible or exchangeable securities, subscriptions, calls, puts or other analogous rights, interests, agreements, arrangements or commitments to acquire or otherwise relating to any equity or voting interest of any other Person. Rice Holdings is wholly-owned by RAC, and RAC does not hold any equity interests or rights, options, warrants, convertible or exchangeable securities, subscriptions, calls, puts or other analogous rights, interests, agreements, arrangements or commitments to acquire or otherwise relating to any equity or voting interest of any other Person.

 

(c) The Company Interests to be issued to Archaea pursuant to this Agreement will, upon issuance and delivery at the Closing, (i) be duly authorized and validly issued, and fully paid and nonassessable, (ii) be issued in compliance in all material respects with applicable Law, (iii) not be issued in breach or violation of any preemptive rights (or similar rights) created by Law, Governing Documents or Contract, and (iv) be issued to Archaea with good and valid title, free and clear of any Liens other than Securities Liens and any restrictions set forth in the RAC Governing Documents, the Buyer Certificate of Formation, the Stockholders Agreement and the Rice Holdings A&R LLCA.

 

(d) Other than as set forth on Schedule 4.3(d), the Buyer Parties have no obligations with respect to or under any indebtedness for borrowed money.

 

Section 4.4 Litigation. There is no material Proceeding pending or, to the Knowledge of the Buyer, threatened against or affecting a Buyer Party or its properties or rights.

 

Section 4.5 Brokerage. Except as set forth on Schedule 4.5, none of the Buyer Parties have incurred any Liability, in connection with this Agreement or the Ancillary Agreements, or the transactions contemplated hereby or thereby, that would result in the obligation of any Buyer Party to pay a finder’s fee, brokerage or agent’s commissions or other like payments.

 

Section 4.6 Business Activities.

 

(a) Since its formation, no Buyer Party has conducted any material business activities other than activities directed toward the accomplishment of a Business Combination. Except as set forth in the RAC Governing Documents, Buyer Governing Documents, and the Aria Agreement there is no Contract, commitment, or Order binding upon any Buyer Party or to which any Buyer Party is a party which has or would reasonably be expected to have the effect of prohibiting or impairing any business practice of the Buyer Parties or any acquisition of property by the Buyer Parties or the conduct of business by the Buyer Parties after the Closing, other than such effects, individually or in the aggregate, which are not, and would not reasonably be expected to be, material to the Buyer Parties.

 

(b) Except for this Agreement, the Aria Agreement and the Business Combination Transactions, no Buyer Party has any interests, rights, obligations or Liabilities with respect to, and the Buyer is not party to, bound by or has its assets or property subject to, in each case whether directly or indirectly, any Contract or transaction which is, or could reasonably be interpreted as constituting, a Business Combination. Other than as set forth in this Agreement and the Aria Agreement, the Buyer Parties have not, directly or indirectly (whether by merger, consolidation or otherwise), acquired, purchased, leased or licensed (or agreed to acquire, purchase, lease or license) any business, corporation, partnership, association or other business organization or division or part thereof.

 

51

 

 

(c) The Buyer Parties have no Liabilities that are required to be disclosed on a balance sheet in accordance with GAAP, other than (i) Liabilities expressly set forth in or reserved against in the balance sheets of the respective Buyer Parties as of December 31, 2020 (as applicable, the “Buyer Balance Sheet”); (ii) Liabilities arising under this Agreement, the Ancillary Agreements or the performance by the Buyer Parties of their respective obligations hereunder or thereunder; (iii) Liabilities which have arisen after the date of the applicable Buyer Balance Sheet in the Ordinary Course of Business (none of which results from, arises out of or was caused by any breach of warranty or Contract, infringement or violation of Law); and (iv) Liabilities for fees, costs and expenses for advisors, vendors and Affiliates of the Buyer Parties or the Sponsor, including with respect to legal, accounting or other advisors incurred by the Buyer Parties or the Sponsor in connection with the Business Combination Transactions.

 

Section 4.7 Compliance with Laws. The Buyer Parties, and have been since their formation date, in compliance in all material respects with all Laws applicable to the conduct of the Buyer Parties and the Buyer Parties have not received any written notices from any Governmental Entity or any other Person alleging a material violation of or noncompliance with any such Laws.

 

Section 4.8 Organization of Buyer Parties. The Buyer Parties were formed solely for the purpose of engaging in the transactions contemplated hereby, other than entry into this Agreement or the Aria Agreement, has not conducted any business activities, and has no assets or Liabilities other than those incident to its formation.

 

Section 4.9 Financing. The Buyer has delivered to Archaea true, correct and complete copies of (i) each of the Subscription Agreements entered into by the Buyer with the PIPE Investors and (ii) an executed debt commitment letter, dated as of the Execution Date (including all exhibits, schedules and annexes thereto, collectively, as amended, the “Debt Commitment Letter”, and together with the Subscription Agreements and Forward Purchase Agreement, the “Commitment Letters”), from the Debt Financing Sources and all fee letters associated therewith (the “Fee Letter”) (provided that provisions in the fee letters related solely to fees and economic terms and “market flex” provisions agreed to by the parties may be redacted (none of which redacted provisions adversely affect the availability of or impose additional conditions on, the availability of the Debt Financing at the Closing)) to provide, subject to the terms and conditions therein, the amount of the financing set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing, the “Financing”). To the Knowledge of the Buyer and assuming the accuracy of the representations and warranties of the applicable Debt Financing Sources and Equity Financing Source set forth in the Commitment Letters, with respect to the Debt Financing Sources and each Equity Financing Source, as applicable, as of the Execution Date, the Commitment Letters are in full force and effect and have not been withdrawn or terminated, or otherwise amended or modified, and no withdrawal, termination, amendment or modification is currently contemplated by any party thereto. Each of the Commitment Letters is Enforceable against the Buyer and, to the Knowledge of the Buyer and assuming the accuracy of the representations and warranties of the applicable Debt Financing Source and Equity Financing Source set forth in the Commitment Letters, each Debt Financing Source and Equity Financing Source. Other than the Fee Letter, there are no other agreements, side letters, or arrangements between the Buyer and (i) Debt Financing Source related to the Debt Financing or (ii) any Equity Financing Source relating to any Subscription Agreement or the Forward Purchase Agreement. As of the Execution Date, there are no facts or circumstances that (i) would reasonably be expected to constitute a default or a breach of the Commitment Letters by the Buyer or, to Buyer’s Knowledge, the other parties thereto or (ii) to Buyer’s Knowledge, would reasonably be expected to result in any of the conditions set forth in any Commitment Letter not being satisfied, or the aggregate amount of the Financing not being available to the Buyer, on the Closing Date. Except as set forth in the Commitment Letters and the Fee Letter, there are no conditions precedent to the obligations of the Debt Financing Sources or the Equity Financing Sources to provide the Financing or any contingencies that would permit the Debt Financing Sources or the Equity Financing Sources, as applicable, to reduce the total amount of the Financing (including any condition or other contingency relating to the availability of the Financing pursuant to any “flex” provisions). As of the date of this Agreement, Buyer has paid in full any and all commitment fees or other fees required to be paid pursuant to the terms of the Commitment Letters or Fee Letter on or before the date of this Agreement, and will pay in full any such amounts due on or before the Closing Date.

 

52

 

 

Section 4.10 Buyer Parties. Company Merger Sub: (a) has been or will be formed solely for the purposes of executing and delivering this Agreement and/or the Ancillary Agreements and consummating the transactions contemplated by this Agreement or thereby (as applicable); (b) is, or when formed will be, and at all times prior to the Closing will be, directly or indirectly, wholly-owned by Buyer; (c) has not engaged, and prior to the Closing will not engage, in any business or activity other than the activities related to its organization and the execution of this Agreement and/or the Ancillary Agreements and the consummation of the transactions contemplated by this Agreement or thereby (as applicable); (d) other than its Governing Documents, this Agreement and any Ancillary Agreement (as applicable) such Person is not, and at all times prior to the Closing will not be, party to or bound by any Contract, commitment or Order; or (e) other than the performance of its obligations under its Governing Documents, this Agreement and/or any Ancillary Agreement (as applicable), such Person, has no Liabilities that are required to be disclosed on a balance sheet in accordance with GAAP.

 

Section 4.11 Tax Matters. Except as set forth on Schedule 4.11:

 

(a) Each of the Buyer Parties and RAC has filed all income Tax Returns and other material Tax Returns required to be filed by each such entity on or prior to the Closing Date pursuant to applicable Laws (taking into account any validly obtained extension of time within which to file). All income Tax Returns and other material Tax Returns filed by each of the Buyer Parties and RAC are correct and complete in all material respects and have been prepared in material compliance with all applicable Laws. All material amounts of Taxes due and payable by any of the Buyer Parties or RAC (taking into account applicable extensions) and for which the applicable statute of limitations remains open have been paid (whether or not shown as due and payable on any Tax Return).

 

(b) Each of the Buyer Parties and RAC has properly withheld or collected and paid to the applicable Taxing Authority all material amounts of Taxes required to have been withheld and paid by each such entity in connection with any amounts paid or owing to any employee, individual independent contractor, creditor, equityholder or other third party and all material sales, use, ad valorem, value added, and similar Taxes and has otherwise complied in all material respects with all applicable Laws relating to the withholding, collection and payment of such Taxes.

 

(c) None of the Buyer Parties nor RAC has received any written claim made by a Taxing Authority in a jurisdiction where any such entity does not file a particular type of Tax Return, or pay a particular type of Tax, that any such entity is or may be subject to taxation of that type by, or required to file that type of Tax Return in, that jurisdiction that has not been settled or resolved.

 

(d) None of the Buyer Parties nor RAC is currently nor has been within the last five years the subject of any Tax proceeding with respect to any Taxes or Tax Returns of or with respect to such entity, no such Tax proceeding is pending, and to the Knowledge of any of the Buyer Parties or RAC, no such Tax Proceeding has been threatened in writing, in each case, that has not been settled or resolved. None of the Buyer Parties nor RAC has ever commenced a voluntary disclosure proceeding in any jurisdiction that has not been resolved or settled. All material deficiencies for Taxes asserted or assessed in writing against any of the Buyer Parties or RAC have been paid, settled or withdrawn, and, to the Knowledge of each such entity, no such deficiency has been threatened or proposed in writing against any of the Buyer Parties or RAC.

 

53

 

 

(e) Except for extensions resulting from the extension of the time to file any applicable Tax Return, there are no outstanding agreements extending or waiving the statute of limitations applicable to any Tax or Tax Return with respect to any of the Buyer Parties or RAC or extending a period of Tax collection, assessment or deficiency, which period (after giving effect to such extension or waiver) has not yet expired, and no written request for any such waiver or extension is currently pending. None of the Buyer Parties nor RAC is the beneficiary of any extension of time (other than a validly obtained extension of time not requiring the consent of the applicable Governmental Entity or other extension of time obtained in the Ordinary Course of Business) within which to file any Tax Return not previously filed. No private letter ruling, administrative relief, technical advice, or other similar ruing or request has been granted or issued by, or is pending with, any Governmental Entity that relates to the Taxes or Tax Returns of any of the Buyer Parties or RAC.

 

(f) None of the Buyer Parties nor RAC will be required to include any material item of income, or exclude any material item of deduction, for any period (or portion thereof) beginning 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 on or before the Closing Date governed by Code Section 453 (or any similar provision of state, local or non-U.S. Laws); (ii) a disposition occurring on or before the Closing Date 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 or deferred revenue realized, accrued or received, in each case, outside the Ordinary Course of Business on or prior to the Closing Date; (iv) a change in method of accounting with respect to a Pre-Closing Tax Period that occurs or was requested on or prior to the Closing Date (or as a result of an impermissible method used in a Pre-Closing Tax Period); (v) an agreement entered into with any Governmental Entity (including a “closing agreement” under Code Section 7121) on or prior to the Closing Date; or (vi) as a result of application of Code Section 965 or any similar provision of U.S. state or local or non-U.S. Tax Law.

 

(g) None of the Buyer Parties nor RAC has deferred any “applicable employment taxes” under Section 2303 of the CARES Act, and each of the Buyer Parties and RAC has properly complied with all requirements for obtaining for all material credits that each such entity has claimed under Section 2301 of the CARES Act or any similar provision of U.S. state or local or non-U.S. Tax Law.

 

(h) There is no Lien for Taxes on any of the assets of the Buyer Parties or RAC, other than Permitted Liens.

 

(i) None of the Buyer Parties nor RAC has ever been a member of 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) and none of such entities has any liability for Taxes of any other Person as a result of Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Laws), successor liability, transferee liability, joint or several liability, by contract, by operation of Law, or otherwise (other than pursuant to this Agreement or any of the Ancillary Agreements, if any). None of the Buyer Parties nor RAC is party to or bound by any Tax Sharing Agreement except for any Ordinary Course Tax Sharing Agreement.

 

(j) The unpaid Taxes of each of the Buyer Parties and RAC does not materially exceed reserves for Tax liabilities maintained by each such entity in accordance with GAAP, as adjusted for the passage of time through the Closing Date in accordance with the past practices of each such entity in filing its Tax Returns.

 

54

 

 

(k) Since the date of its respective formation, other than RAC, each of the Buyer Parties has at all times been classified for all U.S. federal and applicable state and local tax purposes as a partnership or an entity which is disregarded as an entity separate from its owner (as described in Section 301.7701-3 of the Treasury Regulations). Since the date of its formation, RAC has at all times been classified for all U.S. federal and applicable state and local tax purposes as a domestic corporation (within the meaning of Section 7701 of the Code).

 

(l) None of the Buyer Parties nor RAC has taken or agreed to take any action not contemplated by this Agreement and/or any Ancillary Agreements that could reasonably be expected to prevent, impair or impeded the intended tax treatment of the transactions described in this Agreement.

 

Section 4.12 Non-contravention. Subject to the receipt of the Required Vote of the RAC Stockholders with respect to the RAC Stockholder Voting Matters, and assuming the truth and accuracy of the Group Companies’ representations and warranties contained in Section 3.1(a), neither the execution, delivery and performance of this Agreement or any Ancillary Agreement nor the consummation of the transactions contemplated hereby or thereby will (a) conflict with or result in any material breach of any provision of the RAC Governing Documents; (b) other than the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, require any material filing with, or the obtaining of any material consent or approval of, any Governmental Entity; (c) result in a material violation of or a material default (or give rise to any right of termination, cancellation, or acceleration) under, any of the terms, conditions or provisions of any note, mortgage, other evidence of indebtedness, guarantee, license agreement, lease or other Contract to which RAC is a party or by which RAC or any of their respective assets may be bound; (d) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of RAC; or (e) except for violations which would not prevent or delay the consummation of the transactions contemplated hereby, violate in any material respect any Law, Order, or Lien applicable to RAC, excluding from the foregoing clauses (b), (c), (d) and Section 4.13 such requirements, violations or defaults which would not reasonably be expected to be material to RAC, taken as a whole. The Required Vote is the only vote of the holders of any class or series of RAC capital stock necessary to approve the transactions contemplated by this Agreement and the Ancillary Agreements. RAC is in compliance in all material respects with the related party policies set forth in the RAC Governing Documents.

 

Section 4.14 RAC Capitalization.

 

(a) As of the Execution Date, the authorized share capital of RAC is as set forth on Schedule 4.14(a). All outstanding RAC Common Stock and RAC Warrants are (1) issued in compliance in all material respects with applicable Law and (2) not issued in breach or violation of preemptive rights, rights of first refusal, rights of first offer or Contract. As of the Execution Date, except in each case (i) as set forth in the RAC Governing Documents, the Subscription Agreements, this Agreement, or the RAC SEC Documents and (ii) for RAC Common Stock and RAC Warrants, the Forward Purchase Securities and the RAC Share Redemption, there are no outstanding (x) outstanding Equity Interests of the Buyer, (y) options, warrants, convertible securities, stock appreciation, phantom stock, stock-based performance unit, profit participation, restricted stock, restricted stock unit, other equity-based compensation award or similar rights with respect to RAC or other rights (including preemptive rights) or agreements, arrangement or commitments of any character, whether or not contingent, of RAC to acquire from any Person, and no obligation of RAC to issue or sell, or cause to be issued or sold, any Equity Interest of the Buyer, or (z) obligations of RAC to repurchase, redeem, or otherwise acquire any of the foregoing securities, shares, Equity Interests, securities convertible into or exchangeable for such Equity Interests, options, equity equivalents, interests or rights or to make any investment in any other Person (other than this Agreement). Except as set forth on Schedule 4.14(a) and the Equity Interests RAC holds in the Buyer and its Subsidiaries, RAC does not hold any direct or indirect Equity Interests, participation or voting right or other investment (whether debt, equity or otherwise) in any Person (including any Contract in the nature of a voting trust or similar agreement or understanding).

 

55

 

 

(b) Other than as set forth on Schedule 4.14(b), RAC has no obligations with respect to or under any indebtedness for borrowed money.

 

Section 4.15 Information Supplied; Proxy Statement. The information supplied or to be supplied by RAC or the Buyer Parties or their respective Affiliates on behalf of RAC or a Buyer Party for inclusion or incorporation by reference in the Proxy Statement, the Additional RAC Filings, any other RAC SEC Filing, any other document submitted to any other Governmental Entity or any announcement or public statement regarding the transactions contemplated hereby (including the Signing Press Release and the Closing Press Release) shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading at (a) the time such information is filed, submitted or made publicly available (provided, if such information is revised by any subsequently filed amendment to the Proxy Statement prior to the time the Proxy Statement is mailed to the RAC Stockholders, this clause (a) shall solely refer to the time of such subsequent revision); (b) the time the Proxy Statement is first mailed to the RAC Stockholders; (c) the time of the RAC Stockholder Meeting; or (d) the Closing (subject to the qualifications and limitations set forth in the materials provided by the Buyer or that are included in such filings and/or mailings). The Proxy Statement will, at the time it is mailed to the RAC Stockholders, comply in all material respects with the applicable requirements of the Securities Exchange Act and the rules and regulations of the SEC thereunder applicable to the Proxy Statement.

 

Section 4.16 Trust Account. As of the Execution Date, the Buyer has at least $237,000,000 (the “Trust Amount”) in the Trust Account, with such funds invested in United States government securities or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act of 1940, and held in trust by the Trustee pursuant to the Trust Agreement. The Trust Agreement is in full force and effect and is Enforceable against the Buyer. The Trust Agreement has not been terminated, repudiated, rescinded, amended, supplemented or modified, in any respect by the Buyer or the Trustee, and no such termination, repudiation, rescission, amendment, supplement or modification is contemplated by the Buyer. The Buyer is not a party to or bound by any side letters with respect to the Trust Agreement or (except for the Trust Agreement) any Contracts, arrangements or understandings, whether written or oral, with the Trustee or any other Person that would (a) cause the description of the Trust Agreement in the RAC SEC Documents to be inaccurate in any material respect or (b) entitle any Person (other than (i) the RAC Stockholders who shall have exercised their rights to participate in the RAC Share Redemption, (ii) the underwriters of the Buyer’s initial public offering, who are entitled to a deferred underwriting discount and (iii) the Buyer, with respect to income earned on the proceeds in the Trust Account to cover any of its Tax obligations and up to $100,000 of interest on such proceeds to pay dissolution expenses), to any portion of the proceeds in the Trust Account. There are no Proceedings (or to the Knowledge of the Buyer, investigations) pending or, to the Knowledge of the Buyer, threatened with respect to the Trust Account.

 

56

 

 

Section 4.17 RAC SEC Documents; Financial Statements; Controls.

 

(a) RAC has timely filed or furnished all forms, reports, schedules, statements and other documents required to be filed or furnished by it with the SEC pursuant to the Securities Act or the Securities Exchange Act, as applicable, since the consummation of the initial public offering of RAC’s securities (all such forms, reports, schedules, statements and other documents filed or furnished with the SEC together with any amendments, restatements, supplements, exhibits and schedules thereto and other information incorporated therein, the “RAC SEC Documents”). As of their respective dates, each of the RAC SEC Documents, as amended (including all financial statements included therein, exhibits and schedules thereto and documents incorporated by reference therein), complied in all material respects with the applicable requirements of the Securities Act, or the Securities Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such RAC SEC Documents (including, as applicable, the Sarbanes-Oxley Act and any rules and regulations promulgated thereunder). None of (i) the RAC SEC Documents contained, when filed or, if amended prior to the Execution Date, as of the date of such amendment with respect to those disclosures that are amended, any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or (ii) any other RAC SEC Filings, any document submitted to any other Governmental Entity or any announcement or public statement regarding the transactions contemplated by this Agreement (including the Signing Press Release and the Closing Press Release) submitted after the Execution Date and prior to the Closing 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 not misleading. There are no outstanding or unresolved comments in comment letters received from the SEC with respect to the RAC SEC Documents. To the Knowledge of the Buyer, as of the Execution Date, neither the SEC nor other Governmental Entity is conducting any investigation or review of any RAC SEC Document. No notice of any SEC review or investigation of the Buyer or the RAC SEC Documents has been received by the Buyer. Since the consummation of the initial public offering, all comment letters received by the Buyer from the SEC or the staff thereof and all responses to such comment letters filed by or on behalf of the Buyer are publicly available on the SEC’s EDGAR website.

 

(b) The RAC SEC Documents contain true and complete copies of RAC’s financial statements. Each of the financial statements of RAC included in the RAC SEC Documents, including all notes and schedules thereto, complied in all material respects, when filed or if amended prior to the Execution Date, as of the date of such amendment, with the rules and regulations of the SEC, the Securities Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable) with respect thereto, were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or, in the case of the unaudited statements, as permitted by Rule 10-01 of Regulation S-X of the Securities Exchange Act), in the case of audited financials, were audited in accordance with the standards of the PCAOB and fairly present in all material respects in accordance with applicable requirements of GAAP (subject, in the case of the unaudited statements, to normal year-end audit adjustments) the financial position of RAC, as of their respective dates and the results of operations and the cash flows of RAC, for the periods presented therein.

 

(c) The books of account and other financial records of RAC have been kept accurately in all material respects in the Ordinary Course of Business, the transactions entered therein represent bona fide transactions, and the revenues, expenses, assets and liabilities of RAC have been properly recorded therein in all material respects. RAC has devised and maintains a system of internal accounting policies and controls sufficient to provide reasonable assurances that (i) transactions are executed in all material respects in accordance with management’s authorization; (ii) the transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP and to maintain accountability for assets; and (iii) the amount recorded for assets on the books and records of RAC is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any difference.

 

57

 

 

(d) RAC has not identified and has not received written notice from an independent auditor of (i) any significant deficiency or material weakness in the system of Internal Controls utilized by RAC; (ii) any fraud, whether or not material, that involves RAC’s management or other employees who have a role in the preparation of financial statements or the Internal Controls utilized by RAC; or (iii) any claim or allegation regarding any of the foregoing. There are no significant deficiencies or material weaknesses in the design or operation of the Internal Controls over financial reporting that would reasonably be expected to materially and adversely affect RAC’s ability to record, process, summarize and report financial information.

 

(e) Since the consummation of the initial public offering of RAC’s securities, RAC has timely filed all certifications and statements required by (i) Rule 13a-14 or Rule 15d-14 under the Securities Exchange Act or (ii) 18 U.S.C. Section 1350 (Section 906 of the Sarbanes-Oxley Act of 2002) with respect to any RAC SEC Document. Each such certification is correct and complete. RAC maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are reasonably designed to ensure that all material information concerning RAC is made known on a timely basis to the individuals responsible for the preparation of RAC’s SEC filings. As used in this ‎Section 5.8(e), the term “file” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.

 

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

 

Section 4.18 Listing. Since its initial public offering, RAC has complied, and is currently in compliance, in all material respects with all applicable listing and corporate governance rules and regulations of the Stock Exchange. The classes of securities representing issued and outstanding shares of RAC Common Stock and RAC Warrants are registered pursuant to Section 12(b) of the Securities Exchange Act and are listed for trading on the Stock Exchange. There is no Proceeding or investigation pending or, to the Knowledge of RAC, threatened against RAC by the Stock Exchange or the SEC with respect to any intention by such entity to deregister the RAC Public Securities or prohibit or terminate the listing of the RAC Public Securities on the Stock Exchange. RAC has taken no action that would reasonably be likely to result in the termination of the registration of the RAC Public Securities under the Securities Exchange Act. RAC has not received any written or, to the Knowledge of RAC, oral deficiency notice from the Stock Exchange relating to the continued listing requirements of the RAC Public Securities.

 

Section 4.19 Investment Company; Emerging Growth Company. RAC is not an “investment company” within the meaning of the Investment Company Act of 1940. RAC constitutes an “emerging growth company” within the meaning of the JOBS Act.

 

Section 4.20 Inspections; Buyer’s Representations. RAC is an informed and sophisticated purchaser, and has engaged advisors, experienced in the evaluation and investment in businesses such as the Group Companies’ business. RAC has undertaken such investigation and has been provided with and has evaluated such documents and information as it has deemed necessary to enable it to make an informed and intelligent decision with respect to the execution, delivery and performance of this Agreement (as applicable). RAC agrees to engage in the transactions contemplated by this Agreement based upon, and has relied on, its own inspection and examination of the Group Companies’ business and on the accuracy of the representations and warranties set forth in Article III and any Ancillary Agreement or certificate delivered by Archaea or the Company pursuant to this Agreement and disclaims reliance upon any express or implied representations or warranties of any nature made by the Group Companies or their respective Affiliates or representatives, except for those set forth in Article III and in any Ancillary Agreement or certificate delivered by the Group Companies pursuant to this Agreement.

 

58

 

 

Section 4.21 PIPE Investment Amount. RAC has delivered to Archaea true, accurate and complete copies of each of the Subscription Agreements pursuant to which the PIPE Investors have committed to provide equity financing to RAC in the aggregate amount of the PIPE Investment. As of the Execution Date, to the Knowledge of RAC, with respect to each PIPE Investor, the Subscription Agreements have not been withdrawn or terminated, or otherwise amended or modified, in any respect.

 

Article V
COVENANTS RELATING TO THE CONDUCT OF THE GROUP COMPANIES AND THE BUYER

 

Section 5.1 Interim Operating Covenants of the Group Companies. From and after the Execution Date until the earlier of the date this Agreement is terminated in accordance with Article X and the Closing Date (such period, the “Pre-Closing Period”):

 

(a) Archaea shall, and Archaea shall cause the other Group Companies to the extent Archaea (directly or indirectly) has the right, authority, power, or is not otherwise prevented from doing so under its or its Subsidiaries’ Governing Documents, to: (i) conduct and operate their business in the Ordinary Course of Business, including with respect to the making of any Capital Expenditures and (ii) maintain intact their respective businesses in all material respects and preserve their relationships with material customers, suppliers, distributors and others with whom such Group Company has a material business relationship, except, in each case, (x) with the prior written consent of the Buyer; (y) as expressly required hereby; or (z) as set forth on Schedule 5.1(a); and

 

(b) without limiting Section 5.1(a), except (A) with the prior written consent of the Buyer (such consent not to be unreasonably withheld, conditioned or delayed); (B) as expressly required hereby; (C) as set forth on Schedule 5.1(b) and (D) other than to the extent that any action is reasonably required to be taken in respect of any actual protocols or policies associated with any COVID-19 Measures, cause the Company Subsidiaries to:

 

(i) amend or otherwise modify any of its Governing Documents (including by merger, consolidation or otherwise);

 

(ii) except as may be required by Law, GAAP or any Governmental Entity with competent jurisdiction, make any material change in the financial or tax accounting methods, principles or practices (or change an annual accounting period);

 

(iii) except to the extent required by applicable Law, make, change or revoke any material election relating to Taxes, enter into any agreement, settlement or compromise with any Taxing Authority relating to any material Tax matter, abandon or fail to diligently conduct any material audit, examination or other Proceeding in respect of a material Tax or material Tax Return, make any request for a private letter ruling, administrative relief, technical advice, change of any method of accounting or other similar request with a Taxing Authority, file any amended material Tax Return, fail to timely file (taking into account valid extensions) any material Tax Return required to be filed, file any Tax Return in a manner inconsistent with the past practices of the Group Companies, fail to pay any material amount of Tax as it becomes due, consent to any extension or waiver of the statutory period of limitations applicable to any Tax or Tax Return, enter into any Tax Sharing Agreement (other than an Ordinary Course Tax Sharing Agreement), adopt or change a method of accounting with respect to Taxes, change an accounting period with respect to Taxes, surrender any right to claim any refund of material Taxes, take any action, or fail to take any action, which action or failure to act prevents, impairs or impedes, or could reasonably be expected to prevent, impair or impede, the intended tax treatment hereunder, or defer payment of any Taxes (including withholding Taxes) 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);

 

59

 

 

(iv) issue or sell, or authorize to issue or sell, any membership interests, shares of its capital stock or any other Equity Interests, as applicable, or issue or sell, or authorize to issue or sell, any securities convertible into or exchangeable for, or options, warrants or rights to purchase or subscribe for, or enter into any Contract with respect to the issuance or sale of, any shares of its membership interests, capital stock or any other Equity Interests;

 

(v) declare, set aside or pay any dividend or make any other distribution other than the payment of cash dividends or cash distributions prior to the Measurement Time or to another Group Company;

 

(vi) split, combine, redeem or reclassify, or purchase or otherwise acquire, any membership interests, shares of its capital stock or any other Equity Interests, as applicable;

 

(vii) (x) incur, assume, guarantee or otherwise become liable or responsible for (whether directly, contingently or otherwise) any Company Indebtedness (other than under the Credit Facilities), as applicable; (y) make any loans, advances or capital contributions to, or investments in, any Person or (z) amend or modify any Company Indebtedness other than indebtedness under existing credit facilities incurred in the Ordinary Course of Business in an amounts not to exceed $1,000,000;

 

(viii) cancel or forgive any Company Indebtedness owed to any Group Company;

 

(ix) make any Capital Expenditure or incur any Liabilities in connection therewith, except for Capital Expenditures with respect to specific projects as set forth in and consistent with the Capital Expenditure Budget;

 

(x) make or effect any amendment or termination (other than an expiration in accordance with the terms thereof) of any Material Contract, enter into any Contract that if entered into prior to the Execution Date would be a Material Contract, in each case other than in the Ordinary Course of Business;

 

(xi) enter into, renew, modify or revise any Affiliated Transaction, as applicable, other than those that will be terminated at Closing;

 

(xii) sell, lease, license, assign, transfer, permit to lapse, abandon, or otherwise dispose of any of its properties or assets that are, with respect to Archaea or any other Group Company, material to the businesses of the Group Companies, except in the Ordinary Course of Business pursuant to clause (a) of the definition thereof;

 

(xiii) adopt or effect a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization;

 

(xiv) grant or otherwise create or consent to the creation of any Lien (other than a Permitted Lien) on any of its material assets or Leased Real Property;

 

(xv) fail to maintain in full force and effect any Insurance Policies or allow any coverage thereunder to be reduced, except as replaced by a substantially similar insurance policy;

 

60

 

 

(xvi) make, increase, decrease, accelerate (with respect to funding, payment or vesting) or grant any base salary, base wages, bonus opportunity, equity or equity-based award or other compensation or employee benefits other than (A) as required by applicable Law or pursuant to a Company Employee Benefit Plan as in effect on the Execution Date that has been provided to Buyer prior to the Execution Date and set forth on Schedule 3.15(a); (B) annual base compensation increases made in the Ordinary Course of Business for employees or individual independent contractors who are holding management positions, or (C) entering into any Company Employee Benefit Plan with any employee or independent contractor hired, engaged or promoted by any of the Group Companies following the Execution Date in the Ordinary Course of Business pursuant to clause (a) of the definition thereof, providing for eligibility to earn total annual compensation equal to or less than $250,000, and only in the form of cash compensation and benefits (other than equity or equity-based compensation, retention or transaction bonuses, severance and/or deferred compensation) for such individuals that are substantially similar to the cash compensation and benefits (other than equity or equity-based compensation, retention or transaction bonuses, severance and/or deferred compensation) made available to other similarly situated employees and service providers of the Group Companies;

 

(xvii) pay or promise to pay, grant or fund, accelerate (with respect to payment or vesting) or announce the grant or award of any equity or equity-based incentive awards, retention, sale, change-in-control or other discretionary bonus, severance or similar compensation or benefits; in each case, other than as required pursuant to a Company Employee benefit Plan as in effect on the Execution Date or applicable Law.

 

(xviii) establish, modify, amend (other than as required by applicable Law or as required for the annual insurance renewal for health and/or welfare benefits), terminate, enter into, commence participation in, or adopt any Company Employee Benefit Plan or any benefit or compensation plan, program, policy, agreement or arrangement that would be a Company Employee Benefit Plan if in effect on the Execution Date;

 

(xix) hire, engage, furlough, temporarily lay off or terminate (other than for cause) any individual with total annual compensation in excess of $250,000;

 

(xx) negotiate, modify, extend, or enter into any CBA or recognize or certify any labor union, labor organization, works council, or group of employees as the bargaining representative for any employees of the Group Companies;

 

(xxi) implement or announce any employee layoffs, plant closings, reductions in force, furloughs, temporary layoffs, salary or wage reductions, work schedule changes or other such actions affecting any group of three or more employees or contractors;

 

(xxii) waive or release any non-competition, non-solicitation, non-disclosure, non-interference, non-disparagement, or other restrictive covenant obligation of any current or former employee or independent contractor or enter into any agreement that restricts the ability of the Group Companies, as applicable, to engage or compete in any line of business in any respect material to any business of the Group Companies, as applicable;

 

(xxiii) buy, purchase or otherwise acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses, other than (A) inventory and supplies in the Ordinary Course of Business or (B) other assets in an amount not to exceed $5,000,000 in the aggregate;

 

61

 

 

(xxiv) take any action, or fail to take any action, which action or failure to act could reasonably be expected to result in (A) loss of “exempt wholesale generator” status pursuant to PUHCA or FERC’s implementing regulations thereunder or otherwise cause Archaea or any other Group Company to become subject to, or not exempt from, PUHCA or FERC’s implementing regulations thereunder, (B) loss of MBR Authority, or (C) financial, organizational or rate regulation by any State Commission;

 

(xxv) enter into any new line of business;

 

(xxvi) make any material change to any of the cash management practices, including materially deviating from or materially altering any of its practices, policies or procedures in paying accounts payable or collecting accounts receivable; or

 

(xxvii) agree to, authorize or commit in writing to do any of the foregoing.

 

(c) From the Measurement Time until the Closing, Archaea shall not, and Archaea shall cause the other Group Companies not to, use any Cash and Cash Equivalents to pay any Transaction Expenses, make any distributions, repay any Company Indebtedness, as applicable, or make any payments in respect of Taxes or that may increase the amounts payable to Archaea at the Closing.

 

(d) Nothing contained herein shall be deemed to give the Buyer or Company Merger Sub, directly or indirectly, the right to control or direct Archaea or any operations of any Group Company prior to the Closing. Prior to the Closing, the Group Companies shall exercise, consistent with the terms and conditions hereof, control over their respective businesses and operations. In addition, nothing herein shall be deemed to prohibit or restrict any Group Company from (i) making Capital Expenditures (A) in the Ordinary Course of Business with respect to specific projects as set forth in and consistent with the Capital Expenditure Budget, (B) in accordance with Schedule 5.1(d) or (C) with the prior written consent of the RAC Special Committee or (ii) consummating the Pre-Closing Reorganization in accordance with Section 6.21.

 

Section 5.2 Interim Operating Covenants of the Buyer.

 

(a) During the Pre-Closing Period, except (x) with the prior written consent of Archaea (such consent not to be unreasonably withheld, conditioned or delayed); (y) as expressly required by this Agreement or pursuant to the Aria Agreement or (z) as set forth on Schedule 5.2(a), RAC shall not, the Buyer shall not (and Buyer shall cause each Buyer Party not to):

 

(i) amend or otherwise modify any of the RAC Governing Documents, the Buyer Governing Documents or the Trust Agreement;

 

(ii) withdraw any of the Trust Amount, other than as permitted by the RAC Governing Documents, Buyer Governing Documents or the Trust Agreement;

 

(iii) other than in connection a RAC Share Redemption, the Forward Purchase Agreement, any Permitted Equity Financing, the repayment of any working capital loan under Section 5.2(a)(vii) in RAC Warrants, or the Subscription Agreements, issue or sell, or authorize to issue or sell, any Equity Interests, or issue or sell, or authorize to issue or sell, any securities convertible into or exchangeable for, or options, warrants or rights to purchase or subscribe for, or enter into any Contract with respect to the issuance or sale of, any Equity Interests of any Buyer Party;

 

(iv) enter into any Tax Sharing Agreement (other than an Ordinary Course Tax Sharing Agreement);

 

(v) other than in connection with a RAC Share Redemption, declare, set aside or pay any dividend or make any other distribution or return of capital (whether in cash or in kind) to the equityholders of the Buyer;

 

(vi) adjust, split, combine, redeem (other than a RAC Share Redemption) or reclassify any of its Equity Interests;

 

62

 

 

(vii) (x) incur, assume, guarantee or otherwise become liable or responsible for (whether directly, contingently or otherwise) any indebtedness for borrowed money, other than indebtedness in order to finance working capital needs (including to pay amounts which would be treated as a Transaction Expense if unpaid as of the Closing Date and any ordinary course operating expenses), which indebtedness permits or allows all or any portion of such indebtedness to be converted into the number of RAC Warrants not to exceed $3,000,000 (with such RAC Warrants issued at $1.00 per RAC Warrant and at an exercise price of $11.50 per RAC Warrant) or which may be otherwise repaid in cash, (y) make any loans, advances or capital contributions to, or investments in, any Person or (z) amend or modify any indebtedness for borrowed money;

 

(viii) enter into any transaction or Contract with the Sponsor or any of its Affiliates for the payment of finder’s fees, consulting fees, monies in respect of any payment of a loan or other compensation paid by Buyer to the Sponsor, Buyer’s officers or directors, or any Affiliate of the Sponsor or Buyer’s officers, for services rendered prior to, or for any services rendered in connection with, the consummation of the transactions contemplated hereby;

 

(ix) make any material changes to its accounting policies, methods or practices, other than as required by GAAP or applicable Law;

 

(x) reduce the exercise price of any RAC Warrants;

 

(xi) compromise, commence or settle any pending or threatened Proceeding (A) involving payments (exclusive of attorney’s fees) by the Buyer not covered by insurance in excess of $1,000,000 or in excess of $5,000,000 in the aggregate, (B) granting material injunctive or other equitable remedy against the Buyer, or (C) which imposes any material restrictions on the operations of businesses of the Buyer;

 

(xii) except to the extent required by applicable Law, (A) make, change or revoke any material election relating to Taxes, (B) enter into any agreement, settlement or compromise with any Taxing Authority relating to a material amount of Taxes, (C) consent to any extension or waiver of the statutory period of limitations applicable to any material Tax matter (other than extensions resulting from the extension of the time to file any applicable Tax Return), (D) file any amended material Tax Return, (E) fail to timely file (taking into account valid extensions) any material Tax Return required to be filed, (F) fail to pay any material amount of Tax as it becomes due, (G) enter into any tax sharing agreement (other than an Ordinary Course Tax Sharing Agreement) or (H) surrender any right to claim any refund of a material amount of Taxes;

 

(xiii) enter into any new line of business; or

 

(xiv) agree or commit in writing to do any of the foregoing.

 

(b) Nothing contained herein shall be deemed to give any Group Company, directly or indirectly, the right to control or direct the Buyer prior to the Closing. Prior to the Closing, the Buyer shall exercise, consistent with the terms and conditions hereof, control over its business.

 

63

 

 

Article VI
PRE-CLOSING AGREEMENTS

 

Section 6.1 Reasonable Best Efforts; Further Assurances. Subject to the terms and conditions set forth herein, and to applicable Laws, during the Pre-Closing Period, the Parties shall cooperate and use their respective reasonable best efforts to take, or cause to be taken, all appropriate action (including executing and delivering any documents, certificates, instruments and other papers that are necessary for the consummation of the transactions contemplated hereby), and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated hereby and the Group Companies shall use reasonable best efforts, and the Buyer shall cooperate in all reasonable respects with the Group Companies, to solicit and obtain any consents of any Persons that may be required in connection with the transactions contemplated hereby, by the Aria Agreement or by the Ancillary Agreements prior to the Closing; provided, however, that other than any fees payable in connection with Notification and Report Forms required pursuant to the HSR Act, no Party or any of their Affiliates shall be required to pay or commit to pay any amount to (or incur any obligation in favor of) any Person from whom any such consent may be required (unless such payment is required in accordance with the terms of the relevant Contract requiring such consent). Subject to the terms set forth herein, each Party shall take such further actions (including the execution and delivery of such further instruments and documents) as reasonably requested by any other Party to effect, consummate, confirm or evidence the transactions contemplated hereby and carry out the purposes of this Agreement.

 

Section 6.2 Trust & Closing Funding. Subject to the satisfaction or waiver of the conditions set forth in Article IX (other than those conditions that by their nature are to be satisfied at Closing, but subject to the satisfaction or waiver of those conditions) and provision of notice thereof to the Trustee (which notice RAC shall provide to the Trustee in accordance with the terms of the Trust Agreement), in accordance with the Trust Agreement and the RAC Governing Documents, at the Closing, RAC shall (a) cause the documents, opinions and notices required to be delivered to the Trustee pursuant to the Trust Agreement to be so delivered and (b) use its best efforts to cause the Trustee to pay as and when due all amounts payable to RAC Stockholders who shall have validly elected to redeem their RAC Stock and use its best efforts to cause the Trustee to pay as and when due the amounts due pursuant to the terms of the Trust Agreement.

 

Section 6.3 Status Preservation.

 

(a) Listing. During the Pre-Closing Period, RAC shall use reasonable best efforts to ensure RAC remains listed as a public company, and to ensure the RAC Common Stock and RAC Warrants continue to be listed, on the Stock Exchange.

 

(b) Qualification as an Emerging Growth Company. RAC shall, at all times during the Pre-Closing Period use reasonable best efforts to (a) take all customary actions necessary to continue to qualify as an “emerging growth company” within the meaning of the Jumpstart Our Business Startups Act of 2012 (“JOBS Act”); and (b) not take any action that in and of itself would cause RAC to not qualify as an “emerging growth company” within the meaning of the JOBS Act.

 

(c) Public Filings. During the Pre-Closing Period, RAC will use reasonable best efforts to have timely filed or furnished all forms, reports, schedules, statements and other documents required to be filed by it with the SEC, under the Securities Act and the Securities Exchange Act and will otherwise comply in all material respects with its reporting obligations under applicable Laws.

 

64

 

 

Section 6.4 Confidential Information. During the Pre-Closing Period, each Party acknowledges and agrees that they shall be bound by and comply with the provisions set forth in the Confidentiality Agreement as if such provisions were set forth herein; provided that any restriction set forth in the Confidentiality Agreement which requires the consent of Archaea to share Confidential Information (as defined in the Confidentiality Agreement) with potential debt or equity financing sources shall be waived, subject to customary obligations of confidentiality. Each Party acknowledges and agrees that each is aware, and each of their respective Affiliates and representatives is aware (or upon receipt of any material nonpublic information of the other Party, will be advised), of the restrictions imposed by the United States federal securities Laws and other applicable foreign and domestic Laws on Persons possessing material nonpublic information about a public company. Each Party hereby agrees, that during the Pre-Closing Period, except in connection with or support of the transactions contemplated by this Agreement (including any communications with potential Equity Financing Sources) or at the request of the Buyer or any of its Affiliates or its or their representatives, while any of them are in possession of such material nonpublic information, none of such Persons shall, directly or indirectly (through its Affiliates or otherwise), acquire, offer or propose to acquire, agree to acquire, sell or transfer or offer or propose to sell or transfer any securities of the Buyer, communicate such information to any other Person or cause or encourage any Person to do any of the foregoing.

 

Section 6.5 Access to Information. During the Pre-Closing Period, upon reasonable prior notice, Archaea shall, and Archaea shall cause the other Group Companies to, afford the representatives of RAC and the Buyer reasonable access, during normal business hours, to the properties, employees, books and records of the Group Companies, as applicable, and furnish to the representatives of RAC and the Buyer such additional financial and operating data and other information regarding the business of the Group Companies as RAC and the Buyer or its representatives may from time to time reasonably request for purposes of consummating the transactions contemplated hereby and preparing to operate the business of the Group Companies following the Closing; provided, nothing herein shall require any Group Company to provide access to, or to disclose any information to, RAC and the Buyer Parties or any of their representatives if such access or disclosure, in the good faith reasonable belief of Archaea, as applicable, (a) would waive any legal privilege or (b) would be in violation of applicable Contracts, Laws or regulations of any Governmental Entity (including the HSR Act).

 

Section 6.6 Notification of Certain Matters. During the Pre-Closing Period, each Party shall disclose to the other Parties in writing any development, fact or circumstance of which such Party has Knowledge, arising before or after the Execution Date, that would cause or would reasonably be expected to result in the failure of the conditions set forth in Section 9.1 or Section 9.2 to be satisfied.

 

Section 6.7 Regulatory Approvals; Efforts.

 

(a) Each Party shall use commercially reasonable efforts to promptly file all notices, reports and other documents required to be filed by such party with any Governmental Entity with respect to the transactions contemplated by this Agreement, and to submit promptly any additional information requested by any such Governmental Entity. Without limiting the generality of the foregoing, each of the Parties will (i) cause the Notification and Report Forms required pursuant to the HSR Act and the joint application pursuant to Section 203 of the FPA with respect to the transactions contemplated hereby to be filed no later than 15 Business Days after the Execution Date; (ii) to the extent available, request early termination of the waiting period relating to such HSR Act filings; (iii) make an appropriate response to any requests for additional information and documentary material made by a Governmental Entity pursuant to the HSR Act or the FPA; and (iv) otherwise use its reasonable best efforts to cause the expiration or termination of the applicable waiting periods under the HSR Act with respect to the transactions contemplated as soon as practicable. The Parties shall use reasonable best efforts to promptly obtain, and to cooperate with each other to promptly obtain, all authorizations, approvals, clearances, consents, actions or non-actions of any Governmental Entity in connection with the above filings, applications or notifications. Each Party shall promptly inform the other Parties of any material communication between itself (including its representatives) and any Governmental Entity regarding any of the transactions contemplated hereby. All filing fees required by applicable Law to any Governmental Entity in order to obtain any such approvals, consents, or Orders shall be Transaction Expenses.

 

65

 

 

(b) The Parties shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated hereby and, to the extent permissible, promptly furnish the other with copies of notices or other communications between any Party (including their respective Affiliates and representatives), as the case may be, and any third party and/or Governmental Entity with respect to such transactions. Each Party shall give the other Party and its counsel a reasonable opportunity to review in advance, to the extent permissible, and consider in good faith the views and input of the other Party in connection with, any proposed material written communication to any Governmental Entity relating to the transactions contemplated hereby, and to the extent reasonably practicable, give the other party the opportunity to attend and participate in any substantive meeting, conference or discussion, either in person or by telephone, with any Governmental Entity in connection with the transactions contemplated hereby.

 

(c) Each Party shall use reasonable best efforts to resolve objections, if any, as may be asserted by any Governmental Entity with respect to the transactions contemplated hereby under the HSR Act, the Sherman Act, the Clayton Act, the Federal Trade Commission Act, and any other United States federal or state or foreign statutes, rules, regulations, Orders, decrees, administrative or judicial doctrines or other Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or constituting anticompetitive conduct (collectively, the “Antitrust Laws”). Subject to the other terms of this Section 6.7(c), each Party shall use reasonable best efforts to take such action as may be required to cause the expiration of the notice periods under the HSR Act or other Antitrust Laws with respect to such transactions as promptly as possible after the Execution Date.

 

Section 6.8 Communications; Press Release; SEC Filings.

 

(a) Prior to the Closing, none of the Parties shall and each Party shall cause its Affiliates not to, make or issue any public release or public announcement concerning this Agreement or the transactions contemplated hereby without the prior written consent of each of the Parties, which consent, in each case, shall not be unreasonably withheld, conditioned or delayed; provided, however, that (i) each Party may make any such announcement which it in good faith believes is necessary or advisable in connection with any required Law or which is required by the requirements of any national securities exchange applicable to such Party and (ii) any Affiliate of a Party that is a private equity, venture capital or investment fund may make customary disclosures to its existing or potential financing sources, including direct or indirect limited partners and members (whether current or prospective) solely to the extent that such disclosures do not constitute material nonpublic information and are subject to customary obligations of confidentiality (it being understood that, to the extent practicable, the Party making such public announcement shall provide such announcement to the other Parties prior to release and consider in good faith any comments from such other Parties); and provided, further, that each Party may make announcements regarding this Agreement and the transactions contemplated by this Agreement consisting solely of information contained in and otherwise consistent with any such mutually agreed press release or public announcement (including, for the avoidance of doubt, the Proxy Statement, Signing Form 8-K and Closing Form 8-K) to their directors, officers, employees, service providers, other material business relationships and other interested parties without the consent of the other Parties.

 

66

 

 

(b) As promptly as practicable following the Execution Date (but in any event within four (4) Business Days thereafter), RAC shall prepare and file a Current Report on Form 8-K pursuant to the Securities Exchange Act to report the execution of this Agreement and the Subscription Agreements, and make public all material nonpublic information provided to potential PIPE Investors prior to the Execution Date (the “Signing Form 8-K”), and RAC, the Buyer and Archaea shall issue a mutually agreeable press release announcing the execution of this Agreement (the “Signing Press Release”). Prior to filing with the SEC, RAC will make available to Archaea a draft of the Signing Form 8-K and the press release and will provide Archaea with a reasonable opportunity to comment on such drafts and shall consider such comments in good faith.

 

(c) As promptly as reasonably practicable after the date of this Agreement, the Parties shall prepare and RAC shall file with the SEC a proxy statement (as amended or supplemented, the “Proxy Statement”), which shall comply as to form, in all material respects, with, as applicable, the provisions of the Securities Exchange Act and the rules and regulations promulgated thereunder, for the purpose of soliciting proxies from the RAC Stockholders to vote at the RAC Stockholder Meeting in favor of the RAC Stockholder Voting Matters. RAC shall file a definitive version of the Proxy Statement with the SEC and cause the same to be mailed to its stockholders of record, as of the record date (the “RAC Record Date”) to be established by the RAC Board as promptly as practicable after, but in any event within five (5) Business Days of, the SEC confirming that they have completed their review of the Proxy Statement. RAC shall promptly commence a “broker search” in accordance with Rule 14a-12 of the Securities Exchange Act.

 

(d) Prior to filing with the SEC, RAC will make available to Archaea drafts of the Proxy Statement and any other documents to be filed with the SEC, both preliminary and final or definitive, and drafts of any amendment or supplement to the Proxy Statement or such other document, including responses to any SEC comment letters, and will provide Archaea with a reasonable opportunity to comment on such drafts and shall consider such comments in good faith. RAC will advise Archaea, promptly after it receives notice thereof, of (i) the time when the Proxy Statement has been filed; (ii) receipt of oral or written notification of the completion of the review by the SEC; (iii) the filing of any supplement or amendment to the Proxy Statement; (iv) any request by the SEC for amendment of, or supplements to, the Proxy Statement; (v) any comments, written or oral, from the SEC relating to the Proxy Statement and responses thereto; and (vi) requests by the SEC for additional information in connection with the Proxy Statement, and shall consult with Archaea regarding, and supply Archaea with copies of, all material correspondence between RAC, the Buyer or any of their respective Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement. In consultation with Archaea, RAC shall promptly respond to any comments of the SEC on the Proxy Statement, and the Parties shall use their respective reasonable best efforts to respond promptly to any comments made by the SEC with respect to the Proxy Statement. RAC will advise the other Parties, promptly after RAC receives notice that the SEC has completed review of the Proxy Statement.

 

(e) The Parties shall ensure that none of the information supplied by it or them or on its or their behalf, respectively, for inclusion or incorporation by reference in (i) the Proxy Statement will, at the time the Proxy Statement is filed with the SEC and at each time at which it is amended, 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, not misleading or (ii) the Proxy Statement will, at the date it is first mailed to the RAC Stockholders and at the time of the RAC Stockholders Meeting 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. If, at any time prior to the RAC Stockholder Meeting, any Party discovers or becomes aware of any information that should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, such Party shall inform the other Parties hereto and, subject to Section 6.8(c), RAC shall promptly file (and Buyer, RAC and Archaea shall cooperate in preparing, to the extent necessary) an appropriate amendment or supplement describing such information with the SEC and, to the extent required by Law, transmit to the RAC Stockholders such amendment or supplement to the Proxy Statement containing such information.

 

67

 

 

(f) The Parties acknowledge that a substantial portion of the Proxy Statement and certain other forms, reports and other filings required to be made by RAC and the Buyer under the Securities Act and Securities Exchange Act in connection with the transactions contemplated hereby (collectively, “Additional RAC Filings”) shall include disclosure regarding (i) the Group Companies and the business of the Group Companies and the management, operations and financial condition of the Group Companies and (ii) RAC, the Buyer and the business of RAC and the management, operations and financial condition of RAC. Accordingly, Archaea agrees to, and Archaea agrees to cause the Group Companies to, as promptly as reasonably practicable, provide RAC and the Buyer with all information concerning Archaea and the other Group Companies, and their respective business, management, operations and financial condition, in each case, that if not disclosed therein, would cause the Proxy Statement and/or any other RAC SEC Filing to contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements, in light of the circumstances, under which they were made, not misleading. The Buyer Parties agree to, as promptly as reasonably practicable, provide the Buyer Parties and the Group Companies with all information concerning such parties and their respective business, management, operations and financial condition, in each case, that if not disclosed therein, would cause the Proxy Statement and/or any other RAC SEC Filing to contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements, in light of the circumstances, under which they were made, not misleading. Archaea shall, and Archaea shall cause the other Group Companies to, make and RAC and the Buyer shall make, and, with respect to each Party, shall cause their respective directors, officers, managers and employees, in each case during normal business hours and upon reasonable advanced notice, to make, available to RAC, the Buyer, Archaea and the other Group Companies, as applicable, and their respective counsel, auditors and other Representatives in connection with the drafting of the Proxy Statement, Additional RAC Filings and any other RAC SEC Filing as reasonably requested by the applicable party, and responding in a timely manner to comments thereto from the SEC all information concerning such party, their respective businesses, management, operations and financial condition, in each case, that is reasonably required to be included in the Proxy Statement, such Additional RAC Filing or other RAC SEC Filing. RAC and the Buyer shall use reasonable best efforts to make all necessary filings with respect to the transactions contemplated hereby under the Securities Act, the Securities Exchange Act and applicable blue sky Laws and the rules and regulations thereunder, shall provide Archaea with a reasonable opportunity to comment on drafts of any such filings and shall consider such comments in good faith, and Archaea shall reasonably cooperate in connection therewith. Without limiting the generality of the foregoing, RAC shall be responsible, and Archaea shall reasonably cooperate with RAC, in connection with (i) preparation for inclusion in the Proxy Statement and the Closing Form 8-K of pro forma financial statements that comply with the requirements of Regulation S-X under the rules and regulations of the SEC (as interpreted by the staff of the SEC) to the extent such pro forma financial statements are required by the Proxy Statement or the Closing Form 8-K and (ii) obtaining the consents of their respective auditors as required in connection with the Proxy Statement, the Closing Form 8-K, the transactions set forth under this Agreement or applicable Law. Archaea shall have a reasonable opportunity to review the pro forma financial statements described in the foregoing sentence and to comment on such drafts and RAC shall consider such comments in good faith.

 

68

 

 

(g) At least five days prior to Closing, RAC shall begin preparing a draft Current Report on Form 8-K in connection with and announcing the Closing, together with, or incorporating by reference, such information that is or may be required to be disclosed with respect to the transactions contemplated hereby pursuant to Form 8-K (the “Closing Form 8-K”). Prior to the Closing, the Parties shall prepare a mutually agreeable press release announcing the consummation of the transactions contemplated hereby (“Closing Press Release”). The Buyer and RAC shall provide Archaea with a reasonable opportunity to review and comment on the press release and the Closing Form 8-K prior to its filing and shall consider such comments in good faith. Concurrently with the Closing, RAC and the Buyer shall distribute the Closing Press Release, and as soon as practicable thereafter, file the Closing Form 8-K with the SEC.

 

(h) Archaea shall provide to RAC as promptly as practicable after the Execution Date (i) audited consolidated balance sheet of Archaea as of December 31, 2018, December 31, 2019 and December 31, 2020, and the related audited consolidated statements of comprehensive loss, cash flows and members equity for the fiscal years ended on such dates, together with all related notes and schedules thereto, accompanied by the reports thereon of Archaea’s independent auditors (which reports shall be unqualified) in each case audited in accordance with the standards of the PCAOB; (ii) unaudited consolidated financial statements of Archaea including consolidated balance sheets, consolidated statements of comprehensive loss, cash flows and members equity as of and for the three month period ended March 31, 2021 together with all related notes and schedules thereto, prepared in accordance with GAAP applied on a consistent basis throughout the covered periods and Regulation S-X of the Securities Exchange Act and reviewed by Archaea’s independent auditor in accordance with Statement on Auditing Standards No. 100 issued by the American Institute of Certified Public Accountants; (iii) all other audited and unaudited financial statements of the Group Companies and any company or business units acquired by the Group Companies, as applicable, required under the applicable rules and regulations and guidance of the SEC to be included in the Proxy Statement and/or the Closing Form 8-K (including pro forma financial information); and (iv) management’s discussion and analysis of financial condition and results of operations prepared in accordance with Item 303 of Regulation S-K of the Securities Exchange Act (as if the Group Companies were subject thereto) with respect to the periods described in clauses (i), (ii) and (iii) above, as necessary for inclusion in the Proxy Statement and Closing Form 8-K.

 

(i) RAC shall provide to Archaea as promptly as practicable after the Execution Date (i) audited consolidated balance sheet of RAC and its Subsidiaries as of December 31, 2020, and the related audited consolidated statements of comprehensive loss, cash flows and members equity for the fiscal years ended on such date, together with all related notes and schedules thereto, accompanied by the reports thereon of RAC’s independent auditor (which reports shall be unqualified) in each case audited in accordance with the standards of the PCAOB; (ii) unaudited consolidated financial statements of RAC and its Subsidiaries including consolidated balance sheets, consolidated statements of comprehensive loss, cash flows and members equity as of and for the three month period ended March 31, 2021 together with all related notes and schedules thereto, prepared in accordance with GAAP applied on a consistent basis throughout the covered periods and Regulation S-X of the Securities Exchange Act and reviewed by the RAC’s independent auditor in accordance with Statement on Auditing Standards No. 100 issued by the American Institute of Certified Public Accountants; (iii) all other audited and unaudited financial statements of RAC and any company or business units acquired by RAC, as applicable, required under the applicable rules and regulations and guidance of the SEC to be included in the Proxy Statement and/or the Closing Form 8-K (including pro forma financial information); and (iv) management’s discussion and analysis of financial condition and results of operations prepared in accordance with Item 303 of Regulation S-K of the Securities Exchange Act with respect to the periods described in clauses (i), (ii) and (iii) above, as necessary for inclusion in the Proxy Statement and Closing Form 8-K.

 

69

 

 

Section 6.9 RAC Stockholder Meeting. Each of the Buyer and RAC, acting through the RAC Board, upon recommendation of the RAC Special Committee, shall take all actions in accordance with applicable Law, and the RAC Governing Documents, and the rules of the Stock Exchange to duly call, give notice of, convene and promptly hold the RAC Stockholder Meeting for the purpose of considering and voting upon the RAC Stockholder Voting Matters, which meeting shall be held not more than 25 days after the date on which RAC completes the mailing of the Proxy Statement to the RAC Stockholders pursuant to the terms of this Agreement. The RAC Board, upon recommendation of the RAC Special Committee, shall recommend adoption of this Agreement and approval of the RAC Stockholder Voting Matters and include such recommendation in the Proxy Statement, and, unless this Agreement has been duly terminated in accordance with the terms herein, neither the RAC Board nor any committee thereof shall (a) change, withdraw, withhold, qualify or modify, or publicly propose or resolve to change, withdraw, withhold, qualify or modify the recommendation of the RAC Board that the RAC Stockholders vote in favor of the approval of the RAC Stockholder Voting Matters, (b) adopt, approve, endorse or recommend any Buyer Competing Transaction or (c) agree to take any of the foregoing actions. Notwithstanding the foregoing, the RAC Board, upon recommendation of the RAC Special Committee, may change, withdraw, withhold, qualify or modify, or publicly propose to or resolve to change, withdraw withhold, qualify, or modify the recommendation of the RAC Special Committee and the RAC Board that the RAC Stockholders vote in favor of the approval of the RAC Stockholder Voting Matters if the RAC Special Committee determines in good faith, after consultation with its legal counsel, that a take such action would constitute a breach by the RAC Special Committee and the RAC Board of its fiduciary obligations to RAC’s stockholders under applicable Law. Each of the Buyer and RAC agrees that its obligation to establish the RAC Record Date, duly call, give notice of, convene and hold the RAC Stockholder Meeting for the purpose of seeking approval of the RAC Stockholder Voting Matters shall not be affected by any change, withdrawal, or modification by the RAC Special Committee or the RAC Board of its recommendation to RAC stockholders, intervening event or other circumstance, and each of the Buyer and RAC agrees to establish the RAC Record Date, duly call, give notice of, convene and hold the RAC Stockholder Meeting and submit for the approval of the RAC Stockholders the RAC Stockholder Voting Matters, in each case as contemplated by this Section 6.9 regardless of whether there shall have occurred any such change, withdrawal, modification of recommendation, intervening event or other circumstance. Unless this Agreement has been duly terminated in accordance with the terms herein, RAC shall take all reasonable lawful action to solicit from the RAC Stockholders proxies in favor of the proposal to adopt this Agreement and approve the RAC Stockholder Voting Matters and shall take all other action reasonably necessary or advisable to secure the approval of the RAC Stockholder Voting Matters. Notwithstanding anything to the contrary contained in this Agreement, RAC may (and in the case of the following clauses (ii) and (iv), at the request of Archaea, shall) adjourn or postpone the RAC Stockholder Meeting for a period of no longer than 15 calendar days: (i) after consultation with Archaea, to the extent necessary to ensure that any supplement or amendment to the Proxy Statement that the RAC Board has determined in good faith is required by applicable Law be provided to the RAC Stockholders; (ii), in each case, for one or more periods, (x) if as of the time for which the RAC Stockholder Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient voting Equity Interests of RAC represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the RAC Stockholder Meeting or (y) in order to solicit additional proxies from the RAC Stockholders for purposes of obtaining approval of the Required Vote; (iii) to seek withdrawals of redemption requests from the RAC Stockholders; or (iv) in order to solicit additional proxies from stockholders for purposes of obtaining approval of the RAC Stockholder Voting Matters; provided, that in the event of any such postponement or adjournment, the RAC Stockholder Meeting shall be reconvened as promptly as practicable following such time as the matters described in such clauses have been resolved.

 

70

 

 

Section 6.10 Expenses. Except as otherwise provided herein, each Party shall be solely liable for and pay all of its own costs and expenses (including attorneys’, accountants’ and investment bankers’ fees and other out-of-pocket expenses) incurred by such Party or its Affiliates in connection with the negotiation and execution of this Agreement, the Aria Agreement and the Ancillary Agreements, the performance of such Party’s obligations hereunder and thereunder and the consummation of the Business Combination Transactions; provided, that if the Closing occurs, at and in connection therewith, RAC shall pay or reimburse each Party for all Transaction Expenses, which shall be paid: (a) first, from the cash released from the Trust Account; and (b) second, thereafter, if such cash is not sufficient to cover all Transaction Expenses, from other cash available to RAC. From and after the Closing, RAC shall, or shall cause its Subsidiaries to, promptly pay or reimburse each Party for all Transaction Expenses to the extent not previously paid.

 

Section 6.11 Financing; Financing Cooperation.

 

(a) Obligations of the Buyer.

 

(i) Prior to the Closing, the Buyer shall, assuming cooperation by Archaea in accordance with Section 6.11(b), use reasonable best efforts to, and shall use reasonable best efforts to cause its Subsidiaries and controlled Affiliates to use reasonable best efforts to, and shall cause their respective officers, employees, advisors and other representatives to use its reasonable best efforts to, take, or cause to be taken, all actions, and to do, or cause to be done, all things reasonably necessary, customary or advisable to arrange and obtain the Financing on the terms and conditions described in the Commitment Letters, including (w) maintaining in effect the Commitment Letters, (x) satisfying on a timely basis (or obtaining the waiver of) all conditions applicable to it and its Affiliates in the Commitment Letters, (y) consummating the Financing at or prior to the Closing, including using its reasonable best efforts to cause the Debt Financing Sources and Equity Financing Sources to fund the Debt Financing and Equity Financing at the Closing in accordance with the terms set forth in the respective Commitment Letter, and (z) complying with its covenants and other obligations under the Commitment Letters.

 

(ii) Buyer shall not, without the prior written consent of Archaea, (A) terminate either Commitment Letter (other than in accordance with its terms or in connection with a replacement of the Commitment Letter permitted pursuant to this Section 6.11) or (B) agree to or permit any amendment or modification to be made to, or grant any waiver of any provision under, either Commitment Letter (except for any amendments to the Commitment Letters that would not or would not reasonably be expected to (I) amend, modify or expand the conditions precedent, or impose new or additional conditions or contingencies, to the Debt Financing or the Equity Financing, (II) reduce the aggregate amount of the Financing below the amount required (after taking into account available cash of Archaea) to make the Closing Date payments, (III) prevent, impede or delay the availability of or consummation of the Financing or (IV) adversely impact the ability of Buyer or any of its Affiliates to enforce its right against the parties to the Commitment Letters or the definitive agreements with respect thereto).

 

71

 

 

(iii) Buyer shall give Archaea prompt written notice of (A) any termination of either Commitment Letter, (B) any actual breach, default, termination or repudiation of any provisions of either Commitment Letter by any party thereto, (C) the receipt of any written notice or other written communication with respect to any actual breach, default, termination or repudiation of any provisions of either Commitment Letter by any party thereto and (D) the occurrence of any other event or development, in the case of this clause (D), solely to the extent that Buyer believes in good faith that such event or development would adversely impact the ability of Buyer to obtain all or any portion of the Financing contemplated by the Commitment Letters on the terms and conditions, in the manner or from the sources contemplated by the Commitment Letters, in each case of the foregoing, with respect to the Debt Financing, solely to the extent the Debt Financing or a material portion thereof would reasonably be expected to become unavailable. Promptly after Archaea delivers to Buyer a written request, Buyer shall provide any information reasonably requested by Archaea relating to any circumstance referred to in the immediately preceding sentence. Buyer shall promptly after execution thereof deliver to Company copies of any amendment, replacement, supplement, modification or waiver to either Commitment Letter.

 

(iv) For the avoidance of doubt, it is understood that, subject to the limitations set forth in this Section 6.11 and in the Debt Commitment Letter, Buyer may amend or replace the Debt Commitment Letter to (A) add or replace additional lenders, lead arrangers, syndication agents or similar entities or reallocate commitments or reassign titles so long as the aggregate amount of the Debt Financing is not reduced below the amount as is necessary to make the Closing Date payments and any such amendment or replacement would not reasonably be expected to delay or prevent the Closing or (B) modify pricing and implement or exercise any “flex” provisions as in effect on the date of this Agreement.

 

72

 

 

(b) Obligations of the Company. During the period from the Execution Date to the earlier of the Closing and the termination of this Agreement in accordance with its terms, Archaea shall use reasonable best efforts, and shall, after giving effect to the Pre-Closing Reorganization, cause the other Group Companies and its and their officers, directors and employees to use reasonable best efforts to provide, and shall use its reasonable best efforts to direct its and their accountants, legal counsel and other representatives to provide, all cooperation as may be reasonably requested by Buyer as necessary in connection with causing the conditions of the Debt Financing to be satisfied or otherwise in connection with the arrangement of the Debt Financing, including using reasonable best efforts to: (i) participate at reasonable times in a reasonable number of meetings, drafting sessions, presentations, road shows, and rating agency and due diligence sessions, in each case, that are customary for financings of a type similar to the Debt Financing and upon reasonable advance notice (provided that such participation may be over conference call or other electronic means, and need not be in person); (ii) furnish Buyer and its Debt Financing Sources with such financial and operating data and other relevant information with respect to the Group Companies that is readily available to the Group Companies or can be prepared by the Group Companies without unreasonable effort and as is required under the Debt Commitment Letter or as reasonably requested by Buyer or any of its Debt Financing Sources for the preparation of the confidential information memoranda, ratings agency presentations or the definitive documentation, in each case in connection with the Debt Financing (provided that, (A) the Buyer shall be solely responsible for the preparation of pro forma financial information (other than, for the avoidance of doubt, Archaea’s historical financial statements required for Buyer to prepare the pro forma financial statements), including pro forma cost savings, synergies, capitalization or other adjustments desired to be incorporated into any financial information, (B) the Group Companies shall not be required to provide any description of all or any component of the Debt Financing, including any such description to be included in any liquidity or capital resources disclosure or any “description of notes” and (C) the Group Companies shall not be required to provide projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing); (iii) assist Buyer and its Debt Financing Source, as may be reasonably requested by Buyer, in the preparation of (A) bank offering memoranda, (B) customary marketing material, confidential information memoranda and syndication materials to be used in a syndication of the Debt Financing and (C) materials for rating agency presentations; (iv) cooperate with the marketing efforts of Buyer and its Debt Financing Sources for any portion of the Debt Financing as reasonably requested by Buyer; (v) cooperate with Buyer’s legal counsel in connection with any customary legal opinions that such counsel may be required to deliver in connection with the Debt Financing, as may be reasonably requested by Buyer; (vi) execute and deliver (but not before and not to be effective until the Closing) any pledge and security documents, other definitive financing documents, or other related certificates or documents with respect to the Group Companies as may be reasonably requested by Buyer and customary for financings of a type similar to the Debt Financing and otherwise facilitate the pledging of collateral (including cooperation in connection with the pay-off of existing Company Indebtedness to the extent contemplated by this Agreement) and the release of related Liens and termination of security interests (including delivering prepayment or termination notices as required by the terms of any Company Indebtedness and delivering termination agreements and/or UCC-3 or equivalent financing statements or notices); (vii) assist Buyer in obtaining from Archaea’s auditors customary comfort letters (including as to negative assurances) reasonably requested by the Buyer in connection with the Debt Financing; (viii) inform Buyer if the chief executive officer, chief financial officer, treasurer or controller of Archaea or any of the Company Subsidiaries or any member, director, manager or equivalent authorized entity, body or individual of Archaea or any of the Company Subsidiaries shall have any knowledge of any facts as a result of which a restatement of any financial statements to comply with GAAP is probable or under consideration; and (ix) provide, at least five Business Days prior to the Closing, all documentation required by applicable “know your customer” and anti-money laundering laws, including the USA PATRIOT Act, to the extent requested in writing at least 10 Business Days prior to Closing; provided, in each case, that (A) neither Archaea nor any of the Company Subsidiaries shall be required to incur or satisfy any liability (including the payment of any fees) in connection with the Debt Financing prior to the Effective Time that is not subject to reimbursement hereunder, (B) the pre-Closing Board of Directors of Archaea and the directors and managers of the Company Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained that are not contingent on the Closing, (C) neither Archaea nor any of the Company Subsidiaries shall be required to execute or deliver prior to the Effective Time any definitive financing documents, including any credit or other agreements, pledge or security documents, or other certificates, legal opinions or documents in connection with the Debt Financing (other than authorization letters with respect to any bank information memoranda, offering memoranda or similar document), (D) except as expressly provided above, neither Archaea nor any of the Company Subsidiaries shall be required to take any corporate or similar actions prior to the Effective Time to permit the consummation of the Debt Financing, (E) no Affiliate of Archaea or any Company Subsidiary shall have any obligations under this Section 6.11 following the consummation of the transactions contemplated by this Agreement, and (F) neither Archaea nor any of the Company Subsidiaries shall be required to provide any assistance or cooperation that would unreasonably interfere with its business operations, conflict with the organizational documents of Archaea or any of the Company Subsidiaries or any Laws or result in a violation or breach of, or a default under, any contract to which Archaea or any of the Company Subsidiaries is a party. The Company, and after giving effect to the Pre-Closing Reorganization on behalf of the Group Companies, hereby consents to the use of the logos of Archaea and the Company Subsidiaries solely as reasonably necessary in connection with the Debt Financing; provided, that such logos shall be used solely in a manner that is not reasonably likely to harm, disparage or otherwise adversely affect Archaea, the Company Subsidiaries or their respective reputation or goodwill.

 

73

 

 

(c) Buyer shall (i) after the termination of this Agreement in connection with the Closing reasonably promptly upon request, reimburse the Group Companies for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorney’s fees and expenses) incurred by the Group Companies in connection with performing its obligations required under Section 7.11(b) and (ii) indemnify, defend and hold harmless the Group Companies’ respective representatives from and against any and all liabilities, losses, damages, claims, documented out-of-pocket costs and expenses, interest, awards, judgments and penalties suffered or incurred by any of them in connection with the Debt Financing and any information utilized (other than historical financial statements provided by the Group Companies or other information provided by the Group Companies and their respective representatives specifically for inclusion in the marketing materials for the Debt Financing) or any assistance or activities provided in connection therewith, except for the extent such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are a result of the willful breach, bad faith, gross negligence or willful misconduct of the Group Companies or any of their respective representatives.

 

(d) No Recourse. Notwithstanding anything to the contrary contained herein, the Company (on behalf of itself and its Affiliates and each officer, director, employee, member, manager, partner, controlling person, advisor, attorney, agent and representative thereof and, after giving effect to the Pre-Closing Reorganization, the other Company Subsidiaries) (i) hereby waives any claims or rights against any Debt Financing Source relating to or arising out of this Agreement, the Debt Financing and the transactions and performance contemplated hereby and thereby, whether at law or in equity and whether in tort, contract or otherwise, (ii) hereby agrees not to bring or support any suit, action or proceeding against any Debt Financing Source in connection with this Agreement, the Debt Financing and the transactions and performance contemplated hereby and thereby, whether at law or in equity and whether in tort, contract or otherwise, and (iii) hereby agrees to cause any suit, action or proceeding asserted against any Debt Financing Source by or on behalf of the Group Companies or any of their respective Affiliates or any officer, director, employee, member, manager, partner, controlling person, advisor, attorney, agent and representative thereof in connection with this Agreement, the Debt Financing and the transactions and performance contemplated hereby and thereby to be dismissed or otherwise terminated. In furtherance and not in limitation of the foregoing waivers and agreements, it is acknowledged and agreed that no Debt Financing Source shall have any liability for any claims or damages to the Group Companies in connection with this Agreement, the Debt Financing and the transactions contemplated hereby and thereby. For the avoidance of doubt, this Section 6.11(c) does not limit or affect any rights or remedies that the Buyer or any of its Subsidiaries may have against the parties to the Commitment Letter pursuant to the terms and conditions of the Commitment Letter.

 

Section 6.12 Directors and Officers.

 

(a) From and after the Effective Time, the Buyer shall cause the Group Companies to indemnify and hold harmless (and advance expenses in connection with the defense of any Proceeding to) each Person that prior to the Closing served as a director or officer of any Group Company or who, at the request of any Group Company, served as a director or officer of another Person (collectively, with such Person’s heirs, executors or administrators, the “Indemnified Persons”) from and against any penalties, costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Proceeding arising out of or pertaining to circumstances, facts or events that occurred on or before the Effective Time, to the fullest extent permitted under applicable Law, the Governing Documents in effect as of the Execution Date and any indemnification agreement between any Group Company and any Indemnified Person in effect as of the Execution Date (“D&O Provisions”) and acknowledges and agrees such D&O Provisions are rights of Contract. Without limiting the foregoing, the Buyer shall cause each of the Group Companies to (i) maintain, for a period of six years following the Closing Date, provisions in its Governing Documents concerning the indemnification, advancement of expenses and exculpation of officers and directors/managers that are no less favorable to the Indemnified Persons than the D&O Provisions in effect as of the Execution Date, and not amend, repeal or otherwise modify such provisions in any respect that would affect in any manner the Indemnified Persons’ rights, or any Group Company’s obligations, thereunder.

 

74

 

 

(b) Tail Policy.

 

(i) For a period of six years from and after the Closing Date, the Buyer shall purchase and maintain in effect policies of directors’ and officers’ liability insurance covering the Indemnified Persons and the Buyer with respect to claims arising from facts or events that occurred on or before the Closing and with substantially the same coverage and amounts as, and contain terms and conditions no less advantageous than, in the aggregate, the coverage currently provided by such current policy.

 

(ii) At or prior to the Closing Date, Archaea shall cause the Company to purchase and maintain in effect for a period of six years thereafter, “run-off” coverage as provided by any Group Company’s and the Buyer’s fiduciary policies, in each case, covering those Persons who are covered on the Execution Date by such policies and with terms, conditions, retentions and limits of liability that are no less advantageous than the coverage provided under any Group Company’s or the Buyer’s existing policies (the policies contemplated by the foregoing clauses (i) and (ii), collectively, the “Tail Policy”). No claims made under or in respect of such Tail Policy related to any fiduciary or employee of any Group Company shall be settled without the prior written consent of the Company. The Indemnified Persons are intended third party beneficiaries of this Section 6.12.

 

Section 6.13 Subscription Agreements; Forward Purchase Agreement; Redemptions; Permitted Equity Financing.

 

(a) Subscription Agreements. The Buyer and RAC may not modify or waive, or provide consent to modify or waive (including consent to termination, to the extent required), any provisions of a Subscription Agreement or any remedy under any Subscription Agreement, in each case, without the prior written consent of Archaea; provided, that any modification or waiver that is solely ministerial in nature and does not affect any economic or any other material term (including any conditions to closing) of a Subscription Agreement shall not require the prior written consent of Archaea. The Buyer and RAC shall use their reasonable best efforts to take, or cause to be taken, all actions and take reasonable best efforts to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by the Subscription Agreements on the terms and subject to the conditions described therein, including maintaining in effect the Subscription Agreements and to: (i) satisfy on a timely basis all conditions and covenants applicable to the Buyer and RAC in the Subscription Agreements and otherwise comply with its obligations thereunder, (ii) if all conditions in the Subscription Agreements (other than those conditions that by their nature are to be satisfied at the Closing, but which conditions are then capable of being satisfied) have been satisfied, consummate the transactions contemplated by the Subscription Agreements at or prior to the Closing; (iii) deliver notices to counterparties to the Subscription Agreements as required by and in the manner set forth in the Subscription Agreements in order to cause timely funding in advance of the Closing; (iv) enforce the Buyer’s and RAC’s rights under the Subscription Agreements, subject to all provisions thereof, if all conditions in the Subscription Agreements (other than those conditions that by their nature are to be satisfied at the Closing, but which conditions are then capable of being satisfied) have been satisfied, to cause the applicable Equity Financing Sources fund the amounts set forth in the Subscription Agreements in accordance with their terms and (v) provide prompt notice to Archaea if any counterparty to a Subscription Agreement notifies Buyer of any breach of any representation contained in such Subscription Agreement by such counterparty.

 

75

 

 

(b) Forward Purchase Agreement. Unless otherwise approved in writing by Archaea and the Buyer Parties shall not (i) (A) permit any amendment or modification to be made to, (B) waive (in whole or in part) or (C) provide consent to modify or waive (including consent to termination, to the extent required), any provision or remedy under the Forward Purchase Agreement or (ii) permit any assignment of the Forward Purchase Agreement, other than assignments to Affiliates. The Buyer and RAC shall use reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by the Forward Purchase Agreement at the Closing on the terms and subject to the conditions in the Forward Purchase Agreement, including maintaining in effect the Forward Purchase Agreement, and to: (i) satisfy on a timely basis all conditions and covenants applicable to Rice Holdings and RAC in the Forward Purchase Agreement and otherwise comply with their obligations thereunder, (ii) if all conditions in the Forward Purchase Agreement (other than those conditions that by their nature are to be satisfied at the Closing, but which conditions are then capable of being satisfied) have been satisfied, consummate the transactions contemplated by the Forward Purchase Agreement at or prior to the Closing; (iii) deliver notices to counterparties to the Forward Purchase Agreement (if any) as required by and in the manner set forth in the Forward Purchase Agreement in order to cause timely funding in advance of the Closing; and (iv) enforce the Buyer Parties’ and Sponsor’s rights under the Forward Purchase Agreement, subject to the provisions thereof, if all conditions in the Forward Purchase Agreement (other than those conditions that by their nature are to be satisfied at the Closing, but which conditions are then capable of being satisfied), have been satisfied, to cause the Purchaser (as defined in the Forward Purchase Agreement) to fund the amount set forth in the Forward Purchase Agreement in accordance with its terms.

 

(c) Permitted Equity Financing

 

(i) During the Pre-Closing Period, RAC may execute Permitted Equity Subscription Agreements that would constitute a Permitted Equity Financing; provided that, without the prior written consent of Archaea, (A) each Permitted Equity Subscription Agreement shall not be in any form other than in substantially the form of the Subscription Agreement, (B) no such Permitted Equity Subscription Agreement shall provide for a purchase price of RAC Common Stock at a price per share of less than $10 per share (including of any discounts, rebates, equity kicker or promote), (C) all the Permitted Equity Subscription Agreements shall not in the aggregate provide for the issuance of RAC Common Stock in exchange for cash proceeds from all Permitted Equity Financings (the “Permitted Equity Financing Proceeds”) in excess of $50,000,000, and (D) no such Permitted Equity Subscription Agreement shall provide for the issuance of any security other than RAC Common Stock and/or RAC Warrants.

 

(ii) Prior to the earlier of the Closing and the termination of this Agreement pursuant to Section 10.1, the Company agrees, and shall cause (or direct Archaea to cause) the appropriate officers and employees thereof, to use commercially reasonable efforts to cooperate, at Buyer’s sole cost and expense (which expense shall be treated as a Transaction Expense hereunder), in connection with the arrangement of any Permitted Equity Financing as may be reasonably requested by the Buyer, including by (A) upon reasonable prior notice and during normal business hours, participating in meetings, calls, drafting sessions, presentations, and due diligence sessions (including accounting due diligence sessions) and sessions with prospective investors at mutually agreeable times and locations and upon reasonable advance notice (including the participation in any relevant “roadshow”), (B) reasonably assisting with the preparation of customary materials, (C) providing the Financial Statements and such other financial information regarding the Group Companies readily available to Archaea as is reasonably requested in connection therewith, subject to confidentiality obligations acceptable to Archaea and (D) otherwise reasonably cooperating in the Buyer’s efforts to obtain Permitted Equity Financing; provided, that (1) none of (x) Archaea, the Company, any other Group Company or any of their respective Affiliates, officers, directors, representatives or agents shall be required to incur any Liability in respect of the Permitted Equity Financing or any assistance provided in connection therewith, unless and solely to the extent such Liability is treated as a Transaction Expense, (2) nothing in this Section 6.13(c)(ii) shall require such cooperation to the extent it could unreasonably interfere with the business of any Group Company, or conflict with or violate any applicable Law or Contract, or require any or Group Company to breach, waive or amend any terms of this Agreement, and (3) neither Archaea, nor any of its Affiliates or representatives or agents shall have any obligation to approve, authorize or ratify the execution of any of the definitive documents in respect of the Permitted Equity Financing.

 

76

 

 

(iii) At the Closing, the Buyer shall be permitted to consummate the Permitted Equity Financing, and issue the equity contemplated thereunder, in accordance with the terms and conditions of the Permitted Equity Subscription Agreements.

 

Section 6.14 Affiliate Obligations. On or before the Closing Date, except as provided for in this Agreement, the Aria Agreement and any Ancillary Agreements, the Company shall take all actions necessary to cause all Liabilities and obligations of the Group Companies under any Affiliated Transaction to be terminated in full without any further force and effect and without any cost to or other Liability to or obligations of any Group Company or the Buyer.

 

Section 6.15 280G. Prior to the Closing, the Company shall use reasonable best efforts to (i) obtain an executed waiver from each Person who is a “disqualified individual” (as defined in Section 280G of the Code) of that portion of any payments or economic benefits received or payable to such Person that could, individually or in the aggregate, constitute “parachute payments” (as defined in Section 280G(b) of the Code) (the “Waived 280G Benefits”), and (ii) solicit the approval of its equityholders of any Waived 280G Benefits, in a manner that complies with Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder. The Company shall forward to the Buyer at least seven days prior to distribution to the intended recipients, copies of all documents prepared by the Company in connection with this Section 6.15 (including supporting analysis and calculations, form of waiver agreement, equityholder consent and disclosure statement) for the Buyer’s review and comment, and the Company shall incorporate all reasonable comments received from the Buyer on such documents at least two days prior to the distribution to the intended recipients. Prior to the Closing, Archaea shall deliver to the Buyer evidence of the results of such vote. Such equityholder approval, if obtained, shall establish the disqualified individual’s right to receive or retain the Waived 280G Benefits, such that if such equityholder approval is not obtained, no portion of the Waived 280G Benefits shall be paid, payable, received or retained. For the avoidance of doubt, with respect to any Buyer Arrangement (defined as any arrangement agreed upon or entered into by, or at the direction of, Buyer and/or its Affiliates, on the one hand, and a “disqualified individual,” on the other hand, on or prior to the Closing Date) of which the Company is aware prior to the Closing Date, the Company shall cooperate with Buyer in good faith to calculate or determine the value (for purposes of Section 280G of the Code) of any payments or benefits granted or contemplated therein that could reasonably be expected to constitute a “parachute payment” under Section 280G of the Code, and incorporate such Buyer Arrangements (defined as any arrangement agreed upon or entered into by, or at the direction of, Buyer and/or its Affiliates, on the one hand, and a “disqualified individual,” on the other hand, on or prior to the Closing Date) into its calculations and 280G equityholder approval process described above.

 

Section 6.16 No Buyer Stock Transactions. During the Pre-Closing Period, except as otherwise explicitly contemplated by this Agreement, neither Archaea nor any of its respective Affiliates, directly or indirectly, shall engage in any transactions involving the securities of the Buyer without the prior written consent of the Buyer.

 

Section 6.17 Name Change. In connection with the Closing, RAC shall change its name to “Archaea Energy Inc.”.

 

77

 

 

Section 6.18 Exclusivity.

 

(a) From the Execution Date until the earlier of the Closing or the termination of this Agreement in accordance with Section 10.1, the Company and its Affiliates shall not, and shall cause their Subsidiaries and their respective representatives not to, directly or indirectly, (a) solicit, initiate or take any action to knowingly facilitate or encourage any inquiries or the making, submission or announcement of, any proposal or offer from any Person or group of Persons other than the Buyer and the Sponsor (and their respective representatives, acting in their capacity as such) (a “Competing Buyer”) that may constitute, or would reasonably be expected to lead to, a Competing Transaction; (b) enter into, participate in, continue or otherwise engage in, any discussions or negotiations with any Competing Buyer regarding a Competing Transaction; (c) furnish (including through any virtual data room) any information relating to any Group Company or any of their assets or businesses, or afford access to the assets, business, properties, books or records of any Group Company to a Competing Buyer, in all cases for the purpose of assisting with or facilitating, or that would otherwise reasonably be expected to lead to, a Competing Transaction; (d) approve, endorse or recommend any Competing Transaction; or (e) enter into a Competing Transaction or any agreement, arrangement or understanding (including any letter of intent or term sheet) relating to a Competing Transaction or publicly announce an intention to do so.

 

(b) From the Execution Date, until the earlier of the Closing or the termination of this Agreement in accordance with Section 10.1, the Buyer, the Sponsor and their respective Affiliates shall not, and shall cause their respective representatives not to, directly or indirectly, (a) solicit, initiate or take any action to knowingly facilitate or encourage any inquiries or the making, submission or announcement of, any proposal or offer from the Buyer, the Sponsor, any Person or group of Persons other than the Company and Archaea that may constitute, or would reasonably be expected to lead to, a Buyer Competing Transaction; (b) enter into, participate in, continue or otherwise engage in, any discussions or negotiations regarding a Buyer Competing Transaction; (c) commence due diligence with respect to any Person, in all cases for the purpose of assisting with or facilitating, or that would otherwise reasonably be expected to lead to, a Buyer Competing Transaction; (d) approve, endorse or recommend any Buyer Competing Transaction; or (e) enter into a Buyer Competing Transaction or any agreement, arrangement or understanding (including any letter of intent or term sheet) relating to a Buyer Competing Transaction or publicly announce an intention to do so.

 

Section 6.19 Aria Agreement Efforts. Subject to the terms and conditions of this Agreement, RAC will, and will cause each of its Affiliates to, use the level of efforts set forth in the Aria Agreement to consummate the transactions contemplated by the Aria Agreement in the manner provided and on the terms and conditions described therein, including using the level of efforts set forth in the Aria Agreement to (a) comply with its obligations under the Aria Agreement, (b) satisfy all conditions applicable to RAC contained in the Aria Agreement (and any other definitive agreements related to transactions contemplated by the Aria Agreement the consummation of which is a condition thereto) within its control, and (c) upon satisfaction of such conditions, enforce all of its rights under the Aria Agreement (or any other definitive agreements related thereto) in an attempt to consummate the transactions contemplated by the Aria Agreement at or prior to the Outside Date (as it may be extended and as defined in the Aria Agreement) of the Aria Agreement. RAC will keep Archaea informed on a reasonable basis and in reasonable detail of the status of its efforts to consummate, and the status of, the transactions contemplated by the Aria Agreement, and will provide Archaea, as promptly as reasonably practicable upon request, with updates as to the status and timing of the transactions contemplated by the Aria Agreement. RAC will notify Archaea promptly and in any event within twenty-four hours upon having Knowledge (which definition of Knowledge shall, for purposes of this Section 6.19, not include an obligation of reasonable inquiry) of any notice of breach or of threatened breach (written or otherwise) received or delivered by RAC or any notice of termination or of threatened termination (written or otherwise) of the Aria Agreement received or delivered by RAC. RAC will not amend, modify, supplement, agree to the termination of or waive any of the conditions to the Aria Agreement or any other material provision of, or remedies under, the Aria Agreement without Archaea’s consent, which shall not be unreasonably withheld. Archaea shall indemnify RAC to the extent of any damages of RAC arising from the last sentence of Section 6.20 of the Aria Agreement.

 

78

 

 

Section 6.20 Release.

 

(a) Effective upon and following the Closing, each Buyer Party on its own behalf and on behalf of its respective Affiliates and Representatives, generally, irrevocably, unconditionally and completely releases and forever discharges Archaea, each of its respective Affiliates, and each of their respective successors and assigns (collectively, the “Company Released Parties”) from all disputes, claims, losses, controversies, demands, rights, liabilities, actions and causes of action of every kind and nature, whether known or unknown, arising from any matter concerning the Group Companies occurring prior to the Closing Date (other than as contemplated by this Agreement), including for controlling equityholder liability or breach of any fiduciary duty relating to any pre-Closing actions or failures to act by the Company Released Parties; provided, however, that nothing in this Section 6.20 shall release any Company Released Parties from: (i) their obligations under this Agreement or the other Ancillary Agreements; (ii) as applicable, any disputes, claims, losses, controversies, demands, rights, liabilities, breaches of fiduciary duty, actions and causes of action arising out of such Company Released Party’s employment by Archaea; or (iii) any claim based on Fraud.

 

(b) Effective upon and following the Closing, Archaea, on its own behalf and on behalf of each of its Affiliates and Representatives, generally, irrevocably, unconditionally and completely releases and forever discharges each Buyer Party and the Group Companies, each of their respective Affiliates, and each of their respective successors and assigns (collectively, the “Buyer Released Parties”) from all disputes, claims, losses, controversies, demands, rights, liabilities, actions and causes of action of every kind and nature, whether known or unknown, arising from any matter concerning the Group Companies occurring prior to the Closing Date (other than as contemplated by this Agreement); provided, however, that nothing in this Section 6.20 shall release the Buyer Released Parties from their obligations: (i) under this Agreement or the other Ancillary Agreements; (ii) with respect to any salary, bonuses, vacation pay or employee benefits accrued as of the date of this Agreement or any expense reimbursement pursuant to a policy of the Group Companies in effect as of the date of this Agreement and consistent with past practice; or (iii) any claim based on Fraud.

 

Section 6.21 Pre-Closing Reorganization. Prior to the Closing, the Company shall, and shall direct Archaea to, cause the Pre-Closing Reorganization to occur in accordance with and pursuant to the steps set forth in Exhibit E attached hereto. Archaea shall keep Buyer informed of the status of the Pre-Closing Reorganization, including from time to time upon request by Buyer. With respect to each transaction in the Pre-Closing Reorganization, prior to the Closing, Archaea shall, and shall cause the other Group Companies to, (a) provide Buyer with a reasonable opportunity to review and comment on the documents intended by the Archaea to effect the Pre-Closing Reorganization, (b) consider in good faith revising such documents to reflect reasonable comments from Buyer, (c) bear all costs and expenses of the Pre-Closing Reorganization (except costs and expenses incurred by the Buyer Parties in reviewing and commenting on the Pre-Closing Reorganization process prior to Closing), (d) ensure that the Pre-Closing Reorganization, and the documents entered into in connection therewith, will not (i) include any representations, warranties, covenants or agreements of the Group Companies that survive the Closing (whether or not any claim has been made thereunder at or prior to the Closing), (ii) otherwise provide for the payment or incurrence of any Liability by any Group Company of consideration that is not paid or otherwise satisfied in full prior to the Closing or as a Liability in Closing Company Indebtedness, and (e) effect the Pre-Closing Reorganization without any Liability, including Taxes, to Buyer or any of its controlled Affiliates (including the Group Companies after Closing), other than any Liability that is specifically included as a Liability in Closing Company Indebtedness, in each case, as finally determined in accordance with Section 2.3 and the estimates thereof reflected in the Estimated Merger Consideration. Prior to the Closing, Archaea shall deliver to Buyer reasonable evidence that the Pre-Closing Reorganization has been completed in accordance with Exhibit E and this Section 6.21.

 

79

 

 

Section 6.22 R&W Insurance Policy. Rice Holdings shall not (and shall cause its Affiliates not to) modify the explicit subrogation provisions of the R&W Insurance Policy to the extent such modification would adversely impact Archaea without the prior written consent of Archaea. Archaea shall, and shall cause its applicable Affiliates, to reasonably assist the Buyer Entities in the implementation of the R&W Insurance Policy, including by executing declarations and providing notices as may be required under the terms of the R&W Insurance Policy.

 

Article VII
ADDITIONAL AGREEMENTS

 

Section 7.1 Access to Books and Records. From and after the Closing, the Buyer and its Affiliates shall make or cause to be made available to Archaea (at Archaea’s sole expense) all books, records, and documents relating to periods prior to the Closing Date of any other Group Company (and the assistance of employees responsible for such books, records and documents) during regular business hours and upon reasonable prior written request as may be reasonably necessary for (a) investigating, settling, preparing for the defense or prosecution of, defending or prosecuting any Proceeding (other than an actual or potential Proceeding (i) brought or threatened to be brought by Archaea or the Company arising under this Agreement or (ii) brought or threatened to be brought by the Buyer or its Affiliates against Archaea, any other Group Company arising under this Agreement), (b) preparing reports to Governmental Entities or (c) such other purposes (that do not involve an actual or potential Proceeding brought by Archaea or its Affiliates against the Buyer or by the Buyer or its Affiliates against Archaea relating to or arising out of this Agreement) for which access to such documents is reasonably necessary. The Buyer shall (at the Company’s sole expense) cause each Group Company to maintain and preserve all such books, records and other documents in the possession of the Group Companies as of the Closing Date for the greater of (x) six years after the Closing Date and (y) any applicable statutory or regulatory retention period, as the same may be extended. Notwithstanding anything herein to the contrary, the Buyer shall not be required to provide any access or information to Archaea or any of its representatives, which the Buyer reasonably believes constitutes information protected by attorney-client privilege or which could violate any obligation owed to a third party under Contract or Law. This Section 7.1 shall not apply to Taxes or Tax matters, which are the subject of Section 8.1.

 

Article VIII
TAX MATTERS

 

Section 8.1 Certain Tax Matters.

 

(a) Preparation of Tax Returns. The Buyer shall prepare, or cause to be prepared, at the cost and expense of the Company all income Tax Returns with respect to Pass-Through Income Taxes of each Group Company for any taxable period ending on or before the Closing Date and any Straddle Period, in each case, that are due after the Closing Date (taking into account applicable extensions). Each such Tax Return shall be prepared in a manner consistent with the Group Companies’ past practice except to the extent not “more likely than not” to be upheld under applicable Law. Each such Tax Return shall be submitted to Archaea for review no later than 30 days prior to the due date for filing such Tax Return (taking into account applicable extensions). The Buyer shall incorporate, or cause to be incorporated, all reasonable comments received from Archaea no later than 1 day prior to the due date for filing any such Tax Return (taking into account applicable extensions) and the Buyer will cause such Tax Returns to be timely filed and will provide a copy of such filed Tax Returns to Archaea.

 

80

 

 

(b) For purposes of determining whether the following Taxes are attributable to a Pre-Closing Tax Period:

 

(i) in the case of property Taxes and other similar periodic Taxes imposed for a Straddle Period, the amounts that are allocable to the Pre-Closing Tax Period shall be deemed to be the amount of such Tax for the entire taxable period multiplied by a fraction, the numerator of which is the number of days in the portion of the taxable period ending on and including the Closing Date and the denominator of which is the number of days in the entire Straddle Period;

 

(ii) in the case of Taxes imposed on any Group Company (or the Buyer or any of its Affiliates as a result of its direct or indirect ownership of an Group Company) as a result of income of any Flow-Thru Entity realized on or prior to the Closing Date (such income being computed assuming the Flow-Thru Entity had a year that ends as of the end of the day on the Closing Date and closed its books), such Taxes shall be treated as Taxes of an Group Company for a Pre-Closing Tax Period;

 

(iii) in the case of all other Taxes for a Straddle Period (including Taxes based on or measured by income, receipts, payments, or payroll (to the extent not covered by clauses (i)-(ii) above)), the amount allocable to the Pre-Closing Tax Period shall be determined based on an interim closing of the books as of the end of the day on the Closing Date using a “closing of the books” methodology; provided that for purposes of this clause (iii), any item determined on an annual or periodic basis (including amortization and depreciation deductions and the effects of graduated rates) shall be allocated to the portion of the Straddle Period ending on the Closing Date based on the mechanics set forth in clause (i) for periodic Taxes;

 

(iv) in the case of Taxes in the form of interest, penalties or additions, all such Taxes shall be treated as attributable to a Pre-Closing Tax Period to the extent relating to a Tax for a Pre-Closing Tax Period (determined in accordance with clauses (i)-(iii) above) whether such items are incurred, accrued, assessed or similarly charged on, before or after the Closing Date; and

 

(v) all Transaction Tax Deductions will, in each case, be allocated and attributable to a Pre-Closing Tax Period, to the extent permitted by applicable Law at a “more likely than not” or higher level of comfort.

 

(c) Each Party shall reasonably cooperate (and cause its Affiliates to reasonably cooperate), as and to the extent reasonably requested by each other Party, in connection with the preparation and filing of Tax Returns pursuant to Section 8.1(a) and any examination or other Proceeding with respect to Taxes or Tax Returns of any Group Company. Such cooperation shall include the provision of records and information that are reasonably relevant to any such audit or other Proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Following the Closing, the Company and Archaea shall (and Archaea shall cause its Affiliates to) retain all books and records with respect to Tax matters pertinent to the Group Companies relating to any taxable period beginning before the Closing Date until the expiration of the statute of limitations (and, to the extent notified by the Company, any extensions thereof) of the respective taxable periods, and to abide by all record retention agreements entered into with any Taxing Authority. Each Party shall furnish the other Parties with copies of all relevant correspondence received from any Taxing Authority in connection with any Tax audit or information request with respect to any Taxes for which the other may have an indemnification obligation under this Agreement. Archaea shall (and shall cause its Affiliates to) provide any information reasonably requested to allow the Buyer or any Group Company to comply with any information reporting or withholding requirements contained in the Code or other applicable Laws or to compute the amount of payroll or other employment Taxes due with respect to any payment made in connection with this Agreement. For the avoidance of doubt, this Section 8.1(c) shall not apply to any dispute or threatened dispute among the Parties.

 

81

 

 

(d) The Buyer shall cause the Company, as applicable, to prepare and file, or cause to be prepared and filed, all necessary Tax Returns and other documentation with respect to all Transfer Taxes, and, if required by applicable Law, Archaea, the Company, and the Buyer will, and will cause their respective Affiliates to, reasonably cooperate and join in the execution of any such Tax Returns and other documentation. The Parties shall reasonably cooperate to establish any available exemption from (or reduction in) any Transfer Tax.

 

(e) RAC and each of the Parties acknowledges and agrees that for U.S. federal and, as applicable, state and local Tax purposes, they each intend that (i) the acquisition of the Company shall be treated in part a tax-deferred contribution of assets under Section 721(a) of the Code and in part a taxable sale of assets and (ii) RAC Class B Common Stock to be issued by RAC in connection with the Business Combination Transactions shall be treated as having a fair market value of $0.00 as of the time of the Business Combination Transactions. RAC and each of the Parties hereto agrees that they will report the Business Combination Transactions for U.S. federal and applicable state and local tax purposes, and will each file all Tax Returns (and cause each of their affiliates to file all Tax Returns) in a manner consistent with the intentions described in this paragraph, unless otherwise required by a Governmental Entity as a result of a “determination” within the meaning of Section 1313(a) of the Code.

 

(f) Within 120 days following the Closing Date, (i) the Buyer will prepare, and deliver to Archaea, an allocation statement allocating any amounts treated as consideration for U.S. federal income Tax purposes (A) among the equity interests of the Company Units acquired by Buyer pursuant to this Agreement and (B) with respect to the amount allocated to the Company Units pursuant to clause (A), among the assets of the Company and the Company Subsidiaries that, after giving effect to the Pre-Closing Reorganization, are classified as entities that are disregarded as separate from the Company for U.S. federal income Tax purposes, in each case, in accordance with Section 1060 of the Code (and any other applicable section of the Code), the Treasury Regulations thereunder (and any similar provision of state or local Law) which shall be based on a third-party valuation of the assets of the Group Companies by a nationally recognized independent valuation firm selected by RAC (the “Allocation”) and (ii) Archaea will prepare, and deliver to the Buyer, a balance sheet, as of the Closing Date, that sets out the Tax basis of the assets then owned by the Company and the Company Subsidiaries that are classified as entities that, after giving effect to the Pre-Closing Reorganization, are disregarded as separate from the Company for U.S. federal income Tax purposes on the Closing Date and the amount of the liabilities of the Company and such Company Subsidiaries on the Closing Date (the “Tax Basis Balance Sheet”); provided that, the parties agree that the allocation to accounts receivable, inventory and tangible personal property shall be based on net book value of such assets. The Allocation shall contain sufficient detail to permit the Parties to make the computations and adjustments required under Sections 743(b), 751 and 755 of the Code and the Treasury Regulations thereunder.

 

(g) The Parties shall, and shall cause each of their respective applicable Affiliates to: (i) prepare and file all Tax Returns consistent with the Tax Basis Balance Sheet, Allocation and intended tax treatment hereunder (collectively, the “Tax Positions”); (ii) take no position in any communication (whether written or unwritten) with any Governmental Entity or any other action inconsistent with the Tax Positions; (iii) promptly inform each other of any challenge by any Governmental Entity to any portion of the Tax Positions; and (iv) consult with and keep one another informed with respect to the status of, and any discussion, proposal or submission with respect to, any such challenge to any portion of the Tax Positions.

 

82

 

 

(h) In the event of any proposed audit, adjustment, assessment, examination, claim or other controversy or proceeding relating to Pass-Through Income Taxes for any Pre-Closing Tax Period (a “Tax Contest”), the Buyer will, or will cause the applicable Group Company to, within 15 days of becoming aware of such Tax Contest, notify Archaea of such Tax Contest; provided, that no failure or delay of Buyer in providing such notice shall reduce or otherwise affect the obligations of Archaea pursuant to this Agreement, except to the extent that Archaea are materially and adversely prejudiced as a result of such failure or delay. Buyer or the applicable Group Company shall endeavor in good faith to include, to the extent reasonably practicable, in such notice any written notice or other documents received from any Governmental Entity with respect to such Tax Contest. The Buyer will control the contest or resolution of any such Tax Contest; provided, the Buyer will obtain the prior consent of Archaea (which consent will not be unreasonably withheld, conditioned or delayed) before entering into any settlement of a claim or ceasing to defend such claim; provided, further, Archaea will be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose, in each case the fees and expenses of which will be borne solely by Archaea.

 

(i) After the Closing, the Buyer and its Affiliates (including the Group Companies) will not, without the consent of Archaea (which consent will not be unreasonably withheld, conditioned or delayed), (a) amend or otherwise modify any income Tax Return of any Group Company (including with respect to Pass-Through Income Taxes for Pre-Closing Tax Periods), (b) extend or waive, or cause to be extended or waived, any statute of limitations or other period for the assessment of any Group Company (including Pass-Through Income Taxes) for Pre-Closing Tax Periods, or (c) make or change any income election or accounting method or practice with respect to any Group Company (including Pass-Through Income Taxes) for Pre-Closing Tax Periods.

 

Article IX
CONDITIONS TO OBLIGATIONS OF PARTIES

 

Section 9.1 Conditions to the Obligations of Each Party. The obligation of each Party to consummate the transactions to be performed by it in connection with the Closing is subject to the satisfaction or written waiver, as of the Closing Date, of each of the following conditions:

 

(a) Hart-Scott-Rodino Act. The waiting period (and any extension thereof) applicable to the consummation of the transactions contemplated hereby under the HSR Act shall have expired or been terminated.

 

(b) No Orders or Illegality. There shall not be any applicable Law in effect that makes the consummation of the transactions contemplated hereby illegal or any Order in effect preventing the consummation of the transactions contemplated hereby.

 

(c) Required Vote. The Required Vote shall have been obtained.

 

(d) Aria Agreement. The Aria Closing shall occur contemporaneously with, or have occurred prior to, the Closing.

 

(e) RAC Share Redemption. The RAC Share Redemptions shall have been completed in accordance with the terms hereof, the applicable RAC Governing Documents and the Trust Agreement.

 

(f) Listing. The RAC Common Stock being issued in connection with the transactions contemplated by this Agreement, including the PIPE Investment, shall have been approved for listing on the NYSE, subject only to official notice of issuance.

 

(g) Federal Power Act. FERC has issued an order granting authorization pursuant to Section 203 of the FPA for the Business Combination Transactions taken together, and such order shall not be subject to stay.

 

83

 

 

Section 9.2 Conditions to the Obligations of the Buyer and the Company Merger Sub. The obligations of the Buyer and the Company Merger Sub to consummate the transactions to be performed by the Buyer in connection with the Closing is subject to the satisfaction or written waiver, at or prior to the Closing Date, of each of the following conditions:

 

(a) Representations and Warranties.

 

(i) The representations and warranties of the Group Companies set forth in Article III (other than the Company Fundamental Representations), in each case, without giving effect to any materiality or Material Adverse Effect qualifiers contained therein (other than in respect of the defined term “Material Contract” and in respect of Section 3.5), shall be true and correct as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct as of such date), except in each case, to the extent such failure of the representations and warranties to be so true and correct, when taken as a whole, would not have a Material Adverse Effect; and

 

(ii) the Company Fundamental Representations, in each case, without giving effect to any materiality or Material Adverse Effect qualifiers contained therein, shall be true and correct in all respects as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct in all respects as of such date) other than, in each case, de minimis inaccuracies.

 

(b) Performance and Obligations of the Company. The respective covenants and agreements of the Company and Archaea to be performed or complied with on or before the Closing in accordance with this Agreement shall have been performed in all material respects.

 

(c) Officers Certificate. Archaea shall deliver or cause to be delivered to the Buyer a duly executed certificate from an authorized Person of the Company (the “Company Bring-Down Certificate”), in each case, dated as of the Closing Date, certifying, with respect to the Company, that the conditions set forth in Section 9.2(a) and (b) have been satisfied.

 

(d) Company Deliverables. Archaea shall have delivered to the Buyer the various certificates, instruments and documents referred to in Section 2.4.

 

(e) Minimum Cash Amount. Immediately following the Closing, the cash on the balance sheet of the Company shall be equal to or greater than the Minimum Cash Amount.

 

Section 9.3 Conditions to the Obligations of the Company. The obligations of the Company and Archaea to consummate the transactions to be performed by the Company, as applicable, in connection with the Closing are subject to the satisfaction or written waiver by the Company, at or prior to the Closing Date, of each of the following conditions:

 

(a) Representations and Warranties.

 

(i) The representations and warranties of the Buyer set forth in Article IV (other than the Buyer Fundamental Representations), in each case, without giving effect to any materiality or material adverse effect qualifiers contained therein, shall be true and correct as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct as of such date), except, in each case, to the extent such failure of the representations and warranties to be so true and correct when taken as a whole, would have a material adverse effect on the Buyer.

 

84

 

 

(ii) The Buyer Fundamental Representations in each case, without giving effect to any materiality or material adverse effect qualifiers contained therein, shall be true and correct in all respects as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct in all respects as of such date) other than, in each case, de minimis inaccuracies.

 

(b) Performance and Obligations of the Buyer. The covenants and agreements of the Buyer Parties to be performed or complied with on or before the Closing in accordance with this Agreement shall have been performed in all material respects.

 

(c) Minimum Cash Amount. Immediately following the Closing, the cash on the balance sheet of the Company shall be equal to or greater than the Minimum Cash Amount.

 

(d) Officers Certificate. The Buyer shall deliver to Archaea, a duly executed certificate from a director or an officer of the Buyer (the “Buyer Bring-Down Certificate”) dated as of the Closing Date, certifying that the conditions set forth in Section 9.3(a) and Section 9.3(b) have been satisfied.

 

(e) Buyer Deliverables. Buyer shall have delivered to Archaea the various certificates, instruments and documents referred to in Section 2.5.

 

Section 9.4 Frustration of Closing Conditions. None of the Company, Archaea or the Buyer may rely on the failure of any condition set forth in this Article IX to be satisfied if such failure was caused by such Party’s failure to act in good faith or to use reasonable best efforts to cause the Closing conditions of each such other Party to be satisfied.

 

Section 9.5 Waiver of Closing Conditions. Upon the occurrence of the Closing, any condition set forth in this Article IX that was not satisfied as of the Closing shall be deemed to have been waived as of and from the Closing.

 

Article X
TERMINATION

 

Section 10.1 Termination. This Agreement may be terminated and the transactions contemplated hereby abandoned at any time prior to the Closing only as follows:

 

(a) by the mutual written consent of Archaea and the Buyer;

 

(b) by either the Company or the Buyer by written notice to the other Party if any Governmental Entity has enacted any Law which has become final and non-appealable and has the effect of making the consummation of the transactions contemplated hereby illegal or any final, non-appealable Order is in effect permanently preventing the consummation of the transactions contemplated hereby; provided, however, that the right to terminate this Agreement pursuant to this Section 10.1(b) shall not be available to any Party whose breach of any representation, warranty, covenant or agreement hereof results in or is the primary cause of such final, non-appealable Law or Order;

 

85

 

 

(c) by either the Company or the Buyer by written notice to the other if the consummation of the transactions contemplated hereby shall not have occurred on or before 150 days following the date of this Agreement, which date shall be extended automatically for up to 30 days to the extent the Expiration Date (as defined in the Debt Commitment Letter) is extended in accordance with its terms (as may be extended, the “Outside Date”); provided that the right to terminate this Agreement under this Section 10.1(c) shall not be available to any Party or any of its applicable Affiliates (excluding, with respect to the Buyer, Aria) then in material breach of its representations, warranties, covenants or agreements under this Agreement or, with respect to Aria, the Aria Agreement, and such material breach is the primary cause of or has resulted in the failure of the closing of the transactions contemplated hereby on or before the Outside Date;

 

(d) by the Company by written notice to the Buyer, if any Buyer Party or RAC breaches in any material respect any of its representations or warranties contained herein or breaches or fails to perform in any material respect any of its covenants contained herein, which breach or failure to perform (i) would render a condition precedent to the Company’s to consummate the transactions set forth in Section 9.1 or Section 9.3 hereof not capable of being satisfied and (ii) after the giving of written notice of such breach or failure to perform to the Buyer by the Company, cannot be cured or has not been cured by the earlier of (x) the Outside Date and (y) 30 Business Days after receipt of such written notice and the Company has not waived in writing such breach or failure; provided, however, that the right to terminate this Agreement under this Section 10.1(d) shall not be available to the Company if any Group Company is then in material breach of any representation, warranty, covenant or agreement contained herein;

 

(e) by the Buyer by written notice to the Company, if any Group Company breaches in any material respect any of their representations or warranties contained herein or any Group Company breaches or fails to perform in any material respect any of its covenants contained herein, which breach or failure to perform (i) would render a condition precedent to the Buyer’s and Company Merger Sub’s obligations to consummate the transactions set forth in Section 9.1 or Section 9.2 not capable of being satisfied, and (ii) after the giving of written notice of such breach or failure to perform to the Company by the Buyer, cannot be cured or has not been cured by the later of (x) the Outside Date and (y) 30 Business Days after the delivery of such written notice (in the case of clause (B), the Outside Date, as applicable, shall automatically be extended until the end of such 30 Business Day period, but in no event on more than one occasion) and the Buyer has not waived in writing such breach or failure; provided, however, that the right to terminate this Agreement under this Section 10.1(e) shall not be available to the Buyer if any Buyer Party or RAC is then in breach of any representation, warranty, covenant or agreement contained herein and such breach would give rise to a failure of any condition to the Company’s obligations to consummate the transactions set forth in Section 9.3.

 

Section 10.2 Effect of Termination. In the event of the termination of this Agreement pursuant to Section 10.1, this Agreement shall immediately become null and void, without any Liability on the part of any Party or any other Person, and all rights and obligations of each Party shall cease; provided that (a) the Confidentiality Agreement and the agreements contained in Section 6.8(a), Section 6.10, this Section 10.2 and Article XI hereof survive any termination of this Agreement and remain in full force and effect and (b) no such termination shall relieve any Party from any Liability arising out of or incurred as a result of its Fraud or its willful and material breach of this Agreement.

 

86

 

 

Article XI
MISCELLANEOUS

 

Section 11.1 Amendment and Waiver. No amendment of any provision hereof shall be valid unless the same shall be in writing and signed by the Buyer and the Company. No waiver of any provision or condition hereof shall be valid unless the same shall be in writing and signed by the Party against which such waiver is to be enforced. No waiver by any Party of any default, breach of representation or warranty or breach of covenant hereunder, whether intentional or not, shall be deemed to extend to any other, prior or subsequent default or breach or affect in any way any rights arising by virtue of any other, prior or subsequent such occurrence. No amendment or waiver to this Section 11.1, Section 11.3, Section 11.7 or Section 11.12 or defined term used therein (or to any other provision or definition of this Agreement to the extent that such amendment or waiver would modify the substance of any such foregoing Section or defined term used therein) that is materially adverse in any respect to a Debt Financing Related Party shall be effective as to such Debt Financing Related Party without the written consent of such Debt Financing Related Party.

 

Section 11.2 Notices. All notices, demands, requests, instructions, claims, consents, waivers and other communications to be given or delivered under this Agreement shall be in writing and shall be deemed to have been given (a) when personally delivered (or, if delivery is refused, upon presentment), (b) when received by e-mail (with confirmation of transmission requested or received) prior to 5:00 p.m. Eastern Time on a Business Day, and, if otherwise, on the next Business Day, (c) one Business Day following sending by reputable overnight express courier (charges prepaid) or (d) three days following mailing by certified or registered mail, postage prepaid and return receipt requested. Unless another address is specified in writing pursuant to the provisions of this Section 11.2, notices, demands and communications to the Company and the Buyer shall be sent to the addresses indicated below (or to such other address or addresses as the Parties may from time to time designate in writing):

 

Notices to the Buyer Parties:   with copies to (which shall not constitute notice):
         
Rice Acquisition Corp.   Kirkland & Ellis LLP
102 East Main Street, Second Story   601 Lexington Avenue
Carnegie, Pennsylvania 15106   New York, New York 10002
Attention: Daniel Joseph Rice IV; J. Kyle Derham   Attention: David B. Feirstein, P.C.
E-mail: danny@teamrice.com; kyle@riceinvestmentgroup.com   E-mail: david.feirstein@kirkland.com
         
      and  
         
      Kirkland & Ellis LLP
      609 Main Street
      Houston, Texas 77002
      Attention: Cyril V. Jones, P.C.
      E-mail: cyril.jones@kirkland.com

 

87

 

 

      with copies to (which shall not constitute notice):
         
      Archaea Energy LLC
      500 Technology Drive
      Second Floor
      Canonsburg, PA 15317
      Attention: Nicholas Stork
        Andrew Eastman
      Email: nstork@archaea.energy
        aeastman@archaea.energy
         
      and  
         
      Pillsbury Winthrop Shaw Pittman LLP
      31 West 52nd Street
      New York, NY 10019
      Attention: Mona Dajani, Esq.
      Email: mona.dajani@pillsburylaw.com
         
Notices to the Surviving Company and, following the Closing, the Buyer:   with copies to (which shall not constitute notice):
         
Archaea Energy Inc.   Kirkland & Ellis LLP
Attention: Daniel Joseph Rice IV; J. Kyle Derham   609 Main Street
E-mail: danny@teamrice.com; kyle@riceinvestmentgroup.com   Houston, Texas 77002
    Attention: David B. Feirstein, P.C.; Cyril V. Jones, P.C.
      E-mail: david.feirstein@kirkland.com; cyril.jones@kirkland.com

 

Section 11.3 Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns; provided that neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned or delegated by any Party (including by operation of Law, including in connection with a merger or consolidation or conversion of the Buyer) without the prior written consent of the other Parties; provided that the Buyer may assign its rights under this Agreement to the Debt Financing Sources as collateral security. Any purported assignment or delegation not permitted under this Section 11.3 shall be null and void.

 

Section 11.4 Severability. Whenever possible, each provision hereof (or part thereof) shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision hereof (or part thereof) or the application of any such provision (or part thereof) to any Person or circumstance shall be held to be prohibited by or invalid, illegal or unenforceable under applicable Law in any respect by a court of competent jurisdiction, such provision (or part thereof) shall be ineffective only to the extent of such prohibition or invalidity, illegality or unenforceability, without invalidating the remainder of such provision or the remaining provisions hereof. Furthermore, in lieu of such illegal, invalid or unenforceable provision (or part thereof), there shall be added automatically as a part hereof a legal, valid and enforceable provision as similar in terms to such illegal, invalid, or unenforceable provision (or part thereof) as may be possible.

 

88

 

 

Section 11.5 Interpretation. The headings and captions used herein and the table of contents to this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any capitalized terms used in any Schedule or Exhibit attached hereto and not otherwise defined therein shall have the meanings set forth herein. The use of the word “including” herein shall mean “including without limitation.” The words “hereof,” “herein,” and “hereunder” and words of similar import, when used herein, shall refer to this Agreement as a whole and not to any particular provision hereof. References herein to a specific Section, Subsection, Recital, Schedule or Exhibit shall refer, respectively, to Sections, Subsections, Recitals, Schedules or Exhibits hereof. Terms defined in the singular shall have a comparable meaning when used in the plural, and vice versa. References herein to any gender shall include each other gender. The word “or” shall not be exclusive unless the context clearly requires the selection of one (but not more than one) of a number of items. References to “written” or “in writing” include in electronic form. References herein to any Person shall include such Person’s heirs, executors, personal representatives, administrators, successors and permitted assigns; provided, however, that nothing contained in this Section 11.5 is intended to authorize any assignment or transfer not otherwise permitted by this Agreement. References herein to a Person in a particular capacity or capacities shall exclude such Person in any other capacity. Any reference to “days” shall mean calendar days unless Business Days are specified; provided that if any action 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. References herein to any Contract (including this Agreement) mean such Contract as amended, restated, supplemented or modified from time to time in accordance with the terms thereof; provided that with respect to any Contract listed (or required to be listed) on the Disclosure Schedules, all material amendments thereto (or with respect to customer or supplier Contracts, only those amendments that include a restrictive covenant or place any other material restriction on the ability of any Group Company to operate) (for the avoidance, excluding in either case any purchase orders, work orders or statements of work) must also be listed on the appropriate section of the applicable schedule and disclosed. With respect to the determination of any period of time, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding.” References herein to any Law shall be deemed also to refer to such Law, as amended, and all rules and regulations promulgated thereunder. The word “extent” in the phrase “to the extent” (or similar phrases) shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.” An accounting term not otherwise defined herein has the meaning assigned to it in accordance with GAAP. Except where otherwise provided, all amounts herein are stated and shall be paid in United States dollars. The Parties and their respective counsel have reviewed and negotiated this Agreement as the joint agreement and understanding of the Parties, and the language used herein shall be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Person. Any information or materials shall be deemed provided, made available or delivered to the Buyer if such information or materials have been uploaded to the electronic data room maintained by Archaea and its financial advisor on the “Project Rally” online data site hosted by Archaea for purposes of the transactions contemplated hereby (the “Data Room”) or otherwise provided to the Buyer’s Representatives (including counsel) via e-mail, in each case with respect to the representations and warranties contained in Article III and Article IV, at least one Business Day prior to the Execution Date or the Closing Date.

 

Section 11.6 Entire Agreement. This Agreement (together with the Disclosure Schedules and Exhibits to this Agreement), the Ancillary Agreements and the Confidentiality Agreement (together with the Schedules and Exhibits to this Agreement) contain the entire agreement and understanding among the Parties with respect to the subject matter hereof and thereof and supersede all prior and contemporaneous agreements, understandings and discussions (including the letter of intent among RAC and Archaea dated as of January 23, 2021 (as amended)), whether written or oral, relating to such subject matter in any way. The Parties have voluntarily agreed to define their rights and Liabilities with respect to the transactions contemplated by this Agreement and the Ancillary Agreements exclusively pursuant to the express terms and provisions of this Agreement and the Ancillary Agreements, and the Parties disclaim that they are owed any duties or are entitled to any remedies not set forth in this Agreement and the Ancillary Agreements. Furthermore, this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations and no Person has any special relationship with another Person that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction. Notwithstanding anything to the contrary in this Section 11.6, in the event the Closing is not consummated pursuant to this Agreement, nothing set forth in this Agreement shall in any way amend, alter, terminate, supersede or otherwise effect the Parties’ or their respective Affiliates’ Equity Interests or any Contract to which the Parties or their respective Affiliates are party or are bound (other than (x) this Agreement and (y) the Confidentiality Agreements), including the certificates of incorporation, formation or limited partnership, bylaws, limited liability company agreements, limited partnership agreements and/or other similar governing documents of any of the Parties or their respective Subsidiaries.

 

89

 

 

Section 11.7 Governing Law; Waiver of Jury Trial; Jurisdiction. The Law of the State of Delaware shall govern (a) all claims or matters related to or arising from this Agreement (including any tort or non-contractual claims) and (b) any questions concerning the construction, interpretation, validity and enforceability hereof, and the performance of the obligations imposed by this Agreement, in each case without giving effect to any choice-of-law or conflict-of-law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Delaware. EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG ANY OF THE PARTIES (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS AGREEMENT (INCLUDING ANY proceeding against or involving any Debt Financing RELATED PARTY arising out of this Agreement or the Debt Financing), THE TRANSACTIONS CONTEMPLATED HEREBY AND/OR THE RELATIONSHIPS ESTABLISHED AMONG THE PARTIES UNDER THIS AGREEMENT. THE PARTIES HERETO FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. Each of the Parties submits to the exclusive jurisdiction of first, the Chancery Court of the State of Delaware or, in the event, but only in the event, that the Court of Chancery of the State of Delaware does not have subject matter jurisdiction, the Superior Court of the State of Delaware (Complex Commercial Division) or, if subject matter jurisdiction over the Proceeding is vested exclusively in the federal courts of the United States of America, the United States District Court for the District of Delaware, in any Proceeding arising out of or relating to this Agreement, agrees that all claims in respect of the Proceeding shall be heard and determined in any such court and agrees not to bring any Proceeding arising out of or relating to this Agreement in any other courts. Nothing in this Section 11.7, however, shall affect the right of any Party to serve legal process in any other manner permitted by Law or at equity. Each Party agrees that a final judgment in any Proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by Law or at equity. Notwithstanding anything to the contrary contained herein, each Party to this Agreement acknowledges and irrevocably agrees (a) any right or obligation of any Debt Financing Related Party in connection with this Agreement, the Debt Financing and the transactions and the performance contemplated hereby and thereby, and any Proceeding involving a Debt Financing Related Party relating thereto or arising thereunder, shall be governed by and construed in accordance with the law of the State of New York, without regard to conflict of law principles thereof, and subject to the exclusive jurisdiction of any state or federal court sitting in the Borough of Manhattan in the State of New York, and any appellate court from any thereof, (b) not to bring or permit any of their Affiliates to bring or support anyone else in bringing any such Proceeding against any Debt Financing Related Party in any other court and (c) to waive any right it may have to a trial by jury in respect to any Proceeding against any Debt Financing Related Party in connection with this Agreement, the Debt Financing and the transactions contemplated hereby and thereby, whether at law or in equity and whether in tort, contract or otherwise, (d) the Company (on behalf of itself and any of its Affiliates, directors, officers, employees, agents and representatives) hereby (A) waives any and all rights, claims and causes of action against any Debt Financing Related Party arising out of or relating to this Agreement, the Commitment Letter or the Debt Financing or the performance hereunder or thereunder or in respect of any oral representations made or alleged to have been made in connection herewith or therewith, including any dispute arising out of or relating in any way to the Debt Financing or the performance thereof or the financings contemplated thereby, whether at law or equity, in contract, in tort or otherwise and (B) agrees not to commence any action or proceeding against any Debt Financing Related Party in connection with this Agreement, the Commitment Letter, the Debt Financing, the definitive financing agreements or in respect of any other document or theory of law or equity and agrees to cause any such action or proceeding asserted by any Person in connection with this Agreement, the Commitment Letter, the Debt Financing, the definitive financing agreements or in respect of any other document or theory of law or equity against any Debt Financing Related Party to be dismissed or otherwise terminated.

 

90

 

 

Section 11.8 Non-Survival. The Parties, intending to modify any applicable statute of limitations, agree that none of the representations, warranties, covenants or agreements set forth in this Agreement or in any Ancillary Agreement or any certificate or letter of transmittal delivered hereunder including any rights arising out of any breach of such representations, warranties, covenants or agreements, shall survive the Closing (and there shall be no Liability after the Closing in respect thereof), in each case, except for those covenants and agreements that by their terms contemplate performance, in each case, in whole or in part after the Closing, and then only with respect to the period following the Closing (including any breaches occurring after the Closing), which shall survive until 30 days following the date of the expiration, by its terms of the obligation of the applicable Party under such covenant or agreement. Notwithstanding anything to the contrary contained herein, none of the provisions set forth herein shall be deemed a waiver by any Party of any right or remedy which such Party may have at Law or in equity in the case of Fraud.

 

Section 11.9 Trust Account Waiver. The Company acknowledges that RAC has established the Trust Account for the benefit of its public RAC Stockholders, which holds proceeds of its initial public offering. For and in consideration of the Buyer entering into this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company, for itself and the Affiliates and Persons it has the authority to bind, hereby agrees it does not now and shall not at any time hereafter have any right, title, interest or claim of any kind in or to any assets in the Trust Account (or distributions therefrom to (a) the public RAC Stockholders upon the redemption of their shares and (b) the underwriters of Buyer’s initial public offering in respect of their deferred underwriting commissions held in the Trust Account, in each case as set forth in the Trust Agreement (collectively, the “Trust Distributions”)), and hereby waives any claims it has or may have at any time solely against the Trust Account (including the Trust Distributions) as a result of, or arising out of, any discussions, Contracts or agreements (including this Agreement) among the Buyer and the Company and will not seek recourse against the Trust Account (including the Trust Distributions) for any reason whatsoever. The Company agrees and acknowledges that such irrevocable waiver is material to this Agreement and specifically relied upon by the Buyer and the Sponsor to induce the Buyer to enter into this Agreement, and the Company further intends and understands such waiver to be Enforceable against the Company and its Affiliates and Persons that they have the authority to bind under applicable Law. To the extent that the Company or any of its Affiliates or Persons that they have the authority to bind commences any Proceeding against the Buyer or any of its Affiliates based upon, in connection with, relating to or arising out of any matter relating to the Buyer or its representatives, which proceeding seeks, in whole or in part, monetary relief against the Buyer or its representatives, the Company hereby acknowledges and agrees that its Affiliates’ sole remedy shall be against assets of the Buyer not in the Trust Account and that such claim shall not permit the Company or such Affiliates (or any Person claiming on any of their behalves) to have any claim against the Trust Account (including the Trust Distributions) or any amounts contained in the Trust Account while in the Trust Account.

 

Section 11.10 Counterparts; Electronic Delivery. This Agreement, the Ancillary Agreements and the other agreements, certificates, instruments and documents delivered pursuant to this Agreement may be executed and delivered in one or more counterparts and by email or other electronic transmission, each of which shall be deemed an original and all of which shall be considered one and the same agreement. No Party shall raise the use of email to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of email as a defense to the formation or enforceability of a Contract and each Party forever waives any such defense.

 

91

 

 

Section 11.11 Specific Performance. Each Party acknowledges that the rights of each Party to consummate the transactions contemplated hereby are unique and recognizes and affirms that in the event any of the provisions hereof are not performed in accordance with their specific terms or otherwise are breached, money damages would be inadequate (and therefore the non-breaching Party would have no adequate remedy at Law) and the non-breaching Party would be irreparably damaged. Accordingly, each Party agrees that each other Party shall be entitled to specific performance, an injunction or other equitable relief (without posting of bond or other security or needing to prove irreparable harm) to prevent breaches of the provisions hereof and to enforce specifically this Agreement or any Ancillary Agreement to the extent expressly contemplated herein or therein and the terms and provisions hereof in any Proceeding, in addition to any other remedy to which such Person may be entitled. Each Party agrees that it will not oppose the granting of specific performance and other equitable relief on the basis that the other Parties have an adequate remedy at Law or that an award of specific performance is not an appropriate remedy for any reason at Law or equity. The Parties acknowledge and agree that any Party seeking an injunction to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in accordance with this Section 11.11 shall not be required to provide any bond or other security in connection with any such injunction.

 

Section 11.12 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their permitted assigns and nothing herein expressed or implied shall give or be construed to give any Person, other than the Parties and such permitted assigns, any legal or equitable rights hereunder (other than (x) Non-Party Affiliates, each of whom is an express third-party beneficiary hereunder to the provisions of Section 11.14, (y) the Indemnified Persons, each of whom is an express third-party beneficiary hereunder to the provisions of Section 6.13 and (z) the Debt Financing Sources, each of whom is an express third-party beneficiary hereunder to the provisions of Section 6.11). Notwithstanding the foregoing and anything to the contrary contained herein, each Debt Financing Source is intended to be, and shall be, an express third-party beneficiary of this Section 11.12, Section 11.1, Section 11.3, and Section 11.7 (and the definitions related thereto).

 

Section 11.13 Schedules and Exhibits. All Schedules and Exhibits attached hereto or referred to herein are (a) each hereby incorporated in and made a part of this Agreement as if set forth in full herein and (b) qualified in their entirety by reference to specific provisions of this Agreement. Any fact or item disclosed in any Section of the Schedules shall be deemed disclosed in each other Section of the applicable Schedule to which such fact or item may apply so long as (i) such other Section is referenced by applicable cross-reference or (ii) it is reasonably apparent on the face of such disclosure that such disclosure is applicable to such other Section or portion of the Schedule. The headings contained in the Schedules are for convenience of reference only and shall not be deemed to modify or influence the interpretation of the information contained in the Schedules. The Schedules are not intended to constitute, and shall not be construed as, an admission or indication that any such fact or item is required to be disclosed. The Schedules shall not be deemed to expand in any way the scope or effect of any representations, warranties or covenants described herein. Any fact or item, including the specification of any dollar amount, disclosed in the Schedules shall not by reason only of such inclusion be deemed to be material, to establish any standard of materiality or to define further the meaning of such terms for purposes hereof, and matters reflected in the Schedules are not necessarily limited to matters required by this Agreement to be reflected herein and may be included solely for information purposes. Moreover, in disclosing the information in the Schedules, the Parties, to the fullest extent permitted by law, expressly do not waive any attorney-client privilege associated with such information or any protection afforded by the work-product doctrine with respect to any of the matters disclosed or discussed therein. The information contained in the Schedules shall be kept strictly confidential in accordance with Section 6.4 by the Parties and no third party may rely on any information disclosed or set forth therein.

 

92

 

 

Section 11.14 No Recourse. Notwithstanding anything that may be expressed or implied herein (except in the case of the immediately succeeding sentence) or any document, agreement, or instrument delivered contemporaneously herewith, and notwithstanding the fact that any Party may be a partnership or limited liability company, each Party hereto, by its acceptance of the benefits of this Agreement, covenants, agrees and acknowledges that no Persons other than the Parties shall have any obligation hereunder and that it has no rights of recovery hereunder against, and no recourse hereunder or under any documents, agreements, or instruments delivered contemporaneously herewith or in respect of any oral representations made or alleged to be made in connection herewith or therewith shall be had against, any former, current or future director, officer, agent, Affiliate, manager, assignee, incorporator, controlling Person, fiduciary, representative or employee of any Party (or any of their successors or permitted assignees), against any former, current, or future general or limited partner, manager, stockholder or member of any Party (or any of their successors or permitted assignees) or any Affiliate thereof or against any former, current or future director, officer, agent, employee, Affiliate, manager, assignee, incorporator, controlling Person, fiduciary, representative, general or limited partner, stockholder, manager or member of any of the foregoing, but in each case not including the Parties (each, but excluding for the avoidance of doubt, the Parties, a “Non-Party Affiliate”), whether by or through attempted piercing of the corporate veil, by or through a claim (whether in tort, Contract or otherwise) by or on behalf of such Party against the Non-Party Affiliates, by the enforcement of any assessment or by any Proceeding, or by virtue of any statute, regulation or other applicable Law, or otherwise; it being agreed and acknowledged that no personal Liability whatsoever shall attach to, be imposed on, or otherwise be incurred by any Non-Party Affiliate, as such, for any obligations of the applicable Party under this Agreement or the transactions contemplated hereby, under any documents or instruments delivered contemporaneously herewith, at or prior to Closing, in respect of any oral representations made or alleged to be made in connection herewith or therewith, or for any claim (whether in tort, Contract or otherwise) based on, in respect of, or by reason of, such obligations or their creation. Notwithstanding the forgoing, a Non-Party Affiliate may have obligations under any documents, agreements, or instruments delivered contemporaneously herewith or otherwise contemplated hereby if such Non-Party Affiliate is party to such document, agreement or instrument. Except to the extent otherwise set forth in, and subject in all cases to the terms and conditions of and limitations herein, this Agreement may only be enforced against, and any claim or cause of action of any kind based upon, arising out of, or related to this Agreement, or the negotiation, execution or performance hereof, may only be brought against the entities that are named as Parties hereto and then only with respect to the specific obligations set forth herein with respect to such Party. Each Non-Party Affiliate is intended as a third-party beneficiary of this Section 11.14. Notwithstanding any provision hereof to the contrary, in no event shall the Group Companies or any of their respective Affiliates or representatives seek to recover monetary damages from any Equity Financing Source in connection with the obligations of the Equity Financing Sources for the Equity Financing under the applicable Subscription Agreement or the Forward Purchase Agreement (other than pursuant to the Subscription Agreements in accordance with their terms to the extent expressly set forth therein). Nothing in this Section 11.14 shall in any way limit or qualify the rights and obligations of the Equity Financing Sources for the applicable Equity Financing and the other parties to the Subscription Agreements or the Forward Purchase Agreement, as applicable, to each other thereunder or in connection therewith (including the Company’s rights as a third party beneficiary to the Subscription Agreements and the Forward Purchase Agreement in accordance with their terms to the extent expressly set forth therein). Each Non-Party Affiliate is intended as a third-party beneficiary of this Section 11.14.

 

93

 

 

Section 11.15 Equitable Adjustments. If, during the Pre-Closing Period, the outstanding shares of OpCo Common Units or shares of RAC Common Stock shall have been changed into a different number of shares or a different class, with the prior written consent of Archaea to the extent required by this Agreement, by reason of any stock dividend, share recapitalization, subdivision, reclassification, recapitalization, split, combination, consolidation or exchange of shares, or any similar event shall have occurred, then any number or amount contained herein which is based upon the number of shares or units of Company Interests will be appropriately adjusted to provide to Archaea and the RAC Stockholders the same economic effect as contemplated hereby prior to such event.

 

Section 11.16 Legal Representation and Privilege.

 

(a) The Company.

 

(i) Each Party hereby agrees, on behalf of itself, its Affiliates, and its and their directors, managers, officers, owners and employees and each of their successors and assigns (all such parties, the “Waiving Parties”), that Pillsbury Winthrop Shaw Pittman LLP (or any successor thereto) (“Pillsbury”) may represent Archaea, the Company or any direct or indirect director, manager, officer, owner, employee or Affiliate thereof (other than, following the Closing, the Buyer or any of its Subsidiaries), in connection with any dispute, claim, Proceeding or Liability arising out of or relating to this Agreement, any Ancillary Agreement or the transactions contemplated hereby or thereby (any such representation, the “Company Post-Closing Representation”) notwithstanding its representation (or any continued representation) of Archaea or the Company in connection with the transactions contemplated by this Agreement, and each Party on behalf of itself and the Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest or any objection arising therefrom or relating thereto, even though the interests of the Company Post-Closing Representation may be directly adverse to the Waiving Parties.

 

(ii) Each of the Parties acknowledges that the foregoing provision applies whether or not Pillsbury provides legal services to any Group Company after the Closing Date. Each of the Parties, for itself and the Waiving Parties, hereby irrevocably acknowledges and agrees that all communications among Pillsbury (or any other counsel that represented any Group Company), the Group Companies and/or any director, manager, officer, owner, employee or Representative of any of the foregoing made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute, claim, Proceeding or Liability arising out of or relating to, this Agreement, any Ancillary Agreement or the transactions contemplated hereby or thereby or any matter relating to any of the foregoing are privileged communications, and shall remain privileged after the Closing, and the attorney-client privilege and the expectation of client confidence and work product and other immunities belong solely to the applicable Group Company (but in all cases, for the avoidance of doubt, excluding any other Subsidiary of Buyer) and is exclusively controlled by such member, and shall not pass to or be claimed by Buyer, any Subsidiary of Buyer or any other Party or Waiving Party, other than Archaea or the Company. From and after the Closing, each Party (other than Archaea or the Company) shall not, and shall cause its Waiving Parties not to, access the same or seek to obtain the same by any process. From and after the Closing, each of the Parties (other than Archaea or the Company), on behalf of itself and the Waiving Parties, irrevocably waives and will not assert any attorney-client privilege or work product or other immunities with respect to any communication among Pillsbury (or any other counsel that represented the Group Companies), any Group Company and/or any director, manager, officer, owner, employee or Representative of any of the foregoing occurring prior to the Closing in connection with any the Company Post-Closing Representation. Notwithstanding the foregoing, in the event that a dispute arises between any Party or its Waiving Parties, on the one hand, and a third party, on the other hand, such Party or its Waiving Party, as applicable, may assert the attorney-client privilege or work product or other immunities to prevent disclosure of confidential communications to such third party; provided, however, that no Party (or its Waiving Party) may waive such privilege or other immunity without the prior written consent of the Company.

 

94

 

 

(b) Buyer.

 

(i) Each Party hereby agrees, on behalf of itself and the Waiving Parties, that Kirkland & Ellis LLP (“Kirkland”) (or any successor thereto) may represent Buyer or any direct or indirect director, manager, officer, owner, employee or Affiliate thereof, in connection with any dispute, claim, Proceeding or Liability arising out of or relating to this Agreement, any Ancillary Agreement or the transactions contemplated hereby or thereby (any such representation, the “Buyer Post-Closing Representation”) notwithstanding its representation (or any continued representation) of Buyer in connection with the transactions contemplated by this Agreement, and each Party on behalf of itself and the Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest or any objection arising therefrom or relating thereto, even though the interests of the Buyer Post-Closing Representation may be directly adverse to the Waiving Parties.

 

(ii) Each of the Parties acknowledges that the foregoing provision applies whether or not Kirkland provides legal services to Buyer after the Closing Date. Each of the Parties, for itself and the Waiving Parties, hereby irrevocably acknowledges and agrees that all communications among Kirkland (or any other counsel that represented the Buyer), the Buyer and/or any director, manager, officer, owner, employee or representative of any of the foregoing made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute, claim, Proceeding or Liability arising out of or relating to, this Agreement, any Ancillary Agreement or the transactions contemplated hereby or thereby or any matter relating to any of the foregoing are privileged communications, and shall remain privileged after the Closing, and the attorney-client privilege and the expectation of client confidence and work product and other immunities belongs solely to Buyer and is exclusively controlled by such member, and shall not pass to or be claimed by any other Party or Waiving Party, other than Buyer. From and after the Closing, each Party (other than Buyer) shall not, and shall cause its Waiving Parties not to, access the same or seek to obtain the same by any process. From and after the Closing, each of the Parties (other than Buyer), on behalf of itself and the Waiving Parties, irrevocably waives and will not assert any attorney-client privilege or work product or other immunities with respect to any communication among Kirkland (or any other counsel that represented the Buyer), Buyer and/or any director, manager, officer, owner, employee or representative of any of the foregoing occurring prior to the Closing in connection with any Buyer Post-Closing Representation. Notwithstanding the foregoing, in the event that a dispute arises between any Party or its Waiving Parties, on the one hand, and a third party, on the other hand, such Party or its Waiving Party, as applicable, may assert the attorney-client privilege or work product or other immunities to prevent disclosure of confidential communications to such third party; provided, however, that no Party (or its Waiving Party) may waive such privilege or other immunity without the prior written consent of Buyer.

 

95

 

 

Section 11.17 Acknowledgements.

 

(a) The Company. The Company specifically acknowledges and agrees to the Buyer’s and RAC’s disclaimers of any representations or warranties other than those set forth in Article IV and any Ancillary Agreement or certificate delivered by the Buyer or RAC pursuant to this Agreement, whether made by the Buyer Parties or any of their respective Affiliates or representatives, and of all Liability and responsibility for any representation, warranty, projection, forecast, statement, or information made, communicated, or furnished (orally or in writing) to Archaea, the Company, its Affiliates or Representatives (including any opinion, information, projection, or advice that may have been or may be provided to Archaea, the Company, its Affiliates or Representatives by either the Buyer Parties or any of their respective Affiliates or Representatives), other than those set forth in Article IV and any Ancillary Agreement or certificate delivered by the Buyer Parties pursuant to this Agreement. The Company (i) specifically acknowledges and agrees that except for the representations and warranties set forth in Article IV and any Ancillary Agreement or certificate delivered by the Buyer Parties pursuant to this Agreement, neither the Buyer Parties nor any of their respective Affiliates or Representatives has made, any other express or implied representation or warranty with respect to the Buyer Parties, their respective assets or Liabilities, their respective business or the transactions contemplated by this Agreement or the Ancillary Agreements and (ii) with respect to the Buyer Parties, irrevocably and unconditionally waives and relinquishes any and all rights, Proceedings or causes of action (in each case, whether accrued, absolute, contingent or otherwise, known or unknown, or due or to become due, express or implied, in law or in equity, or based on contract, tort or otherwise) based on or relating to any such other representation or warranty.

 

(b) Buyer. The Buyer specifically acknowledges and agrees to the Company’s disclaimer of any representations or warranties other than those set forth in Article III and any Ancillary Agreement or certificate delivered by Archaea or the Company pursuant to this Agreement, whether made by the Company or any of their respective Affiliates or Representatives, and of all Liability and responsibility for any representation, warranty, projection, forecast, statement, or information made, communicated, or furnished (orally or in writing) to the Buyer Parties, their Affiliates or Representatives (including any opinion, information, projection, or advice that may have been or may be provided to the Buyer Parties, their Affiliates or Representatives by the Company or any of their respective Affiliates or Representatives), other than those set forth in Article III and any Ancillary Agreement or certificate delivered by Archaea or the Company pursuant to this Agreement. The Buyer (i) specifically acknowledges and agrees that, except for the representations and warranties set forth in Article III and any Ancillary Agreement or certificate delivered by the Company pursuant to this Agreement, neither the Company nor any of its Affiliates or Representatives has made, any other express or implied representation or warranty with respect to the Company, its assets or Liabilities, its business or the transactions contemplated by this Agreement or the Ancillary Agreements and (ii) with respect to the Group Companies, irrevocably and unconditionally waives and relinquishes any and all rights or Proceedings (in each case, whether accrued, absolute, contingent or otherwise, known or unknown, or due or to become due, express or implied, in law or in equity, or based on contract, tort or otherwise) based on or relating to any such other representation or warranty.

 

* * * * *

 

96

 

 

Each of the undersigned has caused this Business Combination Agreement to be duly executed as of the date first above written.

 

  BUYER:
     
  LFG BUYER CO, LLC
     
  By: /s/ Jamie Rogers
  Name: Jamie Rogers
  Title: Authorized Person
     
  INTERMEDIATECO:
     
  LFG INTERMEDIATE CO, LLC
     
  By: /s/ Jamie Rogers
  Name: Jamie Rogers
  Title: Authorized Person
     
  RICE HOLDINGS:
     
  RICE ACQUISITION HOLDINGS LLC
     
  By: /s/ Jamie Rogers
  Name: Jamie Rogers
  Title: Authorized Person
     
  COMPANY MERGER SUB:
     
  FEZZIK MERGER SUB, LLC
     
  By: /s/ Jamie Rogers
  Name: Jamie Rogers
  Title: Authorized Person
     
  COMPANY:
     
  ARCHAEA ENERGY LLC
     
  By: /s/ Richard Walton
  Name: Richard Walton
  Title: Authorized Signatory

  

Signature Page to Business Combination Agreement

 

97

 

 

  COMPANY:
     
  ARCHAEA ENERGY II LLC
     
  By: /s/ Richard Walton
  Name: Richard Walton
  Title: Authorized Signatory
     
  SOLELY FOR PURPOSES OF SECTION 2.2, Article IV, Article V, Article VI and Article XI
     
  RAC:
     
  RICE ACQUISITION CORP.
     
  By: /s/ Jamie Rogers
  Name: Jamie Rogers
  Title: Chief Accounting Officer

 

Signature Page to Business Combination Agreement

 

98

 

 

EXHIBIT C

 

FORM OF STOCKHOLDERS’ AGREEMENT

 

This Stockholders’ Agreement (this “Agreement”) is made as of [●], 2021, by and among (a) [BuyerCo LLC] (the “Buyer”); (b) the stockholders listed on Schedule I hereto1 (together with their respective Affiliates and their respective Permitted Transferees hereunder, the “Aria Holders”); (c) Archaea Energy, LLC (“Archaea” and together with its Permitted Transferees hereunder, the “Archaea Holders”); (d) Rice Acquisition Holdings LLC (“OpCo”); (e) Rice Acquisition Sponsor LLC (“RAC Sponsor” and together with the Aria Holders and the Archaea Holders, the “Stockholder Parties”) and (f) Rice Acquisition Corp. (including any of its successors by merger, acquisition, reorganization, conversion or otherwise, the “Company”).2

 

RECITALS

 

WHEREAS, Buyer has entered into that certain Business Combination Agreement, dated as of April [●], 2021 (as it may be amended or supplemented from time to time, the “Aria Agreement”), by and among (a) Buyer, (b) [●] Merger Sub, LLC, a Delaware limited liability company and a direct wholly owned Subsidiary of the Buyer, (c) Aria Energy LLC, (d) OpCo, (e) [●], a [●], solely in its capacity as representative of the Company Unitholders (as defined in the Aria Agreement) and (f) solely for purposes of [Article V, Article VI, Article VII and Article XIII] thereof, the Company;

 

WHEREAS, Buyer has entered into that certain Business Combination Agreement, dated as of April [●], 2021 (as it may be amended or supplemented from time to time, the “Archaea Agreement” and, together with the Aria Agreement, the “Business Combination Agreements,” and the transactions contemplated by the Business Combination Agreements, collectively, the “Transaction”), by and among (a) Buyer, (b) [●] Merger Sub, LLC, a Delaware limited liability company, (c) Archaea Energy, LLC, (d) OpCo, (e) [TargetCo], a Delaware limited liability company, and (f) solely for purposes of [Article V, Article VI, Article VII and Article XIII] thereof, the Company;

 

WHEREAS, on October 21, 2020, the Company and RAC Sponsor entered into that certain Private Placement Warrants and Warrant Rights Purchase Agreement, pursuant to which RAC Sponsor committed to purchase 5,693,400 warrants in a private placement transaction occurring simultaneously with the closing of the Company’s initial public offering (the “Private Placement Warrants”);

 

WHEREAS, among other things, (a) pursuant to the Aria Agreement, OpCo issued a number of [Class A Units (as defined below)] to the Aria Holders in accordance with the terms thereof, (b) pursuant to the Archaea Agreement, OpCo issued a number of [Class A Units] to Archaea in accordance with the terms thereof, and (c) the Company issued certain shares of Class B Common Stock (as defined below) to the Aria Holders and Archaea;

 

 

1 Note to Draft: Final stockholder information, including notice information to be populated in connection with Closing along with director information.
2 Note to Draft: Description/parties to the BCA subject to finalization based on transaction structuring.

 

C-1

 

 

WHEREAS, as of immediately following the closing of the Transaction (the “Closing”), each of the Stockholder Parties Beneficially Owns the respective number of Class A Units of OpCo (the “Class A Units”) and Class B Common Stock, par value $0.0001 per share of the Company (the “Class B Common Stock,” and together with the Class A Units, collectively, the “Company Interests”), set forth on Exhibit A hereto; and

 

WHEREAS, the number of Company Interests Beneficially Owned by each Stockholder Party may change from time to time, in accordance with the terms of (a) the Business Combination Agreements, (b) the Amended and Restated Certificate of Incorporation of the Company, as it may be amended, supplemented and/or restated from time to time (the “Charter”), (c) the by-laws of the Company, as they may be amended, supplemented and/or restated from time to time (the “By-laws”) and (d) the OpCo A&R LLCA (as defined below), which changes shall be reported by each Stockholder Party in accordance with the applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and

 

WHEREAS, in connection with the Transaction, the Stockholder Parties have agreed to execute and deliver this Agreement.

 

NOW THEREFORE, in consideration of the foregoing and of the promises and covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

AGREEMENT

 

1. Definitions.3 In addition to the terms defined elsewhere in this Agreement, the following terms shall have the meanings indicated when used in this Agreement with initial capital letters:

 

Affiliate” shall mean, with respect to any specified Person, any other Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, such specified Person; provided, that (i) the Company and its Subsidiaries shall not be deemed to be Affiliates of the Stockholder Parties or any of their respective Affiliates and (ii) neither portfolio companies in which any Stockholder Party or any of their respective Affiliates has an investment (whether as debt or equity) nor limited partners, non-managing members or other similar direct or indirect investors in a Stockholder Party or its respective Affiliates shall be deemed to be Affiliates of the Stockholder Party or the Stockholder Party’s Affiliates. For the purposes of this definition, “control”, when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling,” “controlled,” “controlled by” and “under common control with” have meanings correlative to the foregoing.

 

 

3 Note to Draft: Defined terms to correspond with finalized defined terms in the Archaea Agreement and Aria Agreement, as applicable.

 

C-2

 

 

Ares Investor” shall mean [ ] and [ ] and their respective Affiliates, and in each case their Permitted Transferees.

 

Beneficially Own” shall have the meaning ascribed to such term in Rule 13d-3 under the Exchange Act.

 

Board” shall mean the board of directors of the Company.

 

Business Day” shall mean any day except a Saturday, a Sunday or any other day on which commercial banks are required or authorized to close in the State of New York.

 

Class A Common Stock” shall mean Class A Common Stock, par value $0.0001 per share of the Company.

 

Class A Common Units” shall mean the “Class A Common Units” of OpCo as defined in the OpCo A&R LLCA.

 

Class B Common Units” shall mean the “Class B Common Units” of OpCo as defined in the OpCo A&R LLCA.

 

Closing Date” shall mean the later of (a) the Closing Date as defined in the Archaea Agreement and (b) the Closing Date as defined in the Aria Agreement.

 

Common Stock” shall mean Class A Common Stock, Class B Common Stock and any other equity security of the Company issued or issuable with respect to the shares of Class A Common Stock or Class B Common Stock, in each case by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or reorganization or similar transaction.

 

Competitor” shall mean a Person engaged, directly or indirectly (including through any partnership, limited liability company, corporation, other entity, joint venture or similar arrangement (whether now existing or formed hereafter)), in the provision or development of renewable natural gas (or power derived therefrom) (excluding the Ares Investor and any financial investment firm or collective investment vehicle that holds less than [20]% of the outstanding equity of any Competitor).

 

C-3

 

 

Confidential Information” shall mean all information (whether or not specifically identified as confidential), in any form or medium, that is disclosed to, or developed or learned by, the Company or any of its Subsidiaries, or a Stockholder Party, as the case may be, in the performance of duties for, or on behalf of, the Company or any of its Subsidiaries, including, without limitation: (a) internal business information of the Company and its Subsidiaries (including, without limitation, information relating to strategic plans and practices, business, accounting, financial or marketing plans, practices or programs, training practices and programs, salaries, bonuses, incentive plans and other compensation and benefits information and accounting and business methods); (b) identities of, individual requirements of, specific contractual arrangements with, and information about, the Company or any of its Subsidiaries, its Affiliates, their respective customers and their respective confidential information; (c) any confidential or proprietary information of any third party that the Company or any of its Subsidiaries has a duty to maintain confidentiality of, or use only for certain limited purposes; (d) industry research compiled by, or on behalf of the Company or any of its Subsidiaries, including, without limitation, identities of potential target companies, management teams, and transaction sources identified by, or on behalf of, the Company or any of its Subsidiaries; (e) compilations of data and analyses, processes, methods, track and performance records, data and data bases relating thereto; and (f) information related to the Company’s intellectual property and updates of any of the foregoing; provided that, “Confidential Information” shall not include any information that has (i) become generally known and widely available for use other than as a result of the acts or omissions of such Stockholder Party or any Person over which such Stockholder Party has control to the extent such acts or omissions are not authorized by such Stockholder Party in the performance of such Person’s assigned duties for such Stockholder Party, (ii) was independently developed by such Stockholder Party or its representatives without the use of any other Confidential Information or (iii) is or has been made known or disclosed to such Stockholder Party by a third party (other than an Affiliate of such Stockholder Party) without a breach of any obligation of confidentiality such third party may have.

 

Contract” shall mean any written or oral contract, agreement, license or Lease (including any amendments thereto).

 

Economic Interests” shall mean (a) the issued and outstanding shares of Class A Common Stock, (b) the issued and outstanding Class A Common Units and (c) any other equity security of (i) the Company issued or issuable with respect to the shares of Class A Common Stock referenced in clauses (a) or (ii) OpCo issued or issuable with respect to Class A Common Units referenced in clauses (b), in each case by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or reorganization or similar transaction.

 

Equity Securities” means, with respect to any Person, all of the shares of capital stock or equity of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock or equity of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock or equity of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares or equity (or such other interests), restricted stock awards, restricted stock units, equity appreciation rights, phantom equity rights, profit participation and all of the other ownership or profit interests of such Person (including partnership or member interests therein), whether voting or nonvoting.

 

Existing Investors” shall mean any holders of Founder Interests or Private Placement Warrants immediately prior to the Closing that is a party hereto or any such holder’s Permitted Transferees.

 

Existing Registration Rights Agreement” shall mean the Registration Rights Agreement, dated as of October 21, 2020, as may be amended from time to time, by and among the Company, Rice Energy Sponsor LLC, a Delaware limited liability company, Atlas Point Energy Infrastructure Fund, LLC, a Delaware limited liability company, and the undersigned parties listed under Holder on the signature page thereto.

 

C-4

 

 

FINRA” shall mean the Financial Industry Regulatory Authority, Inc.

 

Founder Interests” shall mean those Class B Common Units granted to the Existing Investors prior to the date hereof and shall be deemed to include the Company Interests issued upon conversion thereof.

 

Governmental Entity” shall mean any nation or government, any state, province or other political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any court, arbitrator (public or private) or other body or administrative, regulatory or quasi-judicial authority, agency, department, board, commission or instrumentality of any federal, state, local or foreign jurisdiction.

 

Law” shall mean any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order.

 

Lease” shall mean all leases, subleases, licenses, concessions and other Contracts pursuant to which the Company or any Subsidiaries holds any leased real property (along with all amendments, modifications and supplements thereto).

 

Liabilities” shall mean any and all debts, liabilities, guarantees, commitments or obligations, whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured, liquidated or unliquidated, accrued or not accrued, direct or indirect, due or to become due or determined or determinable.

 

Liens” shall mean, with respect to any specified asset, any and all liens, mortgages, hypothecations, claims, encumbrances, options, pledges, licenses, rights of priority easements, covenants, restrictions and security interests thereon.

 

Lock-up Period” shall mean (a) with respect to the Aria Holders, subject to Section 7(d), the period beginning on the Closing Date and ending on the date that is 180 days following the Closing Date and (b) with respect to the Archaea Holders, the period beginning on the Closing Date and ending on the date that is [●]4 days following the Closing Date.

 

Lock-up Shares” shall mean (a) the Company Interests received by the Aria Holders and (b) the Company Interests received by the Archaea Holders, in each case in connection with the Transaction and as of the Closing Date. For all purposes under this Agreement, any securities owned by RAC Sponsor and its Affiliates (other than the Archaea Holders) as of the date of this Agreement, shall not constitute Lock-up Shares of the Archaea Holders.

 

 

 

4 Note to Draft: The lockup arrangements for the Archaea stockholders will be finalized as soon as practicable following the deal announcement and will be generally consistent with the framework provided in the letter of intent dated as of February 22, 2021. Without limiting the foregoing, in no event will the lockup obligations on any Archaea stockholder be more favorable than the terms of the Aria/Ares lockup.

 

C-5

 

 

Necessary Action” shall mean, with respect to any party and a specified result, all actions (to the extent such actions are not prohibited by applicable Law, within such party’s control and do not directly conflict with any rights expressly granted to such party in this Agreement, the Business Combination Agreements, the Charter or the By-laws) reasonably necessary and desirable within his, her or its control to cause such result, including, without limitation (a) calling special meetings of the Board and the stockholders of the Company, (b) voting or providing a proxy with respect to the Company Interests Beneficially Owned by such party, (c) voting in favor of the adoption of stockholders’ resolutions in connection with the Transaction and any amendments to the Charter or the By-laws, (d) requesting members of the Board (to the extent such members were elected, nominated or designated by the party obligated to undertake such action) to act (subject to any applicable fiduciary duties) in a certain manner and voting or providing a proxy with respect to the Company Interests Beneficially Owned by such party to remove any such director that does not act in such a manner and (e) making, or causing to be made, with governmental, administrative or regulatory authorities, all filings, registrations or similar actions that are required to achieve such a result.

 

OpCo A&R LLCA” shall mean that certain amended and restated limited liability company agreement of OpCo, dated as of the date hereof, as may be amended from time to time in accordance with its terms.

 

Permanent Incapacity” shall mean, with respect to any Person, when a competent medical authority who is treating such Person has given a written opinion to the Company stating that such Person has become permanently incapable of carrying out his or her functions as an officer or member of the Board, as applicable.

 

Permitted Transferees” shall mean, with respect to any Stockholder Party or any of their respective Permitted Transferees: (a) the Company, Buyer, or any of their Subsidiaries; (b) any Person approved in writing by the Board, in its sole discretion (such consent not to be unreasonably withheld, conditioned or delayed); (c) in the case of the Archaea Holders, the Aria Holders and RAC Sponsor or any of their respective Permitted Transferees, in each case, each of their respective equityholders and Affiliates (including any partner, shareholder, member controlling or under common control with such member and affiliated investment fund or vehicle); (d) any passive Person, vehicle, account or fund that is managed, sponsored or advised by, any Stockholder Party, a Permitted Transferee or any respective Affiliate thereof, so long as the decision-making control with respect to such interests after such Transfer to such passive Person, vehicle, account or fund remains with such Stockholder Party, Permitted Transferee or any respective Affiliate thereof; or (e) if a Stockholder Party or their Permitted Transferee is a natural Person, any of such Stockholder Party’s and Permitted Transferee’s controlled Affiliates, or any trust or other estate planning vehicle that is under the control of such Stockholder Party or Permitted Transferee, as applicable, and for the sole benefit of such Stockholder Party and/or such Stockholder Party’s and such Permitted Transferee and/or such Permitted Transferee’s spouse, former spouse, ancestors and descendants (whether natural or adopted), parents and their descendants and any spouse of the foregoing Persons, in the case of each of clauses (a) through (e), only if such transferee becomes a party to this Agreement and only for so long as such party continues to qualify as a Permitted Transferee.

 

C-6

 

 

Person” shall mean individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization or any other entity, including a governmental authority.

 

Proceeding” shall mean any action, claim, suit, charge, litigation, complaint, investigation, audit, notice of violation, citation, arbitration, inquiry, or other proceeding at Law or in equity (whether civil, criminal or administrative) by or before any Governmental Entity.

 

RAC Sponsor Holders” shall mean RAC Sponsor and its Permitted Transferees.

 

Registrable Securities” shall mean (a) the shares of Class A Common Stock issuable upon the exchange of Company Interests held by a Registration Rights Party (as defined below) immediately after the Closing in accordance with the terms of the OpCo A&R LLCA, (b) any outstanding shares of Class A Common Stock and any shares of Class A Common Stock issuable upon the exercise of any other equity securities of the Company held by a Registration Rights Party as of the date of this Agreement and (c) any other equity security of the Company issued or issuable with respect to the shares of Class A Common Stock referenced in clauses (a) through (b) by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or reorganization or other similar transaction; provided, however, that as to any particular Registrable Security, such security shall cease to be a Registrable Security when: (i) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged pursuant to such Registration Statement; (ii) such securities shall have been otherwise transferred, new certificates for such securities not bearing a legend restricting further Transfer shall have been delivered by the Company and subsequent public distribution of such securities shall not require registration under the Securities Act; (iii) such securities shall have ceased to be outstanding; or (iv) such securities may be sold without registration pursuant to Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission (as defined below)) within 90 days with no volume, manner of sale or other restrictions or limitations provided that any such security that ceases to be a Registrable Security under this clause (iv) will again be deemed a Registrable Security if a subsequent decrease in trading volume results in the holder thereof not being able to sell such securities during such period without restriction as to volume or manner of sale pursuant to Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission (as defined below).

 

Registration Statement” shall mean a registration statement filed by the Company or its successor with the Commission (as defined below) in compliance with the Securities Act and the rules and regulations promulgated thereunder for a public offering and sale of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into, equity securities (other than a registration statement on Form S-4 or Form S-8, or their successors, or any registration statement covering only securities proposed to be issued in exchange for securities or assets of another entity), including any related prospectus, amendments and supplements to such registration statement, including pre- and post-effective amendments, and all exhibits and all material incorporated by reference in such registration statement.

 

C-7

 

 

Securities Act” shall mean the Securities Act of 1933, as amended.

 

Shelf Registration Statement” shall mean a registration statement filed with the Commission (as defined below) for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act.

 

Stockholder Designating Party” shall mean the Aria Holders and/or RAC Sponsor, as applicable.

 

Stockholder Shares” shall mean all securities of the Company and OpCo registered in the name of, or Beneficially Owned by the Stockholder Parties, including any and all securities of the Company acquired and held in such capacity subsequent to the date hereof. For all purposes under this Agreement, any securities owned by RAC Sponsor and its Affiliates (other than the Archaea Holders) as of the date of this Agreement, shall not constitute Stockholder Shares of the Archaea Holders.

 

Subsidiary” shall mean, with respect to any Person, any corporation, association, partnership, limited liability company, joint venture or other business entity of which more than 50% of the voting power or equity is owned or controlled directly or indirectly by such Person, or one or more of the Subsidiaries of such Person, or a combination thereof.

 

Transfer” shall mean the (a) 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 with respect to, any security or (b) 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.

 

Underwriter” shall mean a securities dealer who purchases any Registrable Securities as principal in an Underwritten Offering and not as part of such dealer’s market-making activities.

 

Underwritten Offering” shall mean an offering for cash pursuant to an effective Registration Statement under the Securities Act (other than a Registration Statement on Form S-4 or Form S-8 or any successor form) in which securities of the Company are sold to an Underwriter in a firm commitment underwriting for distribution to the public.

 

Voting Shares” shall mean all securities of the Company that may be voted in the election of the Directors (as defined below) registered in the name of, or Beneficially Owned by any Person, including any and all securities of the Company acquired and held by such Person subsequent to the date hereof, which as of the date hereof, shall include the Class A Common Stock and Class B Common Stock.

 

C-8

 

 

2. Registration Rights.

 

(a) Registration Statement Covering Resale of Registrable Securities.

 

(i) Within 30 calendar days after the Closing Date, the Company will file with the Securities and Exchange Commission (the “Commission”) (at its sole cost and expense) a Registration Statement on Form S-3 or any similar short-form registration that may be available at such time or its successor form (“Form S-3”), or, if the Company is ineligible to use Form S-3, a Registration Statement on Form S-1 or any similar long-form registration that may be available at such time or its successor form (“Form S-1”), for an offering to be made on a continuous basis pursuant to Rule 415 of the Securities Act registering the resale from time to time by the Aria Holders and the Archaea Holders (each, a “Registration Rights Party” and, collectively, the “Registration Rights Parties”) of all of the Registrable Securities then held by the Registration Rights Parties pursuant to any method or combination of methods legally available to, and requested by any Registration Rights Party (the “Resale Shelf Registration Statement”) (it being agreed that the Resale Shelf Registration Statement shall be an automatic shelf registration statement that shall become effective upon filing with the SEC pursuant to Rule 462(e) if Rule 462(e) is available to the Company for the resale of the Registrable Securities). The Company shall use its commercially reasonable efforts to have the Resale Shelf Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earlier of (A) 60 calendar days after the filing thereof (or, if the Commission reviews and has written comments to the Resale Shelf Registration Statement, the 90th calendar day following the filing thereof) and (B) the seventh Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by the Commission that the Resale Shelf Registration Statement will not be “reviewed” or will not be subject to further review (the earlier of (A) and (B), the “Effectiveness Deadline”); provided, that if such deadline falls on a Saturday, Sunday or other day that the Commission is closed for business, the Effectiveness Deadline shall be extended to the next Business Day on which the Commission is open for business. The Company agrees to cause such Resale Shelf Registration Statement, or another shelf registration statement that includes the Registration Rights Parties’ Registrable Securities, to remain effective until the earliest of (x) the fifth anniversary of the later of (i) the date the initial Resale Shelf Registration Statement hereunder is declared effective and (ii) the date on which the Lock-up Period has expired with respect to the Aria Holders and (y) the date on which none of the Registration Rights Parties hold any Registrable Securities (the “Effectiveness Period”). If the Company files a Form S-1 pursuant to this Section 2(a)(i), the Company shall use its commercially reasonable efforts to convert the Form S-1 to a Form S-3 as soon as practicable after the Company is eligible to use Form S-3 (it being agreed that the Company shall file an automatic shelf registration statement that shall become effective upon filing with the SEC pursuant to Rule 462(e) if Rule 462(e) is available to the Company for the resale of the Registrable Securities).

 

(ii) Notification and Distribution of Materials. The Company shall notify the Registration Rights Parties in writing of the effectiveness of the Resale Shelf Registration Statement promptly and shall furnish to them, without charge, such number of copies of the Resale Shelf Registration Statement (including any amendments, supplements and exhibits), the prospectus contained therein (including each preliminary prospectus and all related amendments and supplements) and any documents incorporated by reference in the Resale Shelf Registration Statement or such other documents as the Registration Rights Parties may reasonably request in order to facilitate the sale of the Registrable Securities in the manner described in the Resale Shelf Registration Statement.

 

C-9

 

 

(iii) Amendments and Supplements; Subsequent Shelf Registration. Subject to the provisions of Section 2(a)(i) above, the Company shall promptly prepare and file with the Commission from time to time such amendments and supplements to the Resale Shelf Registration Statement and prospectus used in connection therewith or any document that is to be incorporated by reference into such Resale Shelf Registration Statement or prospectus as may be reasonably requested by a Registration Rights Party, as may be necessary to keep the Resale Shelf Registration Statement effective or as may be required by the rules, regulations or instructions applicable to the form used by the Company or by the Securities Act or rules and regulations thereunder with respect to the disposition of all Registrable Securities during the Effectiveness Period. If any Resale Shelf Registration Statement ceases to be effective under the Securities Act for any reason during the Effectiveness Period, the Company shall use its reasonable best efforts to as promptly as practicable cause such Resale Shelf Registration Statement to again become effective under the Securities Act (including obtaining the prompt withdrawal of any order suspending the effectiveness of such Resale Shelf Registration Statement), and shall use its reasonable best efforts to as promptly as practicable amend such Resale Shelf Registration Statement in a manner reasonably expected to result in the withdrawal of any order suspending the effectiveness of such Shelf or file an additional Registration Statement as a Shelf Registration (a “Subsequent Shelf Registration”) registering the resale of all outstanding Registrable Securities from time to time, and pursuant to any method or combination of methods legally available to, and requested by, any Registration Rights Party; provided that the Effectiveness Period shall be extended by the amount of time during which any of the Registrable Securities of the Registration Parties are not registered under an effective Resale Shelf Registration Statement. If a Subsequent Shelf Registration is filed, the Company shall use its reasonable best efforts to (i) cause such Subsequent Shelf Registration to become effective under the Securities Act as promptly as practicable after the filing thereof and (ii) keep such Subsequent Shelf Registration continuously effective, in compliance with the provisions of the Securities Act and available for use during the Effectiveness Period. Any references herein to Resale Shelf Registration Statement shall include any Subsequent Shelf Registration.

 

(iv) Suspensions. The Registration Rights Parties acknowledge and agree that upon receipt of written notice from the Company, the Company may suspend the use of the Resale Shelf Registration Statement if it determines that in order for such registration statement not to contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading, an amendment thereto would be needed to include information that would at that time not otherwise be required to be disclosed in a current, quarterly or annual report under the Exchange Act and the Company has a bona fide business purpose for not making such information public, provided, that, (i) the Company shall suspend the use of the Resale Shelf Registration Statement for the shortest period of time, but in no event for a period of more than 60 consecutive days or more than a total of 120 calendar days in any 360-day period; provided, however, that the Company shall not defer its obligations in this manner more than three times in any 360-day period; (ii) the Company shall suspend the use of any other Registration Statement and prospectus and shall not sell any securities for its own account or that of any other stockholder, in each case during such time as the Resale Shelf Registration Statement is suspended pursuant to this Section 2.1(a)(iv); and (iii) the Company shall use commercially reasonable efforts to make such Resale Shelf Registration Statement available for the sale by the Registration Rights Parties of such securities promptly thereafter. The Company shall immediately notify the Registration Rights Parties in writing of (i) the date on which such suspension will begin pursuant to this Section 2(a)(iv) and (ii) the date on which such suspension period will end pursuant to this Section 2(a)(iv). The Effectiveness Period shall be extended by the amount of time during which the use of any Registration Statement is suspended pursuant to this Section 2(a)(iv).

 

C-10

 

 

(v) Registration of Additional Registrable Securities. If a Resale Shelf Registration Statement is then effective, within seven Business Days after the Company has received a written request from a Permitted Transferee holding Registrable Securities not covered by an effective Resale Shelf Registration Statement, the Company shall file a prospectus supplement or amendment to the Resale Shelf Registration Statement to add such Permitted Transferee as a selling stockholder in such Resale Shelf Registration Statement to the extent permitted under the rules and regulations promulgated by the Commission.

 

(vi) Shelf Takedown. Subject to the other applicable provisions of this Agreement, at any time that any Resale Shelf Registration Statement is effective, if a Registration Rights Party delivers a notice to the Company (a “Take-Down Notice”) stating that it intends to effect a sale or distribution of all or part of its Registrable Securities included by it on any Resale Shelf Registration Statement (a “Shelf Offering”) and stating the number of Registrable Securities to be included in such Shelf Offering, then, subject to the other applicable provisions of this Agreement, the Company shall, as promptly as practicable, amend or supplement the Resale Shelf Registration Statement as may be necessary in order to enable such Registrable Securities to be sold and distributed pursuant to the Shelf Offering.

 

(b) Underwritten Takedown.

 

(i) At any time and from time to time after the Resale Shelf Registration Statement has been declared effective by the Commission, the Registration Rights Parties may request (such requesting Person, the “Demanding Holder”) to sell all or any portion of their Registrable Securities in an Underwritten Offering that is registered pursuant to the Resale Shelf Registration Statement (each, an “Underwritten Shelf Takedown”); provided that the Company shall only be obligated to effect an Underwritten Shelf Takedown if (A) such offering shall include securities with a total offering price (before deduction of underwriting discounts and commissions) reasonably expected to exceed, in the aggregate, $25,000,000 or (B) if the Ares Investor is the Demanding Holder, such request shall be made with respect to all of the then outstanding Registrable Securities of the Ares Investor (clauses (A) and (B) are referred to herein as the “Underwritten Shelf Takedown Conditions”). All requests for Underwritten Shelf Takedowns shall be made by giving written notice to the Company, which shall specify the approximate number of Registrable Securities proposed to be sold in the Underwritten Shelf Takedown (an “Underwritten Demand”). Notwithstanding the foregoing, the Company is not obligated to effect more than an aggregate of three Underwritten Offerings pursuant to Section 2(b) in any 12-month period and is not obligated to effect an Underwritten Offering pursuant to this Section 2(b) within 90 days after the closing of any Underwritten Offering (the “Underwritten Offering Limitations”); provided, that an Underwritten Offering shall not be considered made for purposes of this Section 2(b)(i) unless it has resulted in the disposition by the Demanding Holder of at least 75% of the amount of Registrable Securities requested to be included. For the avoidance of doubt, Underwritten Shelf Takedowns shall include underwritten block trades. No securities other than the Registrable Securities of the Registration Rights Parties may be included in any block trade initiated by a Demanding Holder without the prior written consent of the Demanding Holder.

 

C-11

 

 

(ii) The Company shall, within three Business Days of the Company’s receipt of an Underwritten Demand (one Business Day if such offering is a block trade or a “bought deal” or “overnight transaction” (a “Bought Deal”)), notify, in writing, all other Registration Rights Parties of such demand, and each Registration Rights Party who thereafter wishes to include all or a portion of such Registration Rights Party’s Registrable Securities in such Underwritten Offering (a “Requesting Holder”) shall so notify the Company, in writing, within three Business Days (one Business Day if such offering is a block trade or a Bought Deal) after the receipt by the Registration Rights Party of the notice from the Company. Upon receipt by the Company of any such written notification from a Requesting Holder, such Requesting Holder shall be entitled to have its Registrable Securities included in the Underwritten Offering pursuant to an Underwritten Demand, subject to compliance with Section 2(b)(iii).

 

(iii) The Demanding Holder shall have the right to select the Underwriters for such offering (which shall consist of one or more reputable nationally or regionally recognized investment banks and which selection shall be subject to the consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed) and to agree to the pricing and other terms of such offering. In connection with an Underwritten Shelf Takedown, the Company and all Requesting Holders proposing to distribute their Registrable Securities through an Underwritten Offering under this Section 2(b) shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the Demanding Holders initiating the Underwritten Offering, and the Company shall take such other actions as are reasonably required in order to expedite or facilitate the disposition of the Registrable Securities in such Underwritten Shelf Takedown.

 

(iv) If the managing Underwriter for an Underwritten Shelf Takedown advises the Demanding Holder that in its opinion the inclusion of all securities requested to be included in the Underwritten Shelf Takedown (whether by the Demanding Holder, the Requesting Holders, the Company or any other Person) may materially and adversely affect the price, timing, distribution or success of the offering (a “Negative Impact”), then all such securities to be included in such Underwritten Shelf Takedown shall be limited to the securities that the managing Underwriter believes can be sold without a Negative Impact and shall be allocated as follows: (A) first, the Registrable Securities of the Demanding Holder and the Requesting Holders (on a pro rata basis based on the number of shares of Registrable Securities properly requested by such Demanding Holder and Requesting Holders to be included in the Underwritten Shelf Takedown), (B) second, to the extent that any additional securities can, in the opinion of such managing Underwriter, be sold without a Negative Impact, to the parties to the Existing Registration Rights Agreement who properly requested to include their securities in such Underwritten Shelf Takedown pursuant to such agreement in accordance with the terms of such agreement, (C) third, to the extent that any additional securities can, in the opinion of the managing Underwriter, be sold without a Negative Impact, to the Company and (D) fourth, to the extent that any additional securities can, in the opinion of the managing Underwriter, be sold without a Negative Impact, to the Company’s other securityholders who properly requested to include their securities in such Underwritten Shelf Takedown pursuant to an agreement, other than this Agreement, with the Company that provides for registration rights in accordance with the terms of such agreement.

 

C-12

 

 

(v) Withdrawal Rights. Any Demanding Holder initiating an Underwritten Shelf Takedown for any or no reason whatsoever may withdraw from such Underwritten Shelf Takedown by giving written notice to the Company prior to the public announcement of the Underwritten Shelf Takedown by the Company; provided that a Registration Rights Party not so withdrawing may elect to have the Company continue an Underwritten Shelf Takedown if the Underwritten Shelf Takedown Conditions would still be satisfied. Following the receipt of any withdrawal notice, the Company shall promptly forward such notice to any other Registration Rights Party that had elected to participate in such Underwritten Shelf Takedown. A withdrawn Underwritten Shelf Takedown will be considered as an Underwritten Offering for purposes of the Underwritten Offering Limitations unless (i) the Demanding Holder pays all Registration Expenses in connection with such withdrawn Underwritten Shelf Takedown, (ii) subsequent to the delivery of the Underwritten Demand to the Company, material adverse information regarding the Company is disclosed that was not known by the Demanding Holder at the time the Underwritten Demand was made, (iii) subsequent to the delivery of the Underwritten Demand to the Company, the Company suspends the use of the Resale Shelf Registration Statement pursuant to Section 2(a)(iv) hereto, or (iv) the Company has not complied in all material respects with its obligations hereunder required to have been taken prior to such withdrawal.

 

(c) Piggyback Rights.

 

(i) Piggyback Rights. Subject to Section 7, at any time and from time to time after the Closing Date, if the Company proposes to (A) file a registration statement under the Securities Act with respect to an offering of Equity Securities of the Company or securities or other obligations exercisable or exchangeable for or convertible into Equity Securities of the Company (other than a form not available for registering the resale of the Registrable Securities to the public), for its own account or for the account of a stockholder of the Company that is not a party to this Agreement, or (B) conduct an offering of Equity Securities of the Company or securities or other obligations exercisable or exchangeable for or convertible into Equity Securities of the Company, for its own account or for the account of a stockholder that is not a party to this Agreement (such offering referred to in clause (A) or (B), a “Piggyback Offering”), the Company shall promptly give written notice (the “Piggyback Notice”) of such Piggyback Offering to the Registration Rights Parties. The Piggyback Notice shall include the amount and type of securities to be included in such offering, the expected date of commencement of marketing efforts and any proposed managing underwriter and shall offer the Registration Rights Parties the opportunity to include in such Piggyback Offering such amount of Registrable Securities as each Registration Rights Party may request. Subject to Section 2(c)(ii) and Section 2(c)(iv), the Company will include in each Piggyback Offering all Registrable Securities for which the Company has received written requests for inclusion within ten days after the date the Piggyback Notice is given (provided that, in the case of a block trade or a Bought Deal, such written requests for inclusion must be received within one Business Day after the date the Piggyback Notice is given); provided, however, that, in the case of a Piggyback Offering in the form of a “takedown” under a Shelf Registration Statement, such Registrable Securities are covered by an existing and effective Shelf Registration Statement that may be utilized for the offering and sale of the Registrable Securities requested to be offered. All Registration Rights Parties proposing to distribute their securities through a Piggyback Offering, as a condition for inclusion of their Registrable Securities therein, shall agree to enter into an underwriting agreement with the Underwriters for such Piggyback Offering; provided, however, that the underwriting agreement is in customary form.

 

C-13

 

 

(ii) Company Right to Abandon or Delay. If at any time after giving the Piggyback Notice and prior to the time sales of securities are confirmed pursuant to the Piggyback Offering, the Company determines for any reason not to register or delay the Piggyback Offering, the Company may, at its election, give notice of its determination to all Registration Rights Parties, and in the case of such a determination, will be relieved of its obligation set forth in Section 2(c) in connection with the abandoned or delayed Piggyback Offering, without prejudice. Notwithstanding any such withdrawal, the Company shall pay all expenses incurred by the holders of Registrable Securities in connection with such Piggyback Offering as provided in Section 2(d)(xi).

 

(iii) Withdrawal Rights. Any Registration Rights Party requesting to be included in a Piggyback Offering may withdraw its request for inclusion by giving written notice to the Company, (A) at least three Business Days prior to the anticipated effective date of the registration statement filed in connection with such Piggyback Offering if the registration statement requires acceleration of effectiveness or (B) in all other cases, one Business Day prior to the anticipated date of the filing by the Company under Rule 424 of a supplemental prospectus (which shall be the preliminary supplemental prospectus, if one is used in the “takedown”) with respect to such offering; provided, however, that the withdrawal will be irrevocable and, after making the withdrawal, a Registration Rights Party will no longer have any right to include its Registrable Securities in that Piggyback Offering.

 

(iv) Unlimited Piggyback Registration Rights. For the avoidance of doubt, any Registration or Underwritten Offering pursuant to Section 2(c) of this Agreement shall not be counted as an Underwritten Offering under Section 2(b) of this Agreement.

 

(v) Reduction of Offering. If the managing Underwriter for a Piggyback Offering advises the Company that in its opinion the inclusion of all securities requested to be included in such Piggyback Offering (whether by the Company, the Registration Rights Parties or any other Person) may have a Negative Impact, then all such shares to be included therein shall be limited to the shares that the managing Underwriter believes can be sold without a Negative Impact and shall be allocated as follows:

 

C-14

 

 

(A) If the Piggyback Offering is initiated by the Company for its own account: (1) first, to the Company, (2) second, to the extent that any additional shares can, in the opinion of such managing Underwriter, be sold without a Negative Impact, to the parties to the Existing Registration Rights Agreement who properly requested to include their securities in such Piggyback Offering pursuant to such agreement in accordance with the terms of such agreement, (3) third, to the extent that any additional shares can, in the opinion of such managing Underwriter, be sold without a Negative Impact, to the Registration Rights Parties who properly requested to include their Registrable Securities in such Piggyback Offering (on a pro rata basis based on the number of Registrable Securities properly requested by such Persons to be included in the Piggyback Offering), and (4) fourth, to the extent that any additional shares can, in the opinion of such managing Underwriter, be sold without a Negative Impact, to other securityholders who properly requested to include their securities in such Piggyback Offering pursuant to an agreement, other than this Agreement and other than the Existing Registration Rights Agreement, with the Company that provides for registration rights in accordance with the terms of such agreement; and

 

(B) If the Piggyback Offering is initiated by the Company for the account of a Person pursuant to an agreement, other than this Agreement, with the Company that provides for registration rights: (1) first, to such Person, (2) second, to the extent that any additional shares can, in the opinion of such managing Underwriter, be sold without a Negative Impact, to the parties to the Existing Registration Rights Agreement who properly requested to include their securities in such Piggyback Offering pursuant to such agreement in accordance with the terms of such agreement, (3) third, to the extent that any additional shares can, in the opinion of such managing Underwriter, be sold without a Negative Impact, to the Registration Rights Parties who properly requested to include their Registrable Securities in such Piggyback Offering (on a pro rata basis based on the number of Registrable Securities properly requested by such Persons to be included in the Piggyback Offering), (4) fourth, to the extent that any additional shares can, in the opinion of such managing Underwriter, be sold without a Negative Impact, to the Company, and (5) fifth, to the extent that any additional shares can, in the opinion of such managing Underwriter, be sold without a Negative Impact, to other securityholders who properly requested to include their securities in such Piggyback Offering pursuant to an agreement, other than this Agreement and other than the Existing Registration Rights Agreement, with the Company that provides for registration rights in accordance with the terms of such agreement.

 

C-15

 

 

(d) Registration and Offering Procedures.

 

(i) Notification. After the effectiveness of the Resale Shelf Registration Statement, the Company shall promptly notify the Registration Rights Parties with Registrable Securities included in such Registration Statement: (A) when the Resale Shelf Registration Statement becomes effective; (B) when any post-effective amendment to the Resale Shelf Registration Statement becomes effective; (C) the issuance or threatened issuance by the Commission of any stop order (and the Company shall take all actions required to prevent the entry of such stop order or to remove it if entered); and (D) any request by the Commission for any amendment or supplement to the Resale Shelf Registration Statement or any prospectus relating thereto or for additional information or of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of the securities covered by the Resale Shelf Registration Statement, such prospectus will not contain an 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 not misleading, and promptly make available to the holders of Registrable Securities included in the Resale Shelf Registration Statement any such supplement or amendment. Prior to filing with the Commission a Registration Statement or prospectus or any amendment or supplement thereto, including all exhibits thereto and documents incorporated by reference therein, the Company shall furnish to the Underwriters, if any, the holders of Registrable Securities included in such Registration Statement and to the legal counsel for any such holders, copies of all such documents proposed to be filed and such other documents as the Underwriters or such holders or their counsel may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such holders sufficiently in advance, but in no event later than at least three calendar days in advance, of filing to provide such Underwriters, such holders and legal counsel with a reasonable opportunity to review such documents and comment thereon.

 

(ii) In no event shall any Registration Rights Party be identified as a statutory underwriter in a Registration Statement unless in response to a comment or request from the staff of the Commission; provided, however, that if the Commission requests that any Registration Rights Party be identified as a statutory underwriter in a Registration Statement, the Registration Rights Party will have an opportunity to withdraw from the Registration Statement.

 

(iii) If the Commission prevents the Company from including any or all of the Registrable Securities in the Resale Shelf Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Registrable Securities by the applicable shareholders or otherwise, (A) such Registration Statement shall register for resale such number of Registrable Securities that is equal to the maximum number as is permitted by the Commission, (B) the number of Registrable Securities to be registered for each Registration Rights Party shall be reduced pro rata among all securities registered thereunder, and (C) promptly inform each of the Registration Rights Parties and as expeditiously as possible after being permitted to register additional Registrable Securities under Rule 415 under the Securities Act, the Company shall amend such Resale Shelf Registration Statement or file a new Resale Shelf Registration Statement to register such additional Registrable Securities and cause such amendment or new Resale Shelf Registration Statement to become effective as expeditiously as possible; provided, however, that prior to filing such amendment or new Resale Shelf Registration Statement, the Company shall use its reasonable best efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the Commission staff (the “SEC Guidance”), including without limitation, the Manual of Publicly Available Telephone Interpretations D.29; provided further that the Effectiveness Period shall be extended by the amount of time during which any of the Registrable Securities of the Registration Parties are not registered as a result of the foregoing.

 

C-16

 

 

(iv) Securities Laws Compliance and FINRA. The Company shall use its reasonable best efforts to (A) register or qualify the Registrable Securities covered by the Resale Shelf Registration Statement under such securities or “blue sky” Laws of such jurisdictions in the United States as the holders of Registrable Securities included in the Resale Shelf Registration Statement (in light of their intended plan of distribution) may reasonably request and (B) take such action necessary to cause such Registrable Securities covered by the Resale Shelf Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph or subject itself to taxation in any such jurisdiction where it is not then otherwise so subject. The Company shall cooperate with the holders of the Registrable Securities and the Underwriters, if any, or agent(s) participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA.

 

(v) Cooperation. The Company shall (A) enter into such agreements (including an underwriting agreement in customary form) and take such other actions as the Registration Rights Parties included in a Registration Statement or the Underwriters, if any, shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities, including customary indemnification, and (B) provide reasonable cooperation, including taking such actions as may be reasonably requested by the holders of the Registrable Securities in connection with such Registration and causing at least one executive officer and a senior financial officer to attend and participate in “road shows” and other information meetings organized by the Underwriters, if any, or with attorneys, accountants or potential investors, in each case as reasonably requested; provided, however, that the Company shall have no obligation to participate in more than three “road shows” in any 12-month period and such participation shall not unreasonably interfere with the business operations of the Company. The Company shall cooperate with the holders of the Registrable Securities and the Underwriters, if any, or agent(s), if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing securities to be sold under the Registration Statement and enable such securities to be in such denominations and registered in such names as the Underwriters, or agent, if any, or the holders of such Registrable Securities may request.

 

C-17

 

 

(vi) Opinions and Comfort Letters. The Company shall use its reasonable best efforts to obtain and, if obtained, furnish an opinion and negative assurances letter of outside counsel for the Company, dated as of a date reasonably requested by a Registration Rights Party, to the extent such opinions or letters are customary, or, in the event of an Underwritten Public Offering, as of the date of the closing under the underwriting agreement, and addressed to the holders of Registrable Securities participating in such offering (to the extent required or customary in such offering), the placement agent, sales agent or Underwriter, if any, reasonably satisfactory in form and substance to such party, covering such legal matters as are customarily included in such opinions and negative assurances letters. With respect to any Underwritten Offering pursuant to this Agreement, the Company shall use its reasonable best efforts to obtain and, if obtained, furnish a “comfort” letter, dated the date of the underwriting agreement and another dated the date of the closing under the underwriting agreement and addressed to the Underwriters and signed by the independent public accountants who have certified the Company’s financial statements included or incorporated by reference in the applicable Registration Statement, reasonably satisfactory in form and substance to such Underwriters.

 

(vii) Transfer Agent. The Company shall provide and maintain a transfer agent and registrar for the Registrable Securities.

 

(viii) Records. Upon execution of confidentiality agreements, the Company shall make available for inspection by the holders of Registrable Securities included in such Registration Statement, any Underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other professional retained by any holder of Registrable Securities included in such Registration Statement or any Underwriter, all financial and other records, pertinent corporate documents and properties of the Company, as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, Directors (as defined below) and employees to supply all information reasonably requested by any of them in connection with such Registration Statement.

 

(ix) Earnings Statement. The Company shall comply with all applicable rules and regulations of the Commission and the Securities Act, and make available to its shareholders, as soon as practicable, an earnings statement covering a period of 12 months, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission).

 

(x) Listing. The Company shall use its reasonable best efforts to cause all Registrable Securities included in any Registration Statement to be listed on such exchanges or otherwise designated for trading in the same manner as similar securities issued by the Company are then listed or designated.

 

C-18

 

 

(xi) Registration Expenses. The Company shall bear all costs and expenses incurred in connection with the Resale Shelf Registration Statement pursuant to Section 2(a), any Resale Shelf Takedown pursuant to Section 2(a), any Underwritten Shelf Takedown pursuant to Section 2(b), any Piggyback Offering pursuant to Section 2(c), and all expenses incurred in performing or complying with its other obligations under this Agreement, whether or not the Resale Shelf Registration Statement becomes effective, including, without limitation: (A) all registration and filing fees; (B) fees and expenses of compliance with securities or “blue sky” Laws (including fees and disbursements of counsel in connection with blue sky qualifications of the Registrable Securities); (C) printing, messenger and delivery expenses; (D) the Company’s internal expenses (including, without limitation, all salaries and expenses of its officers and employees); (E) the fees and expenses incurred in connection with the listing of the Registrable Securities as required by the terms hereof; (F) FINRA fees; (G) fees and disbursements of counsel for the Company and fees and expenses for independent certified public accountants retained by the Company; (H) the fees and expenses of any special experts retained by the Company in connection with such registration; (I) the reasonable fees and expenses of one legal counsel selected by the holders of a majority-in-interest of the Registrable Securities included in such registration or Transfer and (J) the costs and expenses of the Company relating to analyst and investor presentations or any “road show” undertaken in connection with such registration and/or marketing of the Registrable Securities (collectively, the “Registration Expenses”). The Company shall have no obligation to pay any underwriting discounts or selling commissions attributable to the Registrable Securities being sold by the holders thereof, which underwriting discounts or selling commissions shall be borne by such holders, but the Company shall pay any underwriting discounts or selling commissions attributable to the securities it sells for its own account.

 

(xii) Information. The holders of Registrable Securities shall promptly provide such customary information as may reasonably be requested by the Company, or the managing Underwriter, if any, in connection with the preparation of any Registration Statement, including amendments and supplements thereto, in order to effect the registration of any Registrable Securities under the Securities Act and in connection with the Company’s obligation to comply with Federal and applicable state securities laws; provided that the Company may exclude a Registration Rights Party from the Resale Shelf Registration Statement if following the Company’s request for such information at least five Business Days prior to the anticipated filing date of the Resale Shelf Registration Statement, such Registration Rights Party unreasonably fails to furnish such information that is, in the opinion of the Company’s counsel, necessary to effect the registration under the Resale Shelf Registration Statement; provided further that the Company shall use commercially reasonable efforts to include such Registration Rights Party in the Resale Shelf Registration Statement when such Registration Statement is next amended or supplemented or a Subsequent Shelf Registration is filed if the Registration Rights Party has then timely provided such necessary information.

 

(xiii) Other Obligations. At any time and from time to time after the expiration of any lock-up period to which such shares are subject, if any, in connection with a sale or Transfer of Registrable Securities exempt from registration under the Securities Act or through any broker-dealer transactions described in the plan of distribution set forth within any prospectus and pursuant to the Registration Statement of which such prospectus forms a part, the Company shall, subject to the receipt of customary documentation required from the applicable holders in connection therewith and subject to applicable securities and other laws, (A) promptly instruct its transfer agent to remove any restrictive legends applicable to the Registrable Securities being sold or transferred and (B) cause its legal counsel to deliver the necessary legal opinions, if any, to the transfer agent in connection with the instruction under subclause (A). In addition, the Company shall cooperate reasonably with, and take such customary actions as may reasonably be requested by such holders in connection with the aforementioned sales or Transfers.

 

C-19

 

 

(xiv) Legend Removal Obligations. If any Registration Rights Party (A) proposes to sell or Transfer any Registrable Securities exempt from Section 5 of the Securities Act, pursuant to an effective Registration Statement, or pursuant to Rule 144, including in each case in connection with any trading program under Rule 10b5-1 of the Exchange Act, (B) holds Registrable Securities that are eligible for resale pursuant to Rule 144 without the requirement for the Company to be in compliance with the current public information requirement under Rule 144 and without volume or manner-of-sale restrictions applicable to the sale or transfer of such Shares or (C) holds Registrable Securities which do not require a legend under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission) as determined in good faith by counsel to the Company or set forth in a legal opinion delivered by nationally recognized counsel to the Registration Rights Party, then the Company shall, at the sole expense of the Company, promptly, and in any event no later than within two trading days, take any and all actions necessary or reasonably requested by such Registration Rights Party to facilitate and permit the removal of any restrictive legends from such Registrable Securities, including, without limitation, the delivery of any opinions of counsel or instruction letters to the transfer agent as are requested by the same. Each Registration Rights Party agrees to provide the Company, its counsel or the transfer agent with the evidence reasonably requested by it to cause the removal of such legends, including, as may be appropriate, any information the Company reasonably deems necessary to determine that such legend is no longer required under the Securities Act or applicable state Laws.

 

(xv) Rule 144. With a view to making available to the Registration Rights Parties the benefits of Rule 144 that may, at such times as Rule 144 is available to shareholders of the Company, permit the Registration Rights Parties to sell securities of the Company to the public without registration, the Company agrees to: (A) make and keep public information available, as those terms are understood and defined in Rule 144, for so long as necessary to permit sales that would otherwise be permitted by this Agreement pursuant to Rule 144, 144A or Regulation S under the Securities Act, as such rules may be amended from time to time or any similar rule or regulation hereafter adopted by the Commission; (B) file with the Commission in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act so long as the Company remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144; and (C) furnish to each Registration Rights Party so long as such Registration Rights Party owns Registrable Securities, within two Business Days following its receipt of a written request, (I) a written statement by the Company, if true, that it has complied with the reporting requirements of Rule 144, the Securities Act and the Exchange Act, (II) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company (it being understood that the availability of such report on the Commission’s EDGAR system shall satisfy this requirement) and (III) such other information as may be reasonably requested in writing to permit the Registration Rights Party to sell such securities pursuant to Rule 144 without registration.

 

C-20

 

 

(xvi) In Kind Distributions. If any holder of Registrable Securities seeks to effectuate an in-kind distribution of all or part of its Registrable Securities to its direct or indirect equityholders, the Company will reasonably cooperate with and assist such holder, such equityholders and the Company’s transfer agent to facilitate such in-kind distribution in the manner reasonably requested by such holder (including the delivery of instruction letters by the Company or its counsel to the Company’s transfer agent, the delivery of customary legal opinions by counsel to the Company and the delivery of Registrable Securities without restrictive legends, to the extent no longer applicable).

 

(xvii) No Inconsistent Agreements; Additional Rights. Neither the Company nor any of its Subsidiaries shall hereafter enter into, and neither the Company nor any of its Subsidiaries is currently a party to, any agreement with respect to its securities that is inconsistent with the rights granted to the holders of Registrable Securities by this Agreement. Without the prior written consent of each Registration Rights Party, neither the Company nor any of its Subsidiaries shall grant to any Person or agree to otherwise become obligated in respect of the rights of registration in the nature or substantially in the nature of those set forth in Section 2 of this Agreement that would have priority over or parity with the Registrable Securities with respect to the inclusion of such securities in any registration, and the Company hereby represents and warrants that, as of the date hereof, no registration or similar rights have been granted to any other Person other than pursuant to this Agreement, the Existing Registration Rights Agreement and the Subscription Agreements (as defined in the Business Combination Agreements); provided that, without the prior written consent of each Registration Rights Party, neither the Existing Registration Rights Agreement nor the Subscription Agreements may be amended in a way that would result in such agreements being inconsistent with or violating the rights granted to the Registration Rights Parties by this Agreement or resulting in the holders thereunder having rights that are more favorable to such holders or prospective holders than the rights granted to the Registration Rights Parties hereunder; provided further that no additional parties shall be granted registration rights under the Existing Registration Rights Agreement (other than “Permitted Transferees” as defined therein) without the prior written consent of the Registration Rights Parties. For the avoidance of doubt, the Registration Rights Party acknowledge and agree that the Company may include securities of the parties to the Existing Registration Rights Agreement and the Subscription Agreement on the Resale Shelf Registration Statement.

 

(xviii) 10b5-1 Plan. In no event shall the Company or any officer unreasonably withhold, condition or delay approval of any trading plan under Rule 10b5-1 of the Exchange Act presented by a Registration Rights Party; and for the avoidance of doubt, within five calendar days of receipt of any such Rule 10b5-1 plan, the Company shall review and approve such plan or, after consulting with legal counsel, notify the Registration Rights Party of the reasons counsel believes it cannot approve such plan.

 

C-21

 

 

(e) Indemnification.

 

(i) The Company agrees to indemnify and hold harmless, to the extent permitted by law, each Registration Rights Party, its directors, and officers, employees, and agents, and each person who controls the Registration Rights Party (within the meaning of the Securities Act or the Exchange Act) and each affiliate of the Registration Rights Party (within the meaning of Rule 405 under the Securities Act) from and against any and all out-of-pocket losses, claims, damages, liabilities and expenses (including, without limitation, any reasonable and documented attorneys’ fees and expenses incurred in connection with defending or investigating any such action or claim) caused by (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement filed pursuant to the terms of this Agreement, prospectus included in any such Registration Statement or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any violation or alleged violation by the Company of any federal, state, common or other law, rule or regulation applicable to the Company in connection with such registration, including the Securities Act, any state securities or “blue sky” laws or any rule or regulation thereunder in connection with such registration, except insofar as the same are caused by or contained in any information furnished in writing to the Company by or on behalf of the Registration Rights Party expressly for use therein.

 

(ii) Each Registration Rights Party agrees, severally and not jointly with the other parties to this Agreement, to indemnify and hold harmless the Company, its directors and officers and agents and each person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expenses (including, without limitation, reasonable and documented attorneys’ fees) resulting from any untrue statement of material fact contained in any Registration Statement filed pursuant to the terms of this Agreement, prospectus included in any such Registration Statement or preliminary prospectus or any amendment thereof or supplement thereto or any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any information or affidavit so furnished in writing by or on behalf of the Registration Rights Party expressly for use therein; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Registration Rights Parties. In no event shall the liability of the Registration Rights Party be greater in amount than the dollar amount of the net proceeds received by the Registration Rights Party upon the sale of the Registrable Securities giving rise to such indemnification obligation.

 

C-22

 

 

(iii) Any person entitled to indemnification herein shall (A) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (B) unless in such indemnified party’s reasonable judgment a conflict of interest may exist between such indemnified and indemnifying parties with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of legal counsel to any indemnified party a conflict of interest exists between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.

 

(iv) The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, employee, agent, affiliate or controlling person of such indemnified party and shall survive the transfer of the Registrable Securities.

 

(v) If the indemnification provided under this Section 2(e) from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by or on behalf of, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 2(e)(v) from any person who was not guilty of such fraudulent misrepresentation. Any contribution pursuant to this Section 2(e)(v) by any Registration Rights Party shall be limited in amount to the amount of net proceeds received by such Registration Rights Party from the sale of Registrable Securities pursuant to a Registration Statement filed pursuant to the terms of this Agreement. Notwithstanding anything to the contrary herein, in no event will any party be liable for consequential, special, exemplary or punitive damages in connection with this Agreement.

 

C-23

 

 

3. Board of Directors.

 

(a) Board Representation. The Board shall initially consist of seven directors designated by the Stockholder Parties and the Company pursuant to and in accordance with the terms hereof (each, a “Director”). Subject to the terms and conditions of this Agreement, from and after the date of this Agreement, the Company and each Stockholder Party shall take all Necessary Action to cause, effective beginning immediately following the Closing Date, the Board to be comprised of seven Directors (including three independent Directors as so designated on Exhibit B hereto) who, initially, shall be the Persons identified on Exhibit B hereto. From and after the Closing Date, until the earlier of [●]’s retirement or resignation from the Board, each Stockholder Party shall take all Necessary Action to cause [●] to be the chairperson of the Board.

 

(b) Company Directors.

 

(i) [During the term of this Agreement], in advance of each annual meeting of stockholders (or other election of Directors), the Board shall be entitled to designate, nominate and include on the Company’s slate of director nominees three independent Directors (the “Company Directors” and each a “Company Director”) to serve on the Board, who shall initially be the Persons designated as the Company Directors on Exhibit B hereto. Prior to the Aria Fall-Away Date, the Board shall consult with the Aria Holders concerning the Persons to be designated by the Board as the Company Directors for such annual meeting or other election of Directors.

 

(c) Aria Directors.

 

(i) Prior to the Aria Fall-Away Date, in advance of each annual meeting of stockholders (or other election of Directors), subject to Section 3(c)(ii) and Section 3(g), the holders of a majority of the Common Stock held by the Ares Investor, shall have the right to designate, and the Board will take all Necessary Action to nominate and include on the Company’s slate of director nominees for such annual meeting or other election of Directors, one Director (the “Aria Director”), who shall initially be the Person designated as the Aria Director on Exhibit B hereto. Any such Aria Director shall in no event be considered to be an Affiliate of the Ares Investor based solely on its status as a Director and the Ares Investor shall in no event be imputed or deemed to have material non-public information, including under the Company’s insider trading policy, as a result of its rights under Section 3 of this Agreement.

 

(ii) Notwithstanding the foregoing, on the first date (the “Aria Fall-Away Date”) after the Closing Date that (A) the Ares Investor, collectively, fails to hold at least 50% of the Registrable Securities held by it on the Closing Date, the right of the Ares Investor to designate the Aria Director shall cease, the term of the then current Aria Director shall thereupon automatically end. The parties hereto will take all Necessary Action such that the Person formerly serving as the Aria Director is no longer a Director from and after the Aria Fall-Away Date.

 

C-24

 

 

(d) RAC Sponsor Directors.

 

(i) [During the term of this Agreement], in advance of each annual meeting of stockholders (or other election of Directors), subject to Section 3(g), the holders of a majority of the Company Interests held by the RAC Sponsor Holders, shall have the right to designate, and the Board will take all Necessary Actions to nominate and include on the Company’s slate of director nominees for such annual meeting or other election of Directors, two Directors (the “RAC Sponsor Directors”), who shall initially be the Persons designated as such on Exhibit B hereto.

 

(e) Chief Executive Officer. During the term of this Agreement, prior to each annual meeting (or other election of Directors), the Board will take all Necessary Action to nominate and include on the Company’s slate of director nominees for such annual meeting or other election of Directors, the Person then serving as the Company’s chief executive officer, who shall initially be Nicholas Stork (such Person, the “CEO Director”).

 

(f) Expansion of the Board to Maintain Independent Majority. Notwithstanding the foregoing, if neither of the RAC Sponsor Directors are reasonably determined, based on the advice of the Company’s counsel, to be “independent directors” for purposes of the applicable stock exchange listing standards, the Board shall be permitted in its sole discretion to increase the size of the Board to nine total Directors, and to fill the two additional directorships with two additional independent Directors nominated by the Board.

 

(g) Additional Lapse of Designation Rights. Notwithstanding anything to the contrary set forth in this Agreement, the right of any Stockholder Designating Party to designate nominees for appointment to the Board as set forth in Sections 3(b)-(d) shall terminate if at any time (i) such Stockholder Designating Party or any of its Affiliates becomes a Competitor of the Company, (ii) such Stockholder Designating Party or any of its Affiliates commences any legal Proceeding against the Company, its Subsidiaries, any other member of the Board of Directors or any officer of the Company; or (iii) such Stockholder Designating Party or any of its Affiliates exercises the right to designate or appoint a member of or observer to the board of directors (or similar governing body) of any Competitor.

 

(h) Resignation; Removal; Vacancies. Any member of the Board designated pursuant to Sections 3(b)-(d) may resign at any time as provided in the Bylaws. The parties hereto agree to not vote any Company Interests held by them to remove any member of the Board designated pursuant to Sections 3(b)-(d) except (i) at the direction of the Stockholder Designating Party who designated such member of the Board, or (ii) upon the affirmative written vote or written consent of a majority of the remaining Directors upon death, disability, Permanent Incapacity or disqualification of such Director. The Stockholder Designating Party who designated the Director who resigned or who was so removed (or such Stockholder Designating Party’s successors or Permitted Transferees) shall, for so long as such Stockholder Designating Party (or such Stockholder Designating Party’s successors Permitted Transferees) is entitled to designate such nominee pursuant to such sections, have the exclusive right to designate a replacement director to fill the vacancy created by such resignation or removal, and the Board shall take all Necessary Actions to cause such individual to be appointed by the Board to fill the vacancy resulting from such removal or resignation.

 

C-25

 

 

(i) Voting. Each of the Company, RAC Sponsor, RAC Sponsor Holders and the Ares Investor agree not to take, directly or indirectly, any actions (including, in their capacities as stockholders of the Company, removing Directors in a manner inconsistent with this Agreement) that would knowingly frustrate, obstruct or otherwise affect the provisions of this Agreement and the intention of the parties hereto with respect to the composition of the Board as herein stated. Each of the RAC Sponsor Holders, the Archaea Holders and the Ares Investor (i) shall vote all Voting Shares held by such holder in such manner as may be necessary to elect and/or maintain in office as members of the Board those individuals designated in accordance with this Section 3 and (ii) further agrees until the Aria Fall-Away Date not to grant, or enter into a binding agreement with respect to, any proxy to any Person in respect of such holders’ equity securities of the Company that would prohibit such holder from casting such votes in accordance with this Section 3. From and after the lapse or termination of a Board designation rights set forth in Sections 3(b)-(d) in accordance with the terms of this Agreement, the Board seat that would have been designated pursuant to such designation right had such right not lapsed or terminated will be filled in accordance with the Charter and the By-laws.

 

4. Director Requirements.

 

(a) The Company’s and the Stockholder Parties’ obligations with respect to the designation and nomination of Directors pursuant to this Agreement shall in each case be subject to each Director’s satisfaction of all requirements set forth in this Section 4. Each of the Stockholder Designating Parties agrees that they shall designate only Directors that satisfy, and shall cause each of the Directors nominated by them to, at all times satisfy, the requirements set forth in this Section 4.

 

(b) Each Director (other than the CEO Director) shall, at all times, (i) satisfy all requirements regarding service as a Director under applicable Law and the listing rules of New York Stock Exchange (the “NYSE Rules”), regardless of whether the NYSE Rules then apply to the Company, solely to the extent as has been or will be applicable to all other non-executive Directors, and all other criteria and qualifications for service as a Director applicable to all non-executive Directors and (ii) satisfy any other requirements for Director qualification adopted by the Board and generally applicable to non-employee Directors.

 

(c) Each Stockholder Designating Party shall cause each Director designated by it: (i) to make himself or herself reasonably available for interviews; (ii) to consent to such reference and background checks or other investigations as the Board may reasonably request in order to determine such Director meets the requirements to serve as a Director, solely to the extent such checks or investigations have been or will be required from all other non-executive Directors, and (iii) to provide to the Company a completed copy of the directors and officers questionnaire submitted by the Company to its other Directors in the ordinary course of business.

 

(d) No Director (or any replacement thereof designated by a Stockholder Designating Party) shall be eligible to serve as a Director if he or she (i) has been involved in any of the events enumerated under Item 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f), other than Item 401(f)(1), of Regulation S-K of the Securities Act, (ii) has been or could be disqualified as a “Bad Actor” under Section 506 of Regulation D of the Securities Act or (iii) is subject to any outstanding order, judgment, injunction, ruling, writ or decree of any governmental authority prohibiting service as a director of any public company. If a Director no longer satisfies all the requirements set forth in (A) the immediately preceding sentence and (B) Section 4(b), such Director shall automatically cease to be a Director and his or her term of office shall immediately terminate in accordance with the Charter and the By-laws, and the vacancy resulting from the termination of such Director’s term of office may be filled as provided by this Agreement and the Charter and the By-laws. Each Stockholder Designating Party agrees that, in the event a Director designated by it no longer satisfies the requirements set forth in the immediately preceding sentence, it shall take all Necessary Action to cause such Director to resign from the Board or vote its Voting Shares in favor of such Director’s removal from the Board.

 

C-26

 

 

(e) As a condition to a Director’s designation or election to the Board, pursuant to Section 3, such Director must provide to the Company:

 

(i) all information reasonably requested by the Company that is required to be or is customarily disclosed for Directors, candidates for Directors and their respective Affiliates and representatives in a proxy statement or other filings in accordance with applicable Law, the NYSE Rules or the Charter, the By-laws or other corporate governance guidelines;

 

(ii) all information reasonably requested by the Company in connection with assessing eligibility, independence and other criteria applicable to Directors or satisfying compliance and legal or regulatory obligations, solely to the extent such information has been or will be required from all other non-executive Directors; and

 

(iii) an undertaking in writing by such Director:

 

(A) to be subject to, bound by and duly comply with a standard confidentiality agreement in a form acceptable to the Company, the code of conduct and other policies of the Company, in each case, solely to the extent applicable to all other non-executive Directors; and

 

(B) at the request of the Board, to recuse himself or herself from any deliberations or discussions of the Board or any committee thereof regarding matters that, in the reasonable determination of the Board, present actual or potential conflicts of interest with the Company or other matters that, in the reasonable determination of the Board, present actual or potential conflicts of interest with the Company.

 

5. Representations and Warranties of Each Stockholder Party. Each Stockholder Party on its own behalf hereby represents and warrants to the Company and each other Stockholder Party, severally and not jointly, with respect to such Stockholder Party and such Stockholder Party’s ownership of his, her or its Stockholder Shares set forth on Exhibit A, as of the Closing Date:

 

(a) Organization; Authority. If Stockholder Party is a legal entity, Stockholder Party (i) is duly incorporated or organized, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization and (ii) has all requisite power and authority to enter into this Agreement and to perform its obligations hereunder. This Agreement has been duly authorized, executed and delivered by Stockholder Party. This Agreement constitutes a valid and binding obligation of Stockholder Party enforceable in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a Proceeding in equity or at Law).

 

C-27

 

 

(b) No Consent. Except as provided in this Agreement and for filing requirements under applicable securities laws, no consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity or other Person on the part of Stockholder Party is required in connection with the execution, delivery and performance of this Agreement, except where the failure to obtain such consents, approvals, authorizations or to make such designations, declarations or filings would not materially interfere with a Stockholder Party’s ability to perform his, her or its obligations pursuant to this Agreement. If Stockholder Party is a trust, no consent of any beneficiary is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.

 

(c) No Conflicts; Litigation. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, nor compliance with the terms hereof, will (i) conflict with or violate any provision of the organizational documents of Stockholder Party, or (ii) violate, conflict with or result in a breach of, or constitute a default (with or without notice or lapse of time or both) under any provision of, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, Lease or other agreement, instrument, concession, franchise, license, notice or Law, applicable to a Stockholder Party or to a Stockholder Party’s property or assets, except, in the case of clause (ii), that would not reasonably be expected to impair, individually or in the aggregate, Stockholder Party’s ability to fulfill its obligations under this Agreement. As of the date of this Agreement, there is no Proceeding pending or, to the knowledge of a Stockholder Party, threatened, against such Stockholder Party or any of Stockholder Party’s Affiliates or any of their respective assets or properties that would materially interfere with such Stockholder Party’s ability to perform his, her or its obligations pursuant to this Agreement or that would reasonably be expected to prevent, enjoin, alter or delay any of the transactions contemplated hereby.

 

(d) Ownership of Shares. Each Stockholder Party Beneficially Owns his, her or its Stockholder Shares free and clear of all Liens. Except pursuant to this Agreement and the Business Combination Agreements, there are no Options, warrants or other rights, agreements, arrangements or commitments of any character to which Stockholder Party is a party relating to the pledge, acquisition, disposition, Transfer or voting of Stockholder Shares and there are no voting trusts or voting agreements with respect to the Stockholder Shares. Each Stockholder Party does not Beneficially Own (i) any shares of capital stock of the Company other than the Stockholder Shares set forth on Exhibit A and (ii) any options, warrants or other rights to acquire any additional shares of capital stock of the Company or any security exercisable for or convertible into shares of capital stock of the Company, other than as set forth on Exhibit A (collectively, “Options”).

 

6. Covenants of the Company. The Company shall take any and all action reasonably necessary to effect the provisions of this Agreement and the intention of the parties hereto with respect to the terms of this Agreement.

 

(b) The Company shall (i) purchase and maintain in effect at all times directors’ and officers’ liability insurance in an amount and pursuant to terms determined by the Board to be reasonable and customary, and (ii) cause the Charter and the By-laws to at all times provide for the indemnification, exculpation and advancement of expenses of all Directors to the fullest extent permitted under applicable Law.

 

C-28

 

 

(c) The Company shall pay all reasonable and documented out-of-pocket expenses incurred by the members of the Board in connection with the performance of his or her duties as a Director and in connection with his or her attendance at any meeting of the Board. The Company shall enter into customary indemnification agreements with each member of the Board and each officer of the Company from time to time.

 

7. Lock-up.

 

(a) Subject to Sections 7(b) and 7(c), each Stockholder Party agrees that it, he or she shall not Transfer any Lock-up Shares of such Stockholder Party (if any and to the extent applicable) until the end of the applicable Lock-up Period (the “Lock-up”).

 

(b) Notwithstanding the provisions set forth in Section 7(a), any Stockholder Party or its Permitted Transferees may Transfer the Lock-up Shares of such Stockholder Party (if any and to the extent applicable) during the Lock-up Period (i) to any of such Stockholder Party’s Permitted Transferees; or (ii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s stockholders having the right to exchange their shares of Common Stock (including any Company Interests exchangeable for shares of Common Stock in connection therewith) for cash, securities or other property subsequent to the Closing Date.

 

(c) Notwithstanding the provisions set forth in Section 7(a), (i) to the extent applicable, any Company Interests or shares of Common Stock issued to any Stockholder Party upon exercise of any of such Stockholder Party’s warrants to purchase Company Interests or shares of Common Stock shall be deemed to be Company Interests or shares of Common Stock, as the case may be, Beneficially Owned by such Stockholder Party as of the Closing and such exercise shall not be deemed a Transfer for purposes of this Section 7 and (ii) the retirement of shares of Class B Common Stock pursuant to Section [●] of the [Charter] shall not be deemed a Transfer for purposes of this Section 7.

 

(d) Notwithstanding anything contained herein to the contrary, if, following the Closing, the last sale price of the Class A Common Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and similar transactions) (the “trading share price”) on the principal exchange on which such securities are then listed or quoted, which as of the date hereof is the New York Stock Exchange, for any 10 trading days within any 15 trading-day period commencing 15 days after the Closing, exceeds (i) $13.50 per share, then the Aria Holders, together with their Permitted Transferees, may Transfer their applicable Lock-up Shares during the Lock-up Period without restriction under this Section 7 in an amount up to one-third of the Lock-up Shares Beneficially Owned by the Aria Holders and their respective Permitted Transferees, in each case, in the aggregate as of immediately following the Closing (the aggregate Lock-up Shares, as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like, the “Closing Shares”), (ii) $16.00 per share, then the Aria Holders, together with their Permitted Transferees, may Transfer up to an additional one-third of the Closing Shares in excess of the Closing Shares described in the foregoing clause (i) (i.e., up to two-thirds of the Closing Shares in the aggregate) without restriction under this Section 7, and (iii) $19.00 per share, then the Aria Holders, together with their Permitted Transferees, may Transfer any of the Closing Shares without restriction under this Section 7. For the avoidance of doubt, this Section 7 shall in no way limit any restrictions on or requirements relating to the Transfer of Closing Shares under applicable securities Laws or as otherwise set forth in this Agreement or the governing documents of the Company and OpCo as of the date hereof.

 

C-29

 

 

8. [Reserved].

 

9. Additional Shares. Each Ares Investor agrees that all securities of the Company that may vote in the election of the Directors that such Ares Investor purchases, acquires the right to vote or otherwise acquires Beneficial Ownership of (including by the exercise or conversion of any security exercisable or convertible for Company Interests) after the execution of this Agreement shall be subject to the terms of this Agreement and shall constitute Voting Shares for all purposes of this Agreement.

 

10. No Agreement as Director or Officer. Each Stockholder Party is signing this Agreement solely in his, her or its capacity as a stockholder of the Company. No Stockholder Party makes any agreement or understanding in this Agreement in such Stockholder Party’s capacity as a Director or officer of the Company or any of its Subsidiaries (if Stockholder Party holds such office). Nothing in this Agreement will limit or affect any actions or omissions taken by a Stockholder Party in his, her or its capacity as a Director or officer of the Company, and no actions or omissions taken in such Stockholder Party’s capacity as a Director or officer shall be deemed a breach of this Agreement. Nothing in this Agreement will be construed to prohibit, limit or restrict a Stockholder Party from exercising his or her fiduciary duties as an officer or Director to the Company or its stockholders.

 

11. Confidentiality. Each Stockholder Party agrees, and agrees to cause its Affiliates, to keep confidential and not disclose, divulge, or use for any purpose (other than to monitor its investment in the Company) any Confidential Information; provided, however, that a Stockholder Party may disclose Confidential Information to (a) its attorneys, accountants, consultants, and other professionals to the extent necessary to obtain their services in connection with monitoring its investment in the Company, (b) to any Affiliate, partner, member, equityholder or wholly-owned Subsidiary of such Stockholder Party in the ordinary course of business; provided, further, that, such Stockholder Party informs such Person that such information is confidential and directs such Person to maintain the confidentiality of such information or (c) as may otherwise be required by law, regulation, rule, court order or subpoena or by obligations pursuant to any listing agreement with any securities exchange or securities quotation system; provided that, such Stockholder Party promptly notifies the Company of such disclosure and takes reasonable steps to minimize the extent of any such required disclosure.

 

C-30

 

 

12. Specific Enforcement. Each party hereto acknowledges that the rights of each party hereto to consummate the transactions contemplated hereby are unique and recognize and affirm that in the event any of the provisions hereof are not performed in accordance with their specific terms or otherwise are breached, money damages would be inadequate (and therefore the non-breaching party hereto would have no adequate remedy at Law) and the non-breaching party hereto would be irreparably damaged. Accordingly, each party hereto agrees that each other party hereto shall be entitled to specific performance, an injunction or other equitable relief (without posting of bond or other security or needing to prove irreparable harm) to prevent breaches of the provisions hereof and to enforce specifically this Agreement to the extent expressly contemplated herein and the terms and provisions hereof in any Proceeding, in addition to any other remedy to which such Person may be entitled. Each party hereto agrees that it will not oppose the granting of specific performance and other equitable relief on the basis that the other parties hereto have an adequate remedy at Law or that an award of specific performance is not an appropriate remedy for any reason at Law or equity. The parties hereto acknowledge and agree that any party hereto seeking an injunction to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in accordance with this Section 12 shall not be required to provide any bond or other security in connection with any such injunction.

 

13. Termination.

 

(a) Following the Closing, with respect to each Stockholder Party, except as set forth in Section 13(b), (i) Section 3 (Board of Directors) and Section 4 (Director Requirements) shall terminate with respect to the Aria Holders automatically (without any action by any party hereto) on the first date on which the Aria Holders no longer have the right to designate a Director under this Agreement; and (ii) the remainder of this Agreement shall terminate automatically (without any action by any party hereto or any other Person) as to each Stockholder Party when such Stockholder Party ceases to Beneficially Own any Stockholder Shares.

 

(b) Notwithstanding the foregoing, the obligations set forth in Section 11 (Confidentiality), Section 12 (Specific Enforcement), Section 13 (Termination), Section 14 (Amendments and Waivers), Section 16 (Assignment), Section 18 (Severability) and Section 19 (Governing Law; Jurisdiction; Waiver of Jury Trial) shall survive termination of this Agreement.

 

14. Amendments and Waivers. Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by each Stockholder Party that (a) remains a party to this Agreement at such time and (b) (i) in the case of any amendment to the rights of any Stockholder Party hereunder, has such right at the time of such amendment and (ii) in the case of an amendment to any obligation of a Stockholder Party hereunder, remains subject to such obligation at the time of such amendment; provided that for the avoidance of doubt, no amendment or waiver that may adversely affect a Registration Rights Party may be entered into without the prior written consent of such Registration Rights Party. 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. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by Law.

 

C-31

 

 

15. Stock Splits, Stock Dividends, etc. In the event of any stock split, stock dividend, recapitalization, reorganization or similar transaction, any securities issued with respect to Voting Shares held by the Stockholder Parties shall become Voting Shares for purposes of this Agreement (and any securities issued with respect to Lock-up Shares held by Stockholder Parties shall become Lock-up Shares for purposes of this Agreement). During the term of this Agreement, all dividends paid to the Stockholder Parties in Company Interests or other equity or securities convertible into equity shall become Voting Shares (and all dividends on Lock-up Shares paid to the Stockholder Parties in Company Interests or other equity or securities convertible into equity shall become Lock-up Shares) for purposes of this Agreement.

 

16. Assignment.

 

(a) Neither this Agreement nor any of the rights, duties, interests or obligations of the Company hereunder shall be assigned or delegated by the Company in whole or in part.

 

(b) No Stockholder Party may assign or delegate such Stockholder Party’s rights, duties or obligations under this Agreement, in whole or in part, except in connection with a Transfer of Stockholder Shares by such Stockholder Party to a Permitted Transferee in accordance with the terms of this Agreement and this Section 16.

 

(c) This Agreement and the provisions hereof shall, subject to Section 16(b), inure to the benefit of, shall be enforceable by and shall be binding upon the respective assigns and successors in interest of each Stockholder Party, as applicable, including with respect to any of such Stockholder Party’s Stockholder Shares that are Transferred to a Permitted Transferee in accordance with the terms of this Agreement.

 

(d) No assignment in accordance with this Section 16 by any party hereto (including pursuant to a Transfer of any Stockholder Party’s Stockholder Shares) of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company or any other party hereto unless and until each of the other parties hereto shall have received (i) written notice of such assignment as provided in Section 21 and (ii) the executed written agreement, in a form reasonably satisfactory to the Company, of the assignee to be bound by the terms and provisions of this Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement) as fully as if it were an initial signatory hereto. Each Stockholder Party shall not permit the Transfer of any such Stockholder Party’s Stockholder Shares to a Permitted Transferee unless and until the Person to whom such securities are to be Transferred has executed a written agreement as provided in clause (ii) of the preceding sentence.

 

(e) Any Transfer or assignment made other than as provided in this Section 16 shall be null and void.

 

(f) Notwithstanding anything herein to the contrary, for purposes of determining the number of shares of capital stock of the Company held by each Stockholder Party, the aggregate number of shares so held by such Stockholder Party shall include any shares of capital stock of the Company Transferred or assigned to a Permitted Transferee in accordance with the provisions of this Section 16; provided, that any such Permitted Transferee has executed a written agreement agreeing to be bound by the terms and provisions of this Agreement as contemplated by Section 16(d).

 

C-32

 

 

17. Other Rights. Except as provided by this Agreement, each Stockholder Party shall retain the full rights of a holder of shares of capital stock of the Company with respect to the Stockholder Shares, including the right to vote the Stockholder Shares subject to this Agreement.

 

18. Severability. Whenever possible, each provision hereof (or part thereof) shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision hereof (or part thereof) or the application of any such provision (or part thereof) to any Person or circumstance shall be held to be prohibited by or invalid, illegal or unenforceable under applicable Law in any respect by a court of competent jurisdiction, such provision (or part thereof) shall be ineffective only to the extent of such prohibition or invalidity, illegality or unenforceability, without invalidating the remainder of such provision or the remaining provisions hereof. Furthermore, in lieu of such illegal, invalid or unenforceable provision (or part thereof), there shall be added automatically as a part hereof a legal, valid and enforceable provision as similar in terms to such illegal, invalid, or unenforceable provision (or part thereof) as may be possible.

 

19. Governing Law; Waiver of Jury Trial; Jurisdiction. The Law of the State of Delaware shall govern (a) all claims or matters related to or arising from this Agreement (including any tort or non-contractual claims) and (b) any questions concerning the construction, interpretation, validity and enforceability hereof, and the performance of the obligations imposed by this Agreement, in each case without giving effect to any choice-of-law or conflict-of-law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Delaware. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG ANY OF THE PARTIES HERETO (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS AGREEMENT, THE TRANSACTION AND/OR THE RELATIONSHIPS ESTABLISHED AMONG THE PARTIES HERETO. THE PARTIES HERETO FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. Each of the parties hereto submits to the exclusive jurisdiction of first, the Chancery Court of the State of Delaware or, in the event, but only in the event, that the Court of Chancery of the State of Delaware does not have subject matter jurisdiction, the Superior Court of the State of Delaware (Complex Commercial Division) or, if subject matter jurisdiction over the action or Proceeding is vested exclusively in the federal courts of the United States of America, the United States District Court for the District of Delaware, in any Proceeding arising out of or relating to this Agreement, agrees that all claims in respect of the Proceeding shall be heard and determined in any such court and agrees not to bring any Proceeding arising out of or relating to this Agreement in any other courts. Nothing in this Section 19, however, shall affect the right of any party hereto to serve legal process in any other manner permitted by Law or at equity. Each party hereto agrees that a final judgment in any Proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by Law or at equity.

 

C-33

 

 

20. Counterparts. This Agreement and the other agreements, certificates, instruments and documents delivered pursuant to this Agreement may be executed and delivered in one or more counterparts and by e-mail, each of which shall be deemed an original and all of which shall be considered one and the same agreement. No party hereto shall raise the use of e-mail to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of e-mail as a defense to the formation or enforceability of a Contract and each party hereto forever waives any such defense. 

 

21. Notices. All notices, demands, requests, instructions, claims, consents, waivers and other communications to be given or delivered under this Agreement shall be in writing and shall be deemed to have been given (a) when personally delivered (or, if delivery is refused, upon presentment), (b) when received by e-mail prior to 5:00 p.m. Eastern Time on a Business Day, and, if otherwise, on the next Business Day, (c) one Business Day following sending by reputable overnight express courier (charges prepaid) or (d) three days following mailing by certified or registered mail, postage prepaid and return receipt requested. Unless another address is specified in writing pursuant to the provisions of this Section 21, notices, demands and communications to the Stockholder Parties shall be sent to the addresses indicated on Exhibit A (or to such other address or addresses as the Stockholder Parties may from time to time designate in writing).

 

22. Entire Agreement. This Agreement contains the entire agreement and understanding among the parties hereto with respect to the subject matter hereof and thereof and supersede all prior and contemporaneous agreements, understandings and discussions, whether written or oral, relating to such subject matter in any way. The parties hereto have voluntarily agreed to define their rights and Liabilities with respect to the Transaction exclusively pursuant to the express terms and provisions hereof, and the parties hereto disclaim that they are owed any duties or are entitled to any remedies not set forth herein. Furthermore, this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations and no Person has any special relationship with another Person that would justify any expectation beyond that of an ordinary Person in an arm’s-length transaction.

 

23. Effectiveness. Notwithstanding anything contained in this Agreement to the contrary, this Agreement shall be effective upon the Closing. If the Business Combination Agreements are terminated in accordance with their respective terms, this Agreement shall terminate on concurrently therewith and shall be of no further force and effect.

 

 

[Remainder of page intentionally left blank; signature pages follow]

 

C-34

 

 

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

 

  [Aria Holders]
     
  By:
  Name:  
  Title:  

 

 

  [Archaea Holders]
     
  By:
  Name:  
  Title:  

 

 

  Rice Acquisition Sponsor LLC
     
  By:
  Name:  
  Title:  

 

 

  Rice Acquisition Corporation
     
  By:
  Name:  
  Title:  

 

 

  Rice Acquisition Holdings LLC
     
  By:
  Name:  
  Title:  

 

 

Exhibit C to Business Combination Agreement

 

C-35

 

 

Schedule I

 

Initial Aria Holders

 

 

 

 

 

 

 

C-36

 

 

Exhibit A

 

Stockholder Shares

 

Holder Address Class A
Units

Class B
Common Stock

Warrants Options Other Equity
Securities/Rights
to Acquire
Equity Securities

 

 

           

 

 

           

 

 

           

 

C-37

 

 

Exhibit B

 

Initial Board DIRECTORS

 

1. [COMPANY DIRECTOR]

 

2. [COMPANY DIRECTOR]

 

3. [COMPANY DIRECTOR]

 

4. [ARIA DIRECTOR]

 

5. [RAC SPONSOR DIRECTOR]

 

6. [RAC SPONSOR DIRECTOR]

 

7. [RAC SPONSOR DIRECTOR]

 

 

 C-38

 

 

Exhibit 10.1

 

Confidential

 

FORM OF SUBSCRIPTION AGREEMENT

 

Rice Acquisition Corp.

102 East Main Street, Second Story

Carnegie, Pennsylvania 15106

 

Ladies and Gentlemen:

 

This Subscription Agreement (this “Subscription Agreement”) is being entered into as of the date set forth on the signature page hereto, by and between Rice Acquisition Corp., a Delaware corporation (“RAC”), and the undersigned subscriber (the “Investor”), in connection with (i) the Business Combination Agreement, dated as of the date hereof (as may be amended, supplemented or otherwise modified from time to time, the “Aria Merger Agreement”), by and among RAC, Rice Acquisition Holdings LLC, a Delaware limited liability company and direct subsidiary of RAC (“RAC OpCo”), LFG Intermediate Co, LLC, a Delaware limited liability company and direct subsidiary of RAC OpCo (“RAC Intermediate”), LFG Buyer Co, LLC, a Delaware limited liability company and a direct subsidiary of RAC Intermediate (“RAC Buyer”), Inigo Merger Sub, LLC, a Delaware limited liability company and a direct subsidiary of RAC Buyer (“Aria Merger Sub”), Aria Energy LLC, a Delaware limited liability company (“Aria”), and the Equityholder Representative (as defined therein), pursuant to which, among other things, Aria Merger Sub will merge with and into Aria, with Aria surviving the merger and becoming a direct subsidiary of RAC Buyer, and (ii) the Business Combination Agreement, dated as of the date hereof (as may be amended, supplemented or otherwise modified from time to time, the “Archaea Merger Agreement” and, together with the Aria Merger Agreement, the “Transaction Agreements”), by and among RAC, RAC OpCo, RAC Intermediate, RAC Buyer, Fezzik Merger Sub, LLC, a Delaware limited liability company and direct subsidiary of RAC Buyer (“Archaea Merger Sub”), Archaea Energy LLC, a Delaware limited liability company (“Archaea”), and Archaea Energy II LLC, a Delaware limited liability company (“Archaea II”), pursuant to which, among other things, Archaea Merger Sub will merge with and into Archaea II, with Archaea II surviving the merger and becoming a direct subsidiary of RAC Buyer, in each case, on the terms and subject to the conditions therein (the transactions contemplated by the Transaction Agreements, the “Transactions”).

 

In connection with the Transactions, RAC is seeking commitments from interested investors to purchase, contingent upon and substantially concurrently with the closing of the Transactions, shares of Class A Common Stock, par value $0.0001 per share (the “Shares”), of RAC, in a private placement for a purchase price of $10.00 per share (the “Per Share Purchase Price”). On or about the date of this Subscription Agreement, RAC is entering into subscription agreements substantially in the same form as this Subscription Agreement (the “Other Subscription Agreements” and, together with this Subscription Agreement, the “Subscription Agreements”) with certain other investors (the “Other Investors” and, together with the Investor, the “Investors”), pursuant to which the Investors have agreed to purchase severally and not jointly on the closing date of the Transactions, inclusive of the Shares subscribed for by the Investor, an aggregate amount of up to 30 million Shares, at the Per Share Purchase Price. The aggregate purchase price to be paid by the Investor for the subscribed Shares is set forth on the signature page hereto and is referred to herein as the “Subscription Amount.” The transactions contemplated by this Subscription Agreement and the Other Subscription Agreement are referred to collectively as the “Investment Transactions.”

 

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 RAC acknowledge and agree as follows:

 

1. Subscription. The Investor hereby irrevocably subscribes for and agrees to purchase from RAC the number of Shares set forth on the signature page of this Subscription Agreement on the terms and subject to the conditions provided for herein. The Investor acknowledges and agrees that RAC reserves the right to accept or reject the Investor’s subscription for the Shares for any reason or for no reason, in whole or in part, at any time prior to its acceptance, and the same shall be deemed to be accepted by RAC only when this Subscription Agreement is signed by a duly authorized person by or on behalf of RAC.

 

 

 

 

2. Closing. The closing of the sale of the Shares contemplated hereby (the “Closing”) is contingent upon the substantially concurrent consummation of the Transactions. The Closing shall occur on the date of, substantially concurrently with and conditioned upon the effectiveness of, the consummation of the Transactions. Upon (a) satisfaction or waiver of the conditions set forth in Section 4 and (b) delivery of written notice from (or on behalf of) RAC to the Investor (the “Closing Notice”) that RAC reasonably expects the closing of the Transactions to occur on a specified date that is not less than five business days after the date on which the Closing Notice is delivered to the Investor, the Investor shall deliver to RAC (i) at least one full business day prior to the closing date specified in the Closing Notice (the “Closing Date”), the Subscription Amount by wire transfer of United States dollars in immediately available funds to the account specified by RAC in the Closing Notice, to be held in escrow until the Closing and (ii) at least three business days prior to the Closing Date, any other information that is reasonably requested in the Closing Notice in order for RAC to issue the Investor the Shares to be acquired hereunder, including, without limitation, the legal name of the person in whose name such Shares are to be issued and a duly executed Internal Revenue Service Form W-9 or W-8, as applicable. On the Closing Date, RAC shall issue the number of Shares set forth on the signature page of this Subscription Agreement to the Investor and subsequently cause such Shares to be registered in book entry form in the name of the Investor on RAC’s share register (provided, however, that RAC’s obligation to issue such Shares to the Investor is contingent upon RAC having received the Subscription Amount in full accordance with this Section 2), and the Subscription Amount shall be released from escrow automatically and without further action by RAC or the Investor. In the event that the consummation of the Transactions does not occur on or prior to the third business day after the anticipated Closing Date specified in the Closing Notice, unless otherwise agreed to in writing by RAC and the Investor, RAC shall return on the next business day (or such later date as shall be agreed in writing by the Investor) the funds so delivered by the Investor to RAC by wire transfer in immediately available funds to the account specified by the Investor. Notwithstanding such return or cancellation, (x) a failure to close on the anticipated Closing Date shall not, by itself, be deemed to be a failure of any of the conditions to Closing set forth in Section 4 to be satisfied or waived on or prior to the Closing Date, and (y) unless and until this Subscription Agreement is terminated in accordance with Section 9, each of the Investor and RAC will continue to be bound by this Subscription Agreement, including that the Investor shall remain obligated (A) to redeliver funds to RAC in escrow following RAC’s delivery to the Investor of a new Closing Notice in accordance with this Section 2 and (B) to consummate the Closing upon satisfaction of the conditions set forth in Section 4. For purposes of this Subscription Agreement, “business day” shall mean any day other than (1) any Saturday or Sunday or (2) any other day on which commercial banks located in New York, New York are required or authorized by applicable law to be closed for business other than Lincoln’s Birthday (February 12) and Election Day.

 

 

3. Separate Agreements. It is expressly understood and agreed that each provision contained in this Subscription Agreement is between RAC and Investor, solely, and not between RAC and the Other Investors, collectively, and not between and among the Investors. Nothing contained herein, and no action taken by any Investor pursuant thereto, shall be deemed to constitute the Investors as a partnership, an association, a joint venture or any other kind of group or entity, or create a presumption that the Investors are in any way acting in concert or as a group for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise with respect to such obligations or the transactions contemplated by this Agreement. Each Investor shall be entitled to independently protect and enforce its rights, including without limitation, the rights arising out of this Subscription Agreement, and it shall not be necessary for any other Investor to be joined as an additional party in any proceeding for such purpose.

 

4. 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 Investment Transactions illegal or otherwise restraining or prohibiting consummation of the Investment Transactions; and

 

(ii) all conditions precedent to the closing of the Transactions under the Transaction Agreements shall have been satisfied (as determined by the parties to the Transaction Agreements) or waived (other than those conditions which, by their nature, are to be satisfied at the closing of the Transactions, including to the extent that any such condition is dependent upon the consummation of the purchase and sale of the Shares pursuant to this Subscription Agreement), and the closing of the Transactions shall be scheduled to occur substantially concurrently with or immediately following the Closing.

 

2

 

 

b. The obligation of RAC to consummate the issuance and sale of the Shares pursuant to this Subscription Agreement shall be subject to the satisfaction or waiver by RAC 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 of the Shares pursuant to this Subscription Agreement shall be subject to the satisfaction or waiver by the Investor of the additional conditions that:

 

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

 

(ii) RAC 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 qualification of the Shares for offering or sale or trading in any applicable jurisdiction, or initiation or threatening of any proceedings for any such purposes, shall have occurred.

 

5. Further Assurances. At or prior to the Closing, RAC and the Investor shall execute and deliver, or cause to be executed and delivered, such additional documents and take such additional actions as the parties, acting reasonably, may deem to be practical and necessary in order to consummate the subscription as contemplated by this Subscription Agreement.

 

6. RAC Representations and Warranties. RAC represents and warrants to the Investor that:

 

a. RAC has been duly incorporated as a Delaware corporation and is validly existing and 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.

 

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 RAC’s certificate of incorporation and bylaws (as amended on the Closing Date) or under the Delaware General Corporation Law.

 

3

 

 

c. Immediately after giving effect to the Closing, the Investor shall have received all right and title to, and interests in, the Shares to be purchased pursuant to this Subscription Agreement, free and clear of all liens (other than those arising under this Subscription Agreement or state or federal securities laws).

 

d. This Subscription Agreement has been duly authorized, executed and delivered by RAC and, assuming that this Subscription Agreement constitutes the valid and binding agreement of the Investor, this Subscription Agreement is enforceable against RAC 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.

 

e. The execution, delivery and performance by RAC of this Subscription Agreement, including the issuance and sale of the Shares, and the compliance by RAC with all of the provisions of this Subscription Agreement and the consummation of the Investment Transactions will be done in accordance with the rules of the New York Stock Exchange (the “NYSE”) or such other applicable stock exchange on which the Shares are then listed (the “Stock Exchange”) and do and will not 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 RAC or any of its subsidiaries pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which RAC or any of its subsidiaries is a party or by which RAC or any of its subsidiaries is bound or to which any of the property or assets of RAC is subject that would reasonably be expected to have a material adverse effect on the business, financial condition or results of operations of RAC and its subsidiaries, taken as a whole, (a “Material Adverse Effect”) or materially affect the validity of the Shares or the legal authority of RAC to comply in all material respects with this Subscription Agreement; (ii) result in any violation of the provisions of the organizational documents of RAC; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, taxing authority or regulatory body, domestic or foreign, having jurisdiction over RAC or any of its 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 RAC to comply in all material respects with this Subscription Agreement.

 

f. As of their respective dates, all reports (the “SEC Reports”) required to be filed by RAC with the U.S. Securities and Exchange Commission (the “SEC”) complied in all material respects with the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), and the Exchange Act and the rules and regulations of the SEC promulgated thereunder, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of RAC 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 RAC 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 financial 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 RAC from the staff of the Division of Corporation Finance of the SEC with respect to any of the SEC Reports as of the date hereof.

 

g. Other than the Other Subscription Agreements, the Transaction Agreements and any other agreement expressly contemplated by the Transaction Agreements or as described in the SEC Reports, RAC has not entered into any side letter or similar agreement with any investor in connection with such investor’s direct or indirect investment in RAC (other than any side letter or similar agreement relating to the transfer to any investor of (i) securities of RAC by existing securityholders of RAC, which may be effectuated as a forfeiture to RAC and reissuance or (ii) securities to be issued to the direct or indirect securityholders of Aria or Archaea pursuant to the Transaction Documents). No Other Investor may purchase Shares pursuant to an Other Subscription Agreement at a price per Share less than the Per Share Purchase Price, and no Other Subscription Agreement includes terms and conditions that are materially more advantageous to any such Other Investor than the Investor hereunder other than terms particular to the regulatory requirements of such subscriber or its affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and the issuance of the related Shares.

 

4

 

 

h. RAC 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 RAC 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 by the Stock Exchange, and (iv) the failure of which to obtain would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.

 

i. As of the date of this Subscription Agreement, the authorized capital stock of RAC consists of (i) 1,000,000 shares of preferred stock, par value $0.0001 per share (“Preferred Stock”), and (ii) 270,000,000 shares of common stock, par value $0.0001 per share (the “Common Stock”), including (A) 250,000,000 shares of Class A Common Stock, par value $0.0001 per share (“Class A Common Stock”), and (B) 20,000,000 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) 23,727,500 shares of Class A Common Stock are issued and outstanding, (iii) 5,931,350 shares of Class B Common Stock are issued and outstanding and (iv) 18,633,500 redeemable warrants (each of which entitles the holder thereof to purchase one share of Class A Common Stock) and 6,771,000 private placement warrants (each of which entitles the holder thereof to one share of Class A Common Stock or, in certain circumstances, one Class A unit of RAC OpCo, together with a corresponding share of Class B Common Stock) are outstanding. All issued and outstanding shares of Class A Common Stock and Class B Common Stock have been duly authorized and validly issued, are fully paid and are non-assessable, and all outstanding warrants have been duly authorized and validly issued. Except as set forth above and pursuant to the Other Subscription Agreements, the Transaction Agreements 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 RAC any shares of Common Stock or other equity interests in RAC, or securities convertible into or exchangeable or exercisable for such equity interests. As of the date hereof, RAC has no subsidiaries, other than RAC OpCo, Aria Merger Sub and Archaea Merger Sub, 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 RAC is a party or by which it is bound relating to the voting of any securities of RAC, other than (i) as set forth in the SEC Reports and (ii) as contemplated by the Transaction Agreements. There are no securities or instruments issued by or to which RAC is a party containing anti-dilution or similar provisions that will be triggered by the issuance of the Shares hereunder or under any Other Subscription Agreement, in each case, that have not been or will not be waived on or prior to the Closing Date.

 

j. As of the date hereof, the issued and outstanding Shares are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the NYSE under the symbol “RICE” (it being understood that the trading symbol may be changed in connection with the Transactions). As of the date hereof, there is no suit, action, proceeding or investigation pending or, to the knowledge of RAC, threatened against RAC by the NYSE or the SEC to prohibit or terminate the listing of the Shares on the Stock Exchange or to deregister the Shares under the Exchange Act, respectively. RAC has taken no action that is designed to terminate the registration of the Shares under the Exchange Act. Prior to the Closing, a supplemental listing application shall have been filed with the Stock Exchange to list the Shares, and at the Closing, (i) either the Shares to be acquired hereunder shall have been approved for listing on the Stock Exchange, subject to official notice of issuance, or (ii) RAC will use best efforts to obtain such approval as expeditiously as possible.

 

k. Assuming the accuracy of the Investor’s representations and warranties set forth in Section 7, no registration under the Securities Act is required for the offer and sale of the Shares by RAC to the Investor hereunder. 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.

 

l. Except for Citigroup Global Markets Inc., Jefferies LLC and Roth Capital Partners, LLC (the “Placement Agents”), no broker, finder, commission agent or arranger is entitled to any brokerage or finder’s fees or other commission solely in connection with the Investment Transactions.

 

5

 

 

m. Neither the execution of this Subscription Agreement nor the issuance or sale of the Shares as contemplated by this Subscription Agreement gives rise to any rights of first refusal, rights of first offer or similar rights under any agreement to which RAC is a party that would entitle any person, whether incorporated or not, to purchase or otherwise acquire any of the Shares to be acquired by the Investor pursuant to this Subscription Agreement or require that an offer to purchase or acquire any of such Shares be made to any person.

 

n. RAC is not and, as of the Closing Date after the application of the proceeds from this Subscription Agreement will not be, an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

 

o. 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) action, suit, claim or other proceeding, in each case by or before any governmental authority pending, or, to the knowledge of RAC, threatened against RAC or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against RAC. The aggregate of all pending legal or governmental proceedings to which RAC or its subsidiaries is a party to or of which any of their respective property or assets is the subject of that are not described in the SEC Reports, including ordinary routine litigation incidental to the business, would not reasonably be expected to result in a Material Adverse Effect.

 

p. There is no civil, criminal or administrative suit, action, proceeding, arbitration, investigation, review or inquiry pending or, to the knowledge of RAC, threatened against or affecting RAC or any of RAC’s properties or rights that affects or would reasonably be expected to affect RAC’s ability to consummate the transactions contemplated by this Subscription Agreement, nor is there any decree, injunction, rule or order of any governmental authority or arbitrator outstanding against RAC or any of RAC’s properties or rights that affects or would reasonably be expected to affect RAC’s ability to consummate the transactions contemplated by this Subscription Agreement.

 

q. Neither RAC nor any of its subsidiaries nor any director or officer of any of the foregoing, nor, to the knowledge of RAC, any agent, employee or affiliate of any of the foregoing, is aware of or has knowingly taken or will take any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the “FCPA”), or any other applicable anti-corruption or anti-bribery laws, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA or any other applicable anti-corruption or anti-bribery laws.

 

r. No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving RAC or any of its subsidiaries with respect to the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder or any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental authority with jurisdiction over RAC or its subsidiaries is pending or, to the knowledge of RAC, threatened.

 

s. Neither RAC, nor any director or officer thereof, nor, to the knowledge of RAC, any employee, agent, controlled affiliate or representative of RAC, is a person that is, or is owned or controlled by a person that is currently subject to, any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”) or any other applicable sanction laws; and RAC will not knowingly directly or indirectly use the proceeds from the Investment Transactions, or knowingly lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person, to (i) fund or facilitate any activities or business of or with any person that, at the time of such funding or facilitation, is subject to any U.S. sanctions administered by OFAC or any other applicable sanctions laws or (ii) in any other manner that will result in a violation of any U.S. sanctions administered by OFAC or any other applicable sanctions laws by any person.

 

6

 

 

t. RAC acknowledges and agrees that, notwithstanding anything herein to the contrary, the Shares may be pledged by the 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 the Investor effecting a pledge of Shares shall not be required to provide RAC with any notice thereof; provided, however, that neither RAC, Aria, Archaea or any of their respective subsidiaries or their respective counsels 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 RAC in all respects.

 

7. Investor Representations and Warranties. The Investor represents and warrants to RAC that:

 

a. The Investor, or each of the funds managed by or affiliated with the Investor for which the Investor is acting as nominee, as applicable, (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), or an institutional “accredited investor” (described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Shares in reliance on a private placement exemption from registration under the Securities Act and is acquiring the Shares only for 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 set forth on Schedule A). The Investor is not an entity formed for the specific purpose of acquiring the Shares and is an “institutional account” as defined in FINRA Rule 4512(c).

 

b. The Investor acknowledges that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that neither the offer nor the sale of the Shares has been registered under the Securities Act. The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to RAC 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 clauses (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that book entry positions representing the Shares shall contain a restrictive legend to such effect (provided that such legend shall be subject to removal in accordance with Section 8(d)). The Investor acknowledges and agrees that the Shares will be subject to these securities laws transfer restrictions, and as a result, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of 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 and agrees that the Shares will not be eligible for offer, resale, transfer or disposition pursuant to Rule 144 promulgated under the Securities Act (“Rule 144”) until at least one year from the Closing Date. The Investor acknowledges and agrees that it has been advised to consult legal counsel and tax and accounting advisors prior to making any offer, resale, pledge, transfer or other disposition of any of the Shares. Nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time.

 

c. The Investor acknowledges and agrees that the Investor is purchasing the Shares directly from RAC. The Investor further acknowledges and agrees that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of RAC, Aria or Archaea or any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of RAC expressly set forth in Section 6.

 

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.

 

7

 

 

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 RAC, the Transactions and the businesses of Aria and Archaea and their respective subsidiaries. Without limiting the generality of the foregoing, the Investor acknowledges and agrees that it has reviewed, or has had an adequate opportunity to review, the SEC Reports. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the 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. The Investor acknowledges and agrees that certain information provided to it by RAC was based on good-faith projections, and such good-faith projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the good-faith projections.

 

f. The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and RAC, Aria, Archaea or a representative thereof, or by means of contact from the Placement Agents, and the Shares were offered to the Investor by RAC solely by direct contact between the Investor and RAC, Aria, Archaea or a representative thereof, or 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 and agrees that the Shares (i) were not offered to the Investor by any form of general solicitation or general advertising and (ii) to the Investor’s knowledge 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. The Investor acknowledges and agrees 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, RAC, Aria, Archaea or the Placement Agents or any of their respective affiliates or any of its or their control persons, officers, directors, employees, partners, agents or representatives), other than the representations and warranties of RAC contained in Section 6, in making its investment or decision to invest in RAC. The Investor further acknowledges and agrees 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 RAC, Aria, Archaea, this offering or the Transactions.

 

g. The Investor acknowledges and agrees that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in RAC’s filings with the SEC. The Investor is a sophisticated investor and 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. The Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision, and the Investor has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares. The Investor is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges and agrees that none of the Placement Agents, nor any of their respective affiliates, control persons, officers, directors or employees, shall be liable to the Investor pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase by the Investor of the Shares. On behalf of itself and its affiliates, the Investor acknowledges and agrees it will not look to any of the Placement Agents for all or any part of loss the Investor may suffer by reason of acquiring the Shares.

 

h. Alone, or together with any professional advisor(s), the Investor has analyzed and 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 RAC. The Investor acknowledges and agrees 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. The Investor acknowledges and agrees that the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agents or any of their respective affiliates, control persons, officers, directors, employees, partners, agents or representatives concerning RAC, Aria, Archaea, the Transaction Agreements, the Transactions, this Subscription Agreement, the Investment Transactions, the Shares or the offer and sale of the Shares. The Placement Agents shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, and the Investor releases the Placement Agents, in respect of this Subscription Agreement, the Investment Transactions or the Transactions.

 

8

 

 

j. The Investor further acknowledges and agrees that the Placement Agents and their respective affiliates, control persons, officers, directors, employees or representatives (i) have not provided the Investor with any information or advice with respect to the Shares, (ii) have not made or make any representation, express or implied as to RAC, Aria, Archaea, the credit quality of RAC, Aria or Archaea, the Shares or the Investor’s purchase of the Shares, (iii) have not acted as the Investor’s financial advisor or fiduciary in connection with the Investment Transactions or the Transactions, (iv) may have acquired or may acquire non-public information with respect to RAC, Aria or Archaea, which, subject to the requirements of applicable law, the Investor agrees need not be provided to it or (v) may have existing or future business relationships with RAC, Aria or Archaea (including, but not limited to, lending, depository, risk management, advisory and banking relationships) and will pursue actions and take steps that it deems or they deem necessary or appropriate to protect its or their interests arising therefrom without regard to the consequences for a holder of Shares, and that certain of these actions may have material and adverse consequences for a holder of Shares.

 

k. The Investor acknowledges and agrees that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agents or any person acting on their behalf have conducted with respect to the Shares, RAC, Aria or Archaea. The Investor further acknowledges and agrees that it has not relied on any information contained in any research reports prepared by the Placement Agents.

 

l. The Investor acknowledges and agrees that no federal or state agency, securities commission or similar authority 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.

 

m. The Investor has been duly formed or incorporated and is validly existing and 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.

 

n. The execution, delivery and performance by the Investor of this Subscription Agreement are within the powers of the Investor, have been duly authorized and do not and will not (i) 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, except for such breaches, defaults or conflicts that would not reasonably be expected to have a material adverse effect on the ability of the Investor to enter into and timely perform its obligations under this Subscription Agreement, and (ii) violate any provisions of the Investor’s organizational 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 assuming that this Subscription Agreement constitutes the valid and binding obligation of RAC, 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.

 

o. The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by 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) owned, directly or indirectly, or controlled by, or acting on behalf of, one or more persons that are named on the OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national or the government, including any political subdivision, agency or instrumentality thereof, of Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515 or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (each, a “Prohibited Investor”). 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 to ensure compliance with OFAC-administered sanctions programs, including 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 and were not obtained, directly or indirectly, from a Prohibited Investor.

 

9

 

 

p. The Investor acknowledges and agrees that it has been informed that no disclosure or offering document has been prepared by the Placement Agents in connection with the offer and sale of the Shares.

 

q. No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a substantial interest in RAC as a result of the purchase and sale of the Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over RAC from and after the Closing as a result of the purchase and sale of the Shares hereunder.

 

r. No broker or finder is entitled to any brokerage or finder’s fee or commission solely in connection with the sale of the Shares to the Investor based on any arrangement entered into by or on behalf of the Investor.

 

s. The Investor hereby acknowledges and agrees that it will not, nor will any person acting at the Investor’s direction or pursuant to any understanding with the Investor, directly or indirectly engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares subscribed for hereunder (collectively, the “Short Sales”) until the consummation of the Investment Transactions or the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing or anything else in this Subscription Agreement, this Section 7(s) shall not apply to (i) any sale (including the exercise of any redemption right) of securities of RAC (x) held by the Investor, its affiliates or any person or entity acting on behalf of the Investor or any of its affiliates prior to the execution of this Subscription Agreement or (y) purchased by the Investor, its affiliates or any person or entity acting on behalf of the Investor or any of its affiliates after the execution of this Subscription Agreement or (ii) ordinary course hedging transactions so long as the sales or borrowings relating to such hedging transactions are not settled with the Shares subscribed for hereunder and the number of securities sold in such transactions does not exceed the number of securities owned or subscribed for at the time of such transactions. Notwithstanding the foregoing or anything else in this Subscription Agreement, (I) nothing herein shall prohibit (A) other entities under common management with the Investor or (B) in the case of an Investor that is externally managed, advised or sub-advised by another person, any other person that is not directly controlled or managed by such manager, adviser or sub-adviser, from entering into any Short Sales and (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, the representations set forth in this Section 7(s) shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement.

 

t. The Investor acknowledges that the Placement Agents and their respective directors, officers, employees, partners, agents, representatives and controlling persons have made no independent investigation with respect to RAC, Aria, Archaea or their respective affiliates, subsidiaries or businesses or the Shares or the accuracy, completeness or adequacy of any information supplied to the Investor by RAC.

 

10

 

 

u. The Investor has or has commitments to have and, when required to deliver payment to RAC pursuant to Section 2, will have, sufficient funds to pay the Subscription Amount and consummate the purchase and sale of the Shares pursuant to this Subscription Agreement.

 

8. Registration Rights.

 

a. RAC agrees that, within 30 calendar days after the Closing Date, it will file with the SEC (at its sole cost and expense) a registration statement (the “Registration Statement”) registering, among other things, the resale of the Shares acquired by the Investor pursuant to this Subscription Agreement (which for purposes of this Section shall include any other equity security issued or issuable with respect to the Shares by way of share split, dividend, distribution, recapitalization, merger, exchange, replacement or similar event), provided that the Investor has timely provided RAC with information regarding the Investor that is, in the opinion of RAC’s counsel, required to be included in the Registration Statement, which information shall be requested by RAC from the Investor at least five business days prior to the anticipated filing date of the Registration Statement. RAC further agrees that 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) 60 calendar days after the filing thereof (or, in the event the SEC reviews and has written comments to the Registration Statement, the 90th calendar day following the filing thereof) and (ii) the seventh business day after the date RAC 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 (the earlier of (i) and (ii), the “Effectiveness Deadline”); provided, that if such deadline 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. RAC agrees to cause such Registration Statement, or another shelf registration statement that includes the Shares to be sold pursuant to this Subscription Agreement, to remain effective until the earliest of (A) the third anniversary of the date the initial Registration Statement hereunder is declared effective, (B) the date on which the Investor ceases to hold any Shares issued pursuant to this Subscription Agreement or (C) on the first date on which the Investor can sell all of its Shares issued pursuant to this Subscription Agreement (or shares received in exchange therefor) under Rule 144 within 90 days without being subject to the public information, volume or manner of sale limitations of such rule (such date, the “End Date”). The Investor agrees to disclose its ownership to RAC upon request to assist it in making the determination described above. RAC may amend the Registration Statement so as to convert the Registration Statement to a Registration Statement on Form S-3 at such time after RAC becomes eligible to use such Form S-3. RAC’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 RAC such information regarding the Investor, the securities of RAC held by the Investor and the intended method of disposition of such Shares, which shall be limited to non-underwritten public offerings, as shall be reasonably requested by RAC to effect the registration of such Shares, and shall execute such documents in connection with such registration as RAC may reasonably request that are customary of a selling stockholder in similar situations; provided that the Investor shall not in connection with the foregoing be required to execute any lock-up or similar agreement or otherwise be subject to any contractual restriction on the ability to transfer the Shares. The Investor acknowledges and agrees that unless it has timely provided such information and consented to the inclusion of such information in the Registration Statement, it will not be entitled to have its Shares included in the Registration Statement.

 

b. The Investor acknowledges and agrees that RAC may suspend the use of the Registration Statement 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, provided, that, (i) RAC shall not so delay filing or so suspend the use of the Registration Statement on more than three occasions for a period of more than 60 consecutive days or more than a total of 120 calendar days, in each case in any 360-day period and (ii) RAC shall use commercially reasonable efforts to make such Registration Statement available for the sale by the Investor of such securities as soon as practicable thereafter.

 

c. RAC will provide a draft of the Registration Statement to the Investor for review at least two business days in advance of filing the Registration Statement. In no event shall the Investor be identified as a statutory underwriter in the Registration Statement unless in response to a comment or request from the staff of the SEC or another regulatory agency; provided, however, that if the SEC requests that the Investor be identified as a statutory underwriter in the Registration Statement, the Investor will have an opportunity to withdraw from the Registration Statement. RAC shall upon reasonable request inform the Investor as to the status of a registration pursuant to Section 8.

 

11

 

 

d. If the SEC prevents RAC from including any or all of the Shares proposed to be registered for resale 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 shareholders or otherwise, (i) such Registration Statement shall register for resale such number of Shares that is equal to the maximum number of Shares as is permitted by the SEC, (ii) the number of Shares to be registered for each Investor named in the Registration Statement shall be reduced pro rata among all such Investors, and (iii) as promptly as practicable after being permitted to register additional Shares under Rule 415 of the Securities Act, RAC shall file a new Registration Statement to register such Shares not included in the initial Registration Statement and cause such Registration Statement to become effective as promptly as practicable.

 

e. Prior to the End Date, RAC shall advise the Investor within five business days (at RAC’s expense): (i) when a Registration Statement or any post-effective amendment thereto has been filed and when it becomes effective; (ii) of any request by the SEC for amendments or supplements to any Registration Statement or the prospectus included therein or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose; (iv) of the receipt by RAC of any notification with respect to the suspension of the qualification of the Shares included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and (v) subject to the provisions in this Subscription Agreement, of the occurrence of any event that requires the making of any changes in any Registration Statement or prospectus so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading (provided that any such notice pursuant to this Section 8(e) shall solely provide that the use of the Registration Statement or prospectus has been suspended without setting forth the reason for such suspension). Notwithstanding anything to the contrary set forth herein, RAC shall not, when so advising the Investor of such events, provide the Investor with any material, nonpublic information regarding RAC other than to the extent that providing notice to the Investor of the occurrence of the events listed in (i) through (v) above may constitute material, nonpublic information regarding RAC. RAC shall use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practicable. Upon the occurrence of any event contemplated in clauses (i) through (v) above, except for such times as RAC is permitted hereunder to suspend, and has suspended, the use of a prospectus forming part of a registration statement, RAC shall use its commercially reasonable efforts to as soon as reasonably practicable prepare a post-effective amendment to such Registration Statement or a supplement to the related prospectus, or file any other required document so that, as thereafter delivered to purchasers of the Shares included therein, such prospectus will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Investor agrees that it will immediately discontinue offers and sales of the Shares using the Registration Statement until the Investor receives copies of a supplemental or amended prospectus that corrects the misstatement(s) or omission(s) referred to above in clause (v) and receives notice that any post-effective amendment has become effective or unless otherwise notified by RAC that it may resume such offers and sales. If so directed by RAC, the Investor will deliver to RAC or, in the Investor’s sole discretion destroy, all copies of the prospectus covering the Shares in the Investor’s possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Shares shall not apply (x) to the extent the Investor is required to retain a copy of such prospectus in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or in accordance with a bona fide pre-existing document retention policy or (y) to copies stored electronically on archival servers as a result of automatic data back-up.

 

f. Prior to the End Date, RAC shall use its commercially reasonable efforts to cause all Shares issued to the Investor pursuant to this Subscription Agreement to be listed on each securities exchange or market, if any, on which the shares of Class A Common Stock of RAC have been listed. With a view to making available to the Investor the benefits of Rule 144 that may, at such times as Rule 144 is available to shareholders of RAC, permit the Investors to sell securities of RAC to the public without registration, RAC agrees to, for so long as such Investor owns the Shares acquired hereunder: (i) make and keep public information available, as those terms are understood and defined in Rule 144; (ii) file with the SEC in a timely manner all reports and other documents required of RAC under the Securities Act and the Exchange Act so long as RAC remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144; and (iii) furnish to the Investor, within two business days following its receipt of a written request, (A) a written statement by RAC, if true, that it has complied with the reporting requirements of Rule 144, the Securities Act and the Exchange Act, (B) a copy of the most recent annual or quarterly report of RAC and such other reports and documents so filed by RAC (it being understood that the availability of such report on the SEC’s EDGAR system shall satisfy this requirement) and (C) such other information as may be reasonably requested in writing to permit the Investor to sell such securities pursuant to Rule 144 without registration.

 

12

 

 

g. In addition, in connection with any sale, assignment, transfer or other disposition of the Shares by the Investor pursuant to Rule 144 or pursuant to any other exemption under the Securities Act such that the Shares held by the Investor become freely tradable and upon compliance by the Investor with the requirements of this Subscription Agreement, if requested by the Investor, RAC shall cause the transfer agent for the Shares (the “Transfer Agent”) to remove any restrictive legends related to the book entry account holding such Shares and make a new, unlegended entry for such book entry Shares sold or disposed of without restrictive legends within two trading days of any such request therefor from the Investor, provided that RAC and the Transfer Agent have timely received from the Investor customary representations and other documentation reasonably acceptable to RAC and the Transfer Agent in connection therewith. Subject to receipt from the Investor by RAC and the Transfer Agent of customary representations and other documentation reasonably acceptable to RAC and the Transfer Agent in connection therewith, including, if required by the Transfer Agent, an opinion of RAC’s counsel, in a form reasonably acceptable to the Transfer Agent, to the effect that the removal of such restrictive legends in such circumstances may be effected under the Securities Act, the Investor may request that RAC remove any legend from the book entry position evidencing its Shares following the earliest of such time as such Shares (i) have been or are about to be sold or transferred pursuant to an effective registration statement or pursuant to Rule 144 or (ii) are eligible for resale under Rule 144(b)(1) or any successor provision without the requirement for RAC to be in compliance with the current public information requirement under Rule 144 and without volume or manner-of-sale restrictions applicable to the sale or transfer of such Shares. If restrictive legends are no longer required for such Shares pursuant to the foregoing, RAC shall, in accordance with the provisions of this section and within three trading days of any request therefor from the Investor accompanied by such customary and reasonably acceptable representations and other documentation referred to above establishing that restrictive legends are no longer required, deliver to the Transfer Agent irrevocable instructions that the Transfer Agent shall make a new, unlegended entry for such book entry Shares. RAC shall be responsible for the fees of its Transfer Agent and all DTC fees associated with such issuance.

 

h. Indemnification.

 

(i) RAC agrees to indemnify and hold harmless, to the extent permitted by law, the Investor, its directors, officers, employees, advisors and agents, and each person who controls the Investor (within the meaning of the Securities Act or the Exchange Act) and each affiliate of the Investor (within the meaning of Rule 405 under the Securities Act) from and against any and all out-of-pocket losses, claims, damages, liabilities and expenses (including, without limitation, any reasonable and documented attorneys’ fees and expenses incurred in connection with defending or investigating any such action or claim) caused by any untrue or alleged untrue statement of material fact contained in any Registration Statement, prospectus included in any Registration Statement or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or contained in any information furnished in writing to RAC by or on behalf of the Investor expressly for use therein.

 

(ii) The Investor agrees, severally and not jointly with any person that is a party to the Other Subscription Agreements, to indemnify and hold harmless RAC, its directors and officers and agents and each person who controls RAC (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expenses (including, without limitation, reasonable and documented attorneys’ fees) resulting from any untrue statement of material fact contained in the Registration Statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any information or affidavit so furnished in writing by or on behalf of the Investor expressly for use therein. In no event shall the aggregate liability of the Investor under this clause (ii) and under clause (iv) below be greater in amount than the dollar amount of the net proceeds received by the Investor upon the sale of the Shares purchased pursuant to this Subscription Agreement giving rise to such indemnification obligation.

 

13

 

 

(iii) Any person entitled to indemnification herein shall (A) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (B) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent. An indemnifying party who elects not to assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of legal counsel to any indemnified party a conflict of interest exists between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.

 

(iv) The indemnification provided for under this Subscription Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, employee, agent, affiliate or controlling person of such indemnified party and shall survive the transfer of the Shares purchased pursuant to this Subscription Agreement.

 

(v) If the indemnification provided under this Section 8(h) from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by or on behalf of, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 8(h)(v) from any person who was not guilty of such fraudulent misrepresentation. Any contribution pursuant to this Section 8(h)(v) by any seller of Shares shall be limited in amount to the amount of net proceeds received by such seller from the sale of such Shares pursuant to the Registration Statement. Notwithstanding anything to the contrary herein, in no event will any party be liable for consequential, special, exemplary or punitive damages in connection with this Subscription Agreement.

 

14

 

 

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 either of the Transaction Agreements is terminated in accordance with its terms without being consummated, (b) upon the mutual written agreement of each of the parties hereto and Aria and Archaea to terminate this Subscription Agreement, (c) if the Closing has not occurred by such date other than as a result of a breach of the Investor’s obligations hereunder, upon 30 days after the Outside Date (as defined in the Aria Merger Agreement as in effect on the date hereof), which date is (x) October 4, 2021, if the “Expiration Date” under the Debt Commitment Letter (as defined in the Aria Merger Agreement as in effect on the date hereof) has not been extended in accordance with its terms or (y) between October 5, 2021 and November 3, 2021, if the “Expiration Date” under the Debt Commitment Letter has been extended in accordance with its terms, or (d) if any of the conditions to Closing set forth in Section 4 are not satisfied or waived, or are not capable of being satisfied, on or prior to the Closing and, as a result thereof, the Investment Transactions will not be and are not consummated at the Closing (the termination events described in clauses (a) through (d) above, collectively, the “Termination Events”); 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. In the event that either of the Transaction Agreements is terminated in accordance with its terms, RAC shall notify the Investor in writing of the termination of such Transaction Agreement promptly after the termination thereof. Upon the occurrence of any Termination Event, this Subscription Agreement shall be void ab initio and of no further effect and any monies paid by the Investor to RAC in connection herewith shall promptly (and in any event within one business day) following the Termination Event be returned to the Investor.

 

10. Trust Account Waiver. The Investor acknowledges that RAC is a blank check company with the powers and privileges to effect a merger, asset acquisition, reorganization or similar business combination involving RAC and one or more businesses or assets. The Investor further acknowledges that, as described in RAC’s prospectus relating to its initial public offering dated October 21, 2020 (the “IPO Prospectus”) available at www.sec.gov, substantially all of RAC’s assets consist of the cash proceeds of RAC’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 RAC, its public shareholders and the underwriters of RAC’s initial public offering. Except with respect to interest earned on the funds held in the Trust Account that may be released to RAC to pay its tax obligations, if any, the cash in the Trust Account may be disbursed only for the purposes set forth in the IPO Prospectus. For and in consideration of RAC entering into this Subscription Agreement, the receipt and sufficiency of which are hereby acknowledged, the Investor hereby irrevocably (a) 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 (b) agrees not to seek recourse against the Trust Account, in each case, as a result of, or arising out of, this Subscription Agreement; provided, however, that nothing in this Section 10 shall (i) serve to limit or prohibit the Investor’s right to pursue a claim against assets held outside the Trust Account for specific performance or other equitable relief, (ii) serve to limit or prohibit any claims that the Investor may have in the future against RAC’s assets or funds that are not held in the Trust Account (including any funds that have been released from the Trust Account and any assets that have been purchased or acquired with any such funds) or (iii) 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 Shares acquired other than pursuant to this Subscription Agreement, pursuant to a validly exercised redemption right with respect to any such Shares, except to the extent that the Investor has otherwise agreed with RAC to not exercise such redemption right.

 

15

 

 

11. Miscellaneous.

 

a. Neither this Subscription Agreement nor any rights that may accrue to the parties hereunder (other than the Shares acquired hereunder, if any) may be transferred or assigned without the prior written consent of each of the other parties hereto; provided that (i) this Subscription Agreement and any of the Investor’s rights and obligations hereunder may be assigned to any fund or account managed by the same investment manager as the Investor or by an affiliate (as defined in Rule 12b-2 of the Exchange Act) of such investment manager without the prior consent of RAC and (ii) the Investor’s rights under Section 8 may be assigned to an assignee or transferee of the Shares; provided further that prior to such assignment any such assignee shall agree in writing to be bound by the terms hereof; provided, that no assignment pursuant to clause (i) of this Section 11(a) shall relieve the Investor of its obligations hereunder.

 

b. RAC may request from the Investor such additional information as RAC, acting reasonably, 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. The Investor acknowledges and agrees that RAC may file a form of this Subscription Agreement with the SEC as an exhibit to a current or periodic report, proxy statement or a registration statement of RAC. Notwithstanding anything in this Subscription Agreement to the contrary, RAC shall not publicly disclose the name of the Investor or any of its affiliates or advisers, or include the name of the Investor or any of its 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, after giving advance notice to the Investor, to the extent allowed by law or such 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 the Stock Exchange, after giving advance notice to the Investor, to the extent allowed by law, the SEC, the Stock Exchange or such other regulatory agency.

 

c. The Investor acknowledges and agrees that RAC will rely on the acknowledgments, understandings, agreements, representations and warranties of the Investor contained in this Subscription Agreement, including Schedule A hereto. Prior to the Closing, the Investor agrees to promptly notify RAC and the Placement Agents if any of the acknowledgments, understandings, agreements, representations and warranties set forth in Section 7 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 RAC and the Placement Agents if they are no longer accurate in all respects). The Investor acknowledges and agrees that the purchase by the Investor of Shares from RAC under this Subscription Agreement 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 the Placement Agents, Aria and Archaea will rely on the representations and warranties of the Investor contained in Section 7 (including the acknowledgements, understandings and agreements of the Investor contained therein) and are third-party beneficiaries of Section 11 and of the representations and warranties (including the acknowledgements, understandings and agreements of the Investor contained therein) of the Investors contained in Section 7.

 

d. RAC and, to the extent set forth in Section 11(c), Aria, Archaea and the Placement Agents, are each entitled to rely upon this Subscription Agreement, and the Placement Agents are entitled to rely on the representations and warranties of RAC contained in Section 6 hereof, 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; provided, however, that the foregoing clause of this Section 11(d) shall not give RAC or the Placement Agents any rights other than those expressly set forth herein.

 

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; provided, however, that no modification or waiver by RAC of the provisions of this Subscription Agreement shall be effective without the prior written consent of Aria and Archaea (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 7, 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 adverse to the Placement Agents without the written consent of the Placement Agents.

 

16

 

 

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 8(h), Section 9, Section 11(c), Section 11(d), Section 11(f), this Section 11(g), the last sentence of Section 11(k) and Section 12 with respect to the persons referenced therein, and Section 6 and Section 7 with respect to the Placement Agents, this Subscription Agreement shall not confer any rights or remedies upon any person other than the parties hereto and their respective successors and assigns, and the parties hereto acknowledge and agree 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 (or part thereof) 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 (or parts thereof) 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 acknowledge and 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. The parties hereto acknowledge and agree that each of Aria and Archaea shall be entitled to specifically enforce the provisions of the Subscription Agreement of which Aria and Archaea are express third party beneficiaries, in each case, on the terms and subject to the conditions set forth herein.

 

l. If any change in the number, type or classes of authorized shares of RAC (including the Shares), other than as contemplated by the Transaction Agreements or any agreement contemplated by the Transaction Agreements, shall occur between the date hereof and immediately prior to the Closing by reason of reclassification, recapitalization, stock split (including reverse stock split) or combination, exchange or readjustment of shares, or any stock dividend, the number of Shares issued to the Investor and Per Share Purchase Price shall be appropriately adjusted to reflect such change. In no event will this Section 11(l) be construed to require the Investor to complete the purchase of the Shares contemplated hereby without satisfaction of all of the conditions to Closing contained in this Subscription Agreement.

 

m. This Subscription Agreement and all claims and causes of action hereunder shall be governed by and construed in accordance with the laws of Delaware (regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof) as to all matters (including any action, suit, litigation, arbitration, mediation, claim, charge, complaint, inquiry, proceeding, hearing, audit, investigation or reviews by or before any governmental entity related hereto), including matters of validity, construction, effect, performance and remedies.

 

17

 

 

n. Each party hereto hereby, and any person asserting rights as a third party beneficiary may do so only if he, she or it, irrevocably agrees that any action, suit or proceeding between or among the parties hereto, whether arising in contract, tort or otherwise, arising in connection with any disagreement, dispute, controversy or claim arising out of or relating to this Subscription Agreement or any related document or any of the Investment Transactions or the Transactions (“Legal Dispute”) shall be brought only to the exclusive jurisdiction of the Chancery Court of the State of Delaware or, in the event, but only in the event, that the Court of Chancery of the State of Delaware does not have subject matter jurisdiction, the Superior Court of the State of Delaware (Complex Commercial Division) or, if subject matter jurisdiction over the action or proceeding is vested exclusively in the federal courts of the United States of America, the United States District Court for the District of Delaware, and each party hereto hereby consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding that is brought in any such court has been brought in an inconvenient forum. During the period a Legal Dispute that is filed in accordance with this Section 11(n) is pending before a court, all actions, suits or proceedings with respect to such Legal Dispute or any other Legal Dispute, including any counterclaim, cross-claim or interpleader, shall be subject to the exclusive jurisdiction of such court. Each party hereto and any person asserting rights as a third party beneficiary may do so only if he, she or it hereby waives, and shall not assert as a defense in any Legal Dispute, that (a) such party is not personally subject to the jurisdiction of the above named courts for any reason, (b) such action, suit or proceeding may not be brought or is not maintainable in such court, (c) such party’s property is exempt or immune from execution, (d) such action, suit or proceeding is brought in an inconvenient forum or (e) the venue of such action, suit or proceeding is improper. A final judgment in any action, suit or proceeding described in this Section 11(n) following the expiration of any period permitted for appeal and subject to any stay during appeal shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable laws. EACH OF THE PARTIES HERETO AND ANY PERSON ASSERTING RIGHTS AS A THIRD PARTY BENEFICIARY MAY DO SO ONLY IF HE, SHE OR IT IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY ON ANY CLAIMS OR COUNTERCLAIMS ASSERTED IN ANY LEGAL DISPUTE RELATING TO THIS SUBSCRIPTION AGREEMENT, THE INVESTMENT TRANSACTIONS OR THE TRANSACTIONS AND FOR ANY COUNTERCLAIM RELATING THERETO. IF THE SUBJECT MATTER OF ANY SUCH LEGAL DISPUTE IS ONE IN WHICH THE WAIVER OF JURY TRIAL IS PROHIBITED, NO PARTY HERETO NOR ANY PERSON ASSERTING RIGHTS AS A THIRD PARTY BENEFICIARY SHALL ASSERT IN SUCH LEGAL DISPUTE A NONCOMPULSORY COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT, THE INVESTMENT TRANSACTIONS OR THE TRANSACTIONS. FURTHERMORE, NO PARTY HERETO NOR ANY PERSON ASSERTING RIGHTS AS A THIRD PARTY BENEFICIARY SHALL SEEK TO CONSOLIDATE ANY SUCH LEGAL DISPUTE WITH A SEPARATE ACTION OR OTHER LEGAL PROCEEDING IN WHICH A JURY TRIAL CANNOT BE WAIVED.

 

o. 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 the Investor, to such address(es) or email address(es) set forth on the signature page hereto;
     
  (ii) if to RAC, to:
     
    Rice Acquisition Corp.
    102 East Main Street, Second Story
    Carnegie, Pennsylvania 15106
    Attention: Kyle Derham
    E-mail: kyle@riceinvestmentgroup.com
       
    with a required copy to (which copy shall not constitute notice):
     
    Kirkland & Ellis LLP
    609 Main Street
    Houston, Texas 77002
    Attention: Matthew R. Pacey, P.C.
      Cyril V. Jones, P.C.
    Email: matt.pacey@kirkland.com
      cyril.jones@kirkland.com

 

18

 

 

  (iii) if to Aria, to:
   
    Aria Energy LLC
    46280 Dylan Drive, Ste 200
    Novi, MI 48377
    Attention: Richard DiGia
    E-mail: richard.digia@ariaenergy.com
       
    with a required copy to (which copy shall not constitute notice):
     
    Orrick, Herrington & Sutcliffe LLP
    The Orrick Building
    405 Howard Street
    San Francisco, CA 94105
    Attention: John Cook
      Kristin Seeger
    Email: jcook@orrick.com
      kseeger@orrick.com
       
  (iii) if to Archaea, to:
     
    Archaea Energy LLC
    500 Technology Drive
    Second Floor
    Canonsburg, PA 15317
    Attention: Nicholas Stork
      Andrew Eastman
    Email: nstork@archaea.energy
      aeastman@archaea.energy
       
    with a required copy to (which copy shall not constitute notice):
       
    Pillsbury Winthrop Shaw Pittman LLP
    31 West 52nd Street
    New York, NY 10019-6131
    Attention: Mona Dajani
    Email: mona.dajani@pillsburylaw.com

 

p. The Investor shall pay all of its own expenses in connection with this Subscription Agreement and the Investment Transactions.

 

12. Non-Reliance and Exculpation. The Investor acknowledges and agrees 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, RAC, Archaea, Aria, the Placement Agents or any of their respective control persons, officers, directors, employees, partners, agents or representatives), other than the statements, representations and warranties of RAC expressly contained in Section 6, in making its investment or decision to invest in RAC. The Investor acknowledges and agrees that none of (a) any other investor pursuant to an Other Subscription Agreement (including such investor’s affiliates or any control persons, officers, directors, partners, agents, employees or representatives of any of the foregoing), (b) the Placement Agents or any of their respective control persons, officers, directors, partners, agents, employees or representatives or (c) any party to the Transaction Agreements, including any such party’s representatives, affiliates or any of its or their control persons, officers, directors, partners, agents, employees or representatives, that is not a party hereto, shall be liable to the Investor, or to any other investor, pursuant to, or arising out of or relating to, this Subscription Agreement or any Other Subscription Agreement arising out of the private placement of the Shares, the negotiation hereof or thereof or its subject matter, or the Investment Transactions or the Transactions, including, without limitation, with respect to any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Shares or with respect to any claim (whether in tort, contract or otherwise) for breach of this Subscription Agreement or in respect of any written or oral representations made or alleged to be made in connection herewith, as expressly provided herein, or for any actual or alleged inaccuracies, misstatements or omissions with respect to any information or materials of any kind furnished by RAC, Aria, Archaea, the Placement Agents or any Non-Party Affiliate concerning RAC, Aria, Archaea, the Placement Agents, any of their respective controlled affiliates, this Subscription Agreement, the Investment Transactions or the Transactions. For purposes of this Subscription Agreement, “Non-Party Affiliates” means each former, current or future officer, director, employee, partner, member, manager, direct or indirect equityholder or affiliate of RAC, Aria, Archaea, the Placement Agents or any of RAC’s, Aria’s, Archaea’s or either of the Placement Agents’ controlled affiliates or any family member of the foregoing.

 

13. Disclosure. RAC shall, by 9:00 a.m., New York City time, on the first 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 Investment Transactions, the Transactions and any other material, nonpublic information that RAC, or any of its officers, employees or agents on behalf of RAC, 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 knowledge of RAC, the Investor shall not be in possession of any material, non-public information received from RAC or any of its officers, directors, 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 RAC or any of its affiliates, relating to the transactions contemplated by this Subscription Agreement. Notwithstanding anything in this Subscription Agreement to the contrary, RAC shall not publicly disclose the name of the Investor or any of its affiliates or advisers, or include the name of the Investor or any of its 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 (a) as required by the federal securities law or pursuant to other routine proceedings of regulatory authorities, after giving advance notice to the Investor, to the extent allowed by law or such regulatory authorities or (b) 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 the Stock Exchange, after giving advance notice to the Investor, to the extent allowed by law, the SEC, the Stock Exchange or such other regulatory agency.

 

[SIGNATURE PAGES FOLLOW]

 

19

 

 

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: ________, 2021
     
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 RAC in the Closing Notice.

 

 

 

 

IN WITNESS WHEREOF, Rice Acquisition Corp. has accepted this Subscription Agreement as of the date set forth below.

 

  Rice Acquisition Corp.
   
  By:            
  Name:  
  Title:  
Date:                , 2021  

 

 

 

 

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. AFFILIATE STATUS

 

  (Please check the applicable box)
   
  SUBSCRIBER:

 

is:
is not:

an “affiliate” (as defined in Rule 144 under the Securities Act) of RAC or acting on behalf of an affiliate of RAC.

 

D.

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).

 

This Schedule A should be completed by the Investor

and constitutes a part of the Subscription Agreement.

 

 

 

 

Exhibit 10.2

 

AMENDMENT TO
FORWARD PURCHASE AGREEMENT

 

This AMENDMENT TO FORWARD PURCHASE AGREEMENT (this “Amendment”), dated as of April 7, 2021, is entered into by and between Rice Acquisition Corp., a Delaware corporation (the “Company”), Rice Acquisition Sponsor LLC, a Delaware limited liability company (the “Sponsor”), Rice Acquisition Holdings LLC, a Delaware limited liability company (“OpCo”) and Atlas Point Energy Infrastructure Fund, LLC, a Delaware limited liability company (the “Purchaser”).

 

RECITALS

 

WHEREAS, the Company, OpCo, Sponsor and the Purchaser are party to that certain Forward Purchase Agreement, dated as of September 30, 2020 (the “Forward Purchase Agreement”);

 

WHEREAS, concurrently with the execution and delivery of this Amendment, the Company, OpCo, Aria Energy LLC and certain other parties thereto entered into a Business Combination Agreement (the “Aria Agreement”);

 

WHEREAS, concurrently with the execution and delivery of this Amendment, the Company, OpCo, Archaea Energy, LLC and certain other parties thereto entered into a Business Combination Agreement (the “Archaea Agreement,” and together with the Aria Agreement, collectively, the “Business Combination Agreements”);

 

WHEREAS, in consideration of the benefits to be received by the Purchaser under the terms of and transactions contemplated by the Business Combination Agreements and as a material inducement to the Company agreeing to enter into, and consummate the transactions contemplated by, the Business Combination Agreements, the parties hereto agree to enter into this Amendment and to be bound by the agreements, covenants and obligations contained in this Amendment; and

 

WHEREAS, in connection with the execution and delivery of the Business Combination Agreements and the transactions contemplated thereby, the Company and the Purchaser wish to amend the Forward Purchase Agreement as set forth herein.

 

NOW, THEREFORE, in consideration of the foregoing premises and the agreements, provisions and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

Section 1 Defined Terms and Rules of Interpretation. Except as otherwise expressly provided herein, capitalized terms used herein without definition shall have the same meanings herein as set forth in the Forward Purchase Agreement after giving effect to this Amendment. For all purposes of this Amendment, except as otherwise expressly provided or unless the context otherwise requires, the rules of construction set forth in Section 8(q) of the Forward Purchase Agreement are hereby incorporated by reference, mutatis mutandis, as if fully set forth herein.

 

1

 

 

Section 2 Amendment; Waiver. The parties hereto hereby agree that (a) the first reference to “one-third of one redeemable warrant” in Section 1 of the Forward Purchase Agreement shall be replaced with “one-eighth of one redeemable warrant” and (b) absent mutual agreement by the parties hereto, the Purchaser shall purchase a total of $20,000,000 of Forward Purchase Securities otherwise in accordance with the terms of the Forward Purchase Agreement.

 

Section 3 Miscellaneous.

 

(a) Effect of Amendment. Except to the extent specifically amended or superseded by the terms of this Amendment, all of the provisions of the Forward Purchase Agreement shall remain in full force and effect to the extent in effect on the date hereof. The Forward Purchase Agreement, as modified by this Amendment, constitutes the complete agreement among the parties hereto and supersedes any prior written or oral agreements, writings, communications or understandings with respect to the subject matter hereof.

 

(b) Parties in Interest. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

 

(c) Governing Law. This Amendment, the entire relationship of the parties hereto, and any dispute between the parties hereto (whether grounded in contract, tort, statute, law or equity) shall be governed by, construed in accordance with, and interpreted pursuant to the laws of the State of Delaware, without giving effect to its choice of laws principles.

 

(d) Counterparts. This Amendment may be executed in two or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument.

 

[Remainder of page intentionally left blank.]

 

2

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly authorized representatives as of the date first written above.

 

COMPANY
   
  RICE ACQUISITION CORP.
     
By: /s/ Jamie Rogers
  Name: Jamie Rogers
  Title: Chief Accounting Officer

 

PURCHASER
   
  ATLAS POINT ENERGY INFRASTRUCTURE FUND, LLC
     
By: /s/ Adam Karpf
  Name: Adam Karpf
  Title: Portfolio Manager

 

OPCO
   
  RICE ACQUISITION HOLDINGS LLC
     
By: /s/ Jamie Rogers
  Name: Jamie Rogers
  Title: Authorized Person

 

Signature Page to First Amendment of Forward Purchase Agreement

 

 

 

SPONSOR
   
  RICE ACQUISITION SPONSOR LLC
     
By: /s/ Jamie Rogers
  Name: Jamie Rogers
  Title: Authorized Person

 

Signature Page to First Amendment of Forward Purchase Agreement

 

 

 

 

 

Exhibit 99.1

 

Rice Acquisition Corp. to Combine Aria Energy and Archaea Energy into the Industry-Leading Renewable Natural Gas Platform

 

· Combined company is a proven and profitable business today with estimated 2021 EBITDA of $65 million, which is expected to grow to $327 million in 2024.
     
· Expect to contract 60-70% of renewable natural gas volumes under 10-20 year, fixed-price arrangements with investment-grade buyers.
     
· At $10 per share, the combined Company’s enterprise value of $1.15 billion implies a valuation multiple of 8.2x estimated 2022 EBITDA and 3.5x estimated 2024 EBITDA.
     
· Rice Acquisition Corp.’s heavily oversubscribed and upsized PIPE obtained $300 million in commitments led by institutional investors including The Baupost Group, BNP Paribas Energy Transition Fund, CIBC, Goldman Sachs Asset Management LP1, and Wellington Management.

 

Carnegie, PA, April 7, 2021 – Rice Acquisition Corp. (NYSE: RICE) (“RAC”), a special purpose acquisition company focused on the energy transition sector, today announced an agreement to enter into a business combination with Aria Energy LLC (“Aria”) and Archaea Energy LLC (“Archaea LLC”), which will create the industry-leading renewable natural gas (“RNG”) platform. The combined Company will be named Archaea Energy (the “combined Company”), with an experienced executive team comprised of leaders from Archaea LLC and Aria. The transaction is expected to close in the third quarter of 2021 and the combined Company plans to be listed on the NYSE under the ticker symbol “LFG”.

 

RAC is led by former executives of Rice Energy, which merged with EQT (NYSE: EQT) to become the largest U.S. natural gas producer. Daniel Rice IV, CEO of RAC, led Rice Energy’s growth from a start-up to the eventual $10 billion sale to EQT in 20172.

 

“Early in our acquisition search we identified landfill gas (“LFG”) as the most predictable, cost-effective, and environmentally beneficial feedstock to help organizations achieve their carbon neutrality goals,” said RAC CEO Daniel Rice. “We became determined to create a leading RNG platform, and I believe bringing together Archaea LLC and Aria goes beyond that; I think we’ve created a new paradigm in RNG development. The combination of these companies’ respective skills and assets instantly creates a proven, technology-driven LFG developer that’s operating at scale today with a deep inventory of highly economic, low-risk growth projects to meet the ever-growing RNG demand. The combined Company’s industry-leading growth is supported with innovative, long-term fixed-price offtake agreements to ensure it achieves its economic goals, while also helping its customers achieve their long-term climate goals. This places Archaea on a short list of companies that can generate sustainable and compelling risk-adjusted returns while significantly reducing GHG emissions.”

 

Nicholas Stork, co-founder and CEO of Archaea LLC and CEO of the combined Company, added: “We are on a mission to transform the role of RNG in empowering organizations to decarbonize and achieve their sustainability goals. In Aria, we found an irreplicable asset base and a team who shares our vision to harness the power of RNG and help both landfill owners/operators and investment-grade buyers of RNG meet their sustainability targets. The new capital raised will accelerate the combined Company’s growth and solidify its leadership in the industry.”

 

 

  1 Acting as investment advisor on behalf of client accounts.
2 Rice Energy sold to EQT Corporation in 2017 for $8.2bn. Rice Midstream Partners sold to EQT Midstream Partners in 2018 for $2.4bn.

 

 

 

 

Investment Highlights:

 

· The business combination is expected to create the industry-leading platform in the U.S. to capture and convert waste emissions from landfills and anaerobic digesters into low-carbon RNG, electricity, and green hydrogen.
     
· Aria, a portfolio company of funds managed by the Infrastructure and Power strategy of Ares Management Corp (NYSE: ARES) (“Ares”), is being acquired for $680 million and brings a comprehensive portfolio of operational LFG assets, best-in-class operating experience, and a deep inventory of greenfield LFG-to-RNG projects and electric-to-RNG conversion opportunities.
     
· Archaea LLC is being acquired for $347 million and brings leading RNG technology professionals, a deep inventory of LFG-to-RNG projects – including the world’s largest RNG plant currently under construction (“Project Assai”) – an innovative commercial strategy, groundbreaking low-cost carbon sequestration, and negative-carbon LFG-to-green hydrogen development projects currently in the design stage.
     
· Pro forma for the transaction, the combined Company will have over $350 million of cash on the balance sheet, providing ample liquidity to fund its pipeline of development projects and bridging the combined Company to free cash flow generation starting in 2023.
     
· The combined Company will be led by a majority-independent board consisting of executives Daniel J. Rice, IV, Kyle Derham, Kate Jackson, Joe Malchow, and Jim Torgerson of RAC; Nicholas Stork, CEO of Archaea; and Scott Parkes of Ares.

 

Additional Information on Acquisition Rationale and Process

 

Archaea Energy, the combined Company, is tackling one of the world’s most important climate problems. U.S. landfills are expected to grow from approx. 8 billion tons of waste in place in 2020 to 13 billion tons by 2050, which is expected to increase LFG emissions from 1.9 Bcf/d in 2020 to 2.8 Bcf/d by 2050. Capturing these emissions, comprised of ~50% methane and ~35% CO2, has the same environmental benefit as electrifying 75% of U.S. passenger vehicles.

 

LFG has a very predictable, 20-30 year production profile, and when coupled with continued growth in U.S. landfill waste for the next 20-30 years, creates 40-60 years of unparalleled LFG feedstock visibility. Compared to other renewable fuels, LFG-to-RNG developed by the combined Company is lower cost, more predictable, better for the environment, and more effective in reversing the impacts of climate change.

 

Aria Energy LLC is a market leader in the North American LFG sector, having developed or constructed more than 50 projects over the last 25 years. Aria is led by seasoned industry veterans including Richard DiGia, CEO, and has approximately 100 highly trained plant operators across the U.S., with a strong safety and environmental track record. Under Ares’ 13-years of ownership, Aria has grown through internal project development and the strategic consolidation of several of the largest and most experienced companies in the LFG-to-renewable energy space, including Landfill Energy Systems, Innovative Energy Systems, and Timberline Energy.

 

Andrew Pike, co-head of Ares’ Infrastructure and Power strategy, stated: “With the combination of Archaea LLC and Aria, RAC has created a scaled and growth-oriented premier platform that will be guided by a seasoned management team positioned for even greater success through continued decarbonization of the natural gas grid.”

 

Archaea Energy LLC was founded in 2018 by landfill owners and RNG technologists with the goal of building a cost-efficient solution for generating high-BTU RNG projects in the U.S. Archaea LLC’s development strategy and industry-leading gas separation expertise enables it to capture and convert LFG emissions with lower development costs. Its team helped design, build, or develop key gas processing systems for the majority of U.S. RNG facilities in operation today. Archaea LLC is actively tapping into a backlog of RNG demand via long-term fixed-price contracts, thereby reducing risks from RIN price volatility, a key differentiator of its commercial strategy compared to other RNG developers. Archaea LLC is also actively developing carbon sequestration projects and deploying on-site renewable power generation to further reduce the carbon intensity of its RNG to zero or negative. Archaea LLC believes it can develop green hydrogen from LFG and RNG at industry-leading costs by deploying proven technology.

 

Archaea LLC is currently majority-owned and controlled by Rice Investment Group, an affiliate of RAC. RAC created a Special Committee, comprised of the independent directors of RAC (the “Special Committee”), to negotiate the business combination of Aria, Archaea LLC, and RAC, including the purchase price for Aria and Archaea LLC. The Special Committee engaged Moelis & Company LLC as its independent financial advisor and Richards, Layton and Finger, PA as its independent legal counsel for the business combination. 100% of Rice Investment Group’s equity ownership will be rolled into the transaction, with no secondary proceeds, demonstrating confidence in the combined Company’s long-term value proposition. The Rice family is also investing $20 million in the PIPE.

 

2

 

 

The business combination was recommended to RAC’s board of directors (the “Board”) by the Special Committee, has been approved by the Board based on the Special Committee’s recommendation, and is expected to close in the third quarter of 2021, subject to certain closing conditions, including receipt of approval by holders of a majority of the RAC stock held by stockholders unaffiliated with Rice Investment Group.

 

Debt Financing

 

In addition to the PIPE capital, RAC has secured $340 million of debt commitments from Comerica Bank’s Environmental Services Department.

 

Advisors

 

Moelis & Company LLC acted as financial advisor to the Special Committee. Richards, Layton and Finger PA served as legal counsel to the Special Committee. Kirkland & Ellis LLP served as legal counsel to RAC. Pillsbury Winthrop Shaw Pittman LLP served as legal counsel to Archaea LLC. Barclays acted as financial advisor to Aria. Orrick served as legal counsel to Aria and Ares. Citi and Jefferies LLC acted as lead placement agents and Roth Capital Partners LLC acted as co-placement agent on the PIPE.

 

Investor Presentation

 

For more information, please view the investor presentation here. The Archaea Energy website is www.archaeaenergy.com. A recorded presentation from management discussing the business combination will be available here on April 7th at 6:00pm Eastern Time and a transcript of this webcast will be filed by RAC with the SEC.

 

About Rice Acquisition Corporation

 

Rice Acquisition Corp. is led by former executives of Rice Energy and EQT, the largest natural gas producer in the U.S. We intend to leverage our expertise building industry-leading energy production companies to develop the world’s clean energy supply.

 

About Ares Management Corporation

 

Ares Management Corporation is a leading global alternative investment manager operating integrated groups across Credit, Private Equity, Real Estate and Strategic Initiatives. Ares Management’s investment groups collaborate to deliver innovative investment solutions and consistent, attractive investment returns for fund investors throughout market cycles. As of December 31, 2020, Ares Management’s global platform had approximately $197 billion of assets under management with more than 1,450 employees operating across North America, Europe, Asia Pacific and the Middle East. For more information, please visit www.aresmgmt.com.

 

3

 

 

About Ares Infrastructure and Power

 

Ares Infrastructure and Power (“AIP”) provides flexible capital across the climate infrastructure, natural gas generation, and energy transportation sectors. AIP leverages a broadly skilled and cohesive team of more than 25 investment professionals with deep domain experience and has deployed over $9 billion of capital in more than 200 different infrastructure and power assets and companies as of December 31, 2020.

 

Investor Relations

 

Kyle Derham

kyle@riceinvestmentgroup.com

 

Media Relations

 

Montieth M. Illingworth

montieth@montiethco.com

 

Forward Looking Statements

 

This press release includes “forward looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of words such as “may,” “might,” “will,” “would,” “could,” “should,” “forecast,” “intend,” “seek,” “target,” “anticipate,” “believe,” “expect,” “estimate,” “plan,” “outlook,” and “project” and other similar expressions, although not all forward looking statements contain such identifying words. All statements other than historical facts are forward looking statements. Such statements include, but are not limited to, statements concerning the business combination; the PIPE offering; market conditions and trends; earnings, performance, strategies, prospects and other aspects of the businesses of RAC, Aria, Archaea LLC and the combined Company. Forward looking statements are based on current expectations, estimates, projections, targets, opinions and/or beliefs of RAC, Archaea LLC and/or Aria, and such statements involve known and unknown risks, uncertainties and other factors.

 

The risks and uncertainties that could cause those actual results to differ materially from those expressed or implied by these forward looking statements include, but are not limited to: (a) the occurrence of any event, change or other circumstances that could give rise to the termination of the proposed business combination and any transactions contemplated thereby; (b) the ability to complete the transactions contemplated by the proposed business combination due to the failure to obtain approval of the stockholders of RAC, or other conditions to closing of the proposed business combination; (c) the ability to meet NYSE’s listing standards following the consummation of the transactions contemplated by the proposed business combination; (d) the risk that the proposed transactions disrupt current plans and operations of Aria, Archaea or their subsidiaries as a result of the announcement and consummation of the transactions described herein; (e) the ability to recognize the anticipated benefits of the proposed transactions, which may be affected by, among other things, competition, the ability of the combined Company to grow and manage growth profitably and retain its management and key employees; (f) costs related to the proposed business combination and related transactions; (g) the possibility that Aria or Archaea may be adversely affected by other economic, business, and/or competitive factors; (h) the combined Company’s ability to develop and operate new projects; (i) the reduction or elimination of government economic incentives to the renewable energy market; (j) delays in acquisition, financing, construction and development of new projects; (k) the length of development cycles for new projects, including the design and construction processes for the combined Company’s projects; (l) the combined Company’s ability to identify suitable locations for new projects; (m) the combined Company’s dependence on landfill operators; (n) existing regulations and changes to regulations and policies that effect the combined Company’s operations; (o) decline in public acceptance and support of renewable energy development and projects; (p) sustained demand for renewable energy; (q) impacts of climate change, changing weather patterns and conditions, and natural disasters; (r) the ability to secure necessary governmental and regulatory approvals; and (s) other risks and uncertainties indicated in the preliminary or definitive proxy statement, including those under “Risk Factors” therein, and other documents filed or to be filed with the SEC by RAC.

 

The foregoing list of factors is not exclusive. You should not place undue reliance upon any forward looking statements, which speak only as of the date made. RAC, Aria, Archaea LLC and the combined Company do not undertake or accept any obligation or undertaking to update or revise the forward looking statements set forth herein, whether as a result of new information, future events or otherwise, except as may be required by law.

 

4

 

 

Non-GAAP Financial Measures

 

This press release includes non-GAAP measures, such as EBITDA, that are not prepared in accordance with accounting principles generally accepted in the United States (“GAAP”) and that may be different from non-GAAP measures used by other companies. These non-GAAP measures should not be considered in isolation from, or as an alternative to, financial measures prepared in accordance with GAAP. Forward looking non-GAAP measures are presented without reconciliation to the comparable GAAP measures due to the inherent difficulty in forecasting and quantifying certain amounts that are necessary for such reconciliation, and RAC is unable to provide such reconciliation without unreasonable effort.

 

Important Information about the Transaction and Where to Find It

 

In connection with the proposed business combination, RAC intends to file a preliminary proxy statement and a definitive proxy statement with the Securities and Exchange Commission (the “SEC”). This press release does not contain all the information that should be considered concerning the proposed combination, and it is not intended to provide the basis for any investment decision or any other decision regarding the proposed combination. RAC’s stockholders and other interested persons are advised to read, when available, the preliminary proxy statement, the amendments thereto, and the definitive proxy statement and documents incorporated by reference therein filed in connection with the proposed combination, as these materials will contain important information about the combined Company, RAC, Aria, Archaea LLC and the proposed combination. When available, the definitive proxy statement will be mailed to the stockholders of RAC as of a record date to be established for voting on the proposed combination. Stockholders will also be able to obtain copies of the preliminary proxy statement, the definitive proxy statement and other documents filed with the SEC that will be incorporated by reference therein, without charge, once available, at the SEC’s website at http://www.sec.gov.

 

Participants in the Solicitation

 

RAC, Aria and Archaea LLC and their respective directors, executive officers and other employees may be deemed to be participants in the solicitation of proxies of RAC’s stockholders in connection with the proposed business combination. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of RAC’s stockholders in connection with the proposed combination, including their names and a description of their interests in the proposed combination, will be set forth in the proxy statement relating to such transaction when it is filed with the SEC.

 

No Offer or Solicitation

 

This press release shall not constitute a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the proposed business combination. This press release shall not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any states or jurisdictions in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of section 10 of the Securities Act of 1933, as amended.

 

 

5

 

Exhibit 99.2

 

INVEST O R PR E SEN T A TION APRIL 2021 A R C H A E A ENERGY Renewable Energy. Redefined.

 

 

1 Disclaimer This investor presentation (the “Investor Presentation”) is for informational purposes only and does not constitute an offer to sell, a solicitation of an offer to buy, or a recommendation to purchase any equity, debt or other financial instruments of Rice Acquisition Corp . (the “SPAC”), Archaea Energy LLC (“Archaea”) or Aria Energy LLC (“Aria” and together with Archaea and their respective parent companies, subsidiaries and associated companies, the “Companies”), which offer may only be made at the time a qualified offeree receives definitive offering documents and other materials (collectively, the “Offering Materials”) . Without limiting the generality of the foregoing, this Investor Presentation does not constitute an invitation or inducement of any sort to any person in any jurisdiction in which such an invitation or inducement is not permitted or where the SPAC and the Companies are not qualified to make such invitation or inducement . In the event of any conflict between this Investor Presentation and information contained in the Offering Materials, the information in the Offering Materials will control and supersede the information contained in this Investor Presentation . No person has been authorized to make any statement concerning the SPAC and the Companies other than as will be set forth in the Offering Materials, and any representation or information not contained therein may not be relied upon . An investment in the Companies should be made only after careful review of the information contained in the Offering Materials . General This Investor Presentation is strictly confidential and may not be copied, reproduced, redistributed or passed on, in whole or in part, or disclosed, directly or indirectly, to any other person or published or for any purpose without the express written approval of the SPAC and the Companies . By accepting this Investor Presentation, the recipient agrees that it will, and will cause its representatives and advisors to, use this Investor Presentation, as well as any information derived by the recipient from this Investor Presentation, only for initial due diligence regarding the SPAC and the Companies in connection with ( 1 ) the SPAC’s proposed business combination (the “Business Combination”) with one or more of the Companies and ( 2 ) the SPAC’s proposed private offering of public equity (the “PIPE Offering”) to a limited number of investors that qualify as QIBs and Institutional Accredited Investors (each as defined below) and for no other purpose and will not, and will cause their representatives and advisors not to, divulge this Investor Presentation to any other party . This Investor Presentation may not be reproduced or used for any other purpose . The information contained herein does not purport to include all the information that may be important to you in connection with your consideration as to whether to invest in the PIPE Offering . This Investor Presentation is based upon financial information reasonably available to the Companies and shared with the SPAC for inclusion herein as of the date hereof . The data contained herein is derived from information provided by the Companies and various third - party sources and is included herein for illustrative purposes only . The delivery of this Investor Presentation shall not, under any circumstances, create any implication that the Investor Presentation is correct in all respects, including as of any time subsequent to the date hereof, and the SPAC and the Companies do not undertake any obligation to update such information at any time after such date . Certain information in this Investor Presentation may be based upon information from third - party sources which we consider reliable, but none of the SPAC nor the Companies represent that such information is accurate, complete or sufficient for any purpose and it should not be relied upon as such . Any historical price(s) or value(s) are as of the date indicated unless stated otherwise . No representation is made as to the reasonableness of the assumptions made within or the accuracy or completeness of any projections, modeling or back - testing or any other information contained herein . All levels, prices and spreads are historical and do not represent current market levels, prices or spreads, some or all of which may have been changed since the date hereof . Any data on past performance, modeling or back - testing contained herein is not an indication as to future performance and should not be relied upon as an indication of future performance . Neither the SPAC nor any of the Companies assumes any obligation to update the information, back - testing, models or assumptions underlying the foregoing in this Investor Presentation . Neither the SPAC nor any of the Companies nor any of their respective affiliates makes any representation or warranty, express or implied, as to the accuracy or completeness of the Investor Presentation and nothing contained herein should be relied upon as a promise or representation as to past or future performance of the SPAC, the Companies or any other entity referenced herein . In particular, no representation or warranty is made with respect to the reasonableness of any estimates, forecasts, illustrations, prospects or returns, which should be regarded as illustrative only, or that any profits or projections will be realized . The metrics regarding select aspects of the SPAC’s and the Companies’ operations were selected by the SPAC and the Companies on a subjective basis . Such metrics are provided solely for illustrative purposes to demonstrate elements of the SPAC’s and the Companies’ businesses, are incomplete, and are not necessarily indicative of the SPAC’s and Companies’ performance or future performance or overall operations . There can be no assurance that historical trends will continue . An investment in the PIPE Offering entails a high degree of risk and no assurance can be given that investors will receive a return on their capital and investors could lose part or all of their investment . This Investor Presentation is being distributed to selected recipients only and is not intended for distribution to, or use by any person or entity in, any jurisdiction or country where such distribution or use would be contrary to local law or regulation . Neither this Investor Presentation nor any part or copy of it may be taken or transmitted into the United States or published, released, disclosed or distributed, directly or indirectly, in the United States, , except to a limited number of qualified institutional buyers (“QIBs”), as defined in Rule 144 A under the Securities Act of 1933 , as amended (the “Securities Act”), or institutional “accredited investors” (“Institutional Accredited Investors”) within the meaning of Regulation D under the Securities Act . As of the date hereof, none of the information contained herein has been filed with the U . S . Securities and Exchange Commission, any securities administrator under any securities laws of any U . S . or non - U . S . jurisdiction or any other U . S . or non - U . S . governmental or self - regulatory authority . No such governmental or self - regulatory authority will pass on the merits of the PIPE Offering or other offering of interests in the Companies or the adequacy of the information contained herein . Any representation to the contrary is unlawful . EACH RECIPIENT ACKNOWLEDGES AND AGREES THAT IT IS RECEIVING THIS INVESTOR PRESENTATION ONLY FOR THE PURPOSES STATED ABOVE AND SUBJECT TO ALL APPLICABLE CONFIDENTIALITY OBLIGATIONS AS WELL AS THE UNITED STATES SECURITIES LAWS PROHIBITING ANY PERSON WHO HAS RECEIVED MATERIAL, NON - PUBLIC INFORMATION FROM PURCHASING OR SELLING SECURITIES OF THE SPAC OR FROM COMMUNICATING SUCH INFORMATION TO ANY OTHER PERSON UNDER CIRCUMSTANCES IN WHICH IT IS REASONABLY FORESEEABLE THAT SUCH PERSON IS LIKELY TO PURCHASE OR SELL SUCH SECURITIES . Presentation of Financial and Other Information Unless otherwise indicated herein, this Investor Presentation presents financial and other information of the Companies on a pro forma combined basis and not a historical pro forma or standalone basis . No independent registered public accounting firm has audited, reviewed, compiled, or performed any procedures with respect to the combined pro forma financial information of the Companies for the purpose of inclusion in this Investor Presentation, and accordingly, neither the SPAC nor any of the Companies expresses an opinion or provides any other form of assurance with respect thereto for the purpose of this Investor Presentation . The pro forma combined data included herein has not been prepared in accordance with GAAP and does not reflect or predict actual results of a combined audit in accordance with GAAP, which actual results could materially differ from the data presented herein . Such information is included for illustrative purposes only . Unless otherwise specified herein, the amounts, percentages, leverage ratios, descriptions, estimates, assumptions and projections contained herein assume no redemptions and exclude the dilutive impact of 11 . 9 million public warrants and 6 . 8 million SPAC sponsor warrants . Illustrative amounts may fluctuate as a result of redemptions, including an increase in the amount of debt . As a result, the amounts, percentages, leverage ratios, descriptions, estimates, assumptions and projections contained herein are subject to adjustments that could cause actual results to differ from the amounts, percentages, leverage ratios, descriptions, estimates, assumptions and projections discussed or implied herein . Certain aspects of the calculation of the pro forma combined financial information presented herein may be subject to change, but neither the Companies nor the SPAC deems such changes material to (i) an investor’s understanding of the pro forma combined financial information of the Companies, (ii) an investor’s understanding of the potential merits of the proposed Business Combination or (iii) an investor’s decision to participate in the proposed PIPE Offering . Neither the SPAC nor any of the Companies undertakes or assumes any obligation to update any of the financial information presented herein . In the event of any inconsistency between the Companies’ pro forma financial information presented herein and the Companies’ financial information presented in the proxy statement which will be filed in connection with the Business Combination (the “Merger Proxy”), the Merger Proxy shall govern . All information provided in this Investor Presentation is qualified in all respects by the information set forth in the Merger Proxy and the other documents attached thereto or incorporated by reference therein . You are strongly encouraged to carefully review and consider all of the information provided or incorporated by reference in the Merger Proxy when available . Use of Projections This Investor Presentation contains pro forma financial information, financial forecasts and other projections (collectively “Projections”) prepared by the Companies with respect to one or more Companies including on a combined basis . None of the Companies’ or the SPAC’s independent registered public accounting firms have audited, reviewed, compiled, or performed any procedures with respect to the Projections for the purpose of their inclusion in this Investor Presentation, and accordingly, neither the SPAC nor any of the Companies expresses an opinion or provides any other form of assurance with respect thereto for the purpose of this Investor Presentation . These Projections should not be relied upon as being necessarily indicative of future results with respect to any Company on a standalone basis or with respect to the combined Companies . The Projections presented herein are provided solely for illustrative purposes, reflect the current beliefs of the applicable Companies as of the date hereof, and are based on a variety of assumptions and estimates about, among others, future operating results, market conditions, any related transaction costs, all of which may differ from the assumptions on which the Projections herein are based . None of the Companies assumes any obligation to update the Projections or information, data, models, facts or assumptions underlying the foregoing in this Investor Presentation .

 

 

2 Disclaimer (cont’d) Any financial projections in this Investor Presentation are forward - looking statements that are based on assumptions that are inherently subject to significant uncertainties and contingencies, many of which are beyond the SPAC’s and the Companies’ control . While all projections are necessarily speculative, the SPAC and the Companies believe that the preparation of prospective financial information involves increasingly higher levels of uncertainty the further out the projection extends from the date of preparation . The assumptions and estimates underlying the projected results are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections . There are numerous factors related to the markets in general or the implementation of any operational strategy that cannot be fully accounted for with respect to the Projections herein . Any targets or estimates are therefore subject to a number of important risks, qualifications, limitations, and exceptions that could materially and adversely affect the SPAC and the Companies’ performance . Moreover, actual events are difficult to project and often depend upon factors that are beyond the control of the SPAC and the applicable Company and its affiliates . The performance projections and estimates are subject to the ongoing COVID - 19 pandemic, and have the potential to be revised to take into account further adverse effects of the COVID - 19 pandemic on the future performance of the SPAC and the applicable Company . Projected returns and estimates are based on an assumption that public health, economic, market, and other conditions will improve ; however, there can be no assurance that such conditions will improve within the time period or to the extent estimated by the SPAC and the Companies . The full impact of the COVID - 19 pandemic on future performance is particularly uncertain and difficult to predict, therefore actual results may vary materially and adversely from the Projections included herein . Cautionary Language Regarding Forward Looking Statements This Investor Presentation includes “forward looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995 . Forward - looking statements may be identified by the use of words such as “may,” “might,” “will,” “would,” “could,” “should,” “forecast,” “intend,” “seek,” “target,” “anticipate,” “believe,” “expect,” “estimate,” “plan,” “outlook,” and “project” and other similar expressions that predict or indicate future events or trends or that are not statements of historical matters . Statements other than historical facts, including, but not limited to, those concerning (i) the Business Combination, (ii) the PIPE Offering, (iii) market conditions, (iv) the revenues, earnings, performance, strategies, prospects and other aspects of the businesses of the SPAC and the Companies or (v) trends, consumer or customer preferences or other similar concepts with respect to the SPAC, the Companies or the Business Combination, are based on current expectations, estimates, projections, targets, opinions and/or beliefs of the SPAC and the applicable Companies or, when applicable, of one or more third - party sources . Such statements involve known and unknown risks, uncertainties and other factors, and undue reliance should not be placed thereon . The risks and uncertainties that could cause those actual results to differ materially from those expressed or implied by these forward - looking statements include, but are not limited to, ( 1 ) our ability to develop and operate new renewable energy projects, ( 2 ) reduction or elimination of government economic incentives to the renewable energy market, ( 3 ) delays in acquisition, financing, construction and development of new projects, ( 4 ) the length of development cycles for new projects, including the design and construction processes for our projects, ( 5 ) identifying suitable locations for new projects, ( 6 ) dependence on landfill operators, ( 7 ) existing regulation and changes to regulations and policies that effect our operations, ( 8 ) decline in public acceptance and support of renewable energy development and projects, ( 9 ) sustained demand for renewable energy and ( 10 ) impacts of climate change, changing weather patterns and conditions, and natural disasters . You are cautioned not to place undue reliance upon any forward - looking statements, which, unless otherwise indicated herein, speak only as of the date of this Investor Presentation . Neither the SPAC nor any of the Companies commits to update or revise the forward - looking statements set forth herein, whether as a result of new information, future events or otherwise, except as may be required by law . Forward - looking statements and discussions of the business environment and management strategy of the SPAC and Companies included herein (e . g . , with respect to financial markets, business opportunities, demand, investment pipeline and other conditions) may materially differ as a result of the severe and ongoing COVID - 19 pandemic . The full impact of the COVID - 19 pandemic is particularly uncertain and difficult to predict, therefore such forward - looking statements do not reflect its ultimate potential effects, which may substantially and adversely impact the performance of the SPAC and the Companies . Note on Performance/Statistics and Use of Non - GAAP Financial Measures Past performance is not indicative of future results . Unless otherwise specified herein, performance figures included herein are presented on a forward - looking, pro forma basis and do not reflect any events subsequent to the date hereof, including the continued impact of the COVID - 19 pandemic and further deterioration of global economic conditions . The full impact of the COVID - 19 pandemic is particularly uncertain and difficult to predict, but may have an adverse effect on the future performance of the SPAC and the Companies . This Investor Presentation includes certain non - GAAP financial measures, such as EBITDA, EBITDA margin and free cash flow, that are not prepared in accordance with accounting principles generally accepted in the United States (“GAAP”) and that may be different from non - GAAP financial measures used by other companies . Each of the SPAC and the Companies believes that the use of these non - GAAP financial measures provides an additional tool for investors and potential investors to use in evaluating ongoing operating results and trends of each Company . These non - GAAP measures should not be considered in isolation from, or as an alternative to, financial measures determined in accordance with GAAP . Forward - looking non - GAAP financial measures are presented on a non - GAAP basis without reconciliations of such forward - looking non - GAAP measures due to the inherent difficulty in forecasting and quantifying certain amounts that are necessary for such reconciliation . The SPAC and the Companies are unable to provide reconciliations to the most directly comparable GAAP measures without unreasonable effort due to the uncertainty if the necessary information of such calculation . Use of Trademarks and Other Intellectual Property All registered or unregistered service marks, trademarks and trade names referred to in this presentation are the property of their respective owners, and the use herein does not imply an affiliation with, or endorsement by, the owners of these service marks, trademarks and trade names . Third - party logos included herein may represent past customers, present customers or may be provided simply for illustrative purposes only . Inclusion of such logos does not necessarily imply affiliation with or endorsement by such firms or businesses . There is no guarantee that either the SPAC or any of the Companies will work, or continue to work, with any of the firms or businesses whose logos are included herein in the future . The Potential Impact of the COVID - 19 Pandemic The ongoing and severe COVID - 19 pandemic has caused a worldwide public health emergency and a global economic contraction . In an effort to contain the COVID - 19 pandemic, national, regional and local governments, as well as private businesses and other organizations, have taken severely restrictive measures, including instituting local and regional quarantines, restricting travel (including closing certain international borders), prohibiting public activity (including “stay - at - home” and similar orders), and ordering the closure of large numbers of offices, businesses, schools, and other public venues . As a result, the COVID - 19 pandemic has caused a significant decline in global economic production and activity of all kinds and has contributed to both volatility and a severe decline in all financial markets . Among other things, these unprecedented developments have resulted in material reductions in demand across most categories of consumers and businesses, dislocation (or in some cases a complete halt) in the credit and capital markets, labor force and operational disruptions, slowing or complete idling of certain supply chains and manufacturing activity, steep increases in unemployment levels in the United States and several other countries, and strain and uncertainty for businesses and households, with a particularly acute impact on industries dependent on travel and public accessibility, such as transportation, hospitality, tourism, retail, sports and entertainment . The ultimate impact of the COVID - 19 pandemic — and the resulting precipitous decline in economic and commercial activity across nearly all of the world’s largest economies — on global economic conditions, and on the operations, financial condition and performance of any particular industry or business, is impossible to predict, although ongoing and potential additional materially adverse effects, including a further global or regional economic downturn (including a recession) of indeterminate duration and severity, are possible . The extent of the COVID - 19 pandemic’s impact will depend on many factors, including the ultimate duration and scope of the global public health emergency and the restrictive countermeasures being undertaken, as well as the effectiveness of vaccination programs and other governmental, legislative and financial and monetary policy interventions designed to mitigate the crisis and address its negative externalities, all of which are evolving rapidly and may have unpredictable results . Even if and as the spread of the COVID - 19 virus itself is substantially contained and economies are able to “re - open,” it will be difficult to assess what the longer - term impacts of an extended period of unprecedented economic dislocation and disruption will be on future macro - and micro - economic developments, the health of certain industries and businesses, and commercial and consumer behavior . The ongoing COVID - 19 crisis and any other future public health emergency could have a significant adverse impact and result in significant losses to the SPAC and the Companies . The extent of the impact of the COVID - 19 crisis on the SPAC’s and the Companies’ operational and financial performance will depend on many factors, all of which are highly uncertain and cannot be predicted, and this impact may include significant reductions in revenue and growth, unexpected operational losses and liabilities, impairments to credit quality and reductions in the availability of capital . These same factors may limit the ability of the SPAC and the Companies to source, diligence and execute new transactions, and governmental mitigation actions may constrain or alter existing financial, legal and regulatory frameworks in ways that are adverse to the SPAC’s and Companies’ financial and operational objectives . They may also impair the ability of the SPAC, the Companies or their respective counterparties to perform their respective obligations under debt instruments and other commercial agreements (including their ability to pay obligations as they become due), potentially leading to defaults with uncertain consequences . In addition, the operations of the SPAC and the Companies may be significantly impacted, or even temporarily or permanently halted, as a result of government quarantine measures, restrictions on travel and movement, remote - working requirements and other factors related to a public health emergency, including its potential adverse impact on the health of any such entity’s personnel . These measures may also hinder the SPAC’s and the Companies’ ability to conduct their affairs and activities as they normally would, including by impairing usual communication channels and methods, hampering the performance of administrative functions such as processing payments and invoices, and diminishing their ability to make accurate and timely projections of financial performance .

 

 

T ransact i on Su m mary and T oday ’ s Presen t ers Dan ny Ri c e CEO, Director Kyle Derham President, CFO, Director Su m m a ry of Proposed Transaction A R C H A E A E N E R G Y • T h e p r o p o sed t r a nsa c ti o n w o u ld involve the simult a n e o us a c q u isiti o n of Aria Ene r gy a n d Ar c h a ea Ene r gy by Rice Acqu isiti o n C o r p o r a ti o n (NYSE: RICE), a publicly listed SPAC with $238 million of cash held in t r u st to f o rm t h e in d ust r y - le a d ing r e n e wabl e n a t u r a l g a s (“RN G ”) platform (1) • Archaea Energy LLC is currently majority owned and controlled by Rice Investment Group, an affiliate of RAC’s sponsor • Archaea Energy is seeking a fully committed PIPE of $300 million ($38 million committed from Rice, Saltonstall, and management, which is in addition to $20 million invested by Rice at SPAC IPO) • The transaction will target a closing in Q3 2021 • Comps Sna p shot ( T EV / EBITDA): 2022E (RNG Comps) (2) 2024E (Disruptors Comps) (2) Arc h a e a Me d ia n Arc h a e a Me d ia n 8.2x 31.0x 3.5x 80.7x $1.15bn Pro Forma Ente rp r is e Value $300mm PIPE Offering $327mm 2024 Pro Forma EBITDA (3) 1 Nick Stork CEO Rich Walton President Brian McCarthy CFO and CCO A R C H A E A E N E R G Y 1. The combined entity will be named "Archaea Energy." For the purposes of this presentation, "Archaea" is used to refer to the combined company post - closing (except in content relating to sources and uses and value allocations between the targets). 2. See “Benchmarking and Valuation” section of presentation for definition of comp sets. 3. All financials projections are presented on a pro forma basis for the business combination of Archaea and Aria. The pro forma projections present the Mavrix joint - venture on a consolidated basis net to Archaea’s interest, but has historically been accounted for on an equity - method basis.

 

 

Ill u strative Pro F o rma Ow n ershi p (6) Indicative Transaction Overview Sources ($ millions) RAC SPAC Cash in Trust (1) $238 New Cor p o r a t e De b t (2) $220 Assai Project Financing (3) $133 PIPE $300 Arch a ea Equity Rollover $332 Aria Equity Rollover $230 TOTAL SOURCES $1,453 Uses ($ millions) T o t al Aria Conside r a t ion $680 T o t al Arc h a e a Co n sider a ti o n $347 Cash to Balan c e She e t (4) $364 T r a nsa c ti o n / Fin a n c ing F e e s (5) $62 TOTAL USES $1,453 ($ millions) Sha r e Price $10.00 (x) Pro F o rma FD S O (mm ) (8) 116 Pro F o r ma Equity V alue $1,159 Plus: Pro F o r ma De b t $353 L e s s : Pro F o rma Cash ($364) Pro F o rma Ente r pr i se V al u e $1,148 Arc h a e a Eq u ity Roll o ver 29% PIPE ( I n c l. Rice & S alt o nst a ll) 26% SPAC Shareholders 20% Aria Equity Rollover 20% S P AC F o u n d e r Sh a r e s (7) 5% 2 S o ur c es & Uses Ill u strative Pro F or m a V a l ua ti o n Rice Family, Salt o n stal l , a n d Management to own ~40% of Pro Forma Company (9) 1. Assumes no RAC stockholders exercise redemption rights to receive cash from the trust account. 2. Corporate Term Loan facility expected to price at L + 325bps. 3. $72.5mm of Assai project financing closed January 2021 and an incremental $60.8mm financing is expected to close on April 5, 2021. 4. Assai project financing cash is effectively restricted cash to be utilized pursuant to the terms of the Assai financings, a portion of which has already been spent on project - related construction costs. 5. Illustratively assumes financing fees on Assai project financing, new debt, and PIPE par issuance amounts. 6. Post - transaction ownerships calculated using a nominal share price of $10.00, on a pre - diluted basis, which excludes the impact of warrants, potential management equity compensation, etc. 7. Includes shares held by RAC sponsor, independent directors, and Atlantic Trust. 8. Warrant dilution calculated using the treasury stock method and is comprised of 18,883,500 warrants (inclusive of public issuance warrants, private placement warrants, and CIBC FPA public warrants) with a strike price of $11.50 per share. 9. Archaea Energy LLC is currently majority owned and controlled by Rice Investment Group, an affiliate of RAC’s sponsor.

 

 

What W e Like About the Com p any Rice Acquisition Corp’s strategic combination with Aria Energy and Archaea Energy creates the industry - leading developer of renewable natural gas (RNG) 3 1. Please see Appendix A (slide 42) for additional information. 3. Emissions estimates per EPA. Calculation per RAC management. 2. Assumes $1.50/gal RIN pricing and $140/MT LCFS. 4. Source: California Air Resource Board. • Capturing landfill gas (“LFG”) and converting to RNG creates a more sustainable, circular economy • Size of the Prize : Capturing emissions from LFG is environmentally equivalent to electrifying ~75% of U.S. passenger vehicles (3) • RNG is the lowest carbon intensity (“CI”) transportation fuel source (4) Solving Global Cl i mate Problems Proven, Durable Business Model • Combination creates the industry - leading RNG developer that is day 1 prof i tabl e ($40mm EBITDA in 2020E) (1) • Proven operators leveraging proven technology deploying a proven commercial strategy • Landfills provide the lowest cost, most predictable and longest - term feedstock of any renewable fuel • Expect to generate ~$395mm of EBITDA in 2025E (2) (10x increase from 2020E (1) ) under conservative commodity price assumptions, almost entirely from existing asset base • Expect 60 - 70%+ of Archaea ’ s R N G volu m es will be contr acted under fixed - price offtake ar r angements with i nvestment grade customers to limit earnings volatility • Archaea currently has more indica t ed demand in the f orm of long - te r m contr acts than i t s 202 5 E R N G volu m e proj ect i on Predictable, Economic Growth • Entrepreneurial management team pushing the boun d ar i es to create shareholder value • Complemented by the most experienced technical team in the industry having developed 50+ RNG projects • Expanding TAM by significantly reducing development costs and deploying novel technologies including CO 2 sequestration and LFG to Green Hydrogen proj ects at a targeted cost of $1.65/kg Best in Class Management T eam

 

 

Arc h aea Ene r gy At A Glance One of the Largest and Fastest Growing RNG Producers in the World Operating RNG Projects 9 13 Operating Electric Projects 16 Near - Term RNG Projects in Development 25+ 4 LFG $40 $327 OR WA MT ID WY UT NV CA AZ NM CO ND SD NE KS OK TX LA AR MO IA MN WI IL MI IN OH KY TN AL MS GA FL SC VA NC WV PA NY ME CT NJ DE MD VT NH MA RI AK HI NYSE Ticker E B I T DA ($mm) 2020 (1) 2024E High probability prospects capable of generating over $250mm of annual EBITDA not included in projections Source: RAC management. 1. Please see Appendix A (slide 42) for additional information.

 

 

RNG Overview Favorable Macro for Long - Term Success RNG Overview Co m pany Highlights Premiere RNG Producer with Deep Inventory of High - Return Growth Financial Summary Cash Flow + Growth + Value Ben c hm a rking & V aluation

 

 

The Basics of RNG Where Does RNG Come From? • When organic material decomposes in anaerobic conditions a gas is produced often referred to as biogas • Landfill biogas is composed of approximately: – 50% CH 4 (Methane) – 35% CO 2 – 15% O 2 , N 2 and VOCs • Landfil l s pr o du ce predi c t a ble ga s fl o ws, with inc r e a s i ng product i on thr o ugh l a nd fil l cl o sure a nd relatively constant productions rates and c o mposi t i o n for 3 0 - y e a r s post closure • Agricultural manure also produces biogas with much higher methane content but with significantly lower gas volumes Biogas Can Generate Electric i ty Or Be Upgraded to RN G • Using proven technology, biogas is processed onsite to remove impurities and can then be used to generate green electricity • Biogas can be further processed to primarily remove CO 2 and remaining contaminants to increase the methane content and reach pipeline specifications for natural gas • Resulting product is referred to as Renewable Natur a l Gas (RNG) • RNG can be used for many purposes including consumer use, CNG for transportation, electricity, or combined with other proven technology to produce green hydrogen • Because RNG was created from an organic source, in addition to the underlying commodity value, RNG produces Environmental Attributes which can be monetized • RNG is becoming part of the US and worldwide green supply chain with an increasing number of entities looking to enter long - term contracts to buy RNG Archaea obtains exclusive rights to biogas through long - dated 25+ year a g re e m e n t s Archaea sells RNG to multiple types of buyers for v a rious uses H 2 RNG Has Multiple Uses CNG Vehicle Fuel 6

 

 

Proven assets with immediate access to all customers via existing natural gas infrastructure • RNG production for transportation fuel has increased 10x since 2013 (2) • RN G leve r ages exis t i ng natural gas in f ras tr ucture (pipelines, industrial facilities, etc.) allowing RNG to be a drop - in solution for consumers Growing demand from blue - chip customers seeking low - carbon alternatives Demand • Durable regulatory backdrop (Renewable Fuel Standard) has historically provided the economic incentive for RNG development • RNG global mandates driving international adoption • In addition, blue - chip custo m ers are purchas i ng R N G on a lon g - te r m, fixed - price basis , removing subsidy risk from RNG developers Offers optionality to evolve with the energy transition Optionality • T oday : Landfil ls are used to generate green electricity and RNG where there is significant demand from long - term buyers • Potential Future : LFG can be used to create green hydrogen thr ough ste a m - methane reform (SMR) process where the technology is proven, and costs are expected to be below the aspirational targets of other zero - carbon hydrogen producers Perpetual feedstock sources, expected to grow alongside populati on / consumpti on • RNG feedstock is the anerobic decomposition of organic matter • Landfills, waste - water treatment plants, dairy and food digesters represent critical infrastructure and are perpetual feedstock sources of RNG • Feedstock providers aligned with RNG producers via royalty structure Why is RNG an Attrac t ive Sou r ce of E n ergy? Lowest emission baseload fuel with growing TAM • Capturing emissions from LFG is environmentally equival ent to elec t r i fying ~75% of U.S. passenger vehicles (1) • Reliable, baseload energy complements wind and solar development • Landfills provide the lowest cost, most predictable and longest - term feedstock of any renewable fuel 1 2 3 Sustainabi l ity Certainty Del i verabil i ty 4 5 7 1. Source: Emissions estimates per EPA. Calculation per RAC management. 2. Source: The Coalition for Renewable Natural Gas.

 

 

Potential sources of organics used to produce RNG include: Trillion pounds of food is squandered globally each year Using 100% RNG in vehicles can reduce GHG emissions by more than 80% Using 20 % RNG - blend Provides a GHG reduction of between 26 - 30% RNG from some sources are carbon negative, meaning that they sequester GHG during the fuel lifecycle Lower NOx emissions with new “near - zero” engine SOx reduction 90% 99% Natural Gas Provid e s Compared to diesel Why RNG Has Massive Susta i nab i lity Imp a cts 1 Source: The Coalition for Renewable Natural Gas. E m issio n s i n to E n er g y Food Waste 66.5 million tons / year W ast ewate r 17,000 facilities Agri cult ur e Waste 8,000 large farms & dairies Landfill Gas 1,750 landfills …W h ile R e p l a c i n g C a rb o n Int e nsive F u e l s Ap p rox i m ate l y 1/3 of the world’s food goes to waste The U.S. wastes 30 - 40% of its food U.S. ret a ilers & c o nsum e rs discard 133 billion pounds of food annually Sustainability 8

 

 

- 1 50 - 1 00 - 5 0 0 50 100 150 CARBOB Diesel CA Grid Landfil l CNG (RNG) Gasoline Diesel Hydrogen RenewableRenewable Archaea RNG Target Digester CNG (RNG) RNG is the Lowes t - Emission T ranspo r tation Fuel What is a Carbon Int ensi t y (CI ) scor e? • CI Score measures the life cycle GHG emissions of CO 2 e per unit of fuel (CO 2 e grams per megajoule) • The lower the score, the better Score Observations • RNG carbon intensity is >50% lower than diesel • Electric Vehicles charged on California’s electric grid, produce a CI score of 84 which is far higher than other renewable fuel sources What is the benefit of l owering the CI of fuel? • Cleaner fuel sources will be the greatest benefactors of the continued global decarbonization initiatives and have the highest value to end users • California’s Low Carbon Fuel Standard (LCFS) program is a clear example of this, where the number of monetizable LCFS credits per unit of fuel increases with a lower CI score • Other regulatory bodies are adopting similar programs, which provide greater incentives to cleaner fuels How are we lower i ng our CI s core? • Carbon Capture (primarily via sequestration) 2 – Ge n era t es ~$50/ton of v alue f or CO sequeste r ed (45Q program) • Utilizing onsite solar power in lieu of electricity • Archaea is developing LFG and Digester to RNG projects that could yield the lowest CI scores ever awarded by CA • Lower CI = More LCFS credits = Higher Realized RNG Price 1 Source: IEA and EPA. Chart using data per the California Air Resource Board (CARB) as of March 2021. Archaea RNG Target per RAC management estimate. Carbon Intensity Ranges of Transportation Fuels (gCO 2 e/MJ) Arch a e a e xpe c ts to a c hi e ve CI scores near 0 through on - site solar power and CO 2 sequestration KEY CI Sc o re Range Wtd. A vg. Midpoint 9 Fossil CNG Sustainability

 

 

Landfill Growth Provides 40Y+ of Feedstock Security for LFG Development The growth in U.S. landfill waste for the next 20 - 30 years, followed by a very predictable methanogenesis profile for the subsequent 20 - 30 years, gives us 4 0 - 60 years of unpre c ed e nted fee d stock vis i bil i ty for RNG 2 U.S. landfill waste continues to grow and is expected to surpass 13 billion tons by 2050 (60% increase from 2020), causing robust growth in LFG (our feedstock), which is expected to exceed 2.7 Bcf/d by 2050 (44% increase from 2020) U.S. A n n u al W aste F or e c a st (MM Tons) D a ily U . S. L a n d fill G a s G e n e rat i on (MMcf/d) 8,176 8,176 8,176 8,176 8,176 8,176 8,176 147 900 1,671 2,472 3,304 4,167 5,063 2020 2035 2050 2025 2030 Cumulative Additions 2040 2045 Landfill - Base 1,867 1,534 1,261 1,037 852 700 576 64 391 727 1,075 1,437 1,813 2,202 2020 2035 2050 2025 2030 Cumulative Additions 2040 2045 Landfill - Base ~60% increase in landfill waste in place Source: World Bank Group, 2018 Report Titled “What a Waste: A Global Snapshot of Solid Waste Management to 2050” and RAC management estimates. 10 ~44% increase in landfill gas production Certainty

 

 

RNG Utilizes Existing Gas Infrastructure to Reach Customers Nationwide University of California (“UC”) launched its Carbon Neutrality Initiative in 2013 with a commitment to cutting greenhouse gas emissions from its buildings and vehicle fleet to net zero by 2025. UC is partnering with Archaea to develop a biomethane project in San Bernardino County that will capture and clean methane from an existing landfill. An on - site treatment plant will turn it into RNG for use on UC campuses. The facility expects to generate 900,000 MMBtus of RNG annually. UC will receive half of the production for 15 years — enough biomethane to replace UC Santa Barbara’s entire current natural gas use. 3 M a p of L F G Proje c ts & Pip e li n e Infrastru c ture Be n efits o f Existing Infrastru c ture • Lower transportation cost + lower emissions • Enables Archaea to physically deliver to strategic customers from coast - to - coast and to markets that place the greatest value on the environmental benefits of our low - emission fuel • Deliverability to every single metroplex in the continental U.S. without needing to build any new interstate pipelines Pi p el i ne o wn e rs are v ery sup p ortive h e lp i ng u s deliver our low - emission RNG to their customers Electricity Direct Use RNG – Pipeline Injection RNG – Local Use Interstate Pipeline Intrastate Pipeline P ue rto Ri c o S o ur c e : EIA. 11 Deliverability

 

 

Cor p or a te Su p p o rt for RNG A c ross Ind u stries Strong Regulatory Environment and Corporate Support Driving RNG Growth 4 “NW Natural is partnering with BioCarbN, a developer and operator of sustainable infrastructure projects, to convert methane from some of Tyson Foods facilities into RNG to heat homes and businesses . ” “These first deals with Tyson are a good start, but we will need to invest in more projects to meet our goals . ” - David Anderson, CEO ( 1 / 19 / 2021 ) “Farms all over the U . S . are looking to convert manure into RNG . In the next 36 months we will have food waste co - digestion systems in each of the top 25 metro areas of the U . S . ” - John Hanselman, Chairman and CEO ( 1 / 5 / 2021 ) 12 Organization Geography T a r g e t or Mand a te 20% RNG by 2030 20% RNG by 2030 15% RNG by 2030, 30% by 2050 15% RNG by 2030 5% RNG by 2025 €4.8bn support scheme for RNG 10% RNG by 2030, 800mm investment 10 State - owned Enterprises 10 Bcm by 2025 Se l e c t Co rp o rate An n o u n c e m e nts Growth in RNG M a n d at e s “Amazon is excited about introducing new sustainable solutions for freight transportation and is working on testing a number of new vehicle types including electric, CNG and others . ” - Company Statement ( 2 / 5 / 2021 ) “The use of RNG is a very important part of UPS’s strategy to increase alternative fuel consumption to be 40 % of total ground fuel purchases by 2025 . We are using both LNG and CNG as bridging fuels to increase our use of RNG . This will have a measurable impact as RNG yields up to a 90 % reduction in lifecycle greenhouse gas emissions when compared to conventional diesel . Using RNG is what will ultimately help UPS meet its 2025 sustainability goals . ” - Mike Whitlatch, Vice President of Global Energy & Procurement ( 2 / 6 / 2020 ) Cl e an City RNG Initiatives Demand “With more than 700 public stations across the U . S . , the Hypertruck ERX leverages a robust natural gas refueling infrastructure . The truck is the only electric Class 8 vehicle that can achieve a net - negative greenhouse gas emissions footprint using RNG . ” - Company Statement ( 6 / 25 / 2020 ) “We are working to increase the amount of RNG that we have on our system to help customers reduce their carbon emissions.” - Kevin Akers, President and CEO (2/3/2021) Source: Publicly available news and press releases.

 

 

Curr e ntly Buying Fixed Price RNG (Regulatory Mandates or Volunteer Programs) RNG Demand Is Expected to Exceed Supply For the Foreseeable Future • Arc h a e a a lr e a d y h a s mo r e i n di c a t ed d e ma n d in the form of long - term fixed price contracts than its 2 0 2 5 E RNG volu me p r o je c t io n d u e t o custo me r s with regulatory or voluntary RNG targets over the next several years 0 10 20 30 40 50 60 70 80 90 100 202 1E 2030E 2021E 2030E Known & Potential Future Customer Demand S o ur c e : RAC m a n a g e ment e stim a tes. 4 Demand Archaea RNG Production Estimated Fixed Price RNG Demand From IG Counterparties & Projected Archaea Supply 13 (Millions of MMBtu/year)

 

 

LFG Crea t es Seven Pote n tial Revenue S ources Direct - Use $ CO 2 (C a rb on D i oxide ) Green Hyd rogen $$$$ On - Site Elect r i city $$ RNG $$$ Enhanced Oil Recovery $ Direct - Use ( W ast e Heat Recovery) $ Flare/Vent $0 Flare/Vent $0 Anaerobi c Dairy Digesters 99% Methane Landfill Gas ~50% CH 4 ~40% CO 2 Sequestration $$ CH 4 (M e th an e ) 5 Archaea is uniquely equipped to convert these emissions into valuable revenue streams On - Site Electricity • Low - cost, baseload cash flows • RNG conversion opportunities • Attractive REC pricing Gre e n Hydr o g e n • Low - cost and low CI hydrogen for transportation and power generation RNG • Long - term, fixed - price contracts • I n vestme n t - g r a d e customers • Favorable D3 RIN pricing + LCFS Pro d u c t Rati ona le Core Archaea Business # of $ indicative of revenue potential 14 Optionality S o ur c e : RAC m a n a g e ment e stim a tes.

 

 

RNG Overview Favorable Macro for Long - Term Success Company H i g h li g h t s Co m pany Highlights Premiere RNG Producer with Deep Inventory of High - Return Growth Financial Summary Cash Flow + Growth + Value Ben c hm a rking & V aluation

 

 

The Industry - Leading RNG Platform Assets / Growth • Industry - leading RNG platform today ($40mm of 2020E EBITDA) (1) • Deep backlog of highly economic and organic development projects u n de rpin e c o n o mic gr o wth to $395 m m of 2025E EBITDA • Expect to have 60 - 70% of reve n ue s lo c k e d - in thro u gh l o n g - term fixed pr i ce o ffta k e d e a l s with investment grade counterparties • Currently have more indicated demand in the form of long - term contracts than current supply Commercial • Led by an entrepreneurial m a na ge m e nt team and complemented by proven technical operators • Deve l o p ing novel te c h n ol o gi e s to exp a nd T AM by l o weri n g development costs, implementing CO 2 sequestration and developing green hydrogen T e a m • High b ar to c a pit a l deployment • Attractive returns secured with fixed price contracts alone • Environmental attributes are free upside to attractive base case • Pr e d i ct a b l e i n p u ts from known 30 + year landfill gas flows • Pre d ict a ble o ut p uts in investment grade RNG contracts Capital Allocation 16 1 2 3 4 S o ur c e : RAC m a n a g e men t . 1. Please see Appendix A (slide 42) for additional information.

 

 

Best - In - Class Management Team Aligned to Create Shareholder Value • Entrepreneurial management team disrupting the RNG spa c e • Best LF G ga s pr o c es s ing minds in the indu st r y l e d by C h a r l i e A nd e r s o n (inventor of multiple critical industry patents) and other technical experts from Air Liquide, Honeywell, Guild, Flir • Path to lower RNG production costs by 40% by 2022 • Pioneered a differentiated commercial strategy to de - risk future development and financing • Archaea Management expected to own > 15 % of pro forma shares outstanding and will invest further • Highly a c c ompli s hed, s e a s on e d ind u st r y veterans • ~100 highly t r a i ned RNG plant o per a t o rs a c r o ss the U.S. • Strong safety and environmental record and processes • Expertise and relationships to economically develop negative CI score digester projects • Expect the vast majority of the Aria Team to be retained at Archaea • T r a ck r e c o rd of bu i l ding en er g y bu s i nes s es f r om s c r a t c h into $1 0 bn + successful public enterprises • Best - in - class operators leveraging data, technology, and sound decision - making to create compelling shareholder returns; proven deal makers, with track record of executing and integrating large - scale energy acquisitions • Rice Energy (NYSE: RICE) outperformed its peers by 95% during its time as a public company; Rice Midstream (NYSE: RMP) outperformed its peers by 40% during its time as a public company • Rice Family invested $20mm in IPO and is investing another $20mm in the PIPE A R C H A E A E N E R G Y 17 1 Team

 

 

Project Backlog Generates Unmatched Risk - Adjusted Economic Returns RNG Upg ra d e / Co n version Proj e cts • $250 mm CapEx • $110 mm EBITDA (1) • 2.3 x Build Multiple RNG Upgrade / Conversion Projects 13 16 Organic RNG Develo pm e nt 25+ High Probability RNG Development Organic RNG Development • $305 mm CapEx • $163 mm EBITDA (1) • 1.9 x Build Multiple High Pr o ba b i lity RNG Development • $600 mm CapEx • $250 mm EBITDA (1) • 2.4 x Build Multiple Source: RAC management. 1. Represents first full - year run rate EBITDA; assumes $1.50 RIN pricing, $140/MT LCFS pricing and long - term fixed price contracts ranging from $10 to $18/mmbtu. High probability RNG development assumes $15/mmbtu fixed price. 18 OR WA MT ID WY UT NV CA AZ NM CO ND SD NE KS OK TX LA AR MO IA MN WI MI IL IN OH KY TN AL MS GA FL SC NC VA WV PA NY ME CT NJ DE MD VT NH MA RI AK HI 2 Assets & Growth

 

 

RNG Development Spotlight: Project Assai Will Be the World’s Largest LFG to R NG Plant • Archaea is currently constructing a high - BTU RNG facility (“Project Assai”) in Dunmore, PA at the Keystone Sanitary Landfill capable of producing ~4.0 - 5.5 million MMBtus/year of RNG • Secured evergreen LFG supply (Keystone and nearby Alliance Landfill) • CI Score (ICF): 38.5 • Y e a r - 1 Run Rate EBIT D A: ~$43 mil l i o n (1) ( a t $ 1 .50 D3 RIN price) • ~ 8 0 % of e xpe c t e d Assai RNG product i on v o l umes a re c o ntr a c t ed thr o ugh l o n g - t e rm fi x ed pri c e a g r e em e nts with IG counterparties totaling 2,750k to 3,527k MMBtu annually (16.6 - year weighted average term) • In January 2021, Archaea closed on an initial debt offering of $72.5 million for Project Assai at an interest rate of 3.75% • Expect to close on $60.8 million of parity debt at an interest rate of 4.47% on April 5 th for total debt proceeds of $133 million (2) • Pro j e c t a c hie v ed IG r a ting • Financing generated strong interest from high - quality, buy - and - hold investor base Project Overview & Asset Details Lon g - T erm Fixed Price Offtake Agreements I G - Rated P roje c t W ith Attractive Financing In Place Buyer Term ( Y ear s) Rating (Agenc y) 10Y Aa2 (Moody’s) 20Y A (S&P) 20Y A3 (Moody’s) S o ur c e : RAC m a n a g e men t . 1. Represents first 12 months of EBITDA following Project ramp - up. 2. Difference in interest rates between Assai I and Assai II project financings is reflective of different average life of financings (6.4 years vs. 16.0 years; structured in relationship to offtake contracts) and market changes in UST benchmark rate. 19 “Partnering with Archaea to bring these RNG volumes into our distribution system provides us with the opportunity to continue growing in an environmentally responsible way, and enhances and expands our commitment to offer energy solutions that are innovative, efficient and beneficial to the environment.” - Hans Bell Pre s i d e nt of UGI U tili ti e s (F eb ru a r y 2021) 2 Assets & Growth

 

 

Commercial Strategy: Meeting the Significant Growth of the Voluntary RNG Market with Long - T erm Fixed Price Cont r acts 20 V ol a tile D - 3 RIN Pri c ing vs. Re p rese n tative Arc h a e a Co n tra c t (2) Curr e nt Part n ers L a t e - Sta g e Disc u s s ion & F u ture Part n ers • Archaea’s commercial strategy differs significantly from other RNG developers who are significantly exposed to RIN price volatility • Archaea has developed a substantial backlog of long - term RNG demand that it is actively converting into long - term fixed price contracts – Archaea’s current and future customers have demand that exceeds Archaea’s 2025E RNG volume forecast • Expect to contract 60 - 70% RNG volumes through 10 - 20 - year fixed price contacts that will limit RIN price volatility and deliver sust a inable r e turns to sha r eh o lde r s $3. 5 0 $3. 0 0 $2. 5 0 $2. 0 0 $1. 5 0 $1. 0 0 $0. 5 0 $0. 0 0 M a r - 15 M a r - 16 M a r - 17 M a r - 18 M a r - 19 M a r - 20 M a r - 21 Cur r e n t Price as of 3/8 / 21: $2.88 3 Commercial 1. Source: RAC management 2. Source: EPA. Budget Ass um p ti on: $1.50 RIN

 

 

$20.43 $13.35 $12.35 $4.09 $3.00 $1.00 $1.50 $2.97 $0.70 $6.16 $9.10 Fix e d Price Gre e n Bro w n Ga s RIN LC F S CO2 Gas Total Reven u e Roy a lty Op erating Expenses Net Operating Income CAPEX (30 - Year Amortization) FCF Margin Archaea’s Commercial Strategy Generates Attractive Risk Adjusted Returns 3/4 Commercial & Cap Allocation S o ur c e : RAC m a n a g e ment c a l c ul a t i o ns. • At budgeted prices (below spot), blended realized price of $20.43/MMBtu • Spot pr i ce s = ~$ 5 0/M M Btu may sup p o r t h ig h e r l o n g - t e rm f i xed price contracts into the future Contracted RNG volumes 65% under long - term fixed price contracts Variable RNG volume 35% exposure to “Environmental Attributes” (RINs, LCFS) Summary of RNG C o m m er c i a l Strategy Projects expected to generate a > 1 0 x R O I over a 30 - year p e ri o d or a > 5 x D isco u n t e d ROI (PV10) Ill u strative Proj e ct Ec o n o mi c s ($/mmbtu) $14.00 $2.00 $2.00 $33.77 $17.59 $12.14 $8.50 $1.50 $1.50 $49.42 $1.50 $15.50 CO2 LC F S RINs Brown Gas LT Fixed 35% Budgeted Environmental Attributes 65% Fixed Price RNG Reve n ue Sensitiviti e s ($/mmbtu) (20% of Revenue) Blended Realized Price Under 65% Contracting Scenario (Total Reve n u e ) Spot Price ( U n c o n t ra c t ed) Budget Fixed Price RNG (Uncontracted) (Fully Contracted) U nbudg e t e d Potential Upside 21 $ $ 2 2 9 9 . . 5 5 9 9 $140 / t o n $1.50 / g a l $200 / t o n $2.88 / g a l

 

 

Archaea is Pursuing Multiple Avenues to Expand & Capitalize on Growing TAM • Archaea’s version 1 (v1) RNG Plant (2022), will l o wer dev e l o pment c o sts 40% (not modeled) • Reductions are driven by decades of know - how, RNG plant experience, proprietary packaging and system designs • v1 design allows for ‘Small, Medium, Large” standardization, leading to better performance, manufacturing approach deployment • 5 0 % r e du c t i o n to standard construction timeline (18 vs. 36 months) Reducing RNG Development Costs by 40% Reducing RNG Development Costs b y 4 0% Lower CI Scores to Maximi z e Revenue Green Hydrogen A R C H A E A E N E R G Y 1 2 3 1 Proprietary Approach K e y: Development cost reductions expand addressable market by 3,000+ projects Arc h a e a v1 Pl a nt 22 S o ur c e : RAC m a n a g e men t .

 

 

2 RNG - to - H Projects Levelized Cost of Green H 2 Comparison (2) 2 (Total, Dispensed; $/kg H ) Uplift from Carbon Intensity Reduction (1) ($/mmbtu) Archaea is Pursuing Multiple Avenues to Expand & Capitalize on Growing TAM (cont’d) Green Hydrogen • Opportunity to achieve $40 per mmbtu+ effective pricing (long - term fixed pricing available with LCFS upside), which we do not model • Archaea’s strategy turns low - flow / closed landfill sites into highly economic green H 2 production centers • CO 2 sequestration and onsite solar significantly reduce carbon intensity and increase the value of the LCFS credit • For a typical project, CO 2 sequestration will reduce the project CI score by 20 - 30 points • Onsite r e newable e ner g y w ould c r e a te ne ga t i v e pro j e c t sc o re • We do not model the LCFS uplift from these initiatives, and use flat pricing assumption of $140 per MT (vs. $200 per MT today) • We are long - term bullish on the LCFS model rolling out across new states; WA, NY, CO, NM are pushing for near - term adoption • 45 Q + LCFS Uplift expands opportunity set of attractive projects ; small flow sites with Tier II distinction (vented methane) become highly compelling with LCA CO 2 e calculation Lower CI Scores to Maximi z e Revenue 2 3 Renewable electricity and waste heat - to - steam for low CI LFG Archaea RNG via Pipeline SMR w/ C O 2 CCS H 2 • RNG - to - Hydrogen approach offers green H 2 at leading levelized costs, carbon intensities and production efficiency $2.00 $1.65 Electrolysis LCOH Today Electrolysis LCOH Target Archaea RNG - to - H2 $14 $12 $10 $8 $6 $4 $2 $0 Base Case LCFS 1. Source: RAC management calculations. 2. Source: DOE, 202O figures. Base with CO2 Sequestration Base with CO2 Seq. & Onsite Solar +$7.10 per mmbtu of unmodeled revenue b en e fit Notes: Assumes Archaea Base Case $140 per mt; management estimates of CI scores using CARB model; LCFS value only, assumes no 45Q benefit or other credits 23 $4.00 to $6.00

 

 

Near - Term and Actionable Growth Opportunities in a Highly Fragmented Market 451 Landfills 1,325 MMcf/d 1,400 landfills have no LFG collection Significant opportunities for Archaea to apply its operational excellence, commercial scale, and technology to unlock valuable revenue and create meaningful shareholder value 1,867 MMscfd 738 40% 587 31% 305 16% 237 13% Signi f icant potent i al for Archaea to conve r t ex i st i ng LFG to elec t r i c fac i li ties and em i t t ing landf i l l s to RNG Only 13% of U.S. LFG is converted into RNG today RNG Not Ca p tu r e d E l e c t r i c i t y / Direct Use Flared / Vented 24 Note: Pie chart % based on production. 1. Source: EIA and RAC management estimates. 2. Source: RAC management and USDA Census of Agriculture 2017 (Cattle & Hog Production). Untapped RNG Potential (1) Sample of RNG Development Opportunities (2) KEY Cattle Production (Sales in USD) Ar c h a ea Ca n dida t e LFG Pr o jec t s $1bn - $1.4bn Hog Production (Sales in USD) $750mm - $1bn $400mm - $700mm $500mm - $750mm $200mm - $400mm $250mm - $500mm $100mm - $200mm $100mm - $250mm

 

 

RNG Overview Favorable Macro for Long - Term Success Fi n a n c i al Summary Co m pany Highlights Premiere RNG Producer with Deep Inventory of High - Return Growth Financial Summary Cash Flow + Growth + Value Ben c hm a rking & V aluation

 

 

Prof i table Da y - One Business W ith Signif i cant Growth Pote n tial Rapid l y Scal i ng Near - Term Pos i tive Free Cash Flow Driving Profitabi l ity • Extensive portfolio of de - risked, organic growth projects • Rapidly scaling business with relatively low capital investment • Rapid project delivery and payback • Rapid growth in demand for carbon negative fuels • Robust identified project pipeline • Expect to underwrite growth by contracting 60 - 70% of our RNG volumes under long - term fixed price arrangements with IG counterparties • ~30% EBITDA margins today • Expect margins to improve through development of RNG project backlog • Forecast assumes $ 1 . 50 /gal RIN (current RIN pricing is > $ 2 . 50 ), which provides significant upside 26 ($94) ($85) $18 $174 $329 2021E 2022E 2023E 2024E 2025E Free Cash Flow ($mm) (1) Revenue ($mm) $140 $239 $327 $395 EBITDA ($mm) & EBITDA Margin (%) 43% 32% 51% 53% 53% $65 2021E 2022E 2023E 2024E 2025E $204 $326 $468 $619 $739 2021E 2022E 2023E 2024E 2025E S o ur c e : RAC m a n a g e men t . N o t e : (1) Base forecast assumes flat $1.50 RIN price. Free cash flow = EBITDA – Capex.

 

 

Revenue E volution Over T ime • Revenue growth driven by development of Archaea project backlog under conservative commodity price assumptions • Archaea ideally positioned to scale operations to meet rapidly growing TAM via pull - through demand from energy producers / end - users seeking to secure long - term access to RNG • Opportunity for improved fixed pricing forecast is supported by conservative $1.50 RIN price vs. Argus Curve ~$2.50 RIN price – $15 0mm + revenue upsi de by 2025E from R IN prices currently obse r ved i n the market % of RNG Volumes Contrac t ed 26% 64% 67% 68% 71% Reven u e Mix RNG Elec t r ic Other $220 $378 $538 $658 $204 $60 $42 $102 $326 $66 $39 $468 $66 $24 $619 $68 $13 $739 $70 $11 2021E 2022E 2023E 2024E 2025E Source: RAC management. Note: Base forecast assumes flat $1.50 RIN price. 27

 

 

Margin Expa n sion Over T ime • Strong, resilient EBITDA margins today – Margins expected to improve through (i) conversion of Aria’s LFG to Electric projects to RNG and (ii) development of Archaea’s project backlog • Visible EBITDA growth from highly developed pipeline of organic growth projects and upgrade / conversion of electric facilities into RNG facilities • Archaea is currently negotiating gas rights agreements for projects with potential to generate $250mm of incremental annual EBITDA (none of which are modeled) • I n c r em e n t al $ 1 0 0 mm+ of E B I T DA by 2 0 2 5 E f r om RIN p r ic es c u r r e n tly ob served in the mar k e t EBITDA Margin 32% 43% 51% 53% 53% EBITDA Composition RNG Electric RNG Development Up g r ad e / Conv e rsion Other (1) $4 $13 $4 $15 $4 $15 $3 $15 $3 $3 $11 $49 $96 $149 $204 $54 $102 $135 $149 $65 $12 $36 $140 $20 $239 $22 $327 $23 $395 $24 2021E 2022E 2023E 2024E 2025E Source: RAC management. 28 N o t e : (1) Base forecast assumes flat $1.50 RIN price. Corporate G&A allocated pro - rata amongst the EBITDA categories. Other EBITDA includes contributions from PEI, GCES, O&M, and EMRNG.

 

 

Highly Developed RNG Project Pipeline Will Create Strong, Resilient CF Profile Capex Prof i l e Up g r ad e / Conv e rsion Ope r a t ing Capitalized R&D Net Debt / RR EBITDA (2) 2.2x 1.3x 0.9x 0.2x NM • Capital expenditures expected to average ~$200mm per year from 2021 - 2023 through the development of Archaea’s existing project backlog • Expect capital expenditures to be funded through cash flow from operations and cash on balance sheet ($364mm pro forma for transaction) – Expect to also have access to a $120mm revolving credit facility at close of the transaction as an additional liquidity source • Forecast assumes limited development of “High Probability” RNG Development opportunities which results in a declining capex profile and increase in free cash flow generation • We expect to continue deploying capital into RNG development in 2024 if opportunities continue to meet our return threshold $144 $109 $131 $96 $107 $77 $4 $5 $5 $5 $5 $159 $5 $11 <$1 RNG Development $225 $221 $8 $152 $17 $35 2021E 2022E 2023E 2024E $66 $18 $44 2025E $329 Free Cash $174 Flow (1) $18 ($94) ($85) 2021E 2022E 2023E 2024E 2025E 29 Source: RAC management. Note: Base forecast assumes flat $1.50 RIN price. (1) Free cash flow = EBITDA – Capex. (2) Run - Rate EBITDA = Annualized Monthly EBITDA at year - end.

 

 

RNG Overview Favorable Macro for Long - Term Success B e n c h m a r k i n g & Valuation Co m pany Highlights Premiere RNG Producer with Deep Inventory of High - Return Growth Financial Summary Cash Flow + Growth + Value Ben c hm a rking & V aluation

 

 

Consi d ering a Fra m ework for Archaea ’ s V alua t ion Renewable Nat u ral G as 13% 2020 - ’22E Revenue CAGR 18% 2022E EBITDA Margin 31.0x TEV / 2022E EBITDA • Most comparable business • Varied product mix and scale • Various levels of RIN or LCFS exposure Alt e rnati ve Fuels • Operational experience in alternative fuels 6% 26% 13.6x • V ari o us le v els of RIN or LC F S e x posure 2020 - ’22E 2022 E TEV / 2022E • Investor focus on execution risk & feedstock risk Revenue CAGR EBITDA Margin EBITDA Recent E S G T ransacti o ns • Varying stages of commercialization 54% (6%) 27.5x • Signific a nt ESG tailwinds 2022 - ’24E 2024 E TEV / 2024E Revenue CAGR EBITDA Margin EBITDA Disruptors • High emphasis on technology to agitate existing industries 45% 11% 80.7x • Fo c us e d o n de c a rboni za tion 2022 - ’24E 2024 E TEV / 2024E • Rapid growth into massive TAM Revenue CAGR EBITDA Margin EBITDA 38% 2022 - ’24E Revenue CAGR 53% 2024E EBITDA Margin 8.2x TEV / 2022E EBITDA 4.8x TEV / 2023E EBITDA 3.5x TEV / 2024E EBITDA 68% 2020 - ’22E Revenue CAGR AR C HA EA ENERGY 31 Source: RAC management, Company filings, FactSet. Market data as of 3/12/2021. Note: Base forecast assumes flat $1.50 RIN price. Metrics shown reflect medians of publicly traded companies.

 

 

Com p arison to Recent ES G - Orien t ed S P ACs A R CHA E A ENERGY Business Focus Renewable Natural Gas Re n ewa b le Plas t ics Re n ewa b le Plas t ics 2020A (1 ) / 2 025E EBIT D A ($mm) $40mm / $395mm ~$2mm / $1 6 9mm NM / $139mm Proven T echnology + Producing at Scale Long - Term Fixed - Price Commercial Contracts Permanent & Lo w - Cost Feedstock Revenue Optimization (Hydrogen, Electric, CCUS) Sizeable, Growing Demand + T AM Ro b ust Organic Development Pipeline Actionable M&A Opportunities Re d uces W or l d C O 2 Emiss i ons > 1% Low Project EBIT D A Conce n t r at i on 32 Compar e d to recent D e - S P AC co m panies, Archaea offers a very compelling risk - adjusted growth story S o u r c e : RAC m a n a g e m e nt a nd C o mp a ny fil in g s. 1. Please see Appendix A (slide 42) for additional information.

 

 

EBITDA Margin 32% 43% 51% 53% 53% 12% 13% 14% 14% NA 19% 18% 24% 27% NA 33% 38% 51% 54% 57% Revenue Growth 60% 44% 32% 19% 10% 5% 12% NA 13% 7% 15% NA 19% 29% 19% 16% Comparison to Public Renewable Natural Gas Companies A R CH A E A ENERGY 33 A R CH A E A ENERGY $204 $326 $468 $619 $739 $1,125 $1,234 $1,300 $1,458 $328 $370 $396 $454 $256 $239 $327 $395 $140 $163 $184 $200 $65 $61 $140 $67 $95 $120 $95 $120 $145 $122 $145 $186 $220 $40 $55 2021E 2022E 2023E 2024E 2025E 2021E 2022E 2023E 2024E 2025E Revenue ($mm) EBITDA ($mm) Source: RAC management, Company filings, FactSet. Market data as of 3/12/2021. Note: Base forecast assumes flat $1.50 RIN price. “NA” denotes not available.

 

 

4 7 .4 x 2 0 .4 x 70 .9 x 6 4 .2 x 3.4x 2.8x 19.4x 16.6x 43.4x 42.7x 3 1 .0 x 17.2x 13.9x 10.1x 27.5x 23.5x 8. 2 x NM 5 3 .1 x 4 8 .4 x 5 5 .7 x 5 4 % 1 3 % 1 8 % 3 8 % 1 7 % 3 5 % 3 2 % (4 3 %) 2 0 % 1 1 % 1 0 % NA 3 4 % 9% 1 3 % 1 9 % 8% 4% 5 4 % NM 5 3 % 2 4 % 4 5 % NA Operational Benchmarking and Relative Valuation R e v e nue CAGR ’20 - ’22E Median: 13% ’22 - ’24E Median: 45% ’22E Median: 18% ’24E Median: 11% 34 TEV / E BITDA ’21E Median: 42.7x ’22E Median: 31.0x ’24E Median: 80.7x ’25E Media n : 5 4 .4 x 1 9 5.9 x 1 1 5.4x 9 0 .5 x Renewable Natural Gas ’20 - 22E Median: 6% ’22E Median: 26% ’21E Median: 17.2x ’22E Median: 13.6x Alt ernat ive Fuels Disruptors ’22 - ’24E Median: 54% ’24E Median: (6%) ’24E Median: 27.5x ’25E Median: 15.9x Rece n t ESG T ransac t ions EBITDA M a rgin A R CH A E A ENERGY 6 8 % 3 8 % ’20 - ’22E’22 - ’24E 4 3 % 5 1 % 5 3 % 2022E 2023E 2024E 8.2x 4.8x 3.5x ’22E ’23E ’24E Source: RAC management, Company filings, FactSet. Market data as of 3/12/2021. Note: Base forecast assumes flat $1.50 RIN price. “NM” denotes not meaningful.

 

 

Imp l ied V al u ati o n Upside Archaea Energy’s Significant Upside Potential Implied Future Discounted Value (2) (Discounted 2 Periods @ 20%) Post - Money Enterpr ise V alue ~83% Discount to Midpoint 28.0 x – 32.0x TE V / 2024E EBIT D A (1) Hydroge n Upside • Apply a range of 28.0x – 32.0x to Archaea’s 2024E EBITDA • Multiple range reflects a discount to public comparables, underscoring upsides to transaction value • The resulting future enterprise value is discounted back 2 years to arrive at an implied enterprise value • The transaction value implies a ~83% discount to the midpoint of the implied future discounted value Implied Enterprise Value ($bn) $1.15 $1.46 $1.79 $2.13 $2.47 Implied Equity Value ($bn) 1.16 1.47 1.80 2.14 2.48 Implied Stock Price ($) (3) $10.00 $12.50 $15.00 $17.50 $20.00 Implied TEV / Metric ($mm) Implied Valuation Multiples (x) ’22E Revenue $326 3.5x 4.5x 5.5x 6.5x 7.6x ’23E Revenue 468 2.5 3.1 3.8 4.6 5.3 ’24E Revenue 619 1.9 2.4 2.9 3.4 4.0 ’22E EBITDA $140 8.2x 10.4x 12.8x 15.2x 17.6x ’23E EBITDA 239 4.8 6.1 7.5 8.9 10.3 ’24E EBITDA 327 3.5 4.5 5.5 6.5 7.6 Source: RAC management, Company filings, FactSet. Market data as of 3/12/2021. N o t e : (1) Financial statistics represent $1.50 RIN pricing. Applied range of EBITDA multiples based on median of comp universe. Archaea future enterprise value is calculated by applying the range of EBITDA multiples to Archaea’s 2024E EBITDA. Implied discounted enterprise value range is calculated using the future enterprise value range discounted back 35 two years at a 20% discount rate. (2 ) ( 3 ) Assumes warrant dilution calculated using the treasury stock method and is comprised of 18 , 883 , 500 warrants (inclusive of public issuance warrants, private placement warrants, and CIBC FPA public warrants) with a strike price of $ 11 . 50 per share . $6.3 b n $7.3 b n $1.1 b n $9.1 b n $10.4bn

 

 

Why A r chaea Energy? 36 Strong Ali g nment Management + Rice Family + Saltonstall will own ~40% of company Compelling Valuation 2022E EBITDA: 8.2x vs. 31x for RNG peers; disruptors at ~80x in 2024E Moti v ated Leaders Proven landfill experts bringing new ideas to a fragmented industry Premiere Feedstock LFG supply is plentiful, predictable, long - term, and secure Prov e n T e c hnolo g y Archaea’s team has designed the majority of U.S. RNG facilities Low e st Risk Growth $40mm EBITDA in 2020 (1) $327mm in 2024 from low risk, organic projects Robust S trategy 60 - 70% RNG for long - term fixed - price RNG contracts with blue - chip customers Ex c iting New T e c h Pioneering profitable CO 2 sequestration + low - cost green hydrogen Accretive Growth Scale + commercial and technical acumen to source and acquire bolt - on assets T ruly Sustainable Emissions energy: the more we win, the more the environment wins 1. Please see Appendix A (slide 42) for additional information.

 

 

App e n d i x

 

 

Independent Directors Bring a Wealth of Experience and Industry Knowledge KATE JACKSON • Independent director with operational, executive and board level experience for electricity generation, energy system operations and technology management • Former Chief Technology Officer (CTO) at RTI International Metals; former CTO at Westinghouse Electric Company; former Head of River Operations for Tennessee Valley Authority • Currently serves as director of Energy & Technology Consulting for Keysource, Inc. • Serves on the Boards of EQT, Portland General Electric, Cameco Corp., and Duquesne Light Holdings JOE MALCHOW • Founding Partner at HNVR Technology Investment Management, a Silicon Valley venture capital firm specializing in enterprise software, data, and artificial intelligence • Background in computer science, and founded two software companies • Serves on the Board of Enphase Energy, Inc., a global energy technology company pioneering solar, battery, and microgrid technologies • Significant experience providing capital to early - stage, transformative companies that pioneer novel markets JIM TORGERSON • Former CEO and Director of Avangrid (NYSE: AGR), a public utility with $32 billion of assets • Previously served as president, CEO, and a director of UIL, as well as president and CEO of Midwest Independent Transmission System Operator, Inc. • Former chairman and a director of the Connecticut Business and Industry Association • Previously served on the Boards of the American Gas Association and Edison Electric Institute 38

 

 

• 12/31/2020 valuation date • Aria Purchase Price: $680mm – $450mm cash – $230mm rollover equity to Aria shareholders • Archaea Purchase Price: $347mm – 100% rollover equity after $15mm net debt repayment • Illustrative transaction and financing fees: ~$62mm • Pro forma balance sheet cash of ~$364mm to fund capex and portfolio development and maintain conservative debt profile • $300mm PIPE with ~$51mm committed from Rice Family & Friends and Saltonstall • Rice Family, Saltonstall, and Management to own ~40% of Pro Forma Company Indicative Detailed Transaction Overview Sources ($mm) Pro F o rma O w n e rshi p (6) RAC SPAC Cash in Trust (1) $238 Shareholder Sh a r e s (mm) % O wne r ship New Corporate Debt (2) 220 Archaea Equity Rollover 33 29% Assai Project Financing (3) 133 PIPE Investors 30 26 PIPE 300 SPAC Shareholders 24 20 Archaea Equity Rollover 332 Aria Equity Rollover 23 20 Aria Equity Rollover 230 SPAC Founder Shares (7) 6 5 T o t al So u r c es $1,453 T o t al O w n e rship 116 100% Uses ($mm) Pro F o rma V alu a ti o n ($mm) Total Aria Consideration $680 Share Price ($) $10.00 Total Archaea Consideration 347 (x) Pro Forma FDSO (mm) (8) 116 Cash to Balance Sheet (4) 364 Pro F o rma Equity V alue $1,159 T r a nsac t ion / F i n a n c ing F e e s (5) 62 (+) Pro Forma Debt 353 T o t al Us e s $1,453 ( – ) Pro Forma Cash (364) Pro F o rma Ent e rp r i s e V alue $1,148 Metric (9) Multiple TEV / 2022E EBITDA $140 8.2x TEV / 2023E EBITDA 239 4.8 TEV / 2024E EBITDA 327 3.5 S o ur c es & Uses Pro F or m a Ow n ersh i p T ra n sa c ti o n Overvi e w 39 S o ur c e : RAC m a n a g e men t . (1) Assumes no RAC stockholders exercise redemption rights to receive cash from the trust account. (2) Corporate Term Loan facility expected to price at L + 325bps. (3) $72.5mm of Assai project financing closed January 2021 and an incremental $60.8mm financing is expected to close on April 5, 2021. (4) Assai project financing cash is effectively restricted cash to be utilized pursuant to the terms of the Assai financings, a portion of which has already been spent on project - related construction costs. (5) Illustratively assumes financing fees on Assai project financing, new debt, and PIPE par issuance amounts. (6) Post - transaction ownerships calculated using a nominal share price of $ 10 . 00 , on a pre - diluted basis, which excludes the impact of warrants, potential management equity compensation, etc . (7) Includes shares held by RAC sponsor, independent directors, and Atlantic Trust . (8) Warrant dilution calculated using the treasury stock method and is comprised of 18 , 883 , 500 warrants (inclusive of public issuance warrants, private placement warrants, and CIBC FPA public warrants) with a strike price of $ 11 . 50 per share . (9) EBITDA statistics represent $ 1 . 50 RIN pricing .

 

 

40 Pro Forma Financ i al Proj e ctio n s ($ in mm, except where noted) 2021E 2022E 2023E 2024E 2025E RNG Production (MMBtu) 5,405,123 12,269,232 20,989,282 28,513,326 34,981,825 Electric Generation (MWh) 323,782 247,893 157,434 102,975 92,500 Revenue RNG $102 $220 $378 $538 $658 Electric 42 39 24 13 11 Other (1) 60 66 66 68 70 T o t al Reve n ue $204 $326 $468 $619 $739 T o t al Reve n ue Growth (%) 60% 44% 32% 19% Expenses Operating Expenses $114 $160 $202 $264 $315 G&A 20 21 22 23 24 Public Company Incremental G&A 5 5 5 5 5 T o t al Expe n ses $139 $186 $229 $292 $345 EBITDA $65 $140 $239 $327 $395 EBITDA Margin (%) 32% 43% 51% 53% 53% Ca p ital Expe n ditu r e Development $144 $109 $131 $96 $44 Upg r a d e / Conv e rsion 11 107 77 35 -- Operating 0 4 8 17 18 Capitalized R&D 5 5 5 5 5 T o t al Ca p ital Expe n ditu r e $159 $225 $221 $152 $66 S o ur c e : RAC m a n a g e men t . N o t e : (1) Base forecast assumes flat $1.50 RIN price. Includes Aria O&M, Archaea PEI and GCES.

 

 

Proj e cted EBI T DA Breakdown By P roject T ype S o ur c e : RAC m a n a g e men t . Note: EBITDA Bre ak d own ($mm) $39 $40 $40 $25 $36 $74 $107 $120 $17 $27 $30 $37 $5 $48 $49 $50 $5 $7 $7 $35 $7 $79 $131 $65 $140 $9 7 $239 $327 $395 $25 $28 $19 $21 $21 $21 $20 ($8) 2021E ($2) 2022E ($2) 2023E ($3) 2024E ($4) 2025E Aria Base Projects (RNG & Electric) Aria RNG Upgrade Projects Aria RNG Conversion Projects Additional RNG Development From Aria Assai (Archaea PA Project) Big Run (Archaea KY Project) Additional RNG Development From Archaea Other EBITDA and G&A (1) (1 ) Other EBITDA includes contributions from PEI, GCES, O&M, and EMRNG. 41

 

 

Pro Forma EBITDA Reconci l iation S o ur c e : RAC m a n a g e men t . Note: EBITDA is a Non - GAAP financial measure we use to measure performance. See the section titled “Use of Non — GAAP Measures” in this presentation for more information. The closest GAAP financial measure is net income (loss). For the ($ 000s) Net Income $8,000 Dep r e c iati o n, am o r t izat i on a n d a c c r e ti o n 23,000 Cha n ge in va l ue of loss on d e riva t ive (1,500) I n t e r e st exp e nse & fi n a n cing c h a r g e s 10,000 Non - recurr i ng sales costs 500 Equity in income (l o s s ) of JV ’ s (10,000) Cash dist r ib u ti o n from JV ’ s 10,000 EBITDA $40,000 F Y 2020 year ended December 31, 2020 our net income (loss) was $8.0 million. We have not yet completed our audit for the year ended 2020 and any GAAP measures included herein are subject to change based on the results of our audit. 42

 

Exhibit 99.3

 

 

 

Archaea Energy

Investor Call

Transcript

 

April 7, 2021

 

Speakers:

 

Daniel Rice: CEO, Rice Acquisition Corp.

 

Kyle Derham: President & CFO, Rice Acquisition Corp.

 

Nick Stork: CEO, Archaea Energy

 

Rich Walton, President, Archaea Energy

 

Brian McCarthy: CFO and CCO, Archaea Energy

 

 

 

 

Archaea Energy Investor Presentation Wednesday, 7th April 2021

 

Danny Rice

 

CEO, Rice Acquisition Corp

 

Good afternoon, everyone. Welcome to the Archaea Energy investor call. This is Danny Rice, CEO of Rice Acquisition Corp. And I am joined today by Kyle Derham, our president and CFO, along with members of the Archaea management team, Nick Stork CEO, Rich Walton, president, and Brian McCarthy, CFO and chief commercial officer.

 

The purpose of this call is to walk you through our rationale for these acquisitions and provide an outlook for what we expect for the combination. I will be referencing certain slides in our investor presentation, so it might be helpful if you have this handy. These slides can be found on our website at www.ricespac.com.

 

Please review the disclaimers included in the investor presentation.

 

Before we get started, I would like to remind you that statements we make during this call contain forward looking statements within the meaning of the private securities litigation reform act of 1995 and are subject to risks and uncertainties. Any statement that refers to expectations, projections or characterizations of future events, including financial projections, the anticipated benefits of the proposed transaction or future market conditions, is a forward looking statement. The combined company’s actual future results could differ materially from those expressed in these forward looking statements for any reason, including those set forth in our investor presentation. Rice Acquisition Corp, Archaea and Aria do not assume any obligation to update any such forward looking statements.

 

Please also note that the past performance or market information is not a guarantee of future results. During this conference call, we will discuss non GAAP financial measures as defined by SEC regulation G. We believe non GAAP disclosures enable investors to better understand the company’s core operating performance. Please refer to the investor presentation for more information regarding our usage of non GAAP measures.

 

In connection with the proposed transaction, Rice Acquisition Corp intends to file with the SEC a proxy statement on form 14 A with respect to our stockholder meeting to vote on the proposed transaction. The proxy statement will contain important information about the proposed transaction and related matters.

 

So let us begin with slide one in the presentation. We are really happy to bring to market a deal that goes beyond what we aspired to deliver when we completed our IPO back in October. At that time, we told our IPO investors we planned to leverage our deep operational experience building best-in-class energy companies to acquire a high-quality business in the energy transition space with a particular focus in the quickly emerging renewable fuels sector.

 

So that is what we set out to do. And over the last six months, Kyle and I evaluated many businesses, solutions and ideas in the renewable fuels market, and we ultimately concluded that, when assessing the entire lifecycle of these various fuels, from feedstock origination through final combustion, renewable natural gas, primarily RNG produced by landfills, is the most complete renewable fuel in the world. And in a bit, Nick will cover all the reasons why that is.

 

2

 

 

Archaea Energy Investor Presentation Wednesday, 7th April 2021

 

So with this information, Kyle and I set out to find the most comprehensive business in the landfill gas sector. When we began this project, we knew that the landfill gas industry was a highly fragmented one, one comprised of a couple small public companies and many private ones. So we knew going into this search we might have to roll up a couple of smaller companies to create the premier RNG platform for all stakeholders, and I think we have done that here.

 

So we have managed to acquire two highly regarded private renewable gas companies, Aria Energy and Archaea Energy. And for all the reasons we will cover today, we truly believe this transaction creates the most comprehensive RNG developer in the industry, combining both an existing operating asset base with a robust development pipeline.

 

And we are proud to deliver this company to the market at a very compelling valuation: 8.2 times estimated 2022 EBITDA, which scales down to 3.5 times estimated 2024 EBITDA. Looking back on our success building Rice Energy from scratch into a $10 billion company, we know what it takes to build an industry leader. And we think this combined business has all the pieces today to generate even greater success, and in an accelerated timeframe.

 

I hope that sets the stage for today’s call. So with that, I will turn it over to Kyle to walk through the transaction on slide two.

 

Kyle Derham

 

President and CFO, Rice Acquisition Corp

 

Thanks, Danny. As mentioned, we are acquiring two businesses: Aria Energy for $680 million and Archaea Energy LLC for $347 million. The combined business will be called Archaea Energy which we will refer to throughout as Archaea or simply the company.

 

In addition to those acquisitions, we are putting $364 million of cash on the balance sheet, which will fully fund the company’s five year capital plan and bridges the company to free cash flow generation, starting in 2023.

 

As such, the company will not require additional external financing to achieve the projections shared on this call.

 

To fund the transaction, we have $238 million of cash from the SPAC IPO, $353 million of total debt, and $300 million of new equity capital through the PIPE which was upsized and oversubscribed. The debt capital will lever the company at approximately two times net debt to run rate EBITDA in 2021, and that delevers to one times in 2022.

 

The Archaea LLC shareholders, which include the Rice family, will be rolling 100% of their equity consideration in the deal. The Aria shareholders are rolling 40% of their equity consideration. Aria is backed by Ares management, who is extremely supportive of the transaction, and will be returning a portion of their consideration as cash to their LPs who had invested in Aria through our 2007 and 2010 vintage fund.

 

Pro forma ownership is listed on the bottom right hand side of the page. The Rice family has been supportive of this transaction since the beginning. They were founding investors in Archaea LLC in 2018. They put up the at-risk capital for the SPAC, they invested $20 million in the SPAC IPO and are investing another $20 million in this PIPE transaction.

 

3

 

 

Archaea Energy Investor Presentation Wednesday, 7th April 2021

 

Danny Rice

 

CEO, Rice Acquisition Corp

 

Okay, thanks, Kyle. So turning to slide three, it goes without saying but we will say it anyways. This is not your typical SPAC. This business is a proven, profitable one today that is developing and deploying proven technology in the field as we speak, as illustrated in the far left column.

 

The quality of the underlying feedstock is critical to success, and after evaluating nearly every renewable fuel in the world, we strongly believe there is nothing more predictable, flexible, lower cost or better for the environment than the conversion of landfill gas into RNG.

 

Moving over to that second column, this business has highly predictable economic growth. EBITDA is expected to grow from $40 million in 2020 to nearly $400 million in five years, a 10x increase by executing on its development project backlog.

 

And to protect this cash flow growth, the company has undertaken a robust commercial strategy that will lock in 60 to 70% of its production volumes under 10 to 20 year, fixed price contracts with customers that are investment grade organizations.

 

Third, we believe this is the industry’s top team by a long shot and includes leading technical experts, who have built nearly all of the landfill gas to RNG plants in the industry today. This team brings an entrepreneurial edge and an outsider’s approach to what has historically been characterized as a sleepy industry, which is something we can relate to from building Rice Energy. This approach has expanded the economics of what is possible in RNG.

 

And last and certainly not least, this business is solving a global climate problem in a meaningful way. The impact of capturing emissions from all landfills in the United States is environmentally equivalent to electrifying 75% of all passenger cars in the United States. RNG has the world’s lowest carbon intensity score, and this is evidenced by the dozens of high quality institutions who are committing to RNG to achieve their own carbon neutrality goals. We think Archaea is well positioned to be the renewable producer of choice for this growing list of blue chip companies. And Nick and the team are truly redefining the role of renewable fuels. Kyle?

 

Kyle Derham

 

President and CFO, Rice Acquisition Corp

 

Thanks, Danny. On slide four, the company will have a nationwide footprint serving a wide variety of customers. The assets are difficult to replicate: high flow landfills with predictable feedstock growth under long term development agreements. Unlike most SPACs that have come to the market in the energy transition space, we are starting from a point of profitability. The company generated approximately $40 million of EBITDA in 2020 and is expected to grow to nearly $330 million in 2024. Notably, 95% of the estimated 2024 EBITDA contribution is from assets the company has already secured today through gas rights agreements and are in some form of development today.

 

4

 

 

Archaea Energy Investor Presentation Wednesday, 7th April 2021

 

Incremental to this, we have identified over 25 high probability development opportunities, we believe we can capture and capitalize on in the near term. Together, these projects can collectively generate $250 million of incremental annual EBITDA that is not included in the projections.

 

Danny mentioned the environmental benefits of the transaction, but just as exciting are the sustainability of cash flow generation this business can achieve, particularly relative to other resource related businesses.

 

Once these assets are developed, they are expected to produce for 20 to 30 years with essentially no decline and minimal maintenance capital requirements. In fact, volumes and cash flow will typically increase over time as more waste is brought to the landfill. This stands in stark contrast to the E&P shale businesses that Danny and I have run in the past, where production volumes decrease rapidly after turning an asset online. When you combine that with 10 to 20 year fixed price contracts, this business is truly differentiated in its ability to sustainably produce free cash flow.

 

With that, I am thrilled to hand it over to Nick to provide an overview of the RNG industry and why Archaea is well positioned as the market leader.

 

Nick Stork

 

CEO, Archaea Energy

 

Thanks, Kyle. Hi, everyone. This is Nick Stork and I am the CEO of Archaea. Thanks for being here with us today. I am really excited to walk you through Archaea’s business model, and how we positioned Archaea to create value for our stakeholders.

 

But first, it might be helpful if we started by explaining what renewable natural gas is, where it comes from, and what it is used for, and why it is so important to the clean energy transition thesis.

 

I will be referencing certain slides in our presentation, so it might be helpful if you have those handy. So turning to slide six, let us start with where RNG comes from.

 

RNG comes from the reuse of gas emissions from naturally decomposing waste. We turn these waste emissions into usable energy, which is why it is referred to as renewable gas. Landfills, animal waste, wastewater treatment plants all produce gas naturally through the process of anaerobic decomposition. For landfill gas, emissions and gases are produced for 20 to 30 years after you place waste into landfill. Our systems remove all the non-methane components of the raw biogas, delivering renewable natural gas that meets pipeline specifications, and then has broad deliverability.

 

Because it is chemically identical to natural gas, RNG is a drop-in green substitute for anyone using fossil fuels. Once we are connected to a pipeline, we can sell RNG anywhere in North America. Beyond power generation and thermal uses, it can be used for transportation fuel in CNG and LNG forms. It can be used as a green feedstock for industrial uses, like methanol, or ammonia production. It can be used to create green hydrogen. And this is something we are particularly excited about over the next several years, and I will talk more about it later in this presentation.

 

5

 

 

Archaea Energy Investor Presentation Wednesday, 7th April 2021

 

So I will talk more in detail about each of these points in the next few slides, but I want to highlight a few important guiding points on slide seven.

 

First, RNG is sustainable. Capturing all emissions from landfills alone has enormous environmental benefits, equivalent to electrifying most of the US’ transportation fleet. RNG has unique certainty: our process has high uptime and is highly efficient. The source of our product, the feedstock is highly predictable, following a known gas curve. As more waste is generated, more gas is generated.

 

RNG is deliverable. We can get our product to any customer in North America using the existing pipeline energy infrastructure our country has already spent trillions of dollars on.

 

The demand for RNG is strong and growing exponentially. This goes beyond the Renewable Fuel Standard and environmental credits. We create the essential product for major energy utilities that are responding to long term regulations and sustainability goals.

 

And lastly, RNG has broad optionality. You can make money in a variety of ways from RNG, each adding additional free upside to an already attractive core business.

 

Moving to slide eight. Waste is growing across the country in a variety of forms. We can take waste emissions from each of these categories to create circular economies and attractive rates of return. As I mentioned earlier, our projects translate to large greenhouse gas reductions, which come from our product. So if you use 20% RNG in your vehicle, you will have reduced emissions by over 80%. This includes emission reductions from our project as well as the emission reductions from switching to CNG from diesel.

 

Lastly, RNG does more than just reduce GHG emissions. Our projects also dramatically improve local air quality, reducing key air pollutants like NOx, Sox, particulate matter, and BOCs like hydrogen sulfide by over 90%. Economically, this is important to corporate buyers who want to have a local impact. One of our potential corporate customers, for example, is excited to work with us on a Kentucky project because they have manufacturing operations in Kentucky. So improving local air quality is important to them, and a number of other large corporate customers that we are in discussions with.

 

On slide nine, I want to dive into the emission reductions of RNG further. We measure the emissions of our projects using a carbon intensity score calculation or CI for short. On the right side of the page, you can see RNG is one of the lowest CI transportation fuels in the world.

 

We are driven to continue to lower this score because it is the right thing to do and because we will see a higher price as a result. We have two initiatives to drive large reductions in CI. First, we are planning to fully sequester the CO2 from a number of our projects, and landfill gas is 35% CO2 by volume. So that will take our score, our CI score to zero or carbon neutral. And by adding things like onsite solar for power generation, our CI score can go negative, providing further benefits to the environment and our realized price.

 

6

 

 

Archaea Energy Investor Presentation Wednesday, 7th April 2021

 

So clearly there is true alignment between management, our shareholders, and the environment, which is why we are so passionate about this industry.

 

Moving to slide 10, RNG is a certain source of renewable energy because landfill gas follows a predictable methanogenic production curve. Even when a landfill stops accepting waste, the gas rate will gradually increase for 10 to 15 years, and then follow a predictably shallow decline thereafter. As you can see on the charts here, more and more waste is going into landfills, which translates the growing landfill gas production, which stands in stark contrast to every other feedstock out there. And the kicker is that there is no cost to this feedstock; we just pay royalties to the landfill owner on the revenue that we generate.

 

Moving to slide 11, if you want to decarbonize today, RNG is your best choice. Given the pipeline infrastructure in the US and the natural shift that has been occurring over the last 20 years from complex hydrocarbons to cleaner natural gas, RNG fits in today’s energy infrastructure. You do not need a new form of energy creation to use RNG. It is a cost effective, commercial and available substitute today.

 

The University of California is a great example. They are one of our customers on a number of projects. So UCal has an existing need for natural gas. They use 9 million mmbtus annually across their campuses for onsite power generation and onsite thermal. They looked at replacing this infrastructure, but their analysis showed that using RNG in their existing system was the way to go. By partnering with us, they are able to meet their renewable targets and maintain their non-intermittent critical energy needs, all without incurring new capex.

 

I will turn it over to Brian McCarthy, our CFO and chief commercial officer, to talk through the demand side of the equation.

 

Brian McCarthy

 

CFO and CCO, Archaea Energy

 

Thank you, Nick. On slide 12, this is showing demand for RNG from both corporate and utility customers is rapidly increasing. Corporates have pledged to their stakeholders to operate more sustainably; they still have to operate. They have figured out solar and wind PPAs for electricity, and now they are solving for their natural gas scope one thermal and power load, which is difficult to substitute for.

 

We offer a commercial solution. Infrastructure built for natural gas can be greenified with RNG. For example, Amazon is meeting its transportation fuel load with RNG going forward and can use that RNG for heating their distribution centers. Utilities are also looking at RNG as a means of survival. Utilities have spent billions on pipeline systems that move fossil fuels. They need to demonstrate to their customers and stakeholders that they can be part of the future story of sustainability and can provide a green product. Regulators have joined in, requiring utilities to offer RNG to their customers. FortisBC for example is required to have 15% RNG by 2030 by regulatory mandate.

 

On slide 13, RNG is shown to only represent 0.15% of the total natural gas supply today. Current demand volumes needed from our existing customer relationships are significantly higher than the current RNG market supply. Archaea is seen by our partners as a scale producer of RNG to this growing voluntary market, and we continue to press our advantage to build more production to meet this growing RNG demand. Back to you, Nick.

 

7

 

 

Archaea Energy Investor Presentation Wednesday, 7th April 2021

 

Nick Stork

 

CEO, Archaea Energy

 

Thanks, Brian. On slide 14, in addition to our core business of creating RNG, we can generate six other different revenue streams from the same unit of landfill gas, which provides a diverse revenue stream and optionality to adjust to the market’s needs.

 

Adding to the core RNG revenue stream, we are also co-locating CO2 sequestration to geologically sequester a fairly pure source of CO2 already. We have a team of geologists on staff working on these projects full time. I will speak to this more in detail in the next few slides, but CO2 sequestration has the potential to meaningfully increase cash flow for Archaea. And as I mentioned earlier, it is a way that we are lowering our carbon intensity scores really significantly.

 

Moving to the other side of this slide, hydrogen is an additional and significant shift to RNG base case pricing. Creating green hydrogen from RNG would translate to $40 per mmbtu effective pricing under long term investment grade agreements. We are evaluating the potential of adding hydrogen development to two of our RNG development projects in California, that would start in 2023.

 

Moving to the next section on slide 16, I am excited to bring Archaea energy and Aria energy together. The combined business is one of the largest and fastest growing RNG producers in the world. It will have the right team, assets with upside, commercial strategy and approach to capital allocation to execute over the long term, all of which I will cover in more detail in the next few slides.

 

On slide 17, this combination creates the preeminent RNG team. Archaea’s current management team brings entrepreneurialism and gas processing expertise, but also brings capital discipline and a conservative ‘do not lose money’ approach to capital allocation. Rich and I are also landfill owners and we are proud garbagemen. We have been at the site running equipment at 4am to make sure we open. We have thrown trash on the back of a hauling truck. And when we talk to landfill owners about developing the resource they know we are going to do it. They know that we are going to do it in a way that is not going to put their core landfill or hauling business at risk.

 

Aria has deep operating expertise through close to 100 well trained plant operators around the country. They have a great track record of safety, environmental and compliance and a management team that is well respected in these areas.

 

Lastly, it will also benefit from Rice leading this PIPE, remaining on the board and we are excited to continue to work with them. Both management and Rice are totally aligned and putting up a significant amount of personal capital into this business, and we share the same long term vision.

 

8

 

 

Archaea Energy Investor Presentation Wednesday, 7th April 2021

 

On slide 18, we are starting with a solid base of producing assets today. And we are developing a deep pipeline of low risk development opportunities, which include 13 conversion projects. These conversion projects currently use landfill gas to generate electricity. They already have gas development agreements, site leases, zoning, air permits and much of the critical infrastructure that is needed for RNG projects. Some of these projects are transformative. There are three projects specifically that can generate an additional $100 million of EBITDA combined, and we are going to sprint at developing these.

 

We are also going to focus on optimizing Aria’s existing producing RNG projects. For about a $10 million capital investment, we think we can generate an additional $20 million of EBITDA from these opportunities.

 

Lastly, Archaea brings 16 new RNG projects that are secured under gas rights agreements or are very close to being secured.

 

Both companies have identified over 25 new high probability development projects that we think we can sign the next few months. And that is how we get to a billion dollars in predictable free cash flow, which is our long-term goal. We can secure this pathway very soon, but in the meantime, as Kyle mentioned earlier, 95% of the estimated 2024 contribution is from assets this company has already secured under long term agreements today.

 

Moving to slide 19, I want to highlight one of our projects because it will be the largest landfill gas, renewable natural gas projects in the world, and it represents how we approach developing new projects. Project Assai is located outside of Scranton, Pennsylvania. It is a combination of two landfill gas sources from the Keystone Sanitary landfill and the Alliance landfill. We are midway through construction of this project, and we have long term contracts signed with the University of California, Energir and FortisBC, which translate to 80% of our volumes.

 

It will generate over $40 million of EBITDA from this project alone. We have life of gas rights at Keystone, so when you pair this with a high landfill capacity site, you have very high growth upside to that $40 million of EBITDA per year starting point.

 

Importantly, there are three Assai level projects in the Aria portfolio and a number of high flow electric projects right up there too. The low-risk nature of this project from the landfill gas sources, to the RNG contracts, to the relatively derisked construction schedule, and the strength of our management team, translated to an investment grade rating at a very attractive cost of debt capital at 4% interest rate from leading investors like Barings, Nuveen and Pac Life. These investors are looking to invest in green, predictable cash flow, and that is what we are offering. We think this approach will translate to better and better cost of capital for us in the future, and we will continue to be able to tap into the market’s appetite for green predictable yield for years to come.

 

I want to turn it back over to Brian McCarthy to walk through our commercial strategy and unit economics.

 

9

 

 

Archaea Energy Investor Presentation Wednesday, 7th April 2021

 

Brian McCarthy

 

CFO and CCO, Archaea Energy

 

Thank you, Nick. On slide 20, we want to highlight why we have a different commercial strategy than our competitors. We’re building RNG projects with 20-plus year lives and match long term contracts to the tenor of our assets.

 

We expect environmental attributes like RINs or LCFS to be volatile and uncertain. Today, RIN prices are nearing $3, which translates into a $35 per mmbtu price. But just 15 months ago, we were far below that, at an implied $8 per mmbtu. We will make money even in the downside case scenario, and see any variable market as upside to optimize.

 

For the RIN exposure that we do have, we model $1.50 RIN price, which is below the historical average and far below current prices.

 

Partners are choosing Archaea because of our vision, our scale and our team. RNG production is fragmented. There are many one-off projects with uncertain success. Archaea has scale, the proven ability to perform, and substantial flowing volumes to meet the needs of our current partners.

 

On slide 21, we show our unit economics for an illustrative RNG project. Starting on the left hand side of the page, we receive value through multiple avenues: the brown gas value, renewable identification numbers or RINs, the low carbon fuel standard or LCFS, and from sequestering carbon dioxide or CO2.

 

Through our commercial strategy, we seek to minimize RIN exposure, contract our volumes through long term fixed price arrangements with investment grade counterparties.

 

The first three columns show our revenue stack under three scenarios.

 

The first assumes we are uncontracted and fully exposed to the current spot market for environmental attributes. As you can see, we would be realizing close to a $50 per mmbtu price.

 

The next column is what we budget internally for our uncontracted RNG volumes, which assumes a $1.50 RIN price and $140 per metric ton of LCFS value, which translates into $30 per mmbtu.

 

The last column shows the price at which we are able to lock in long term fixed price offtake, which gets us to around $15 per mmbtu. Our commercial strategy is to contract approximately 65% of our volumes under these fixed price contracts, leaving up to 35% upside exposure to RINs and LCFS, which results in a net blended price of $20 per mmbtu.

 

In many of our contracts, we have the option to flex more of our volumes under fixed pricing, which we would do if RIN prices materially weakened. Operating costs are primarily made up of two components: a royalty paid to the landfill owner, which ranges between 10 and 20% of revenue, and operating expenses which include electricity to operate the gas plants and sacrificial media.

 

These projects typically cost around $1 per mmbtu amortized over a 30-year period, and as Kyle has mentioned, very little maintenance capital requirements once placed into service. This leads to 60% free cash flow margins that we can reinvest in projects with a similar profile.

 

Back to you, Nick.

 

10

 

 

Archaea Energy Investor Presentation Wednesday, 7th April 2021

 

Nick Stork

 

CEO, Archaea Energy

 

Thanks, Brian. As I mentioned earlier, we have a pathway to a billion dollars in predictable green free cash flow. We think the market opportunity can be much larger, and our approach unlocks this larger universe of opportunities.

 

As Brian walked through, this a highly attractive business model with compelling unit economics. We should expect increased competition. And that is why we are laser focused on creating a sustainable competitive advantage in cost structure and revenue optimization through these three initiatives.

 

We spent the last two years focused on building core projects and a core team but also on lowering RNG development costs by 40%. When we started Archaea LLC, this was a longer-term goal. But we now believe we can achieve this goal in 2022. Although to be clear, we do not model this in our conservative approach to projections.

 

We are doing this without radical changes to gas processing technology. Most of our reductions come from deploying a manufacturing approach to RNG development. For example, we have optimized small, medium, large, extra-large standard designs. We have perfected cold weather options and warm weather options. This pre-engineering and standardization lowers costs but also lowers the likelihood of mistakes and allows for much faster development.

 

For example, the Archaea version one plant approach allows to build projects in less than 24 months versus the industry standard 48 months.

 

Moving to the next slide, there are two other initiatives we want to highlight on slide 23.

 

By co-locating CO2 sequestration at our projects, we unlock new revenue streams and further expand the market when making smaller flow sites or sites further away from pipelines much more compelling.

 

CO2 sequestration will add multiple sources of new revenues for projects. For qualifying projects, we can generate the 45Q tax credit, which is $35 to $50 per ton of CO2 equivalent or an additional $1 to $5 per mmbtu uplift.

 

In addition to the 45Q and as I mentioned earlier, will also lower the carbon intensity of our projects, which can be monetized by generating higher LCFS credits. So each 10 point reduction in CI score will translate to $1 to $2 per mmbtu improvement.

 

So, for a 30 point reduction in CI, which is in line with some of our sequestration projects, there is an additional $3 to $6 per mmbtu of LCFS credit uplift. Onsite solar would add to these values.

 

11

 

 

Archaea Energy Investor Presentation Wednesday, 7th April 2021

 

Importantly, and again, we are not modelling any benefits to CI scores, or LCFS credit assumptions in our model. We use flat credit assumptions. So there is $7 plus per mmbtu of unmodelled upside.

 

On the right side of the page, we think we can achieve higher contracted revenues by producing green hydrogen. We can achieve these increased revenues under long term investment contracts, just like our core RNG contracts. Importantly, we can do this with limited technology risk, using the industry standard processing technology, steam-methane reforming with water-gas shift reaction.

 

By using RNG as an input and doing our normal geological CO2 sequestration, we will create a negative CI score green hydrogen and industry leading levelized cost of production. We are not modelling any potential for green hydrogen in our projects, but we are increasingly excited about this market.

 

On slide 24, we see significant potential for Archaea to pursue RNG opportunities in the landfill gas industry. Currently, only 13% of landfill gas volumes are converted into RNG. The remaining gas is either converted into electricity or it is flared, or it is vented to the atmosphere, and there is significant value being wasted. And many of these are owned and operated by single plant operators that do not have the capital or knowhow to produce RNG. So there is a lot of value being left on the table all over the country.

 

And we know where these opportunities are. We have got the map out, and we have displayed that on the map on the right.

 

To summarize, we think our team and our company, especially with this public platform, puts us in an optimal position to capture many of these exciting opportunities that will further drive significant value creation.

 

Moving to the financial projections on slide 26, as we mentioned previously, the base business is profitable today. We expect to grow revenue 40% from 2020 to 2025, largely through the development of our existing backlog of projects. These projects are already under long term development agreements with landowners.

 

The operational improvements I referenced earlier in the focus on RNG development will drive higher EBITDA margins over time to flat and conservative commodity price assumptions. The quick payback period on these projects will result in significant free cash flow generation, starting in 2024. Brian?

 

Brian McCarthy

 

CFO and CCO, Archaea Energy

 

On slide 27, the revenue growth through 2024 is almost entirely driven by development of our existing backlog. We begin layering on additional projects we have not secured starting in 2025 from high probability development opportunities that we expect to close on in the near term.

 

The revenue mix shown here includes our conservative assumptions. There is $150 million of revenue upside in 2025 using current RIN pricing. The volumes assume two thirds long term fixed price, one third highest and best use, which currently are RINs and LCFS. We have the ability to flex more volumes to our fixed price contracts.

 

Over to Rich Walton, Archaea’s president, to talk to EBITDA margins.

 

12

 

 

Archaea Energy Investor Presentation Wednesday, 7th April 2021

 

Rich Walton

 

President, Archaea Energy

 

Thanks, Brian. I get to talk about my favorite topic which is increasing profits while improving the environment. In the combined entity, there are a number of large opportunities to shift from producing electricity to higher margin RNG high BTU plants. In addition, the largest variable cost in a high BTU plant is power. As we integrate onsite renewable power to these sites, we have the ability to reduce carbon intensity on these projects. This cuts two ways. Not only does it eliminate the largest expense, but it drastically increases the value of the underlying gas, which flows entirely to the bottom line.

 

Furthermore, there is an opportunity to realize larger profits on each BTU. Not only can we sell into variable markets at prices above our existing fixed price arrangements, but we can also drastically reduce our costs to confirm RNG as transportation fuel in the RFS and LCFS versus legacy Aria agreements.

 

In addition, we are going to make technological driven improvements at the plant and field level to assist in capturing every molecule. These initiatives show paybacks in weeks or months, relative to years.

 

These include improvements to CO2 capture membranes and nitrogen rejection, improved measurement at the field level, well field improvements including the real time monitoring of per well collection efficiency and low capex re drills. These improvements all drive profitability and higher EBITDA margins. It is worth mentioning again that these assets are online. They are expected to produce flat or increasing over time as more waste is brought to the landfill. Said another way, we only need to spend around $20 million of capex each year to hold the $400 million of 2025 estimated EBITDA flat for 20 plus years. Thanks, and back to you, Brian.

 

Brian McCarthy

 

CFO and CCO, Archaea Energy

 

To get to the $400 million of 2025 estimated EBITDA that Rich just mentioned, we expect to spend around $200 million per year over the next three years, which drives the growth in EBITDA. This program can be funded with cash flow from operations and cash on hand pro forma for this transaction. Our leverage peaks at around two times net debt to run rate EBITDA. The forecast assumes very limited development beyond our existing asset base, but it is more likely that we will continue to sign up projects and continue EBITDA growth in the future.

 

But as Nick mentioned earlier, there is a high bar for capital deployment. RNG development, projects where no project exists and conversion, landfill gas to electric to RNG, represent the bulk of the growth in capex spending.

 

Capex in the ground produces 20 plus years of cash flow. Long term offtake and low maintenance capex coupled with consistent, predictable landfill gas production drives free cash flow for decades. I will turn it back over to Kyle to walk through valuation.

 

13

 

 

Archaea Energy Investor Presentation Wednesday, 7th April 2021

 

Kyle Derham

 

President and CFO, Rice Acquisition Corp

 

Thanks, Brian. On slide 31, we have broken down the comp universe into four categories. The most straightforward analysis is to focus on the other public RNG players in the industry, Montauk, Ameresco and Clean Energy. When comparing Archaea’s growth, EBITDA margins and innovative strategy, it is clear to us that Archaea should trade at a substantial premium, yet we at Rice have been able to acquire the platform at highly attractive deal terms.

 

The alternative fuel names have some similarities to Archaea, but face significant headwinds, most importantly, a lack of feedstock security and limited growth prospects. Moving to the disruptors, this group is largely focused on promoting green hydrogen. As we have discussed, Archaea believes they can develop green hydrogen projects from RNG at a cost of $1.65 per kilogram through proven technology, which is well below the long-term targets of green hydrogen produced through electrolysis.

 

Moving to slide 33, here we focus on the other RNG comps across revenue, growth, EBITDA and margins. Archaea starts as a sizeable platform of similar scale to the rest of the comps, but has significantly higher growth and attractive margins and stands on its own starting in 2023.

 

When you add in the qualities, the team, their differentiated approach to development, hydrogen and CO2 sequestration, wrapped with a comprehensive commercial strategy, it is clear that Archaea should trade at a premium to the comps. We said this a few times, but it bears repeating. We are assuming $1.50 for RIN pricing, and current RINs are nearly double that. We expect to lock in 65% of our RNG volumes through fixed price offtake, but for the 35% exposure we do have to RINs, we have significant upside from here.

 

Moving to the next slide, we are showing how Archaea sizes up to a wider set of public comparables. When evaluating the growth, nearly 40% from 2020 to 2024, and EBITDA margins around 55%, Archaea looks like a disruptor comp more than an RNG comp, yet is priced lower than any of the names on this page.

 

Lastly, on slide 35, to drive this point home, we believe Archaea has the potential to be a $10 billion company. The comps certainly suggest it on a relative basis and the intrinsic value of the company’s underlying assets justify that on an absolute basis.

 

Lastly, on the bottom right, we show multiples of various prices. Even at $20 per share, Archaea would trade at an eight times multiple of 2024 estimated EBITDA, which is more than reasonable relative to the comps and we believe should provide immediate support for the stock price out of the gates. I will turn it back to Danny to wrap up our presentation.

 

Danny Rice

 

CEO, Rice Acquisition Corp

 

Thanks, Kyle. And thanks everybody for your time today. This final of slide really highlights, I think the 10 main reasons why Archaea Energy is a truly differentiated and compelling energy transition investment. There is strong sponsor alignment, an attractive valuation entry point for investors, a best in class team here, the predictable and perpetual feedstock that you get from landfill gas is so compelling, the proven technology that can be leveraged to generate this low risk growth, and the team has a very comprehensive commercial strategy and they are developing new revenue streams in a market with an expanding TAM that ultimately helps the environment in a truly sustainable way.

 

So we appreciate your interest. Thanks again for your time.

 

[END OF TRANSCRIPT]

 

 

14