Exhibit 10.2
OPAL FUELS, INC.
2022 OMNIBUS EQUITY INCENTIVE PLAN
Section 1. Purpose
of Plan.
The name of the Plan is the OPAL Fuels, Inc. 2022
Omnibus Equity Incentive Plan (the “Plan”). The purposes of the Plan are to (i) provide an additional incentive
to selected employees, directors, and independent contractors of the Company or its Affiliates whose contributions are essential to the
growth and success of the Company, (ii) strengthen the commitment of such individuals to the Company and its Affiliates, (iii) motivate
those individuals to faithfully and diligently perform their responsibilities and (iv) attract and retain competent and dedicated
individuals whose efforts will result in the long-term growth and profitability of the Company. To accomplish these purposes, the Plan
provides that the Company may grant Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Other Stock-Based Awards
or any combination of the foregoing.
Section 2. Definitions.
For purposes of the Plan, the following terms shall
be defined as set forth below:
(a) “Administrator”
means the Board, or, if and to the extent the Board does not administer the Plan, the Committee in accordance with Section 3 hereof.
(b) “Affiliate”
means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control
with, the Person specified as of any date of determination.
(c) “Applicable
Laws” means the applicable requirements under U.S. federal and state corporate laws, U.S. federal and state securities laws,
including the Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any
other country or jurisdiction where Awards are granted under the Plan, as are in effect from time to time.
(d) “Award”
means any Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit or Other Stock-Based Award granted under the Plan.
(e) “Award
Agreement” means any written notice, agreement, contract or other instrument or document evidencing an Award, including through
electronic medium, which shall contain such terms and conditions with respect to an Award as the Administrator shall determine, consistent
with the Plan.
(f) “Beneficial
Owner” (or any variant thereof) has the meaning defined in Rule 13d-3 under the Exchange Act.
(g) “Board”
means the Board of Directors of the Company.
(h) “Bylaws”
mean the bylaws of the Company, as may be amended and/or restated from time to time.
(i) Cause”
has the meaning assigned to such term in any individual service, employment or severance agreement or Award Agreement with the Participant
or, if no such agreement exists or if such agreement does not define “Cause,” then “Cause” means (i) the
conviction, guilty plea or plea of “no contest” by the Participant to any felony or a crime involving moral turpitude or the
Participant’s commission of any other act or omission involving dishonesty or fraud, (ii) the substantial and repeated failure
of the Participant to perform duties of the office held by the Participant, (iii) the Participant’s gross negligence, willful
misconduct or breach of fiduciary duty with respect to the Company or any of its Subsidiaries or Affiliates, (iv) any breach by the
Participant of any restrictive covenants to which the Participant is subject, and/or (v) the Participant’s engagement in any
conduct which is or can reasonably be expected to be materially detrimental or injurious to the business or reputation of the Company
or its Affiliates. Any voluntary termination of employment or service by the Participant in anticipation of an involuntary termination
of the Participant’s employment or service, as applicable, for Cause shall be deemed to be a termination for Cause.
(j) “Change
in Capitalization” means any (i) merger, consolidation, reclassification, recapitalization, spin-off, spin-out, repurchase
or other reorganization or corporate transaction or event, (ii) special or extraordinary dividend or other extraordinary distribution
(whether in the form of cash, Common Stock or other property), stock split, reverse stock split, share subdivision or consolidation, (iii) combination
or exchange of shares or (iv) other change in corporate structure, which, in any such case, the Administrator determines, in its
sole discretion, affects the Shares such that an adjustment pursuant to Section 5 hereof is appropriate.
(k) “Change
in Control” means the first occurrence of an event set forth in any one of the following paragraphs following the Effective
Date:
(1) any
Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company (not including in the securities Beneficially
Owned by such Person which were acquired directly from the Company or any Affiliate thereof) representing greater than fifty percent (50%)
of the combined voting power of the Company’s then outstanding securities, excluding any Person who becomes such a Beneficial Owner
in connection with a transaction described in clause (i) of paragraph (3) below; or
(2) the
date on which the individuals who constitute the Board as of the Effective Date and any new director (other than a director whose initial
assumption of office is in connection with an actual or threatened election contest, including, but not limited to, a consent solicitation,
relating to the election of directors of the Company) whose appointment or election by the Board or nomination for election by the Company’s
stockholders was approved or recommended by a vote of at least two-thirds (2/3) of the directors then still in office who either were
directors on the Effective Date or whose appointment, election or nomination for election was previously so approved or recommended cease
for any reason to constitute a majority of the number of directors serving on the Board; or
(3) there
is consummated a merger or consolidation of the Company or any direct or indirect Subsidiary with any other corporation or other entity,
other than (i) a merger or consolidation (A) which results in the voting securities of the Company outstanding immediately prior
to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities
of the surviving entity or any parent thereof), in combination with the ownership of any trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any Subsidiary, fifty percent (50%) or more of the combined voting power of the securities
of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation and (B) following
which the individuals who comprise the Board immediately prior thereto constitute at least a majority of the board of directors of the
Company, the entity surviving such merger or consolidation or, if the Company or the entity surviving such merger or consolidation is
then a Subsidiary, the ultimate parent thereof, or (ii) a merger or consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company
(not including in the securities Beneficially Owned by such Person any securities acquired directly from the Company or its Affiliates)
representing more than fifty percent (50%) of the combined voting power of the Company’s then outstanding securities; or
(4) the
stockholders of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated an agreement
for the sale or disposition by the Company of all or substantially all of the Company’s assets, other than (A) a sale or disposition
by the Company of all or substantially all of the Company’s assets to an entity, more than fifty percent (50%) of the combined voting
power of the voting securities of which are owned by stockholders of the Company following the completion of such transaction in substantially
the same proportions as their ownership of the Company immediately prior to such sale or (B) a sale or disposition of all or substantially
all of the Company’s assets immediately following which the individuals who comprise the Board immediately prior thereto constitute
at least a majority of the board of directors of the entity to which such assets are sold or disposed or, if such entity is a subsidiary,
the ultimate parent thereof.
Notwithstanding the foregoing, (i) a Change in Control shall not
be deemed to have occurred by virtue of the consummation of any transaction or series of integrated transactions immediately following
which the holders of Common Stock immediately prior to such transaction or series of transactions continue to have substantially the same
proportionate ownership in an entity which owns all or substantially all of the assets of the Company immediately following such transaction
or series of transactions and (ii) to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of
the Code, a Change in Control shall be deemed to have occurred under the Plan with respect to any Award that constitutes deferred compensation
under Section 409A of the Code only if a change in the ownership or effective control of the Company or a change in ownership of a substantial
portion of the assets of the Company shall also be deemed to have occurred under Section 409A of the Code. For purposes of this definition
of Change in Control, the term “Person” shall not include (i) the Company or any Subsidiary thereof, (ii) a trustee
or other fiduciary holding securities under an employee benefit plan of the Company or any Subsidiary thereof, (iii) an underwriter
temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by
the stockholders of the Company in substantially the same proportions as their ownership of shares of the Company.
(l) “Code”
means the Internal Revenue Code of 1986, as amended from time to time, or any successor thereto.
(m) “Committee”
means any committee or subcommittee the Board (including, but not limited to the Compensation Committee) may appoint to administer the
Plan. Subject to the discretion of the Board, the Committee shall be composed entirely of individuals who meet the qualifications of a
“non-employee director” within the meaning of Rule 16b-3 under the Exchange Act and any other qualifications required by the
applicable stock exchange on which the Common Stock is traded.
(n) “Common
Stock” means the Class A Common Stock of the Company, par value $0.0001.
(o) “Company”
means OPAL Fuels, Inc., a Delaware corporation (or any successor company, except as the term “Company” is used in the definition
of “Change in Control” above).
(p) “Disability”
has the meaning assigned to such term in any individual service, employment or severance agreement or Award Agreement with the Participant
or, if no such agreement exists or if such agreement does not define “Disability,” then “Disability” means that
a Participant, as determined by the Administrator in its sole discretion, (i) is unable to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last
for a continuous period of not less than twelve (12) months, or (ii) is, by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months,
receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees
of the Company or an Affiliate thereof.
(q) “Effective
Date” has the meaning set forth in Section 17 hereof.
(r) “Eligible
Recipient” means an employee, director or independent contractor of the Company or any Affiliate of the Company who has been
selected as an eligible participant by the Administrator; provided, however, to the extent required to avoid accelerated
taxation and/or tax penalties under Section 409A of the Code, an Eligible Recipient of an Option or a Stock Appreciation Right means an
employee, non-employee director or independent contractor of the Company or any Affiliate of the Company with respect to whom the Company
is an “eligible issuer of service recipient stock” within the meaning of Section 409A of the Code.
(s) “Exchange
Act” means the Securities Exchange Act of 1934, as amended from time to time.
(t) “Exempt
Award” shall mean the following:
(1) An
Award granted in assumption of, or in substitution for, outstanding awards previously granted by a corporation or other entity acquired
by the Company or any of its Subsidiaries or with which the Company or any of its Subsidiaries combines by merger or otherwise. The terms
and conditions of any such Awards may vary from the terms and conditions set forth in the Plan to the extent the Administrator at the
time of grant may deem appropriate, subject to Applicable Laws.
(2) An
award that an Eligible Recipient purchases at Fair Market Value (including awards that an Eligible Recipient elects to receive in lieu
of fully vested compensation that is otherwise due) whether or not the Shares are delivered immediately or on a deferred basis.
(u) “Exercise
Price” means, (i) with respect to any Option, the per share price at which a holder of such Option may purchase Shares
issuable upon exercise of such Award, and (ii) with respect to a Stock Appreciation Right, the base price per share of such Stock
Appreciation Right.
(v) “Fair
Market Value” of a share of Common Stock or another security as of a particular date shall mean the fair market value as determined
by the Administrator in its sole discretion; provided, that, (i) if the Common Stock or other security is admitted to trading on
a national securities exchange, the fair market value on any date shall be the closing sale price reported on such date, or if no shares
were traded on such date, on the last preceding date for which there was a sale of a share of Common Stock on such exchange, or (ii) if
the Common Stock or other security is then traded in an over-the-counter market, the fair market value on any date shall be the average
of the closing prices for such share in such over-the-counter market for the last preceding date on which there was a sale of such share
in such market.
(w) “Free
Standing Rights” has the meaning set forth in Section 8.
(x) “Good
Reason” has the meaning assigned to such term in any individual service, employment or severance agreement or Award Agreement
with the Participant or, if no such agreement exists or if such agreement does not define “Good Reason,” “Good Reason”
and any provision of this Plan that refers to “Good Reason” shall not be applicable to such Participant.
(y) “Incentive
Compensation” means annual cash bonus and any Award.
(z) “ISO”
means an Option intended to be and designated as an “incentive stock option” within the meaning of Section 422 of the Code.
(aa) “Nonqualified
Stock Option” shall mean an Option that is not designated as an ISO.
(bb) “Option”
means an option to purchase shares of Common Stock granted pursuant to Section 7 hereof. The term “Option” as used in the
Plan includes the terms “Nonqualified Stock Option” and “ISO.”
(cc) “Other
Stock-Based Award” means a right or other interest granted pursuant to Section 10 hereof that may be denominated or payable
in, valued in whole or in part by reference to, or otherwise based on or related to, Common Stock, including, but not limited to, unrestricted
Shares, dividend equivalents or performance units, each of which may be subject to the attainment of performance goals or a period of
continued provision of service or employment or other terms or conditions as permitted under the Plan.
(dd) “Participant”
means any Eligible Recipient selected by the Administrator, pursuant to the Administrator’s authority provided for in Section 3
below, to receive grants of Awards, and, upon his or her death, his or her successors, heirs, executors and administrators, as the case
may be.
(ee) “Person”
shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof.
(ff) “Plan”
means this 2022 Omnibus Equity Incentive Plan.
(gg) “Related
Rights” has the meaning set forth in Section 8.
(hh) “Restricted
Period” has the meaning set forth in Section 9.
(ii) “Restricted
Stock” means a Share granted pursuant to Section 9 below subject to certain restrictions that lapse at the end of a specified
period (or periods) of time and/or upon attainment of specified performance objectives.
(jj) “Restricted
Stock Unit” means the right granted pursuant to Section 9 hereof to receive a Share at the end of a specified restricted period
(or periods) of time and/or upon attainment of specified performance objectives.
(kk) “Rule
16b-3” has the meaning set forth in Section 3.
(ll) “Section
16 Officer” means any officer of the Company whom the Board has determined is subject to the reporting requirements of Section
16 of the Exchange Act, whether or not such individual is a Section 16 Officer at the time the determination to recoup compensation is
made.
(mm) “Shares”
means Common Stock reserved for issuance under the Plan, as adjusted pursuant to the Plan, and any successor (pursuant to a merger, consolidation
or other reorganization) security.
(nn) “Stock
Appreciation Right” means a right granted pursuant to Section 8 hereof to receive an amount equal to the excess, if any, of
(i) the aggregate Fair Market Value, as of the date such Award or portion thereof is surrendered, of the Shares covered by such Award
or such portion thereof, over (ii) the aggregate Exercise Price of such Award or such portion thereof.
(oo) “Subsidiary”
means, with respect to any Person, as of any date of determination, any other Person as to which such first Person owns or otherwise controls,
directly or indirectly, more than 50% of the voting shares or other similar interests or a sole general partner interest or managing member
or similar interest of such other Person.
(pp) “Transfer”
has the meaning set forth in Section 15.
Section 3. Administration.
(a) The
Plan shall be administered by the Administrator and shall be administered, to the extent applicable, in accordance with Rule 16b-3 under
the Exchange Act (“Rule 16b-3”).
(b) Pursuant
to the terms of the Plan, the Administrator, subject, in the case of any Committee, to any restrictions on the authority delegated to
it by the Board, shall have the power and authority, without limitation:
(1) to
select those Eligible Recipients who shall be Participants;
(2) to
determine whether and to what extent Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Other Stock-Based Awards
or a combination of any of the foregoing, are to be granted hereunder to Participants;
(3) to
determine the number of Shares to be covered by each Award granted hereunder;
(4) to
determine the terms and conditions, not inconsistent with the terms of the Plan, of each Award granted hereunder (including, but not limited
to, (i) the restrictions applicable to Restricted Stock or Restricted Stock Units and the conditions under which restrictions applicable
to such Restricted Stock or Restricted Stock Units shall lapse, (ii) the performance goals and periods applicable to Awards, (iii) the
Exercise Price of each Option and each Stock Appreciation Right or the purchase price of any other Award, (iv) the vesting schedule
and terms applicable to each Award, (v) the number of Shares or amount of cash or other property subject to each Award and (vi) subject
to the requirements of Section 409A of the Code (to the extent applicable) any amendments to the terms and conditions of outstanding Awards,
including, but not limited to, extending the exercise period of such Awards and accelerating the payment schedules of such Awards and/or,
to the extent specifically permitted under the Plan, accelerating the vesting schedules of such Awards);
(5) to
determine the terms and conditions, not inconsistent with the terms of the Plan, which shall govern all written instruments evidencing
Awards;
(6) to
determine the Fair Market Value in accordance with the terms of the Plan;
(7) to
determine the duration and purpose of leaves of absence which may be granted to a Participant without constituting termination of the
Participant’s service or employment for purposes of Awards granted under the Plan;
(8) to
adopt, alter and repeal such administrative rules, regulations, guidelines and practices governing the Plan as it shall from time to time
deem advisable;
(9) to
construe and interpret the terms and provisions of, and supply or correct omissions in, the Plan and any Award issued under the Plan (and
any Award Agreement relating thereto), and to otherwise supervise the administration of the Plan and to exercise all powers and authorities
either specifically granted under the Plan or necessary and advisable in the administration of the Plan; and
(10) to
prescribe, amend and rescind rules and regulations relating to sub-plans established for the purpose of satisfying applicable non-United
States laws or for qualifying for favorable tax treatment under applicable non-United States laws, which rules and regulations may be
set forth in an appendix or appendixes to the Plan.
(c) Subject
to Section 5, neither the Board nor the Committee shall have the authority to reprice or cancel and regrant any Award at a lower exercise,
base or purchase price or cancel any Award with an exercise, base or purchase price in exchange for cash, property or other Awards without
first obtaining the approval of the Company’s stockholders.
(d) All
decisions made by the Administrator pursuant to the provisions of the Plan shall be final, conclusive and binding on all Persons, including
the Company and the Participants.
(e) The
expenses of administering the Plan (which for avoidance of doubt does not include the costs of any Participant) shall be borne by the
Company and its Affiliates.
(f) If
at any time or to any extent the Board shall not administer the Plan, then the functions of the Administrator specified in the Plan shall
be exercised by the Committee. Except as otherwise provided in the Articles of Incorporation or Bylaws of the Company, any action of the
Committee with respect to the administration of the Plan shall be taken by a majority vote at a meeting at which a quorum is duly constituted
or unanimous written consent of the Committee’s members.
Section 4. Shares
Reserved for Issuance Under the Plan.
(a) Subject
to Section 5 hereof, the number of shares of Common Stock that are reserved and available for issuance pursuant to Awards granted under
the Plan shall be equal to the sum of (i) 19,811,726 shares, plus (ii) an annual increase on the first day of each calendar
year beginning with the first January 1 following the Effective Date and ending with the last January 1 during the initial ten-year term
of the Plan, equal to the lesser of (A) five percent (5%) of the shares of the Company’s Class A Common Stock, Class B
Common Stock, Class C Common Stock and Class D Common Stock (collectively, the “Company Common Stock”) outstanding
(on an as-converted basis, which shall include shares of Company Common Stock issuable upon the exercise or conversion of all outstanding
securities or rights convertible into or exercisable for shares of Company Common Stock, including without limitation, preferred stock,
warrants and employee options to purchase any shares of Company Common Stock) on the final day of the immediately preceding calendar year
and (B) such lesser number of Shares as determined by the Board; provided, that, shares of Common Stock issued
under the Plan with respect to an Exempt Award shall not count against such share limit.
(b) Shares
issued under the Plan may, in whole or in part, be authorized but unissued Shares or Shares that shall have been or may be reacquired
by the Company in the open market, in private transactions or otherwise. If an Award entitles the Participant to receive or purchase Shares,
the number of Shares covered by such Award or to which such Award relates shall be counted on the date of grant of such Award against
the aggregate number of Shares available for granting Awards under the Plan. If any Shares subject to an Award are forfeited, cancelled,
exchanged or surrendered or if an Award otherwise terminates or expires without a distribution of Shares to the Participant, the Shares
with respect to such Award shall, to the extent of any such forfeiture, cancellation, exchange, surrender, termination or expiration,
again be available for granting Awards under the Plan. Notwithstanding the foregoing, (i) any Shares reacquired by the Company on
the open market or otherwise using cash proceeds from the exercise of Options; and (ii) Shares surrendered or withheld as payment
of either the Exercise Price of an Award (including Shares otherwise underlying a Stock Appreciation Right that are retained by the Company
to account for the Exercise Price of such Stock Appreciation Right) and/or withholding taxes in respect of an Award shall no longer be
available for grant under the Plan. In addition, (i) to the extent an Award is denominated in shares of Common Stock, but paid or
settled in cash, the number of shares of Common Stock with respect to which such payment or settlement is made shall again be available
for grants of Awards pursuant to the Plan and (ii) shares of Common Stock underlying Awards that can only be settled in cash shall
not be counted against the aggregate number of shares of Common Stock available for Awards under the Plan. Upon the exercise of any Award
granted in tandem with any other Awards, such related Awards shall be cancelled to the extent of the number of Shares as to which the
Award is exercised and, notwithstanding the foregoing, such number of Shares shall no longer be available for grant under the Plan.
(c) No
more than 19,811,726 Shares shall be issued pursuant to the exercise of ISOs.
Section 5. Equitable
Adjustments.
In the event of any Change in Capitalization, an
equitable substitution or proportionate adjustment shall be made in (i) the aggregate number and kind of securities reserved for
issuance under the Plan pursuant to Section 4, (ii) the kind, number of securities subject to, and the Exercise Price subject to
outstanding Options and Stock Appreciation Rights granted under the Plan, (iii) the kind, number and purchase price of Shares or
other securities or the amount of cash or amount or type of other property subject to outstanding Restricted Stock, Restricted Stock Units
or Other Stock-Based Awards granted under the Plan; and/or (iv) the terms and conditions of any outstanding Awards (including, without
limitation, any applicable performance targets or criteria with respect thereto); provided, however, that any
fractional shares resulting from the adjustment shall be eliminated. Such other equitable substitutions or adjustments shall be made as
may be determined by the Administrator, in its sole discretion. Without limiting the generality of the foregoing, in connection with a
Change in Capitalization, the Administrator may provide, in its sole discretion, but subject in all events to the requirements of Section
409A of the Code, for the cancellation of any outstanding Award granted hereunder in exchange for payment in cash or other property having
an aggregate Fair Market Value equal to the Fair Market Value of the Shares, cash or other property covered by such Award, reduced by
the aggregate Exercise Price or purchase price thereof, if any; provided, however, that if the Exercise Price
or purchase price of any outstanding Award is equal to or greater than the Fair Market Value of the shares of Common Stock, cash or other
property covered by such Award, the Administrator may cancel such Award without the payment of any consideration to the Participant. Further,
without limiting the generality of the foregoing, with respect to Awards subject to foreign laws, adjustments made hereunder shall be
made in compliance with applicable requirements. Except to the extent determined by the Administrator, any adjustments to ISOs under this
Section 5 shall be made only to the extent not constituting a “modification” within the meaning of Section 424(h)(3)
of the Code. The Administrator’s determinations pursuant to this Section 5 shall be final, binding and conclusive.
Section 6. Eligibility
and Award Limits.
The Participants in the Plan shall be selected from
time to time by the Administrator, in its sole discretion, from those individuals that qualify as Eligible Recipients.
Section 7. Options.
(a) General.
Options granted under the Plan shall be designated as Nonqualified Stock Options or ISOs. Each Participant who is granted an Option shall
enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator shall determine, in its sole
discretion, including, among other things, the Exercise Price of the Option, the term of the Option and provisions regarding exercisability
of the Option, and whether the Option is intended to be an ISO or a Nonqualified Stock Option (and in the event the Award Agreement has
no such designation, the Option shall be a Nonqualified Stock Option). The provisions of each Option need not be the same with respect
to each Participant. More than one Option may be granted to the same Participant and be outstanding concurrently hereunder. Options granted
under the Plan shall be subject to the terms and conditions set forth in this Section 7 and shall contain such additional terms and conditions,
not inconsistent with the terms of the Plan, as the Administrator shall deem desirable and set forth in the applicable Award Agreement.
(b) Exercise
Price. The Exercise Price of Shares purchasable under an Option shall be determined by the Administrator in its sole discretion at
the time of grant, but in no event shall the exercise price of an Option be less than one hundred percent (100%) of the Fair Market Value
of a share of Common Stock on the date of grant.
(c) Option
Term. The maximum term of each Option shall be fixed by the Administrator, but no Option shall be exercisable more than ten (10) years
after the date such Option is granted. Each Option’s term is subject to earlier expiration pursuant to the applicable provisions
in the Plan and the Award Agreement. Notwithstanding the foregoing, subject to Section 4(d) of the Plan, the Administrator shall have
the authority to accelerate the exercisability of any outstanding Option at such time and under such circumstances as the Administrator,
in its sole discretion, deems appropriate.
(d) Exercisability.
Each Option shall be subject to vesting at such time or times and subject to such terms and conditions, including the attainment of performance
goals, as shall be determined by the Administrator in the applicable Award Agreement. The Administrator may also provide that any Option
shall be exercisable only in installments, and the Administrator may waive such installment exercise provisions at any time, in whole
or in part, based on such factors as the Administrator may determine in its sole discretion.
(e) Method
of Exercise. Options may be exercised in whole or in part by giving written notice of exercise to the Company specifying the number
of whole Shares to be purchased, accompanied by payment in full of the aggregate Exercise Price of the Shares so purchased in cash or
its equivalent, as determined by the Administrator. As determined by the Administrator, in its sole discretion, with respect to any Option
or category of Options, payment in whole or in part may also be made (i) by means of consideration received under any cashless exercise
procedure approved by the Administrator (including the withholding of Shares otherwise issuable upon exercise), (ii) in the form
of unrestricted Shares already owned by the Participant which have a Fair Market Value on the date of surrender equal to the aggregate
exercise price of the Shares as to which such Option shall be exercised, (iii) any other form of consideration approved by the Administrator
and permitted by Applicable Laws or (iv) any combination of the foregoing.
(f) ISOs.
The terms and conditions of ISOs granted hereunder shall be subject to the provisions of Section 422 of the Code and the terms, conditions,
limitations and administrative procedures established by the Administrator from time to time in accordance with the Plan. At the discretion
of the Administrator, ISOs may be granted only to an employee of the Company, its “parent corporation” (as such term is defined
in Section 424(e) of the Code) or a Subsidiary of the Company.
(1) ISO
Grants to 10% Stockholders. Notwithstanding anything to the contrary in the Plan, if an ISO is granted to a Participant who owns shares
representing more than ten percent (10%) of the voting power of all classes of shares of the Company at the time of grant, its “parent
corporation” (as such term is defined in Section 424(e) of the Code) or a Subsidiary of the Company, the term of the ISO shall not
exceed five (5) years from the time of grant of such ISO and the Exercise Price shall be at least one hundred and ten percent
(110%) of the Fair Market Value of the Shares on the date of grant.
(2) $100,000
Per Year Limitation For ISOs. To the extent the aggregate Fair Market Value (determined on the date of grant) of the Shares for which
ISOs are exercisable for the first time by any Participant during any calendar year (under all plans of the Company) exceeds $100,000,
such excess ISOs shall be treated as Nonqualified Stock Options.
(3) Disqualifying
Dispositions. Each Participant awarded an ISO under the Plan shall notify the Company in writing immediately after the date the Participant
makes a “disqualifying disposition” of any Share acquired pursuant to the exercise of such ISO. A “disqualifying disposition”
is any disposition (including any sale) of such Shares before the later of (i) two years after the date of grant of the ISO and (ii) one
year after the date the Participant acquired the Shares by exercising the ISO. The Company may, if determined by the Administrator and
in accordance with procedures established by it, retain possession of any Shares acquired pursuant to the exercise of an ISO as agent
for the applicable Participant until the end of the period described in the preceding sentence, subject to complying with any instructions
from such Participant as to the sale of such Shares.
(g) Rights
as Stockholder. A Participant shall have no rights to dividends, dividend equivalents or distributions or any other rights of a stockholder
with respect to the Shares subject to an Option until the Participant has given written notice of the exercise thereof, and has paid in
full for such Shares and has satisfied the requirements of Section 15 hereof.
(h) Termination
of Employment or Service. In the event of a Participant’s termination for any reason other than death, Disability or Cause,
the portion of such Participant’s Options that is not vested and exercisable as of the termination date shall not continue to vest
and shall be immediately terminated and cancelled, and the portion of such Options that is vested and exercisable as of the termination
date shall terminate and be cancelled on the earlier of (i) the expiration of the term of such Options (as provided in the applicable
Award Agreement); and (ii) ninety (90) days after such termination date. In the event of a Participant’s termination due
to death or Disability, the portion of such Participant’s Options that is not vested and exercisable as of the termination date
shall not continue to vest and shall be immediately cancelled and terminated, and the portion of such Options that is vested and exercisable
as of the termination date shall terminate and be cancelled on the earlier of (x) the expiration of the term of such Options (as
provided in the applicable Award Agreement); and (y) the date that is twelve (12) months after the termination date. In the
event of a Participant’s termination for Cause, or if after such termination, the Administrator determines that Cause existed before
such termination, such Participant’s Options shall not continue to vest, shall be cancelled and terminated as of the termination
date, and shall no longer be exercisable as to any Shares, whether or not previously vested.
(i) Other
Change in Employment or Service Status. An Option shall be affected, both with regard to vesting schedule and termination, by leaves
of absence, including unpaid and un-protected leaves of absence, changes from full-time to part-time employment, partial Disability or
other changes in the employment status or service status of a Participant, in the discretion of the Administrator.
Section 8. Stock
Appreciation Rights.
(a) General.
Stock Appreciation Rights may be granted either alone (“Free Standing Rights”) or in conjunction with all or part of
any Option granted under the Plan (“Related Rights”). Related Rights may be granted either at or after the time of
the grant of such Option. The Administrator shall determine the Eligible Recipients to whom, and the time or times at which, grants of
Stock Appreciation Rights shall be made. Each Participant who is granted a Stock Appreciation Right shall enter into an Award Agreement
with the Company, containing such terms and conditions as the Administrator shall determine, in its sole discretion, including, among
other things, the number of Shares to be awarded, the Exercise Price per Share, and all other conditions of Stock Appreciation Rights.
Notwithstanding the foregoing, no Related Right may be granted for more Shares than are subject to the Option to which it relates. The
provisions of Stock Appreciation Rights need not be the same with respect to each Participant. Stock Appreciation Rights granted under
the Plan shall be subject to the following terms and conditions set forth in this Section 8 and shall contain such additional terms and
conditions, not inconsistent with the terms of the Plan, as the Administrator shall deem desirable, as set forth in the applicable Award
Agreement.
(b) Awards;
Rights as Stockholder. A Participant shall have no rights to dividends or any other rights of a stockholder with respect to the shares
of Common Stock, if any, subject to a Stock Appreciation Right until the Participant has given written notice of the exercise thereof
and has satisfied the requirements of Section 15 hereof.
(c) Exercise
Price. The Exercise Price of Shares purchasable under a Stock Appreciation Right shall be determined by the Administrator in its sole
discretion at the time of grant, but in no event shall the exercise price of a Stock Appreciation Right be less than one hundred percent
(100%) of the Fair Market Value of a share of Common Stock on the date of grant.
(d) Exercisability.
(1) Stock
Appreciation Rights that are Free Standing Rights shall be exercisable at such time or times and subject to such terms and conditions
as shall be determined by the Administrator in the applicable Award Agreement.
(2) Stock
Appreciation Rights that are Related Rights shall be exercisable only at such time or times and to the extent that the Options to which
they relate shall be exercisable in accordance with the provisions of Section 7 hereof and this Section 8 of the Plan.
(e) Payment
Upon Exercise.
(1) Upon
the exercise of a Free Standing Right, the Participant shall be entitled to receive up to, but not more than, that number of Shares equal
in value to the excess of the Fair Market Value as of the date of exercise over the Exercise Price per share specified in the Free Standing
Right multiplied by the number of Shares in respect of which the Free Standing Right is being exercised.
(2) A
Related Right may be exercised by a Participant by surrendering the applicable portion of the related Option. Upon such exercise and surrender,
the Participant shall be entitled to receive up to, but not more than, that number of Shares equal in value to the excess of the Fair
Market Value as of the date of exercise over the Exercise Price specified in the related Option multiplied by the number of Shares in
respect of which the Related Right is being exercised. Options which have been so surrendered, in whole or in part, shall no longer be
exercisable to the extent the Related Rights have been so exercised.
(3) Notwithstanding
the foregoing, the Administrator may determine to settle the exercise of a Stock Appreciation Right in cash (or in any combination of
Shares and cash).
(f) Termination
of Employment or Service. In the event of a Participant’s termination for any reason other than death, Disability or Cause,
the portion of such Participant’s Stock Appreciation Rights that is not vested and exercisable as of the termination date shall
not continue to vest and shall be immediately terminated and cancelled, and the portion of such Stock Appreciation Rights that is vested
and exercisable as of the termination date shall terminate and be cancelled on the earlier of (i) the expiration of the term of such
Stock Appreciation Rights (as provided in the applicable Award Agreement); and (ii) ninety (90) days after such termination
date. In the event of a Participant’s termination due to death or Disability, the portion of such Participant’s Stock Appreciation
Rights that is not vested and exercisable as of the termination date shall not continue to vest and shall be immediately cancelled and
terminated, and the portion of such Stock Appreciation Rights that is vested and exercisable as of the termination date shall terminate
and be cancelled on the earlier of (x) the expiration of the term of such Stock Appreciation Rights (as provided in the applicable
Award Agreement); and (y) the date that is twelve (12) months after the termination date. In the event of a Participant’s
termination for Cause, or if after such termination, the Administrator determines that Cause existed before such termination, such Participant’s
Stock Appreciation Rights shall not continue to vest, shall be cancelled and terminated as of the termination date, and shall no longer
be exercisable as to any Shares, whether or not previously vested.
(g) Term.
(1) The
term of each Free Standing Right shall be fixed by the Administrator, but no Free Standing Right shall be exercisable more than ten (10)
years after the date such right is granted.
(2) The
term of each Related Right shall be the term of the Option to which it relates, but no Related Right shall be exercisable more than ten
(10) years after the date such right is granted.
(h) Other
Change in Employment or Service Status. Stock Appreciation Rights shall be affected, both with regard to vesting schedule and termination,
by leaves of absence, including unpaid and un-protected leaves of absence, changes from full-time to part-time employment, partial Disability
or other changes in the employment or service status of a Participant, in the discretion of the Administrator.
Section 9. Restricted
Stock and Restricted Stock Units.
(a) General.
Restricted Stock or Restricted Stock Units may be issued under the Plan. The Administrator shall determine the Eligible Recipients to
whom, and the time or times at which, Restricted Stock or Restricted Stock Units shall be made. Each Participant who is granted Restricted
Stock or Restricted Stock Units shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator
shall determine, in its sole discretion, including, among other things, the number of Shares to be awarded; the price, if any, to be paid
by the Participant for the acquisition of Restricted Stock or Restricted Stock Units; the period of time restrictions, performance goals
or other conditions that apply to Transferability, delivery or vesting of such Awards (the “Restricted Period”); and
all other conditions applicable to the Restricted Stock and Restricted Stock Units. If the restrictions, performance goals or conditions
established by the Administrator are not attained, a Participant shall forfeit his or her Restricted Stock or Restricted Stock Units,
in accordance with the terms of the grant. The provisions of the Restricted Stock or Restricted Stock Units need not be the same with
respect to each Participant.
(b) Awards
and Certificates. Except as otherwise provided below in Section 9(c), (i) each Participant who is granted an Award of Restricted
Stock may, in the Company’s sole discretion, be issued a share certificate in respect of such Restricted Stock; and (ii) any
such certificate so issued shall be registered in the name of the Participant, and shall bear an appropriate legend referring to the terms,
conditions and restrictions applicable to any such Award. The Company may require that the share certificates, if any, evidencing Restricted
Stock granted hereunder be held in the custody of the Company until the restrictions thereon shall have lapsed, and that, as a condition
of any Award of Restricted Stock, the Participant shall have delivered a share transfer form, endorsed in blank, relating to the Shares
covered by such Award. Certificates for shares of unrestricted Common Stock may, in the Company’s sole discretion, be delivered
to the Participant only after the Restricted Period has expired without forfeiture in such Restricted Stock Award. With respect to Restricted
Stock Units to be settled in Shares, at the expiration of the Restricted Period, share certificates in respect of the shares of Common
Stock underlying such Restricted Stock Units may, in the Company’s sole discretion, be delivered to the Participant, or his or her
legal representative, in a number equal to the number of shares of Common Stock underlying the Restricted Stock Units Award. Notwithstanding
anything in the Plan to the contrary, any Restricted Stock or Restricted Stock Units to be settled in Shares (at the expiration of the
Restricted Period, and whether before or after any vesting conditions have been satisfied) may, in the Company’s sole discretion,
be issued in uncertificated form. Further, notwithstanding anything in the Plan to the contrary, with respect to Restricted Stock Units,
at the expiration of the Restricted Period, Shares, or cash, as applicable, shall promptly be issued (either in certificated or uncertificated
form) to the Participant, unless otherwise deferred in accordance with procedures established by the Company in accordance with Section
409A of the Code, and such issuance or payment shall in any event be made within such period as is required to avoid the imposition of
a tax under Section 409A of the Code.
(c) Restrictions
and Conditions. The Restricted Stock or Restricted Stock Units granted pursuant to this Section 9 shall be subject to the following
restrictions and conditions and any additional restrictions or conditions as determined by the Administrator at the time of grant or,
subject to Section 409A of the Code where applicable, thereafter:
(1) The
Administrator may, in its sole discretion, provide for the lapse of restrictions in installments and may accelerate or waive such restrictions
in whole or in part based on such factors and such circumstances as the Administrator may determine, in its sole discretion, including,
but not limited to, the attainment of certain performance goals, the Participant’s termination of employment or service with the
Company or any Affiliate thereof, or the Participant’s death or Disability. Notwithstanding the foregoing, upon a Change in Control,
the outstanding Awards shall be subject to Section 11 hereof.
(2) Except
as provided in the applicable Award Agreement, the Participant shall generally have the rights of a stockholder of the Company with respect
to Restricted Stock during the Restricted Period; provided, however, that dividends declared during the Restricted
Period with respect to an Award, shall only become payable if (and to the extent) the underlying Restricted Stock vests. Except as provided
in the applicable Award Agreement, the Participant shall generally not have the rights of a stockholder with respect to Shares subject
to Restricted Stock Units during the Restricted Period; provided, however, that, subject to Section 409A of the
Code, an amount equal to dividends declared during the Restricted Period with respect to the number of Shares covered by Restricted Stock
Units shall, unless otherwise set forth in an Award Agreement, be paid to the Participant at the time (and to the extent) Shares in respect
of the related Restricted Stock Units are delivered to the Participant. Certificates for Shares of unrestricted Common Stock may, in the
Company’s sole discretion, be delivered to the Participant only after the Restricted Period has expired without forfeiture in respect
of such Restricted Stock or Restricted Stock Units, except as the Administrator, in its sole discretion, shall otherwise determine.
(3) The
rights of Participants granted Restricted Stock or Restricted Stock Units upon termination of employment or service as a director or independent
contractor to the Company or to any Affiliate thereof terminates for any reason during the Restricted Period shall be set forth in the
Award Agreement.
(d) Form
of Settlement. The Administrator reserves the right in its sole discretion to provide (either at or after the grant thereof) that
any Restricted Stock Unit represents the right to receive the amount of cash per unit that is determined by the Administrator in connection
with the Award.
Section 10. Other
Stock-Based Awards.
Other Stock-Based Awards may be issued under the
Plan. Subject to the provisions of the Plan, the Administrator shall have sole and complete authority to determine the individuals to
whom and the time or times at which such Other Stock-Based Awards shall be granted. Each Participant who is granted an Other Stock-Based
Award shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator shall determine,
in its sole discretion, including, among other things, the number of shares of Common Stock to be granted pursuant to such Other Stock-Based
Awards, or the manner in which such Other Stock-Based Awards shall be settled (e.g., in shares of Common Stock, cash or other property),
or the conditions to the vesting and/or payment or settlement of such Other Stock-Based Awards (which may include, but not be limited
to, achievement of performance criteria) and all other terms and conditions of such Other Stock-Based Awards.
In the event that the Administrator grants a bonus in the form
of Shares, the Shares constituting such bonus shall, as determined by the Administrator, be evidenced in uncertificated form or by a book
entry record or a certificate issued in the name of the Participant to whom such grant was made and delivered to such Participant as soon
as practicable after the date on which such bonus is payable. Notwithstanding anything set forth in the Plan to the contrary, any dividend
or dividend equivalent Award issued hereunder shall be subject to the same restrictions, conditions and risks of forfeiture as apply to
the underlying Award.
Section 11. Change
in Control.
Unless otherwise determined by the Administrator
and evidenced in an Award Agreement, in the event that (a) a Change in Control occurs, and (b) the Participant is employed by the
Company or any of its Affiliates immediately prior to the consummation of such Change in Control then upon the consummation of such Change
in Control, the Administrator, in its sole and absolute discretion, may:
(a) provide
that Awards, whether or not then vested, shall be continued, be assumed, or have new rights substituted therefor, as determined by the
Administrator in a manner consistent with the requirements of Section 409A of the Code, and restrictions to which Awards granted prior
to the Change in Control are subject shall not lapse upon a Change in Control and the Award shall, where appropriate in the sole discretion
of the Administrator, receive the same distribution as other Shares on such terms as determined by the Administrator; provided that
the Administrator may decide to award additional Awards in lieu of any cash distribution. Notwithstanding anything to the contrary herein,
for purposes of ISOs, any assumed or substituted Option shall comply with the requirements of Treasury Regulation Section 1.424-1 (and
any amendment thereto);
(b) provide
that any unvested or unexercisable portion of any Award carrying a right to exercise become fully vested and exercisable;
(c) cause
the restrictions, deferral limitations, payment conditions and forfeiture conditions applicable to an Award granted under the Plan to
lapse and such Awards shall be deemed fully vested and any performance conditions imposed with respect to such Awards shall be deemed
to be fully achieved at target performance levels; and/or
(d) provide
for the purchase of any Awards by the Company for an amount of cash equal to the excess (if any) of the highest price per Share paid in
such Change in Control (the “Change in Control Price”), over the aggregate exercise price of such Awards; provided,
however, that if the exercise price of an Option or Stock Appreciation Right exceeds the Change in Control Price, such Award may be
cancelled for no consideration.
If the Administrator determines in its discretion
pursuant to Section 3(b)(4) hereof to accelerate the vesting of Options and/or Share Appreciation Rights in connection with a Change in
Control, the Administrator shall also have discretion in connection with such action to provide that all Options and/or Stock Appreciation
Rights outstanding immediately prior to such Change in Control shall expire on the effective date of such Change in Control.
Section 12. Amendment
and Termination.
The Board may amend, alter or terminate the Plan
at any time, but no amendment, alteration or termination shall be made that would impair the rights of a Participant under any Award theretofore
granted without such Participant’s consent. The Board shall obtain approval of the Company’s stockholders for any amendment
that would require such approval in order to satisfy the requirements of any rules of the stock exchange on which the Common Stock is
traded or other Applicable Law. Subject to Section 3(c), the Administrator may amend the terms of any Award theretofore granted, prospectively
or retroactively, but, subject to Section 5 of the Plan and the immediately preceding sentence, no such amendment shall materially impair
the rights of any Participant without his or her consent.
Section 13. Unfunded
Status of Plan.
The Plan is intended to constitute an “unfunded”
plan for incentive compensation. With respect to any payments not yet made to a Participant by the Company, nothing contained herein shall
give any such Participant any rights that are greater than those of a general creditor of the Company.
Section 14. Withholding
Taxes.
Each Participant shall, no later than the date as
of which the value of an Award first becomes includible in the gross income of such Participant for purposes of applicable taxes, pay
to the Company, or make arrangements satisfactory to the Administrator regarding payment of an amount up to the maximum statutory tax
rates in the Participant’s applicable jurisdiction with respect to the Award, as determined by the Company. The obligations of the
Company under the Plan shall be conditional on the making of such payments or arrangements, and the Company shall, to the extent permitted
by Applicable Laws, have the right to deduct any such taxes from any payment of any kind otherwise due to such Participant. Whenever cash
is to be paid pursuant to an Award, the Company shall have the right to deduct therefrom an amount sufficient to satisfy any applicable
withholding tax requirements related thereto. Whenever Shares or property other than cash are to be delivered pursuant to an Award, the
Company shall have the right to require the Participant to remit to the Company in cash an amount sufficient to satisfy any related taxes
to be withheld and applied to the tax obligations; provided, that, with the approval of the Administrator, a Participant
may satisfy the foregoing requirement by either (i) electing to have the Company withhold from delivery of Shares or other property,
as applicable, or (ii) delivering already owned unrestricted shares of Common Stock, in each case, having a value not exceeding the
applicable taxes to be withheld and applied to the tax obligations. Such already owned and unrestricted shares of Common Stock shall be
valued at their Fair Market Value on the date on which the amount of tax to be withheld is determined and any fractional share amounts
resulting therefrom shall be settled in cash. Such an election may be made with respect to all or any portion of the Shares to be delivered
pursuant to an award. The Company may also use any other method of obtaining the necessary payment or proceeds, as permitted by Applicable
Laws, to satisfy its withholding obligation with respect to any Award.
Section 15. Transfer
of Awards.
Until such time as the Awards are fully vested and/or
exercisable in accordance with the Plan or an Award Agreement, no purported sale, assignment, mortgage, hypothecation, transfer, charge,
pledge, encumbrance, gift, transfer in trust (voting or other) or other disposition of, or creation of a security interest in or lien
on, any Award or any agreement or commitment to do any of the foregoing (each, a “Transfer”) by any holder thereof
in violation of the provisions of the Plan or an Award Agreement will be valid, except with the prior written consent of the Administrator,
which consent may be granted or withheld in the sole discretion of the Administrator. Any purported Transfer of an Award or any economic
benefit or interest therein in violation of the Plan or an Award Agreement shall be null and void ab initio and shall
not create any obligation or liability of the Company, and any Person purportedly acquiring any Award or any economic benefit or interest
therein transferred in violation of the Plan or an Award Agreement shall not be entitled to be recognized as a holder of such Shares or
other property underlying such Award. Unless otherwise determined by the Administrator in accordance with the provisions of the immediately
preceding sentence, an Option or a Stock Appreciation Right may be exercised, during the lifetime of the Participant, only by the Participant
or, during any period during which the Participant is under a legal Disability, by the Participant’s guardian or legal representative.
Section 16. Continued
Employment or Service.
Neither the adoption of the Plan nor the grant of
an Award shall confer upon any Eligible Recipient any right to continued employment or service with the Company or any Affiliate thereof,
as the case may be, nor shall it interfere in any way with the right of the Company or any Affiliate thereof to terminate the employment
or service of any of its Eligible Recipients at any time.
Section 17. Effective
Date.
The Plan was approved by the Board on December 1,
2021 and shall be adopted and become effective on the date that it is approved by the Company’s stockholders (the “Effective
Date”).
Section 18. Electronic
Signature.
Participant’s electronic signature of an Award
Agreement shall have the same validity and effect as a signature affixed by hand.
Section 19. Term
of Plan.
No Award shall be granted pursuant to the Plan on
or after the tenth anniversary of the Effective Date, but Awards theretofore granted may extend beyond that date.
Section 20. Securities
Matters and Regulations.
(a) Notwithstanding
anything herein to the contrary, the obligation of the Company to sell or deliver Shares with respect to any Award granted under the Plan
shall be subject to all Applicable Laws, rules and regulations, including all applicable federal and state securities laws, and the obtaining
of all such approvals by governmental agencies as may be deemed necessary or appropriate by the Administrator. The Administrator may require,
as a condition of the issuance and delivery of certificates evidencing shares of Common Stock pursuant to the terms hereof, that the recipient
of such shares make such agreements and representations, and that such certificates bear such legends, as the Administrator, in its sole
discretion, deems necessary or advisable.
(b) Each
Award is subject to the requirement that, if at any time the Administrator determines that the listing, registration or qualification
of Shares is required by any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory
body is necessary or desirable as a condition of, or in connection with, the grant of an Award or the issuance of Shares, no such Award
shall be granted or payment made or Shares issued, in whole or in part, unless listing, registration, qualification, consent or approval
has been effected or obtained free of any conditions not acceptable to the Administrator.
(c) In
the event that the disposition of Shares acquired pursuant to the Plan is not covered by a then current registration statement under the
Securities Act and is not otherwise exempt from such registration, such Shares shall be restricted against transfer to the extent required
by the Securities Act or regulations thereunder, and the Administrator may require a Participant receiving Common Stock pursuant to the
Plan, as a condition precedent to receipt of such Common Stock, to represent to the Company in writing that the Common Stock acquired
by such Participant is acquired for investment only and not with a view to distribution.
Section 21. Section
409A of the Code.
The Plan as well as payments and benefits under the
Plan are intended to be exempt from, or to the extent subject thereto, to comply with Section 409A of the Code, and, accordingly,
to the maximum extent permitted, the Plan shall be interpreted in accordance therewith. Notwithstanding anything contained herein to the
contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, the
Participant shall not be considered to have terminated employment or service with the Company for purposes of the Plan and no payment
shall be due to the Participant under the Plan or any Award until the Participant would be considered to have incurred a “separation
from service” from the Company and its Affiliates within the meaning of Section 409A of the Code. Any payments described in
the Plan that are due within the “short term deferral period” as defined in Section 409A of the Code shall not be treated
as deferred compensation unless Applicable Law requires otherwise. Notwithstanding anything to the contrary in the Plan, to the extent
that any Awards (or any other amounts payable under any plan, program or arrangement of the Company or any of its Affiliates) are payable
upon a separation from service and such payment would result in the imposition of any individual tax and penalty interest charges imposed
under Section 409A of the Code, the settlement and payment of such awards (or other amounts) shall instead be made on the first business
day after the date that is six (6) months following such separation from service (or death, if earlier). Each amount to be paid or
benefit to be provided under this Plan shall be construed as a separate identified payment for purposes of Section 409A of the Code.
The Company makes no representation that any or all of the payments or benefits described in this Plan will be exempt from or comply with
Section 409A of the Code and makes no undertaking to preclude Section 409A of the Code from applying to any such payment. The
Participant shall be solely responsible for the payment of any taxes and penalties incurred under Section 409A.
Section 22. Notification
of Election Under Section 83(b) of the Code.
If any Participant shall, in connection with the
acquisition of shares of Common Stock under the Plan, make the election permitted under Section 83(b) of the Code, such Participant
shall notify the Company of such election within ten (10) days after filing notice of the election with the Internal Revenue Service.
Section 23. No
Fractional Shares.
No fractional shares of Common Stock shall be issued
or delivered pursuant to the Plan. The Administrator shall determine whether cash, other Awards, or other property shall be issued or
paid in lieu of such fractional shares or whether such fractional shares or any rights thereto shall be forfeited or otherwise eliminated.
Section 24. Beneficiary.
A Participant may file with the Administrator a written
designation of a beneficiary on such form as may be prescribed by the Administrator and may, from time to time, amend or revoke such designation.
If no designated beneficiary survives the Participant, the executor or administrator of the Participant’s estate shall be deemed
to be the Participant’s beneficiary.
Section 25. Paperless
Administration.
In the event that the Company establishes, for itself
or using the services of a third party, an automated system for the documentation, granting or exercise of Awards, such as a system using
an internet website or interactive voice response, then the paperless documentation, granting or exercise of Awards by a Participant may
be permitted through the use of such an automated system.
Section 26. Severability.
If any provision of the Plan is held to be invalid
or unenforceable, the other provisions of the Plan shall not be affected but shall be applied as if the invalid or unenforceable provision
had not been included in the Plan.
Section 27. Clawback.
(a) If
the Company is required to prepare a financial restatement due to the material non-compliance of the Company with any financial reporting
requirement, then the Committee may require any Section 16 Officer to repay or forfeit to the Company, and each Section 16 Officer
agrees to so repay or forfeit, that part of the Incentive Compensation received by that Section 16 Officer during the three-year
period preceding the publication of the restated financial statement that the Committee determines was in excess of the amount that such
Section 16 Officer would have received had such Incentive Compensation been calculated based on the financial results reported in
the restated financial statement. The Committee may take into account any factors it deems reasonable in determining whether to seek recoupment
of previously paid Incentive Compensation and how much Incentive Compensation to recoup from each Section 16 Officer (which need
not be the same amount or proportion for each Section 16 Officer), including any determination by the Committee that a Section 16
Officer engaged in fraud, willful misconduct or committed grossly negligent acts or omissions which materially contributed to the events
that led to the financial restatement. The amount and form of the Incentive Compensation to be recouped shall be determined by the Committee
in its sole and absolute discretion, and recoupment of Incentive Compensation may be made, in the Committee’s sole and absolute
discretion, through the cancellation of vested or unvested Awards, cash repayment or both.
(b) Notwithstanding
any other provisions in this Plan, any Award which is subject to recovery under any Applicable Laws, government regulation or stock exchange
listing requirement, will be subject to such deductions and clawback as may be required to be made pursuant to such Applicable Law, government
regulation or stock exchange listing requirement (or any policy adopted by the Company pursuant to any such law, government regulation
or stock exchange listing requirement).
Section 28. Governing
Law.
The Plan shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without giving effect to principles of conflicts of law of such state.
Section 29. Indemnification.
To the extent allowable pursuant to applicable law,
each member of the Board and the Administrator and any officer or other employee to whom authority to administer any component of the
Plan is designated shall be indemnified and held harmless by the Company from any loss, cost, liability, or expense that may be imposed
upon or reasonably incurred by such member in connection with or resulting from any claim, action, suit, or proceeding to which he or
she may be a party or in which he or she may be a party or in which he or she may be involved by reason of any action or failure to act
pursuant to the Plan and against and from any and all amounts paid by him or her in satisfaction of judgment in such action, suit, or
proceeding against him or her; provided, however, that he or she gives the Company an opportunity, at its own expense, to handle and defend
the same before he or she undertakes to handle and defend it on his or her own behalf. The foregoing right of indemnification shall not
be exclusive of any other rights of indemnification to which such individuals may be entitled pursuant to the Company’s Articles
of Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or hold them harmless.
Section 30. Titles
and Headings, References to Sections of the Code or Exchange Act.
The titles and headings of the sections in the Plan
are for convenience of reference only and, in the event of any conflict, the text of the Plan, rather than such titles or headings, shall
control. References to sections of the Code or the Exchange Act shall include any amendment or successor thereto.
Section 31. Successors.
The obligations of the Company under the Plan shall
be binding upon any successor corporation or organization resulting from the merger, consolidation or other reorganization of the Company,
or upon any successor corporation or organization succeeding to substantially all of the assets and business of the Company.
Section 32. Relationship
to other Benefits.
No payment pursuant to the Plan shall be taken into
account in determining any benefits under any pension, retirement, savings, profit sharing, group insurance, welfare, or other benefit
plan of the Company or any Affiliate except to the extent otherwise expressly provided in writing in such other plan or an agreement thereunder.
16
Exhibit 10.6
EXECUTION VERSION
TAX RECEIVABLE AGREEMENT
by and among
OPAL FUELS INC.
and
THE PERSONS NAMED HEREIN
Dated as of July 21, 2022
TABLE OF CONTENTS
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| ARTICLE I DEFINITIONS |
2 |
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Section 1.1 |
Definitions |
2 |
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| ARTICLE II DETERMINATION OF CERTAIN REALIZED TAX BENEFIT |
9 |
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Section 2.1 |
Basis Adjustment |
9 |
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Section 2.2 |
Tax Benefit Schedule |
10 |
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Section 2.3 |
Procedures, Amendments |
10 |
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| ARTICLE III TAX BENEFIT PAYMENTS |
11 |
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Section 3.1 |
Payments |
11 |
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Section 3.2 |
No Duplicative Payments |
11 |
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Section 3.3 |
Payments; Coordination of Benefits With Other Tax Receivable Agreements |
11 |
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Section 3.4 |
Sufficient Funds |
12 |
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Section 3.5 |
Overpayments |
12 |
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Section 3.6 |
Payment Schedule |
12 |
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| ARTICLE IV TERMINATION |
12 |
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Section 4.1 |
Early Termination and Breach of Agreement |
12 |
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Section 4.2 |
Early Termination Notice |
13 |
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Section 4.3 |
Payment Upon Early Termination |
13 |
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| ARTICLE V SUBORDINATION AND LATE PAYMENTS |
13 |
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Section 5.1 |
Subordination |
13 |
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Section 5.2 |
Late Payments by the Corporate Taxpayer |
14 |
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| ARTICLE VI NO DISPUTES; CONSISTENCY; COOPERATION |
14 |
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Section 6.1 |
Participation in the Corporate Taxpayer’s and OpCo’s Tax Matters |
14 |
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Section 6.2 |
Consistency |
14 |
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Section 6.3 |
Cooperation |
14 |
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| ARTICLE VII MISCELLANEOUS |
15 |
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Section 7.1 |
Notices |
15 |
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Section 7.2 |
Counterparts |
16 |
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Section 7.3 |
Entire Agreement; Third Party Beneficiaries |
16 |
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Section 7.4 |
Governing Law |
16 |
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Section 7.5 |
Severability |
16 |
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Section 7.6 |
Successors; Assignment; Amendments; Waivers |
16 |
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Section 7.7 |
Titles and Subtitles |
17 |
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Section 7.8 |
Waiver of Jury Trial, Jurisdiction |
17 |
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Section 7.9 |
Reconciliation |
17 |
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Section 7.10 |
Withholding |
18 |
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Section 7.11 |
Admission of the Corporate Taxpayer into a Consolidated Group; Transfers
of Corporate Assets |
18 |
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Section 7.12 |
Confidentiality |
18 |
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Section 7.13 |
Change in Law |
19 |
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Section 7.14 |
Independent Nature of TRA Parties’ Rights and Obligations |
19 |
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Section 7.15 |
TRA Party Representative |
19 |
TAX RECEIVABLE AGREEMENT
This TAX RECEIVABLE
AGREEMENT (this “Agreement”), dated as of July 21, 2022, is made and entered into by and among OPAL Fuels Inc., a Delaware
corporation (the “Corporate Taxpayer”), the TRA Party Representative (as defined below) and each of the other Persons
(as defined below) party hereto from time to time (each, a “TRA Party” and, collectively, the “TRA Parties”).
RECITALS
WHEREAS, the
TRA Parties directly or indirectly hold limited liability company units (the “Units”) in Opal Fuels LLC, a Delaware
limited liability company (“OpCo”), which is classified as a partnership for United States federal income tax purposes;
WHEREAS, the
Corporate Taxpayer and OpCo entered into that certain Business Combination Agreement, dated December 2, 2021 (as further amended or modified
in whole or in part from time to time in accordance with such Agreement, the “BCA”), pursuant to which, among other
things, the Corporate Taxpayer (i) acquired certain Units in exchange for a cash contribution to OpCo and (ii) became the managing member
of OpCo, and from and after the date of this Agreement, holds and will hold, directly and/or indirectly, Units;
WHEREAS, following
the transactions contemplated by the BCA, the Units held by the TRA Parties, (i) together with Class B common stock of the Corporate Taxpayer,
may be exchanged or redeemed for Class A common stock of the Corporate Taxpayer (the “Class A Shares”) or (ii) together
with Class D common stock of the Corporate Taxpayer, may be exchanged or redeemed for Class C common stock of the Corporate Taxpayer (the
“Class C Shares”), in each case, constituting the Stock Exchange Payment or, alternatively, at the election of the
Corporate Taxpayer, the Cash Exchange Payment (an “Exchange”), pursuant to the provisions of the LLC Agreement (as
defined below);
WHEREAS, OpCo
and each of its direct and indirect Subsidiaries (as defined below) treated as a partnership for United States federal income tax purposes
currently have and will have in effect an election under Section 754 of the Code for the Taxable Year (as defined below) that includes
the Closing Date and each subsequent Taxable Year in which a taxable acquisition (including a deemed taxable acquisition under Section
707(a) of the Code) of Units, together with Class B common stock or Class D common stock, as applicable, of the Corporate Taxpayer by
the Corporate Taxpayer from the TRA Parties for Class A Shares or Class C Shares, as applicable, or other consideration occurs;
WHEREAS, as
a result of the Exchanges, the income, gain, loss, expense and other Tax (as defined below) items of the Corporate Taxpayer may be affected
by the Basis Adjustments (as defined below) and deductions attributable to any payment (including amounts attributable to Imputed Interest
(as defined below)) made under this Agreement (collectively, the “Tax Attributes”); and
WHEREAS, the parties
to this Agreement desire to make certain arrangements with respect to the effect of the Tax Attributes on the liability for Taxes of the
Corporate Taxpayer.
NOW, THEREFORE,
in consideration of the foregoing and the respective covenants and agreements set forth herein, and intending to be legally bound hereby,
the parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
Section 1.1 Definitions.
As used in this Agreement, the terms set forth in this ARTICLE I shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
“Actual
Tax Liability” means, with respect to any Taxable Year, an amount, not less than zero, equal to the sum of (i) the actual liability
for U.S. federal income Taxes of the Corporate Taxpayer for such Taxable Year and without duplication, the portion of any actual “imputed
underpayment” imposed directly on OpCo (and any of OpCo’s Subsidiaries treated as a partnership for U.S. federal income tax
purposes) under Section 6225 of the Code that is allocable to the Corporate Taxpayer in accordance with the LLC Agreement and the Code,
and (ii) the product of (A) the actual amount of taxable income for U.S. federal income Tax purposes (taking into account any adjustments
pursuant to Section 6225 of the Code) of the Corporate Taxpayer for such Taxable Year (determined without taking into account any U.S.
federal income tax benefit of any applicable state or local tax deduction), and (B) the Blended Rate for such Taxable Year; provided
that, in each case, if applicable, such amounts shall be determined in accordance with a Determination (including interest imposed in
respect thereof under applicable law). For the avoidance of doubt, the calculation of the amount described in clause (i) shall take into
account any U.S. federal income tax benefit realized by the Corporate Taxpayer with respect to state and local jurisdiction income taxes
(with such benefit determined by taking into account an assumed deduction based on the amount computed under clause (ii), and disregarding
the actual deduction for state and local jurisdiction income taxes reflected on the Corporate Taxpayer’s income tax return).
“Affiliate”
means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled
by, or is under common Control with, such first Person.
“Agreed Rate” means
LIBOR plus 100 basis points.
“Agreement” shall
have the meaning set forth in the recitals hereto. “Amended Schedule” shall have the meaning set forth in Section
2.3(b).
“Attributable”
means the portion of any Tax Attribute of the Corporate Taxpayer, Opco and/or their respective Subsidiaries that is attributable to a
TRA Party and shall be determined by reference to the Tax Attributes, under the following principles:
(i) any
Basis Adjustments shall be determined separately with respect to each TRA Party and the portion that is Attributable to a TRA Party shall
be an amount equal to the total Basis Adjustments relating to the Units Exchanged by such TRA Party; and
(ii) any
deduction to the Corporate Taxpayer or its Subsidiaries, as applicable, with respect to a Taxable Year in respect of any payment (including
amounts attributable to Imputed Interest) made under this Agreement is Attributable to the Person that is required to include the Imputed
Interest or other payment in income (without regard to whether such Person is actually subject to Tax thereon).
“Basis
Adjustment” means the adjustment to the Tax basis of a Reference Asset under Sections 732, 734(b) and/or 1012 of the Code (in
situations where, as a result of one or more Exchanges, OpCo becomes an entity that is disregarded as separate from its owner for United
States federal income Tax purposes) or under Sections 734(b), 743(b), 754 and/or 755 of the Code (in situations where, following an Exchange,
OpCo remains in existence as an entity treated as a partnership for United States federal income Tax purposes) and, in each case, comparable
sections of state and local Tax laws, as a result of an Exchange and the payments made pursuant to this Agreement. The amount of any Basis
Adjustment shall be determined using the Market Value with respect to such Exchange, except, for the avoidance of doubt, as otherwise
required by a Determination. For the avoidance of doubt, payments under this Agreement shall not be treated as resulting in a Basis Adjustment
to the extent such payments are treated as Imputed Interest, and the amount of any Basis Adjustment resulting from an Exchange of one
or more Units shall be determined without regard to any Pre-Exchange Transfer of such Units and as if any such Pre- Exchange Transfer
had not occurred.
“Basis Schedule”
shall have the meaning set forth in Section 2.1.
A “Beneficial
Owner” of a security means a Person who directly or indirectly, through any contract, arrangement, understanding,
relationship or otherwise, has or shares: (i) voting power, which includes the power to vote, or to direct the voting of, such
security; and/or (ii) investment power, which includes the power to dispose of, or to direct the disposition of, such security. The
terms “Beneficially Own” and “Beneficial Ownership” shall have correlative meanings.
“Blended
Rate” means, with respect to any Taxable Year, the sum of the apportionment-weighted effective rates of Tax imposed on the aggregate
net income of the Corporate Taxpayer in each U.S. state or local jurisdiction in which the Corporate Taxpayer files Tax Returns for such
Taxable Year, with the maximum effective rate in any state or local jurisdiction being equal to the product of (i) the apportionment factor
on the income or franchise Corporate Taxpayer Return in such jurisdiction for such Taxable Year and (ii) the maximum applicable corporate
income Tax rate in effect in such jurisdiction in such Taxable Year. As an illustration of the calculation of Blended Rate for a Taxable
Year, if the Corporate Taxpayer solely files Tax Returns in State 1 and State 2 in a Taxable Year, the maximum applicable corporate income
Tax rates in effect in such states in such Taxable Year are 6.5% and 5.5%, respectively, and the apportionment factors for such states
in such Taxable Year are 55% and 45%, respectively, then the Blended Rate for such Taxable Year is equal to 6.05% (i.e., 6.5% multiplied
by 55%, plus 5.5% multiplied by 45%).
“Board” means
the Board of Directors of the Corporate Taxpayer.
“Business
Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York or Wilmington, Delaware
are authorized or required by Law to close.
“Cash Exchange Payment”
has the meaning set forth in the LLC Agreement. “Change of Control” means the occurrence of any of the following events:
(i) any
Person or any group of Persons acting together which would constitute a “group” for purposes of Section 13(d) of the Exchange
Act or any successor provisions thereto (excluding (A) a corporation or other entity owned, directly or indirectly, by the stockholders
of the Corporate Taxpayer in substantially the same proportions as their ownership of stock of the Corporate Taxpayer or (B) a group of
Persons in which one or more of the Permitted Investors or Affiliates of Permitted Investors directly or indirectly hold Beneficial Ownership
of securities representing more than 50% of the total voting power held by such group) is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Corporate Taxpayer representing more than 50% of the combined voting power of the Corporate Taxpayer’s
then outstanding voting securities;
(ii) the
following individuals cease for any reason to constitute a majority of the number of directors of the Corporate Taxpayer then serving:
individuals who, on the Closing Date, constitute the Board and any new director (other than a director whose initial assumption of office
is in connection with an actual or threatened election contest, including but not limited to a consent solicitation, relating to the election
of directors of the Corporate Taxpayer) whose appointment or election by the Board or nomination for election by the Corporate Taxpayer’s
shareholders was approved or recommended by a vote of at least two-thirds of the directors then still in office who either were directors
on the Closing Date or whose appointment, election or nomination for election was previously so approved or recommended by the directors
referred to in this clause (ii);
(iii) there
is consummated a merger or consolidation of the Corporate Taxpayer with any other corporation or other entity, and, immediately after
the consummation of such merger or consolidation, either (A) the Board immediately prior to the merger or consolidation does not constitute
at least a majority of the board of directors of the company surviving the merger or, if the surviving company is a Subsidiary of the
Corporate Taxpayer, the ultimate parent thereof or (B) the voting securities of the Corporate Taxpayer immediately prior to such merger
or consolidation do not continue to represent or are not converted into more than 50% of the combined voting power of the then outstanding
voting securities of the Person resulting from such merger or consolidation or, if the surviving company is a Subsidiary of the Corporate
Taxpayer, the ultimate parent thereof; or
(iv) the shareholders of
the Corporate Taxpayer approve a plan of complete liquidation or dissolution of the Corporate Taxpayer or there is consummated an
agreement or series of related agreements for the sale, lease or other disposition, directly or indirectly, by the Corporate
Taxpayer of all or substantially all of the assets of the Corporate Taxpayer and its Subsidiaries, taken as a whole, other than such
sale or other disposition by the Corporate Taxpayer of all or substantially all of the assets of the Corporate Taxpayer and its
Subsidiaries, taken as a whole, to an entity at least 50% of the combined voting power of the voting securities of which are owned
by shareholders of the Corporate Taxpayer in substantially the same proportions as their ownership of the Corporate Taxpayer
immediately prior to such sale.
Notwithstanding
the foregoing, except with respect to clause (ii) and clause (iii)(A) above, a “Change of Control” shall not be deemed to
have occurred by virtue of the consummation of any transaction or series of integrated transactions immediately following which the record
holders of the shares of the Corporate Taxpayer immediately prior to such transaction or series of transactions continue to have substantially
the same proportionate ownership in, and own substantially all of the shares of, an entity which owns all or substantially all of the
assets of the Corporate Taxpayer immediately following such transaction or series of transactions.
“Class A Shares”
shall have the meaning set forth in the recitals hereto. “Class C Shares” shall have the meaning set forth in the recitals
hereto.
“Closing
Date” means the date of the consummation of the transactions contemplated by the BCA.
“Code” shall have
the meaning set forth in the recitals hereto.
“Control”
means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether
through ownership of voting securities, by contract or otherwise.
“Corporate Taxpayer”
shall have the meaning set forth in the preamble hereto. “Corporate Taxpayer Return” means the United States federal,
state and/or local Tax Return, as applicable, of the Corporate Taxpayer filed with respect to Taxes of any Taxable Year.
“Cumulative
Net Realized Tax Benefit” for a Taxable Year means the cumulative amount of Realized Tax Benefits for all Taxable Years of the
Corporate Taxpayer, up to and including such Taxable Year, net of the cumulative amount of Realized Tax Detriments for the same period.
The Realized Tax Benefit and Realized Tax Detriment for each Taxable Year shall be determined based on the most recent Tax Benefit Schedules
or Amended Schedules, if any, in existence at the time of such determination; provided, that the computation of the Cumulative Net Realized
Tax Benefit shall be adjusted to reflect any applicable Determination with respect to any Realized Tax Benefits and/or Realized Tax Detriments.
“Default Rate” means the LIBOR plus
500 basis points.
“Determination”
shall have the meaning ascribed to such term in Section 1313(a) of the Code or similar provision of state or local tax law, as applicable,
or any other event (including the execution of IRS Form 870-AD) that finally and conclusively establishes the amount of any liability
for Tax.
“Early Termination Date”
means the date of an Early Termination Notice for purposes of determining the Early Termination Payment.
“Early Termination Effective Date”
shall have the meaning set forth in Section 4.2.
“Early Termination Notice” shall have the meaning set forth
in Section 4.2.
“Early Termination Payment” shall have the meaning set forth in Section 4.3(b).
“Early
Termination Rate” means LIBOR plus 200 basis points.
“Early Termination Schedule” shall have
the meaning set forth in Section 4.2.
“Exchange” shall have the meaning set forth in the recitals hereto.
“Exchange Act” means the Exchange
Act of 1934, as amended.
“Exchange Date” means the date of any Exchange.
“Exchange Notice” shall have the meaning
set forth in the LLC Agreement.
“Expert” shall have the meaning set forth in Section 7.9.
“Hypothetical Tax
Liability” means, with respect to any Taxable Year, an amount, not less than zero, equal to the sum of (i) the
hypothetical liability for U.S. federal income Taxes of the Corporate Taxpayer for such Taxable Year and without duplication, the
portion of any hypothetical “imputed underpayment” imposed directly on OpCo (and any of OpCo’s Subsidiaries
treated as a partnership for U.S. federal income tax purposes) under Section 6225 of the Code that is allocable to the Corporate
Taxpayer in accordance with the LLC Agreement and the Code, and (ii) the product of (X) the hypothetical amount of taxable income
for U.S. federal income Tax purposes (taking into account adjustments pursuant to Section 6225 of the Code) of the Corporate
Taxpayer for such Taxable Year (determined without taking into account any U.S. federal income tax benefit of any applicable state
or local tax deduction) , and (Y) the Blended Rate for such Taxable Year, in each case, determined using the same methods,
elections, conventions and similar practices used in computing the Actual Tax Liability, but, in each case, (A) calculating
depreciation, amortization or similar deductions and income, gain or loss using the Non-Stepped Up Tax Basis as reflected on the
Basis Schedule including amendments thereto for the Taxable Year and (B) excluding any deduction attributable to any payment
(including amounts attributable to Imputed Interest) made under this Agreement for the Taxable Year. For the avoidance of doubt,
Hypothetical Tax Liability shall be determined without taking into account the carryover or carryback of any Tax item (or portions
thereof) that is attributable to a Tax Attribute. For the avoidance of doubt, the calculation of the amount described in clause (i)
shall take into account any U.S. federal income tax benefit that would be realized by the Corporate Taxpayer with respect to state
and local jurisdiction income taxes (with such benefit determined by taking into account an assumed deduction based on the amount
computed under clause (ii), and disregarding the hypothetical deduction for state and local jurisdiction income taxes that would
otherwise result under clause (i)).
“Imputed
Interest” in respect of a TRA Party means any interest imputed under Section 1272, 1274 or 483 or other provision of the Code
and any similar provision of state and local Tax law with respect to the Corporate Taxpayer’s payment obligations in respect of
such TRA Party under this Agreement.
“Interest Amount” shall have the
meaning set forth in Section 3.1(b). “IRS” means the United States Internal Revenue Service.
“Joinder Requirement” shall have the meaning
set forth in Section 7.6(a).
“LIBOR”
means, during any period, an interest rate per annum equal to the one- year LIBOR reported, on the date two calendar days prior to the
first day of such period, on the Telerate Page 3750 (or if such screen shall cease to be publicly available, as reported on Reuters Screen
page “LIBOR01” or by any other publicly available source of such market rate) for London interbank offered rates for United
States dollar deposits for such period. Notwithstanding the foregoing sentence: (i) if the Corporate Taxpayer reasonably determines, in
good faith consultation with the TRA Party Representative, on or prior to the relevant date of determination that the relevant London
interbank offered rate for U.S. dollar deposits has been discontinued or such rate has ceased to be published permanently or indefinitely,
then “LIBOR” for the relevant interest period shall be deemed to refer to a substitute or successor rate that the Corporate
Taxpayer reasonably determines, in good faith consultation with the TRA Party Representative, after consulting an investment bank of national
standing in the United States and other reasonable sources, to be (A) the industry-accepted successor rate to the relevant London interbank
offered rate for U.S. dollar deposits or (B) if no such industry-accepted successor rate exists, the most comparable substitute or successor
rate to the relevant London interbank offered rate for U.S. dollar deposits; and (ii) if the Corporate Taxpayer has determined a substitute
or successor rate in accordance with the foregoing, the Corporate Taxpayer may reasonably determine, in good faith consultation with the
TRA Party Representative, after consulting an investment bank of national standing in the United States and other reasonable sources,
any relevant methodology for calculating such substitute or successor rate, including any adjustment factor it reasonably determines,
in good faith consultation with the TRA Party, is needed to make such substitute or successor rate comparable to the relevant London interbank
offered rate for U.S. dollar deposits, in a manner that is consistent with industry-accepted practices for such substitute or successor
rate. In the event that the TRA Party Representative disagrees with any determination by the Corporate Taxpayer set forth in this definition,
and such disagreement is not resolved within 30 days of submission by the TRA Party Representative of notice of such disagreement to the
Corporate Taxpayer, such disagreement shall be deemed a “Reconciliation Dispute,” and shall be subject to the Reconciliation
Procedures set forth in Section 7.9.
“Liquidity Exceptions” shall have the meaning
set forth in Section 4.1(b).
“LLC Agreement”
means, with respect to OpCo, that certain Second Amended and Restated Limited Liability Company Agreement of OpCo, dated on or about the
date hereof, as amended from time to time.
“Mandatory Assignment” shall have the meaning
set forth in Section 7.6(c).
“Market
Value” means, on any date, (i) if the Class A Shares trade on a national securities exchange or automated or electronic quotation
system, the arithmetic average of the high trading and the low trading price on such date (or if such date is not a trading day, the immediately
preceding trading day) or (ii) if the Class A Shares are not then traded on a national securities exchange or automated or electronic
quotation system, as applicable, the “Appraiser FMV” (as defined in the LLC Agreement) on such date of one Class A Share that
would be obtained in an arms-length transaction between an informed and willing buyer and an informed and willing seller, neither of whom
is under any compulsion to buy or sell, respectively, and without regard to the particular circumstances of the buyer or seller.
“Material Objection Notice”
shall have the meaning set forth in Section 4.2. “Net Tax Benefit” shall have the meaning set forth in Section
3.1(b).
“Non-Stepped
Up Tax Basis” means, with respect to any Reference Asset at any time, the Tax basis that such Referenced Asset would have had
at such time if no Basis Adjustments had been made.
“Objection Notice” shall have the
meaning set forth in Section 2.3(a). “OpCo” shall have the meaning set forth in the recitals hereto.
“Other Tax Receivable
Obligations” shall have the meaning set forth in Section 3.3(c).
“Payment Schedule”
means the schedule setting forth each TRA Party’s share of any payments hereunder.
“Person”
means any individual, corporation, firm, partnership, joint venture, limited liability company, estate, trust, business association, organization,
governmental entity or other entity.
“Pre-Exchange
Transfer” means any transfer (including upon the death of a member of Opco) or distribution in respect of one or more Units
(i) that occurs prior to an Exchange of such Units and (ii) to which Section 743(b) or 734(b) of the Code applies.
“Realized
Tax Benefit” means, with respect to any Taxable Year, the excess, if any, of the Hypothetical Tax Liability over the Actual
Tax Liability. If all or a portion of the actual liability for such Taxes for the Taxable Year arises as a result of an audit by a Taxing
Authority of any Taxable Year, such liability shall not be included in determining the Realized Tax Benefit unless and until there has
been a Determination.
“Realized
Tax Detriment” means, with respect to any Taxable Year, the excess, if any, of the Actual Tax Liability over the Hypothetical
Tax Liability. If all or a portion of the actual liability for such Taxes for the Taxable Year arises as a result of an audit by a Taxing
Authority of any Taxable Year, such liability shall not be included in determining the Realized Tax Detriment unless and until there has
been a Determination.
“Reconciliation Dispute”
shall have the meaning set forth in Section 7.9.
“Reconciliation Procedures”
shall have the meaning set forth in Section 2.3(a).
“Reference
Asset” means an asset that is held by OpCo, or by any of its direct or indirect Subsidiaries treated as a partnership or
disregarded entity (but only if such indirect Subsidiaries are held only through Subsidiaries treated as partnerships or disregarded
entities) for purposes of the applicable Tax, at the time of an Exchange. A Reference Asset also includes any asset the Tax basis of
which is determined, in whole or in part, for purposes of the applicable Tax, by reference to the Tax basis of an asset that is
described in the preceding sentence, including for U.S. federal income Tax purposes, any asset that is “substituted basis
property” under Section 7701(a)(42) of the Code with respect to a Reference Asset.
“Schedule” means any of
the following: (i) a Basis Schedule, (ii) a Tax Benefit Schedule or (iii) the Early Termination Schedule.
“Securities Act” means the Securities
Act of 1933, as amended. “Senior Obligations” shall have the meaning set forth in Section 5.1.
“Series A Preferred Certificate of Designations”
shall have the meaning set forth in Section 7.6(a).
“Series A Preferred Units” has
the meaning set forth in the Series A Preferred Certificate of Designations.
“Stock Exchange Payment”
shall have the meaning set forth in LLC Agreement.
“Subsidiaries” means, with
respect to any Person, as of any date of determination, any other Person as to which such Person, owns, directly or indirectly, or
otherwise controls more than 50% of the voting power or other similar interests or the sole general partner interest or managing
member or similar interest of such Person.
“Subsidiary Stock” means
any stock or other equity interest in any subsidiary entity of OpCo that is treated as a C corporation for United States federal income
tax purposes.
“Tax Attributes” shall have the meaning
set forth in the recitals hereto.
“Tax Benefit Payment” shall have the meaning set forth in Section 3.1(b).
“Tax Benefit Schedule” shall have the meaning set forth in Section 2.2(a).
“Tax Return”
means any return, declaration, report, or similar statement filed or required to be filed with respect to Taxes (including any attached
schedules), including any information return, claim for refund, amended return and declaration of estimated Tax.
“Taxable
Year” means a taxable year of the Corporate Taxpayer as defined in Section 441(b) of the Code or comparable section of
state or local Tax law, as applicable (and, therefore, for the avoidance of doubt, may include a period of less than 12 months for
which a Tax Return is made), ending on or after the Closing Date.
“Taxes”
means any and all United States federal, state and local taxes, assessments or similar charges that are based on or measured with respect
to net income or profits, whether as an exclusive or an alternative basis, and including franchise taxes that are based on or measured
with respect to net income or profits, and any interest, penalties, or additions related to such amounts or imposed in respect thereof
under applicable law.
“Taxing
Authority” means any domestic, federal, national, state, county or municipal or other local government, any subdivision, agency,
commission or authority thereof, or any quasi-governmental body exercising any taxing authority or any other authority exercising Tax
regulatory authority.
“TRA Disinterested
Majority” means a majority of the directors of the Board who are disinterested as determined by the Board in accordance with
the Delaware General Corporation Law with respect to the matter being considered by the Board; provided that to the extent a matter
being considered by the Board is required to be considered by disinterested directors under the rules of the National Securities Exchange
on which the Class A Shares is then listed, the Securities Act or the Exchange Act, such rules with respect to the definition of disinterested
director shall apply solely with respect to such matter.
“TRA Party”
and “TRA Parties” shall have the meaning set forth in the preamble hereto.
“TRA Party Representative” means, initially,
Opal HoldCo LLC, or, if Opal HoldCo LLC becomes unable to perform the TRA Party Representative’s responsibilities hereunder or
resigns from such position, either (i) a replacement TRA Party Representative selected by Opal HoldCo LLC or (ii) if Opal HoldCo LLC
has not selected a replacement TRA Party Representative at or prior to the time of such inability or resignation, that TRA Party or
committee of TRA Parties determined by a plurality vote of the TRA Parties ratably in accordance with their right to receive Early
Termination Payments hereunder if all TRA Parties had fully Exchanged their Units, together with Class B common stock or Class D
common stock, as applicable, of the Corporate Taxpayer, for Class A Shares or Class C Shares, as applicable, or other consideration
and the Corporate Taxpayer had exercised its right of early termination on the date of the most recent Exchange.
“Treasury
Regulations” means the final, temporary and proposed regulations under the Code promulgated from time to time (including corresponding
provisions and succeeding provisions) as in effect for the relevant taxable period.
“Units” shall have the meaning set forth
in the recitals hereto.
“Valuation
Assumptions” means, as of an Early Termination Date, the assumptions that in each Taxable Year ending on or after such
Early Termination Date, (i) the Corporate Taxpayer will have taxable income sufficient to fully utilize deductions arising from the
Tax Attributes (other than any items addressed in clause (ii) below) during such Taxable Year or future Taxable Years (including,
for the avoidance of doubt, deductions and other Tax items arising from Tax Attributes that would result from future Tax Benefit
Payments that would be paid in accordance with the Valuation Assumptions, further assuming that such applicable future payments
would be paid on the due date (including extensions) for filing the Corporate Taxpayer Return for the applicable Taxable Year) in
which such deductions would become available (ii) any loss carryovers generated by deductions arising from Tax Attributes that are
available as of the date of such Early Termination Date will be used by the Corporate Taxpayer on a pro rata basis from the
Early Termination Date through the scheduled expiration date thereof or, if there is no such scheduled expiration date, the tenth
anniversary of the Early Termination Date, (iii) the United States federal income tax rate that will be in effect for each such
Taxable Year will be those specified for each such Taxable Year by the Code and other law as in effect on the Early Termination Date
and the Blended Rate will be calculated based on such rates and the apportionment factors applicable in the most recently ended
Taxable Year, except to the extent any change to such Tax rates for such Taxable Year has already been enacted into law as of the
Early Termination Date, (iv) any non-amortizable, non-depreciable Reference Assets (other than any Subsidiary Stock) will be
disposed of on the 15th anniversary of the Exchange which gave rise to the applicable Basis Adjustment and any short-term
investments will be disposed of 12 months following the Early Termination Date; provided that, in the event of a Change of
Control, such non-amortizable, non-depreciable Reference Assets shall be deemed disposed of at the time of sale of such Reference
Asset (if earlier than such 15th anniversary), (v) any Subsidiary Stock will never be disposed of and (vi) if, at the
Early Termination Date, there are Units that have not been Exchanged, then each such Unit is Exchanged, together with Class B common
stock or Class D common stock, as applicable, of the Corporate Taxpayer, in a fully taxable transaction for the Market Value of the
Class A Shares or Class C Shares, as applicable, that would be transferred if the Exchange occurred on the Early Termination
Date.
ARTICLE II
DETERMINATION OF CERTAIN REALIZED
TAX BENEFIT
Section 2.1 Basis
Adjustment. Within 120 calendar days after the filing of the United States federal income tax return of the Corporate Taxpayer
for the Taxable Year that includes the Closing Date and each Taxable Year in which an Exchange has been effected, the Corporate
Taxpayer shall deliver to the TRA Party Representative, in respect of each TRA Party who received (or is deemed to receive) cash or
Class A Shares or Class C Shares, as applicable, in such Taxable Year pursuant to an Exchange, a schedule (the “Basis
Schedule”) that shows, in reasonable detail necessary to perform the calculations required by this Agreement, (a) the
actual Tax basis and the Non-Stepped Up Tax Basis of the Reference Assets as of each applicable Exchange Date, (b) the Basis
Adjustment with respect to the Reference Assets Attributable to each such TRA Party as a result of the Exchanges effected in such
Taxable Year and prior Taxable Years by each such TRA Party, calculated in the aggregate, (c) the period (or periods) over which the
Reference Assets are amortizable and/or depreciable and (d) the period (or periods) over which each Basis Adjustment in respect of
such TRA Party is amortizable and/or depreciable. Each Basis Schedule will become final as provided in Section 2.3(a) and may
be amended as provided in Section 2.3(b) (subject to the procedures set forth in Section 2.3(b).
Section 2.2 Tax Benefit Schedule.
(a) Tax
Benefit Schedule. Within 120 calendar days after the filing of the United States federal income tax return of the Corporate Taxpayer
for each Taxable Year, the Corporate Taxpayer shall provide to the TRA Party Representative, in respect of each TRA Party who has received
(or is deemed to receive) cash or Class A Shares or Class C Shares, as applicable, pursuant to an Exchange, a schedule showing, in reasonable
detail, the calculation of the Tax Benefit Payment, if any, any Realized Tax Benefit and any Realized Tax Detriment, as applicable, Attributable
to each such TRA Party for such Taxable Year (a “Tax Benefit Schedule”). Each Tax Benefit Schedule will become final
as provided in Section 2.3(a) and may be amended as provided in Section 2.3(b) (subject to the procedures set forth in Section
2.3(b)).
(b) Applicable Principles.
(i) Subject
to Section 3.3(a), the Realized Tax Benefit or Realized Tax Detriment for each Taxable Year is intended to measure the decrease
or increase in the Actual Tax Liability for such Taxable Year attributable to the Tax Attributes, determined using a “with and without”
methodology (assuming that such Tax Attributes are the last items utilized in any Taxable Year). For the avoidance of doubt, the Actual
Tax Liability will take into account the deduction of the portion of the Tax Benefit Payment that must be accounted for as interest under
the Code based upon the characterization of Tax Benefit Payments as additional consideration payable by the Corporate Taxpayer for the
Units acquired in the Exchange. Carryovers or carrybacks of any Tax item attributable to the Tax Attributes shall be considered to be
subject to the rules of the Code and the Treasury Regulations or the appropriate provisions of U.S. state and local income and franchise
Tax law, as applicable, governing the use, limitation and expiration of carryovers or carrybacks of the relevant type.
(ii) If a carryover or
carryback of any Tax item includes a portion that is attributable to any Tax Attribute and another portion that is not, such
portions shall be considered to be used in accordance with the “with and without” methodology. Except as otherwise
required by applicable law, the parties hereto agree that (A) all Tax Benefit Payments in respect of an Exchange are intended to be
treated and shall be reported for Tax purposes as additional contingent consideration to the applicable TRA Party for such Exchange
that has the effect of creating Basis Adjustments, in each case, to Reference Assets for the Corporate Taxpayer in the year of
payment, (B) as a result, such additional Basis Adjustments will be incorporated into the calculation for the Taxable Year of the
applicable payment and into the calculations for subsequent Taxable Years, as appropriate, (C) the Actual Tax Liability shall take
into account the deduction of the portion of the Tax Benefit Payment that must be accounted for as Imputed Interest under applicable
law and (D) the liability for U.S. federal income Taxes of the Corporate Taxpayer and the amount of taxable income of the Corporate
Taxpayer for U.S. federal income Tax purposes as determined for purposes of calculating the Actual Tax Liability and the
Hypothetical Tax Liability shall include, without duplication, such liability for Taxes and such taxable income that is economically
borne by or allocated to the Corporate Taxpayer as a result of the provisions of Section 5.07 and Section 5.08 of the
LLC Agreement; provided, however, that such liability for Taxes and such taxable income shall be included in the
Hypothetical Tax Liability and the Actual Tax Liability subject to the adjustments and assumptions set forth in the definitions
thereof and, to the extent any such amount is taken into account on an Amended Schedule, such amount shall adjust a Tax Benefit
Payment, as applicable, in accordance with Section 2.3(b).
Section 2.3 Procedures, Amendments.
(a) Procedure.
Every time the Corporate Taxpayer delivers to the TRA Party Representative an applicable Schedule under this Agreement, including any
Amended Schedule delivered pursuant to Section 2.3(b), the Corporate Taxpayer shall also (i) deliver to the TRA Party Representative
supporting schedules, valuation reports, if any, and work papers, as determined by the Corporate Taxpayer or requested by the TRA Party
Representative, providing reasonable detail regarding data and calculations that were relevant for the preparation of the Schedule, (ii)
indicate which accounting firm, if any, assisted with the preparation of the Schedule and (iii) allow the TRA Party Representative and
its advisors reasonable access to the appropriate representatives at the Corporate Taxpayer and (at the cost and expense of OpCo) at the
relevant accounting firm that prepared the applicable Schedule, if applicable, in connection with the review of such Schedule. Without
limiting the generality of the preceding sentence, the Corporate Taxpayer shall ensure that each Tax Benefit Schedule or Early Termination
Schedule delivered to the TRA Party Representative, together with any supporting schedules and work papers, provides a reasonably detailed
presentation of the calculation of the Actual Tax Liability (the “with” calculation), the Hypothetical Tax Liability (the
“without” calculation) and identifies any material assumptions or operating procedures or principles that were used for purposes
of such calculations. An applicable Schedule or amendment thereto shall become final and binding on all parties 30 calendar days from
the date on which all relevant TRA Parties are treated as having received the applicable Schedule or amendment thereto under Section
7.1 unless the TRA Party Representative (A) within 30 calendar days from such date provides the Corporate Taxpayer with notice of
an objection to such Schedule (“Objection Notice”) or (B) provides a written waiver of such right of any Objection
Notice within the period described in clause (A) above, in which case such Schedule or amendment thereto shall become binding on the date
such waiver is received by the Corporate Taxpayer. If the Corporate Taxpayer and the TRA Party Representative, for any reason, are unable
to successfully resolve the issues raised in the Objection Notice within 30 calendar days after receipt by the Corporate Taxpayer of an
Objection Notice, the Corporate Taxpayer and the TRA Party Representative shall employ the reconciliation procedures as described in Section
7.9 (the “Reconciliation Procedures”).
(b) Amended
Schedule. The applicable Schedule for any Taxable Year may be amended from time to time by the Corporate Taxpayer (i) in connection
with a Determination affecting such Schedule, (ii) to correct inaccuracies in such Schedule, including those identified as a result of
the receipt of additional factual information relating to a Taxable Year after the date such Schedule was provided to the TRA Party Representative,
(iii) to comply with the Expert’s determination under the Reconciliation Procedures, (iv) to reflect a change in the Realized Tax
Benefit or Realized Tax Detriment for such Taxable Year attributable to a carryback or carryforward of a loss or other Tax item to such
Taxable Year, (v) to reflect a change in the Realized Tax Benefit or Realized Tax Detriment for such Taxable Year attributable to an amended
Tax Return filed for such Taxable Year or (vi) to adjust an applicable Basis Schedule to take into account payments made pursuant to this
Agreement (any such Schedule, an “Amended Schedule”) The Corporate Taxpayer shall provide an Amended Schedule to the
TRA Party Representative within 30 calendar days of the occurrence of an event referenced in clauses (i) through (vi) above.
In the event a Schedule is amended
after such Schedule becomes final pursuant to Section 2.3(a) or, if applicable, Section 7.9, (A) the Amended Schedule shall
not be taken into account in calculating any Tax Benefit Payment in the Taxable Year to which the amendment relates but instead shall
be taken into account in calculating the Cumulative Net Realized Tax Benefit for the Taxable Year in which the amendment actually occurs
and (B) as a result of the foregoing, any increase of the Net Tax Benefit attributable to an Amended Schedule shall not accrue the Interest
Amount (or any other interest hereunder) until after the due date (without extensions) for filing the United States federal income tax
return of the Corporate Taxpayer for the Taxable Year in which the amendment actually occurs.
ARTICLE III
TAX BENEFIT PAYMENTS
Section 3.1 Payments.
(a) Payments.
Within three Business Days after a Tax Benefit Schedule delivered to the TRA Party Representative becomes final in accordance with Section
2.3(a), or, if applicable, Section 7.9, the Corporate Taxpayer shall pay to the TRA Parties in cash (by wire transfer of immediately
available funds to the bank account previously designated by such TRA Party), in accordance with their respective share of such payment
as set forth on the Payment Schedule, the Tax Benefit Payment determined pursuant to Section 3.1(b) for such Taxable Year that
is Attributable to each such TRA Party. Each such Tax Benefit Payment shall be made in cash by wire transfer of immediately available
funds to the bank account previously designated by such TRA Party to the Corporate Taxpayer or as otherwise agreed by the Corporate Taxpayer
and such TRA Party. The payments provided for pursuant to the above sentence shall be computed separately for each TRA Party. For the
avoidance of doubt, no Tax Benefit Payment shall be made in respect of estimated tax payments, including federal estimated income tax
payments. Notwithstanding anything herein to the contrary, at the election of a TRA Party (specified in the Exchange Notice with respect
to an applicable Exchange or by providing written notice to the Corporate Taxpayer at the Closing with respect to the purchase), the aggregate
Tax Benefit Payments in respect of such Exchange (other than amounts accounted for as interest under the Code) shall not exceed, as specified
by a TRA Party, 50% of the fair market value of the Class A Shares or cash received in the relevant Exchange. Without limiting the Corporate
Taxpayer’s ability to make offsets against Tax Benefit Payments to the extent permitted by Section 3.5, no TRA Party shall
be required under any circumstances to make a payment or return a payment to the Corporate Taxpayer in respect of any portion of any Tax
Benefit Payment previously paid by the Corporate Taxpayer to such TRA Party (including any portion of any Early Termination Payment).
(b) A “Tax
Benefit Payment” in respect of a TRA Party for a Taxable Year means an amount, not less than zero, equal to the sum of the
portion of the Net Tax Benefit that is Attributable to such TRA Party and the Interest Amount with respect thereto. For the
avoidance of doubt, for Tax purposes, the Interest Amount shall not be treated as interest (to the extent permitted by applicable
law and other than amounts accounted for as Imputed Interest), but instead shall be treated as additional consideration for the
acquisition of Units in the applicable Exchange, unless otherwise required by law. Subject to Section 3.3(a), the
“Net Tax Benefit” for a Taxable Year means an amount equal to the excess, if any, of 85% of the Cumulative Net
Realized Tax Benefit as of the end of such Taxable Year over the total amount of payments previously made under this Section
3.1 (excluding payments attributable to Interest Amounts); provided that if there is no such excess (or a deficit
exists), no TRA Party shall be required to make payment (or return a payment) to the Corporate Taxpayer in respect of any portion of
any previously made Tax Benefit Payment. The “Interest Amount” means an amount equal to the interest on the Net
Tax Benefit calculated at the Agreed Rate from the due date (without extensions) for filing the Corporate Taxpayer Return with
respect to Taxes for such Taxable Year until the payment date under Section 3.1(a). The Net Tax Benefit and the Interest
Amount shall be determined separately with respect to each Exchange, on a Unit by Unit basis by reference to the resulting Basis
Adjustment to the Corporate Taxpayer. Notwithstanding the foregoing, for each Taxable Year ending on or after the date of a Change
of Control that occurs after the Closing Date, all Tax Benefit Payments, whether paid with respect to the Units that were Exchanged
(i) prior to the date of such Change of Control or (ii) on or after the date of such Change of Control, shall be calculated by
utilizing the assumptions (i), (iii) and (iv) set forth in the definition of Valuation Assumptions, substituting, in each case, the
terms “the closing date of a Change of Control” for an “Early Termination Date.”
Section 3.2
No Duplicative Payments. It is intended that the provisions of this Agreement will result in the payments specified in Section
3.1 being made to the TRA Parties and will not result in duplicative payment of any amount (including interest) required under this
Agreement. The provisions of this Agreement shall be construed in the appropriate manner to ensure such intentions are realized.
Section 3.3 Payments;
Coordination of Benefits With Other Tax Receivable Agreements.
(a) Notwithstanding
anything in Section 3.1 to the contrary, to the extent that the aggregate Tax benefit of the Corporate Taxpayer with respect to
the Basis Adjustments or Imputed Interest is limited in a particular Taxable Year because the Corporate Taxpayer does not have sufficient
taxable income, the Net Tax Benefit for the Corporate Taxpayer shall be allocated among all TRA Parties eligible for payments under this
Agreement in proportion to the respective amounts of Net Tax Benefit that would have been allocated to each such TRA Party if the Corporate
Taxpayer had sufficient taxable income so that there were no such limitation.
(b) If
for any reason (including as contemplated by Section 3.3(a)) the Corporate Taxpayer does not fully satisfy its payment obligations
to make all Tax Benefit Payments due under this Agreement in respect of a particular Taxable Year, then the Corporate Taxpayer and the
TRA Parties agree that no Tax Benefit Payment shall be made in respect of any subsequent Taxable Year until all Tax Benefit Payments in
respect of prior Taxable Years have been made in full.
(c) The
effect of any other similar tax receivable agreement entered into after the date of this Agreement (“Other Tax Receivable Obligations”)
shall not be taken into account in respect of any calculations made hereunder.
Section 3.4 Sufficient
Funds. The Corporate Taxpayer shall use commercially reasonable efforts to ensure that it has sufficient available funds to make
all payments due under this Agreement, including using commercially reasonable efforts to cause OpCo to make distributions to the
Corporate Taxpayer to make such payments so long as such distributions do not violate (a) a prohibition, restriction or covenant
under any prohibition, restriction or covenant under any credit agreement, loan agreement, note, indenture or other agreement
governing indebtedness of the Corporate Taxpayer or its Subsidiaries (including any Senior Obligation) or
(b) restrictions under applicable law.
Section 3.5 Overpayments.
To the extent the Corporate Taxpayer makes a payment to a TRA Party in respect of a particular Taxable Year under Section 3.1(a) in an
amount in excess of the amount of such payment that should have been made to such TRA Party in respect of such Taxable Year (taking into
account Section 3.3) under the terms of this Agreement, then such TRA Party shall not receive further payments under Section
3.1(a) until such TRA Party has foregone an amount of payments equal to such excess.
Section 3.6
Payment Schedule. The allocation of the payments hereunder in accordance with the Payment Schedule shall be binding on all TRA
Parties and shall be used by the Corporate Taxpayer for purposes of disbursement of any such payments. In making any payments or disbursements
pursuant to this Agreement, the Corporate Taxpayer shall be entitled to rely fully on the shares of the TRA Parties as set forth on the
Payment Schedule and shall not be liable to any TRA Party for the accuracy of the determination of such shares. Each of the TRA Parties
acknowledges and agrees that it has agreed to each Payment Schedule, as it may be amended from time to time in accordance with this Agreement.
ARTICLE
IV
TERMINATION
Section 4.1 Early Termination and Breach of Agreement.
(a) The
Corporate Taxpayer may, with the prior written consent of the TRA Disinterested Majority, terminate this Agreement with respect to all
amounts payable to the TRA Parties and with respect to all of the Units held by the TRA Parties at any time by paying to the TRA Parties,
in accordance with their respective shares as set forth on the Payment Schedule, the Early Termination Payment due pursuant to Section
4.3 in respect of all TRA Parties; provided, however, that this Agreement shall only terminate upon the receipt of the
Early Termination Payment by all TRA Parties; provided further that the Corporate Taxpayer may withdraw any notice to execute its
termination rights under this Section 4.1(a) prior to the time at which any Early Termination Payment has been paid. Upon payment
of the Early Termination Payment to all of the TRA Parties, none of the TRA Parties or the Corporate Taxpayer shall have any further payment
obligations under this Agreement, other than for any (i) Tax Benefit Payment due and payable that remains unpaid as of the Early Termination
Date and (ii) Tax Benefit Payment due for the Taxable Year ending with or including the date of the Early Termination Notice (except to
the extent that the amount described in clauses (i) or (ii) is included in the Early Termination Payment). If an Exchange occurs after
the Corporate Taxpayer makes all of the required Early Termination Payments, the Corporate Taxpayer shall have no obligations under this
Agreement with respect to such Exchange.
(b) In the event that the
Corporate Taxpayer (i) breaches any of its material obligations under this Agreement, or (ii)(A) the Corporate Taxpayer commences
any case, proceeding or other action (1) under any existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, seeking
to adjudicate it a bankrupt or insolvent or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts or (2) seeking an appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial part of its assets, or it shall make a general assignment
for the benefit of creditors or (B) there shall be commenced against the Corporate Taxpayer any case, proceeding or other action of
the nature referred to in clause (A) above that remains undismissed or undischarged for a period of 60 days, all obligations
hereunder shall be accelerated and such obligations shall be calculated as if an Early Termination Notice had been delivered on the
date of such breach and shall include, but not be limited to, (x) the Early Termination Payments calculated as if an Early
Termination Notice had been delivered on the date of a breach, (y) any Tax Benefit Payment in respect of a TRA Party agreed to by
the Corporate Taxpayer and such TRA Party as due and payable but unpaid as of the date of a breach and (z) any Tax Benefit Payment
in respect of any TRA Party due for the Taxable Year ending with or including the date of a breach; provided that procedures
similar to the procedures of Section
4.2 shall apply with respect
to the determination of the amount payable by the Corporate Taxpayer pursuant to this sentence. Notwithstanding the foregoing, in the
event that the Corporate Taxpayer breaches this Agreement, each TRA Party shall be entitled to elect to receive the amounts set forth
in clauses (x), (y) and (z) above or to seek specific performance of the terms hereof. The parties hereto agree that the failure by the
Corporate Taxpayer to make any payment due pursuant to this Agreement within three months of the date such payment is due shall be deemed
to be a breach of a material obligation under this Agreement for all purposes of this Agreement, and that it will not be considered to
be a breach of a material obligation under this Agreement by the Corporate Taxpayer to make a payment due pursuant to this Agreement within
three months of the date such payment is due. Notwithstanding anything in this Agreement to the contrary, it shall not be a breach of
this Agreement by the Corporate Taxpayer if the Corporate Taxpayer fails to make any Tax Benefit Payment when due to the extent that the
Corporate Taxpayer (I) has insufficient funds, or cannot make such payment as a result of obligations imposed in connection with any Senior
Obligations, and cannot take commercially reasonable actions to obtain sufficient funds, to make such payment or (II) would become insolvent
as a result of making such payment (in each case, as determined by the Board in good faith) (clauses (I) and (II) together, the “Liquidity
Exceptions”); provided that the interest provisions of Section 5.2 shall apply to such late payment; provided,
further, that if the Liquidity Exceptions apply and the Corporate Taxpayer declares or pays any dividend of cash to its shareholders
while any Tax Benefit Payment is due and payable and remains unpaid, then the Liquidity Exceptions shall no longer apply.
(c) In the event of a
Change of Control, the Corporate Taxpayer shall provide written notice of such Change of Control to the TRA Parties in accordance
with the procedures set forth in Section 11.07 of the LLC Agreement and the TRA Party Representative shall have the option, upon
written notice to the Corporate Taxpayer, to cause acceleration of all unpaid payment obligations with respect to Units that have
been Exchanged prior to or in connection with such Change of Control, which shall be calculated as if an Early Termination Notice
had been delivered on the date of such Change of Control and shall include, without duplication, (i) the Early Termination Payments
calculated with respect to such TRA Parties as if the Early Termination Date is the date of such Change of Control, (ii) any Tax
Benefit Payment due and payable and that remains unpaid as of the date of such Change of Control and (iii) any Tax Benefit Payment
in respect of any TRA Party due for the Taxable Year ending with or including the date of such Change of Control. In the event of a
Change of Control, any Early Termination Payment described in the preceding sentence shall be calculated utilizing the assumptions
(i), (ii) and (iii) set forth in the definition of Valuation Assumptions, substituting, in each case, and in the lead-in to such
definition, the terms “date of a Change of Control” for an “Early Termination Date.” Any Exchanges with
respect to which a payment has been made under this Section 4.1(c) shall be excluded in calculating any future Tax Benefit
Payments or Early Termination Payments, and this Agreement shall have no further application to such Exchanges.
Section 4.2
Early Termination Notice. If the Corporate Taxpayer chooses to exercise its right of early termination in accordance with Section
4.1(a), the Corporate Taxpayer shall deliver to each TRA Party a notice (“Early Termination Notice”) and a schedule
(the “Early Termination Schedule”) specifying the Corporate Taxpayer’s intention to exercise such right and showing
in reasonable detail the calculation of the Early Termination Payment(s) due for each TRA Party. Each Early Termination Schedule shall
become final and binding on all parties hereto 30 calendar days from the first date on which all TRA Parties are treated as having received
such Schedule or amendment thereto under Section 7.1 unless, prior to such 30th-calendar day, the TRA Party Representative
provides (a) the Corporate Taxpayer with notice of a material objection to such Schedule made in good faith (the “Material Objection
Notice”) or (b) a written waiver of such right of a Material Objection Notice, in which case such Schedule will become binding
on the date the waiver is received by the Corporate Taxpayer (the “Early Termination Effective Date”). If the Corporate
Taxpayer and the TRA Party Representative, for any reason, are unable to successfully resolve the issues raised in such notice within
30 calendar days after receipt by the Corporate Taxpayer of the Material Objection Notice, the Corporate Taxpayer and the TRA Party Representative
shall employ the Reconciliation Procedures in which case such Schedule shall become binding ten calendar days after the conclusion of
the Reconciliation Procedures.
Section 4.3 Payment Upon Early Termination.
(a) Within
three Business Days after the Early Termination Effective Date, the Corporate Taxpayer shall pay to the TRA Parties, in accordance with
their respective shares as set forth on the Payment Schedule, an amount equal to the Early Termination Payment in respect of all TRA Parties.
Such payment shall be made in cash by wire transfer of immediately available funds to a bank account or accounts designated by each TRA
Party or as otherwise agreed by the Corporate Taxpayer and such TRA Party.
(b) “Early
Termination Payment” in respect of a TRA Party means an amount equal to the present value, discounted at the Early
Termination Rate as of the applicable Early Termination Effective Date, of all Tax Benefit Payments in respect of such TRA Party
that would be required to be paid by the Corporate Taxpayer beginning from the Early Termination Date and assuming that (i) the
Valuation Assumptions in respect of such TRA Party are applied, (ii) for each Taxable Year, the Tax Benefit Payment is paid on the
due date, assuming an extension, of the U.S. federal income tax return of the Corporate Taxpayer and (iii) for purposes of
calculating the Early Termination Rate, LIBOR shall be LIBOR as of the date of the Early Termination Notice. For the avoidance of
doubt, an Early Termination Payment shall be made to each applicable TRA Party regardless of whether such TRA Party has exchanged
all of its Units as of the Early Termination Effective Date.
ARTICLE
V
SUBORDINATION AND LATE PAYMENTS
Section 5.1
Subordination. Notwithstanding any other provision of this Agreement to the contrary, any Tax Benefit Payment or Early Termination
Payment required to be made by the Corporate Taxpayer to the TRA Parties under this Agreement shall rank (a) subordinate and junior in
right of payment to any principal, interest or other amounts due and payable in respect of any obligations in respect of indebtedness
for borrowed money of the Corporate Taxpayer and its Subsidiaries (“Senior Obligations”), (b) senior in right of payment
to any principal, interest or other amounts due and payable in respect of any Other Tax Receivable Obligation and (c) pari passu
with all current or future unsecured obligations of the Corporate Taxpayer that are not Senior Obligations or Other Tax Receivable Obligations.
To the extent that any payment under this Agreement is not permitted to be made at the time payment is due as a result of this Section
5.1 and the terms of agreements governing Senior Obligations, such payment obligation nevertheless shall accrue for the benefit of
TRA Parties and the Corporate Taxpayer shall make such payments at the first opportunity that such payments are permitted to be made in
accordance with the terms of the Senior Obligations and Section 5.2 shall apply to such payment. To the extent the Corporate Taxpayer
or its Subsidiaries (including OpCo and its Subsidiaries) incur, create or assume any Senior Obligations from and after the date hereof,
the Corporate Taxpayer shall, and shall cause its Subsidiaries to, endeavor in good faith to ensure that such indebtedness permits the
amounts payable hereunder to be paid.
Section 5.2 Late
Payments by the Corporate Taxpayer. The amount of all or any portion of any Tax Benefit Payment or Early Termination Payment not made
by the Corporate Taxpayer to the TRA Parties when due under the terms of this Agreement, whether as a result of Section 5.1 or
otherwise, shall be payable together with any interest thereon, computed at the Default Rate and commencing from the date on which such
Tax Benefit Payment or Early Termination Payment was due and payable.
ARTICLE VI
NO DISPUTES; CONSISTENCY; COOPERATION
Section 6.1
Participation in the Corporate Taxpayer’s and OpCo’s Tax Matters. Except as otherwise provided in this Agreement, the
BCA or the LLC Agreement, the Corporate Taxpayer shall have full responsibility for, and sole discretion over, all Tax matters concerning
the Corporate Taxpayer and OpCo, including the preparation, filing or amending of any Tax Return and defending, contesting or settling
any issue pertaining to Taxes. Notwithstanding the foregoing, the Corporate Taxpayer shall notify the TRA Party Representative in writing
of the commencement of, and keep the TRA Party Representative reasonably informed with respect to, the portion of any audit of the Corporate
Taxpayer and OpCo or any of OpCo’s Subsidiaries by a Taxing Authority the outcome of which is reasonably expected to affect the
rights and obligations of a TRA Party under this Agreement, and shall provide to the TRA Party Representative reasonable opportunity to
participate in or provide information and other input to the Corporate Taxpayer, OpCo and their respective advisors concerning the conduct
of any such portion of such audit; provided, however, that the Corporate Taxpayer and OpCo shall not be required to take
any action that is inconsistent with any provision of the LLC Agreement.
Section 6.2 Consistency.
The Corporate Taxpayer and the TRA Parties agree to report and cause to be reported for all purposes, including United States federal,
state and local Tax purposes and financial reporting purposes, all Tax-related items (including the Basis Adjustments and each Tax Benefit
Payment) in a manner consistent with that set forth in this Agreement or specified by the Corporate Taxpayer in any Schedule (or Amended
Schedule, as applicable) required to be provided by or on behalf of the Corporate Taxpayer under this Agreement that is final and binding
on the parties hereto unless otherwise required by law. The Corporate Taxpayer shall (and shall cause OpCo and its other Subsidiaries
to) use commercially reasonable efforts (which, for the avoidance of doubt, shall include taking into account the interests and entitlements
of all TRA Parties under this Agreement) to defend the Tax treatment contemplated by this Agreement and any Schedule (or Amended Schedule,
as applicable) in any audit, contest or similar proceeding with any Taxing Authority.
Section 6.3 Cooperation.
Each of the TRA Parties shall (a) furnish to the Corporate Taxpayer in a timely manner such information, documents and other
materials as the Corporate Taxpayer may reasonably request for purposes of making any determination or computation necessary or
appropriate under this Agreement, preparing any Tax Return or contesting or defending any audit, examination or controversy with any
Taxing Authority, (b) make itself available to the Corporate Taxpayer and its representatives to provide explanations of documents
and materials and such other information as the Corporate Taxpayer or its representatives may reasonably request in connection with
any of the matters described in clause (a) above, and (c) reasonably cooperate in connection with any such matter, and the Corporate
Taxpayer shall reimburse each such TRA Party for any reasonable third-party costs and expenses incurred pursuant to this Section
6.3.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Notices.
All notices and other communications among the parties hereto shall be in writing and shall be deemed to have been duly given (a)
when delivered in person, (b) when delivered after posting in the United States mail having been sent registered or certified mail
return receipt requested, postage prepaid, (c) when delivered by FedEx or other nationally recognized overnight delivery service or
(d) when delivered by email or other electronic transmission (in each case in this clause (d), solely if receipt is confirmed), at
the following address (or to such other address for a party as shall be specified in a notice given in accordance with this Section
7.1):
| (i) | If to the Corporate Taxpayer, to: |
OPAL Fuels Inc.
One North Lexington Avenue, Suite 1450
White Plains, NY 10601
| |
Attention: |
John H. Coghlin, General Counsel |
| |
Email: |
jcoghlin@opalfuels.com |
with copies (which shall not constitute notice) to:
c/o Fortistar
One North Lexington Avenue, 14th Floor
White Plains,
NY 10601
Attention: General Counsel
| |
Email: |
noticeofficer@fortistar.com |
| |
|
noticeofficer@opalfuels.com |
and
Sheppard, Mullin, Richter & Hampton LLP
30 Rockefeller
Plaza
New York, New York 10112
Attention: Andrew M. Felner
John H. Booer
| |
Email: |
afelner@sheppardmullin.com |
| |
|
jbooher@ sheppardmullin.com |
| (ii) | If to the TRA Party Representative, to: |
Opal HoldCo LLC
One North Lexington Avenue, Suite 1450
White Plains,
NY 10601
| |
Attention: |
John H. Coghlin, General Counsel |
| |
Email: |
jcoghlin@opalfuels.com |
with copies (which shall not constitute notice) to:
c/o Fortistar
One North Lexington Avenue, 14th Floor
White Plains,
NY 10601
Attention: General Counsel
| |
Email : |
noticeofficer@fortistar.com |
| |
|
noticeofficer@opalfuels.com |
and
Sheppard, Mullin, Richter & Hampton LLP
30 Rockefeller
Plaza
New York, New York 10112
| |
Attention: |
Andrew M. Felner |
| |
|
John H. Booer |
| |
Email: |
afelner@sheppardmullin.com |
| |
|
jbooher@ sheppardmullin.com |
| (iii) | If to the TRA Parties, to the address set forth in the records
of OpCo from time to time. |
Section 7.2
Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties
hereto, it being understood that all parties hereto need not sign the same counterpart. Delivery of an executed signature page to this
Agreement by facsimile transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.
Section 7.3
Entire Agreement; Third Party Beneficiaries. This Agreement (together with all Schedules to this Agreement), the BCA (together
with the Ancillary Documents), the LLC Agreement and that certain Mutual Confidentiality Agreement, dated as of May 24, 2021, by and betweenOpCo
and the Corporate Taxpayer constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral,
among the parties hereto with respect to the subject matter hereof. Nothing in this Agreement, express or implied, is intended to or shall
confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Section 7.4 Governing
Law. This Agreement shall be governed by, and construed in accordance with, the law of the State of Delaware, without regard to the
conflicts of laws principles thereof that would mandate the application of the laws of another jurisdiction.
Section 7.5 Severability.
If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any law or public policy, all other
terms and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto. Upon such determination that
any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions
contemplated hereby are consummated as originally contemplated to the greatest extent possible.
Section 7.6 Successors; Assignment; Amendments; Waivers.
(a) Each TRA Party may
assign any of its rights under this Agreement to any Person as long as such transferee has executed and delivered, or, in connection
with such transfer, executes and delivers, a joinder to this Agreement, in form and substance reasonably satisfactory to the
Corporate Taxpayer (the “Joinder Requirement”), agreeing to become a TRA Party for all purposes of this
Agreement. Further, in the event that any Series A Preferred Units are converted into Common Units (as defined in the Series A
Preferred Certificate of Designations) pursuant to Section 6(d)(i) of that certain Certificate of Designations of Series A Preferred
Units of OpCo, dated as of November 29, 2021 (the “Series A Preferred Certificate of Designations”), the holders
of such converted Series A Preferred Units may agree to become a TRA Party for all purposes of this Agreement by executing and
delivering a joinder to this Agreement, in form and substance reasonably satisfactory to the Corporate Taxpayer. For the avoidance
of doubt, if a TRA Party transfers Units in accordance with the terms of the LLC Agreement but does not assign to the transferee of
such Units its rights under this Agreement with respect to such transferred Units, such TRA Party shall continue to be entitled to
receive the Tax Benefit Payments arising in respect of a subsequent Exchange of such Units and such transferee may not enforce the
provisions of this Agreement. Notwithstanding any other provision of this Agreement, an assignee of only rights to receive a Tax
Benefit Payment in connection with an Exchange has no rights under this Agreement other than to enforce its right to receive a Tax
Benefit Payment pursuant to this Agreement. The Corporate Taxpayer may not assign any of its rights or obligations under this
Agreement to any Person (other than in connection with a Mandatory Assignment) without the prior written consent of the TRA Party
Representative (not to be unreasonably withheld, conditioned or delayed). Any purported assignment in violation of the terms of this Section
7.6 shall be null and void.
(b) No
provision of this Agreement may be amended unless such amendment is approved in writing by the Corporate Taxpayer (as determined by the
TRA Disinterested Majority) and by the TRA Party Representative and no provision of this Agreement may be waived unless such waiver is
in writing and signed by the party against whom the waiver is to be effective (or, in the case of a waiver by all TRA Parties, signed
by the TRA Party Representative); provided that no such amendment or waiver shall be effective if such amendment or waiver will
have a disproportionate and adverse effect on the payments certain TRA Parties will or may receive under this Agreement unless such amendment
or waiver is consented in writing by the TRA Parties disproportionately and adversely affected who would be entitled to receive at least
majority of the total amount of the Early Termination Payments payable to all TRA Parties disproportionately and adversely affected hereunder
if the Corporate Taxpayer had exercised its right of early termination on the date of the most recent Exchange prior to such amendment
or waiver (excluding, for purposes of this sentence, all payments made to any TRA Party pursuant to this Agreement since the date of such
most recent Exchange).
(c) This
Agreement and all of the terms and provisions of this Agreement shall be binding upon, shall inure solely to the benefit of and shall
be enforceable by each of the parties hereto and their respective successors, permitted assigns, heirs, executors, administrators and
legal representatives. The Corporate Taxpayer shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation
or otherwise) to all or substantially all of the business or assets of the Corporate Taxpayer, by written agreement, expressly to assume
and agree to perform this Agreement in the same manner and to the same extent that the Corporate Taxpayer would be required to perform
if no such succession had taken place (any such assignment, a “Mandatory Assignment”).
Section 7.7 Titles
and Subtitles. The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
Section 7.8 Waiver of Jury Trial, Jurisdiction.
(a) 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 HERETO (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO
THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND/OR THE RELATIONSHIPS ESTABLISHED AMONG THE PARTIES HEREUNDER.
THE PARTIES HERETO FURTHER REPRESENT AND WARRANT 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.
(b) Subject
to Section 7.9, each of the parties hereto submits to the exclusive jurisdiction of first, the Chancery Court of the State of Delaware
or if such court declines jurisdiction, then to the Federal District Court for the District of Delaware, in any action, suit or proceeding
arising out of or relating to this Agreement, agrees that all claims in respect of such action, suit or proceeding shall be heard and
determined in any such court and agrees not to bring any action, suit or proceeding arising out of or relating to this Agreement in any
other courts. Nothing in this Section 7.8, 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 action, suit or 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. The parties hereto hereby
waive, to the fullest extent permitted by applicable law, any objection which they now or hereafter may have to personal jurisdiction
or to the laying of venue of any such ancillary suit, action or proceeding brought in any court referred to in this Section 7.8
and the parties hereto agree not to plead or claim the same.
Section 7.9 Reconciliation.
In the event that the Corporate Taxpayer and the TRA Party Representative are unable to resolve a disagreement with respect to the
matters (a) governed by Section 2.3 and Section 4.2 or (b) described in the definition of “LIBOR” within
the relevant period designated in this Agreement (“Reconciliation Dispute”), the Reconciliation Dispute shall be
submitted for determination to a nationally recognized expert (the “Expert”) in the particular area of
disagreement mutually acceptable to both the Corporate Taxpayer and the TRA Party Representative. The Expert shall be a partner or
principal in a nationally recognized accounting or law firm, and unless the Corporate Taxpayer and the TRA Party Representative
agree in writing otherwise, the Expert shall not, and the firm that employs the Expert shall not, have any material relationship
with the Corporate Taxpayer or the TRA Party Representative or other actual or potential conflict of interest. If the Corporate
Taxpayer and the TRA Party Representative are unable to agree on an Expert within 15 calendar days of receipt by the respondent(s)
of written notice of a Reconciliation Dispute, the Expert shall be appointed by the International Chamber of Commerce Centre for
Expertise. The Expert shall resolve any matter relating to the Basis Schedule or an amendment thereto or the Early Termination
Schedule or an amendment thereto within 30 calendar days and shall resolve any matter relating to a Tax Benefit Schedule or an
amendment thereto within 15 calendar days or as soon thereafter as is reasonably practicable, in each case, after the matter has
been submitted to the Expert for resolution. Notwithstanding the preceding sentence, if the matter is not resolved before any
payment that is the subject of a disagreement would be due (in the absence of such disagreement) or any Tax Return reflecting the
subject of a disagreement is due, the undisputed amount shall be paid on the date prescribed by this Agreement and such Tax Return
may be filed as prepared by the Corporate Taxpayer, subject to adjustment or amendment upon resolution. The costs and expenses
relating to the engagement of such Expert or amending any Tax Return shall be borne by the Corporate Taxpayer except as provided in
the next sentence. The Corporate Taxpayer and the TRA Party Representative shall bear their own respective costs and expenses of
such proceeding, unless (i) the Expert adopts the TRA Party Representative’s position, in which case the Corporate Taxpayer
shall reimburse the TRA Party Representative for any reasonable out-of-pocket costs and expenses in such proceeding or (ii) the
Expert adopts the Corporate Taxpayer’s position, in which case the TRA Party Representative shall reimburse the Corporate
Taxpayer for any reasonable out-of-pocket costs and expenses in such proceeding. Any dispute as to whether a dispute is a
Reconciliation Dispute within the meaning of this Section 7.9 shall be decided by the Expert. The Expert shall finally
determine any Reconciliation Dispute and the determinations of the Expert pursuant to this Section 7.9 shall be binding on
the Corporate Taxpayer and each of the TRA Parties and may be entered and enforced in any court having jurisdiction.
Section 7.10 Withholding.
The Corporate Taxpayer shall be entitled to deduct and withhold from any payment payable pursuant to this Agreement such amounts as the
Corporate Taxpayer is required to deduct and withhold with respect to the making of such payment under the Code or any provision of state,
local or foreign tax law; provided, however, that the Corporate Taxpayer shall use commercially reasonable efforts to notify
and shall reasonably cooperate with the applicable TRA Party prior to the making of such deductions and withholding payments to determine
whether any such deductions or withholding payments (other than any deduction or withholding required by reason of such TRA Party’s
failure to comply with the last sentence of this Section 7.10) are required under applicable law and in obtaining any available
exemption or reduction of, or otherwise minimizing to the extent permitted by applicable law, such deduction and withholding. To the extent
that amounts are so withheld and paid over to the appropriate Taxing Authority by the Corporate Taxpayer, such withheld amounts shall
be treated for all purposes of this Agreement as having been paid to the Person in respect of whom such withholding was made. Each TRA
Party shall promptly provide the Corporate Taxpayer with any applicable Tax forms and certifications (including IRS Form W-9 or the applicable
version of IRS Form W- 8) reasonably requested by the Corporate Taxpayer in connection with determining whether any such deductions and
withholdings are required under the Code or any provision of state, local or foreign tax law and shall promptly provide an update of any
such Tax form or certification previously delivered if the same has become incorrect or has expired.
Section 7.11 Admission
of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate Assets.
(a) If
the Corporate Taxpayer is or becomes a member of an affiliated, consolidated, combined or unitary group of corporations that files a consolidated,
combined or unitary income Tax Return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of state or local
Tax law, then: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; and (ii) Tax Benefit Payments,
Early Termination Payments and other applicable items hereunder shall be computed with reference to the consolidated, combined or unitary
taxable income of the group as a whole.
(b) If any Person the
income of which is included in the income of the Corporate Taxpayer or the Corporate Taxpayer’s affiliated or consolidated
group transfers one or more assets to a corporation (or a Person classified as a corporation for U.S. federal income tax purposes)
with which such entity does not file a consolidated Tax Return pursuant to Section 1501 of the Code or any corresponding provisions
of state or local Tax law, such Person, for purposes of calculating the amount of any Tax Benefit Payment or Early Termination
Payment due hereunder, shall be treated as having disposed of such asset in a fully taxable transaction on the date of such
transfer. The consideration deemed to be received in a transaction contemplated in the prior sentence shall be equal to the fair
market value of the deemed transferred asset, plus (i) the amount of debt to which such asset is subject, in the case of a transfer
of an encumbered asset or (ii) the amount of debt allocated to such asset, in the case of a transfer of a partnership interest. The
transactions described in this Section 7.11(b) shall be taken into account in determining the Realized Tax Benefit or
Realized Tax Detriment, as applicable, for such Taxable Year based on the income, gain or loss deemed allocated to the Corporate
Taxpayer using the Non- Stepped Up Tax Basis of the Reference Assets in calculating its Hypothetical Tax Liability for such Taxable
Year and using the actual Tax basis of the Reference Assets in calculating its Actual Tax Liability, determined using the
“with and without” methodology. Thus, for example, in determining the Hypothetical Tax Liability of the Corporate
Taxpayer, the taxable income of the Corporate Taxpayer shall be determined by treating OpCo as having sold the applicable Reference
Asset for its fair market value, recovering any basis applicable to such Reference Asset (using the Non-Stepped Up Tax Basis), while
the Actual Tax Liability of the Corporate Taxpayer would be determined by recovering the actual Tax basis of the Reference Asset
that reflects any Basis Adjustments. For purposes of this Section 7.11, a transfer of a partnership interest shall be treated
as a transfer of the transferring partner’s share of each of the assets and liabilities of that partnership.
Section 7.12 Confidentiality.
(a) Each
TRA Party and each of their respective assignees acknowledges and agrees that the information of the Corporate Taxpayer is confidential
and, except in the course of performing any duties as necessary for the Corporate Taxpayer and its Affiliates, as required by law or legal
process or to enforce the terms of this Agreement, such Person shall keep and retain in confidence in accordance with this Agreement,
and not disclose to any Person, any confidential matters acquired pursuant to this Agreement of the Corporate Taxpayer and its Affiliates
and successors, concerning OpCo and its Affiliates and successors or members, learned by such TRA Party heretofore or hereafter. This
Section 7.12 shall not apply to (i) any information that has been made publicly available by the Corporate Taxpayer or any of its
Affiliates, becomes public knowledge (except as a result of an act of a TRA Party in violation of this Agreement) or is generally known,
(ii) the disclosure of information to the extent necessary for a TRA Party to assert its rights hereunder or defend itself in connection
with any action or proceeding arising out of, or relating to, this Agreement, (iii) any information that was in the possession of, or
becomes available to, a TRA Party from a source other than the Corporate Taxpayer, its Affiliates or its or their respective representatives
(provided that such source is not known by such TRA Party to be bound by a legal, contractual or fiduciary confidentiality obligation
not to disclose such information) and (iv) the disclosure of information to the extent necessary for a TRA Party to prepare and file its
Tax Returns, to respond to any inquiries regarding the same from any governmental or taxing authority or to prosecute or defend any action,
proceeding or audit by any governmental or taxing authority with respect to such returns. Notwithstanding anything to the contrary herein,
each TRA Party and each of its respective assignees (and each employee, representative or other agent of such TRA Party or its assignees,
as applicable) may disclose to any and all Persons the tax treatment and tax structure of the Corporate Taxpayer, OpCo and their respective
Affiliates, and any of their respective transactions, and all materials of any kind (including opinions or other tax analyses) that are
provided to such TRA Party relating to such tax treatment and tax structure.
(b) If
a TRA Party or an assignee thereof commits a breach, or threatens to commit a breach, of any of the provisions of this Section 7.12,
the Corporate Taxpayer shall have the right and remedy to seek to have the provisions of this Section 7.12 specifically enforced
by injunctive relief or otherwise by any court of competent jurisdiction without the need to post any bond or other security. Such rights
and remedies shall be in addition to, and not in lieu of, any other rights and remedies available at law or in equity.
Section 7.13
Change in Law. Notwithstanding anything herein to the contrary, if, in connection with an actual or proposed change in law, a TRA
Party reasonably believes that the existence of this Agreement could cause income (other than income arising from receipt of a payment
under this Agreement) recognized by the TRA Party upon any Exchange by such TRA Party to be treated as ordinary income rather than capital
gain (or otherwise taxed at ordinary income rates) for United States federal income tax purposes or would have other material adverse
tax consequences to such TRA Party, then at the election of such TRA Party and to the extent specified by such TRA Party, this Agreement
(a) shall cease to have further effect with respect to such TRA Party, (b) shall not apply to an Exchange by such TRA Party occurring
after a date specified by such TRA Party or (c) shall otherwise be amended in a manner determined by such TRA Party; provided that
such amendment shall not result in an increase in payments under this Agreement at any time as compared to the amounts and times of payments
that would have been due in the absence of such amendment.
Section 7.14
Independent Nature of TRA Parties’ Rights and Obligations. The obligations of each TRA Party hereunder are several and not
joint with the obligations of any other TRA Party, and no TRA Party shall be responsible in any way for the performance of the obligations
of any other TRA Party hereunder. The decision of each TRA Party to enter into this Agreement has been made by such TRA Party independently
of any other TRA Party. Nothing contained herein, and no action taken by any TRA Party pursuant hereto, shall be deemed to constitute
the TRA Parties as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the TRA Parties
are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated hereby and the Corporate
Taxpayer acknowledges that the TRA Parties are not acting in concert or as a group, and the Corporate Taxpayer will not assert any such
claim, with respect to such obligations or the transactions contemplated hereby.
Section 7.15 TRA Party Representative.
(a) Without
further action of any of the Corporate Taxpayer, the TRA Party Representative or any TRA Party, and as partial consideration in respect
of the benefits conferred by this Agreement, the TRA Party Representative is hereby irrevocably constituted and appointed as the TRA Party
Representative, with full power of substitution, to take any and all actions and make any decisions required or permitted to be taken
by the TRA Party Representative under this Agreement.
(b) If at any time the TRA
Party Representative shall incur any out-of-pocket expenses in connection with the exercise of its duties hereunder, upon written
notice to the Corporate Taxpayer from the TRA Party Representative of documented costs and expenses (including fees and
disbursements of counsel and accountants) incurred by the TRA Party Representative in connection with the performance of its rights
or obligations under this Agreement and the taking of any and all actions in connection therewith, the Corporate Taxpayer shall
reduce the future payments (if any) due to the TRA Parties hereunder pro rata by the amount of such expenses which it shall
instead remit directly to the TRA Party Representative. In connection with the performance of its rights and obligations under this
Agreement and the taking of any and all actions in connection therewith, the TRA Party Representative shall not be required to
expend any of its own funds (though, for the avoidance of doubt, but without limiting the provisions of this Section 7.15(b),
it may do so at any time and from time to time in its sole discretion).
(c) The
TRA Party Representative shall not be liable to any TRA Party for any act of the TRA Party Representative arising out of or in connection
with the acceptance or administration of its duties under this Agreement, except to the extent any liability, loss, damage, penalty, fine,
cost or expense is actually incurred by such TRA Party as a proximate result of the bad faith or willful misconduct of the TRA Party Representative
(it being understood that any act done or omitted pursuant to the advice of legal counsel shall be conclusive evidence of good faith judgment).
The TRA Party Representative shall not be liable for, and shall be indemnified by the TRA Parties (on a several but not joint basis) for,
any liability, loss, damage, penalty or fine incurred by the TRA Party Representative (and any cost or expense incurred by the TRA Party
Representative in connection therewith and herewith and not previously reimbursed pursuant to Section 7.15(b)) arising out of or
in connection with the acceptance or administration of its duties under this Agreement, and such liability, loss, damage, penalty, fine,
cost or expense shall be treated as an expense subject to reimbursement pursuant to the provisions of Section 7.15(b), except to
the extent that any such liability, loss, damage, penalty, fine, cost or expense is the proximate result of the bad faith or willful misconduct
of the TRA Party Representative (it being understood that any act done or omitted pursuant to the advice of legal counsel shall be conclusive
evidence of good faith judgment); provided, however, in no event shall any TRA Party be obligated to indemnify the TRA Party
Representative hereunder for any liability, loss, damage, penalty, fine, cost or expense to the extent (and only to the extent) that the
aggregate amount of all liabilities, losses, damages, penalties, fines, costs and expenses indemnified by such TRA Party hereunder is
or would be in excess of the aggregate payments under this Agreement actually remitted to such TRA Party.
(d) Subject
to Section 7.6(b), a decision, act, consent or instruction of the TRA Party Representative shall constitute a decision of all TRA
Parties and shall be final, binding and conclusive upon each TRA Party, and the Corporate Taxpayer may rely upon any decision, act, consent
or instruction of the TRA Party Representative as being the decision, act, consent or instruction of each TRA Party. The Corporate Taxpayer
is hereby relieved from any liability to any Person for any acts done by the Corporate Taxpayer in accordance with any such decision,
act, consent or instruction of the TRA Party Representative.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties
hereto have duly executed this Agreement as of the date first written above.
| |
CORPORATE TAXPAYER: |
| |
|
| |
OPAL FUELS INC. |
| |
|
|
| |
By: |
/s/ Jonathan Maurer |
| |
Name: |
Jonathan Maurer |
| |
Title: |
Co-Chief Executive Officer |
[Signature Page to Tax Receivable Agreement]
| |
TRA PARTY REPRESENTATIVE: |
| |
|
| |
OPAL HOLDCO LLC |
| |
|
| |
By: Fortistar Renewables LLC, its Manager |
| |
|
|
|
| |
By: |
/s/ Scott Contino |
| |
|
Name: |
Scott Contino |
| |
|
Title: |
Chief Financial Officer |
[Signature Page to Tax Receivable Agreement]
| |
TRA PARTIES: |
| |
|
| |
OPAL HOLDCO LLC |
| |
|
| |
By: Fortistar Renewables LLC, its Manager |
| |
|
|
|
| |
|
|
|
| |
By: |
/s/ Scott Contino |
| |
|
Name: |
Scott Contino |
| |
|
Title: |
Chief Financial Officer |
[Signature Page to
Tax Receivable Agreement]
| |
HILLMAN RNG INVESTMENTS, LLC |
| |
|
| |
By: Hillman Power Company L.L.C., its
Managing Member |
| |
|
| |
|
|
|
| |
By: |
/s/ Scott Contino |
| |
|
Name: |
Scott Contino |
| |
|
Title: |
Chief Financial Officer |
[Signature Page to
Tax Receivable Agreement]
-23-
Exhibit 10.7
EXECUTION VERSION
INVESTOR RIGHTS AGREEMENT
THIS INVESTOR
RIGHTS AGREEMENT (as it may be amended, supplemented or restated from time to time in accordance with the terms of this Investor Rights
Agreement, the “Investor Rights Agreement”), dated as of July 21, 2022 (the “Effective Date”),
is made by and among (i) OPAL Fuels Inc., a Delaware corporation (formerly known as ArcLight Clean Transition Corp. II, an exempted company
incorporated in the Cayman Islands with limited liability) (“PubCo”); (ii) each of the parties listed as a “Seller”
on the signature pages attached hereto (each, a “Seller” and, collectively, the “Sellers”); (iii)
ArcLight CTC Holdings II, L.P., a Delaware limited partnership (the “Sponsor”); and (iv) solely for purposes of Article
I, Section 2.11, Section 2.15, Section 2.16(a), Section 3.3 and Article IV (A) Arno Harris, (B) Dr. Ja-Chin Audrey Lee, (C)
Brian Goncher and (D) Steven Berkenfeld (each, a “Sponsor Principal” and, collectively, the “Sponsor Principals”
and, together with the Sponsor, the “Founder Holders” and, each, a “Founder Holder”). Each of PubCo,
the Sellers and each Founder Holder may be referred to herein as a “Party” and collectively as the “Parties”.
Capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the BCA (as defined below).
RECITALS
WHEREAS, PubCo
has entered into that certain Business Combination Agreement, dated as of December 2, 2021, by and among PubCo, Opal Fuels LLC, a Delaware
limited liability company (the “Operating Company”), and Opal HoldCo LLC, a Delaware limited liability company (“Opal
HoldCo”) (as may be amended, restated, amended and restated, modified or supplemented from time to time in accordance with the
terms of such agreement, the “BCA”), in connection with the business combination (the “Business Combination”)
set forth in the BCA;
WHEREAS, pursuant
to the BCA, at the Closing, (i) PubCo has contributed the Closing Date Contribution Amount, the Closing Date Equity Contribution and the
Deferred Contribution Commitment to the Operating Company (collectively, the “Contribution”) and, in exchange therefor,
the Operating Company has issued to PubCo a number of Class A Units (as defined below) determined pursuant to the BCA and (ii) in connection
with the Contribution and issuance described above, the Post-Closing Company Members have entered into that certain Second Amended and
Restated Limited Liability Company Agreement of the Operating Company (the “Opco LLC Agreement”), to, among other things,
recapitalize the Pre-Closing Company Units such that, from and after the Closing, the Equity Securities (as defined below) of the Operating
Company consist of the Opal Units (as defined below), with the applicable rights, preferences and obligations set forth in the Opco LLC
Agreement;
WHEREAS,
each of the Sellers has the right to exchange its respective Class B Units (as defined below), and cancel an equal number of its respective
(i) shares of Class B Common Stock (as defined below) for shares of Class A Common Stock (as defined below) or (ii) shares of Class D
Common Stock (as defined below) for shares of Class C Common Stock (as defined below), in each case, in the manner set forth in, and pursuant
to the terms and conditions of, the Opco LLC Agreement;
WHEREAS,
each of the Earnout Participants has the right to exchange its respective Class B Units that will be earned by such Earnout
Participant pursuant to the BCA upon satisfaction of the conditions set forth in the BCA, and cancel an equal number of shares of
Class B Common Stock and Class D Common Stock, as applicable, for shares of Class A Common Stock (collectively, the
“Exchanged Earnout Shares”) in the manner set forth in, and pursuant to the terms and conditions of, the Opco LLC
Agreement;
WHEREAS, PubCo,
the Sponsor and the Sponsor Principals entered into that certain Registration and Shareholder Rights Agreement, dated as of March 25,
2021 (the “Original RRA”);
WHEREAS,
in connection with the execution of this Investor Rights Agreement, PubCo, the Sponsor and the Sponsor Principals desire to terminate
the Original RRA and replace it with this Investor Rights Agreement; and WHEREAS, on the Effective Date, the Parties desire to set forth
their agreement with respect to registration rights and certain other matters, in each case, in accordance with the terms and conditions
of this Investor Rights Agreement.
NOW, THEREFORE,
in consideration of the mutual covenants and agreements contained in this Investor Rights Agreement, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section 1.1
Definitions. As used in this Investor Rights Agreement, the following terms shall have the following meanings:
“Adverse
Disclosure” means any public disclosure of material non-public information, which disclosure, in the good faith determination
of the Board, after consultation with counsel to PubCo, (a) would be required to be made in any Registration Statement or Prospectus in
order for the applicable Registration Statement or Prospectus not to contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements contained therein (in the case of any Prospectus and any preliminary Prospectus, in the
light of the circumstances under which they were made) not misleading, (b) would not be required to be made at such time if the Registration
Statement were not being filed, and (c) PubCo has a bona fide business purpose for not making such information public.
“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 Party shall be deemed an Affiliate
of PubCo or any of its Subsidiaries for purposes of this Investor Rights Agreement.
“Automatic
Shelf Registration Statement” has the meaning set forth in Rule 405 promulgated by the SEC pursuant to the Securities Act.
“BCA” has the meaning set forth in the
Recitals.
“Beneficially
Own” has the meaning set forth in Rule 13d-3 promulgated under the Exchange Act.
“Board” means the board of directors of
PubCo.
“Business
Day” means a day, other than a Saturday or Sunday, on which commercial banks in New York, New York are open for the general
transaction of business.
“Business Combination” has the meaning
set forth in the Recitals.
“Bylaws”
means the “Post-Closing ACT Bylaws” as defined in the BCA, as the same may be amended or amended and restated from time to
time.
“Certificate
of Incorporation” means the “Post-Closing ACT Certificate of Incorporation” as defined in the BCA, as the same may
be amended or amended and restated from time to time.
“Class
A Common Stock” means the shares of Class A common stock, par value $0.0001 per share, of PubCo, including (a) any shares of
such Class A common stock issuable upon the exercise of any warrant or other right to acquire shares of such Class A common stock and
(b) any Equity Securities of PubCo that are issued or distributed or may be issuable with respect to such Class A common stock by way
of conversion, dividend, stock split or other distribution, consolidation, merger, exchange, reclassification, recapitalization or other
similar transaction.
“Class A Units”
means the “Class A Units” as defined in the Opco LLC Agreement.
“Class B
Common Stock” means the shares of Class B common stock, par value $0.0001 per share, of PubCo, including (a) any shares of
such Class B common stock issuable upon the exercise of any warrant or other right to acquire shares of such Class B common stock
and (b) any Equity Securities of PubCo that are issued or distributed or may be issuable with respect to such Class B common stock
by way of conversion, dividend, stock split or other distribution, consolidation, merger, exchange, reclassification,
recapitalization or other similar transaction.
“Class B Units”
means the “Class B Units” as defined in the Opco LLC Agreement.
“Class C Common
Stock” means the shares of Class C common stock, par value $0.0001 per share, of PubCo, including (a) any shares of such Class
C common stock issuable upon the exercise of any warrant or other right to acquire shares of such Class C common stock and (b) any Equity
Securities of PubCo that are issued or distributed or may be issuable with respect to such Class C common stock by way of conversion,
dividend, stock split or other distribution, consolidation, merger, exchange, reclassification, recapitalization or other similar transaction.
“Class
D Common Stock” means the shares of Class D common stock, par value $0.0001 per share, of PubCo, including (a) any shares of
such Class D common stock issuable upon the exercise of any warrant or other right to acquire shares of such Class D common stock and
(b) any Equity Securities of PubCo that are issued or distributed or may be issuable with respect to such Class D common stock by way
of conversion, dividend, stock split or other distribution, consolidation, merger, exchange, reclassification, recapitalization or other
similar transaction.
“Common
Stock” means shares of the Class A Common Stock, the Class B Common Stock, the Class C Common Stock and the Class D Common Stock,
including any shares of the Class A Common Stock, the Class B Common Stock, the Class C Common Stock and the Class D Common Stock issuable
upon the exercise of any warrant or other right to acquire shares of the Class A Common Stock, the Class B Common Stock, the Class C Common
Stock and the Class D Common Stock.
“Confidential
Information” means confidential, non-public information about PubCo and its Subsidiaries.
“Contribution” has
the meaning set forth in the Recitals.
“Controlled
Entity” means, as to any Person, (a) any corporation more than fifty percent (50%) of the outstanding voting stock of which
is owned by such Person or such Person’s Family Members or Affiliates, (b) any trust, whether or not revocable, of which such Person
or such Person’s Family Members or Affiliates are the sole beneficiaries, (c) any partnership of which such Person or an Affiliate
of such Person is the managing partner or in which such Person or such Person’s Family Members or Affiliates hold partnership interests
representing at least fifty percent (50%) of such partnership’s capital and profits and (d) any limited liability company of which
such Person or an Affiliate of such Person is the manager or managing member or in which such Person or such Person’s Family Members
or Affiliates hold membership interests representing at least fifty percent (50%) of such limited liability company’s capital and
profits.
“Demanding Holders”
has the meaning set forth in Section 2.1(c).
“Effective Date” has the meaning set forth in the Preamble.
“Equity
Securities” means any share, share capital, capital stock, partnership, membership, joint venture or similar interest in any
Person (including any stock appreciation, phantom stock, restricted stock, restricted stock unit, performance share, profit participation
or similar rights), and any option, warrant, right or security (including debt securities) convertible, exchangeable or exercisable therefor.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and any successor thereto, as the same shall be in effect from time
to time.
“Exchanged Earnout Shares” has the meaning
set forth in the Recitals.
“Family
Member” means, with respect to any Person, such Person’s spouse, ancestors, descendants (whether by blood, marriage or
adoption) or spouse of a descendant of such Person, brothers and sisters (whether by blood, marriage or adoption) and inter vivos or testamentary
trusts of which only such Person and his or her spouse, ancestors, descendants (whether by blood, marriage or adoption), brothers and
sisters (whether by blood, marriage or adoption) are beneficiaries.
“FINRA” means
the Financial Industry Regulatory Authority, Inc.
“Form S-1 Shelf” has the meaning set forth in Section 2.1(a).
“Form S-3 Shelf” has the meaning
set forth in Section 2.1(a).
“Founder Holder” has the meaning set forth in the Preamble.
“Holder” means
any holder of Registrable Securities who is a Party to, or who succeeds to rights under, this Investor Rights Agreement pursuant to Section
4.1.
“Holder Information” has the meaning
set forth in Section 2.10(b).
“Investor Rights Agreement” has the meaning set forth in the Preamble.
“Lock-Up
Period” has the meaning set forth in Section 3.1(a).
“Lock-Up Shares” has the meaning set forth
in Section 3.1(a).
“Maximum Number of Securities” has
the meaning set forth in Section 2.1(d).
“Minimum Takedown Threshold” has the meaning set forth in Section
2.1(c).
“Misstatement”
means an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration
Statement or Prospectus, or necessary to make the statements in a Registration Statement or Prospectus, in the light of the
circumstances under which they were made, not misleading.
“Necessary
Action” means, with respect to any Party and a specified result, all actions (to the extent such actions are not prohibited
by applicable Law and within such Party’s control, and in the case of any action that requires a vote or other action on the part
of the Board to the extent such action is consistent with fiduciary duties that PubCo’s directors may have in such capacity) necessary
to cause such result, including (a) calling special meetings of stockholders, (b) voting or providing a written consent or proxy, if applicable
in each case, with respect to shares of Common Stock, (c) causing the adoption of stockholders’ resolutions and amendments to the
Organizational Documents, (d) executing agreements and instruments, (e) making, or causing to be made, with Governmental Entities, all
filings, registrations or similar actions that are required to achieve such result, and (f) nominating certain Persons for election to
the Board in connection with the annual or special meeting of stockholders of PubCo.
“NextEra
Subscription Agreement” that certain Subscription Agreement, dated as of November 29, 2021, by and between Operating Company
and Mendocino Capital, LLC, a Delaware limited liability company.
“Opal HoldCo” has the meaning set forth
in the Recitals.
“Opal Units” means, collectively,
the Class A Units and the Class B Units.
“Opco LLC Agreement” has the meaning set forth in the Recitals.
“Operating
Company” has the meaning set forth in the Recitals.
“Organizational Documents” means the Certificate
of Incorporation and the Bylaws.
“Original RRA”
has the meaning set forth in the Recitals.
“Party” has the meaning set forth in the Preamble.
“Permitted
Transferee” means, with respect to any Person, (a) any Family Member of such Person, (b) any Affiliate of such Person, (c) any
Affiliate of any Family Member of such Person (excluding any Affiliate under this clause (c) who operates or engages in a business
which competes with the business of PubCo or the Operating Company or any of their respective Subsidiaries), (d) with respect to any Founder
Holder, any officer, director, employee, partner, shareholder, member or other equity holder of such Founder Holder or its Affiliates
and (e) any Controlled Entity of such Person.
“Piggyback Registration”
has the meaning set forth in Section 2.2(a).
“Prospectus”
means the prospectus included in any Registration Statement, all amendments (including post-effective amendments) and supplements to such
prospectus, and all material incorporated by reference in such prospectus.
“PubCo” has the meaning set forth in
the Preamble.
“Registrable
Securities” means at any time (a) any shares of Class A Common Stock (including, without limitation, Class A Common Stock (i)
issuable pursuant to the Certificate of Incorporation and the Opco LLC Agreement upon an exchange of Class B Units and the corresponding
cancellation of an equal number of shares of Class B Common Stock in exchange for shares of Class A Common Stock, (ii) that comprise Exchanged
Earnout Shares (whether or not earned as of such date), (iii) issuable upon conversion or exchange of shares of Class C Common Stock,
(iv) any shares of Class A Common Stock issued pursuant to the BCA or (v) held by the Founder Holders or Sellers), and (b) any Equity
Securities of PubCo or any Subsidiary of PubCo that may be issued or distributed or be issuable with respect to the securities referred
to in clauses (a) by way of conversion, dividend, stock split or other distribution, merger, consolidation, exchange, recapitalization
or reclassification or similar transaction, in each case held by a Holder, other than any security received pursuant to an incentive plan
adopted by PubCo on or after the Closing Date; provided, however, that any such Registrable Securities shall cease to be Registrable
Securities to the extent (A) a Registration Statement with respect to the sale of such Registrable Securities has become effective under
the Securities Act and such Registrable Securities have been sold, transferred, disposed of or exchanged in accordance with the plan of
distribution set forth in such Registration Statement, (B) such Registrable Securities shall have ceased to be outstanding,
(C) such
Registrable Securities have been sold to, or through, a broker, dealer or underwriter in a public distribution or other public
securities transaction, (D) such Registrable Security is disposed of under SEC Rule 144 under the Securities Act or any other public
sale pursuant to an exemption from the registration requirements of the Securities Act as a result of which the legend on any
certificate or book-entry notation representing such Registrable Security restricting transfer of such Registrable Security has been
removed or (E) for purposes of Article II, the Holder thereof, together with its, his or her Permitted Transferees,
Beneficially Owns less than one percent (1%) of the shares of Class A Common Stock that are outstanding at such time. For purposes
of this Agreement, a Person shall be deemed to be a holder of shares of Class A Common Stock and such shares of Class A Common Stock
shall be deemed to be in existence whenever such Person has the right to acquire such shares of Class A Common Stock (upon
conversion, exchange or exercise in connection with a transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right other than vesting), whether or not such acquisition has actually been effected, and
such Person shall be entitled to exercise the rights of a holder of shares of Class A Common Stock.
“Registration”
means a registration, including any related Shelf Takedown, effected by preparing and filing a registration statement, prospectus or similar
document in compliance with the requirements of the Securities Act, and such registration statement becoming effective.
“Registration
Expenses” means the expenses of a Registration or other Transfer pursuant to the terms of this Investor Rights Agreement, including
the following:
(a) all
SEC or securities exchange registration and filing fees (including fees with respect to filings required to be made with FINRA);
(b) all
fees and expenses of compliance with securities or blue sky Laws (including fees and disbursements of counsel for the Underwriters in
connection with blue sky qualifications of Registrable Securities);
(c)
all printing, messenger, telephone and delivery expenses;
(d)
all fees and disbursements of counsel for PubCo;
(e) all
fees and disbursements of all independent registered public accountants of PubCo incurred in connection with such Registration or Transfer,
including the expenses of any special audits and/or comfort letters required or incident to such performance and compliance;
(f) reasonable
out-of-pocket fees and expenses of one (1) legal counsel selected by the majority-in-interest of the Holders participating in such Registration
or Transfer; and
(g) the
costs and expenses of PubCo relating to analyst and investor presentations or any “road show” undertaken in connection with
the Registration and/or marketing of the Registrable Securities (including the expenses of the Holders).
“Registration
Statement” means any registration statement that covers the Registrable Securities pursuant to the provisions of this Investor
Rights Agreement, including the Prospectus included in such registration statement, amendments (including post-effective amendments) and
supplements to such registration statement, and all exhibits to and all material incorporated by reference in such registration statement.
“Representatives”
means, with respect to any Person, any of such Person’s officers, directors, managers, members, equityholders, employees, agents,
attorneys, accountants, actuaries, consultants, financial advisors or other Person acting on behalf of such Person.
“Requesting
Holder” means any Holder requesting piggyback rights pursuant to Section 2.2 with respect to an Underwritten Shelf Takedown.
“SEC” means the United States Securities
and Exchange Commission.
“SEC
Rule 144” means Rule 144 promulgated by the SEC under the Securities Act.
“SEC Rule 145” means Rule 145
promulgated by the SEC under the Securities Act.
“Securities Act” means the Securities Act of 1933, as amended, and
any successor thereto, as the same shall be in effect from time to time.
“Sellers” has the meaning set forth
in the Preamble.
“Shelf” has the meaning set forth in Section 2.1(a).
“Shelf
Registration” means a registration of securities pursuant to a Registration Statement filed with the SEC in accordance with
and pursuant to Rule 415 promulgated under the Securities Act.
“Shelf Takedown”
means an Underwritten Shelf Takedown or any proposed transfer or sale using a Registration Statement, including a Piggyback Registration.
“Sponsor” has the meaning set forth in
the Preamble.
“Sponsor Letter” means
that certain Letter Agreement, dated as of March 25, 2021, by and among PubCo, the Founder Holders and the other parties thereto.
“Sponsor Members” has the meaning
set forth in Section 2.16(a).
“Sponsor Principal” has the meaning set forth in the Preamble.
“Subsequent Shelf Registration” has the
meaning set forth in Section 2.1(b).
“Transfer”
means, when used as a noun, any voluntary or involuntary transfer, sale, pledge or hypothecation or other disposition by the Transferor
(whether by operation of law or otherwise) and, when used as a verb, the Transferor voluntarily or involuntarily transfers, sells, pledges
or hypothecates or otherwise disposes of (whether by operation of law or otherwise), including, in each case, (a) the 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
Person, 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. The terms “Transferee,” “Transferor,” “Transferred,”
and other forms of the word “Transfer” shall have the correlative meanings.
“Underwriter”
means any investment banker(s) and manager(s) appointed to administer the offering of any Registrable Securities as principal in an Underwritten
Offering.
“Underwritten
Offering” means a Registration in which Equity Securities of PubCo are sold to an Underwriter for distribution to the public.
“Underwritten Shelf Takedown” has the meaning
set forth in Section 2.1(c).
“Well-Known
Seasoned Issuer” has the meaning set forth in Rule 405 promulgated by the SEC pursuant to the Securities Act.
“Warrants”
means the outstanding warrants, each exercisable into one (1) share of Class A Common Stock, to purchase an aggregate of 9,223,261 shares
of Class A Common Stock, which were issued to the Sponsor pursuant to that certain Private Placement Warrant Purchase Agreement, dated
March 25, 2021, by and among the Sponsor and PubCo.
“Withdrawal Notice” has the meaning set
forth in Section 2.1(e).
Section 1.2 Interpretive
Provisions. For all purposes of this Investor Rights Agreement, except as otherwise provided in this Investor Rights Agreement or
unless the context otherwise requires:
(a) the
singular shall include the plural, and the plural shall include the singular, unless the context clearly prohibits that construction;
(b) the
words “hereof,” “herein,” “hereunder” and words of similar import, when used in this Investor Rights
Agreement, refer to this Investor Rights Agreement as a whole and not to any particular provision of this Investor Rights Agreement;
(c) references
in this Investor Rights Agreement to any Law shall be deemed also to refer to such Law, and all rules and regulations promulgated thereunder;
(d) whenever
the words “include,” “includes” or “including” are used in this Investor Rights Agreement, they shall
mean “without limitation;”
(e) the
captions and headings of this Investor Rights Agreement are for convenience of reference only and shall not affect the interpretation
of this Investor Rights Agreement;
(f) pronouns
of any gender or neuter shall include, as appropriate, the other pronoun forms;
(g) the
word “or” shall be construed to mean “and/or” and the words “neither,” “nor,” “any,”
“either” and “or” shall not be exclusive, unless the context clearly prohibits that construction; and
(h)
the phrase “to the extent” shall be construed to mean “the degree by which.”
ARTICLE
II
REGISTRATION RIGHTS
Section 2.1 Shelf Registration.
(a) Filing.
PubCo shall file, within twenty (20) days of the Closing Date or such other earlier date as it is required in accordance with any PIPE
Subscription Agreement, a Registration Statement for a Shelf Registration on Form S-3 (the “Form S-3 Shelf”), or if
PubCo is ineligible to use a Form S-3 Shelf, a Registration Statement for a Shelf Registration on Form S- 1 (the “Form S-1 Shelf”
and, together with the Form S-3 Shelf (and any Subsequent Shelf Registration), the “Shelf”), in each case, covering
the resale of all Registrable Securities (determined as of two (2) Business Days prior to such filing) on a delayed or continuous basis.
PubCo shall use its commercially reasonable efforts to cause the Shelf to become effective as soon as practicable after such filing, but
in no event later than sixty (60) days after the initial filing thereof (or ninety (90) days after the initial filing thereof if the SEC
notifies PubCo that it will “review” the Shelf) or such other earlier date as it is required in accordance with any PIPE Subscription
Agreement. The Shelf shall provide for the resale of the Registrable Securities included therein pursuant to any method or combination
of methods legally available to, and requested by, any Holder. PubCo shall maintain the Shelf in accordance with the terms of this Investor
Rights Agreement, and shall prepare and file with the SEC such amendments, including post-effective amendments, and supplements as may
be necessary to keep such Shelf continuously effective, available for use and in compliance with the provisions of the Securities Act
until such time as there are no longer any Registrable Securities. In the event PubCo files a Form S-1 Shelf, PubCo shall use its commercially
reasonable efforts to convert the Form S-1 Shelf (and any Subsequent Shelf Registration) to a Form S-3 Shelf as soon as practicable after
PubCo is eligible to use Form S-3.
(b) Subsequent
Shelf Registration. If any Shelf ceases to be effective under the Securities Act for any reason at any time while there are any Registrable
Securities outstanding, PubCo shall use its commercially reasonable efforts to as promptly as is reasonably practicable cause such Shelf
to again become effective under the Securities Act (including obtaining the prompt withdrawal of any order suspending the effectiveness
of such Shelf), and shall use its commercially reasonable efforts to as promptly as is reasonably practicable amend such Shelf 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 Holder.
If a Subsequent Shelf Registration is filed, PubCo shall use its commercially reasonable efforts to (i) cause such Subsequent Shelf Registration
to become effective under the Securities Act as promptly as is reasonably practicable after the filing thereof (it being agreed that the
Subsequent Shelf Registration shall be an Automatic Shelf Registration Statement if PubCo is a Well-Known Seasoned Issuer) and (ii) keep
such Subsequent Shelf Registration continuously effective, available for use and in compliance with the provisions of the Securities Act
until such time as there are no longer any Registrable Securities outstanding. Any such Subsequent Shelf Registration shall be on Form
S-3 to the extent that PubCo is eligible to use such form. Otherwise, such Subsequent Shelf Registration shall be on another appropriate
form. In the event that any Holder holds Registrable Securities that are not registered for resale on a delayed or continuous basis, PubCo,
upon request of a Holder, shall promptly use its commercially reasonable efforts to cause the resale of such Registrable Securities to
be covered by either, at PubCo’s option, the Shelf (including by means of a post-effective amendment) or a Subsequent Shelf Registration
and cause the same to become effective as soon as practicable after such filing and such Shelf or Subsequent Shelf Registration shall
be subject to the terms of this Investor Rights Agreement.
(c) Requests
for Underwritten Shelf Takedowns. At any time and from time to time after the Shelf has been declared effective by the SEC, the Holders
may request to sell all or any portion of their Registrable Securities in an Underwritten Offering that is registered pursuant to the
Shelf (each, an “Underwritten Shelf Takedown”); provided that PubCo shall only be obligated to effect an Underwritten
Shelf Takedown if such offering (i) shall include securities with a total offering price (including piggyback securities and before deduction
of underwriting discounts) reasonably expected to exceed, in the aggregate, $25,000,000 (the “Minimum Takedown Threshold”)
or (ii) shall be made with respect to all of the Registrable Securities of the Demanding Holder. All requests for Underwritten Shelf Takedowns
shall be made by giving written notice to PubCo, which shall specify the approximate number of Registrable Securities proposed to be sold
in the Underwritten Shelf Takedown and the expected price range (net of underwriting discounts and commissions) of such Underwritten Shelf
Takedown; provided that each Holder agrees that the fact that such a notice has been delivered shall constitute Confidential Information
subject to Section 4.14. The Holders that requested such Underwritten Shelf Takedown (the “Demanding Holders”)
holding a majority in interest of the Registrable Securities to be registered pursuant to such Underwritten Shelf Takedown shall have
the right to select the Underwriters for such offering (which shall consist of one (1) or more reputable nationally or regionally recognized
investment banks), and to agree to the pricing and other terms of such offering; provided that such selection shall be subject
to the consent of PubCo, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding anything to the contrary
contained in this Investor Rights Agreement, in no event shall any Holder or any Transferee thereof request an Underwritten Shelf Takedown
during the Lock-Up Period applicable to such Person. No Holder may request any Underwritten Shelf Takedown more than two (2) times in
any twelve
(12) month period, subject to the proviso
in the first sentence of this Section 2.1(c).
(d) Reduction
of Underwritten Shelf Takedowns. If the managing Underwriter or Underwriters in an Underwritten Shelf Takedown, in good faith,
advise PubCo, the Demanding Holders and the Requesting Holders (if any) in writing that the dollar amount or number of Registrable
Securities that the Demanding Holders and the Requesting Holders (if any) desire to sell, taken together with all other shares of
Common Stock or other Equity Securities that PubCo desires to sell and all other shares of Common Stock or other Equity Securities,
if any, that have been requested to be sold in such Underwritten Offering pursuant to separate written contractual piggyback
registration rights held by any other stockholders of PubCo, exceeds the maximum dollar amount or maximum number of Equity
Securities that can be sold in such Underwritten Offering without adversely affecting the proposed offering price, the timing, the
distribution method or the probability of success of such Underwritten Offering (such maximum dollar amount or maximum number of
such Equity Securities, as applicable, the “Maximum Number of Securities”), then PubCo shall include in such
Underwritten Offering, as follows: at all times (i) first, the Registrable Securities of the Demanding Holders and the Requesting
Holders (if any) (pro rata based on the respective number of Registrable Securities that each Demanding Holder and Requesting Holder
(if any) has requested be included in such Underwritten Shelf Takedown) that can be sold without exceeding the Maximum Number of
Securities; (ii) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause
(i), the shares of Common Stock or other Equity Securities that PubCo desires to sell, which can be sold without exceeding the
Maximum Number of Securities; (iii) third, to the extent that the Maximum Number of Securities has not been reached under the
foregoing clauses (i) and (ii), the shares of Common Stock or other Equity Securities of other Persons that PubCo is
obligated to include in such Underwritten Offering pursuant to separate written contractual arrangements with such Persons and that
can be sold without exceeding the Maximum Number of Securities.
(e) Withdrawal.
Any of the Demanding Holders initiating an Underwritten Shelf Takedown shall have the right to withdraw from such Underwritten Shelf Takedown
for any or no reason whatsoever upon written notification (a “Withdrawal Notice”) to PubCo and the Underwriter or Underwriters
(if any) of such Demanding Holder’s intention to withdraw from such Underwritten Shelf Takedown, prior to the public announcement
of the Underwritten Shelf Takedown by PubCo; provided that a Holder not so withdrawing may elect to have PubCo continue such Underwritten
Shelf Takedown if the Minimum Takedown Threshold would still be satisfied or if such Underwritten Shelf Takedown would be made with respect
to all of the Registrable Securities of such Holder. Following the receipt of any Withdrawal Notice, PubCo shall promptly forward such
Withdrawal Notice to any other Holders that had elected to participate in such Underwritten Shelf Takedown. Notwithstanding anything to
the contrary contained in this Investor Rights Agreement, PubCo shall be responsible for the Registration Expenses incurred in connection
with an Underwritten Shelf Takedown prior to delivery of a Withdrawal Notice under this Section 2.1(e).
(f) Long-Form
Demands. Upon the expiration of the Lock-Up Period applicable to such Person, and during such times as no Shelf is effective, each
Holder may demand that PubCo file a Registration Statement on Form S-1 for the purpose of conducting an Underwritten Offering of any or
all of such Holder’s Registrable Securities. PubCo shall file such Registration Statement within thirty (30) days of receipt of
such demand and use its commercially reasonable efforts to cause the same to be declared effective within sixty (60) days of filing. The
provisions of Section 2.1(c), Section 2.1(d) and Section 2.1(e) shall apply to this Section 2.1(f) as if a demand
under this Section 2.1(f) were an Underwritten Shelf Takedown; provided that in order to withdraw a demand under this Section
2.1(f), such withdrawal must be received by PubCo prior to PubCo having publicly filed a Registration Statement pursuant to this Section
2.1(f).
Section 2.2 Piggyback Registration.
(a) Piggyback
Rights. If PubCo or any Holder proposes to conduct a registered offering of, or if PubCo proposes to file a Registration
Statement under the Securities Act with respect to an offering of, Equity Securities of PubCo or securities or other obligations
exercisable or exchangeable for or convertible into Equity Securities of PubCo, for its own account or for the account of
stockholders of PubCo (or by PubCo and by the stockholders of PubCo, including an Underwritten Shelf Takedown pursuant to Section
2.1), other than a Registration Statement (or any registered offering with respect thereto) (i) filed in connection with any
employee stock option or other benefit plan or SEC Rule 145 transaction, (ii) for an exchange offer or offering of securities solely
to PubCo’s existing stockholders, (iii) for an offering of debt that is convertible into Equity Securities of PubCo or (iv)
for a dividend reinvestment plan, then PubCo shall give written notice of such proposed offering to all Holders as soon as
practicable but not less than four (4) calendar days before the anticipated filing date of such Registration Statement or, in the
case of an underwritten offering pursuant to a Shelf Registration, the launch date of such offering, which notice shall (A) describe
the amount and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the
proposed managing Underwriter or Underwriters, if any and if known, in such offering and (B) offer to all of the Holders the
opportunity to include in such registered offering such number of Registrable Securities as such Holders may request in writing
within three (3) calendar days after receipt of such written notice (such registered offering, a “Piggyback
Registration”); provided that each Holder agrees that the fact that such a notice has been delivered shall
constitute Confidential Information subject to Section 4.14. PubCo shall cause such Registrable Securities to be included in
such Piggyback Registration and shall use its commercially reasonable efforts to cause the managing Underwriter or Underwriters of a
proposed Underwritten Offering to permit the Registrable Securities requested by the Holders pursuant to this Section 2.2(a)
to be included in a Piggyback Registration on the same terms and conditions as any similar securities of PubCo included in such
registered offering and to permit the sale or other disposition of such Registrable Securities in accordance with the intended
method(s) of distribution thereof. The inclusion of any Holder’s Registrable Securities in a Piggyback Registration shall be
subject to such Holder’s agreement to abide by the terms of Section 2.6.
(b) Reduction
of Piggyback Registration. If the managing Underwriter or Underwriters in an Underwritten Offering that is to be a Piggyback Registration
(other than an Underwritten Shelf Takedown), in good faith, advises PubCo and the Holders participating in the Piggyback Registration
in writing that the dollar amount or number of shares of Common Stock or other Equity Securities that PubCo desires to sell, taken together
with (i) the shares of Common Stock or other Equity Securities, if any, as to which Registration or a registered offering has been demanded
pursuant to separate written contractual arrangements with Persons other than the Holders hereunder and (ii) the shares of Common Stock
or other Equity Securities, if any, as to which registration has been requested pursuant to Section 2.2, exceeds the Maximum Number
of Securities, then:
(i) if
the Registration is initiated and undertaken for PubCo’s account, PubCo shall include in any such Registration (A) first, the
shares of Common Stock or other Equity Securities that PubCo desires to sell, which can be sold without exceeding the Maximum Number
of Securities, (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause
(A), the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to Section
2.2(a) (pro rata based on the respective number of Registrable Securities that each Holder has requested be included in such
Registration), which can be sold without exceeding the Maximum Number of Securities and (C) third, to the extent that the Maximum
Number of Securities has not been reached under the foregoing clauses (A) and (B), the shares of Common Stock or other
Equity Securities, if any, as to which Registration has been requested pursuant to written contractual piggyback registration rights
of other stockholders of PubCo, which can be sold without exceeding the Maximum Number of Securities; or (ii) if the Registration is
pursuant to a request by Persons other than the Holders, then PubCo shall include in any such Registration (A) first, the shares of
Common Stock or other Equity Securities, if any, of such requesting Persons, other than the Holders, which can be sold without
exceeding the Maximum Number of Securities, (B) second, to the extent that the Maximum Number of Securities has not been reached
under the foregoing clause (A), the Registrable Securities of Holders exercising their rights to register their Registrable
Securities pursuant to Section 2.2(a) (pro rata based on the respective number of Registrable Securities that each Holder has
requested be included in such Registration), which can be sold without exceeding the Maximum Number of Securities, (C) third, to the
extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), the shares
of Common Stock or other Equity Securities that PubCo desires to sell, which can be sold without exceeding the Maximum Number of
Securities and (D) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses
(A), (B) and (C), the shares of Common Stock or other Equity Securities, if any, for the account of other Persons that
PubCo is obligated to register pursuant to separate written contractual piggyback registration rights of such Persons, which can be
sold without exceeding the Maximum Number of Securities.
Notwithstanding
anything to the contrary in this Section 2.2(b), in the event a Demanding Holder has submitted notice for a bona fide Underwritten
Shelf Takedown and all sales pursuant to such Underwritten Shelf Takedown pursuant to Section 2.1 have not been effected in accordance
with the applicable plan of distribution or submitted a Withdrawal Notice prior to such time that PubCo has given written notice of a
Piggyback Registration to all Holders pursuant to Section 2.2, then any reduction in the number of Registrable Securities to be
offered in such offering shall be determined in accordance with Section 2.1(d), instead of this Section 2.2(b).
(c) Piggyback
Registration Withdrawal. Any Holder shall have the right to withdraw from a Piggyback Registration for any or no reason whatsoever
upon written notification to PubCo and the Underwriter or Underwriters (if any) of such Holder’s intention to withdraw from such
Piggyback Registration prior to the effectiveness of the Registration Statement filed with the SEC with respect to such Piggyback Registration
or, in the case of a Piggyback Registration pursuant to a Shelf Registration, the filing of the applicable “red herring” prospectus
or prospectus supplement with respect to such Piggyback Registration used for marketing such transaction. PubCo (whether on its own good
faith determination or as the result of a request for withdrawal by Persons pursuant to separate written contractual obligations) may
withdraw a Registration Statement filed with the SEC in connection with a Piggyback Registration (which, in no circumstance, shall include
the Shelf) at any time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the contrary set forth in
this Investor Rights Agreement, PubCo shall be responsible for the Registration Expenses incurred in connection with a Piggyback Registration
prior to its withdrawal under this Section 2.2(c).
(d) Notwithstanding
anything herein to the contrary, this Section 2.2 shall not apply (i) for any Holder or Party, prior to the expiration of the Lock-Up
Period in respect of such Holder or Party or (ii) to any Shelf Take-Down irrespective of whether such Shelf Take-Down is an Underwritten
Shelf Take-Down or not an Underwritten Shelf Take-Down.
Section
2.3 Restriction on Transfer. In connection with any Underwritten Offering of Equity Securities of PubCo, each Holder that
participates in such Underwritten Offering agrees that it shall not Transfer any shares of Common Stock (other than those included
in such offering pursuant to this Investor Rights Agreement), without the prior written consent of PubCo, during the period
commencing seven (7) calendar days prior (to the extent notice of such Underwritten Offering has been provided) to such Underwritten
Offering and ending upon the shorter of (a) the shortest number of days that a director of PubCo, “executive officer”
(as defined under Section 16 of the Exchange Act) of PubCo or any stockholder of PubCo (other than a Holder or director or employee
of, or consultant to, PubCo) who owns ten percent (10%) or more of the outstanding shares of Common Stock contractually agrees with
the Underwriters of such Underwritten Offering to not to sell any securities of PubCo following such Underwritten Offering and (b)
the ninety (90)-day period beginning on the date of pricing of such offering, except in the event the Underwriter managing the
offering otherwise agrees by written consent, and further agrees to execute a customary lock-up agreement in favor of the
Underwriters to such effect (in each case, on substantially the same terms and conditions as all such Holders).
Section 2.4
General Procedures. In connection with effecting any Registration and/or Shelf Takedown, subject to applicable Law and any regulations
promulgated by any securities exchange on which PubCo’s Equity Securities are then listed, each as interpreted by PubCo with the
advice of its counsel, PubCo shall use its commercially reasonable efforts (except as set forth in Section 2.4(d)) to effect such
Registration and/or Shelf Takedown to permit the sale of the Registrable Securities included in such Registration and/or Shelf Takedown
in accordance with the intended plan of distribution thereof, and pursuant thereto PubCo shall, as expeditiously as possible:
(a) prepare
and file with the SEC as soon as practicable a Registration Statement with respect to such Registrable Securities and use its commercially
reasonable efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered
by such Registration Statement have been sold;
(b) prepare
and file with the SEC such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus,
as may be reasonably requested by any Holder or as may be required by the rules, regulations or instructions applicable to the registration
form used by PubCo or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all
Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth
in such Registration Statement or supplement to the Prospectus;
(c) prior
to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters,
if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, if any, copies
of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case, including
all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including
each preliminary Prospectus), and such other documents as the Underwriters or the Holders of Registrable Securities included in such Registration
or the legal counsel for any such Holders, if any, may reasonably request in order to facilitate the disposition of the Registrable Securities
owned by such Holders;
(d) prior
to any public offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable
Securities covered by the Registration Statement under such securities or “blue sky” Laws of such jurisdictions in the
United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of
distribution) may request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such
registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration
Statement to be registered with or approved by such other Governmental Entities as may be necessary by virtue of the business and
operations of PubCo 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 PubCo shall not be required to qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or
taxation in any such jurisdiction where it is not then otherwise so subject;
(e) cause
all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued
by PubCo are then listed;
(f) provide
a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of
such Registration Statement;
(g) advise
each Holder of Registrable Securities covered by a Registration Statement, promptly after it shall receive notice or obtain knowledge
thereof, of the issuance of any stop order by the SEC suspending the effectiveness of such Registration Statement or the initiation or
threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such stop order should be issued;
(h) at
least three (3) calendar days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration
Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus furnish
a draft thereof to each Holder of Registrable Securities included in such Registration Statement, or its counsel, if any (excluding any
exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference therein);
(i) notify
the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act,
of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes
a Misstatement, and then to correct such Misstatement as set forth in Section 2.7;
(j) permit
Representatives of the Holders, the Underwriters, if any, and any attorney, consultant or accountant retained by such Holders or Underwriter
to participate, at each such Person’s own expense, except to the extent such expenses constitute Registration Expenses, in the preparation
of the Registration Statement, and cause PubCo’s officers, directors and employees to supply all information reasonably requested
by any such Representative, Underwriter, attorney, consultant or accountant in connection with such Registration; provided, however,
that such Persons agree to confidentiality arrangements reasonably satisfactory to PubCo, prior to the release or disclosure of any such
information;
(k) obtain
a “cold comfort” letter, and a bring-down thereof, from PubCo’s independent registered public accountants in the event
of an Underwritten Offering which the participating Holders may rely on, in customary form and covering such matters of the type customarily
covered by “cold comfort” letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest
of the participating Holders;
(l) on
the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion and negative assurances
letter, dated as of such date, of counsel representing PubCo for the purposes of such Registration, addressed to the Holders, the
placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to such Registration
in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request
and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to the participating
Holders;
(m) in
the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary
form, with the managing Underwriter of such Underwritten Offering;
(n) make
available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12)
months beginning within three (3) months after the effective date of such Registration Statement, which satisfies the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the SEC);
(o) if
an Underwritten Offering involves Registrable Securities with a total offering price (including piggyback securities and before deduction
of underwriting discounts) reasonably expected to exceed, in the aggregate, $35,000,000, use its commercially reasonable efforts to make
available senior executives of PubCo to participate in customary “road show” presentations that may be reasonably requested
by the Underwriter in such Underwritten Offering; and
(p) otherwise,
in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by, the Holders in connection
with such Registration.
Section 2.5 Registration
Expenses. The Registration Expenses of all Registrations shall be borne by PubCo. It is acknowledged by the Holders that the Holders
selling any Registrable Securities in an offering shall bear all incremental selling expenses relating to the sale of Registrable Securities
(including all reasonable fees and expenses of any legal counsel representing such Holders (to the extent such counsel is not also representing
PubCo, as determined in accordance with clause (f) of the definition of “Registration Expenses”)), such as Underwriters’
commissions and discounts, brokerage fees, Underwriter marketing costs, in each case, pro rata based on the number of Registrable Securities
that such Holders have sold in such Registration.
Section
2.6 Requirements for Participating in Underwritten Offerings. Notwithstanding anything to the contrary contained in this
Investor Rights Agreement, if any Holder does not provide PubCo with its requested Holder Information, PubCo may exclude such
Holder’s Registrable Securities from the applicable Registration Statement or Prospectus if PubCo determines, based on the
advice of counsel, that such information is necessary to effect the Registration and such Holder continues thereafter to withhold
such information. No Person may participate in any Underwritten Offering of Equity Securities of PubCo pursuant to a Registration
under this Investor Rights Agreement unless such Person (a) agrees to sell such Person’s Registrable Securities on the basis
provided in any underwriting and other arrangements approved by PubCo in the case of an Underwritten Offering initiated by PubCo,
and approved by the Demanding Holders in the case of an Underwritten Offering initiated by the Demanding Holders and (b) completes
and executes all customary questionnaires, powers of attorney, custody agreements, indemnities, lock-up agreements, underwriting
agreements and other customary documents as may be reasonably required under the terms of such underwriting arrangements. Subject to
the minimum thresholds set forth in Section 2.1(c) and 2.4(o), the exclusion of a Holder’s Registrable
Securities as a result of this Section 2.6 shall not affect the registration of the other Registrable Securities to be
included in such Registration.
Section 2.7
Suspension of Sales; Adverse Disclosure. Upon receipt of written notice from PubCo that a Registration Statement or Prospectus
contains a Misstatement, each of the Holders shall forthwith discontinue disposition of Registrable Securities until it has received copies
of a supplemented or amended Prospectus correcting the Misstatement (and PubCo hereby covenants to prepare and file such supplement or
amendment as soon as practicable after giving such notice), or until it is advised in writing by PubCo that the use of the Prospectus
may be resumed. If the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration at any
time would require PubCo to make an Adverse Disclosure or would require the inclusion in such Registration Statement of financial statements
that are unavailable to PubCo for reasons beyond PubCo’s reasonable control, PubCo may, upon giving prompt written notice of such
action to the Holders, delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period
of time, but in no event more than ninety (90) days in any twelve (12)-month period, determined in good faith by PubCo to be necessary
for such purpose. In the event PubCo exercises its rights under the preceding sentence, the Holders agree to suspend, immediately upon
their receipt of the notice referred to above, their use of the Prospectus relating to such Registration in connection with any sale or
offer to sell Registrable Securities. PubCo shall immediately notify the Holders of the expiration of any period during which it exercised
its rights under this Section 2.7.
Section 2.8
Reporting Obligations. As long as any Holder shall own Registrable Securities, PubCo, at all times while it shall be a reporting
company under the Exchange Act, covenants to file timely (or obtain extensions in respect thereof and file within the applicable grace
period) all reports required to be filed by PubCo after the Effective Date pursuant to Sections 13(a) or 15(d) of the Exchange Act and
to promptly furnish the Holders with true and complete copies of all such filings; provided that any documents publicly filed or furnished
with the SEC pursuant to the Electronic Data Gathering, Analysis and Retrieval System shall be deemed to have been furnished to the Holders
pursuant to this Section 2.8.
Section
2.9 Other Obligations. In connection with a Transfer of Registrable Securities pursuant to SEC Rule 144 or through any
broker-dealer transactions described in the plan of distribution set forth within the Prospectus and pursuant to the Registration
Statement of which such Prospectus forms a part, PubCo shall, subject to applicable Law, as interpreted by PubCo with the advice of
counsel, and the receipt of any customary documentation required from the applicable Holders in connection therewith, (a) promptly
instruct its transfer agent to remove any restrictive legends applicable to the Registrable Securities being 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 clause (a). In addition, PubCo shall cooperate reasonably with, and take such customary actions as may reasonably be requested
by the Holders in connection with, the aforementioned Transfers; provided, however, that PubCo shall have no obligation to
participate in any “road shows” or assist with the preparation of any offering memoranda or related documentation with
respect to any Transfer of Registrable Securities in any transaction that does not constitute an Underwritten Offering.
Section 2.10 Indemnification and Contribution.
(a) PubCo
agrees to indemnify and hold harmless each Holder, its officers, managers, directors, employees, trustees, equityholders, beneficiaries,
affiliates, agents and Representatives and each Person who controls such Holder (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities and expenses (including attorneys’ fees) (or actions in respect thereto) caused by, resulting
from, arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement,
Prospectus or preliminary Prospectus or similar document incident to any Registration, qualification, compliance or sale effected pursuant
to this Article II 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 PubCo of
the Securities Act or any other similar federal or state securities Laws, and will reimburse, as incurred, each such Holder, its officers,
managers, directors, trustees, equityholders, beneficiaries, affiliates, agents and Representatives and each Person who controls such
Holder (within the meaning of the Securities Act) for any legal and any other expenses reasonably incurred in connection with investigating
or defending any such loss, claim, damage, liability or expense; provided that PubCo will not be liable in any such case to the
extent that any such loss, claim, damage, liability or expense are caused by, arises out of or is based on any untrue statement or omission
made in reliance and in conformity with written information furnished to PubCo by or on behalf of such Holder expressly for use therein.
PubCo shall indemnify each Underwriter, its respective officers and directors and each Person who controls such Underwriter (within the
meaning of the Securities Act) to the same extent as provided in the foregoing sentence with respect to the indemnification of each Holder.
(b) In
connection with any Registration Statement or Prospectus in which a Holder of Registrable Securities is participating, such Holder
shall furnish to PubCo in writing such information and affidavits as PubCo reasonably requests for use in connection with any such
Registration Statement or Prospectus (the “Holder Information”) and, to the extent permitted by Law, such Holder
shall indemnify and hold harmless PubCo, its officers, managers, directors, employees, trustees, equityholders, beneficiaries,
affiliates, agents and Representatives and each Person who controls PubCo (within the meaning of the Securities Act) against any
losses, claims, damages, liabilities and expenses (including reasonable attorneys’ fees) (or actions in respect thereof)
arising out of, resulting from or based on any untrue statement of material fact contained in the Registration Statement, Prospectus
or preliminary Prospectus or similar document 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 such Holder expressly
for use therein; provided, however, that the obligation to indemnify shall be several, not joint and several, among such
Holders of Registrable Securities, and the liability of each such Holder of Registrable Securities shall be in proportion to and
limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement.
The Holders of Registrable Securities shall indemnify each Underwriter, its officers, directors and each Person who controls such
Underwriter (within the meaning of the Securities Act) to the same extent as provided in the foregoing sentence with respect to
indemnification of PubCo.
(c) Any
Person entitled to indemnification under this Section 2.10 shall (i) give prompt written notice, after such Person has actual knowledge
thereof, to the indemnifying party of any claim or litigation with respect to which such Person 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
materially prejudiced the indemnifying party in the defense of any such claim or litigation) and (ii) permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the indemnified party (not be unreasonably withheld, conditioned
or delayed) and the indemnified party may participate in such defense at the indemnifying party’s expense if representation of such
indemnified party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. An indemnifying party, in the defense of any such claim or litigation, without the consent
of each indemnified party, may only consent to the entry of any judgment or enter into any settlement that (i) includes as a term thereof
the giving by the claimant or plaintiff therein to such indemnified party of an unconditional release from all liability with respect
to such claim or litigation and (ii) does not include any recovery (including any statement as to or an admission of fault, culpability
or a failure to act by or on behalf of such indemnified party) other than monetary damages; provided that any sums payable in connection
with such settlement are paid in full by the indemnifying party.
(d) The
indemnification provided under this Investor Rights Agreement shall remain in full force and effect regardless of any investigation made
by or on behalf of the indemnified party or any officer, manager, director, Representative or controlling Person of such indemnified party
and shall survive the Transfer of securities.
(e) If
the indemnification provided in this Section 2.10 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, 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; provided, however, that the liability of any Holder under this Section 2.10(e) shall be limited to the
amount of the net proceeds received by such Holder in such offering giving rise to such liability. 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 in Sections 2.10(a), 2.10(b) and 2.10(c), any legal or other fees, charges or expenses reasonably incurred by
such Party in connection with any investigation or proceeding. The Parties agree that it would not be just and equitable if
contribution pursuant to this Section 2.1(e) were determined by pro rata allocation or by any other method of allocation,
which does not take account of the equitable considerations referred to in this Section 2.1(e). 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 2.1(e) from any Person who was not guilty of such fraudulent misrepresentation.
Section 2.11
Other Registration Rights. Other than the registration rights set forth in the Original RRA, in the PIPE Subscription Agreements
and in the NextEra Subscription Agreement, PubCo represents and warrants that no Person, other than a Holder of Registrable Securities
pursuant to this Investor Rights Agreement, has any right to require PubCo to register any securities of PubCo for sale or to include
such securities of PubCo in any Registration Statement filed by PubCo for the sale of securities for its own account or for the account
of any other Person. Further, each of PubCo, the Sponsor and the Sponsor Principals represents and warrants that this Investor Rights
Agreement supersedes any other registration rights agreement or agreement (including the Original RRA), other than the PIPE Subscription
Agreements and the NextEra Subscription Agreement.
Section 2.12
SEC Rule 144. With a view to making available to the Holders the benefits of SEC Rule 144, PubCo covenants that it will (a) make
available at all times information necessary to comply with SEC Rule 144, if SEC Rule 144 is available with respect to resales of the
Registrable Securities under the Securities Act and (b) take such further action as the Holders may reasonably request, all to the extent
required from time to time to enable them to sell Registrable Securities without registration under the Securities Act within the limitation
of the exemptions provided by SEC Rule 144 promulgated under the Securities Act (if available with respect to resales of the Registrable
Securities), as such rule may be amended from time to time. Upon the request of any Holder, PubCo will deliver to such Holder a written
statement as to whether PubCo has complied with such information requirements, and, if not, the specific reasons for non-compliance.
Section 2.13
Term. This Article II shall terminate with respect to any Holder on the date that such Holder no longer holds any Registrable
Securities. The provisions of Section 2.10 shall survive any such termination with respect to such Holder.
Section 2.14
Holder Information. Each Holder agrees, if requested in writing by PubCo, to represent to PubCo the total number of Registrable
Securities held by such Holder in order for PubCo to make determinations under this Investor Rights Agreement, including for purposes
of Section 2.12. Other than the Sellers and the Founder Holders, a Party who does not hold Registrable Securities as of the Closing
Date and who acquires Registrable Securities after the Closing Date will not be a “Holder” until such Party gives PubCo a
representation in writing of the number of Registrable Securities it holds.
Section 2.15
Termination of Original RRA. Upon the Closing, PubCo, the Sponsor and the Sponsor Principals hereby agree that the Original RRA
and all of the respective rights and obligations of the parties thereunder are hereby terminated in their entirety and shall be of no
further force or effect.
Section 2.16 Distributions; Direct Ownership.
(a) In
the event that, pursuant to and in accordance with Section 3.2, the Sponsor distributes all of its Registrable Securities to its
equityholders, limited partners and members of its general partner (the “Sponsor Members”), the Sponsor Members shall
be treated as the Sponsor under this Investor Rights Agreement; provided that the Sponsor Members, taken as a whole, shall not
be entitled to rights in excess of those conferred on the Sponsor, as if the Sponsor remained a single entity party to this Investor Rights
Agreement.
(b) In
the event that a Seller distributes all of its Registrable Securities to its equityholders, such equityholders shall be treated as a Seller
under this Investor Rights Agreement; provided that such equityholders, taken as a whole, shall not be entitled to rights in excess
of those conferred on a Seller, as if such Seller remained a single party to this Investor Rights Agreement.
Section 2.17
Adjustments. If there are any changes in the shares of Common Stock as a result of stock split, stock dividend, combination or
reclassification, or through merger, consolidation, recapitalization or other similar event, equitable adjustment shall be made in the
provisions of this Investor Rights Agreement, as may be required, so that the rights, privileges, duties and obligations under this Investor
Rights Agreement shall continue with respect to the shares of Common Stock as so changed.
ARTICLE III
LOCK-UP
Section 3.1 Lock-Up.
(a) Each
Holder (other than the Sponsor Principals, except to the extent a Sponsor Principal is a transferee (including Permitted Transferee) of
Lock-Up Shares from another Holder) severally, and not jointly, agrees with PubCo not to effect any Transfer, or make a public announcement
of any intention to effect such Transfer, of any Lock-Up Shares Beneficially Owned or otherwise held by such Holder during the Lock-Up
Period; provided that such prohibition shall not apply to Transfers (i) permitted pursuant to Section 3.2 or (ii) permitted
pursuant to Article II (other than Section 2.9). The “Lock-Up Period” with respect to the Lock-Up Shares
of each Holder (other than the Sponsor Principals) shall be the period commencing on the Closing Date and continuing until the date that
is one hundred eighty (180) days after the Closing Date. “Lock-Up Shares” means the Equity Securities of PubCo and
the Operating Company held by the Holders (other than the Sponsor Principals, except to the extent a Sponsor Principal is a transferee
(including Permitted Transferee) of Lock-Up Shares from another Holder), directly or indirectly, as of the Closing Date; provided
that in no event shall the Warrants (or any shares of Class A Common Stock issued upon exercise of any Warrant) be considered “Lock-Up
Shares.”
(b) During
the Lock-Up Period, any purported Transfer of Lock-Up Shares other than in accordance with this Investor Rights Agreement shall be null
and void, and PubCo shall refuse to recognize any such Transfer for any purpose.
(c) The
Holders acknowledge and agree that, notwithstanding anything to the contrary contained in this Investor Rights Agreement, the Equity
Securities of PubCo and the Operating Company, in each case, Beneficially Owned by such Holder shall remain subject to any
restrictions on Transfer under applicable securities Laws of any Governmental Entity, including all applicable holding periods under
the Securities Act and other rules of the SEC.
Section
3.2 Permitted Transfers. Notwithstanding anything to the contrary contained in this Investor Rights Agreement, during the
Lock-Up Period applicable to any Lock-Up Shares of a Holder, such Holder may Transfer, without the consent of PubCo, any of such
Lock-Up Shares to (a) any of such Holder’s Permitted Transferees, upon written notice to PubCo or (b)(i) a charitable
organization, upon written notice to PubCo, (ii) in the case of an individual, by virtue of Laws of descent and distribution upon
death of the individual, (iii) in the case of an individual, pursuant to a qualified domestic relations order or (iv) pursuant to
any liquidation, merger, stock exchange or other similar transaction which results in all of PubCo’s stockholders having the
right to exchange their shares of Common Stock for cash, securities or other property subsequent to the Business Combination;
provided that in connection with any Transfer of such Lock-Up Shares pursuant to clause (b)(ii) or clause (b)(iii), (A) the
restrictions and obligations contained in Section 3.1 and this Section 3.2 will continue to apply to such Lock-Up
Shares after any Transfer of such Lock-Up Shares and (B) the Transferee of such Lock-Up Shares shall have no rights under this
Investor Rights Agreement, unless, for the avoidance of doubt, such Transferee is a Permitted Transferee in accordance with this
Investor Rights Agreement. Any Transferee of Lock-Up Shares that is a Permitted Transferee of the Transferor shall be required, at
the time of and as a condition to such Transfer, to become a party to this Investor Rights Agreement, by executing and delivering a
joinder, substantially in the form attached to this Investor Rights Agreement as Exhibit A, whereupon such Transferee will be
treated as a Party (with the same rights and obligations as the Transferor) for all purposes of this Investor Rights Agreement.
Notwithstanding anything to the contrary, and for the avoidance of doubt, the Sponsor shall be permitted to forfeit any portion of
its Lock-Up Shares pursuant to the Sponsor Letter.
Section 3.3 Other
Lock-Up Restrictions. Each of PubCo, the Sponsor and each Sponsor Principal hereby acknowledge and agree that this Article III
supersedes Section 5 of the Sponsor Letter in all respects, and, upon execution of this Investor Rights Agreement by each of PubCo, the
Sponsor and each Sponsor Principal, the Sponsor Letter shall be deemed amended to remove Section 5 of the Sponsor Letter.
ARTICLE
IV
GENERAL PROVISIONS
Section 4.1 Assignment; Successors and Assigns; No
Third Party Beneficiaries.
(a) Except
as otherwise permitted pursuant to this Investor Rights Agreement, and other than assignments in connection with a distribution pursuant
to Section 2.16, no Party may assign such Party’s rights and obligations under this Investor Rights Agreement, in whole or
in part, without the prior written consent of Opal HoldCo, in the case of an assignment by a Founder Holder, or the Sponsor, in the case
of an assignment by a Seller. Any such assignee may not again assign those rights, other than in accordance with this Article IV.
Any attempted assignment of rights or obligations in violation of this Article IV shall be null and void.
(b) Notwithstanding
anything to the contrary contained in this Investor Rights Agreement (other than the succeeding sentence of this Section
4.1(b)), (i) prior to the expiration of the Lock-Up Period with respect to any Lock-Up Shares of a Holder, such Holder may not
Transfer such Holder’s rights or obligations under this Investor Rights Agreement in connection with a Transfer of such
Holder’s Registrable Securities, in whole or in part, except in connection with a Transfer pursuant to Section 3.2, and
(ii) after the expiration of the Lock-Up Period with respect to such Lock-Up Shares, such Holder may Transfer such Holder’s
rights or obligations under this Investor Rights Agreement in connection with a Transfer of such Holder’s Registrable
Securities, in whole or in part, to (A) any of such Holder’s Permitted Transferees or (B) any Person with the prior written
consent of PubCo. Any Transferee of Registrable Securities (other than pursuant to an effective Registration Statement or an SEC
Rule 144 transaction) pursuant to this Section 4.1(b) shall be required, at the time of and as a condition to such Transfer,
to become a party to this Investor Rights Agreement by executing and delivering a joinder, substantially in the form attached to
this Investor Rights Agreement as Exhibit A, whereupon such Transferee will be treated as a Party (with the same rights and
obligations as the Transferor) for all purposes of this Investor Rights Agreement. No Transfer of Registrable Securities by a Holder
shall be registered on PubCo’s books and records, and such Transfer of Registrable Securities shall be null and void and not
otherwise effective, unless any such Transfer is made in accordance with the terms and conditions of this Investor Rights Agreement,
and PubCo is hereby authorized by all of the Holders to enter appropriate stop transfer notations on its transfer records to give
effect to this Investor Rights Agreement.
(c) All
of the terms and provisions of this Investor Rights Agreement shall be binding upon the Parties and their respective successors, assigns,
heirs and representatives, but shall inure to the benefit of and be enforceable by the successors, assigns, heirs and representatives
of any Party only to the extent that they are permitted successors, assigns, heirs and representatives pursuant to the terms of this Investor
Rights Agreement.
(d) Nothing
in this Investor Rights Agreement, express or implied, is intended to confer upon any Party, other than the Parties and their respective
permitted successors, assigns, heirs and representatives, any rights or remedies under this Investor Rights Agreement or otherwise create
any third party beneficiary hereto.
Section 4.2
Termination. Article II of this Investor Rights Agreement shall terminate as set forth in Section 2.13. The remainder
of this Investor Rights Agreement shall terminate automatically (without any action by any Party) as to each Holder when such Holder ceases
to Beneficially Own any Registrable Securities; provided that the provisions of Section 2.10 shall survive any such termination
with respect to such Holder.
Section 4.3
Severability. If any provision of this Investor Rights Agreement is determined to be invalid, illegal or unenforceable by any Governmental
Entity, the remaining provisions of this Investor Rights Agreement, to the extent permitted by Law shall remain in full force and effect.
Section 4.4 Entire Agreement; Amendments; No Waiver.
(a) This
Investor Rights Agreement, together with Exhibits to this Investor Rights Agreement, the BCA, the Opco LLC Agreement, all other
Ancillary Documents, constitute the entire agreement among the Parties with respect to the subject matter hereof and thereof and
supersede all prior and contemporaneous agreements, understandings and discussions, whether oral or written, relating to such
subject matter in any way and there are no warranties, representations or other agreements among the Parties in connection with such
subject matter except as set forth in this Investor Rights Agreement and therein.
(b) No
provision of this Investor Rights Agreement may be amended or modified in whole or in part at any time without the express written consent
of (i) PubCo, (ii) for so long as the Sellers and their Permitted Transferees collectively Beneficially Own fifteen percent (15%) or more
of the voting power of the stock of PubCo held by the Sellers immediately after the Closing, Opal HoldCo, (iii) for so long as the Sponsor
and its Permitted Transferees collectively Beneficially Own Class A Common Stock representing fifty percent (50%) or more of the Class
A Common Stock held by the Sponsor immediately after the Closing, the Sponsor and (iv) in any event at least the Holders holding in the
aggregate more than fifty percent (50%) of the Registrable Securities Beneficially Owned by the Holders; provided that any such
amendment or modification that would be materially adverse in any respect to any Holder shall require the prior written consent of such
Holder; provided, further that a provision that has terminated with respect to a Party shall not require any consent of such Party
(and such Party’s Class A Common Stock shall not be considered in computing any percentages) with respect to amending or modifying
such provision.
(c) No
waiver of any provision or default under, nor consent to any exception to, the terms of this Investor Rights Agreement shall be effective
unless in writing and signed by the Party to be bound and then only to the specific purpose, extent and instance so provided; provided
that, notwithstanding the foregoing, no waiver of any provision or default under, nor consent to any exception to, the terms and provisions
of Article III shall be effective unless in writing and signed by each of (i) PubCo, (ii) for so long as the Sellers and their
Permitted Transferees collectively Beneficially Own fifteen percent (15%) or more of the voting power of the stock of PubCo held by the
Sellers immediately after the Closing, Opal HoldCo, (iii) for so long as the Sponsor and its Permitted Transferees collectively Beneficially
Own Class A Common Stock representing fifty percent (50%) or more of the Class A Common Stock held by the Sponsor immediately after the
Closing, the Sponsor and (iv) at least the Holders holding, in the aggregate, more than fifty percent (50%) of the Registrable Securities
Beneficially Owned by the Holders.
(d) Notwithstanding
the foregoing provisions of this Section 4.4, other than with respect to amendments, modifications, waivers or consents relating
to Article III, no amendment, modification, waiver or consent shall be required by (i) the Sponsor or its Permitted Transferees,
with respect to any provision that has, in accordance with Section 4.2, terminated as to the Founder Holders or (ii) any Seller
or its Permitted Transferees, with respect to any provision that has, in accordance with Section 4.2, terminated as to such Seller
or all of the Sellers.
Section 4.5
Counterparts; Electronic Delivery. This Investor Rights Agreement and any other agreements, certificates, instruments and documents
delivered pursuant to this Investor Rights 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.
Section 4.6 Notices.
All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed
to have been duly given) by delivery in person, by email (having obtained electronic delivery confirmation thereof (i.e., an electronic
record of the sender that the email was sent to the intended recipient thereof without an “error” or similar message that
such email was not received by such intended recipient)), or by registered or certified mail (postage prepaid, return receipt requested)
(upon receipt thereof) to the other Parties as follows:
OPAL Fuels Inc.
200 Clarendon Street, 55th Floor Boston, MA 02116
| |
Attn.: |
General Counsel |
| |
Email: |
christine.miller@arclightclean.com |
with copies (which shall not constitute notice) to:
c/o Fortistar
One North Lexington Avenue, 14th Floor
White Plains,
NY 10601
| |
Attn: |
General Counsel |
| |
E-mail: |
noticeofficer@fortistar.com |
| |
|
noticeofficer@opalfuels.com |
and
Sheppard, Mullin, Richter & Hampton LLP
30 Rockefeller
Plaza
New York, New York 10112
| |
Attn: |
Andrew M. Feiner |
| |
|
John H. Booher |
| |
E-mail: |
afelner@sheppardmullin.com |
| |
|
jbooher@sheppardmullin.com |
Opal Fuels LLC
One North Lexington Avenue Suite 1450
White Plains,
NY 10601
| |
Attn.: |
John H. Coghlin, General Counsel |
| |
Email: |
jcoghlin@opalfuels.com |
with copies (which shall not
constitute notice) to: c/o Fortistar
One North Lexington Avenue, 14th Floor
White Plains,
NY 10601
| |
Attn: |
General Counsel |
| |
E-mail: |
noticeofficer@fortistar.com |
| |
|
noticeofficer@opalfuels.com |
and
Sheppard, Mullin, Richter & Hampton LLP
30 Rockefeller Plaza New York, New York 10112
| |
Attn: |
Andrew M. Felner |
| |
|
John H. Booher |
| |
E-mail: |
afelner@sheppardmullin.com |
| |
|
jbooher@sheppardmullin.com |
| (c) | if to any Founder Holder, to: |
ArcLight CTC Holdings II, L.P.
200 Clarendon Street,
55th Floor Boston, MA 02116
| |
Attn: |
General Counsel |
| |
E-mail: |
christine.miller@arclightclean.com |
with a copy (which shall not constitute notice) to:
Kirkland & Ellis LLP
609 Main Street
Houston, TX 77002
| Attn: | Doug Bacon, P. C.
Julian Seiguer, P.C.
Jennifer R. Gasser |
| |
E-mail: |
douglas.bacon@kirkland.com |
| |
|
julian.seiguer@kirkland.com |
| |
|
jennifer.gasser@kirkland.com |
or to such other address as the
party to whom notice is given may have furnished following the date of this Investor Rights Agreement and prior to such notice to the
others in writing in the manner set forth above.
Section 4.7 Governing
Law. This Investor Rights Agreement and the consummation of the transactions contemplated by this Investor Rights Agreement, and any
action, suit, dispute, controversy or claim arising out of this Investor Rights Agreement and the consummation of the transactions contemplated
by this Investor Rights Agreement, or the validity, interpretation, breach or termination of this Investor Rights Agreement and the consummation
of the transactions contemplated by this Investor Rights Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or
any other jurisdiction) that would cause the application of the law of any jurisdiction other than the State of Delaware.
Section
4.8 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY PROCEEDING, CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (A) ARISING UNDER
THIS INVESTOR RIGHTS AGREEMENT OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES IN RESPECT OF
THIS INVESTOR RIGHTS AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO OR ANY FINANCING IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED
HEREBY, IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. THE PARTIES EACH
HEREBY AGREES AND CONSENTS THAT ANY SUCH PROCEEDING, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY AND THAT THE PARTIES MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS INVESTOR RIGHTS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE
OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS
WAIVER, (III) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (IV) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS INVESTOR RIGHTS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 4.8.
Section
4.9 Submission to Jurisdiction. Each of the Parties irrevocably and unconditionally submits to the exclusive jurisdiction of
the Chancery Court of the State of Delaware and any state appellate court therefrom within the State of Delaware (or, if the
Chancery Court of the State of Delaware declines to accept jurisdiction, the Superior Court of the State of Delaware, or the United
States District Court for the District of Delaware and, in each case, the appellate court(s) therefrom), for the purposes of any
Proceeding, claim, demand, action or cause of action (a) arising under this Investor Rights Agreement or (b) in any way connected
with or related or incidental to the dealings of the Parties in respect of this Agreement or any of the transactions contemplated
hereby, and irrevocably and unconditionally waives any objection to the laying of venue of any such Proceeding in any such court,
and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Proceeding has
been brought in an inconvenient forum. Each Party hereby irrevocably and unconditionally waives, and agrees not to assert, by way of
motion or as a defense, counterclaim or otherwise, in any Proceeding claim, demand, action or cause of action against such Party (i)
arising under this Investor Rights Agreement or (ii) in any way connected with or related or incidental to the dealings of the
Parties in respect of this Investor Rights Agreement or any of the transactions contemplated hereby, (A) any claim that such Party
is not personally subject to the jurisdiction of the courts as described in this Section 4.9 for any reason, (B) that such
Party or such Party’s property is exempt or immune from the jurisdiction of any such court or from any legal process commenced
in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment,
execution of judgment or otherwise) and (C) that (1) the Proceeding, claim, demand, action or cause of action in any such court is
brought against such Party in an inconvenient forum, (2) the venue of such Proceeding, claim, demand, action or cause of action
against such Party is improper or (3) this Investor Rights Agreement, or the subject matter hereof, may not be enforced against such
Party in or by such courts. Each Party agrees that service of any process, summons, notice or document by registered mail to such
party’s respective address set forth in Section 4.6 shall be effective service of process for any such Proceeding,
claim, demand, action or cause of action.
Section 4.10
Specific Performance. Each Party hereby agrees and acknowledges that it will be impossible to measure in money the damages that
would be suffered if the Parties fail to comply with any of the obligations imposed on them by this Investor Rights Agreement and that,
in the event of any such failure, an aggrieved Party will be irreparably damaged and will not have an adequate remedy at Law. Any such
Party shall, therefore, be entitled (in addition to any other remedy to which such Party may be entitled at Law or in equity) to injunctive
relief, including specific performance, to enforce such obligations, without the posting of any bond, and if any Proceeding should be
brought in equity to enforce any of the provisions of this Investor Rights Agreement, none of the Parties shall raise the defense that
there is an adequate remedy at Law.
Section 4.11
Subsequent Acquisition of Shares. Any Equity Securities of PubCo or Operating Company acquired subsequent to the Effective Date
by a Holder shall be subject to the terms and conditions of this Investor Rights Agreement and such Equity Securities shall be considered
to be “Registrable Securities.”
Section 4.12
Legends. Each of the Holders acknowledges that (a) no Transfer, hypothecation or assignment of any Registrable Securities Beneficially
Owned by such Holder may be made except in compliance with applicable federal and state securities Laws and (b) PubCo shall (i) place
customary restrictive legends on the certificates or book entries representing the Registrable Securities subject to this Investor Rights
Agreement and (ii) remove such restrictive legends at the time the applicable Transfer and other restrictions contemplated thereby are
no longer applicable to the Registrable Securities represented by such certificates or book entries.
Section 4.13
No Third Party Liabilities. This Investor Rights Agreement may only be enforced against the named parties hereto. All claims or
causes of action (whether in contract or tort) that may be based upon, arise out of or relate to any of this Investor Rights Agreement,
or the negotiation, execution or performance of this Investor Rights Agreement (including any representation or warranty made in or in
connection with this Investor Rights Agreement or as an inducement to enter into this Investor Rights Agreement), may be made only against
the Persons that are expressly identified as parties hereto, as applicable, and no past, present or future direct or indirect director,
officer, employee, incorporator, member, partner, stockholder, Affiliate, portfolio company in which any such Party or any of its investment
fund Affiliates have made a debt or equity investment (and vice versa), agent, attorney or representative of any Party (including any
Person negotiating or executing this Investor Rights Agreement on behalf of a Party), unless a Party to this Investor Rights Agreement,
shall have any liability or obligation with respect to this Investor Rights Agreement or with respect any claim or cause of action (whether
in contract or tort) that may arise out of or relate to this Investor Rights Agreement, or the negotiation, execution or performance of
this Investor Rights Agreement (including a representation or warranty made in or in connection with this Investor Rights Agreement or
as an inducement to enter into this Investor Rights Agreement).
Section 4.14
Confidential Information. Each of the Parties recognizes that it, or its Affiliates and Representatives, has acquired or will acquire
Confidential Information the use or disclosure of which could cause PubCo substantial loss and damages that could not be readily calculated
and for which no remedy at Law would be adequate. Accordingly, each of the Parties covenants and agrees with PubCo that it will not (and
will cause its respective controlled Affiliates and Representatives not to) at any time, except with the prior written consent of PubCo,
directly or indirectly, disclose any Confidential Information known to it to any third party, unless (a) such information becomes known
to the public through no fault of such Party, (b) disclosure is required by applicable Law or court of competent jurisdiction or requested
by a Governmental Entity; provided that such Party promptly notifies PubCo of such requirement or request and takes commercially reasonable
steps, at the sole cost and expense of PubCo, to minimize the extent of any such required disclosure, (c) such information was available
or becomes available to such Party before, on or after the Effective Date, without restriction, from a source (other than PubCo) without
any breach of duty to PubCo or (d) such information was independently developed by such Party or its Representatives without the use of
Confidential Information. Notwithstanding the foregoing, nothing in this Investor Rights Agreement shall prohibit any Party from disclosing
Confidential Information to any Affiliate, Representative, limited partner, member or shareholder of such Party; provided that such Person
shall be bound by an obligation of confidentiality with respect to such Confidential Information and such Party shall be responsible for
any breach of this Section 4.12 by any such Person. No Confidential Information shall be deemed to be provided to any Person, including
any Affiliate of any Party, unless such Confidential Information is actually provided to such Person.
Section 4.15 Indemnification.
(a) In
connection with any Registration Statement in which a Holder of Registrable Securities is participating, PubCo agrees to indemnify, to
the extent permitted by law, each such Holder of Registrable Securities, its officers, directors, employees, advisors, agents, Representatives,
members and each Person who controls such Holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities
and expenses (including attorneys’ fees and inclusive of all reasonable attorneys’ fees arising out of the enforcement of
each such Persons’ rights under this Section 4.15) resulting from any untrue or alleged untrue statement of material fact
contained in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission
or alleged omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading, except insofar as the same are caused by or contained in any information furnished
in writing to PubCo by such Holder expressly for use therein. PubCo shall indemnify the Underwriters, their officers and directors and
each Person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing
with respect to the indemnification of the Holder. Notwithstanding the foregoing, the indemnity agreement contained in this Section
4.15(a) shall not apply to amounts paid in settlement of any such claim or proceeding if such settlement is effected without the consent
of PubCo, which consent shall not be unreasonably withheld, conditioned or delayed.
(b) In
connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish
to PubCo in writing such information and affidavits as PubCo reasonably requests for use in connection with any such Registration
Statement or Prospectus and, to the extent permitted by law, shall, indemnify PubCo, its directors and officers and agents and each
Person who controls PubCo (within the meaning of the Securities Act) and any other Holders of Registrable Securities participating
in the Registration, against any losses, claims, damages, liabilities and expenses (including without limitation reasonable
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 such Holder expressly for use therein; provided,
however, that the obligation to indemnify shall be several, not joint and several, among such Holders of Registrable Securities,
and the liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received
by such Holder from the sale of Registrable Securities pursuant to such Registration Statement. The Holders of Registrable
Securities shall indemnify the Underwriters, their officers, directors and each Person who controls such Underwriters (within the
meaning of the Securities Act) to the same extent as provided in the foregoing with respect to indemnification of PubCo.
(c) Any
Person entitled to indemnification herein shall (i) 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 materially prejudiced the indemnifying party’s ability to defend such action) and (ii)
unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties
may exist with respect to such claim or there may be reasonable defenses available to the indemnified party that are different from or
additional to those available to the indemnifying party, 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 (but such consent shall not be unreasonably withheld). 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 any indemnified party a conflict of interest may exist 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.
(d) The
indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and shall survive the transfer
of securities. PubCo and each Holder of Registrable Securities participating in an offering also agrees to make such provisions as are
reasonably requested by any indemnified party for contribution to such party in the event PubCo’s or such Holder’s indemnification
is unavailable for any reason.
(e) If
the indemnification provided under this Section 4.15 from the indemnifying party is held by a court of competent jurisdiction to
be 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 to the extent permitted by law 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 a court of law 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, 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; provided, however, that the liability of any Holder under this Section 4.15(e) shall
be limited to the amount of the net proceeds received by such Holder in such offering giving rise to such liability except in the case
of fraud or willful misconduct by such Holder. 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 in Section 4.15(a), Section 4.15(b) and Section 4.15(c),
any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. The
Parties agree that it would not be just and equitable if contribution pursuant to this Section 4.15(e) were determined by pro rata
allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this Section
4.15(e). No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled
to consideration pursuant to Section 4.15(e) from any Person who was not guilty of such fraudulent misrepresentation.
[Signature Pages Follow]
IN WITNESS WHEREOF, each of the Parties has duly
executed this Investor Rights Agreement as of the Effective Date.
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PUBCO: |
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OPAL FUELS INC. |
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By: |
/s/ Jonathan Maurer |
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Name: |
Jonathan Maurer |
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Title: |
Co-Chief Executive Officer |
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SPONSOR: |
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ARCLIGHT CTC HOLDINGS II, L.P. |
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By: |
/s/ Daniel R. Revers |
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Name: |
Daniel R. Revers |
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Title: |
President |
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SELLERS: |
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ARCC BEACON LLC |
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By: |
/s/ Ian Fitzgerald |
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Name: |
Ian Fitzgerald |
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Title: |
Authorized Signatory |
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OPAL HOLDCO LLC |
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By: |
/s/ Scott Contino |
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Name: |
Scott Contino |
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Title: |
Chief Financial Officer |
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HILLMAN RNG INVESTMENTS, LLC |
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By: |
/s/ Scott Contino |
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Name: |
Scott Contino |
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Title: |
Chief Financial Officer |
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SPONSOR PRINCIPALS: |
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Solely for purposes of Article I, Section
2.11, Section 2.15, Section 2.16(a), Section 3.3 and Article IV: |
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/s/ Arno Harris |
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Arno Harris |
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/s/ Ja-Chin Audrey Lee |
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Ja-Chin Audrey Lee |
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/s/ Brian Goncher |
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Brian Goncher |
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/s/ Steven Berkenfeld |
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Steven Berkenfeld |
Exhibit
A
Form of Joinder
This
Joinder (this “Joinder”) to the Investor Rights Agreement, made as of ,
is by and between
(“Transferor”) and (“Transferee”).
WHEREAS,
as of the date hereof, Transferee is acquiring Registrable
Securities (the “Acquired Interests”) from Transferor;
WHEREAS, Transferor
is a party to that certain Investor Rights Agreement, dated as of July 19, 2022, by and among OPAL Fuels Inc. (“PubCo”)
and the other persons party thereto (the “Investor Rights Agreement”); and WHEREAS, Transferee is required, at the
time of and as a condition to the Transfer of the Acquired Interests, to become a party to the Investor Rights Agreement by executing
and delivering this Joinder, whereupon Transferee will be treated as a Party (with the same rights and obligations as Transferor) for
all purposes of the Investor Rights Agreement.
NOW, THEREFORE,
in consideration of the foregoing and the respective covenants and agreements set forth herein, and intending to be legally bound hereby,
the parties hereto agree as follows:
Section 1.1
Definitions. To the extent capitalized words used in this Joinder are not defined in this Joinder, such words shall have the respective
meanings set forth in the Investor Rights Agreement.
Section 1.2 Acquisition.
Transferor hereby Transfers to Transferee all of the Acquired Interests.
Section 1.3 Joinder.
Transferee hereby acknowledges and agrees that (a) Transferee has received and read the Investor Rights Agreement, (b) Transferee is acquiring
the Acquired Interests in accordance with and subject to the terms and conditions of the Investor Rights Agreement and (c) Transferee
will be treated as a Party (with the same rights and obligations as Transferor) for all purposes of the Investor Rights Agreement.
Section 1.4 Notice.
Any notice, demand or other communication under the Investor Rights Agreement shall be given to Transferee at the address set forth on
the signature page hereto in accordance with Section 4.6 of the Investor Rights Agreement.
Section 1.5 Governing
Law. This Joinder shall be governed by and construed in accordance with the Law of the State of Delaware.
Section
1.6 Counterparts; Electronic Delivery. This Joinder may be executed and delivered in one or more counterparts, by fax, 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. The words “execution,” “signed,” “signature,” “delivery,” and words of
like import in or relating to this Joinder or any document to be signed in connection with this Joinder shall be deemed to include
electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping
system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic
means.
[Signature Pages Follow]
IN WITNESS WHEREOF, this Joinder has been
duly executed and delivered by the parties as of the date first above written.
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[TRANSFEROR] |
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By: |
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Name: |
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Title: |
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[TRANSFEREE]
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By: |
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Name: |
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Title: |
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Address for notices: |
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32
Exhibit
10.8
EXECUTION
VERSION
SECOND
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
OPAL
FUELS LLC
a
Delaware limited liability company
Dated
as of July 21, 2022
THE
LIMITED LIABILITY COMPANY UNITS OF OPAL FUELS LLC HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OR ANY OTHER APPLICABLE SECURITIES LAWS AND ARE BEING SOLD IN
RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. SUCH UNITS MUST BE ACQUIRED FOR INVESTMENT
ONLY AND MAY NOT BE OFFERED FOR SALE, PLEDGED, HYPOTHECATED, SOLD, ASSIGNED OR TRANSFERRED AT ANY TIME EXCEPT IN COMPLIANCE WITH: (I)
THE SECURITIES ACT, ANY APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND ANY OTHER APPLICABLE SECURITIES LAWS; (II)
THE TERMS AND CONDITIONS OF THIS SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT; AND (III) ANY OTHER TERMS AND CONDITIONS
AGREED TO IN WRITING BETWEEN OPAL FUELS LLC AND THE APPLICABLE MEMBER. SUCH UNITS MAY NOT BE TRANSFERRED OF RECORD EXCEPT IN COMPLIANCE
WITH SUCH LAWS, THIS SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT, AND ANY OTHER TERMS AND CONDITIONS AGREED TO IN
WRITING BY OPAL FUELS LLC AND THE APPLICABLE MEMBER. THEREFORE, PURCHASERS AND OTHER TRANSFEREES OF SUCH UNITS WILL BE REQUIRED TO BEAR
THE RISK OF THEIR INVESTMENT OR ACQUISITION FOR AN INDEFINITE PERIOD OF TIME.
SECOND
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
OPAL
FUELS LLC
THIS
SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of Opal Fuels LLC (the
“Company”), is made as of July 21, 2022 (the “Effective Date”) by and among the Members
(as defined below) listed on Exhibit A hereto as Members and each other Person (as defined below) who is or at any time becomes a Member
in accordance with the terms of this Agreement and the Act (as defined below).
RECITALS
WHEREAS,
the Company was formed as a limited liability company pursuant to the Act upon the filing of the Certificate (as defined below) in the
office of the Secretary of State of the State of Delaware on December 30, 2020 under the name ACCELER8 Holdings LLC;
WHEREAS,
the Company entered into a Limited Liability Company Agreement, dated as of December 30, 2020 (the “Original Agreement”)
with certain of the Members;
WHEREAS,
the Original Agreement was amended and restated in its entirety by that certain Amended and Restated Limited Liability Company Agreement
of the Company, effective as of November 29, 2021 (the “Existing Agreement”).
WHEREAS,
the Members have agreed to amend and restate the Existing Agreement in its entirety as set forth herein;
WHEREAS,
concurrently with the effectiveness of this Agreement, in accordance with that certain Business Combination Agreement, dated as of December
2, 2021 (the “Business Combination Agreement”), by and among ArcLight Clean Transition Corp. II (which pursuant
to the transactions contemplated under the Business Combination Agreement, will have changed its name to OPAL Fuels Inc., the “Managing
Member”), the Company, and Opal HoldCo LLC, the Managing Member has acquired equity interests of the Company, in exchange
for the consideration described in the Business Combination Agreement, and the Managing Member has become the sole managing member of
the Company (the “Business Combination”);
WHEREAS,
pursuant to the Business Combination, (i) the Common Units (as defined in the Existing Agreement) outstanding prior to the effectiveness
of this Agreement were cancelled and certain of the holders thereof received the number of Class B Units (as defined below) set forth
opposite such Member’s name on Exhibit A hereto in accordance with Section 2.5 of the Business Combination Agreement, and
(ii) the Managing Member received the number of Class A Units (as defined below) set forth opposite the Managing Member’s name
on Exhibit A hereto in accordance with Section 2.5 of the Business Combination Agreement; and
WHEREAS,
pursuant to the Business Combination Agreement, (i) the Members have agreed to amend and restate the Existing Agreement in its entirety
as set forth herein and (ii) the Managing Member, by its execution and delivery of this Agreement, is hereby admitted to the Company
as a Member and shall have the rights and obligations of the Managing Member as provided in this Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the premises and agreements of the parties set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Members and the Managing Member hereby agree to amend and restate the
Existing Agreement to read in its entirety as follows:
ARTICLE
I
DEFINITIONS
1.01
Definitions. Capitalized terms used herein without definition have the following meanings (such meanings being equally applicable
to both the singular and plural form of the terms defined):
“Act”
means, the Delaware Limited Liability Company Act, 6 Del. C. Section 18-101, et seq., as it may be amended from time to time.
“Adjusted
Capital Account Balance” means, with respect to each Member, the balance in such Member’s Capital Account adjusted
(i) by taking into account the adjustments, allocations and distributions described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4),
(5) and (6); and (ii) by adding to such balance such Member’s share of Company Minimum Gain and Member Nonrecourse Debt Minimum
Gain, determined pursuant to Treasury Regulations Sections 1.704- 2(g) and 1.704-2(i)(5), and any amounts such Member is obligated to
restore pursuant to any provision of this Agreement or by applicable Law. The foregoing definition of Adjusted Capital Account Balance
is intended to comply with the provisions of Treasury Regulations Section 1.704- 1(b)(2)(ii)(d) and shall be interpreted consistently
therewith.
“Affiliate”
means, with respect to a specified Person, any other Person that directly, or indirectly through one or more intermediaries, Controls,
is Controlled by, or is under common Control with, such specified Person.
“Agreement”
has the meaning set forth in the preamble of this Agreement.
“Appraiser
FMV” means the fair market value of a share of Class A Common Stock as determined by an independent appraiser mutually
agreed upon by the Managing Member and the relevant Exchanging Member, whose determination shall be final and binding for those purposes
for which Appraiser FMV is used in this Agreement. Appraiser FMV shall be the fair market value determined without regard to any discounts
for minority interest, illiquidity or other discounts. The cost of any independent appraisal in connection with the determination of
Appraiser FMV in accordance with this Agreement shall be borne by the Company.
“Assignee”
has the meaning set forth in Section 8.05.
“Assumed
Tax Rate” means the highest effective marginal combined U.S. federal, state and local income tax rate (including, without
limitation, the tax imposed under Section 1411 of the Code on net investment income) for a Fiscal Year prescribed for an individual or
corporate resident in California or New York, New York (whichever results in the application of the highest state and local tax rate
for a given type of income), and taking into account (a) the limitations imposed on the deductibility of expenses and other items, (b)
the character (e.g., long-term or short-term capital gain or ordinary or exempt income) of the applicable income, and (c) the deductibility
of state and local income taxes, to the extent applicable, but not taking into account any deduction under Section 199A of the Code or
any similar state or local law), as determined in good faith by the Managing Member. For the avoidance of doubt, the Assumed Tax Rate
shall be the same for all Members.
“Available
Cash” means, as of a particular date, the amount of cash on hand which the Managing Member, in its reasonable discretion,
deems available for distribution to the Members, taking into account all debts, liabilities and obligations of the Company then due and
amounts that the Managing Member, in its reasonable discretion, deems necessary to expend or retain for working capital or to place into
reserves for customary and usual claims with respect to the Company’s operations.
“Board”
means the Board of Directors of the Managing Member.
“Business
Combination” has the meaning set forth in the recitals of this Agreement.
“Business Combination Agreement”
has the meaning set forth in the recitals of this Agreement.
“Business
Day” has the meaning set forth in the Business Combination Agreement
“Capital Account” means
the separate capital account maintained for each Member in accordance with Section 5.03.
“Capital
Contribution” means, with respect to any Member, the aggregate amount of money contributed to the Company (including any
deferred commitment to contribute money in the future) and the initial Carrying Value of any property (other than money), net of any
liabilities assumed by the Company upon contribution or to which such property is subject, contributed to the Company pursuant to ARTICLE
V.
“Carrying
Value” means, with respect to any Company asset, the asset’s adjusted basis for U.S. federal income tax
purposes, except that the initial carrying value of assets contributed to the Company shall be their respective gross fair market
values on the date of contribution as determined by the Managing Member in its reasonable discretion, and the Carrying Values of all
Company assets shall be adjusted to equal their respective fair market values, in accordance with the rules set forth in Treasury
Regulations Section 1.704-1(b)(2)(iv)(f), except as otherwise provided herein, as of: (a) the date of the acquisition of any
additional limited liability company interest in the Company by any new or existing Member in exchange for more than a de minimis
Capital Contribution or the issuance by the Company of a noncompensatory option (other than an option for a de minimis interest in
the Company); (b) the date of the distribution of more than a de minimis amount of Company assets to a Member as consideration for
an interest in the Company; (c) the liquidation of the Company within the meaning of Treasury Regulations Section 1.704-
1(b)(2)(ii)(g); (d) in connection with the grant of an interest in the Company (other than a de minimis interest) as consideration
for the provision of services to or for the benefit of the Company by an existing member acting in a partner capacity, or by a new
Member acting in a partner capacity in anticipation of being a Member, (e) the acquisition of an interest in the Company upon the
exercise of a noncompensatory option in accordance with Treasury Regulations Section 1.704- 1(b)(2)(iv)(s); (f) the deemed
Conversion (as defined below) of any Earnout Units (as defined below) into Class B Units in accordance with principles similar to
those set forth in Treasury Regulations Section 1.704-1(b)(2)(iv)(s); (g) on the Effective Date in connection with the closing of
the transactions contemplated by the Business Combination Agreement; and (h) any other date specified in the Treasury Regulations; provided, however,
that adjustments pursuant to clauses (a), (b), and (d) above shall be made only if such adjustments are deemed necessary or
appropriate by the Managing Member in its reasonable discretion to reflect the relative economic interests of the Members; and provided
further, if any noncompensatory option is outstanding, Carrying Values shall be adjusted in accordance with Treasury Regulations
Sections 1.704-1(b)(2)(iv)(f)(1) and 1.704-1(b)(2)(iv)(h)(2). If any Earnout Units are outstanding upon the occurrence of an event
described in this paragraph (a) through (h) (other than, if applicable, the Earnout Units undergoing a Conversion that gives rise to
the occurrence of such event), the Company shall adjust the Carrying Values of its properties in accordance with principles similar
to those set forth in Treasury Regulations Section 1.704-1(b)(2)(iv)(h)(2), as though such Earnout Units were noncompensatory
options. The Carrying Value of any Company asset distributed to any Member shall be adjusted immediately before such distribution to
equal its fair market value. In the case of any asset that has a Carrying Value that differs from its adjusted tax basis, Carrying
Value shall be adjusted by the amount of depreciation calculated for purposes of the definition of
“Profits” and “Losses” rather than the amount of depreciation determined for
U.S. federal income tax purposes, and depreciation shall be calculated by reference to Carrying Value rather than tax basis once
Carrying Value differs from tax basis. The Carrying Value of Company assets shall be increased (or decreased) to reflect any
adjustments to the adjusted basis of such assets pursuant to Section 734(b) of the Code, but only to the extent that such
adjustments are taken into account in determining Capital Accounts pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m); provided, however,
that Carrying Values shall not be adjusted pursuant to this sentence to the extent that the Managing Member reasonably determines
that an adjustment pursuant to the first sentence of this definition is necessary or appropriate in connection with the transaction
that would otherwise result in an adjustment pursuant to this sentence.
“Cash
Exchange Class A 5-Day VWAP” means the arithmetic average of the VWAP for each of the five consecutive Trading Days ending
on the Trading Day immediately prior to the Exchange Notice Date (in the case of an Unrestricted Exchange) or the Exchange Date (in the
case of any other Exchange).
“Cash
Exchange Notice” has the meaning set forth in Section 11.01(c).
“Cash
Exchange Payment” means with respect to a particular Exchange for which the Managing Member has elected to make a Cash
Exchange Payment in accordance with Section 11.01(c):
(a) if
the shares of Class A Common Stock trade on a National Securities Exchange or automated or electronic quotation system, an amount of
cash equal to the product of: (i) the number of shares of Class A Common Stock that would have been received by the Exchanging Member
in the Exchange for that portion of the Exchanged Units subject to the Exchange set forth in the Cash Exchange Notice if the Company
or the Managing Member, as applicable, had paid the Stock Exchange Payment with respect to such number of Exchanged Units, and (ii) the
Cash Exchange Class A 5-Day VWAP; or
(b)
if shares of Class A Common Stock are not then traded on a National Securities Exchange or automated or electronic quotation system,
as applicable, an amount of cash equal to the product of (i) the number of shares of Class A Common Stock that would have been received
by the Exchanging Member in the Exchange for that portion of the Exchanged Units subject to the Exchange set forth in the Cash Exchange
Notice if the Company or the Managing Member, as applicable, had paid the Stock Exchange Payment with respect to such number of Exchanged
Units, and (ii) the Appraiser FMV of one (1) share of Class A Common Stock that would be obtained in an arms-length transaction between
an informed and willing buyer and an informed and willing seller, neither of whom is under any compulsion to buy or sell, respectively,
and without regard to the particular circumstances of the buyer or seller.
“Certificate”
means the Certificate of Formation of the Company as filed in the office of the Secretary of State of the State of Delaware on December
30, 2020.
“Certificate
of Designations” has the meaning set forth in Section 7.01(b).
“Change
of Control” has the meaning set forth in the Tax Receivable Agreement; provided that, for the avoidance of doubt,
any event that constitutes both a Corporation Offer and a Change of Control of the Managing Member shall be considered a Corporation
Offer for purposes of ARTICLE XI.
“Class”
means the classes or series of Units into which the limited liability company interests in the Company may be classified or divided from
time to time by the Managing Member pursuant to the provisions of this Agreement. As of the date of this Agreement the only authorized
Classes are the Series A Preferred Units, the Series A-1 Preferred Units, Class A Units and Class B Units. For all purposes hereunder
and under the Act, only such Classes expressly established under this Agreement, including by the Managing Member in accordance with
this Agreement, shall be deemed to be a class of limited liability company interests in the Company. For the avoidance of doubt, to the
extent that the Managing Member holds limited liability company interests of any Class, the Managing Member shall not be deemed to hold
a separate Class of such interests from any other Member because it is the Managing Member.
“Class
A Common Stock” means the Class A common stock of the Managing Member, par value $0.0001 per share.
“Class
A Percentage Interest” means, with respect to any Member, the quotient obtained by dividing the aggregate number of Class
A Units then owned by such Member by the aggregate number of Class A Units then owned by all Members.
“Class
A/B Percentage Interest” means, with respect to any Member, the quotient obtained by dividing the aggregate number of Class
A Units and Class B Units then owned by such Member by the aggregate number of Class A Units and Class B Units then owned by all Members.
“Class
A Units” means the Units of limited liability company interest in the Company designated as the “Class A Units”
herein and having the rights pertaining thereto as are set forth in this Agreement.
“Class
A Unit Capital Account Amount” means, from time to time, the Capital Account a Member would have if such Member held a
single Class A Unit.
“Class
B Common Stock” means the Class B common stock of the Managing Member, par value $0.0001 per share.
“Class
B Percentage Interest” means, with respect to any Member, the quotient obtained by dividing the aggregate number of Class
B Units then owned by such Member by the aggregate number of Class B Units then owned by all Members.
“Class
B Units” means the Units of limited liability company interest in the Company designated as the “Class B Units”
herein and having the rights pertaining thereto as are set forth in this Agreement.
“Class
C Common Stock” means the Class C common stock of the Managing Member, par value $0.0001 per share.
“Class
D Common Stock” means the Class D common stock of the Managing Member, par value $0.0001 per share.
“Closing”
has the meaning set forth in the Business Combination Agreement.
“Code” means the Internal Revenue Code of
1986, as amended from time to time. “Company” has the meaning set forth in the preamble of this Agreement.
“Company
Minimum Gain” has the meaning ascribed to the term “partnership minimum gain” set forth in Treasury Regulations
Sections 1.704-2(b)(2) and 1.704-2(d).
“Contingencies”
has the meaning set forth in Section 9.03(a).
“Control”
(including the terms “Controlled by” and “under common Control with”) means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities,
as trustee or executor, by contract or otherwise, including, without limitation, the ownership, directly or indirectly, of securities
having the power to elect a majority of the board of directors or similar body governing the affairs of such Person.
“Conversion”
has the meaning set forth in Section 7.04(d)(ii).
“Corporation
Offer” has the meaning set forth in Section 11.07.
“Covered
Transaction” means any liquidation, dissolution or winding up of the Company (whether occurring through one transaction
or a series of related transactions, and whether voluntary or involuntary) and any other sale, redemption or Transfer of Units.
“Designated
Individual” has the meaning set forth in Section 5.08.
“Direct Exchange” has the meaning
set forth in Section 11.06.
“Direct
Exchange Election Notice” has the meaning set forth in Section 11.06.
“Disabling
Event” means the Managing Member ceasing to be the Managing Member of the Company.
“Earnout
Participants” has the meaning set forth in the Business Combination Agreement.
“Earnout Unit”
has the meaning set forth in Section 7.04(d)(ii).
“Effective
Date” has the meaning set forth in the preamble of this Agreement.
“Encumbrance”
means any mortgage, hypothecation, claim, lien, encumbrance, conditional sales or other title retention agreement, right of first refusal,
preemptive right, pledge, option, charge, security interest or other similar interest, easement, judgment or imperfection of title of
any nature whatsoever.
“Equity
Interests” means (a) capital stock, membership interests, partnership interests, other equity interests, rights to profits
or revenue and any other similar interest in any corporation, partnership, limited liability company or other business entity, (b) any
security or other interest convertible into or exchangeable or exercisable for any of the foregoing, whether at the time of issuance
or upon the passage of time or the occurrence of some future event and (c) any warrant, option or other right (contingent or otherwise)
to acquire any of the foregoing.
“ERISA”
means The Employee Retirement Income Security Act of 1974, as amended.
“Exchange” has the meaning set forth
in Section 11.01(a).
“Exchange
Act” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange
Blackout Period” means (a) any “black out” or similar period under the Managing Member’s policies covering
trading in the Managing Member’s securities to which the applicable Exchanging Member is subject (or will be subject at such time
as it owns shares of Class A Common Stock or Class C Common Stock), which period restricts the ability of such Exchanging Member to immediately
resell shares of Class A Common Stock or Class C Common Stock to be delivered to such Exchanging Member in connection with a Stock Exchange
Payment and (b) the period of time commencing on (i) the date of the declaration of a dividend by the Managing Member and ending on the
first day following (ii) the record date determined by the Managing Member with respect to such dividend declared pursuant to clause
(i), which period of time shall be no longer than ten Business Days; provided that in no event shall an Exchange Blackout Period
with respect to clause (b) of this definition occur more than four times per calendar year.
“Exchange
Date” means, in the case of any Unrestricted Exchange, the date that is five Business Days after the date the Exchange
Notice is given pursuant to Section 11.01(b), unless the Exchanging Member submits a written request to extend such date and the
Managing Member in its sole discretion agrees in writing to such extension, and in any other case, the Quarterly Exchange Date; provided
that if the Exchange Date for any Exchange with respect to which the Managing Member elects to make a Stock Exchange Payment would
otherwise fall within any Exchange Blackout Period, then the Exchange Date shall occur on the next Business Day following the end of
such Exchange Blackout Period.
“Exchange
Notice” has the meaning set forth in Section 11.01(b).
“Exchange
Notice Date” means, with respect to an Exchange, the date the applicable Exchange Notice is delivered in accordance with
Section 11.01(b).
“Exchange
Rate” means, at any time, the number of shares of Class A Common Stock or Class C Common Stock for which an Exchanged Unit
is entitled to be exchanged at such time in accordance with ARTICLE XI. On Effective Date, the Exchange Rate shall be one-for-one, subject
to adjustment pursuant to Section 11.04.
“Exchanged
Units” means any Class B Units to be Exchanged for the Cash Exchange Payment or Stock Exchange Payment, as applicable,
on the applicable Exchange Date.
“Exchanging
Member” means, with respect to any Exchange, the Holder exchanging Units pursuant to Section 11.01(a) of this Agreement.
“Existing
Agreement” has the meaning set forth in the recitals of this Agreement.
“Family Group”
means, with respect to a Person who is an individual, (a) such Person’s spouse and direct descendants (whether natural or
adopted) (collectively, for purposes of this definition, “relatives”), and (b) any trust, the trustee of which is such
Person and which at all times is and remains solely for the benefit of such Person and/or such Person’s relatives.
“Fiscal
Year” means, unless otherwise determined by the Managing Member in its sole discretion in accordance with Section 12.12,
any twelve-month period commencing on January 1 and ending on December 31.
“GAAP”
means accounting principles generally accepted in the United States of America as in effect from time to time.
“Holder”
has the meaning set forth in Section 11.01(a).
“HSR
Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
“Income
Amount” has the meaning set forth in Section 4.01(b)(ii).
“IRS”
means the Internal Revenue Service.
“Indemnitee”
means (a) the Managing Member, (b) any additional or substitute Managing Member, (c) any Person who is or was a Partnership
Representative, officer or director of the Managing Member or any additional or substitute Managing Member, (d) any Person that is
required to be indemnified by the Managing Member as an “indemnitee” in accordance with the certificate of incorporation
and/or bylaws of the Managing Member as in effect from time to time, (e) any officer or director of the Managing Member or any
additional or substitute Managing Member who is or was serving at the request of the Managing Member or any additional or substitute
Managing Member as an officer, director, employee, member, Member, Partnership Representative, agent, fiduciary or trustee of
another Person; provided, that a Person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee,
fiduciary or custodial services, (f) any Officer, (g) any other Person the Managing Member in its sole discretion designates as an
“Indemnitee” for purposes of this Agreement, (h) any former officer, director or manager of the Company pursuant to
Section 5.15 of the Business Combination Agreement and (i) any heir, executor or administrator with respect to Persons named in
clauses (a) through (h).
“Law”
means any statute, law, ordinance, regulation, rule, code, executive order, injunction, judgment, decree or other order issued or promulgated
by any national, supranational, state, federal, provincial, local or municipal government or any administrative or regulatory body with
authority therefrom with jurisdiction over the Company or any Member, as the case may be.
“Liquidation
Agent” has the meaning set forth in Section 9.03.
“Managing
Member” means OPAL Fuels Inc., a corporation incorporated under the laws of the State of Delaware, or any successor Managing
Member admitted to the Company in accordance with the terms of this Agreement, in its capacity as the managing member of the Company.
“Managing
Member Charter” means the certificate of incorporation (or equivalent organizational document) as filed with the secretary
of state (or equivalent governmental body or department) of the state in which the Managing Member is incorporated or formed, as applicable,
as in effect and amended from time to time.
“Member”
means, at any time, each Person listed on Exhibit A hereto, in each case, for so long as he, she or it remains a Member of the
Company as provided hereunder.
“Member
Nonrecourse Debt Minimum Gain” means an amount with respect to each partner nonrecourse debt (as defined in Treasury Regulations
Section 1.704-2(b)(4)) equal to the Company Minimum Gain that would result if such partner nonrecourse debt were treated as a nonrecourse
liability (as defined in Treasury Regulations Section 1.704-2(b)(3)) determined in accordance with Treasury Regulations Section 1.704-2(i)(3).
“Member
Nonrecourse Deductions” has the meaning ascribed to the term “partner nonrecourse deductions” set forth in
Treasury Regulations Section 1.704-2(i)(2).
“Member’s
Required Tax Distribution” has the meaning set forth in Section 4.01(b)(i).
“NASDAQ”
means any of The Nasdaq Global Select Market, The Nasdaq Global Market and The Nasdaq Capital Market.
“National
Securities Exchange” means a securities exchange that has registered with the SEC under Section 6 of the Exchange Act.
“Non-Foreign
Person Certificate” has the meaning set forth in Section 11.10.
“Nonrecourse Deductions”
has the meaning set forth in Treasury Regulations Section 1.704-2(b)(1). The amount of Nonrecourse Deductions of the Company for a Fiscal
Year equals the net increase, if any, in the amount of Company Minimum Gain of the Company during that fiscal year, determined according
to the provisions of Treasury Regulations Section 1.704- 2(c).
“Officer”
means each individual designated as an officer of the Company by the Managing Member pursuant to and in accordance with the provisions
of Section 3.04, subject to any resolutions of the Managing Member appointing such Person as an officer of the Company or relating
to such appointment.
“Original
Agreement” has the meaning set forth in the recitals of this Agreement.
“Original Member Representative”
means OPAL HoldCo LLC or such other Person as may be appointed from time to time by holders of a majority of the Class B Units held by
Original Members who hold Class B Units at the time of determination.
“Original
Members” means (a) the Members of the Company as of immediately prior to the Effective Time (as defined in the Business
Combination Agreement) of the Business Combination and (b) any Affiliate of such Member who becomes a Member of the Company in accordance
with this Agreement pursuant to a Transfer permitted by Section 8.01(d).
“Paired
Interest” means one Class B Unit, on the one hand, and one share of Class B Common Stock or one share of Class D Common
Stock, on the other hand.
“Partnership
Representative” has means any Person acting as “tax matters partner” or the “partnership representative”
pursuant to Section 5.08.
“Performance
Vesting ACT Shares” means certain shares of Class A Common Stock, originated from the conversion of Class B ordinary shares
of ArcLight Clean Transition Corp. II in the ACT Share Conversion (as such term is defined in the Business Combination Agreement), which
(following the Effective Date) are subject to vesting and forfeiture in accordance with the terms of that certain Sponsor Letter Agreement,
dated December 2, 2021, by and among the Company, the Managing Members and the other parties named therein.
“Permitted
Exchange Event” means any of the following events, which has occurred or is occurring, or is otherwise satisfied, as of
the Exchange Date:
(a) the
Exchange is part of one or more Exchanges by a Member and any related persons (within the meaning of Section 267(b) or 707(b)(1) of the
Code) that is part of a “block transfer” within the meaning of Treasury Regulations Section 1.7704-1(e)(2) (for this purpose,
treating the Managing Member as a “general partner” within the meaning of Treasury Regulations Section 1.7704-1(k)(1));
(b) the
Exchange is in connection with a Corporation Offer or a Change of Control; provided that any such Exchange pursuant to this clause
(b) shall be effective immediately prior to the consummation of the closing of such Corporation Offer or such Change of Control date
(and, for the avoidance of doubt, shall not be effective if such Corporation Offer is not consummated or such Change of Control does
not occur); or
(c) the
Exchange is permitted by the Managing Member, in its sole discretion, in connection with circumstances not otherwise set forth herein,
if the Managing Member determines, after consultation with its outside legal counsel and tax advisor, that the Company would not be treated
as a “publicly traded partnership” under Section 7704 of the Code (or any successor or similar provision) as a result of
or in connection with such Exchange.
“Person”
means any individual, estate, corporation, partnership, limited partnership, limited liability company, limited company, joint venture,
trust, unincorporated or governmental organization or any agency or political subdivision thereof.
“Primary
Indemnification” has the meaning set forth in Section 10.02(a).
“Private
Placement Safe Harbor” means the “private placement” safe harbor set forth in Treasury Regulations Section
1.7704-1(h)(1).
“Proceeding”
has the meaning set forth in Section 10.02(a).
“Profits”
and “Losses” means, for each Fiscal Year or other period, the taxable income or loss of the Company, or particular
items thereof, determined in accordance with the accounting method used by the Company for U.S. federal income tax purposes with the
following adjustments: (a) all items of income, gain, loss or deduction allocated pursuant to Section 5.05 shall not be taken into account
in computing such taxable income or loss (but the amounts of items to be specially allocated pursuant to Section 5.05 shall be
determined by applying rules analogous to those set forth in this definition of “Profits” and “Losses”); (b)
any income of the Company that is exempt from U.S. federal income taxation and not otherwise taken into account in computing Profits
and Losses shall be added to such taxable income or loss; (c) if the Carrying Value of any asset differs from its adjusted tax basis
for U.S. federal income tax purposes, any gain or loss resulting from a disposition of such asset shall be calculated with reference
to such Carrying Value; (d) upon an adjustment to the Carrying Value (other than an adjustment in respect of depreciation) of any asset,
pursuant to the definition of Carrying Value, the amount of the adjustment shall be included as gain or loss in computing such taxable
income or loss; (e) if the Carrying Value of any asset differs from its adjusted tax basis for U.S. federal income tax purposes, the
amount of depreciation, amortization or cost recovery deductions with respect to such asset for purposes of determining Profits and Losses,
if any, shall be an amount which bears the same ratio to such Carrying Value as the U.S. federal income tax depreciation, amortization
or other cost recovery deductions bears to such adjusted tax basis (provided that if the U.S. federal income tax depreciation,
amortization or other cost recovery deduction is zero, the Managing Member may use any reasonable method for purposes of determining
depreciation, amortization or other cost recovery deductions in calculating Profits and Losses); (f) to the extent that an adjustment
to the adjusted tax basis of any Company asset pursuant to Section 734(b) of the Code is required pursuant to Treasury Regulations Section
1.704-1(b)(2)(iv)(m)(4) to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation
of a Member’s interest in the Company, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases
the basis of the asset) or loss (if the adjustment decreases the basis of the asset) from the disposition of the asset and shall be taken
into account for purposes of computing such taxable income or loss and (g) except for items in clause (a) above, any expenditures of
the Company not deductible in computing taxable income or loss, not properly capitalizable and not otherwise taken into account in computing
Profits and Losses pursuant to this definition shall be treated as deductible items.
“Quarterly
Exchange Date” means either (a) for each fiscal quarter, the first Business Day occurring after the 60th day
after the expiration of the applicable Quarterly Exchange Notice Period or (b) such other date as the Managing Member shall determine
in its sole discretion; provided that such date is at least 60 days after the expiration of the Quarterly Exchange Notice Period;
provided, further, that the Managing Member shall use commercially reasonable efforts to ensure that at least one Quarterly
Exchange Date occurs each fiscal quarter.
“Quarterly
Exchange Notice Period” means, for each fiscal quarter, the period commencing on the third Business Day after the day
on which the Managing Member releases its earnings for the prior fiscal period, beginning with the first such date that falls on or
after the waiver or expiration of any contractual lock-up period relating to the shares of the Managing Member that may be
applicable to a Member (or such other date within such quarter as the Managing Member shall determine in its sole discretion) and
ending five Business Days thereafter. Notwithstanding the foregoing, the Managing Member may change the definition of
“Quarterly Exchange Notice Period” with respect to any Quarterly Exchange Notice Period scheduled to occur in a calendar
quarter subsequent to the then-current calendar quarter if (a) the revised definition provides for a Quarterly Exchange Notice
Period occurring at least once in each calendar quarter, (b) the first Quarterly Exchange Notice Period pursuant to the revised
definition will occur no less than ten Business Days from the date the written notice of such change is sent to each Member (other
than the Managing Member) and (c) the revised definition, together with the revised Quarterly Exchange Date resulting therefrom, do
not materially adversely affect the ability of the Holders to exercise their Exchange rights pursuant to ARTICLE
XI.
“Redemption”
has the meaning set forth in Section 11.01(a).
“Restricted
Retraction Notice” has the meaning set forth in Section 11.01(d).
“Revised
Partnership Audit Provisions” means Sections 6221 through 6241 of the Code, as in effect for taxable years of the Company
beginning after December 31, 2017, together with any subsequent amendments thereto, Treasury Regulations promulgated thereunder, and
published administrative interpretations thereof, and any comparable provisions of state or local tax law.
“SEC”
means the U.S. Securities and Exchange Commission.
“Secondary
Offering” has the meaning set forth in Section 11.01(e).
“Securities
Act” means the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Series
A Preferred Units” means the Units of limited liability company interest in the Company designated as the “Series
A Preferred Units” herein and having the rights pertaining thereto as are set forth in this Agreement.
“Series
A-1 Preferred Units” means the Units of limited liability company interest in the Company designated as the “Series
A-1 Preferred Units” herein and having the rights pertaining thereto as are set forth in this Agreement.
“Similar
Law” means any law or regulation that could cause the underlying assets of the Company to be treated as assets of the Member
by virtue of its limited liability company interest in the Company and thereby subject the Company and the Managing Member (or other
persons responsible for the investment and operation of the Company’s assets) to laws or regulations that are similar to the fiduciary
responsibility or prohibited transaction provisions contained in Title I of ERISA or Section 4975 of the Code.
“Stock
Exchange Payment” means, with respect to the portion of any Exchange for which a Cash Exchange Notice is not delivered
by the Managing Member, on behalf of the Company, a number of shares of Class A Common Stock (to the extent the Exchanging Member
has surrendered shares of Class B Common Stock) or Class C Common Stock (to the extent that the Exchanging Member has surrendered
shares of Class D Common Stock), in each case equal to the product of the number of Exchanged Units multiplied by the Exchange Rate.
For the avoidance of doubt, in the event that the Exchanging Member has surrendered shares of (a) Class B Common Stock, the
Exchanging Member shall be entitled to receive shares of Class A Common Stock and (b) Class D Common Stock, the Exchanging Member
shall be entitled to receive shares of Class C Common Stock.
“Subsidiary”
means, with respect to any Person, any corporation, limited liability company, partnership, association, joint venture or other business
entity of which (a) if a corporation, at least 50% of the total voting power of shares of stock entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (b) if a limited liability
company, partnership, association, joint venture or other business entity (other than a corporation), at least 50% of the partnership,
joint venture or other similar ownership interest thereof (whether voting or economic) is at the time owned or controlled, directly or
indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons
shall be deemed to have at least 50% ownership interest in a limited liability company, partnership, association or other business entity
(other than a corporation) if such Person or Persons shall be allocated at least 50% of limited liability company, partnership, association
or other business entity gains or losses or shall be or control any managing director or general partner of such limited liability company,
partnership, association or other business entity. For purposes hereof, references to a “Subsidiary” of the Company shall
be given effect only at such times that the Company has one or more Subsidiaries, and, unless otherwise indicated, the term “Subsidiary”
refers to a Subsidiary of the Company.
“Successor
Shares Amount” has the meaning set forth in Section 3.07(b).
“Surviving Company” has the
meaning set forth in Section 3.07(b).
“Tax
Advances” has the meaning set forth in Section 5.07.
“Tax Amount” has the meaning set
forth in Section 4.01(b)(ii).
“Tax
Distributions” has the meaning set forth in Section 4.01(b)(ii).
“Tax
Estimation Period” shall mean each period from January 1 through March 31, from April 1 through May 31, from June 1 through
August 31, and from September 1 through December 31 of each taxable year.
“Tax
Receivable Agreement” means that certain Tax Receivable Agreement, dated as of or about the date hereof, by and among,
the Managing Member, the TRA Party Representative (as defined therein) and each of the TRA Parties, as amended from time to time.
“Termination
Transaction” means any direct or indirect Transfer of all or any portion of the Managing Member’s interest in
the Company in connection with, or the other occurrence of, (a) a merger, consolidation or other combination involving the Managing
Member, on the one hand, and any other Person, on the other hand, (b) a sale, lease, exchange or other transfer of all or
substantially all of the assets of the Managing Member, whether in a single transaction or a series of related transactions, (c) a
reclassification, recapitalization or change of the outstanding shares of Class A Common Stock or Class C Common Stock (other than a
change in par value, or from par value to no par value, or as a result of a stock split, stock dividend or similar subdivision),
(d) the adoption of any plan of liquidation or dissolution of the Managing Member, or (e) a direct or indirect Transfer of all
or any portion of the Managing Member’s interest in the Company, other than a Transfer effected in accordance with Section
3.07(a) or Section 3.07(b)
“Trading
Day” means a day on which the Nasdaq Stock Market or such other principal United States securities exchange on which the
shares of Class A Common Stock are listed, quoted or admitted to trading and is open for the transaction of business (unless such trading
shall have been suspended for the entire day).
“Transaction
Consideration” has the meaning set forth in Section 3.07(a).
“Transfer”
means, in respect of any Unit, property or other asset, any sale, assignment, transfer, distribution, exchange, mortgage, pledge, hypothecation
or other disposition thereof, whether voluntarily or by operation of Law, directly or indirectly, in whole or in part, including, without
limitation, the exchange of any Unit for any other security or the 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 Unit, whether any such transaction is to be settled by delivery
of such securities, in cash or otherwise. The term “Transferred” shall have a meaning correlative to the foregoing.
“Transferee”
means any Person that is a permitted transferee of a Member’s interest in the Company, or part thereof.
“TRA
Parties” has the meaning set forth in the Tax Receivable Agreement.
“Treasury
Regulations” means the income tax regulations, including temporary and proposed regulations, promulgated under the Code,
as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).
“Units”
means the Class A Units, the Class B Units, the Series A Preferred Units, the Series A-1 Preferred Units and any other Class of Units
that is established in accordance with this Agreement, which shall constitute limited liability company interests in the Company as provided
in this Agreement and under the Act, entitling the holders thereof to the relative rights, title and interests in the profits, losses,
deductions and credits of the Company at any particular time as set forth in this Agreement, and any and all other benefits to which
a holder thereof may be entitled as a Member as provided in this Agreement, together with the obligations of such Member to comply with
all terms and provisions of this Agreement.
“Unrestricted
Exchanges” means any Exchange that is in connection with a Permitted Exchange Event or that occurs during a period in which
the Company meets the requirements of the Private Placement Safe Harbor.
“VWAP”
means the daily per share volume-weighted average price of shares of Class A Common Stock on the Nasdaq Stock Market or such other principal
United States securities exchange on which the shares of Class A Common Stock are listed, quoted or admitted to trading, as displayed
under the heading “Bloomberg VWAP” on the Bloomberg page designated for the shares of Class A Common Stock (or its equivalent
successor if such page is not available) in respect of the period from the open of trading on such Trading Day until the close of trading
on such Trading Day (or if such volume-weighted average price is unavailable, (a) the per share volume-weighted average price of a share
of Class A Common Stock on such Trading Day (determined without regard to afterhours trading or any other trading outside the regular
trading session or trading hours) or (b) if such determination is not feasible, the market price per share of Class A Common Stock, in
either case, as determined by a nationally recognized independent investment banking firm retained in good faith for this purpose by
the Managing Member).
ARTICLE
II
FORMATION,
TERM, PURPOSE AND POWERS
2.01 Formation.
The Company was formed as a limited liability company under the provisions of the Act by the filing of the Certificate on December
30, 2020. If requested by the Managing Member, the Members shall promptly execute all certificates and other documents consistent with
the terms of this Agreement necessary for the Managing Member to accomplish all filing, recording, publishing and other acts as may be
appropriate to comply with all requirements for (a) the formation and operation of a limited liability company under the laws of the
State of Delaware, (b) if the Managing Member in its sole discretion deems it advisable, the operation of the Company as a limited liability
company, or entity in which the Members have limited liability, in all jurisdictions where the Company proposes to operate and (c) all
other filings required to be made by the Company. The rights, powers, duties, obligations and liabilities of the Members shall be determined
pursuant to the Act and this Agreement. To the extent that the rights, powers, duties, obligations and liabilities of any Member are
different by reason of any provision of this Agreement than they would be in the absence of such provision, this Agreement shall, to
the extent permitted by the Act, control. The execution, delivery and filing of the Certificate and each amendment thereto is hereby
ratified, approved and confirmed by the Members.
2.02 Name.
The name of the Company shall be, and the business of the Company shall be conducted under the name of “Opal Fuels LLC”
and all Company business shall be conducted in that name or in such other names that comply with applicable law as the Managing Member
in its sole discretion may select from time to time. Subject to the Act, the Managing Member in its sole discretion may change the name
of the Company (and amend this Agreement to reflect such change) at any time and from time to time without the consent of any other Person.
Prompt notification of any such change shall be given to all Members.
2.03 Term.
The term of the Company commenced on the date of the filing of the Certificate, and the term shall continue until the dissolution
of the Company in accordance with ARTICLE IX. The existence of the Company shall continue until cancellation of the Certificate
in the manner required by the Act.
2.04 Offices.
The Company may have offices at such places either within or outside the State of Delaware as the Managing Member from time to time
may select in its sole discretion. As of the date hereof, the principal place of business and office of the Company is located at c/o
OPAL Fuels LLC, One North Lexington Avenue, Suite 1450, White Plains, NY 10601, Attention: Office of General Counsel.
2.05 Agent
for Service of Process; Existence and Good Standing; Foreign Qualification.
(a) The
registered office of the Company in the State of Delaware shall be located at CORPORATION TRUST CENTER 1209 ORANGE ST, WILMINGTON, DE
19801. The name of the registered agent of the Company for service of process on the Company in the State of Delaware at such address
shall be THE CORPORATION TRUST COMPANY.
(b) The
Managing Member in its sole discretion may take all action which may be necessary or appropriate (i) for the continuation of the Company’s
valid existence as a limited liability company under the laws of the State of Delaware (and of each other jurisdiction in which such
existence is necessary to enable the Company to conduct the business in which it is engaged) and (ii) for the maintenance, preservation
and operation of the business of the Company in accordance with the provisions of this Agreement and applicable laws and regulations.
The Managing Member in its sole discretion may file or cause to be filed for recordation in the proper office or offices in each other
jurisdiction in which the Company is formed or qualified, such certificates (including certificates of formation and fictitious name
certificates) and other documents as are required by the applicable statutes, rules or regulations of any such jurisdiction or as are
required to reflect the identity of the Members. The Managing Member in its sole discretion may cause the Company to comply, to the extent
procedures are available and those matters are reasonably within the control of the Officers, with all requirements necessary to qualify
the Company to do business in any jurisdiction other than the State of Delaware.
2.06 Business
Purpose. The Company was formed for the object and purpose of, and the nature and character of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
2.07 Powers
of the Company. Subject to the limitations set forth in this Agreement, the Company will possess and may exercise all of the powers
and privileges granted to it by the Act including, without limitation, the ownership and operation of the assets and other property contributed
to the Company by the Members, by any other Law or this Agreement, together with all powers incidental thereto, so far as such powers
are necessary or convenient to the conduct, promotion or attainment of the purpose of the Company set forth in Section 2.06.
2.08 Members;
Reclassification; Admission of New Members. Each of the Persons listed on Exhibit A hereto, as the same may be amended from
time to time in accordance with this Agreement, by virtue of its execution this Agreement, are admitted as Members of the Company. The
rights, duties and liabilities of the Members shall be as provided in the Act, except as is otherwise expressly provided herein, and
the Members consent to the variation of such rights, duties and liabilities as provided herein. Subject to Section 8.07 with respect
to substitute Members, a Person may be admitted from time to time as a new Member with the written consent of the Managing Member in
its sole discretion. Each new Member shall execute and deliver to the Managing Member an appropriate supplement to this Agreement pursuant
to which the new Member agrees to be bound by the terms and conditions of this Agreement, as it may be amended from time to time. A new
Managing Member or substitute Managing Member may be admitted to the Company solely in accordance with Section 8.06.
2.09 Resignation.
No Member shall have the right to resign as a member of the Company other than following the Transfer of all Units owned by such
Member in accordance with ARTICLE VIII.
2.10
Representations of Members. Each Member severally (and not jointly) represents and warrants to the Company and each other Member
as of the date of such Member’s admittance to the Company and as of each subsequent date that such Member acquires any additional
Units that:
(a)
Organization; Authority
(i) To
the extent it is not a natural person, (A) it is duly incorporated, organized or formed, as applicable, validly existing and in good
standing (if applicable) under the Laws of the jurisdiction of its incorporation, organization or formation, as applicable, and if required
by Law is duly qualified to conduct business and is in good standing in the jurisdiction of its principal place of business (if not incorporated,
organized or formed, as applicable, in such jurisdiction), and (B) has full corporate, limited liability company, partnership, trust
or other applicable power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement and
all necessary actions by the board of directors, shareholders, managers, members, partners, trustees, beneficiaries or other Persons
necessary for the due authorization, execution, delivery and performance of this Agreement by that Member have been duly taken.
(ii) It
has duly executed and delivered this Agreement, and this Agreement is enforceable against such Member in accordance with its terms, subject
to bankruptcy, moratorium, insolvency and other Laws generally affecting creditors’ rights and general principles of equity (whether
applied in a proceeding in a court of law or equity).
(b) Non-Contravention.
Its authorization, execution, delivery, and performance of this Agreement does not breach or conflict with or constitute a default
under (i) such Member’s charter or other governing documents to the extent it is not a natural person, (ii) any material obligation
under any other material agreement to which that Member is a party or by which it is bound or (iii) applicable Law.
(c) Due
Inquiry. To the extent such Member has acquired Units directly from the Company, it has had, prior to the execution and delivery
of this Agreement, the opportunity to ask questions of and receive answers from representatives of the Company concerning an investment
in the Company, as well as the finances, operations, business and prospects of the Company, and the opportunity to obtain additional
information to verify the accuracy of all information so obtained, and received all such information about the Company and the Units
as it has requested.
(d) Purpose
of Investment. It is acquiring and holding its Units solely for investment purposes, for its own account and not for the account
or benefit of any other Person and not with a view towards the distribution or dissemination thereof, did not decide to enter into this
Agreement as a result of any general solicitation or general advertising within the meaning of Rule 502 of Regulation D under the Securities
Act, and acknowledges and understands that no United States federal or state agency has passed upon or made any recommendation or endorsement
of the offering of any Units.
(e) Transfer
Restrictions. It understands the Units are being Transferred in a transaction not involving a public offering within the meaning
of the Securities Act and the Units will comprise “restricted securities” within the meaning of Rule 144(a)(3)
under the Securities Act which shall not be sold, pledged, hypothecated or otherwise Transferred except in accordance with the terms
of this Agreement and applicable Law. It agrees that, if in the future it decides to offer, resell, pledge or otherwise Transfer any
portion of its Units, such Units may be offered, resold, pledged or otherwise Transferred only pursuant to an effective registration
statement under the Securities Act or an applicable exemption from registration and/or qualification under the Securities Act and applicable
state securities Laws, and as a condition precedent to any such Transfer, it may be required to deliver to the Company an opinion of
counsel satisfactory to the Company, and agrees, absent registration or an exemption with respect to its Units, not to resell any such
Units.
(f) Investor
Status. It (i) has adequate means of providing for its current needs and possible contingencies, is able to bear the economic risks
of its investment for an indefinite period of time and has a sufficient net worth to sustain a loss of its entire investment in the Company
in the event such loss should occur, (ii) is sophisticated in financial matters 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 Company, (iii) is, or is controlled by,
an “accredited investor,” as that term is defined in Rule 501(a) of Regulation D, promulgated under the Securities
Act, and acknowledges the issuance of Units under this Agreement is being made in reliance on a private placement exemption to “accredited
investors” within the meaning of Section 501(a) of Regulation D under the Securities Act or similar exemptions under federal
and state Law, and (iv) is treated as a single partner within the meaning of Treasury Regulations Section 1.7704-1(h) (determined taking
into account the rules of Treasury Regulations Section 1.7704-1(h)(3)).
ARTICLE
III
MANAGEMENT
3.01
Managing Member.
(a) The
business, property and affairs of the Company shall be managed under the sole, absolute and exclusive direction of the Managing Member,
which may from time to time delegate authority to Officers or to others to act on behalf of the Company.
(b) Without
limiting the foregoing provisions of this Section 3.01, the Managing Member shall have the general power to manage or cause the
management of the Company (which may be delegated to Officers of the Company), including, without limitation, the following powers:
(i) to
develop and prepare a business plan each year which will set forth the operating goals and plans for the Company;
(ii) to
execute and deliver or to authorize the execution and delivery of contracts, deeds, leases, licenses, instruments of transfer and other
documents on behalf of the Company;
(iii) to
make any expenditures, to lend or borrow money, to assume or guarantee, or otherwise contract for, indebtedness and other liabilities,
to issue evidences of indebtedness and to incur any other obligations;
(iv) to
establish and enforce limits of authority and internal controls with respect to all personnel and functions;
(v)
to engage attorneys, consultants and accountants for the Company;
(vi) to
develop or cause to be developed accounting procedures for the maintenance of the Company’s books of account; and
(vii) to
do all such other acts as shall be authorized in this Agreement or by the Members in writing from time to time.
3.02
Compensation. The Managing Member shall not be entitled to any compensation for services rendered to the Company in its capacity
as Managing Member.
3.03 Expenses.
The Company shall pay, or cause to be paid, all costs, fees, operating expenses and other expenses of the Company (including the
costs, fees and expenses of attorneys, accountants or other professionals) incurred in pursuing and conducting, or otherwise related
to, the activities of the Company. The Company shall also, in the sole discretion of the Managing Member, bear and/or reimburse the Managing
Member for (i) any costs, fees or expenses incurred by the Managing Member in connection with serving as the Managing Member and (ii)
all other expenses allocable to the Company or otherwise incurred by the Managing Member in connection with operating the Company’s
business (including expenses allocated to the Managing Member by its Affiliates). To the extent that the Managing Member determines in
its sole discretion that such expenses are related to the business and affairs of the Managing Member that are conducted through the
Company and/or its subsidiaries (including expenses that relate to the business and affairs of the Company and/or its subsidiaries and
that also relate to other activities of the Managing Member), the Managing Member may cause the Company to pay or bear all expenses of
the Managing Member, including, without limitation, compensation and meeting costs of any Board or similar body of the Managing Member,
any salary, bonus, incentive compensation and other amounts paid to any Person including Affiliates of the Managing Member to perform
services for the Company, litigation costs and damages arising from litigation, accounting and legal costs and franchise taxes. Reimbursements
pursuant to this Section 3.03 shall be in addition to any reimbursement to the Managing Member as a result of indemnification
pursuant to Section 10.02
3.04 Officers.
Subject to the direction and oversight of the Managing Member, the day- to-day administration of the business of the Company may
be carried out by persons who may be designated as officers by the Managing Member, with titles including but not limited to “assistant
secretary,” “assistant treasurer,” “chairman,” “chief executive officer,” “chief financial
officer,” “chief operating officer,” “director,” “general counsel,” “general manager,”
“managing director,” “president,” “principal accounting officer,” “secretary,” “senior
chairman,” “senior managing director,” “treasurer,” “vice chairman,” “executive vice
president” or “vice president,” and as and to the extent authorized by the Managing Member in its sole discretion.
The officers of the Company shall have such titles and powers and perform such duties as shall be determined from time to time by the
Managing Member and otherwise as shall customarily pertain to such offices. Any number of offices may be held by the same person. In
its sole discretion, the Managing Member may choose not to fill any office for any period as it may deem advisable. All officers and
other persons providing services to or for the benefit of the Company shall be subject to the supervision and direction of the Managing
Member and may be removed, with or without cause, from such office by the Managing Member and the authority, duties or responsibilities
of any employee, agent or officer of the Company may be suspended by the Managing Member from time to time, in each case in the sole
discretion of the Managing Member. The Managing Member shall not cease to be Managing Member of the Company as a result of the delegation
of any duties hereunder. No officer of the Company, in his or her capacity as such, shall be considered a Managing Member of the Company
by agreement, as a result of the performance of his or her duties hereunder or otherwise.
3.05 Authority
of Members. No Member (other than the Managing Member), in its, his or her capacity as such, shall participate in or have any control
over the business of the Company. Except as expressly provided herein, the Units do not confer any rights upon the Members to participate
in the affairs of the Company described in this Agreement. Except as expressly provided herein or in any Certificate of Designations,
no Member (other than the Members holding Class A Units) shall have any right to vote on any matter involving the Company, including
with respect to any merger, consolidation, combination or conversion of the Company, or any other matter that a Member might otherwise
have the ability to vote on or consent with respect to under the Act, at law, in equity or otherwise. Except as otherwise expressly set
forth in this Agreement or any Certificate of Designations, the conduct, control and management of the Company shall be vested exclusively
in the Managing Member. In all matters relating to or arising out of the conduct of the operation of the Company, the decision of the
Managing Member shall be the decision of the Company. Except as required or permitted by Law, or expressly provided in the ultimate sentence
of this Section 3.05 or by separate agreement with the Company, no Member who is not also the Managing Member (and acting in such
capacity) shall take any part in the management or control of the operation or business of the Company in his, her or its capacity as
a Member, nor shall any Member who is not also the Managing Member (and acting in such capacity) have any right, authority or power to
act for or on behalf of or bind the Company in his, her or its capacity as a Member in any respect or assume any obligation or responsibility
of the Company or of any other Member. Notwithstanding the foregoing, the Managing Member may from time to time appoint one or more Members
as officers or employ one or more Members as employees, and such Members, in their capacity as officers or employees of the Company (and
not, for clarity, in their capacity as Members of the Company), may take part in the control and management of the business of the Company
to the extent such authority and power to act for or on behalf of the Company has been delegated to them by the Managing Member.
3.06 Action
by Written Consent or Ratification. Any action required or permitted to be taken by the Members pursuant to this Agreement shall
be taken if all Members whose consent or ratification is required consent thereto or provide a consent or ratification in writing. Any
action required, required to be approved or permitted to be taken by the Managing Member pursuant to this Agreement may be taken or approved,
as applicable, by the Managing Member acting pursuant to a writing which evidences its approval of or consent to such action.
3.07 Restrictions
on Termination Transactions. The Managing Member shall not engage in, or cause or permit, a Termination Transaction, unless either
(x) the Termination Transaction has been approved by Members holding a majority of the Class B Units held by all Members (excluding the
Managing Member and any Members controlled by the Managing Member) or (y) the following conditions are satisfied:
(a) in
connection with any such Termination Transaction: (i) each holder of Class B Units (other than the Managing Member and its wholly owned
Subsidiaries) will receive, or will have the right to elect to receive, for each Class B Unit an amount of cash, securities or other
property equal to the product of (A) the number of shares of Class A Common Stock or Class C Common Stock into which a Class B Unit is
then exchangeable pursuant to ARTICLE XI of this Agreement and (B) the greatest amount of cash, securities or other property paid
to a holder of one share of Class A Common Stock or Class C Common Stock, as applicable, in consideration of one share of Class A Common
Stock or Class C Common Stock, as applicable, pursuant to the terms of such Termination Transaction; provided, that the condition
set forth in this Section 3.07(a)(i) shall be deemed to have been satisfied if, in connection with such Termination Transaction,
a purchase, tender or exchange offer shall have been made to and accepted by the holders of a majority of the outstanding shares of Class
A Common Stock and Class C Common Stock, voting a single class in accordance with the Managing Member Charter, and each holder of Class
B Units (other than the Managing Member and its wholly owned subsidiaries) will receive, or will have the right to elect to receive,
the greatest amount of cash, securities or other property which such holder of Class B Units would have received had such Class B Units
been exchanged for shares of Class A Common Stock or Class C Common Stock in an Exchange pursuant to ARTICLE XI immediately prior
to the expiration of such purchase, tender or exchange offer, such holder of Class B Units had thereupon accepted such purchase, tender
or exchange offer and then such Termination Transaction shall have been consummated (the fair market value, at the time of the Termination
Transaction, of the amount specified herein with respect to each Class B Unit is referred to as the “Transaction Consideration”);
and (ii) the Company receives an opinion from nationally recognized tax counsel to the effect that such Termination Transaction will
be tax-free to each holder of Class B Units and Class A Units (including the Managing Member and its wholly owned Subsidiaries unless
waived by the Managing Member) for U.S. federal income tax purposes (except to the extent of cash, marketable securities or other property
received); or
(b) all
of the following conditions are met: (i) substantially all of the assets directly or indirectly owned by the Company prior to the announcement
of the Termination Transaction are, immediately after the Termination Transaction, owned directly or indirectly by (A) the Company or
(B) another limited liability company or limited partnership organized or existing under the laws of the United States, any state thereof,
the District of Columbia, or any territory thereof, which is the survivor of a merger, consolidation or combination of assets with the
Company (in each case, the “Surviving Company”); (ii) the Surviving Company is classified as a partnership
for U.S. Federal income tax purposes; (iii) the Members (other than entities controlled by the Managing Member) that held Class B Units
immediately prior to the consummation of such Termination Transaction own a percentage interest of the Surviving Company based on the
proportion of the relative fair market value of the net assets of the Company to the other net assets of the Surviving Company immediately
prior to the consummation of such transaction; (iv) the rights of such Members with respect to the Surviving Company are at least as
favorable as those of Members holding Class B Units (including any rights under the Tax Receivable Agreement, unless such Termination
Transaction constitutes a “Change of Control” for purposes of the Tax Receivable Agreement or otherwise results
in payments of cash to the TRA Parties equivalent to (and in lieu of) the payments that would be required to be made to such TRA Parties
if such Termination Transaction did constitute a “Change of Control” for such purposes) immediately prior to the consummation
of such transaction (except to the extent that any such rights are consistent with clause (v) below) and as those applicable to any other
Members (not including the Managing Member); and (v) such rights include the right, to the same extent provided to holders of Class B
Units pursuant to ARTICLE XI of this Agreement, to exchange their interests in the Surviving Company (together with voting securities
of the Managing Member or its successor) for: (1) a number of publicly traded common equity securities with a fair market value, as of
the date of consummation of such Termination Transaction, equal to the Transaction Consideration, subject to antidilution adjustments
comparable to those set forth in Section 11.02 (the “Successor Shares Amount”); and/or (2) cash in an
amount equal to the fair market value of the Successor Shares Amount at the time of such exchange, determined in a manner consistent
with the definition of “Cash Exchange Payment” as set forth in ARTICLE XI of this Agreement.
(c) In
connection with any Termination Transaction permitted by Section 3.07(b) hereof, the relative fair market values shall be reasonably
determined by the Managing Member as of the time of such transaction and, to the extent applicable, shall be no less favorable to the
Members than the relative values reflected in the terms of such transaction.
ARTICLE
IV
DISTRIBUTIONS
4.01
Distributions.
(a) Operating
Distributions. Except as may otherwise be set forth in any Certificate of Designations, the Managing Member, in its sole discretion,
may authorize distributions (to the extent of Available Cash) by the Company to the holders of Class A Units and Class B Units at any
time and from time to time. Subject to Section 4.01(b) with respect to Tax Distributions and further subject to the provisions
of any Certificate of Designations, all Distributions by the Company shall be made or allocated to holders of Class A Units and Class
B Units pro rata based on the number of such Units held by each such holder. For the avoidance of doubt, (i) the Managing Member
may authorize distributions to holders of preferred Units in accordance with the terms the applicable Certificate of Designations and
(ii) no holder of preferred Units shall have any right to receive any distribution pursuant to this Agreement and shall only be entitled
to the rights and privileges set forth in the applicable Certificate of Designations.
(b)
Tax Distributions.
(i) With
respect to each Member holding Class A Units or Class B Units, the Company shall calculate the excess of (x)(A) the Income Amount allocated
or allocable to such Member with respect to such Units for the Tax Estimation Period in question and for all preceding Tax Estimation
Periods, if any, within the taxable year containing such Tax Estimation Period multiplied by (B) the Assumed Tax Rate over (y) the aggregate
amount of all prior Tax Distributions in respect of such taxable year and any Distributions made to such Member with respect to such
Units pursuant to Section 4.01(a) and Section 4.02, with respect to the Tax Estimation Period in question and any previous
Tax Estimation Period falling in the taxable year containing the applicable Tax Estimation Period referred to in (x)(A) (the amount so
calculated pursuant to this sentence is herein referred to as a “Member’s Required Tax Distribution”);
provided, however, that the Managing Member may make adjustments in its reasonable discretion to reflect transactions occurring
during the taxable year; provided, further, that in the case of the Managing Member, the “Member’s Required
Tax Distribution” shall be increased to the extent that the payment obligations of the Managing Member under the Tax Receivable
Agreement with respect to any Tax Estimation Period exceed the Managing Member’s available cash (taking into account its obligations
or reserves for the payment of taxes, liabilities, expenses, and other corporate purposes). For purposes of this Agreement, the “Income
Amount” for a Tax Estimation Period shall equal, with respect to any Member holding Class A Units or Class B Units, the
net taxable income of the Company allocated or allocable to such Member with respect to such Units for such Tax Estimation Period (excluding
any compensation paid to a Member outside of this Agreement and any Certificate of Designations, but including for the avoidance of doubt
any income allocated or allocable to a Member pursuant to Section 704(c) of the Code); provided, however, that net taxable
income shall be determined without regard to any special adjustment of tax items as a result of any election under Section 754 of the
Code, including any adjustment pursuant to Section 734 and 743 of the Code.
(ii) At
least five (5) days before the quarterly due date for payment by corporations or individuals (whichever is earlier) on a calendar year
under the Code, the Company shall distribute (to the extent of Available Cash) to the Members holding Class A Units or Class B Units,
pro rata based upon the number of such Units held by each such Member an amount of cash sufficient to provide each such Member
with a distribution at least equal to such Member’s Required Tax Distribution (with amounts distributed pursuant to this Section
4.01(b), “Tax Distributions”) (in the event there is insufficient Available Cash to distribute to each
such Member their Member’s Required Tax Distribution in full, then the Company shall distribute such Tax Distributions pro rata
to each such Member holding Class A Units or Class B Units based on the relative amount of each such Member’s Required Tax Distribution
assuming such amounts were paid in full). Any Tax Distributions shall be treated in all respects as advances against future distributions
pursuant to Section 4.01(a) and Section 4.02.
(iii) Notwithstanding
anything to the contrary herein, no Tax Distributions will be required to be made with respect to items arising with respect to any Covered
Transaction, although any unpaid Tax Distributions with respect to any Tax Estimation Period, or portion thereof, ending before a Covered
Transaction shall continue to be required to be paid prior to any Distributions being made under Section 4.01(a) and Section
4.02.
(c) Special
Distribution. The Managing Member shall, on the date hereof, cause the Company to distribute the Contributed ACT Shares (as such
term in defined in the Business Combination Agreement) to the holders of Class B Units in accordance with Schedule II to the Business
Combination Agreement.
4.02 Liquidation
Distribution. Subject to Section 4.01(b) with respect to Tax Distributions and the provisions of any Certificate of Designations,
all Distributions by the Company, and all proceeds (whether received by the Company or directly by the Members) in connection with dissolution
of the Company shall be made or allocated among the holders of Class A Units and Class B Units pro rata based on the number of
such Units held by each such holder.
4.03 Limitations
on Distribution. Notwithstanding any provision to the contrary contained in this Agreement, the Managing Member shall not make a
distribution to any Member if such distribution would violate (a) Section 18-607 of the Act, (b) other applicable Law or (c) the terms
of any credit agreement or other third-party agreement or arrangement to which the Company is a party; provided, however,
that clause (c) above shall not prohibit or otherwise restrict any distribution to a Member holding Series A Preferred Units to the extent
such distribution is not prohibited by Section 12 of the Certificate of Designations with respect to the Series A Preferred Units.
4.04 Performance
Vesting ACT Shares. Notwithstanding anything in this ARTICLE IV to the contrary, for all purposes of this ARTICLE IV,
any distributions that would be made pursuant to Section 4.01(a) and Section 4.02 in respect of the Class A Units issued
to the Managing Member that correspond to Performance Vesting ACT Shares that have not satisfied the vesting criteria described in the
Sponsor Letter Agreement at the time such distribution is made shall be held back and recorded by the Company and such amounts shall
either be (i) released to the Managing Member at such time (if any) as the corresponding Performance Vesting ACT Shares satisfy the vesting
criteria set forth in Sponsor Letter Agreement or (ii) released to the Company at such time as the corresponding Performance Vesting
ACT Shares are forfeited to the Company in accordance with the terms of the Sponsor Letter Agreement.
4.05 Use
of Distribution Funds. The Managing Member shall use distributions received from the Company for payment of taxes, for obligations
under the Tax Receivable Agreement, for liabilities or expenses, to loan funds to the Company in accordance with this Agreement, to contribute
funds to the Company in exchange for additional Class A Units in accordance with the terms of this Agreement, for the payment of dividends
to its shareholders or for other general corporate purposes, in each case as determined in the sole discretion of the Managing Member;
provided that the Managing Member may not use such distributions to acquire any Units, except as otherwise expressly provided
in Section 7.04 or any Certificate of Designations (but subject to the terms of any Certificate of Designations).
ARTICLE
V
CAPITAL
CONTRIBUTIONS; CAPITAL ACCOUNTS;
TAX
ALLOCATIONS; TAX MATTERS
5.01 Initial
Capital Contributions. The Members have made, on or prior to the date hereof, Capital Contributions and, in exchange, the Company
has issued to the Members the number of Class A Units, as specified in the books and records of the Company.
5.02 No
Additional Capital Contributions. No Member shall be required to make additional Capital Contributions to the Company without the
consent of such Member or permitted to make additional capital contributions to the Company without the consent of the Managing Member,
which may be granted or withheld in its sole discretion.
5.03 Capital
Accounts. A separate capital account (a “Capital Account”) shall be established and maintained for each
Member in accordance with the provisions of Treasury Regulations Section 1.704-1(b)(2)(iv) and this Section 5.03. The Company
may adjust the Capital Accounts of its Members to reflect revaluations of the property of any Subsidiary of the Company that is treated
as a partnership (or entity disregarded from a partnership) for U.S. federal income tax purposes. The Capital Account of each Member
shall be credited with such Member’s Capital Contributions, if any, all Profits allocated to such Member pursuant to Section
5.04 and any items of income or gain which are specially allocated pursuant to Section 5.05; and shall be debited with all
Losses allocated to such Member pursuant to Section 5.04, any items of loss or deduction of the Company specially allocated to
such Member pursuant to Section 5.05, and all cash and the Carrying Value of any property (net of liabilities assumed by such
Member and the liabilities to which such property is subject) distributed by the Company to such Member. Any references in any section
of this Agreement to the Capital Account of a Member shall be deemed to refer to such Capital Account as the same may be credited or
debited from time to time as set forth above. In the event of any transfer of any interest in the Company in accordance with the terms
of this Agreement, the Transferee shall succeed to the Capital Account of the transferor to the extent it relates to the transferred
interest.
5.04 Allocations
of Profits and Losses. Except as otherwise provided in this Agreement, Profits and Losses (and, to the extent necessary, individual
items of income, gain or loss or deduction of the Company) shall be allocated in a manner such that the Capital Account of each Member
after giving effect to the special allocations set forth in Section 5.05 is, as nearly as possible, equal (proportionately) to
(i) the distributions that would be made pursuant to ARTICLE IX if the Company were dissolved, its affairs wound up and its assets
sold for cash equal to their Carrying Value, all Company liabilities were satisfied in cash in accordance with their terms (limited with
respect to each nonrecourse liability to the Carrying Value of the assets securing such liability) and all remaining or resulting cash
was distributed to the Members in accordance with Section 9.03, minus (ii) such Member’s share of Company Minimum Gain and
Member Nonrecourse Debt Minimum Gain, computed immediately prior to the hypothetical sale of assets. Notwithstanding the foregoing, the
Managing Member shall make such adjustments to Capital Accounts as it determines in its reasonable discretion to be appropriate to ensure
allocations are made in accordance with a Member’s interest in the Company.
5.05
Special Allocations. Notwithstanding any other provision in this ARTICLE V:
(a) Minimum
Gain Chargeback. If there is a net decrease in Company Minimum Gain or Member Nonrecourse Debt Minimum Gain (determined in accordance
with the principles of Treasury Regulations Sections 1.704-2(d) and 1.704-2(i)) during any Company taxable year, the Members shall be
specially allocated items of Company income and gain for such year (and, if necessary, subsequent years) in an amount equal to their
respective shares of such net decrease during such year, determined pursuant to Treasury Regulations Section 1.704-2(i) (4). The items
to be so allocated shall be determined in accordance with Treasury Regulations Sections 1.704-2(i)(4) and 1.704-2(j)(2). This Section
5.05(a) is intended to comply with the minimum gain chargeback requirements in such Treasury Regulations Sections and shall be interpreted
consistently therewith; including that no chargeback shall be required to the extent of the exceptions provided in Treasury Regulations
Sections 1.704-2(f) and 1.704-2(i)(4).
(b) Qualified
Income Offset. If any Member unexpectedly receives any adjustments, allocations, or distributions described in Treasury Regulations
Section 1.704- 1(b)(2)(ii)(d)(4), (5) or (6), items of Company income and gain shall be specially allocated to such Member in an amount
and manner sufficient to eliminate the deficit balance in such Member’s Adjusted Capital Account Balance created by such adjustments,
allocations or distributions as promptly as possible; provided that an allocation pursuant to this Section 5.05(b) shall
be made only to the extent that a Member would have a deficit Adjusted Capital Account Balance in excess of such sum after all other
allocations provided for in this ARTICLE V have been tentatively made as if this Section 5.05(b) were not in this Agreement.
This Section 5.05(b) is intended to comply with the “qualified income offset” requirement of the Code and shall be
interpreted consistently therewith.
(c) Gross
Income Allocation. If any Member has a deficit Capital Account at the end of any Fiscal Year which is in excess of the sum of (i)
the amount such Member is obligated to restore, if any, pursuant to any provision of this Agreement, and (ii) the amount such Member
is deemed to be obligated to restore pursuant to the penultimate sentences of Treasury Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5),
each such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible; provided
that an allocation pursuant to this Section 5.05(c) shall be made only if and to the extent that a Member would have a deficit
Capital Account in excess of such sum after all other allocations provided for in this ARTICLE V have been tentatively made as
if Section 5.05(b) and this Section 5.05(c) were not in this Agreement.
(d) Nonrecourse
Deductions. Nonrecourse Deductions shall be allocated to the Members holding Class A Units and Class B Units in accordance with their
respective Class A/B Percentage Interest.
(e) Member
Nonrecourse Deductions. Member Nonrecourse Deductions for any taxable period shall be allocated to the Member who bears the economic
risk of loss with respect to the liability to which such Member Nonrecourse Deductions are attributable in accordance with Treasury Regulations
Section 1.704-2(i)(1).
(f) Section
754 Adjustments. To the extent an adjustment to the adjusted tax basis of any Company asset, pursuant to Section 734(b) or Section
743(b) of the Code is required, pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(2) or Section 1.704- 1(b)(2)(iv)(m)(4),
to be taken into account in determining Capital Accounts as the result of a distribution to a Member in complete liquidation of such
Member’s interest in the Company, the amount of such adjustment to Capital Accounts shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) and such gain or loss shall be specially
allocated to the Members in accordance with their interests in the Company in the event Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(2)
applies, or to the Member to whom such distribution was made in the event Treasury Regulations Section 1.704- 1(b)(2)(iv)(m)(4) applies.
(g) Ameliorative
Allocations. Any special allocations of income or gain pursuant to Sections 5.05(a), (b) or (c) hereof shall
be taken into account in computing subsequent allocations pursuant to Section 5.04 and this Section 5.05(g), so that the
net amount of any items so allocated and all other items allocated to each Member shall, to the extent possible, be equal to the net
amount that would have been allocated to each Member if such allocations pursuant to Sections 5.05(a), (b) or (c)
had not occurred.
(h) Allocations
Relating to Taxable Issuance of Units. Any income, gain, loss, or deduction realized as a direct or indirect result of the issuance
of Units by the Company to a Member (the “Issuance Items”) shall be allocated among the Members so that, to
the extent possible, the net amount of such Issuance Items, together with all other allocations under this Agreement to each Member shall
be equal to the net amount that would have been allocated to each such Member if the Issuance Items had not been realized.
(i) Allocations
Relating to Earnout Units. Notwithstanding anything to the contrary contained in this Agreement, (1) no allocation (of Profits or
Losses or otherwise) shall be made in respect of any Earnout Units in determining Capital Accounts unless and until such Earnout Units
undergo a Conversion into Class B Units and (2) in the event the Carrying Value of any Company asset is adjusted pursuant to clause (f)
of the definition of Carrying Value, any Profits or Losses resulting from such adjustment shall, in accordance with principles similar
to those set forth in Treasury Regulations Section 1.704-1(b)(2)(iv)(s) or in any other manner reasonably determined by the Managing
Member, be allocated among the Members (including the Members who held the Earnout Units giving rise to such adjustment) such that the
Capital Account balance relating to each Class B Unit (including any Earnout Units that have undergone a Conversion into Class B Units)
is equal in amount (or as close to equal in amount as possible) immediately after making such allocation; provided, that if the foregoing
allocations pursuant to clause (2) are insufficient to cause the Capital Account balance relating to each Class B Unit to be so equal
in amount, then the Managing Member, in its reasonable discretion, shall cause a Capital Account reallocation in accordance with principles
similar to those set forth in Treasury Regulations Section 1.704-1(b)(2)(iv)(s)(3) to cause the Capital Account balance relating to each
Class B Unit to be so equal in amount.
5.06 Tax
Allocations. For income tax purposes, each item of income, gain, loss and deduction of the Company shall be allocated among the Members
in the same manner as the corresponding items of Profits and Losses and specially allocated items are allocated for Capital Account purposes;
provided that in the case of any asset the Carrying Value of which differs from its adjusted tax basis for U.S. federal income
tax purposes, income, gain, loss and deduction with respect to such asset shall be allocated solely for income tax purposes in accordance
with the principles of Sections 704(b) and (c) of the Code (in any manner determined by the Managing Member and permitted by the Code
and Treasury Regulations; provided that the prior written consent of Original Member Representative (and its successors or assigns)
shall be required for use of any method other than the traditional method (without curative allocations) described in Treasury Regulations
Section 1.704-3(b)) so as to take account of the difference between Carrying Value and adjusted basis of such asset. Notwithstanding
the foregoing, the Managing Member shall make such allocations for tax purposes as it determines in its reasonable discretion to be appropriate
to ensure allocations are made in accordance with a Member’s interest in the Company. If, as a result of an exercise of a noncompensatory
option to acquire an interest in the Company, a Capital Account reallocation is required under Treasury Regulations Section 1.704- 1(b)(2)(iv)(s)(3),
the Company shall make corrective allocations pursuant to Treasury Regulations Section 1.704-1(b)(4)(x). If, pursuant to Section 5.05(i),
the Managing Member causes a Capital Account reallocation in accordance with principles similar to those set forth in Treasury Regulations
Section 1.704-1(b)(2)(iv)(s)(3), the Managing Member shall make corrective allocations in accordance with principles similar to those
set forth in Treasury Regulations Section 1.704-1(b)(4)(x).
5.07 Tax
Advances. If the Company or any other Person in which the Company holds an interest is required by Law to withhold or to make tax
payments on behalf of or with respect to any Member, or the Company is subjected to tax itself (including any amounts withheld from amounts
directly or indirectly payable to the Company or to any other Person in which the Company holds an interest) by reason of the status
of any Member as such or that is specifically attributable to a Member (including federal, state, local or foreign withholding, personal
property, unincorporated business or other taxes, the amount of any taxes arising under the Revised Partnership Audit Provisions, the
amount of any taxes imposed under Section 1446(f) of the Code, and any interest, penalties, additions to tax, and expenses related to
any such amounts) (“Tax Advances”), the Managing Member may cause the Company to withhold such amounts and
cause the Company to make such tax payments as so required. All Tax Advances made on behalf of a Member shall be repaid by reducing the
amount of the current or next succeeding distribution or distributions which would otherwise have been made to such Member or, if such
distributions are not sufficient for that purpose, by so reducing the proceeds of liquidation otherwise payable to such Member. For all
purposes of this Agreement such Member shall be treated as having received the amount of the distribution that is equal to the Tax Advance.
Each Member hereby agrees to indemnify and hold harmless the Company and the other Members from and against any liability (including,
without limitation, any liability for taxes, penalties, additions to tax or interest other than any penalties, additions to tax or interest
imposed as a result of the Company’s failure to withhold or make a tax payment on behalf of such Member which withholding or payment
is required pursuant to applicable Law) with respect to income attributable to or distributions or other payments to such Member. For
the avoidance of doubt, any income taxes, penalties, additions to tax and interest payable by the Company or any fiscally transparent
entity in which the Company owns an interest shall be treated as specifically attributable to the Members and shall be allocated among
the Members such that the burden of (or any diminution in distributable proceeds resulting from) any such amounts is borne by those Members
to whom such amounts are specifically attributable (whether as a result of their status, actions, inactions or otherwise, including pursuant
to an allocation made under Section 5.08), in each case, as reasonably determined by the Managing Member. For the avoidance of
doubt, any taxes, penalties, and interest payable under the Revised Partnership Audit Provisions by the Company or any fiscally transparent
entity in which the Company owns an interest shall be treated as specifically attributable to the Members of the Company, and the Managing
Member shall use commercially reasonable efforts to allocate the burden of (or any diminution in distributable proceeds resulting from)
any such taxes, penalties or interest to those Members to whom such amounts are specifically attributable (whether as a result of their
status, actions, inactions or otherwise), as reasonably determined by the Managing Member.
5.08
Partnership Representative.
(a) The
Original Member Representative is hereby designated as the Company’s “tax matters partner” for U.S. federal income
tax purposes under Section 6231(a)(7) of the Code, as in effect for taxable years of the Company beginning on or before December 31,
2017, and as the Company’s “partnership representative” as that term is defined in the Revised Partnership Audit Provisions
for taxable years of the Company beginning after December 31, 2017 and ending on or prior to December 31, 2021. The Managing Member is
hereby designated as the “partnership representative” as that term is defined in Revised Partnership Audit Provisions for
taxable years of the Company beginning on or after January 1, 2022. In addition, the Managing Member is hereby authorized to designate
or remove any other Person selected by the Managing Member as the Partnership Representative. For each Fiscal Year in which the Partnership
Representative is an entity, the Company shall appoint an individual identified by the Partnership Representative for such Fiscal Year
to act on its behalf (the “Designated Individual”) in accordance with the applicable Treasury Regulations or
analogous provisions of state or local Law. Each Member hereby expressly consents to such designations and agrees to take, and that each
of the Company and the Managing Member is authorized to take (or cause the Company to take), such other actions as may be necessary or
advisable pursuant to Treasury Regulations or other Internal Revenue Service or Treasury guidance or state or local Law to cause such
designations or evidence such Member’s consent to such designations.
(b) Subject
to this Section 5.08, the Partnership Representative shall have the sole authority to act on behalf of the Company in connection
with, make all relevant decisions regarding application of, and to exercise the rights and powers provided for in the Revised Partnership
Audit Provisions, including making any elections under the Revised Partnership Audit Provisions or any decisions to settle, compromise,
challenge, litigate or otherwise alter the defense of any action, audit or examination before the IRS or any other income tax authority
(each, an “Audit”), and to expend Company funds for professional services and other expenses reasonably incurred
in connection therewith. Notwithstanding the foregoing or anything to the contrary in this Agreement, with respect to any “imputed
underpayment” arising in connection with any Audit relating to any taxable year for which the Original Member Representative is
the Partnership Representative, at the election of the Managing Member (in its reasonable discretion), the Original Member Representative
shall be required to make (or cause to be made) an election under Section 6226(a) of the Code (or any analogous provision of state or
local Law).
(c) Without
limiting the foregoing, the Partnership Representative shall give prompt written notice to the Original Member Representative of the
commencement of any Audit of the Company or any of its Subsidiaries the resolution of which would reasonably be expected to have a disproportionate
(compared to the Managing Member) and material adverse effect on the Original Members. The Partnership Representative shall (i) keep
the Original Member Representative reasonably informed of the material developments and status of any such Audit for taxable years beginning
on or after January 1, 2022 (a “Specified Audit”), (ii) permit the Original Member Representative (or its designee)
to participate (including using separate counsel), in each case at the Original Members’ sole cost and expense, in any such Specified
Audit to the maximum extent permitted by the applicable tax authority, and (iii) promptly notify the Original Member Representative of
receipt of a notice of a final partnership adjustment (or equivalent under applicable Laws) or a final decision of a court or IRS Independent
Office of Appeals panel (or equivalent body under applicable Laws) with respect to such Specified Audit. The Partnership Representative
or the Company shall promptly provide the Original Member Representative with copies of all material correspondence between the Partnership
Representative or the Company (as applicable) and any governmental entity in connection with such Specified Audit and shall give the
Original Member Representative a reasonable opportunity to review and comment on any material correspondence, submission (including settlement
or compromise offers) or filing in connection with any such Specified Audit. Additionally, without limiting the final sentence of this
Section 5.08(c), the Partnership Representative shall not (and the Company shall not (and shall not authorize the Partnership Representative
to)) settle, compromise or abandon any Specified Audit in a manner that would reasonably be expected to have a disproportionate (compared
to the Managing Member) and material adverse effect on the Original Members without the Original Member Representative’s prior
written consent (which consent shall not be unreasonably withheld, delayed or conditioned). Without limiting the final sentence of this
Section 5.08(c), the Partnership Representative shall obtain the prior written consent of the Original Member Representative (which
consent shall not be unreasonably withheld, delayed or conditioned) before taking any material action under the Revised Partnership Audit
Provisions that would reasonably be expected to have a disproportionate (compared to the Managing Member) and material adverse effect
on the Original Members. Notwithstanding the foregoing, (i) each of the obligations of the Partnership Representative and the Company,
and rights of the Original Member Representative and Original Members, under this Section 5.08(c) shall terminate and have no
further force or effect from and after the date that the Original Members no longer own 20% of the combined Class A Units and Class B
Units, and (ii) with respect to any “imputed underpayment” arising in connection with any Audit, at the election of the Managing
Member (in its reasonable discretion), the Partnership Representative shall be required to make (or cause to be made) an election under
Section 6226(a) of the Code (or any analogous provision of state or local Law).
(d) All
expenses incurred by the Partnership Representative or Designated Individual in connection with its duties as partnership representative
or designated individual, as applicable, shall be expenses of the Company (including, for the avoidance of doubt, any costs and expenses
incurred in connection with any claims asserted against the Partnership Representative or Designated Individual, as applicable), and
the Company shall reimburse and indemnify the Partnership Representative or Designated Individual, as applicable, for all such expenses
and costs. Nothing herein shall be construed to restrict the Partnership Representative or Designated Individual from engaging lawyers,
accountants, tax advisers, or other professional advisers or experts to assist the Partnership Representative or Designated Individual
in discharging its duties hereunder. Neither the Partnership Representative nor Designated Individual shall be liable to the Company,
any Member or any Affiliate thereof for any costs or losses to any Persons, any diminution in value or any liability whatsoever arising
as a result of the performance of its duties pursuant to this Section 5.08 absent (i) willful breach of any provision of this
Section 5.08 or (ii) bad faith, fraud, or willful misconduct on the part of the Partnership Representative or Designated Individual,
as applicable.
5.09 Other
Allocation Provisions. Certain of the foregoing provisions and the other provisions of this Agreement relating to the maintenance
of Capital Accounts are intended to comply with Treasury Regulations Section 1.704-1(b) and shall be interpreted and applied in a manner
consistent with such regulations. In addition to amendments effected in accordance with Section 12.12 or otherwise in accordance
with this Agreement, Sections 5.03 and 5.04 may also, so long as any such amendment does not materially change the relative
economic interests of the Members, be amended at any time by the Managing Member if necessary, in the opinion of tax counsel to the Company,
to comply with such regulations or any applicable Law.
5.10
Survival. Sections 5.07 and 5.08 shall be interpreted to apply to Members and former Members and shall survive the
Transfer of a Member’s Units and the termination, dissolution, liquidation and winding up of the Company and, for this purpose
to the extent not prohibited by applicable Law, the Company shall be treated as continuing in existence.
ARTICLE
VI
BOOKS
AND RECORDS; REPORTS
6.01
Books and Records.
(a) At
all times during the continuance of the Company, the Company shall prepare and maintain separate books of account for the Company in
accordance with GAAP.
(b) Except
as limited by Section 6.01(c), each Member shall have the right to receive, for a purpose reasonably related to such Member’s
interest as a Member in the Company, upon reasonable written demand stating the purpose of such demand and at such Member’s own
expense:
(i) a
copy of the Certificate and this Agreement and all amendments thereto, together with a copy of the executed copies of all powers of attorney
pursuant to which the Certificate and this Agreement and all amendments thereto have been executed; and
(ii) copies
of the Company’s U.S. federal income tax returns for the three most recent years.
(c) The
Managing Member may keep confidential from the Members, for such period of time as the Managing Member determines in its sole discretion,
(i) any information that the Managing Member reasonably believes to be in the nature of trade secrets or (ii) other information the disclosure
of which the Managing Member believes is not in the best interests of the Company, could damage the Company or its business or that the
Company is required by law or by agreement with any third party to keep confidential, including without limitation, information as to
the Units held by any other Member. With respect to any schedules, annexes or exhibits to this Agreement, each Member (other than the
Managing Member) shall only be entitled to receive and review any such schedules, annexes and exhibits relating to such Member and shall
not be entitled to receive or review any schedules, annexes or exhibits relating to any other Member (other than the Managing Member).
(d) The
Managing Member shall cause to be prepared and filed all necessary federal and state income tax returns for the Company, including making
any tax elections. The Company, within 90 days of the close of each Fiscal Year, shall use commercially reasonable efforts to furnish
to each Member that was a Member during such Fiscal Year a Schedule K-1 and such other tax information reasonably required for federal,
state and local income tax reporting purposes. The Company shall use commercially reasonable efforts to provide to each Person that was
a Member during the Fiscal Year (a) by May 15th, August 15th and November 15th of such Fiscal Year, with an estimate of the taxable income,
gains, deductions, losses and other items for, respectively, the first, second and third fiscal quarters that such Person will be required
to include in its taxable income and (b) by February 15th of such Fiscal Year, with an estimate of the taxable income, gains, deductions,
losses and other items of such Person to be reflected on the Schedule K-1 of such Person for the prior Fiscal Year. The Company also
shall provide the Members with such other information as may be reasonably requested for purposes of allowing the Members to prepare
and file their own tax returns, provided that any costs or expenses with respect to the foregoing shall be borne by the requesting
Member.
(e) The
Company shall make the following elections on the appropriate tax returns (provided that the election described in clause (ii)
below cannot be rescinded without the prior written consent of the Original Member Representative):
(i) to
adopt an appropriate federal income tax method of accounting and to keep the Company’s books and records on such income-tax method;
(ii) to
have in effect (and, to the extent within the control of the Managing Member, to cause each direct or indirect subsidiary that is treated
as a partnership for U.S. federal income tax purposes to have in effect) an election, pursuant to Section 754 of the Code (and any similar
election for state or local tax purposes), to adjust the tax basis of Company properties, for the taxable year of the Company that includes
the Effective Date and each subsequent taxable year in which an Exchange pursuant to ARTICLE XI occurs; and
(iii) any
other available election that the Managing Member reasonably deems appropriate; provided that, for so long as the Original Members
collectively own at least 20% of the combined Class A Units and Class B Units, the Managing Member shall consult in good faith with the
Original Member Representative with respect to any material tax election with respect to the Company that could reasonably be expected
to have a disproportionate (as compared to the Managing Member) and adverse effect on the Original Members, and not make such election
without the Original Member Representative’s prior written consent (which consent shall not be unreasonably withheld, delayed or
conditioned).
No
Member may make an election for the Company to be excluded from the application of the provisions of subchapter K of chapter 1 of subtitle
A of the Code or any similar provisions of applicable state law, and no provision of this Agreement shall be construed to sanction or
approve such an election.
ARTICLE
VII
COMPANY UNITS
7.01
Units.
(a) Limited
liability company interests in the Company shall be represented by Units. At the execution of this Agreement, the Units are comprised
of four Classes:
(i) “Class
A Units”. Immediately after giving effect to the transactions contemplated by the Business Combination Agreement, the Managing
Member holds the number of Class A Units set forth opposite the Managing Member’s name on Exhibit A hereto.
(ii) “Class
B Units”. Immediately after giving effect to the transactions contemplated by the Business Combination Agreement, each
Member holds the number of Class B Units set forth opposite such Member’s name on Exhibit A hereto. Class B Units shall
have all the rights, privileges, preferences, and obligations as are specifically provided for in this Agreement for Class B Units, and
as may otherwise be generally applicable to all classes of Units, unless such application is specifically limited to one or more other
classes of Units. Notwithstanding anything to the contrary contained herein, the Class B Units shall not be entitled to vote on any matter
subject to a vote of the Members, except as otherwise expressly set forth herein or required by law. Certain Class B Units may be subject
to vesting as set forth in this Agreement or any other written agreement related to such Class B Units, including the Existing Agreement.
By entering into this Agreement, any holder of Class B Units issued pursuant to the Business Combination Agreement hereby approves, ratifies
and confirms the Business Combination Agreement and the transactions contemplated thereby, including, without limitation, the Business
Combination.
(iii) “Series
A Preferred Units”. As of the date of this Agreement, each Member holds the number of Series A Preferred Units set forth opposite
such Member’s name on Exhibit A hereto. The Series A Preferred Units shall have all the rights, privileges, preferences,
and obligations as are specifically provided for in the applicable Certificate of Designations. Notwithstanding anything contained herein
to the contrary, the Series A Preferred Units shall not be entitled to vote on any matters or receive any to any dividends or distributions,
except as set forth in the applicable Certificate of Designations.
(iv) “Series
A-1 Preferred Units”. As of the date of this Agreement, each Member holds the number of Series A-1 Preferred Units set forth
opposite such Member’s name on Exhibit A hereto. The Series A-1 Preferred Units shall have all the rights, privileges, preferences,
and obligations as are specifically provided for in the applicable Certificate of Designations. Notwithstanding anything contained herein
to the contrary, the Series A Preferred Units shall not be entitled to vote on any matters or receive any to any dividends or distributions,
except as set forth in the applicable Certificate of Designations.
(b) Subject
to Section 7.04 and the terms of each Certificate of Designations, the Managing Member in its sole discretion may establish and
cause the Company to issue, from time to time in accordance with such procedures as the Managing Member shall determine from time to
time, additional Units, in one or more Classes, or other Company securities, at such price, and with such designations, preferences and
relative, participating, optional or other special rights, powers and duties (which may be senior to existing Units, Classes or other
Company securities), as shall be determined by the Managing Member without the approval of any Member or any other Person who may acquire
an interest in any of the Units, including: (i) the right of such Units to share in Profits and Losses or items thereof; (ii) the right
of such Units to share in Company distributions; (iii) the rights of such Units upon dissolution and winding up of the Company; (iv)
whether, and the terms and conditions upon which, the Company may or shall be required to redeem such Units (including sinking fund provisions);
(v) whether such Units are issued with the privilege of conversion or exchange and, if so, the terms and conditions of such conversion
or exchange; (vi) the terms and conditions upon which such Units will be issued, evidenced by certificates and assigned or transferred;
(vii) the method for determining the percentage interest as to such Units; (viii) the terms and conditions of the issuance of such Units
(including, without limitation, the amount and form of consideration, if any, to be received by the Company in respect thereof, the Managing
Member being expressly authorized, in its sole discretion, to cause the Company to issue such Units for less than fair market value);
and (ix) the right, if any, of the holder of such Units to vote on Company matters, including matters relating to the relative designations,
preferences, rights, powers and duties of such Units. Notwithstanding any other provision of this Agreement, subject to the terms of
each Certificate of Designations, the Managing Member in its sole discretion, without the approval of any Member or any other Person,
is authorized: (A) to cause the Company to issue Units or other Company securities of any newly established Class or any existing Class
to Members or other Persons who may acquire an interest in the Company; (B) to amend this Agreement (including by way of a certificate
of designations which is appended and annexed to this Agreement (each a “Certificate of Designations”)) to reflect
the creation of any such new Class, the issuance of Units or other Company securities of such Class, and the admission of any Person
as a Member which has received Units or other Company securities; and (C) to effect the combination, subdivision and/or reclassification
of outstanding Units as may be necessary or appropriate to give economic effect to equity investments in the Company by the Managing
Member that are not accompanied by the issuance by the Company to the Managing Member of additional Units and to update the books and
records of the Company accordingly. All Units of a particular Class shall have identical rights in all respects as all other Units of
such Class, except in each case as otherwise specified in this Agreement. In the event that the Managing Member validly establishes any
Class of Units in accordance with this Agreement (including compliance with the terms of each Certificate of Designations) by way of
a Certificate of Designations, then, in the event of any conflict between this Agreement and such Certificate of Designations with respect
to the rights of such Class of Units, such Certificate of Designations shall control; provided that the terms of any Class of
Units created pursuant to such Certificate of Designations or this Section 7.01 shall not conflict with the rights previously
granted to any Class of Units previously authorized by way of a Certificate of Designations, except, in the case of any Class for which
no Units are then outstanding, without the approval of a majority of the outstanding Units of such Class of Units. Notwithstanding anything
to the contrary in this Agreement, the Managing Member shall not cause or permit the Company to issue, or authorize the issuance of,
any Class B Units unless the Managing Member has a sufficient number of Class A Common Stock authorized, available and reserved for issuance
upon an exchange of such newly issued Class B Units for Class A Common Stock pursuant to an Exchange pursuant to ARTICLE XI.
7.02 Register.
The books and records of the Company shall be the definitive record of ownership of each Unit and all relevant information with respect
to each Member. Unless the Managing Member in its sole discretion shall determine otherwise, Units shall be uncertificated and recorded
in the books and records of the Company.
7.03 Registered
Members. The Company shall be entitled to recognize the exclusive right of a Person registered on its records as the owner of Units
for all purposes and shall not be bound to recognize any equitable or other claim to or interest in Units on the part of any other Person,
whether or not it shall have express or other notice thereof, except as otherwise provided by the Act or other applicable Law.
7.04
Issuances, Repurchases and Redemptions, Recapitalizations.
(a)
Issuances by the Managing Member.
(i) Subject
to Section 7.04(a)(ii) and ARTICLE XI, if, at any time after the date of consummation of the Business Combination Agreement,
the Managing Member sells or issues shares of Class A Common Stock, Class C Common Stock or any other Equity Interests of the Managing
Member (other than Class B Common Stock or Class D Common Stock), (x) the Company shall concurrently issue to the Managing Member an
equal number of Class A Units (if the Managing Member issues Class A Common Stock or Class C Common Stock), or an equal number of such
other Equity Interests of the Company corresponding to the Equity Interests issued by the Managing Member (if the Managing Member issues
Equity Interests other than Class A Common Stock or Class C Common Stock), and with substantially the same rights to dividends and distributions
(including distributions upon liquidation) and other economic rights as those of such Equity Interests of the Managing Member so issued
and (y) the Managing Member shall concurrently contribute to the Company, the net proceeds or other property received by the Managing
Member, if any, for such Class A Common Stock, Class C Common Stock or other Equity Interest.
(ii) Notwithstanding
anything to the contrary contained in Section 7.04(a)(i) or Section 7.04(a)(iii), this Section 7.04 shall not apply
to (A) the issuance and distribution to holders of shares of Class A Common Stock or other Equity Interests of the Managing Member of
rights to purchase Equity Interests of the Managing Member under a “poison pill” or similar shareholder rights plan (and
upon exchange of Class B Units for shares of Class A Common Stock, such shares of Class A Common Stock will be issued together with a
corresponding right under such plan) or (B) the issuance under the Managing Member’s employee benefit plans of any warrants, options,
stock appreciation right, restricted stock, restricted stock units, performance based award or other rights to acquire Equity Interests
of the Managing Member, but shall in each of the foregoing cases apply to the issuance of Equity Interests of the Managing Member in
connection with the exercise or settlement of such warrants, options, stock appreciation right, restricted stock units, performance based
awards or the vesting of restricted stock (including as set forth in clause (iii) below, as applicable).
(iii) In
the event any outstanding Equity Interest of the Managing Member is exercised or otherwise converted and, as a result, any shares of
Class A Common Stock, Class C Common Stock or other Equity Interests of the Managing Member are issued (including as a result of the
exercise of warrants of the Managing Member), (A) the corresponding Equity Interest outstanding at the Company, if any, shall be similarly
exercised or otherwise converted, if applicable, (B) an equivalent number of Class A Units or equivalent Equity Interests of the Company
shall be issued to the Managing Member as required by the first sentence of Section 7.04(a)(i), and (C) the Managing Member shall
concurrently contribute to the Company the net proceeds received by the Managing Member from any such exercise or conversion.
(b) New
Company Equity Interests. Except pursuant to ARTICLE XI, (i) the Company may not issue any additional Class A Units or Equity
Interests of the Company to the Managing Member or any of its Subsidiaries (other than the Company and its Subsidiaries) unless substantially
simultaneously therewith the Managing Member or such Subsidiary issues or transfers an equal number of newly-issued shares of Class A
Common Stock or Class C Common Stock of the Managing Member (or relevant Equity Interest of such Subsidiary) to another Person or Persons
and contributes the net proceeds therefrom to the Company, and (ii) the Company may not issue any other Equity Interests of the Company
to the Managing Member or any of its Subsidiaries (other than the Company and its Subsidiaries) unless substantially simultaneously therewith
the Managing Member or such Subsidiary issues or transfers, to another Person, an equal number of newly-issued shares of Equity Interests
of the Managing Member or such Subsidiary with substantially the same rights to dividends and distributions (including distributions
upon liquidation) and other economic rights as those of such Equity Interests of the Company and contributes the net proceeds therefrom
to the Company.
(c)
Repurchases and Redemptions.
(i)
Neither the Managing Member nor any of its Subsidiaries (other than the Company and its Subsidiaries) may redeem, repurchase or otherwise
acquire (A) shares of Class A Common Stock or Class C Common Stock pursuant to a Board approved repurchase plan or program (or otherwise
in connection with a transaction approved by the Board) unless substantially simultaneously therewith the Company redeems, repurchases
or otherwise acquires from the Managing Member or such Subsidiary an equal number of Class A Units for the same price per security, if
any, or (B) any other Equity Interests of the Managing Member or any of its Subsidiaries (other than the Company and its Subsidiaries)
pursuant to a Board approved repurchase plan or program (or otherwise in connection with a transaction approved by the Board) unless
substantially simultaneously therewith the Company redeems, repurchases or otherwise acquires from the Managing Member or such Subsidiary
an equal number of the corresponding class or series of Equity Interests of the Company with the same rights to dividends and distributions
(including distributions upon liquidation) and other economic rights as those of such Equity Interests of the Managing Member or such
Subsidiary for the same price per security, if any.
(ii)
The Company may not redeem, repurchase or otherwise acquire (A) any Class A Units from the Managing Member or any of its Subsidiaries
(other than the Company and its Subsidiaries) unless substantially simultaneously the Managing Member or such Subsidiary redeems, repurchases
or otherwise acquires pursuant to a Board approved repurchase plan or program (or otherwise in connection with a transaction approved
by the Board) an equal number of shares of Class A Common Stock or Class C Common Stock for the same price per security from holders
thereof or (B) any other Equity Interests of the Company from the Managing Member or any of its Subsidiaries (other than the Company
and its Subsidiaries) unless substantially simultaneously the Managing Member or such Subsidiary redeems, repurchases or otherwise acquires
pursuant to a Board approved repurchase plan or program (or otherwise in connection with a transaction approved by the Board) for the
same price per security an equal number of Equity Interests of the Managing Member (or such Subsidiary) of a corresponding class or series
with substantially the same rights to dividends and distributions (including distributions upon liquidation) and other economic rights
as those of such Equity Interests of the Managing Member or such Subsidiary.
(d)
Earnout Units.
(i)
In the event that the Company is obligated to issue any Class B Units pursuant to Section 2.7 of the Business Combination Agreement,
the Company shall promptly issue such Class B Units to the Earnout Participants in accordance with the terms of the Business Combination
Agreement. Section 2.7 of the Business Combination Agreement is incorporated and treated as part of this Agreement.
(ii)
Notwithstanding anything to the contrary, the Parties intend that, solely for U.S. federal (and applicable state and local) income tax
purposes, (A) any such Class B Units to be issued to an Earnout Participant pursuant to Section 2.7 of the Business Combination Agreement
shall be treated as having been issued in the form of an “Earnout Unit” (each, an “Earnout Unit”) at Closing,
not received in connection with the performance of services, and shall be treated as having been converted into a Class B Unit at the
time of such actual issuance of a Class B Unit pursuant to Section 2.7 of the Business Combination Agreement (any such deemed conversion,
a “Conversion”), and (B) no such Earnout Participant shall be treated as having taxable income or gain as a result
of such deemed issuance of such Earnout Units at Closing or as a result of the Conversion thereof (if any) (other than as a result of
corrective allocations made pursuant to Section 5.05(i)). The Company shall prepare and file all tax returns consistent therewith
unless otherwise required by a final “determination” within the meaning of Section 1313 of the Code. For the avoidance of
doubt, subject to the definition of “Carrying Value”, Section 5.05(i) and this Section 7.04(d), an Earnout
Unit shall not be treated as an outstanding “Unit” for purposes of this Agreement.
(e)
Equity Subdivisions and Combinations.
(i)
The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization
or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Equity Interests
of the Company unless accompanied by an identical subdivision or combination, as applicable, of the outstanding related class or series
of Equity Interest of the Managing Member, with corresponding changes made with respect to any other exchangeable or convertible Equity
Interests of the Company and the Managing Member.
(ii)
Except as provided in Section 7.04(g), the Managing Member shall not in any manner effect any subdivision (by any equity split,
equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization
or otherwise) of any class or series of Equity Interest of the Managing Member, unless accompanied by an identical subdivision or combination,
as applicable, of the outstanding related class or series of Equity Interest of the Company, with corresponding changes made with respect
to any applicable exchangeable or convertible Equity Interests of the Company and the Managing Member.
(f)
General Authority. For the avoidance of doubt, but subject to Section 7.01, Section 7.02 and Section 7.03,
the Company and the Managing Member shall be permitted to undertake all actions, including an issuance, redemption, reclassification,
distribution, division or recapitalization, with respect to the Class A Units and/or Class B Units as the Managing Member determines
is necessary to maintain at all times a one-to-one ratio between (i) the number of Class A Units owned by the Managing Member, directly
or indirectly, and the number of outstanding shares of Class A Common Stock and Class C Common Stock, and (ii) the number of outstanding
shares of Class B Common Stock and Class D Common Stock held by any Member other than the Managing Member and the number of Class B Units
held by such Member disregarding, for purposes of maintaining the one-to-one ratio in clause (i), (A) options, rights or securities of
the Managing Member issued under any plan involving the issuance of any Equity Interests that are convertible into or exercisable or
exchangeable for shares of Class A Common Stock or Class C Common Stock, (B) treasury stock, or (C) preferred stock or other debt or
equity securities (including warrants, options or rights) issued by the Managing Member that are convertible or into or exercisable or
exchangeable for shares of Class A Common Stock or Class C Common Stock (but in each case prior to such conversion, exercise or exchange).
(g)
Notwithstanding anything to the contrary in this Agreement, if the Managing Member (i) receives Tax Distributions in an amount in excess
of the amount necessary to enable the Managing Member to meet its U.S. federal, state and local and non-U.S. tax obligations, its obligations
under the Tax Receivable Agreement, and any other operating expenses or (ii) holds any other excess cash amount, the Managing Member
may, in its sole discretion, (A) distribute such excess cash amount to its shareholders or (B) contribute such excess cash amount to
the Company in exchange for a number of Units or other Equity Securities of the Company determined in its sole discretion, and in such
case, the Managing Member may distribute to the holders of Class A Common Stock and Class C Common Stock an amount of shares of Class
A Common Stock or Class C Common Stock (if the Company issues Units to the Managing Member) or such other Equity Security of the Managing
Member (if the Company issues Equity Securities of the Company other than Units), corresponding to the Equity Securities issued by the
Company and with substantially the same rights to dividends and distributions (including distributions upon liquidation) and other economic
rights as those of such Equity Securities of the Company that were issued to the Managing Member.
ARTICLE
VIII
TRANSFER
RESTRICTIONS
8.01
Member Transfers.
(a)
Except as otherwise agreed to in writing between the Managing Member and the applicable Member and reflected in the books and records
of the Company or as otherwise provided in this ARTICLE VIII or in any Certificate of Designations, no Member or Assignee thereof
may Transfer all or any portion of its Units or other interest in the Company (or beneficial interest therein) without the prior consent
of the Managing Member, which consent (i) with respect to the Series A Preferred Units or the Series A-1 Preferred Units, shall not be
unreasonably withheld, conditioned or delayed by the Managing Member and (ii) with respect to the Class A Units or the Class B Units,
may be given or withheld, or made subject to such conditions (including, without limitation, the receipt of such legal opinions and other
documents that the Managing Member may require and/or such consent being provided in the form of a plan or program entered into or approved
by the Managing Member) as are determined by the Managing Member in its sole discretion. Any such determination in the Managing Member’s
sole discretion in respect of Units (other than preferred Units) shall be final and binding. Such determinations with respect of Units
(other than preferred Units) need not be uniform and may be made selectively among Members, whether or not such Members are similarly
situated, and shall not constitute the breach of any duty hereunder or otherwise existing at law, in equity or otherwise. Any purported
Transfer of Units that is not in accordance with, or subsequently violates, this Agreement shall be, to the fullest extent permitted
by law, null and void. If a Member transfers all or a portion of its Class B Units to a transferee in compliance with this Agreement,
the Member shall surrender a number of shares of Class B Common Stock or Class D Common Stock to the Managing Member equal to the number
of transferred Class B Units, such shares of Class B Common Stock or Class D Common Stock will be immediately cancelled, and the Managing
Member shall issue the same number of shares of Class B Common Stock or Class D Common Stock (to the extent permitted by the Managing
Member Charter) to such transferee upon its admittance to the Company as a Member.
(b)
Notwithstanding anything otherwise to the contrary in this Section 8.01, without the consent of the Managing Member or any other
Person, each Member that is a Member holding at least 5% of the Class A Percentage Interest or Class B Percentage Interest, as applicable,
may Transfer all or any portion of its Class A Units or Class B Units, as applicable, in a Transfer that complies with Section 8.04,
unless the Managing Member timely and reasonably objects in accordance with Section 8.04, so long as such transfer does not increase
the number of Members of the Company.
(c)
Notwithstanding anything otherwise to the contrary in this Section 8.01, each Member may Transfer Units in an Exchange pursuant
to, and in accordance with, ARTICLE XI; provided that in the case of any Member other than a Member holding at least 5%
of the Class A Percentage Interest or Class B Percentage Interest, as applicable, that such Exchange shall be effected in compliance
with reasonable policies that the Managing Member may adopt or promulgate from time to time and advise the Members of in writing (including
policies requiring the use of designated administrators or brokers) in its reasonable discretion; provided, further, that
if such policies conflict with the terms of ARTICLE XI, the provisions of ARTICLE XI shall apply in lieu thereof to any
Exchange to the extent of such conflict.
(d)
Notwithstanding anything otherwise to the contrary in this Section 8.01, (i) a Member that is a natural person may Transfer all
or any portion of his or her Units without consideration to any member of his or her Family Group, (ii) a Member that is an entity may
Transfer all or any portion of its Units to any Affiliate of such Member (including any partner, shareholder or member controlling or
under common control with such Member and Affiliated investment fund or vehicle of such Member) and (iii) the Managing Member may implement
other policies and procedures to permit the Transfer of Units by the other Members for personal planning purposes and any such Transfer
effected in compliance with such policies and procedures shall not require the prior consent of the Managing Member, in the case of each
of (i), (ii) and (iii), in a Transfer that complies with Section 8.04.
8.02
Mandatory Exchanges. The Managing Member may in its sole discretion at any time and from time to time, without the consent of
any Member or other Person, cause to be Transferred to the Managing Member in an Exchange pursuant to ARTICLE XI any and all Units,
except for (a) Units held by any Member holding at least 5% of the Class A Percentage Interest or Class B Percentage Interest, as applicable
and (b) preferred Units. Any such determinations by the Managing Member need not be uniform and may be made selectively among Members,
whether or not such Members are similarly situated.
8.03
Encumbrances. No Member or Assignee may create an Encumbrance with respect to all or any portion of its Units (or any beneficial
interest therein) other than Encumbrances that run in favor of the Member unless the Managing Member consents in writing thereto, which
consent may be given or withheld, or made subject to such conditions as are determined by the Managing Member, in the Managing Member’s
sole discretion. Consent of the Managing Member shall be withheld until the holder of the Encumbrance acknowledges the terms and conditions
of this Agreement. Any purported Encumbrance that is not in accordance with this Agreement shall be, to the fullest extent permitted
by law, null and void.
8.04
Further Restrictions.
(a)
Units issued from time to time after the date of this Agreement, including Units issued under equity incentive plans of the Company or
the Managing Member (or upon settlement of awards granted under such plans), may be subject to such additional or other terms and conditions,
including with regard to vesting, forfeiture, minimum retained ownership and Transfer, as may be agreed between the Managing Member and
the applicable Member and reflected in the books and records of the Company. Such requirements, provisions and restrictions need not
be uniform and may be waived or released by the Managing Member in its sole discretion with respect to all or a portion of the Units
owned by any one or more Members at any time and from time to time, and shall not constitute the breach of any duty hereunder or otherwise
existing at law, in equity or otherwise.
(b)
Notwithstanding any contrary provision in this Agreement, in no event may any Transfer of a Unit (other than in accordance with ARTICLE
XI) be made by any Member or Assignee if the Managing Member determines that:
(i)
such Transfer is made to any Person who lacks the legal right, power or capacity to own such Unit;
(ii)
except pursuant to an Exchange pursuant to ARTICLE XI, such Transfer would require the registration of such transferred Unit or
of any Class pursuant to any applicable U.S. federal or state securities laws (including, without limitation, the Securities Act or the
Exchange Act) or other non-U.S. securities laws (including Canadian provincial or territorial securities laws) or would constitute a
non-exempt distribution pursuant to applicable provincial or state securities laws;
(iii)
such Transfer would cause (A) all or any portion of the assets of the Company to (1) constitute “plan assets” (under ERISA,
the Code or any applicable Similar Law) of any existing or contemplated Member, or (2) be subject to the provisions of ERISA, Section
4975 of the Code or any applicable Similar Law, or (B) the Managing Member to become a fiduciary with respect to any existing or contemplated
Member, pursuant to ERISA, any applicable Similar Law, or otherwise;
(iv)
to the extent requested by the Managing Member, the Company does not receive such legal and/or tax opinions and written instruments (including,
without limitation, copies of any instruments of Transfer and such Assignee’s consent to be bound by this Agreement as an Assignee)
that are in a form reasonably satisfactory to the Managing Member; or
(v)
such Transfer would pose a material risk that the Company would be treated as a “publicly traded partnership”
within the meaning of Section 7704 of the Code and the regulations promulgated thereunder.
All
determinations with respect to this Section 8.04 shall be made by the Managing Member in its sole discretion; provided, however,
that all such determinations with respect to a Member holding at least 5% of the Class A Percentage Interest or Class B Percentage
Interest, as applicable, or a Member holding at least 5% of the aggregate number of Series A Preferred Units then owned by all
Members shall, in each case, be made by the Managing Member exercising its reasonable discretion.
(c)
In addition, notwithstanding any contrary provision in this Agreement, to the extent the Managing Member shall reasonably determine that
interests in the Company do not meet the requirements of Treasury Regulations Section 1.7704-1(h) (determined taking into account the
rules of Treasury Regulations Section 1.7704-1(h)(3); provided that, for such purpose, the Company and the Managing Member shall
assume that each Original Member is treated as a single partner within the meaning of Treasury Regulations Section 1.7704-1(h) (determined
taking into account the rules of Treasury Regulations Section 1.7704-1(h)(3)) unless otherwise required by applicable Law), the Managing
Member may impose such restrictions on the Transfer of Units or other interests in the Company as the Managing Member may reasonably
determine to be necessary or advisable so that the Company is not treated as a “publicly traded partnership”
within the meaning of Section 7704 of the Code and the regulations promulgated thereunder.
(d)
Transfers of Units (other than (i) pursuant to an Exchange pursuant to ARTICLE XI or (ii) a Transfer of preferred Units) that
are otherwise permitted by this ARTICLE VIII may only be made on the first day of a fiscal quarter of the Company, unless the
Managing Member otherwise agrees.
(e)
To the fullest extent permitted by law, any Transfer in violation of this ARTICLE VIII shall be deemed null and void ab initio
and of no effect.
(f)
Promptly following the occurrence of any Transfer, the Company shall cause Exhibit A hereto to be updated to reflect the occurrence
of such Transfer.
8.05
Rights of Assignees. Subject to Section 8.04(b), the Transferee of any permitted Transfer pursuant to this ARTICLE VIII
will be an assignee only (“Assignee”), and only will receive, to the extent transferred, the distributions
and allocations of income, gain, loss, deduction, credit or similar item to which the Member which transferred its Units would be entitled,
and such Assignee will not be entitled or enabled to exercise any other rights or powers of a Member, such other rights, and all obligations
relating to, or in connection with, such interest remaining with the transferring Member. The transferring Member will remain a Member
even if it has transferred all of its Units to one or more Assignees until such time as the Assignee(s) is admitted to the Company as
a Member pursuant to Section 8.07.
8.06
Admissions, Resignations and Removals.
(a)
No Person may be admitted to the Company as an additional Managing Member or substitute Managing Member without the prior written consent
of each incumbent Managing Member, which consent may be given or withheld, or made subject to such conditions as are determined by each
incumbent Managing Member, in each case in the sole discretion of each incumbent Managing Member. A Managing Member will not be entitled
to resign as a Managing Member of the Company unless another Managing Member shall have been admitted hereunder (and not have previously
been removed or resigned).
(b)
No Member will be removed or entitled to resign from being a Member of the Company except in accordance with Section 8.08 hereof.
Any additional Managing Member or substitute Managing Member admitted as a Managing Member of the Company pursuant to this Section
8.06 is hereby authorized to, and shall, continue the Company without dissolution.
(c)
Except as otherwise provided in ARTICLE IX or the Act, no admission, substitution, resignation or removal of a Member will cause
the dissolution of the Company. To the fullest extent permitted by law, any purported admission, resignation or removal that is not in
accordance with this Agreement shall be null and void.
8.07
Admission of Assignees as Substitute Members. An Assignee will become a substitute Member only if and when each of the following
conditions is satisfied:
(a) the
Managing Member consents in writing to such admission, which consent may be given or withheld, or made subject to such conditions as
are determined by the Managing Member, in each case, in the Managing Member’s sole discretion; provided that with respect
to an Assignee of preferred Units, the Managing Member shall not unreasonably withhold, condition or delay such consent;
(b) if
required by the Managing Member, the Managing Member receives written instruments (including, without limitation, copies of any instruments
of Transfer and such Assignee’s consent to be bound by this Agreement as a substitute Member) that are in a form satisfactory to
the Managing Member (as determined in its sole discretion, in the case of an Assignee of Units other than preferred Units, and as reasonably
determined by the Managing Member, in the case of preferred Units);
(c)
if required by the Managing Member, the Managing Member receives an opinion of counsel satisfactory to the Managing Member to the effect
that such Transfer is in compliance with this Agreement and all applicable Law; and
(d)
if required by the Managing Member, the parties to the Transfer, or any one of them, pays all of the Company’s reasonable expenses
connected with such Transfer (including, but not limited to, the reasonable legal and accounting fees of the Company).
8.08
Resignation and Removal of Members. Subject to Section 8.05, if a Member (other than the Managing Member) ceases to hold
any Units then such Member shall cease to be a Member and to have the power to exercise any rights or powers of a member of the Company,
and shall be deemed to have resigned from the Company.
8.09
Withholding. In the event any transfer is permitted pursuant to this ARTICLE VIII, the transferring parties shall demonstrate
to the satisfaction of the Managing Member either that no withholding is required in connection with such transfer under applicable U.S.
federal, state, local or non-U.S. law (including under Section 1445 or 1446 of the Code) or that any amounts required to be withheld
in connection with such transfer under applicable U.S. federal, state, local or non-U.S. law (including under Section 1446 of the Code,
other than by reason of Section 1446(f)(4)) have been so withheld.
8.10
Allocations in Respect of Transferred Units. Profits or Losses shall be allocated to the Members of the Company so as to take
into account the varying interests of the Members in the Company using an “interim closing of the books” method in a manner
that complies with the provisions of Section 706 of the Code and the Treasury Regulations thereunder. If during any taxable year there
is any other change in any Member’s Units in the Company, the Company shall allocate the Profits or Losses to the Members of the
Company so as to take into account the varying interests of the Members in the Company using an “interim closing of the books”
method in a manner that complies with the provisions of Section 706 of the Code and the Treasury Regulations thereunder; provided,
however, that such allocations may instead be made in another manner that complies with the provisions of Section 706 of the Code
and the Treasury Regulations thereunder and that is selected by the Managing Member in consultation with the Original Member Representative.
ARTICLE
IX
DISSOLUTION,
LIQUIDATION AND TERMINATION
9.01
No Dissolution. Except as required by the Act, the Company shall not be dissolved by the admission of additional Members or resignation
of Members in accordance with the terms of this Agreement. The Company may be dissolved, liquidated, wound up and terminated only pursuant
to the provisions of this ARTICLE IX, and the Members hereby irrevocably waive any and all other rights they may have to cause
a dissolution of the Company or a sale or partition of any or all of the Company assets.
9.02
Events Causing Dissolution. The Company shall be dissolved and its affairs shall be wound up upon the occurrence of any of the
following events:
(a)
the entry of a decree of judicial dissolution of the Company under Section 18-802 of the Act upon the finding by a court of competent
jurisdiction that it is not reasonably practicable to carry on the business of the Company in conformity with this Agreement;
(b)
any event which makes it unlawful for the business of the Company to be carried on by the Members;
(c)
the written consent of all Members;
(d)
at any time there are no Members, unless the Company is continued in accordance with the Act; or
(e)
the determination of the Managing Member in its reasonable discretion; provided that in the event of a dissolution pursuant to
this clause (e), the relative economic rights of each Class of Units immediately prior to such dissolution shall be preserved to the
greatest extent practicable with respect to distributions made to Members pursuant to Section 9.03 below in connection with the
winding up of the Company, taking into consideration tax and other legal constraints that may adversely affect one or more parties hereto
and subject to compliance with applicable laws and regulations, unless, and to the extent that, with respect to any Class of Units, holders
of not less than 90% of the Units of such Class consent in writing to a treatment other than as described above.
9.03
Distribution upon Dissolution. Upon dissolution, the Company shall not be terminated and shall continue until the winding up of
the affairs of the Company is completed. Upon the winding up of the Company, the Managing Member, or any other Person designated by the
Managing Member (the “Liquidation Agent”), shall take full account of the assets and liabilities of the Company
and shall, unless the Managing Member determines otherwise, liquidate the assets of the Company as promptly as is consistent with obtaining
the fair value thereof. The proceeds of any liquidation shall be applied and distributed in the following order:
(a)
First, to the satisfaction of debts and liabilities of the Company (including satisfaction of all indebtedness to Members and/or their
Affiliates to the extent otherwise permitted by law) including the expenses of liquidation, and including the establishment of any reserve
which the Liquidation Agent shall deem reasonably necessary for any contingent, conditional or unmatured contractual liabilities or obligations
of the Company (“Contingencies”). Any such reserve may be paid over by the Liquidation Agent to any attorney-at-law,
or acceptable party, as escrow agent, to be held for disbursement in payment of any Contingencies and, at the expiration of such period
as shall be deemed advisable by the Liquidation Agent for distribution of the balance in the manner hereinafter provided in this Section
9.03; and
(b)
The balance, if any, to the Members in accordance with Section 4.02.
9.04
Time for Liquidation. A reasonable amount of time shall be allowed for the orderly liquidation of the assets of the Company and
the discharge of liabilities to creditors so as to enable the Liquidation Agent to minimize the losses attendant upon such liquidation.
9.05
Termination. The Company shall terminate when all of the assets of the Company, after payment of or due provision for all debts,
liabilities and obligations of the Company, shall have been distributed to the holders of Units in the manner provided for in this ARTICLE
IX, and the Certificate shall have been cancelled in the manner required by the Act.
9.06
Claims of the Members. The Members shall look solely to the Company’s assets for the return of their Capital Contributions,
and if the assets of the Company remaining after payment of or due provision for all debts, liabilities and obligations of the Company
are insufficient to return such Capital Contributions, the Members shall have no recourse against the Company or any other Member or
any other Person. No Member with a negative balance in such Member’s Capital Account shall have any obligation to the Company or
to the other Members or to any creditor or other Person to restore such negative balance during the existence of the Company, upon dissolution
or termination of the Company or otherwise, except to the extent required by the Act.
9.07
Survival of Certain Provisions. Notwithstanding anything to the contrary in this Agreement, the provisions of Sections 5.07,
10.01, 10.02, 12.09 and 12.10 shall survive the termination of the Company.
ARTICLE
X
LIABILITY
AND INDEMNIFICATION
10.01
Liability of Members.
(a)
No Member and no Affiliate, manager, member, employee or agent of a Member shall be liable for any debt, obligation or liability of the
Company or of any other Member or have any obligation to restore any deficit balance in its Capital Account solely by reason of being
a Member of the Company, except to the extent required by the Act.
(b)
This Agreement is not intended to, and does not, create or impose any duty (including any fiduciary duty) on any of the Members (including,
without limitation, the Managing Member) hereto or on their respective Affiliates. Further, notwithstanding any other provision of this
Agreement or any duty otherwise existing at law or in equity, the parties hereto agree that (i) no Member shall, to the fullest extent
permitted by law, have duties (including fiduciary duties) to any other Member or to the Company, and in doing so, recognize, acknowledge
and agree that their duties and obligations to one another and to the Company are only as expressly set forth in this Agreement and (ii)
the Managing Member shall not, to the fullest extent permitted by law, have duties (including fiduciary duties) to any Member or to the
Company; provided, however, that each Member and each Manager shall have the duty to act in accordance with the implied contractual
covenant of good faith and fair dealing.
(c)
To the extent that, at law or in equity, any Member (including without limitation, the Managing Member) has duties (including fiduciary
duties) and liabilities relating thereto to the Company, to another Member or to another Person who is a party to or is otherwise bound
by this Agreement, the Members (including without limitation, the Managing Member) acting under this Agreement will not be liable to
the Company, to any such other Member or to any such other Person who is a party to or is otherwise bound by this Agreement, for their
good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict or eliminate
the duties and liabilities relating thereto of any Member (including, without limitation, the Managing Member) otherwise existing at
law or in equity, are agreed by the Members to replace to that extent such other duties and liabilities of the Members relating thereto
(including without limitation, the Managing Member).
(d)
The Managing Member may consult with legal counsel, accountants and financial or other advisors selected by it, and any act or omission
taken by the Managing Member on behalf of the Company or in furtherance of the interests of the Company in good faith in reliance upon
and in accordance with the advice of such Person as to matters the Managing Member reasonably believes to be within such Person’s
professional or expert competence shall be conclusively presumed to have been done or omitted in good faith and in accordance with such
opinion or advice, and the Managing Member will be fully protected in so acting or omitting to act so long as such counsel or accountants
or financial or other advisors were selected with reasonable care.
(e)
Notwithstanding any other provision of this Agreement or otherwise applicable provision of law or equity, whenever in this Agreement
the Managing Member is permitted or required to make a decision (i) in its “sole discretion” or under a grant of similar
authority or latitude, the Managing Member shall be entitled to consider such interests and factors as the Managing Member desires, including
its own interests, and shall, to the fullest extent permitted by applicable Law, have no duty or obligation to give any consideration
to any interest of or factors affecting the Company or the Members, or (ii) in its “good faith” or under another expressed
standard, the Managing Member shall act under such express standard and shall not be subject to any other or different standards.
10.02
Indemnification.
(a)
Exculpation and Indemnification. Notwithstanding any other provision of this Agreement, whether express or implied, to the fullest
extent permitted by law, no Indemnitee shall be liable to the Company or any Member for any act or omission in relation to the Company
or this Agreement or any transaction contemplated hereby taken or omitted by an Indemnitee unless such Indemnitee’s conduct constituted
fraud, bad faith or willful misconduct. To the fullest extent permitted by law, as the same exists or hereafter be amended (but in the
case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than
such law permitted the Company to provide prior to such amendment), the Company shall indemnify any Indemnitee who was or is made or
is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought
in the right of the Company or otherwise), whether civil, criminal, administrative, arbitrative or investigative, and whether formal
or informal (hereinafter a “Proceeding”), including appeals, by reason of his, her or its status as an Indemnitee
or by reason of any action alleged to have been taken or omitted to be taken by Indemnitee in such capacity, for and against all loss
and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred
by such Indemnitee in connection with such action, suit or proceeding, including appeals; provided that such Indemnitee shall
not be entitled to indemnification hereunder if, but only to the extent that, such Indemnitee’s conduct constituted fraud, bad
faith or willful misconduct. Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company
shall be required to indemnify an Indemnitee in connection with any action, suit or proceeding (or part thereof) (i) commenced by such
Indemnitee only if the commencement of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing
Member, and (ii) by or in the right of the Company only if the Managing Member has provided its prior written consent. The indemnification
of an Indemnitee of the type identified in clause (e) of the definition of Indemnitee shall be secondary to any and all indemnification
to which such Indemnitee is entitled from the relevant other Person (including any payment made to such Indemnitee under any insurance
policy issued to or for the benefit of such Person or Indemnitee) (the “Primary Indemnification”), and will
only be paid to the extent the Primary Indemnification is not paid and/or does not provide coverage (e.g., a self- insured retention
amount under an insurance policy). No such Person shall be entitled to contribution or indemnification from or subrogation against the
Company. The indemnification of any other Indemnitee shall, to the extent not in conflict with such policy, be secondary to any and all
payment to which such Indemnitee is entitled from any relevant insurance policy issued to or for the benefit of the Company or any Indemnitee.
(b)
Advancement of Expenses. To the fullest extent permitted by law, the Company shall promptly pay reasonable expenses (including
attorneys’ fees) incurred by any Indemnitee in appearing at, participating in or defending any Proceeding in advance of the final
disposition of such Proceeding, including appeals, upon presentation of an undertaking on behalf of such Indemnitee to repay such amount
if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified under this Section 10.02 or otherwise.
Notwithstanding the preceding sentence, except as otherwise provided in Section 10.02(c), the Company shall be required to pay
expenses of an Indemnitee in connection with any Proceeding (or part thereof) (i) commenced by such Indemnitee only if the commencement
of such action, suit or proceeding (or part thereof) by such Indemnitee was authorized by the Managing Member and (ii) by or in the right
of the Company only if the Managing Member has provided its prior written consent.
(c)
Unpaid Claims. If a claim for indemnification (following the final disposition of such Proceeding) or advancement of expenses
under this Section 10.02 is not paid in full within 30 days after a written claim therefor by any Indemnitee has been received
by the Company, such Indemnitee may file proceedings to recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such action the Company shall have the burden of proving that
such Indemnitee is not entitled to the requested indemnification or advancement of expenses under applicable Law.
(d)
Insurance. (i) To the fullest extent permitted by law, the Company may purchase and maintain insurance on behalf of any person
described in Section 10.02(a) against any liability asserted against such person, whether or not the Company would have the power
to indemnify such person against such liability under the provisions of this Section 10.02 or otherwise.
(i)
In the event of any payment by the Company under this Section 10.02, the Company shall be subrogated to the extent of such payment
to all of the rights of recovery of the Indemnitee from any relevant other Person or under any insurance policy issued to or for the
benefit of the Company, such relevant other Person, or any Indemnitee. Each Indemnitee agrees to execute all papers required and take
all action necessary to secure such rights, including the execution of such documents as are necessary to enable the Company to bring
suit to enforce any such rights in accordance with the terms of such insurance policy or other relevant document. The Company shall pay
or reimburse all expenses actually and reasonably incurred by the Indemnitee in connection with such subrogation.
(ii)
The Company shall not be liable under this Section 10.02 to make any payment of amounts otherwise indemnifiable hereunder (including,
but not limited to, judgments, fines and amounts paid in settlement, and excise taxes with respect to an employee benefit plan or penalties)
if and to the extent that the applicable Indemnitee has otherwise actually received such payment under this Section 10.02 or any
insurance policy, contract, agreement or otherwise.
(e)
Non-Exclusivity of Rights. The provisions of this Section 10.02 shall be applicable to all actions, claims, suits or proceedings
made or commenced after the date of this Agreement, whether arising from acts or omissions to act occurring before or after its adoption.
The provisions of this Section 10.02 shall be deemed to be a contract between the Company and each person entitled to indemnification
under this Section 10.02 (or legal representative thereof) who serves in such capacity at any time while this Section 10.02
and the relevant provisions of applicable Law, if any, are in effect, and any amendment, modification or repeal hereof shall not
affect any rights or obligations then existing with respect to any state of facts or any action, suit or proceeding then or theretofore
existing, or any action, suit or proceeding thereafter brought or threatened based in whole or in part on any such state of facts. If
any provision of this Section 10.02 shall be found to be invalid or limited in application by reason of any law or regulation,
it shall not affect the validity of the remaining provisions hereof. The rights of indemnification provided in this Section 10.02
shall neither be exclusive of, nor be deemed in limitation of, any rights to which any person may otherwise be or become entitled
or permitted by contract, this Agreement or as a matter of law, both as to actions in such person’s official capacity and actions
in any other capacity, it being the policy of the Company that indemnification of any person whom the Company is obligated to indemnify
pursuant to Section 10.02(a) shall be made to the fullest extent permitted by law.
For
purposes of this Section 10.02, references to “other enterprises” shall include employee benefit plans; references
to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to
“serving at the request of the Company” shall include any service as a director, officer, employee or agent of the Company
which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan,
its participants, or beneficiaries.
This
Section 10.02 shall not limit the right of the Company, to the extent and in the manner permitted by law, to indemnify and to
advance expenses to, and purchase and maintain insurance on behalf of, persons other than persons described in Section 10.02(a).
ARTICLE
XI
EXCHANGE OF PAIRED INTERESTS
11.01
Exchange Procedure.
(a)
From and after 180 days following the date of the consummation of the transactions described in the Managing Member’s Registration
Statement on Form S-4 (File No. 333-262583), each holder of Class B Units (other than the Managing Member) (each, a “Holder”)
shall be entitled, upon the terms and subject to the conditions of this ARTICLE XI, to surrender such Holder’s Paired Interests
to the Company in exchange for the delivery of the Stock Exchange Payment or, at the election of the Managing Member, the Cash Exchange
Payment (such exchange, a “Redemption” and, together with a Direct Exchange (as defined below), an “Exchange”);
provided that, absent a waiver by the Managing Member, any such Exchange is for a minimum of the lesser of (i) 100,000 Class B
Units (which minimum shall be equitably adjusted in accordance with any adjustments to the Exchange Rate) and (ii) all of the Class B
Units held by such Holder.
(b)
Each Holder shall exercise its right to make an Exchange as set forth in Section 11.01(a) by delivering to the Company, with a
copy to the Managing Member, a written election of exchange in respect of the Paired Interests to be exchanged substantially in the form
of Exhibit B hereto (an “Exchange Notice”) in accordance with this Section 11.01(b). A Holder
may deliver an Exchange Notice with respect to an Unrestricted Exchange at any time, and, in any other case, during the Quarterly Exchange
Notice Period preceding the desired Exchange Date. An Exchange Notice with respect to an Unrestricted Exchange may specify that the Exchange
is to be contingent (including as to timing) upon, among other things, (i) the consummation of a purchase by another Person (whether
in a tender or exchange offer, an underwritten offering or otherwise) of the shares of Class A Common Stock or Class C Common Stock into
which the Exchanged Units are exchangeable, or contingent (including as to timing) upon the closing of an announced merger, consolidation
or other transaction or event in which such shares of Class A Common Stock or Class C Common Stock would be exchanged or converted or
become exchangeable for or convertible into, cash or other securities or property, (ii) the filing and substantially concurrent effectiveness
of a resale registration statement if the applicable Holder possesses registration rights, and (iii) no Exchange Blackout Period being
in effect on the Exchange Date. Notwithstanding anything to the contrary contained in this ARTICLE XI, if, in connection with
an Exchange in accordance with this Section 11.01, a filing is required under the HSR Act, then the Exchange Date with respect
to all Exchanged Units which would be exchanged into shares of Class A Common Stock or Class C Common Stock resulting from such Exchange
shall be delayed until the earlier of (i) such time as the required filing under the HSR Act has been made and the waiting period applicable
to such Exchange under the HSR Act shall have expired or been terminated or (ii) such filing is no longer required, at which time such
Exchange shall automatically occur without any further action by the holders of any such Exchanged Units. Each Holder and the Managing
Member agree to promptly take all actions required to make such filing under the HSR Act and the filing fee for such filing shall be
paid by the Managing Member.
(c)
Within three (3) Business Days of the giving of an Exchange Notice, the Managing Member, on behalf of the Company, may elect to settle
all or a portion of the Exchange in cash in an amount equal to the Cash Exchange Payment (in lieu of shares of Class A Common Stock)
by giving written notice of such election to the Exchanging Member within such three (3) Business Day period (such notice, the “Cash
Exchange Notice”). The Cash Exchange Notice shall set forth the portion of the Exchanged Units which will be exchanged
for cash in lieu of Class A Common Stock. Any portion of the Exchange not settled for a Cash Exchange Payment shall be settled for a
Stock Exchange Payment.
(d)
The Exchanging Member may elect to retract its Exchange Notice with respect to an Unrestricted Exchange by giving written notice of such
election to the Company, with a copy to the Managing Member, no later than one Business Day prior to the Exchange Date. Subject to the
last two sentences of this Section 11.01(d), if, in the case of an Exchange that is not an Unrestricted Exchange, the Cash Exchange
Class A 5-Day VWAP (determined treating the final date of such period as the Exchange Date) decreases by more than 10% from the Cash
Exchange Class A 5-Day VWAP (determined treating the final date of such period as the date of delivery of an Exchange Notice), the Exchanging
Member may elect to retract its Exchange Notice by giving written notice of such election (a “Restricted Retraction Notice”)
to the Company, with a copy to the Managing Member, no later than three Business Days prior to the Exchange Date. The giving of any notice
pursuant to this Section 11.01(d) shall terminate all of the Exchanging Member’s, the Managing Member’s and the Company’s
rights and obligations under this ARTICLE XI arising from the retracted Exchange Notice (but not, for the avoidance of doubt,
from any Exchange Notice not retracted or that may be delivered in the future). An Exchanging Member may deliver a Restricted Retraction
Notice only once in every 12-month period (and any additional Restricted Retraction Notice delivered by such Exchanging Member within
such 12- month period shall be deemed null and void ab initio and ineffective with respect to the revocation of the Exchange specified
therein). An Exchanging Member who revokes an Exchange pursuant to a Restricted Retraction Notice may not participate in the Exchange
to occur on the next Quarterly Exchange Date immediately following the Quarterly Exchange Date with respect to which the Restricted Retraction
Notice pertains.
(e)
Notwithstanding anything to the contrary in this ARTICLE XI, if the Managing Member closes an underwritten distribution of the
shares of Class A Common Stock and the Members (other than, or in addition to, the Managing Member) were entitled to resell shares of
Class A Common Stock in connection therewith (by the exercise by such Members of Exchange rights or otherwise) (a “Secondary
Offering”), then the immediately succeeding Quarterly Exchange Date shall be automatically cancelled and of no force or
effect (and no Member shall be entitled to exercise its Exchange right or deliver a Quarterly Exchange Date Notice with respect to an
Exchange that is not an Unrestricted Exchange in respect of such Quarterly Exchange Date). Notwithstanding anything to the contrary in
this ARTICLE XI, (i) for so long as the Company does not meet the requirements of the Private Placement Safe Harbor, any Secondary
Offering (other than that pursuant to which all Exchanges are Unrestricted Exchanges) shall only be undertaken if, during the applicable
taxable year, the total number of Quarterly Exchange Dates and prior Secondary Offerings (other than any pursuant to which all Exchanges
are Unrestricted Exchanges) on which Exchanges occur is three or fewer and (ii) the Company and the Managing Member on shall not be deemed
to have failed to comply with their respective obligations under the Investor Rights Agreement (as defined in the Business Combination
Agreement) if a Secondary Offering cannot be undertaken due to the restriction set forth in the preceding clause (i).
11.02
Exchange Payment.
(a)
The Exchange shall be consummated on the Exchange Date.
(b)
On the Exchange Date (to be effective immediately prior to the close of business on the Exchange Date), in the case of a Redemption,
(i) the Managing Member shall contribute to the Company, for delivery to the Exchanging Member, (A) the Stock Exchange Payment with respect
to any Exchanged Units not subject to a Cash Exchange Notice and (B) the Cash Exchange Payment with respect to any Exchanged Units subject
to a Cash Exchange Notice, (ii) the Exchanging Member shall transfer and surrender the Exchanged Units to the Company (provided that
the Exchanging Member shall surrender the corresponding number of shares of Class B Common Stock or Class D Common Stock to the Managing
Member and the Managing Member shall cancel such shares) free and clear of all liens and encumbrances, (iii) the Company shall issue
to the Managing Member a number of Class A Units equal to the number of Exchanged Units surrendered pursuant to clause (ii), (iv) solely
to the extent necessary in connection with a Redemption, the Managing Member shall undertake all actions, including an issuance, reclassification,
distribution, division or recapitalization, with respect to the Class A Common Stock to maintain a one-to-one ratio between the number
of Class A Units owned by the Managing Member, directly or indirectly, and the number of outstanding shares of Class A Common Stock and
Class C Common Stock, taking into account the issuance in clause (iii), any Stock Exchange Payment, and any other action taken in connection
with this Section 11.02 and (v) the Company shall (A) cancel the redeemed Exchanged Units and (B) transfer to the Exchanging Member
the Cash Exchange Payment and/or the Stock Exchange Payment, as applicable.
(c)
On the Exchange Date (to be effective immediately prior to the close of business on the Exchange Date), in the case of a Direct Exchange,
(i) the Managing Member shall deliver to the Exchanging Member, (A) the Stock Exchange Payment with respect to any Exchanged Units not
subject to a Cash Exchange Notice and (B) the Cash Exchange Payment with respect to any Exchanged Units subject to a Cash Exchange Notice,
(ii) the Exchanging Member shall transfer to the Managing Member the Exchanged Units and the corresponding shares of Class B Common Stock
or Class D Common Stock or any combination thereof (it being understood that the Managing Member shall cancel the surrendered shares
of Class B Common Stock or Class D Common Stock), free and clear of all liens and encumbrances, and (iii) solely to the extent necessary
in connection with a Direct Exchange, the Managing Member shall undertake all actions, including an issuance, reclassification, distribution,
division or recapitalization, with respect to the shares of Class A Common Stock and Class C Common Stock to maintain a one-to-one ratio
between the number of Class A Units owned by the Managing Member, directly or indirectly, and the number of outstanding shares of Class
A Common Stock and Class C Common Stock, any Stock Exchange Payment, and any other action taken in connection with this Section 11.02.
11.03
Expenses and Restrictions.
(a)
Except as expressly set forth in this ARTICLE XI, the Company, the Managing Member and each Exchanging Member shall bear its own
expenses in connection with the consummation of any Exchange, whether or not any such Exchange is ultimately consummated, except that
the Company shall bear transfer taxes, stamp taxes or duties, or other similar taxes in connection with, or arising by reason of, any
Exchange; provided, however, that if any shares of Class A Common Stock are to be delivered in a name other than that of
the Exchanging Member that requested the Exchange, then such Exchanging Member and/or the Person in whose name such shares are to be
delivered shall pay to the Company the amount of any transfer taxes, stamp taxes or duties, or other similar taxes in connection with,
or arising by reason of, such Exchange or shall establish to the reasonable satisfaction of the Company that such tax has been paid or
is not payable.
(b)
Notwithstanding anything to the contrary herein, the Managing Member and the Company shall use commercially reasonable efforts to restrict
issuances of Units in an amount sufficient for the Company to be eligible for the Private Placement Safe Harbor and, to the extent that
the Managing Member or the Company determine that the Company does not meet the requirements of the Private Placement Safe Harbor at
any point in any taxable year, the Managing Member or the Company may impose such restrictions on Exchanges during such taxable year
as the Managing Member or the Company may determine to be necessary or advisable so that the Company is not treated as a “publicly
traded partnership” under Section 7704 of the Code. Notwithstanding anything to the contrary herein, no Exchange shall be permitted
(and, if attempted, shall be void ab initio) if, in the good faith determination of the Managing Member or the Company, such an
Exchange would pose a material risk that the Company would be a “publicly traded partnership” under Section 7704 of the Code.
(c)
For the avoidance of doubt, and notwithstanding anything to the contrary herein, a Holder shall not be entitled to effect an Exchange
to the extent the Managing Member determines that such Exchange (i) would be prohibited by law or regulation (including, without limitation,
the unavailability of any requisite registration statement filed under the Securities Act or any exemption from the registration requirements
thereunder) or (ii) would otherwise not be permitted under this Agreement or any other agreements with the Managing Member or its subsidiaries
to which such Holder may be party or any written policies of the Managing Member related to unlawful or inappropriate trading applicable
to its directors, officers or other personnel.
(d)
The Managing Member may adopt reasonable procedures for the implementation of the exchange provisions set forth in this ARTICLE XI,
including, without limitation, procedures for the giving of notice of an election of exchange.
11.04
Adjustment. The Exchange Rate shall be adjusted accordingly if there is: (a) any subdivision (by any unit split, unit distribution,
reclassification, reorganization, recapitalization or otherwise) or combination (by reverse unit split, reclassification, reorganization,
recapitalization or otherwise) of the Class A Units that is not accompanied by an identical subdivision or combination of the shares
of Class A Common Stock and the Class C Common Stock or (b) any subdivision (by any stock split, stock dividend or distribution, reclassification,
reorganization, recapitalization or otherwise) or combination (by reverse stock split, reclassification, reorganization, recapitalization
or otherwise) of the shares of Class A Common Stock and Class C Common Stock that is not accompanied by an identical subdivision or combination
of the Class A Units, in each case, except in connection with any such action pursuant to Section 11.02(b)(iv). If there is any
reclassification, reorganization, recapitalization or other similar transaction in which the shares Class A Common Stock or the Class
C Common Stock are converted or changed into another security, securities or other property, then upon any subsequent Exchange, an exchanging
Holder shall be entitled to receive the amount of such security, securities or other property that such exchanging Holder would have
received if such Exchange had occurred immediately prior to the effective time of such reclassification, reorganization, recapitalization
or other similar transaction, taking into account any adjustment as a result of any subdivision (by any split, distribution or dividend,
reclassification, reorganization, recapitalization or otherwise) or combination (by reverse split, reclassification, recapitalization
or otherwise) of such security, securities or other property that occurs after the effective time of such reclassification, reorganization,
recapitalization or other similar transaction. Except as may be required in the immediately preceding sentence, no adjustments in respect
of distributions shall be made upon the exchange of any Class B Unit.
11.05
Class A Common Stock and Class C Common Stock to be
Issued.
(a)
The Managing Member shall at all times reserve and keep available out of its authorized but unissued Class A Common Stock and Class C
Common Stock, solely for the purpose of issuance upon an Exchange, such number of shares of Class A Common Stock and Class C Common Stock
(as applicable) as may be deliverable upon any such Exchange; provided that nothing contained herein shall be construed to preclude
the Company from satisfying its obligations in respect of the Exchange of the Exchanged Units by delivery of shares of Class A Common
Stock or Class C Common Stock which are held in the treasury of the Managing Member or are held by the Company or any of their subsidiaries
or by delivery of purchased shares of Class A Common Stock or Class C Common Stock (which may or may not be held in the treasury of the
Managing Member or held by any subsidiary thereof), or by delivery of the Cash Exchange Payment. The Managing Member covenants that all
shares of Class A Common Stock and Class C Common Stock issued upon an Exchange will, upon issuance, be validly issued, fully paid and
non-assessable.
(b)
The Managing Member and the Company shall at all times ensure that the consummation by each of the Managing Member and the Company of
the transactions contemplated by this ARTICLE XI (including, without limitation, the issuance of shares of Class A Common Stock
and Class C Common Stock) have been duly authorized by all necessary corporate or limited liability company action, as the case may be,
on the part of the Managing Member and the Company, including, but not limited to, all actions necessary to ensure that the acquisition
of shares of Class A Common Stock and Class C Common Stock pursuant to the transactions contemplated hereby, to the fullest extent of
the Board’s power and authority and to the extent permitted by law, shall not be subject to the restrictions of any “moratorium,”
“control share acquisition,” “business combination,” “fair price” or other form of anti-takeover
laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the transactions contemplated by this
ARTICLE XI.
(c)
The Managing Member and the Company agree that, to the extent that a registration statement under the Securities Act is effective and
available for shares of Class A Common Stock to be delivered with respect to any Exchange, shares of Class A Common Stock that have been
registered under the Securities Act shall be delivered in respect of such Exchange. In the event that any Exchange in accordance with
this ARTICLE XI is to be effected at a time when any required registration has not become effective or otherwise is unavailable,
upon the request and with the reasonable cooperation of the Holder requesting such Exchange, the Managing Member and the Company shall
use commercially reasonable efforts to promptly facilitate such Exchange pursuant to any reasonably available exemption from such registration
requirements. The Managing Member shall use commercially reasonable efforts to list the shares of Class A Common Stock required to be
delivered upon any Exchange prior to such delivery upon each national securities exchange or inter-dealer quotation system upon which
the outstanding Class A Common Stock may be listed or traded at the time of such delivery.
11.06
Direct Exchange. Notwithstanding anything to the contrary in this ARTICLE XI, the Managing Member may, in its sole and
absolute discretion, elect to effect on the Exchange Date the Exchange of Exchanged Units for the Cash Exchange Payment and/or the Stock
Exchange Payment, as the case may be (and subject to the terms of Sections 11.02(b) and 11.02(c)), through a direct exchange
of such Exchanged Units and with such consideration between the Exchanging Member and the Managing Member (a “Direct Exchange”).
Upon such Direct Exchange pursuant to this Section 11.06, the Managing Member shall acquire the Exchanged Units and shall be treated
for all purposes of this Agreement as the owner of such Exchanged Units; provided that any such election by the Managing Member
shall not relieve the Company of its obligation arising with respect to the applicable Exchange Notice. The Managing Member may, at any
time prior to an Exchange Date, deliver written notice (a “Direct Exchange Election Notice”) to the Company
and the applicable Exchanging Member setting forth its election to exercise its right to consummate a Direct Exchange; provided that
such election does not prejudice the ability of the parties to consummate an Exchange or Direct Exchange on the Exchange Date. A Direct
Exchange Election Notice may be revoked by the Managing Member at any time; provided that any such revocation does not prejudice
the ability of the parties to consummate an Exchange or Direct Exchange on the Exchange Date. The right to consummate a Direct Exchange
in all events shall be exercisable for all the Exchanged Units that would otherwise have been subject to an Exchange. Except as otherwise
provided in this Section 11.06, a Direct Exchange shall be consummated pursuant to the same timeframe and in the same manner as
the relevant Exchange would have been consummated had the Managing Member not delivered a Direct Exchange Election Notice.
11.07
Corporation Offer or Change of Control.
(a)
In the event that a tender offer, share exchange offer, issuer bid, take-over bid, recapitalization or similar transaction with respect
to the shares of Class A Common Stock and Class C Common Stock (a “Corporation Offer”) is proposed by the Managing
Member or is proposed to the Managing Member or its stockholders and approved by the Board or is otherwise effected or to be effected
with the consent or approval of the Board or the Managing Member will undergo a Change of Control, the Holders shall be permitted to
deliver an Exchange Notice (which Exchange Notice shall be effective immediately prior to the consummation of such Corporation Offer
or Change of Control (and, for the avoidance of doubt, shall be contingent upon such Corporation Offer or Change of Control and not be
effective if such Corporation Offer or Change of Control is not consummated)). In the case of a Corporation Offer proposed by the Managing
Member, the Managing Member shall use its reasonable best efforts to expeditiously and in good faith take all such actions and do all
such things as are necessary or desirable to enable and permit the Holders to participate in such Corporation Offer to the same extent
or on an economically equivalent basis as the holders of shares of Class A Common Stock or Class C Common Stock without discrimination.
(b)
The Managing Member shall send written notice to the Company and the Holders at least 30 days prior to the closing of the transactions
contemplated by any Corporation Offer or the date of Change of Control notifying them of their rights pursuant to this Section 11.07
and setting forth (i) in the case of a Corporation Offer, (A) a copy of the written proposal or agreement pursuant to which such
Corporation Offer will be effected, (B) the consideration payable in connection therewith, (C) the terms and conditions of transfer and
payment and (D) the date and location of and procedures for selling Units or (ii) in the case of a Change of Control, (A) a description
of the event constituting such Change of Control, (B) the date of such Change of Control and (C) a copy of any written proposals or agreement
relating thereto. In the event that the information set forth in such notice changes from that set forth in the initial notice, a subsequent
notice shall be delivered by the Managing Member no less than seven days prior to the closing of the Corporation Offer or date of the
Change of Control.
11.08
Specific Performance. The Company and the Members (including the Managing Member) agree that irreparable damage would occur in
the event that any of the provisions of this ARTICLE XI were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that such parties shall be entitled to specific performance of the terms and provisions hereof, in
addition to any other remedy to which they are entitled at law or in equity.
11.09
Tax Treatment. As required by the Code and the Treasury Regulations promulgated thereunder, the Managing Member, the Company and
the applicable Exchange Member shall report any Exchange relating to such Exchange Member consummated hereunder as a taxable sale of
the Exchanged Units (together with an equal number of shares of Class B Common Stock or Class D Common Stock) to the Managing Member
in exchange for (a) the payment by the Managing Member of the Stock Exchange Payment, the Cash Exchange Payment, or other applicable
consideration to the Exchanging Member and, if applicable, (b) corresponding payments under the Tax Receivable Agreement, and no such
party shall take a contrary position on any income tax return, amendment thereof or communication with a taxing authority unless an alternate
position is permitted under the Code and Treasury Regulations promulgated thereunder and the Managing Member consents in writing (such
consent not to be unreasonably withheld, conditioned or delayed). Further, in connection with any Exchange consummated hereunder, the
Company and/or the Managing Member shall use commercially reasonable efforts to provide the exchanging Holder with all reasonably necessary
information to enable the exchanging Holder to file its income tax returns for the taxable year that includes such Exchange, including
information with respect to Section 751 of the Code assets (including relevant information regarding “unrealized receivables”
or “inventory items”) and Section 743(b) of the Code basis adjustments (in each case, including estimates) as soon as reasonably
practicable and in all events the Company and/or the Managing Member shall provide such information within 90 days following the close
of such taxable year. Within 30 days following the Exchange Date, the Managing Member shall deliver a Section 743 of the Code notification
to the Company in accordance with Treasury Regulations Section 1.743-1(k)(2).
11.10
Withholding. The Managing Member and the Company shall be entitled to deduct and withhold from any payments made to an Exchanging
Member pursuant to any Exchange consummated under this ARTICLE XI all Taxes that each of the Managing Member and the Company is
required to deduct and withhold with respect to such payments under the Code (and any other provision of applicable law, including, without
limitation, under Section 1445 and Section 1446(f) of the Code). In connection with any Exchange, the Exchanging Member shall, to the
extent it is legally entitled to deliver such form, deliver to the Managing Member or the Company, as applicable, a certificate, dated
as of the Exchange Date, in a form reasonably acceptable to the Managing Member, certifying as to such Exchanging Member’s taxpayer
identification number and that such Exchanging Member is a not a foreign person for purposes of Section 1445 and Section 1446(f) of the
Code (which certificate may be an Internal Revenue Service Form W-9 if then sufficient for such purposes under applicable law) (such
certificate, a “Non-Foreign Person Certificate”). If an Exchanging Member is unable to provide a Non-Foreign
Person Certificate in connection with an Exchange, then (a) such Exchanging Member shall provide a certificate substantially in the form
described in Treasury Regulations Section 1.1446(f)- 2(c)(2)(ii)(B) or (b) the Company shall deliver a certificate reasonably acceptable
to the Managing Member and substantially in the form described in Treasury Regulations Section 1.1446(f)- 2(c)(2)(ii)(C), in each case,
setting forth the liabilities of the Company allocated to the Exchanged Units subject to the Exchange under Section 752 of the Code,
and the Managing Member or the Company, as applicable, shall be permitted to withhold on the amount realized by such Exchanging Member
in respect of such Exchange as provided in Section 1446(f) of the Code and the Treasury Regulations promulgated thereunder. The Managing
Member or the Company, as applicable, may at their sole discretion reduce the number of shares of Class A Common Stock or Class C Common
Stock issued to a Holder in an Exchange in an amount that corresponds to the amount of the required withholding described in the immediately
preceding sentence and all such amounts shall be treated as having been paid to such Holder.
11.11
Independent Nature of Holders’ Rights and Obligations. The obligations of each Holder under this ARTICLE XI are several
and not joint with the obligations of any other Holder, and no Holder shall be responsible in any way for the performance of the obligations
of any other Holder under this ARTICLE XI. The decision of each Holder to enter into this Agreement has been made by such Holder
independently of any other Holder. Nothing contained in this ARTICLE XI, and no action taken by any Holder pursuant to this ARTICLE
XI, shall be deemed to constitute the Holders as a partnership, an association, a joint venture or any other kind of entity, or create
a presumption that the Holders are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated
by this ARTICLE XI. The Managing Member acknowledges that the Holders are not acting in concert or as a group under this ARTICLE
XI, and the Managing Member agrees that it shall not assert any such claim with respect to such obligations or the transactions contemplated
by this ARTICLE XI.
ARTICLE
XII
MISCELLANEOUS
12.01
Severability. If any term or other provision of this Agreement is held to be invalid, illegal or incapable of being enforced by
any rule of Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and
effect so long as the economic or legal substance of the transactions is not affected in any manner materially adverse to any party.
Upon a determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate
in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable
manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
12.02
Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in person, by courier service (delivery receipt requested), by electronic
mail or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the following addresses
(or at such other address for a party as shall be specified in a notice given in accordance with this Section 12.02):
| (a) | If
to the Company, to: |
Opal
Fuels LLC
One
North Lexington Avenue (14th Floor)
White
Plains, New York 10601
Attn:
General Counsel
with
a copy (which shall not constitute notice) to:
Opal
Fuels LLC
One
North Lexington Avenue (14th Floor)
White
Plains, New York 10601
Attn:
Chief Financial Officer
| (b) | If
to any Member, to such Member |
at
the address of such Member as set forth on Exhibit A hereto
12.03
Cumulative Remedies. The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy
by any party shall not preclude or waive its right to use any or all other remedies. Said rights and remedies are given in addition to
any other rights the parties may have by Law.
12.04
Binding Effect. This Agreement shall be binding upon and inure to the benefit of all of the parties and, to the extent permitted
by this Agreement, their successors, executors, administrators, heirs, legal representatives and assigns.
12.05
Interpretation. Throughout this Agreement, nouns, pronouns and verbs shall be construed as masculine, feminine, neuter, singular
or plural, whichever shall be applicable. Unless otherwise specified, all references herein to “Articles,” “Sections”
and paragraphs shall refer to corresponding provisions of this Agreement. Each party hereto acknowledges and agrees that the parties
hereto have participated collectively in the negotiation and drafting of this Agreement and that he, she or it has had the opportunity
to draft, review and edit the language of this Agreement; accordingly, it is the intention of the parties that no presumption for or
against any party arising out of drafting all or any part of this Agreement will be applied in any dispute relating to, in connection
with or involving this Agreement. Accordingly, the parties hereby waive to the fullest extent permitted by law the benefit of any rule
of law or any legal decision that would require that in cases of uncertainty, the language of a contract should be interpreted most strongly
against the party who drafted such language.
12.06
Counterparts. This Agreement may be executed and delivered (including by email or facsimile transmission) in one or more counterparts,
and by the different parties hereto in separate counterparts, each of which when executed and delivered shall be deemed to be an original
but all of which taken together shall constitute one and the same agreement. Copies of executed counterparts transmitted by telecopy
or other electronic transmission service shall be considered original executed counterparts for purposes of this Section 12.06.
12.07
Further Assurances. Each Member shall perform all other acts and execute and deliver all other documents as may be necessary or
appropriate to carry out the purposes and intent of this Agreement. In the event of any conflict between this Agreement and any Certificate
of Designations, unless otherwise expressly set forth in such Certificate of Designations, the Certificate of Designations shall control.
12.08
Entire Agreement; Construction. This Agreement constitutes the entire agreement among the parties hereto pertaining to the subject
matter hereof and supersedes all prior agreements and understandings, whether oral or written, pertaining thereto (including, without
limitation, the Existing Agreement).
12.09
Governing Law. This Agreement shall be governed by, and construed in accordance with, the law of the State of Delaware.
12.10
Submission to Jurisdiction; Waiver of Jury Trial.
(a)
Any and all disputes which cannot be settled amicably with respect to this Agreement, including any action (at law or in equity), claim,
litigation, suit, arbitration, hearing, audit, review, inquiry, proceeding or investigation or ancillary claims of any party, arising
out of, relating to or in connection with the validity, negotiation, execution, interpretation, performance or non-performance of this
Agreement or any matter arising out of or in connection with this Agreement and the rights and obligations arising hereunder or thereunder,
or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder or thereunder
brought by a party hereto or its successors or assigns, shall be brought and determined exclusively in the Delaware Chancery Court, if
such court shall not have jurisdiction, any federal court located in the State of Delaware, or, if neither of such courts shall have
jurisdiction, any other Delaware state court. Each of the parties hereby irrevocably submits with regard to any such dispute for itself
and in respect of its property, generally and unconditionally, to the sole and exclusive personal jurisdiction of the aforesaid courts
and agrees that it will not bring any dispute relating to this Agreement or any of the transactions contemplated by this Agreement in
any court other than the aforesaid courts. Each party irrevocably consents to service of process in any dispute in any of the aforesaid
courts by the mailing of copies thereof by registered or certified mail, postage prepaid, or by recognized overnight delivery service,
to such party at such party’s address referred to in Section 12.02. Each party hereby irrevocably and unconditionally waives,
and agrees not to assert as a defense, counterclaim or otherwise, in any action brought by any party with respect to this Agreement:
(i) any claim that it is not personally subject to the jurisdiction of the aforesaid courts for any reason other than the failure to
serve process in accordance with this Section 12.10; (ii) any claim that it or its property is exempt or immune from the jurisdiction
of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise); or (iii) any objection which such party may now or hereafter
have: (A) to the laying of venue of any of the aforesaid actions arising out of or in connection with this Agreement brought in the courts
referred to above; (B) that such action brought in any such court has been brought in an inconvenient forum; and (C) that this Agreement,
or the subject matter hereof or thereof, may not be enforced in or by such courts.
(b)
To the extent that any party has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself,
or to such party’s property, each such party hereby irrevocably waives such immunity in respect of such party’s obligations
with respect to this Agreement.
(c)
EACH PARTY ACKNOWLEDGES THAT IT IS KNOWINGLY AND VOLUNTARILY AGREEING TO THE CHOICE OF DELAWARE LAW TO GOVERN THIS AGREEMENT AND TO THE
JURISDICTION OF DELAWARE COURTS IN CONNECTION WITH PROCEEDINGS BROUGHT HEREUNDER. THE PARTIES INTEND THIS TO BE AN EFFECTIVE CHOICE OF
DELAWARE LAW AND AN EFFECTIVE CONSENT TO JURISDICTION AND SERVICE OF PROCESS UNDER 6 DEL. C. § 2708.
(d)
EACH PARTY, FOR ITSELF AND ITS AFFILIATES, HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING
TO THE ACTIONS OF THE PARTIES OR THEIR RESPECTIVE AFFILIATES PURSUANT TO THIS AGREEMENT OR THE OTHER ANCILLARY DOCUMENTS (AS DEFINED
IN THE BUSINESS COMBINATION AGREEMENT) IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF OR THEREOF.
12.11
Expenses. Except as otherwise specified in this Agreement, the Company shall be responsible for all costs and expenses, including,
without limitation, fees and disbursements of counsel, financial advisors and accountants, incurred by the Members and the Company in
connection with the preparation, negotiation, and operation of this Agreement.
12.12
Amendments and Waivers.
(a)
This Agreement (including the Annexes hereto) may be amended, supplemented, waived or modified by the Managing Member in its sole discretion
without the approval of any other Member or other Person so long as such amendment is executed and delivered to the Company by the Original
Member Representative; provided that in the event that (i) the Series A Preferred Units are converted into Class B Units pursuant
to the terms of the applicable Certificate of Designations and (ii) the holders of such converted Series A Preferred Units hold a majority
of the outstanding Class A Units and Class B Units combined (such holders, the “Converted Series A Holders”),
then (A) the execution and delivery to the Company of any amendment, supplement, waiver or modification by the Converted Series A Holders
shall be required (except as otherwise expressly set forth in this Agreement) and (B) the execution and the execution and delivery by
the Original Member Representative shall only be required with respect to any amendment, supplement, waiver or modification which amends,
supplements, waives or modifies the rights and privileges of the Original Member Representative as set forth in Sections 5.06,
5.08, 6.01(e), 8.10 and this 12.12; provided, further, that, (x) the Managing Member may, without
the written consent of any Member or any other Person, amend, supplement, waive or modify any provision of this Agreement, and execute,
swear to, acknowledge, deliver, file and record whatever documents may be required in connection therewith, to reflect: (1) any amendment,
supplement, waiver or modification that the Managing Member determines in its reasonable discretion to be necessary or appropriate in
connection with the creation, authorization or issuance of Units or any Class of equity interest in the Company pursuant to Section
7.01(b); (2) the admission, substitution, or withdrawal of Members in accordance with this Agreement, pursuant to Section 8.07;
(3) a change in the name of the Company, the location of the principal place of business of the Company, the registered agent of the
Company or the registered office of the Company; (4) any amendment, supplement, waiver or modification that the Managing Member determines
in its reasonable discretion to be necessary or appropriate to address changes in U.S. federal income tax regulations, legislation or
interpretation; and/or (5) a change in the Fiscal Year or taxable year of the Company and any other changes that the Managing Member
determines to be necessary or appropriate as a result of a change in the Fiscal Year or taxable year of the Company including a change
in the dates on which distributions are to be made by the Company and (y) ARTICLE XI of this Agreement may be amended or modified,
in whole or in part, only with the written consent of the Managing Member and the Members holding at least a majority of the then outstanding
Class B Units which are not subject to vesting and forfeiture. Notwithstanding the foregoing, no amendment, including any amendment effected
by way of merger, consolidation or transfer of all or substantially all the assets of the Company, may materially and adversely affect
the rights of a Class without the consent of a majority in interest of such Class. If an amendment has been approved in accordance with
this Agreement, such amendment shall be adopted and effective with respect to all Members. Upon obtaining such approvals as may be required
by this Agreement, and without further action or execution on the part of any other Member or other Person, any amendment to this Agreement
may be implemented and reflected in a writing executed solely by the Managing Member and the other Members shall be deemed a party to
and bound by such amendment. Notwithstanding the foregoing and any other provision of this Agreement, this Agreement (including the Annexes
hereto) may not be amended, supplemented, waived or modified, including any amendment effected by way of merger, consolidation or transfer
of all or substantially all the assets of the Company and its Subsidiaries, in a manner that requires the approval of the holders of
any Class created pursuant to a Certificate of Designations unless such approval is first obtained.
(b)
No failure or delay by any party in exercising any right, power or privilege hereunder (other than a failure or delay beyond a period
of time specified herein) 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)
Notwithstanding the requirements of Section 12.12(a), the Managing Member may, in its sole discretion, unilaterally amend this
Agreement on or before the effective date of the final regulations to provide for (i) the election of a safe harbor under Proposed Treasury
Regulations Section 1.83-3(l) (or any similar provision) under which the fair market value of a Company interest (or interest in an entity
treated as a partnership for U.S. federal income tax purposes) that is transferred is treated as being equal to the liquidation value
of that interest, (ii) an agreement by the Company and each of its Members to comply with all of the requirements set forth in such regulations
and Notice 2005-43 (and any other guidance provided by the Internal Revenue Service with respect to such election) with respect to all
Company interests (or interest in an entity treated as a partnership for U.S. federal income tax purposes) transferred in connection
with the performance of services while the election remains effective, (iii) the allocation of items of income, gains, deductions and
losses required by the final regulations similar to Proposed Treasury Regulations Sections 1.704-1(b)(4)(xii)(b), 1.704-1(b)(4)(xii)(c)
and 1.704- 1(b)(2)(iv)(b)(1) and (iv) any other related amendments.
(d)
Except as may be otherwise required by law in connection with the winding- up, liquidation, or dissolution of the Company, each Member
hereby irrevocably waives any and all rights that it may have to maintain an action for judicial accounting or for partition of any of
the Company’s property.
12.13
No Third Party Beneficiaries. This Agreement shall be binding upon and inure solely to the benefit of the parties hereto and their
permitted assigns and successors and nothing herein, express or implied, is intended to or shall confer upon any other Person or entity,
any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement (other than pursuant to
Section 10.02); provided, however, that each employee, officer, director, agent or indemnitee of any Person who is bound
by this Agreement or its Affiliates is an intended third party beneficiary of Section 12.10 and shall be entitled to enforce its
rights thereunder.
12.14
Headings. The headings and subheadings in this Agreement are included for convenience and identification only and are in no way
intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any provision hereof.
12.15
Power of Attorney. Each Member, by its execution hereof, hereby makes, constitutes and appoints the Company as its true and lawful
agent and attorney in fact, with full power of substitution and full power and authority in its name, place and stead, to make, execute,
sign, acknowledge, swear to, record and file (a) this Agreement and any amendment to this Agreement that has been consented to and adopted
as herein provided; (b) all amendments to the Certificate required or permitted by law or the provisions of this Agreement; (c) all certificates
and other instruments (including consents and ratifications which the Members have agreed to provide upon a matter receiving the agreed
support of Members) deemed advisable by the Managing Member to carry out the provisions of this Agreement and Law or to permit the Company
to become or to continue as a limited liability company or entity wherein the Members have limited liability in each jurisdiction where
the Company may be doing business; (d) all instruments that the Managing Member deems appropriate to reflect a change or modification
of this Agreement or the Company in accordance with this Agreement, including, without limitation, the admission of additional Members
or substituted Members pursuant to the provisions of this Agreement; (e) all conveyances and other instruments or papers deemed advisable
by the Managing Member to effect the liquidation and termination of the Company; and (f) all fictitious or assumed name certificates
required or permitted (in light of the Company’s activities) to be filed on behalf of the Company.
12.16
Separate Agreements; Schedules. Notwithstanding any other provision of this Agreement, including Section 12.12, the Managing
Member in its sole discretion may, or may cause the Company to, without the approval of any Member or other Person, enter into separate
subscription, letter or other agreements with individual Members that have become or will become Members after the date hereof with respect
to any matter, which have the effect of establishing rights under, or altering, supplementing or amending the terms of, this Agreement
(so long as such subscription, letter or other agreements do not conflict with the express terms of any applicable Certificate of Desginations).
The parties hereto agree that any terms contained in any such separate agreement shall govern with respect to such future Member(s) party
thereto notwithstanding the provisions of this Agreement. The Managing Member in its sole discretion, may from time to time execute and
deliver to the Members schedules which set forth information contained in the books and records of the Company and any other matters
deemed appropriate by the Managing Member. Such schedules shall be for information purposes only and shall not be deemed to be part of
this Agreement for any purpose whatsoever. Notwithstanding anything to the contrary, solely for U.S. federal income tax purposes, this
Agreement and any other separate agreement described in this Section 12.16 shall constitute a “partnership agreement”
within the meaning of Section 761 of the Code.
12.17
Partnership Status. The Members intend to treat the Company as a partnership for U.S. federal income tax purposes and notwithstanding
anything to the contrary herein, no election to the contrary shall be made without the consent of each of the Members.
12.18
Delivery by Facsimile or Email. This Agreement, the agreements referred to herein, and each other agreement or instrument entered
into in connection herewith or therewith or contemplated hereby or thereby, and any amendments hereto or thereto, to the extent signed
and delivered by means of a facsimile machine or email with scan or facsimile attachment, shall be treated in all manner and respects
as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed
version thereof delivered in person. No party hereto or to any such agreement or instrument shall raise the use of a facsimile machine
or email to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the
use of a facsimile machine or email as a defense to the formation or enforceability of a contract, and each such party forever waives
any such defense.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto have entered into this Agreement or have caused this Agreement to be duly executed by their
respective authorized officers, in each case as of the date first above stated.
| |
MEMBER: |
| |
|
| |
OPAL HOLDCO
LLC |
| |
|
| |
By: Fortistar
Renewables LLC, its Manager |
| |
|
|
| |
By: |
/s/
Scott Contino |
| |
Name: |
Scott Contino |
| |
Title: |
Chief Financial Officer |
[Signature
page to Second Amended and Restated Limited Liability Company Agreement of Opal Fuels LLC]
| |
HILLMAN RNG INVESTMENTS, LLC |
| |
|
| |
By: Hillman Power Company L.L.C., its
Managing Member |
| |
|
| |
By: |
/s/
Scott Contino |
| |
Name: |
Scott Contino |
| |
Title: |
Chief Financial Officer |
[Signature
page to Second Amended and Restated Limited Liability Company Agreement of Opal Fuels LLC]
| |
OPAL FUELS
INC. |
| |
|
| |
By: |
/s/
John F. Erhard |
| |
Name: |
John F. Erhard |
| |
Title: |
Chief Executive Officer |
Signature
Page to Second Amended and Restated Limited Liability Company Agreement of Opal Fuels LLC
EXHIBIT
A
Schedule
of Members
Member
Name and Address | |
Series
A
Preferred Units | | |
Series
A-1
Preferred Units | | |
Class A
Units | | |
Class
B
Units | |
OPAL
Fuels Inc.
One North Lexington Avenue, Suite 1450
White Plains, NY 10601 | |
| 0 | | |
| 0 | | |
| 25,171,390 | | |
| 0 | |
OPAL
HoldCo LLC
One North Lexington Avenue, Suite 1450
White Plains, NY 10601 | |
| 0 | | |
| 0 | | |
| 0 | | |
| 142,377,450 | |
Hillman
RNG Investments, LLC One North Lexington Avenue, Suite 1450
White Plains, NY 10601 | |
| 0 | | |
| 300,000 | | |
| 0 | | |
| 2,021,587 | |
Mendocino
Capital, LLC
700 Universe Boulevard Juno Beach, Florida 33408 | |
| 1,000,000 | | |
| 0 | | |
| 0 | | |
| 0 | |
| Total | |
| 1,000,000 | | |
| 300,000 | | |
| 25,171,390 | | |
| 144,399,037 | |
EXHIBIT
B
Form
of Exchange Notice
[See
attached]
Form
of Exchange Notice
[Date]
Opal
Fuels LLC
[_____
]
Attention:
General Counsel
Reference
is hereby made to the Second Amended and Restated Limited Liability Company Agreement of Opal Fuels LLC, dated as of July 21, 2022 (as
amended from time to time in accordance with its terms, the “LLC Agreement”) of Opal Fuels LLC, a Delaware limited
liability company (the “Company”), by and among Opal Fuels Inc., a Delaware corporation (“PubCo”),
and each other Person who is or at any time becomes a Member in accordance with the terms of the LLC Agreement (such Persons, together
with PubCo, the “Holders”).
Capitalized
terms used but not defined herein shall have the meanings given to them in the LLC Agreement.
The
undersigned Holder hereby transfers and surrenders to the Company the number of Units set forth below held by such Holder in Exchange
for the issuance to the undersigned Holder of that number of shares of Class A Common Stock equal to the number of Units so exchanged
(to be issued in its name as set forth below), or, at the election of PubCo within three (3) Business Days of this notice, for a Cash
Exchange Payment to the account set forth below, in each case in accordance with the LLC Agreement. Any portion of the Exchange not settled
for a Cash Exchange Payment shall be settled for a Stock Exchange Payment.
Legal
Name of Holder: ___________________________________
Address:
_________________________________________________________
Number
of Units to be Exchanged:____________________________________
Cash
Exchange Payment instructions:_____________________________________________
If
the Unitholder desires the shares of Class A Common Stock be settled through the facilities of Continental Stock Transfer and Trust Company
(“CST”), please indicate the account of the CST participant below.
In
the event PubCo elects to certificate the shares of Class A Common Stock issued to the Holder, please indicate the following:
Legal
Name for Certificate Delivery: ________________________________________
Address
for Certificate Delivery: __________________________________________
The
undersigned hereby represents and warrants that the undersigned is the owner of the number of Units the undersigned is electing to Exchange
pursuant to this Exchange Notice, and that such Units are not subject to any liens or restrictions on transfer (other than restrictions
imposed by the LLC Agreement, the charter and governing documents of PubCo and applicable Law).
The
undersigned hereby irrevocably constitutes and appoints any officer of PubCo, as applicable, as the attorney of the undersigned, with
full power of substitution and resubstitution in the premises, solely to do any and all things and to take any and all actions necessary
to effect the Exchange elected hereby.
CERTIFICATE
OF DESIGNATIONS
OF
SERIES
A PREFERRED UNITS
OF
OPAL
FUELS LLC
This
Certificate of Designations of Opal Fuels LLC, a limited liability company organized and existing under the laws of the State of Delaware
(the “Company”), sets forth the relative rights, powers, privileges, limitations and restrictions of a series of preferred
units designated “Series A Preferred Units,” as established by the Board of Managers of the Company (the “Board
of Managers”) in accordance with the provisions of the Amended and Restated Operating Agreement of the Company, dated as of
November 29, 2021 as may be amended from time to time (the “Operating Agreement”), as follows:
Section
1. Designation.
There
is hereby authorized and created a series of preferred units of the Company, the designation of which shall be “Series A Preferred
Units” (the “Series A Preferred Units”), and which Series A Preferred Units shall constitute “Units”
as defined in the Operating Agreement. Each Series A Preferred Unit shall be identical in all respects to every other Series A Preferred
Unit.
Section
2. Number of Units.
The
number of authorized Series A Preferred Units shall be 2,000,000. That number from time to time may be increased or decreased (but not
below the number of Series A Preferred Units then outstanding) by further resolution duly adopted by the Board of Managers (or any duly
authorized committee thereof) and by updating this Certificate of Designations stating that such increase or decrease, as the case may
be, has been so authorized; provided, however, that any decrease shall require the advanced written consent of the Requisite
Holders. The Company may issue fractional Series A Preferred Units.
Section
3. Definitions.
As
used herein with respect to Series A Preferred Units:
“Affiliate”
has the meaning set forth in the Operating Agreement.
“Approved
Preferred Units” means any Preferred Units the issuance of which is approved by Mendocino or the Requisite Holders, as applicable,
pursuant to Section 7(b) or Section 7(c) below.
“Base
Amount” means, as determined as of any date with respect to any Series A Preferred Unit, the sum of (i) the Original Issue
Price and (ii) the amount of any accrued and unpaid cash dividends thereon that have been compounded as of such date pursuant to Section
4(a) (which clause (ii), for the avoidance of doubt, shall not include the amount of any cash dividends that were satisfied pursuant
to Section 4(a) via the issuance of additional Series A Preferred Units in lieu of payment thereof).
“Business
Combination” means a business combination (in whatever form) of the Company with a publicly-traded special purpose acquisition
company (a “SPAC”) that constitutes the SPAC’s “initial business combination” as described in the
prospectus for the SPAC’s initial public offering and results in the Common Units becoming publicly traded on the NYSE or NASDAQ
or becoming exchangeable at the request of a holder thereof for shares of a SPAC which are publicly traded on the NYSE or NASDAQ or an
equivalent value in cash pursuant to Exchange Rights. As used herein, the term “Business Combination” also includes any associated
financing arrangements entered into by the Company or the SPAC (or any successor thereto or resulting entity) in conjunction with the
Business Combination for the issuance of equity securities, including any associated private investment in public equity of the SPAC
(or any successor thereto or resulting entity).
“Business
Day” means each Monday, Tuesday, Wednesday, Thursday or Friday on which banking institutions are not authorized or obligated
by law, regulation or executive order to close in New York, New York.
“Change
of Control” means the occurrence of either of the following after the original issue date of the Series A Preferred Units:
(i) the direct or indirect sale, lease, transfer, conveyance or other disposition (including by way of merger or consolidation), in one
or a series of related transactions, of all or substantially all of the properties or assets of the Company and its Subsidiaries taken
as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), (ii) the consummation of any
transaction or series of related transactions (including any merger or consolidation) the result of which is that any “person”
(as defined above), other than Opal Holdco LLC or its Affiliates, becomes the beneficial owner, directly or indirectly, of more than
50% of (a) the Company’s voting Units, measured by voting power rather than number of Units, or (b) the voting capital stock of
a Reporting Company Affiliate that results from a Business Combination or IPO, or (iii) following a Business Combination or IPO, the
resulting Reporting Company Affiliate deregistering its common stock under Section 12(b) of the Exchange Act or ceasing to be required
to file current and periodic reports under Section 13 or 15(d) of the Exchange Act; provided, that for the avoidance of doubt,
a Change of Control does not include a Business Combination or an IPO.
“Common
Units” means the Company’s “Common Units” as defined in the Operating Agreement, as such units may be exchanged,
reclassified, subdivided, combined or otherwise adjusted from time to time (other than pursuant to the exercise of any Exchange Rights
following an IPO or Business Combination); provided, that if pursuant to an IPO or Business Combination, holders of Common Units
are issued common voting shares of the Reporting Company Affiliate (other than pursuant to the exercise of Exchange Rights) paired to
their holdings of Common Units (“Paired Voting Shares”), then any Common Units issued upon conversion of any Delayed
Redemption Units shall be coupled with an equal number of Paired Voting Shares issued to the Delayed Redemption Holder by the Reporting
Company Affiliate; provided further, however, that any such Paired Voting Shares shall entitle the holder thereof to only
a single vote per Paired Voting Share in respect of those matters for which holders of the Reporting Company Affiliate’s voting
shares are entitled to vote, notwithstanding that other holders of Common Units may receive pursuant to the IPO or Business Combination
Paired Voting Shares entitling the holder thereof to more than one vote (but not more than five votes) per Paired Voting Share in respect
of those matters for which holders of the Reporting Company Affiliate’s voting shares are entitled to vote; provided further,
that no holders of Units, other than holders of Common Units as of the Original Subscription Date and Hillman RNG (and their respective
Affiliates), shall be permitted to receive pursuant to the IPO or Business Combination Paired Voting Shares entitling the holder thereof
to more than one vote per Paired Voting Share in respect of those matters for which holders of the Reporting Company Affiliate’s
voting shares are entitled to vote.
“Common
Unit Price” means, as of the applicable Conversion Time:
(i)
If the Common Units are directly traded on a National Securities Exchange, the VWAP of the Common Units over the twenty (20) trading
day period ending on the last trading day immediately preceding the Conversion Date;
(ii)
If the Common Units are not directly traded on a National Securities Exchange, but are exchangeable or convertible into Pubco Common
Shares pursuant to Exchange Rights, the VWAP of the Pubco Common Shares over the twenty (20) trading day period ending on the last trading
day immediately preceding the Conversion Date (as adjusted to account for the exchange or conversion ratio between the Common Units and
the Pubco Common Shares pursuant to the Exchange Rights); and
(iii)
In all other cases, the amount (the “Common Unit FMV”) that a holder of one Common Unit would receive if each of the
assets of the Company were to be sold for its fair market value at the applicable Conversion Time, the Company were to pay all of its
outstanding liabilities, and the remaining proceeds were to be distributed to the Company’s Members in accordance with the terms
of the Operating Agreement. The Common Unit FMV shall be determined by the Board of Managers, acting in good faith and using the Valuation
Methodology. The Board of Manager’s determination shall be provided by the Company in writing to the Delayed Redemption Holder
(a “Board Determination Notice”) exercising its conversion right pursuant to Section 6(d) no later than ten
(10) Business Days after receipt of a Conversion Election Notice from such Delayed Redemption Holder in respect of such conversion election,
and which determination shall be final and binding on the Company and the Delayed Redemption Holder unless such Delayed Redemption Holder
notifies the Company in writing (an “Objection Notice”) no later than five (5) Business Days after receipt of the
Board Determination Notice that the Delayed Redemption Holder objects to the Board of Manager’s determination of the Common Unit
FMV (an “Objecting Holder”), in which case:
(1)
The Company and the Objecting Holder shall each promptly retain (at their own respective cost and expense) no later than ten (10) Business
Days after delivery of the Objection Notice, a nationally or regionally recognized independent third party valuation firm of their respective
choosing (A) with expertise in valuing companies similar to the Company, and (B) acting as an expert and not an arbitrator (each, a “Qualified
Valuation Firm”) to determine the Common Unit FMV (which determination shall be a single price, and not a range) as derived
from a valuation of the Company using the Valuation Methodology (each, a “Valuation”);
(2)
The Company and the Objecting Holder shall (A) each promptly provide such information to the two Qualified Valuation Firms (at the same
time) as is reasonably requested by either Qualified Valuation Firm and (B) instruct the two Qualified Valuation Firms to each render
their Valuation and their associated determination of the Common Unit FMV within thirty (30) days of having been retained by the Company
or the Objecting Holder, as applicable;
(3)
If the higher of the Common Unit FMVs determined by the two Qualified Valuation Firms is less than fifteen percent (15%) greater than
the lower of the Common Unit FMVs determined by the two Qualified Valuation Firms, then, unless the Objecting Holder has made a Conversion
Withdrawal as described below, the Common Unit FMV shall equal the average of the two Common Unit FMVs, and shall be final and binding
on the Company and the Objecting Holder;
(4)
If the higher of the Common Unit FMVs determined by the two Qualified Valuation Firms is more than fifteen percent (15%) greater than
the lower of the Common Unit FMVs determined by the two Qualified Valuation Firms, then, unless the Objecting Holder has made a Conversion
Withdrawal as described below, the two Qualified Valuation Firms shall then select a third Qualified Valuation Firm to determine the
Common Unit FMV based on a Valuation using the Valuation Methodology conducted by the third Qualified Valuation Firm (such third Qualified
Valuation Firm shall be jointly retained by the Company and the Objecting Holder and the cost and expense of such third Valuation Firm
shall be shared equally between the Company and the Objecting Holder), with the third Qualified Valuation Firm provided such information
by the Company, the Objecting Holder and the two Qualified Valuation Firms as is reasonably requested by the third Qualified Valuation
Firm and instructed to render its Valuation and associated determination of the Common Unit FMV within thirty (30) days of having been
retained by the Company and the Objecting Holder, in which case the determination of the third Qualified Valuation Firm of the Common
Unit FMV (provided that such determination shall in no event be greater than the higher Common Unit FMV previously determined
by the original two Qualified Valuation Firms or less than the lower Common Unit FMV previously determined by such original two Qualified
Valuation Firms) shall be final and binding on the Company and the Objecting Holder;
(5)
The determination made pursuant to clause (3) or (4), as applicable, shall be final and binding five (5) Business Days after notice of
such determination is provided to the Company and the Objecting Holder; provided, however, that the Objecting Holder may withdraw its
Conversion Election Notice at any time within five (5) Business Days of receipt of the Common Unit FMVs determined by the two Qualified
Valuation Firms pursuant to clauses (1)-(3) (a “Conversion Withdrawal”), in which case the conversion contemplated
by Section 6(d)(i) shall not occur (without prejudice to the Objecting Holder’s right to submit additional Conversion Election
Notices in the future pursuant to Section 6(d)(i)), and the Objecting Holder shall be required to pay one hundred percent (100%) of Qualified
Valuation Firm fees contemplated by clauses (1)- (3).
“Consolidated”
refers, with respect to the Company, to the consolidation of accounts of the Company and its Subsidiaries (except to the extent otherwise
expressly provided herein) in accordance with GAAP.
“Consolidated
Subsidiaries” means the Subsidiaries of the Company that are Consolidated with the Company.
“Contract”
means any written agreement, contract, license, sublicense, subcontract, settlement agreement, lease, understanding, arrangement, instrument,
note, purchase order, warranty, insurance policy, benefit plan or legally binding commitment or undertaking of any nature.
“Conversion
Date” means the date on which the Conversion Time occurs.
“Conversion
Price” means as of the applicable Conversion Time, (a) in the event that any Series A-1 Preferred Units have been redeemed
in violation of this Certificate of Designations prior to the Conversion Time: 70% of the Common Unit Price as of the Conversion Time,
and (b) in the event that no Series A-1 Preferred Units have been redeemed in violation of this Certificate of Designations prior to
the Conversion Time: (i) if the Conversion Time occurs during the period commencing on the associated Delayed Redemption Date and before
the first (1st) anniversary thereof, 80% of the Common Unit Price as of the Conversion Time, (ii) if the Conversion Time occurs
during the period commencing on first (1st) anniversary the Delayed Redemption Date and before the second (2nd)
anniversary of the Delayed Redemption Date, 75% of the Common Unit Price as of the Conversion Time, and (iii) if the Conversion Time
occurs at any time on or after the second (2nd) anniversary of the Delayed Redemption Date, 70% of the Common Unit Price as
of the Conversion Time.
“Dividend
Payment Date” means March 31, June 30, September 30 and December 31 of each year, beginning, in respect of a Series A Preferred
Unit, with the first such date to occur following the date such Series A Preferred Unit is issued.
“Dividend
Period” means, with respect to a Series A Preferred Unit, the period from, and including, the date of issuance of the Series
A Preferred Unit or any Dividend Payment Date to, but excluding, the next Dividend Payment Date.
“EA
Sales Agreement” means the Environmental Attributes Purchase and Sale Agreement, by and between the Company and NextEra Energy
Marketing, LLC, dated November 29, 2021.
“EBITDA”
means, with respect to any period for the Company (a “Measurement Period”), the Consolidated net income of the Company
for such Measurement Period,
plus
(i) without duplication and to the extent deducted in the calculation of Consolidated net income for such period, the sum of:
(a)
taxes imposed on or measured by income and franchise taxes paid or accrued;
(b)
Interest Expense;
(c)
depreciation and amortization;
(d)
any non-cash losses or charges on any Hedge Agreement resulting from the requirements of FASB ASC 815 for that period;
(e)
both (i) losses from sales or other dispositions of assets (other than sales in the ordinary course of business) and (ii) other non-cash
extraordinary or non-recurring losses;
(f)
all non-cash charges or expenses arising from grants of stock appreciation rights, stock options, profit or incentive units, restricted
stock or other equity grants or awards;
(g)
other non-cash charges for such period ((i) including non-cash accretion of asset retirement obligations in accordance with FASB ASC
410, Accounting for Asset Retirement and Environmental Obligations, unrealized losses on Hedge Agreements, accretion expense, deferred
royalty expense and impairment expense, but (ii) excluding accruals for cash expenses in the ordinary course of business);
(h)
all Transaction Expenses to the extent paid in cash and not capitalized, in an aggregate amount not to exceed $2,500,000;
(i)
the aggregate amount of cash paid in settlement of the deferred royalty liability claim of GFL Environmental Inc. during the fiscal quarter
ending December 31, 2021, in an aggregate amount not to exceed
$3,500,000;
and
(j)
any net equity losses of the Company and its Consolidated Subsidiaries attributable to equity interests held by the Company and its Consolidated
Subsidiaries in Persons that are not Consolidated Subsidiaries;
plus
(ii) without duplication and to the extent not otherwise included in Consolidated net income for such period, the amount of cash
distributions actually received during such period by the Company and its Consolidated Subsidiaries in respect of equity interests held
in entities that are not Consolidated Subsidiaries;
minus
(iii) without duplication and to the extent included in the calculation of Consolidated net income for such period, the sum of:
(a)
any non-cash gains on any Hedge Agreements resulting from the requirements of FASB ASC 815 for that period;
(b)
extraordinary or non-recurring non-cash gains;
(c)
gains from sales or other dispositions of assets (other than sales in the ordinary course of
business);
(d)
other non-cash gains increasing Consolidated net income for such period (excluding accruals for cash revenues in the ordinary course
of business);
(e)
cash payments made (or incurred) on account of any non-cash charges added back to EBITDA pursuant to clause (i)(d), clause (i)(e), clause
(i)(f) or clause (i)(g) in a previous Measurement Period (including cash payments on account of previously deferred royalty expenses);
and
(f)
any net equity earnings of the Company and its Consolidated Subsidiaries attributable to equity interests held by the Company and its
Consolidated Subsidiaries in Persons that are not Consolidated Subsidiaries; and
minus
(iv) to the extent otherwise included in Consolidated net income, the net income of any Consolidated Subsidiary that is not wholly-owned
by the Company or a wholly-owned Consolidated Subsidiary of the Company, except to the extent of cash distributions actually received
during such period by the Company and/or a wholly-owned Consolidated Subsidiary of the Company.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange
Rights” means the exchange rights to be provided in favor of holders of Common Units provided to such holders in connection
with a Business Combination or IPO that provide for the exchange of Common Units (either separately or in combination with other securities)
into the publicly-traded common stock of the resulting Reporting Company Affiliate (the “Pubco Common Shares”), or
an equivalent value in cash.
“GAAP”
means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards
Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are
applicable to the circumstances as of the date of determination, consistently applied.
“Governmental
Authority” means any nation or government, any state, county, city or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
“Guaranty
Obligation” means, without duplication, any obligation, contingent or otherwise, of the Company or any of its Subsidiaries,
guaranteeing or entered into for the purpose of guaranteeing any indebtedness of any other Person in any manner, whether directly or
indirectly, and including any obligation of the Company or any of its Subsidiaries, direct or indirect, which, in economic effect, is
substantially equivalent to a guarantee of indebtedness of any other Person; provided that (i) the term “Guaranty Obligation”
shall not include endorsements for collection or deposit of instruments in the ordinary course of business, and
(ii)
as used in this definition, the “indebtedness” of a Person shall include only such obligations of such Person of the types
referred to in the clauses (i) through (iv) of the definition of Total Indebtedness and Equity Obligation Amount (disregarding, in each
case, the phrase “of the Company or its Subsidiaries”).
“Hedge
Agreement” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions,
commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond
index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including
any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement,
and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed
by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange
Master Agreement, or any other master agreement.
“Hillman
Exchange Agreement” means that certain Exchange Agreement, dated November 29, 2021 as between the Company and Hillman RNG.
“Hillman
Transaction” means the contribution, exchange or other transfer by Hillman RNG Investments, LLC (“Hillman RNG”)
to the Company (or a wholly-owned Subsidiary of the Company) of Hillman RNG’s interests in Pine Bend Holdco LLC, Noble Road Holdco
LLC, Sunoma Holdco LLC, and CV RNG Holdings LLC (or a merger of Hillman RNG with the Company or a wholly-owned Subsidiary of the Company)
such that following such transactions, 100% of the outstanding equity interests of Pine Bend Holdco LLC, Noble Road Holdco LLC, Sunoma
Holdco LLC, and CV RNG Holdings LLC shall be owned by the Company (including indirectly through one or more wholly-owned Subsidiaries
of the Company).
“Incentive
Units” means any units issued by the Company intended to constitute an interest in the future profits of the Company satisfying
the requirements for a partnership profits interest transferred or issued in connection with the performance of services, as set forth
in Revenue Procedures 93-27 and 2001-43, or any future IRS guidance or other authority that supplements or supersedes the foregoing Revenue
Procedures.
“IPO”
means the first underwritten public offering under the Securities Act of the Common Units or common stock of a Reporting Company Affiliate
for which the Common Units are exchangeable pursuant to Exchange Rights (including via a newly-formed parent or sister corporation or
other transaction structure, including structures commonly referred to as “up-C” or “double dummy” structures)
and following which the Common Units are publicly traded on the NYSE or NASDAQ.
“Interest
Expense” means with respect to any period for the Company and its Subsidiaries, the aggregate amount of interest payable by
such Persons during such period (determined in accordance with GAAP) in respect of those items described in clauses (i)-(viii) of the
definition of Total Indebtedness and Equity Obligation Amount (including interest imputed under Capital Leases (defined below), but excluding
interest paid in kind, and all net payment obligations pursuant to Hedge Agreements), whether or not actually paid.
“Junior
Units” means the Common Units, any Incentive Units and any other class or series of units of the Company now existing or hereafter
authorized over which the Series A Preferred Units have preference or priority as to the payment of dividends and as to the distribution
of assets upon any Liquidation.
“Member”
or “Members” has the meaning set forth in the Operating Agreement.
“Mendocino” means Mendocino
Capital, LLC, or an Affiliate thereof.
“NASDAQ”
means any of The Nasdaq Global Select Market, The Nasdaq Global Market and The Nasdaq Capital Market.
“National
Securities Exchange” means a securities exchange that has registered with the SEC under Section 6 of the Exchange Act.
“NYSE”
means any of the New York Stock Exchange or the NYSE American.
“Original
Issue Price” means $100.00 per Series A Preferred Unit, subject to appropriate adjustment in the event of any exchange, reclassification,
subdivision, combination or other adjustment to the Series A Preferred Units.
“Original
Subscription Date” means the date that the Company and Mendocino enter into a subscription agreement with respect to the purchase
by Mendocino of Series A Preferred Units in an amount up to $100 million.
“Pari
Passu Units” means any class or series of units of the Company now existing or hereafter authorized which ranks on par with
the Series A Preferred Units as to the payment of dividends or as to the distribution of assets upon any Liquidation, including, if and
when authorized and issued as contemplated by the Hillman Exchange Agreement, the Series A-1 Preferred Units.
“Person”
means an individual, partnership, limited liability company, corporation, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever nature.
“Pre-Approved
Preferred Units” mean Preferred Units meeting all of the following criteria: (a) such Preferred Units are not Senior Units,
(b) upon issuance of such Preferred Units, the Preferred Obligation Amount shall not exceed $100 million, and (c) if such Preferred Units
permit the holder thereof to require the Company to redeem or repurchase such Preferred Units, such mandatory redemption or repurchase
may only be exercised by the holder of such Preferred Units following thirty (30) days after the 4-Year Anniversary Date (other than
in connection with a Change of Control).
“Preferred
Obligation Amount” means, as of any applicable determination date hereunder, an amount equal to the aggregate amount payable
to the holders of outstanding Preferred Units upon a Liquidation from the associated Liquidation Proceeds; provided, however, that the
Preferred Obligation Amount shall not include any obligations associated with the Series A Preferred Units (including any amounts payable
in respect thereof upon a Liquidation).
“Preferred
Units” means any class or series of Units now existing or hereafter authorized which has preference or priority over the Common
Units as to the payment of dividends or as to the distribution of assets upon any Liquidation.
“Reporting
Company Affiliate” means, following an IPO or Business Combination, a Company Affiliate that pursuant to an IPO or Business
Combination becomes the parent reporting company of the Company obligated to file current and periodic reports under Section 13 or 15(d)
of the Exchange Act.
“Requisite
Holders” means (i) Mendocino, if Mendocino is the only Holder or (ii) the holders of a majority of the then outstanding Series
A Preferred Units, if there is more than one Holder.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Senior
Units” means any class or series of units of the Company now existing or hereafter authorized which has preference or priority
over the Series A Preferred Units as to the payment of dividends or as to the distribution of assets upon any Liquidation.
“Series
A-1 Preferred Units” means the “Series A-1 Preferred Units” contemplated to be designated and issued by the Company
pursuant to the terms of the Hillman Exchange Agreement.
“Subsidiary”
means, with respect to the Company, any corporation, partnership, limited liability company, association, joint venture or other business
entity of which (i) if a corporation, at least 50% of the total voting power of shares of stock entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by the Company or one or more of the other Subsidiaries of the Company or a combination thereof, or (ii) if a partnership,
limited liability company, association, joint venture or other business entity (other than a corporation), at least 50% of the partnership,
joint venture or other similar ownership interest thereof (whether voting or economic) is at the time owned or controlled, directly or
indirectly, by the Company or one or more Subsidiaries of the Company or a combination thereof. For purposes hereof, the Company and
its Subsidiaries shall be deemed to have at least 50% ownership interest in a limited liability company, partnership, association or
other business entity (other than a corporation) if the Company or one or more Subsidiaries of the Company or a combination thereof shall
be allocated at least 50% of limited liability company, partnership, association or other business entity gains or losses or shall be
or control any managing director or general partner of such limited liability company, partnership, association or other business entity.
“Subscription
Agreement” means the Subscription Agreement, dated November 29, 2021 between the Company and Mendocino providing for the subscription
by Mendocino from the Company of Series A Preferred Units.
“Total
Indebtedness and Equity Obligation Amount” means, with respect to the Company and its Subsidiaries as of any applicable determination
date hereunder, an amount equal to the sum of, without duplication (and, in each case, irrespective of whether GAAP require such obligations
be reported as indebtedness of the Company or its Subsidiaries on the Company’s or its Subsidiaries’ financial statements
or whether the Company or its Subsidiaries actually so report such obligations): (i) all obligations of the Company or its Subsidiaries
for borrowed money or in respect of loans or advances, (ii) all obligations of the Company or its Subsidiaries evidenced by bonds, debentures,
notes or other similar instruments or debt securities, (iii) all obligations of the Company or its Subsidiaries under leases, where the
obligations of the lessee in respect of such lease are required in accordance with GAAP to be capitalized on a balance sheet of the lessee
(“Capital Leases”), (iv) all obligations in respect of letters of credit and bankers’ acceptances issued for
the account of the Company and its Subsidiaries, (v) all obligations of any Person of the types referred to in the foregoing clauses
(i) through (iv) (disregarding, in each case, the phrase “of the Company or its Subsidiaries”) secured by any lien on any
property owned by the Company or its Subsidiaries (even if neither the Company nor any of its Subsidiaries has assumed or otherwise become
liable for the payment thereof); (vi) all Guaranty Obligations of the Company or any of its Subsidiaries, and (vii) with respect to any
outstanding Senior Units and Pari Passu Units, the aggregate amount payable to the holders of such Senior Units or Pari Passu Units upon
a Liquidation from the associated Liquidation Proceeds in preference to or on parity with the Series A Preferred Units; provided,
however, that, for the avoidance of doubt, the Total Indebtedness and Equity Obligation Amount shall not include (A) any obligations
associated with the Series A Preferred Units (including any amounts payable in respect thereof upon a Liquidation) or (B) any trade payables
incurred in the ordinary course of business and payable in accordance with customary practices; and provided, further,
that with respect to any Subsidiary that is not a Consolidated Subsidiary (a “Non-Consolidated Subsidiary”), (I) if
such Subsidiary is a partnership and the Company or any Consolidated Subsidiary is a general partner, the Total Indebtedness and Equity
Obligation Amount shall include the full amount of all obligations described in clause (i)-(vi) above, unless such obligations of such
partnership are without recourse to such general partner, or (II) otherwise, the Total Indebtedness and Equity Obligation Amount shall
only include a pro rata portion of the amounts otherwise includable in the definition of “Total Indebtedness and Equity Obligation
Amount” pursuant to clauses (i)-(viii) above in respect of such Non-Consolidated Subsidiary (the “Non-Consolidated Subsidiary
Indebtedness Amount”), calculated by multiplying (x) the percentage of the voting stock or other voting interests of the Non-Consolidated
Subsidiary owned by the Company and/or its Consolidated Subsidiaries and (y) the Non-Consolidated Subsidiary Indebtedness Amount of such
Non-Consolidated Subsidiary. For purposes of the foregoing definition, any obligation of the type described in clauses (i) through (vi)
of the foregoing definition (disregarding, in each case, the phrase “of the Company or its Subsidiaries”) of a partnership
in which the Company or any Subsidiary of the Company is a general partner shall be deemed to be an obligation of the Company or such
Subsidiary (as applicable), unless such partnership obligation is without recourse to such general partner.
“Transaction
Agreements” means any agreement, instrument, certificate, schedule, exhibit or other document relating to any one or more of
the Transactions.
“Transactions”
means (a) the transactions contemplated by the Subscription Agreement, this Certificate of Designations, the Operating Agreement and
the EA Sales Agreement, (b) a Business Combination (or financing arrangements entered into by the Company or its Subsidiaries or the
SPAC (or any successor thereto or resulting entity) in conjunction with a Business Combination for the issuance of equity securities,
including any associated private investment in public equity of the SPAC (or any successor thereto or resulting entity)),
(c)
an IPO, (d) any other equity or debt financing (including with any Lender) entered into by the Company or its Subsidiaries, and (e) the
Hillman Transaction.
“Transaction
Expenses” means the aggregate amount, without duplication, of all fees and expenses (including commissions) incurred by or
on behalf of the Company or its Subsidiaries during calendar year 2021 in connection with the negotiation, preparation or execution of
the Transaction Agreements or the consummation of the Transactions, including the fees and expenses of outside legal counsel, accountants,
advisors, brokers, placement agents, investment bankers, consultants, or other agents or service providers.
“Units”
means the Company’s “Units” as defined in the Operating Agreement.
“Valuation
Methodology” means a commercially reasonable estimate of the amount that would be realized by the Company if each asset of
the Company (and each asset of each partnership, limited liability company, trust, joint venture or other entity in which the Company
owns a direct or indirect interest), treating the Company as a going concern, were sold to an unrelated purchaser in an arms’ length
transaction where neither the purchaser nor the seller were under economic compulsion to enter into the transaction (without regard to
any discount in value as a result of the Company’s minority interest in any property or any illiquidity of the Company’s
interest in any property), which estimate, to the extent relying on any commodity, renewable energy attribute or other forecasts, shall
be based on the Person making the estimate’s own or other independent third party forecasts.
“VWAP”
means, with respect to a specified time period, the volume weighted average price of the Common Units or Pubco Common Shares, as applicable,
over such time period (as adjusted to reflect any dividends or distributions (including stock splits) for which the record date thereof
occurs during such period).
Section
4. Dividends, Priority and Restrictions.
(a)
Rate and Payment. From and after the date of issuance of a Series A Preferred Unit, the record holder thereof (the “Holder”)
shall be entitled to receive cash dividends, which shall be cumulative and shall accrue on the Base Amount of each Series A Preferred
Unit at the rate of eight percent (8%) per annum (accruing daily and compounding monthly until paid in full from the date of issuance
of such Series A Preferred Unit, whether or not declared, and subject to such rate increases as may be provided for herein) on the Base
Amount (the “Series A Mandatory Cumulative Dividends”), to the fullest extent permitted by applicable law; provided,
however, that in lieu of paying such Series A Mandatory Cumulative Dividends in cash on any one or more of the first eight (8)
Dividend Payment Dates following the first date that any Series A Preferred Units are issued by the Company, the Company shall have the
option, at its sole and exclusive election, to pay all Series A Mandatory Cumulative Dividends (including Series A Mandatory Cumulative
Dividends accruing on Series A Preferred Units issued after such first date) that are accrued as of any such Dividend Payment Date on
all outstanding Series A Preferred Units by issuing a number of additional Series A Preferred Units (or fraction thereof) to the Holders
having a value equal to the Series A Mandatory Cumulative Dividend payable to the Holders on such Dividend Payment Date (with each additional
Series A Preferred Unit so issued valued at the Original Issue Price, and with any fractional Series A Preferred Unit so issued being
proportionately valued). Any Series A Preferred Units issued in payment of Series A Mandatory Cumulative Dividends payable on any Dividend
Payment Date shall be deemed to be issued as of such Dividend Payment Date and cumulative dividends shall accrue thereon from and after
such date. To the extent not paid in cash (including as a result of such dividend payment not being permitted by applicable law) or by
issuance of additional Series A Preferred Units, the Series A Mandatory Cumulative Dividends on the Series A Preferred Unit shall continue
to accrue and compound whether or not declared. The Series A Mandatory Cumulative Dividends shall be payable quarterly in arrears on
each Dividend Payment Date, beginning, with respect to a Series A Preferred Unit, with the first Dividend Payment Date following the
date on which such Series A Preferred Unit is issued; provided, that if any such day is not a Business Day, then payment of any
dividend otherwise payable on that date will be made on the next succeeding day that is a Business Day (unless that day falls in the
next calendar year, in which case payment of such dividend will occur on the immediately preceding Business Day), in each case, without
any additional dividends accruing or other payment adjustment and the relevant Dividend Period will not be adjusted. The record date
for payment of dividends on the Series A Preferred Units shall be the fifteenth day of the calendar month preceding the month in which
the Dividend Payment Date falls. The amount of dividends payable shall be computed on the basis of a 360-day year of twelve 30-day months.
Dollar amounts resulting from that calculation shall be rounded to the nearest cent, with one-half cent being rounded upward.
(b)
Priority and Restrictions. So long as any Series A Preferred Units remain outstanding or are issuable pursuant to the terms of the
Subscription Agreement, subject to the qualifications and exceptions set forth in this Certificate of Designations, except in the case
of Approved Preferred Units:
(i)
no dividend or distribution shall be paid or set aside for payment on any Junior Units other than (w) a dividend or distribution payable
solely in Common Units, (x) any distribution of Paired Voting Shares contributed by a Reporting Company Affiliate to the Company in connection
with a Business Combination or IPO, (y) tax distributions with respect to the Junior Units that are set forth in the Operating Agreement
or (z) dividends or distributions permitted to be paid pursuant to clause (ii) of the second sentence of Section 4(d) below;
(ii)
no dividend or distribution shall be paid or set aside for payment on any Pari Passu Units at any time (A) when there are Delayed Redemption
Units outstanding or (B) with respect to any dividend or distribution to be paid or set aside for payment with respect to Series A-1
Preferred Units, when a Material Breach of Section 4(a) remains uncured, other than, in the case of each of (A) and (B), (w) a
dividend or distribution payable solely in Common Units, (x) any distribution of Paired Voting Shares contributed by a Reporting Company
Affiliate to the Company in connection with a Business Combination or IPO, (y) tax distributions with respect to the Pari Passu Units
that are set forth in the Operating Agreement or (z) dividends or distributions permitted to be paid pursuant to clause (ii) of the second
sentence of Section 4(d) below; and
(iii)
no Units (other than Series A Preferred Units) shall be repurchased, redeemed or otherwise acquired for consideration by the
Company, directly or indirectly, other than (A) following thirty (30) days after the 4-Year Anniversary Date, Pre-Approved Pari
Passu Units, provided no Delayed Redemption Units are then outstanding, (B) contemporaneous with a Change of Control (provided that
if holders of Series A Preferred Units elect to have their Series A Preferred Units redeemed in conjunction with such Change of
Control as provided in Section 6(b) below, all such Series A Preferred Units for which holders have elected redemption are so
redeemed prior to or contemporaneously with any repurchase, redemption or other acquisition of any other class or series of Units
pursuant to such Change of Control), (C) following an IPO or Business Combination, pursuant to the exercise of any Exchange Rights,
(D) as a result of a reclassification of Junior Units into other Junior Units or the exchange or conversion of one Junior Unit for
or into another Junior Unit, (E) through the use of the proceeds of a substantially contemporaneous sale of, in the case of Junior
Units, other Junior Units, and in the case of Pari Passu Units, other Pari Passu Units or Junior Units, provided that in the case of
this clause (E) that there are no Delayed Redemption Units outstanding and such repurchase, redemption or acquisition is not of
Series A-1 Preferred Units, or (F) repurchases or redemptions or other acquisitions of Junior Units or Pari Passu Units permitted
pursuant to clause (ii) of the second sentence of Section 4(d) below.
The
foregoing limitations in this Section 4(b) do not apply to (I) the payment of any costs, fees, operating expenses or other expenses
(1) incurred by a Reporting Company Affiliate in connection with serving as a manager or managing member of the Company or (2) allocable
to the Company or otherwise incurred by a Reporting Company Affiliate in connection with operating the Company’s business (including
expenses allocated to the Reporting Company Affiliate by its Affiliates) or (II) purchases or acquisitions of any Common Units or any
Incentive Units either (x) in a cumulative amount from the Original Subscription Date not to exceed $15 million in the aggregate (provided
that such $15 million limitation may be exceeded with the prior written consent of the Requisite Holders (or, if no Series A Preferred
Units have yet been issued as of such time, then the prior written consent of Mendocino), which consent, in each case, shall not be unreasonably
withheld, conditioned or delayed) or (y) at a price no greater than the price per unit paid in cash by the recipient for such units,
provided, in the case of each of (x) and (y), that (A) such purchase or acquisition is pursuant to an incentive or benefit plan or arrangement
(including any employment, severance or consulting agreement) of the Company or any Subsidiary of the Company heretofore or hereafter
adopted, and (B) there are no Delayed Redemption Units outstanding at such time.
(c)
No Other Rights to Distributions. Except as set forth in Section 4(a) and Section 5, or as otherwise set forth
in the Operating Agreement, a Holder shall not be entitled to any dividends or distributions with respect to the Series A Preferred Units
(including tax distributions and whether upon dissolution, liquidation or winding up of the Company or otherwise).
(d)
Qualifications. Subject to Section 4(b) and Section 5, dividends and other distributions (payable in cash, units or
otherwise) as may be determined by the Board of Managers or any duly authorized committee of the Board of Managers may be declared and
paid on any Approved Preferred Units, Junior Units or Pari Passu Units from time to time out of any funds legally available therefor,
and the Series A Preferred Units shall not be entitled to participate in any such dividend or other distributions. Notwithstanding anything
to the contrary set forth in this Certificate of Designations, nothing in this Section 4 shall limit or restrict the Company or
its Affiliates from (i) paying any costs, fees, operating expenses or other expenses (1) incurred by a Reporting Company Affiliate in
connection with serving as a manager or managing member of the Company or (2) allocable to the Company or otherwise incurred by a Reporting
Company Affiliate in connection with operating the Company’s business (including expenses allocated to the Reporting Company Affiliate
by its Affiliates), or (ii) in addition to any other circumstances specified in this Certificate of Designations in which the Company
is permitted to pay any dividend or distribution on or repurchase, redeem or otherwise acquire any Junior Units or Pari Passu Units,
declaring or paying any dividend or distribution on or repurchasing, redeeming or otherwise acquiring any Junior Units or Pari Passu
Units in a cumulative amount from the Original Subscription Date not to exceed $100 million; provided that the net cash proceeds
to the Company (after payment of all transaction expenses and, in the case of a Business Combination, any post-closing redemption payments)
resulting from (A) a Business Combination (or financing arrangements entered into by the Company or the SPAC (or any successor thereto
or resulting entity) in conjunction with a Business Combination for the issuance of equity securities that are junior to the Series A
Preferred Units, including any associated private investment in public equity of the SPAC (or any successor thereto or resulting entity)),
(B) an IPO or (C) any other equity financing consisting of the issuance of equity securities that are junior to the Series A Preferred
Units, in each case, occurring after the Original Subscription Date are at least $335 million; provided, however, that
the declaration or payment of any dividend or distribution with respect to, or the repurchase or redemption of, any Junior Units or Pari
Passu Units in a cumulative amount not to exceed $100 million contemplated by clause (ii) shall not be permitted at any time that any
Delayed Redemption Units are then outstanding.
(e)
Dividend Rate upon an Event of Default. In the event the Company materially breaches any of its obligations to a Holder pursuant
to Sections 4 (including a failure to pay dividends on the Series A Preferred Units either in cash or by issuance of additional
Series A Preferred Units (to the extent permitted under Section 4(a), regardless of whether such dividends are permitted by applicable
law)), 5 or 7 (each a “Material Breach”), in addition to any other rights or remedies such Holder may
have at law, in equity, under contract or otherwise, the dividend rate on such Holder’s outstanding Series A Preferred Units (as
otherwise provided in Section 4(a)) shall be increased to the greater of (i) twelve percent (12%) per annum and (ii) the dividend
rate then in effect plus two percent (2%) per annum, until such time as such Material Breach is cured (at which time the dividend rate
shall return to the dividend rate in effect prior to such increase in respect of such Material Breach). In the event of multiple Material
Breaches that are unrelated to one another (each an “Unrelated Material Breach”) and that remain uncured contemporaneously
with one another, such dividend rate shall increase by an additional two percent (2%) per annum for each Unrelated Material Breach that
is in addition to the Material Breach specified in the immediately preceding sentence, until such time as such Unrelated Material Breach
is cured (at which time the dividend rate shall return to the dividend rate in effect prior to such increase in respect of such Unrelated
Material Breach); provided, that in no circumstance shall such dividend rate exceed twenty percent (20%) per annum at any time.
For the avoidance of doubt, any failure to pay cash dividends when due for a specific quarterly period shall be deemed an Unrelated Material
Breach from the failure to pay cash dividends when due for a different specific quarterly period. Furthermore, and notwithstanding the
foregoing, in the event that any Series A-1 Preferred Units are redeemed in violation of this Certificate of Designations, the dividend
rate on all Series A Preferred Units shall immediately and permanently be increased to twenty percent (20%) until such time as all Series
A Preferred Units have been redeemed by the Company in full.
Section
5. Distributions upon Dissolution. Upon dissolution, liquidation or winding up of the Company (a “Liquidation”),
to the fullest extent permitted by applicable law, the Holders shall be entitled to receive from any proceeds resulting from the Liquidation
of the Company (“Liquidation Proceeds”), before any Liquidation Proceeds shall be distributed in respect of any Junior
Units, an amount per Series A Preferred Unit equal to the Base Amount as of the date of Liquidation (the “Liquidation Payment”).
If, following (i) the satisfaction of the Company’s debts and liabilities (including the satisfaction of all indebtedness to Members
and/or their Affiliates to the extent otherwise permitted by law) including the expenses of liquidation, and including the establishment
of any reserves which the Board of Managers (or liquidation agent) may deem reasonably for any contingent, conditional or unmatured contractual
liabilities or obligations of the Company and (ii) the payment to the holders of any Senior Units of the full amounts to which they may
be entitled upon such Liquidation, the remaining Liquidation Proceeds are insufficient to pay Holders and the holder of any Pari Passu
Units in full the Liquidation Payment per Series A Preferred Unit and the liquidation preference amount payable to the holders of any
Pari Passu Units, then the Company shall allocate any remaining Liquidation Proceeds on a pro rata basis among the holders of Series
A Preferred Units and Pari Passu Units then outstanding.
Section
6. Redemption.
(a)
Optional Redemption. To the fullest extent permitted by applicable law, the Series A Preferred Units may be redeemed, in whole or
in part, at the Company’s election (in its sole and absolute discretion), at any time, at a price, payable solely in cash, equal
to the Base Amount per Series A Preferred Unit as of the date of redemption (the “Redemption Price”). Any such redemption
election by the Company (i) shall be made ratably across all Holders based on the number of Series A Preferred Units held by each Holder
such that the Company shall redeem the same percentage of Series A Preferred Units held by each Holder, and (ii) may be made contingent
upon the happening of any event or circumstance (including a Change of Control). If on any Optional Redemption Date, Delaware law governing
distributions to members of a limited liability company does not permit the Company to redeem all the Series A Preferred Units to be
redeemed, the Company shall ratably redeem the maximum number of Series A Preferred Units that it may redeem consistent with such law,
and shall redeem the remaining Series A Preferred Units as soon as it may lawfully do so under such law (with the Series A Mandatory
Cumulative Dividends continuing to accrue and compound during such interim period). The Company shall send written notice of its redemption
election (the “Optional Redemption Notice”) to each Holder not less than ten (10) or more than sixty (60) days prior
to each Optional Redemption Date (defined below). Each Optional Redemption Notice shall state:
(i) the number of Series A Preferred Units held by such Holders that the Company shall redeem on the Optional Redemption Date specified
in the Optional Redemption Notice;
(ii)
the Optional Redemption Date and the Redemption Price; and
(iii) to the extent such Holder holds its Series A Preferred Units in certificated form, the certificate or certificates representing
the Series A Preferred Units to be redeemed which will be surrendered to the Company in the manner and at the place designated by the
Company.
The
date of each such redemption provided in the Optional Redemption Notice shall be referred to as an “Optional Redemption Date.”
(b)
Mandatory Redemption. If at any time a Holder delivers written notice to the Company requesting redemption (in whole or in part)
of the Series A Preferred Units held by such Holder (each, a “Mandatory Redemption Request”) either (i) in connection
with a Change of Control or (ii) at any time on or after the four (4) year anniversary of the Original Subscription Date (the “4-Year
Anniversary Date”), then the Company shall redeem, to the fullest extent permitted by applicable law (subject to the next sentence),
on the Mandatory Redemption Date (defined below), at the Redemption Price per Series A Preferred Unit (payable solely in cash), the number
of Series A Preferred Units requested by the Holder to be redeemed in the Mandatory Redemption Request. In connection with the foregoing,
the Company shall apply all of its assets to any such redemption, and to no other corporate or other purpose, except to the extent prohibited
by Delaware law governing distributions to unitholders or as restricted by Section 12 of this Agreement or by Section 12(b) of
the Subscription Agreement. In connection with a Change of Control, the Company shall provide written notice (a “Change of Control
Notice”) to Holders at least fifteen (15) Business Days prior to the anticipated date of consummation of the Change of Control
(such anticipated date, the “Closing Date”) stating, (i) the Closing Date, (ii) that Holders may elect to have all,
or a portion of, their Series A Preferred Units redeemed upon the consummation of the Change of Control by delivering to the Company
a Mandatory Redemption Request no later than the later of (A) seven (7) Business Days following receipt of the Change of Control Notice
or (B) twenty (20) Business Days prior to the Closing Date specified in the written notice, (iii) the Redemption Price, and (iv) for
Holders which hold Series A Preferred Units in certificated form, if any, the certificate or certificates representing the Series A Preferred
Units to be redeemed which will be surrendered to the Company in the manner and at the place designated by the Company. In the case of
a Mandatory Redemption Request other than in connection with a Change of Control, within thirty (30) days after receipt of the Mandatory
Redemption Request, the Company shall send to the Holder making such Mandatory Redemption Request a written confirmation notice (the
“Confirmation Notice”) stating, (i) the Mandatory Redemption Date applicable to such Mandatory Redemption Request,
(ii) the Redemption Price and (iii) for Holders which hold Series A Preferred Units in certificated form, if any, the certificate or
certificates representing the Series A Preferred Units to be redeemed which will be surrendered to the Company in the manner and at the
place designated by the Company. “Mandatory Redemption Date” means (i) in the case of a Change of Control, the date
of consummation of such Change of Control and (ii) in the case of a redemption of Series A Preferred Units to occur on or after the 4-
Year Anniversary Date, no later than 90 days after the Company’s receipt of the Mandatory Redemption Request in respect of such
Series A Preferred Units but in no event prior to the 4-Year Anniversary Date for such Series A Preferred Units. If on any Mandatory
Redemption Date, Delaware law governing distributions to Members does not permit the Company to redeem all Series A Preferred Units to
be redeemed, the Company shall ratably redeem the maximum number of Series A Preferred Units that it may redeem consistent with such
law, and shall redeem the remaining Series A Preferred Units as soon as it may lawfully do so under such law; provided, however,
that if the applicable Mandatory Redemption Request relates to the consummation of a Change of Control, the Company shall not permit
the consummation of such Change of Control to occur unless and until all Series A Preferred Units requested by the Holder to be redeemed
in the Mandatory Redemption Request are redeemed at the Redemption Price.
(c)
Surrender of Certificates. On or before the applicable Optional Redemption Date or Mandatory Redemption Date (each a “Redemption
Date”), each Holder of Series A Preferred Units to be redeemed on such Redemption Date, shall, if a Holder holds Series A Preferred
Units in certificated form, surrender the certificate or certificates representing such units (or, if such Holder alleges that such certificate
has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Company to indemnify the
Company against any claim that may be made against the Company on account of the alleged loss, theft or destruction of such certificate)
to the Company, in the manner and at the place designated in the Optional Redemption Notice, Change of Control Notice or Confirmation
Notice, as applicable, and thereupon the Redemption Price for such units shall be payable to the order of the person whose name appears
on such certificate or certificates as the owner thereof. In the event less than all of the Series A Preferred Units represented by a
certificate are redeemed, a new certificate, instrument, or book entry representing the unredeemed Series A Preferred Units shall promptly
be issued to such Holder.
(d) Mandatory Redemption Delay. If any Series A Preferred Units subject to a Mandatory Redemption Request are not redeemed on the corresponding
Mandatory Redemption Date for any reason (such date, a “Delayed Redemption Date” and such failure to timely redeem,
a “Delayed Redemption”), all such unredeemed Series A Preferred Units shall remain outstanding and entitled to all
the rights and preferences provided herein. Additionally, for so long as such Mandatory Redemption Request remains unsatisfied, the Holder(s)
of such unredeemed Series A Preferred Units (a “Delayed Redemption Holder” and such unredeemed Series A Preferred
Units, for so long as such Series A Preferred Units have not been redeemed or converted to Common Units, being referred to as “Delayed
Redemption Units”) shall have the following rights and remedies (which shall constitute such Holder(s)’(s) sole rights
and remedies with respect to such unredeemed Series A Preferred Units in circumstances in which the Company is not permitted by applicable
law to satisfy such Mandatory Redemption Request in full:
(i) Until the satisfaction of such Mandatory Redemption Request in full, the Delayed Redemption Holder may elect to convert all, or
a portion of, its Delayed Redemption Units into a number of Common Units equal to (i) the number of Delayed Redemption Units the Delayed
Redemption Holder elects to convert into Common Units multiplied by a fraction (x) the numerator of which is the Base Amount for the
Delayed Redemption Units, and (y) the denominator of which is the then-applicable Conversion Price. In order for a Delayed Redemption
Holder to convert Delayed Redemption Units into Common Units, such Holder shall (a) provide written notice (a “Conversion Election
Notice”) to the Company’s transfer agent at the office of the transfer agent for the Series A Preferred Units (or to
the Company, pursuant to the notice requirements set forth in the Operating Agreement, if the Company serves as its own transfer agent)
that such Holder elects to convert all or any number of such Holder’s Delayed Redemption Units and (b), if such Holder’s
shares are certificated, surrender the certificate or certificates for such Delayed Redemption Units (or, if such Delayed Redemption
Holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable
to the Company to indemnify the Company against any claim that may be made against the Company on account of the alleged loss, theft
or destruction of such certificate), at the office of the transfer agent for the Series A Preferred Units (or to the Company, pursuant
to the notice requirements set forth in the Operating Agreement, if the Company serves as its own transfer agent). Such notice shall
state such Holder’s name or the names of the nominees in which such Holder wishes the Common Units to be issued. If required by
the Company, any certificates surrendered for conversion shall be endorsed or accompanied by a written instrument or instruments of transfer,
in form satisfactory to the Company, duly executed by the registered Holder or his, her or its attorney duly authorized in writing. The
close of business on the date of receipt by the transfer agent (or by the Company if the Company serves as its own transfer agent) of
such notice and, if applicable, certificates (or lost certificate affidavit and agreement) shall be the time of conversion (the “Conversion
Time”), and the Common Units issuable upon conversion of the Delayed Redemption Units shall be deemed to be outstanding of
record as of such date; provided, however, that in the event the Common Unit Price used in calculating the Conversion Price
is determined pursuant to paragraph (iii) of the definition of “Common Unit Price,” the Conversion Time shall be deferred
until such time as the Common Unit Price is finally determined as set forth in said paragraph (iii) of the definition of “Common
Unit Price.” Notwithstanding the foregoing, any election by a Delayed Redemption Holder to convert any Delayed Redemption Units
into Common Units pursuant to this Section 6(d)(i) shall (A) be for no less than the lesser of (1) Delayed Redemption Units with
an aggregate Base Amount equal to or greater than $25 million and (2) all of the Delayed Redemption Units held by the Delayed Redemption
Holder and (B) shall occur no more frequently than once per rolling three month-period. For the avoidance of doubt, any Common Units
issued upon conversion of any Delayed Redemption Units shall be coupled with an equal number of Paired Voting Shares issued to the Delayed
Redemption Holder to the extent Holders of Common Units were issued any Paired Voting Shares in conjunction with an IPO, Business Combination
or other transaction. In the event that a Business Combination has occurred prior to the Conversion Time, the Company will cooperate
with the Delayed Redemption Holder to permit the Delayed Redemption Holder, if such Delayed Redemption Holder requests, to effect and
consummate Exchange Rights with respect to the Common Units into which the Delayed Redemption Units convert at a time that is contemporaneous
with or immediately following the Conversion Time, and if the terms of such Exchange Rights under the Operating Agreement do not permit
the Delayed Redemption Holder to exchange Common Units and Paired Voting Shares for Pubco Common Shares at or immediately following the
Conversion Time, to provide the Delayed Redemption Holder the opportunity, at the Delayed Redemption Holder’s option, to either
withdraw such Conversion Election Notice or delay the Conversion Time with respect to such Conversion Election Notice until such time
as such exchange will be permitted under the Operating Agreement. Such Exchange Rights shall afford the Delayed Redemption Holder only
the right to receive Pubco Common Shares entitling the holder thereof to a single vote per Pubco Common Share in respect of those matters
for which holders of the Reporting Company Affiliate’s voting shares are entitled to vote, notwithstanding that other holders of
Common Units may receive pursuant to the IPO or Business Combination Exchange Rights entitling the holder thereof to receive upon exchange
or conversion of their Common Units Pubco Common Shares entitling the holder thereof to more than one vote (but not more than five votes)
per Pubco Common Share in respect of those matters for which holders of the Reporting Company Affiliate’s voting shares are entitled
to vote; provided, however, that no holders of Units, other than holders of Common Units as of the Original Subscription
Date and Hillman RNG (and their respective Affiliates), shall be permitted to receive in conjunction with a Business Combination Exchange
Rights entitling such holder to receive upon exchange or conversion of their Units Pubco Common Shares entitling the holder thereof to
more than one vote per Pubco Common Share in respect of those matters for which holders of the Reporting Company Affiliate’s voting
shares are entitled to vote. Notwithstanding anything to the contrary in the Operating Agreement, no Common Units issued upon conversion
of the Delayed Redemption Units, nor any Pubco Common Shares issued in exchange therefor, shall be subject to any lock-up restrictions.
(ii) Until such time as all Delayed Redemption Units are redeemed or converted to Common Units, the dividend rate on all outstanding
Series A Preferred Units (as provided in Section 4(a), as further adjusted by Section 4(e)) shall (i) be increased to twelve
percent (12%) per annum of the Base Amount (or, if the current dividend rate is already at or higher than twelve percent (12%) per annum
pursuant to Section 4(e), be left at such rate), commencing on the Delayed Redemption Date, and (ii) be further increased in increments
of two percent (2%) per annum of the Base Amount with the first such increment commencing on the 1st anniversary of the Delayed
Redemption Date and each additional increment commencing following the conclusion of each succeeding ninety (90) day period thereafter
(subject to a total dividend rate cap of twenty percent (20%) per annum of the Base Amount); and
(iii) If Series A Preferred Units with an aggregate Base Amount of at least $25 million become Delayed Redemptions Units and remain
Delayed Redemption Units more than six (6) months following the Delayed Redemption Date in respect of such units, then the Requisite
Holders shall have the right (but not the obligation) to appoint a single member to the Board of Managers (provided that if as
a result of an IPO or Business Combination, there is a Reporting Company Affiliate, then such appointment right shall instead be with
respect to the board of directors (or similar governing body) of the Reporting Company Affiliate). Such appointment right shall expire
(and the Requisite Holders shall cause any individual appointed to the Board of Managers or to the board of directors (or similar governing
body) of the Reporting Company Affiliate to resign therefrom) at such time as Series A Preferred Units with an aggregate Base Amount
of less than $25 million remain Delayed Redemption Units.
Notwithstanding
paragraphs (i) – (iii) of this Section 6(d), in lieu of receiving any of the rights and remedies specified in
paragraphs (i) – (iii) of this Section 6(d), if Mendocino or any of its Affiliates becomes a Delayed Redemption Holder,
then by written notice delivered by Mendocino to the Company no later than thirty (30) days after the Delayed Redemption Date on which
Mendocino or any of its Affiliates first becomes a Delayed Redemption Holder and before electing any of the remedies mentioned in paragraph
(i) – (iii), Mendocino may elect (an “Extension Election”) to extend the then-remaining term of the EA Sales
Agreement by an additional twelve months (the “Extended Term”) provided that the EA Sales Agreement has not been terminated
prior thereto for any reason and Mendocino is not then in material breach of the EA Sales Agreement, in which case
(x)
the provisions of paragraphs (i) – (iii) of this Section 6(d) shall be deemed inoperative with respect to Mendocino
and its Affiliates solely during twelve-month period following the delivery of such Extension Election (the “Deferral Period”),
and (y) Mendocino and its Affiliates shall not be entitled to any of the rights or remedies specified in said paragraphs that could otherwise
have been elected during the Deferral Period. Upon the expiration of any Deferral Period, if Mendocino or any of its Affiliates remains
a Delayed Redemption Holder, then Mendocino may elect an additional Extended Term and Deferral Period by providing written notice of
its Extension Election in accordance with the process and terms set forth above or, in the absence of such an election, instead receive
the rights provided for in the provisions of paragraphs (i) – (iii) of this Section 6(d) for the period beginning
on the expiration of such Deferral Period. For the avoidance of doubt, if Mendocino or any of its Affiliates makes a conversion election
pursuant to paragraph (i) of this Section 6(d) prior to making an Extension Election, Mendocino shall cease to have any right
to make an Extension Election.
(e)
Paying Agent. If on the applicable Redemption Date the Redemption Price payable upon redemption of the Series A Preferred Units to
be redeemed on such Redemption Date is paid or tendered for payment or deposited with an independent payment agent so as to be available
therefor in a timely manner, then notwithstanding that any certificates evidencing any of the Series A Preferred Units so called for
redemption shall not have been surrendered, dividends with respect to such Series A Preferred Units shall cease to accrue after such
Redemption Date and all rights with respect to such Series A Preferred Units shall forthwith after the Redemption Date terminate, except
only the right of the Holders to receive the Redemption Price without interest upon surrender of any such certificate or certificates
therefor.
Section
7. Voting and Approval Rights Regarding Certain Actions by the Company.
(a)
General. The Holders shall not be entitled to vote on any matter except as set forth in Sections 7(b) through 7(d)
below or as required by applicable law.
(b)
Special Voting Rights Prior to an IPO or Business Combination. Subject to Section 7(e) below, during the period (i) commencing
on the Original Subscription Date and (ii) ending upon the earlier to occur of (A) consummation of an IPO or Business Combination or
(B) the first date after June 30, 2022 on which all Series A Preferred Units outstanding have an aggregate Base Amount less than $10
million (as adjusted for any subdivision, combination or other adjustment to the Series A Preferred Units) and are not subject to an
unpaid Mandatory Redemption Request, the Company shall not and shall not have authority or authorization to, and shall not permit any
of its Subsidiaries to, do any of the following without the written consent or affirmative vote of the Requisite Holders given in writing
or by vote at a meeting, consenting or voting (as the case may be) (or, if no Series A Preferred Units have yet been issued as of such
time, then the Company shall not and shall not have authority or authorization to, and shall not permit any of its Subsidiaries to, do
any of the following without the written consent of Mendocino):
(i)
Issue any indebtedness or any Pari Passu Units resulting in, as of the date of issuance, (A) the Total Indebtedness and Equity Obligation
Amount exceeding $500 million, or (B) the Preferred Obligation Amount exceeding $100 million;
(ii)
Consummate any material transactions with its Affiliates (excluding (A) pursuant to any Contract set forth on Section 6(f) of
the disclosure schedules to the Subscription Agreement, (B) commercial agreements entered into in the ordinary course of business on
arms-length terms or (C) any exchange of the securities of the Company pursuant to and in accordance with the Exchange Rights), with
materiality defined as transactions involving annual payments (or receipt of payments) in excess of $500,000 per year;
(iii) Consummate any material dispositions or distributions of assets (defined as in excess of $50 million) in a single or related series
of transactions;
(iv) Consummate any material acquisitions of assets (defined as in excess of $25 million in the aggregate) in a single or related series
of transactions outside of the Company’s principal lines of business;
(v) Enter into any agreement (other than in connection with any indebtedness allowed pursuant to paragraph (i) above of this
Section 7(b)) that prohibits or imposes limitations on the ability of the Company to pay any dividends in respect of, or redeem,
the Series A Preferred Units in accordance with the terms of this Certificate of Designations;
(vi) Other than pursuant to the consummation of an IPO or Business Combination, whereby the Company becomes manager or member managed
by a Reporting Company Affiliate, (i) provide any Member with multiple votes per Common Unit in respect of the election of Managers (as
defined in the Operating Agreement) unless the Holder(s) of Series A Preferred Units are provided the same number of votes per Common
Unit in respect of the election of Managers with respect of any Common Units issued to such Holder(s) upon conversion of their Series
A Preferred Units to Common Units pursuant to Section 6(d)(i), or (ii) take any action that would have the effect of (A) causing
any Manager (as defined in the Operating Agreement) to be elected or able to be removed other than exclusively by a vote of the Majority
Common Members (as defined in the Operating Agreement), or (B) restricting the Majority Common Members from removing and replacing Managers
immediately without cause via written consent of the Majority Common Members; or
(vii) Issue (A) any Preferred Units (other than Series A Preferred Units or Pre-Approved Preferred Units), (B) any Series A-1 Preferred
Units in an aggregate original principal amount greater than $30 million, or (C) any Senior Units.
(c)
Special Voting Rights After An IPO or Business Combination. Subject to Section 7(e) below, After the consummation of an IPO
or Business Combination, and subject at any time after June 30, 2022 to there being Series A Preferred Units outstanding with an aggregate
Base Amount of at least $10 million at such time, the Company shall not and shall not have authority or authorization to authorization
to, and shall not permit any of its Subsidiaries to, do any of the following without the written consent or affirmative vote of the Requisite
Holders given in writing or by vote at a meeting, consenting or voting (as the case may be) (or, if no Series A Preferred Units have
yet been issued as of such time, then the Company shall not and shall not have authority or authorization to, and shall not permit any
of its Subsidiaries to, do any of the following without the written consent of Mendocino):
(i)
Issue any indebtedness or any Pari Passu Units resulting in, as of the date of issuance, (A) the Total Indebtedness and Equity Obligation
Amount exceeding the greater of (x) $500 million and (y) 3.0x the Company’s last twelve months EBITDA, or (B) the Preferred Obligation
Amount exceeding $100 million;
(ii)
Consummate any material transactions with its Affiliates (excluding (A) pursuant to any Contract set forth on Section 6(f) of the disclosure
schedules to the Subscription Agreement that is in effect as of the Original Subscription Date, (B) commercial agreements entered into
in the ordinary course of business on arms-length terms), with materiality defined as transactions involving annual payments (or receipt
of payments) in excess of $500,000 per year or (C) the payment of any costs, fees, operating expenses or other expenses (1) incurred
by a Reporting Company Affiliate in connection with serving as a manager or managing member of the Company or (2) allocable to the Company
or otherwise incurred by a Reporting Company Affiliate in connection with operating the Company’s business (including expenses
allocated to the Reporting Company Affiliate by its Affiliates); or
(iii)
Issue (A) any Preferred Units (other than Series A Preferred Units or Pre-Approved Preferred Units), (B) any Series A-1 Preferred Units
in an aggregate original principal amount greater than $30 million, or (C) any Senior Units.
(d)
Other Special Voting Rights. For so long as any Series A Preferred Units are outstanding, the Requisite Holders shall have the right
to consent to, and without such consent the Company shall not and shall not have authority or authorization to effect, (i) any amendments
to this Certificate of Designations or the Operating Agreement that adversely modify the terms of the Series A Preferred Units and (ii)
any sale or issuance of additional Series A Preferred Units other than pursuant to the Subscription Agreement (and other than Series
A Preferred Units issued to Holders as payment for Series A Mandatory Cumulative Dividends).
(e)
Limitations. Notwithstanding anything to the contrary set forth herein (other than Section 7(d)), changes to the Company’s
organizational documents and any other actions taken by the Company to consummate an IPO, a Business Combination or the Hillman Transaction
(including, but not limited to, (i) issuing any securities, (ii) any changes to the Company’s organizational documents in connection
with any tax structuring associated with an IPO, Business Combination or the Hillman Transaction, such as the implementation of transaction
structures commonly referred to as “up-C” or “double dummy” structures or other tax structures, or (iii) the
entry into any registration rights agreements, support or voting agreements, exchange agreements, lock-up agreements or other customary
agreements by the Company or any of its Members (or any Affiliates thereof) in connection with an IPO, the Business Combination or the
Hillman Transaction) shall not be subject to any consent right of the Holders (including the Requisite Holders) under this Section
7 (other than Section 7(d)) or otherwise as a Holder; provided that the Requisite Holders shall continue following
an IPO or Business Combination to have the consent rights described in Sections 7(c) and 7(d) above.
(f)
Vote for IPO, Business Combination and Hillman Transaction. If the Board of Managers approves an IPO or a Business Combination or
the Hillman Transaction and it is inadvertently required to be approved by the Holders (or any subset thereof) pursuant to the limited
rights set forth herein or under applicable law, each Holder hereby agrees, by accepting such units, to vote (in person or by proxy or
by action by written consent, as applicable), or cause to be voted or consented, all Series A Preferred Units owned by such Holder, or
over which such person has voting control, from time to time and at all times, in favor of, and to adopt, any action (including any amendment
to the Operating Agreement other than the matters referred to in Section 7(d)) that the Board of Managers determines in good faith
is necessary or advisable to consummate such IPO or Business Combination or the Hillman Transaction, and to vote in opposition to any
and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such IPO or Business
Combination or the Hillman Transaction; provided, however, that no requested consent shall purport to amend or eliminate
Holder’s consent rights described in Sections 7(c) and 7(d) above).
(g)
No Vote if Units Redeemed. No vote or consent of the Holders shall be required pursuant to this Section 7 if, at or prior
to the time when the act with respect to which such vote or consent would otherwise have been required is effected, the Company shall
have redeemed or shall have called for redemption all outstanding units of Series A Preferred Units, with proper notice and sufficient
funds having been set aside or deposited for such redemption, in each case pursuant to Section 6 above.
(h)
Procedures for Voting and Consents. The rules and procedures for calling and conducting any meeting of the Holders (including, without
limitation, the fixing of a record date in connection therewith), the solicitation and use of proxies at such meeting, the obtaining
of written consents and any other aspect or matter with regard to such a meeting or such consents shall be governed by any rules the
Board of Managers or any duly authorized committee of the Board of Managers, in its discretion, may adopt from time to time, which rules
and procedures shall conform to the requirements of the Certificate of Formation or Operating Agreement and to applicable law; provided,
however, that no such rules or procedures may include any process by which the failure of any party to respond or vote shall be
deemed an approval of any matter.
Section
8. Preemption and Conversion; No Forced Conversion or Exchange. Except pursuant to the terms and conditions set forth in Section
6(d)(i) above with regard to conversion, the Holders shall not have any rights of preemption or rights to convert such Series A Preferred
Units into units of any other class or series of the Company. Notwithstanding anything to the contrary in the Operating Agreement, in
no event shall any Holder be required to effect any mandatory or other non-voluntary exchange of Series A Preferred Units pursuant to
Exchange Rights, and any such mandatory or other non-voluntary exchange shall require the consent of the applicable Holder in its sole
discretion.
Section
9. Issuance of Junior Units and Series A Units. Notwithstanding anything set forth in the Operating Agreement or this Certificate
of Designations to the contrary, (i) the Board of Managers or any authorized committee of the Board of Managers, without the vote of
the Holders, may authorize and issue additional Common Units or create or issue any other Junior Units, and (ii) the Company shall not
issue any Series A Units to any person other than Mendocino or its Affiliates.
Section
10. Repurchase. Subject to the limitations imposed herein, the Company may purchase Series A Preferred Units from time to time to
such extent, in such manner, and upon such terms as the Board of Managers or any duly authorized committee of the Board of Managers may
determine; provided, however, that the Company shall not use any of its assets for any such purchase when there are reasonable
grounds to believe that such purchase is not permitted by applicable law.
Section
11. Tax Receivable Agreement. In the event that (i) the Company is involved in a Business Combination pursuant to which any unitholders
of the Company are offered the ability to enter into tax receivable agreement and (ii) any Series A Preferred Units are converted into
Common Units pursuant to Section 6(d)(i) above, the holders of such converted Series A Preferred Units will be offered the right
to enter into a tax receivable agreement on the same terms and conditions as such other unitholders.
Section
12. Subordination. In the event (i) that a court of competent jurisdiction makes a determination or ruling that has the effect of
treating the Series A Preferred Units as indebtedness of the Company owing to the holders thereof and not an equity interest in the Company
or (ii) if it is requested to be acknowledged by Lenders (as defined below), any and all amounts due for or represented by the Series
A Preferred Units are hereby expressly subordinated in right of payment to the prior payment in full of all of the Company’s or
its Subsidiaries’ present or future indebtedness permitted by the terms of Section 7(b)(i) hereof (“Senior Indebtedness”)
owed to banks, insurance companies, lease financing institutions or other lending institutions regularly engaged in the business of lending
money (the “Lenders”); provided, however, that a Holder may continue to receive regularly scheduled
dividend payments and redemption payments in accordance with this Certificate of Designations and the Operating Agreement so long as
a default or event of default under the Senior Indebtedness has not occurred and is then continuing with respect to such Senior Indebtedness.
The Lenders shall be deemed express third-party beneficiaries of this Section 12.
Section
13. Integration. Each Holder, hereby agrees, by accepting such units, to be bound by the terms and conditions of this Certificate
of Designations and the Operating Agreement. This Certificate of Designations, the Operating Agreement and the Subscription Agreement
constitute the entire understanding between the Company and the Holders as to the subject matter set forth herein and therein, and supersede
any prior agreements, commitments or negotiations in respect thereof.
Section
14. Notices. Unless otherwise specified herein, any notice or communication required to be given pursuant to the terms of this Certificate
of Designations shall be given in accordance with the notice requirements set forth in the Operating Agreement.
[Signature
Page Follows]
IN
WITNESS WHEREOF, Opal Fuels LLC has caused this Certificate of Designations to be executed by its duly authorized officer on this
29th day of November, 2021.
| |
OPAL FUELS LLC |
| |
|
|
| |
By: |
/s/ Jonathan
Maurer |
| |
Name: |
Jonathan Maurer |
| |
Title: |
Co-CEO |
[Signature
Page to Certificate of Designations]
CERTIFICATE
OF DESIGNATIONS
OF
SERIES
A-1 PREFERRED UNITS
OF
OPAL
FUELS LLC
This
Certificate of Designations of Opal Fuels LLC, a limited liability company organized and existing under the laws of the State of Delaware
(the “Company”), sets forth the relative rights, powers, privileges, limitations and restrictions of a series of preferred
units designated “Series A-1 Preferred Units,” as established by the Board of Managers of the Company (the “Board
of Managers”) in accordance with the provisions of the Amended and Restated Operating Agreement of the Company, dated November
29, 2021, as may be amended from time to time (the “Operating Agreement”), as follows:
Section
1. Designation.
There
is hereby authorized and created a series of preferred units of the Company, the designation of which shall be “Series A-1 Preferred
Units” (the “Series A-1 Preferred Units”). Each Series A-1 Preferred Unit shall be identical in all respects
to every other Series A-1 Preferred Unit.
Section
2. Number of Units.
The
number of authorized Series A-1 Preferred Units shall be 600,000. That number from time to time may be increased or decreased (but not
below the number of Series A-1 Preferred Units then outstanding) by further resolution duly adopted by the Board of Managers (or any
duly authorized committee thereof) and by updating this Certificate of Designations stating that such increase or decrease, as the case
may be, has been so authorized. The Company may issue fractional Series A-1 Preferred Units.
Section
3. Definitions.
As
used herein with respect to Series A-1 Preferred Units:
“Affiliate”
has the meaning set forth in the Operating Agreement.
“Base
Amount” means, as determined as of any date with respect to any Series A-1 Preferred Unit, the sum of (i) the Original Issue
Price and (ii) the amount of any accrued and unpaid cash dividends thereon that have been compounded as of such date pursuant to Section
4(a) (which clause (ii), for the avoidance of doubt, shall not include the amount of any cash dividends that were satisfied pursuant
to Section 4(a) via the issuance of additional Series A-1 Preferred Units in lieu of payment thereof).
“Business
Combination” means a business combination (in whatever form) of the Company with a publicly-traded special purpose acquisition
company (a “SPAC”) that constitutes the SPAC’s “initial business combination” as described in the
prospectus for the SPAC’s initial public offering and results in the Common Units becoming publicly traded on the NYSE or NASDAQ
or becoming exchangeable for shares of a SPAC which are publicly traded on the NYSE or NASDAQ. As used herein, the term “Business
Combination” also includes any associated financing arrangements entered into by the Company or the SPAC (or any successor thereto
or resulting entity) in conjunction with the Business Combination for the issuance of equity securities, including any associated private
investment in public equity of the SPAC (or any successor thereto or resulting entity).
“Business
Day” means each Monday, Tuesday, Wednesday, Thursday or Friday on which banking institutions are not authorized or obligated
by law, regulation or executive order to close in New York, New York.
“Change
of Control” means the occurrence of either of the following after the original issue date of the Series A-1 Preferred Units:
(i) the direct or indirect sale, lease, transfer, conveyance or other disposition (including by way of merger or consolidation), in one
or a series of related transactions, of all or substantially all of the properties or assets of the Company and its Subsidiaries taken
as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), or (ii) the consummation of any
transaction or series of related transactions (including any merger or consolidation) the result of which is that any “person”
(as defined above), other than Opal Holdco LLC or its Affiliates, becomes the beneficial owner, directly or indirectly, of more than
50% of the Company’s voting Units, measured by voting power rather than number of Units; provided, that for the avoidance
of doubt, a Change of Control does not include a Business Combination, an IPO or a Financing
“Common
Units” means the Company’s “Common Units” as described in the Operating Agreement, as such units may be exchanged,
reclassified, subdivided, combined or otherwise adjusted from time to time (other than pursuant to the exercise of any Exchange Rights
following an IPO or Business Combination); provided, that if pursuant to an IPO or Business Combination, holders of Common Units
are issued common voting shares of the Reporting Company Affiliate (other than pursuant to the exercise of Exchange Rights) paired to
their holdings of Common Units (“Paired Voting Shares”), then any Common Units issued upon conversion of any Delayed
Redemption Units shall be coupled with an equal number of Paired Voting Shares issued to the Delayed Redemption Holder by the Reporting
Company Affiliate; provided further, however, that any such Paired Voting Shares shall entitle the holder thereof to only
a single vote per Paired Voting Share in respect of those matters for which holders of the Reporting Company Affiliate’s voting
shares are entitled to vote, notwithstanding that other holders of Common Units may receive pursuant to the IPO or Business Combination
Paired Voting Shares entitling the holder thereof to more than one vote per Paired Voting Share in respect of those matters for which
holders of the Reporting Company Affiliate’s voting shares are entitled to vote.
“Common
Unit Price” means, as of the applicable Conversion Time:
(i)
If the Common Units are directly traded on a securities exchange, the VWAP of the Common Units over the twenty (20) trading day
period ending on the last trading day immediately preceding the Conversion Date;
(ii) If the Common Units are not directly traded on a securities exchange, but are exchangeable or convertible into Pubco Common Shares
pursuant to Exchange Rights, the VWAP of the Pubco Common Shares over the twenty (20) trading day period ending on the last trading day
immediately preceding the Conversion Date (as adjusted to account for the exchange or conversion ratio between the Common Units and the
Pubco Common Shares pursuant to the Exchange Rights); and
(iii) In all other cases, the amount (the “Common Unit FMV”) that a holder of one Common Unit would receive if each
of the assets of the Company were to be sold for its fair market value at the applicable Conversion Time, the Company were to pay all
of its outstanding liabilities, and the remaining proceeds were to be distributed to the Company’s Members in accordance with the
terms of the Operating Agreement. The Common Unit FMV shall be determined by the Board of Managers, acting in good faith and using the
Valuation Methodology. The Board of Manager’s determination shall be provided by the Company in writing to the Delayed Redemption
Holder (a “Board Determination Notice”) exercising its conversion right pursuant to Section 6(d) no later than
ten (10) Business Days after receipt of a Conversion Election Notice from such Delayed Redemption Holder in respect of such conversion
election, and which determination shall be final and binding on the Company and the Delayed Redemption Holder unless such Delayed Redemption
Holder notifies the Company in writing (an “Objection Notice”) no later than five (5) Business Days after receipt
of the Board Determination Notice that the Delayed Redemption Holder objects to the Board of Manager’s determination of the Common
Unit FMV (an “Objecting Holder”), in which case:
(1)
The Company and the Objecting Holder shall each promptly retain (at their own respective cost and expense) no later than ten (10) Business
Days after delivery of the Objection Notice, a nationally or regionally recognized independent third party valuation firm of their respective
choosing (A) with expertise in valuing companies similar to the Company, and (B) acting as an expert and not an arbitrator (each, a “Qualified
Valuation Firm”) to determine the Common Unit FMV (which determination shall be a single price, and not a range) as derived
from a valuation of the Company using the Valuation Methodology (each, a “Valuation”);
(2)
The Company and the Objecting Holder shall (A) each promptly provide such information to the two Qualified Valuation Firms (at the same
time) as is reasonably requested by either Qualified Valuation Firm and (B) instruct the two Qualified Valuation Firms to each render
their Valuation and their associated determination of the Common Unit FMV within thirty (30) days of having been retained by the Company
or the Objecting Holder, as applicable;
(3)
If the higher of the Common Unit FMVs determined by the two Qualified Valuation Firms is less than fifteen percent (15%) greater than
the lower of the Common Unit FMVs determined by the two Qualified Valuation Firms, then, unless the Objecting Holder has made a Conversion
Withdrawal as described below, the Common Unit FMV shall equal the average of the two Common Unit FMVs, and shall be final and binding
on the Company and the Objecting Holder;
(4)
If the higher of the Common Unit FMVs determined by the two Qualified Valuation Firms is more than fifteen percent (15%) greater than
the lower of the Common Unit FMVs determined by the two Qualified Valuation Firms, then unless the Objecting Holder has made a Conversion
Withdrawal as described below, the two Qualified Valuation Firms shall then select a third Qualified Valuation Firm to determine the
Common Unit FMV based on a Valuation using the Valuation Methodology conducted by the third Qualified Valuation Firm (such third Qualified
Valuation Firm shall be jointly retained by the Company and the Objecting Holder and the cost and expense of such third Valuation Firm
shall be shared equally between the Company and the Objecting Holder), with the third Qualified Valuation Firm provided such information
by the Company, the Objecting Holder and the two Qualified Valuation Firms as is reasonably requested by the third Qualified Valuation
Firm and instructed to render its Valuation and associated determination of the Common Unit FMV within thirty (30) days of having been
retained by the Company and the Objecting Holder, in which case the determination of the third Qualified Valuation Firm of the Common
Unit FMV (provided that such determination shall in no event be greater than the higher Common Unit FMV previously determined
by the original two Qualified Valuation Firms or less than the lower Common Unit FMV previously determined by such original two Qualified
Valuation Firms) shall be final and binding on the Company and the Objecting Holder;
(5)
The determination made pursuant to clause (3) or (4), as applicable, shall be final and binding five (5) Business Days after notice of
such determination is provided to the Company and the Objecting Holder; provided, however, that the Objecting Holder may withdraw its
Conversion Election Notice at any time within five (5) business days of receipt of the Common Unit FMVs determined by the two Qualified
Valuation Firms pursuant to clauses (1)-(3) (a “Conversion Withdrawal”), in which case the conversion contemplated
by Section 6(d)(i) shall not occur (without prejudice to the Objecting Holder’s right to submit additional Conversion Election
Notices in the future pursuant to Section 6(d)(i)), and the Objecting Holder shall be required to pay one hundred percent (100%) of Qualified
Valuation Firm fees contemplated by clauses (1)-(3).
“Consolidated”
refers, with respect to the Company, to the consolidation of accounts of the Company and its Subsidiaries (except to the extent otherwise
expressly provided herein) in accordance with GAAP.
“Contract”
means any written agreement, contract, license, sublicense, subcontract, settlement agreement, lease, understanding, arrangement, instrument,
note, purchase order, warranty, insurance policy, benefit plan or legally binding commitment or undertaking of any nature.
“Conversion
Date” means the date on which the Conversion Time occurs.
“Conversion
Price” means as of the applicable Conversion Time, (a) if the Conversion Time occurs during the period commencing on the associated
Delayed Redemption Date and before the first (1st) anniversary thereof, 80% of the Common Unit Price as of the Conversion
Time, (b) if the Conversion Time occurs during the period commencing on first (1st) anniversary the Delayed Redemption Date
and before the second (2nd) anniversary of the Delayed Redemption Date, 75% of the Common Unit Price as of the Conversion
Time, and (iii) if the Conversion Time occurs at any time on or after the second (2nd) anniversary of the Delayed Redemption
Date, 70% of the Common Unit Price as of the Conversion Time.
“Dividend
Payment Date” means March 31, June 30, September 30 and December 31 of each year, beginning, in respect of a Series A-1 Preferred
Unit, with the first such date to occur following the date such Series A-1 Preferred Unit is issued.
“Dividend
Period” means, with respect to a Series A-1 Preferred Unit, the period from, and including, the date of issuance of the Series
A-1 Preferred Unit or any Dividend Payment Date to, but excluding, the next Dividend Payment Date.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange
Agreement” means that certain Exchange Agreement, dated November 29, 2021 between the Company and Hillman RNG, providing for
the transfer of equity interests in Pine Bend HoldCo LLC, Noble Road HoldCo LLC, Sunoma HoldCo LLC, and CV RNG Holdings LLC, by Hillman
RNG in exchange for certain Common Units and Series A-1 Preferred Units.
“Exchange
Date” means the Effective Date as set forth in the Exchange Agreement.
“Exchange
Rights” means any exchange or conversion rights in favor of holders of Common Units provided to such holders in connection
with a Business Combination or IPO that provide for the exchange or conversion of Common Units (either separately or in combination with
other securities) into the publicly-traded common stock of the resulting Reporting Company Affiliate (the “Pubco Common Shares”).
“Financing”
means any equity financing or debt financing, the primary purpose of which is to fund the Company’s operations and growth.
“GAAP”
means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards
Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are
applicable to the circumstances as of the date of determination, consistently applied.
“Governmental
Authority” means any nation or government, any state, county, city or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
“Hillman
RNG” means Hillman RNG Investments, LLC, a Delaware limited liability company.
“Incentive Units” means
any units issued by the Company intended to constitute an interest in the future profits of the Company satisfying the requirements
for a partnership profits interest transferred or issued in connection with the performance of services, as set forth in Revenue
Procedures 93-27 and 2001-43, or any future IRS guidance or other authority that supplements or supersedes the foregoing Revenue
Procedures.
“IPO”
means the Company’s first underwritten public offering of its Common Units under the Securities Act (including via a newly-formed
parent or sister corporation or other transaction structure, including structures commonly referred to as “up-C” or “double
dummy” structures) and following which the Common Units are publicly traded on the NYSE or NASDAQ.
“Junior
Units” means the Common Units, any Incentive Units and any other class or series of units of the Company now existing or hereafter
authorized over which the Series A-1 Preferred Units have preference or priority as to the payment of dividends and as to the distribution
of assets upon any Liquidation.
“Member”
or “Members” has the meaning set forth in the Operating Agreement.
“NASDAQ”
means any of The Nasdaq Global Select Market, The Nasdaq Global Market and The Nasdaq Capital Market.
“NextEra
Subscription Agreement” means that certain Subscription Agreement, dated November 29, 2021 as between the Company and Mendocino
Capital, LLC.
“NYSE”
means any of the New York Stock Exchange or the NYSE American.
“Original
Issue Price” means $100.00 per Series A-1 Preferred Unit, subject to appropriate adjustment in the event of any exchange, reclassification,
subdivision, combination or other adjustment to the Series A-1 Preferred Units.
“Pari
Passu Units” means any class or series of units of the Company now existing or hereafter authorized which ranks on par with
the Series A-1 Preferred Units as to the payment of dividends or as to the distribution of assets upon any Liquidation, including, if
and when authorized and issued as contemplated by the NextEra Subscription Agreement, the Series A Preferred Units.
“Person”
means an individual, partnership, limited liability company, corporation, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever nature.
“Reporting
Company Affiliate” means, following an IPO or Business Combination, a Company Affiliate that pursuant to the IPO or Business
Combination is the parent reporting company of the Company obligated to file current and periodic reports under Section 13 or 15(d) of
the Exchange Act.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Senior
Units” means any class or series of units of the Company now existing or hereafter authorized which has preference or priority
over the Series A-1 Preferred Units as to the payment of dividends or as to the distribution of assets upon any Liquidation.
“Series
A Preferred Units” means the “Series A Preferred Units” contemplated to be designated and issued by the Company
pursuant to the terms of the NextEra Subscription Agreement.
“Subsidiary”
means, with respect to the Company, any corporation, partnership, limited liability company, association, joint venture or other business
entity of which (i) if a corporation, at least 50% of the total voting power of shares of stock entitled to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or indirectly, by the Company or one or more of the other Subsidiaries
of the Company or a combination thereof, or (ii) if a partnership, limited liability company, association, joint venture or other business
entity, at least 50% of the partnership, joint venture or other similar ownership interest thereof (whether voting or economic) is at
the time owned or controlled, directly or indirectly, by the Company or one or more Subsidiaries of the Company or a combination thereof.
“Transactions”
means (a) the transactions contemplated by the Exchange Agreement, this Certificate of Designations and the Operating Agreement, (b)
a Business Combination (or financing arrangements entered into by the Company or its Subsidiaries or the SPAC (or any successor thereto
or resulting entity) in conjunction with a Business Combination for the issuance of equity securities, including any associated private
investment in public equity of the SPAC (or any successor thereto or resulting entity)), (c) an IPO, and (d) any other equity or debt
financing (including with any Lender) entered into by the Company or its Subsidiaries.
“Valuation
Methodology” means a commercially reasonable estimate of the amount that would be realized by the Company if each asset of
the Company (and each asset of each partnership, limited liability company, trust, joint venture or other entity in which the Company
owns a direct or indirect interest), treating the Company as a going concern, were sold to an unrelated purchaser in an arms’ length
transaction where neither the purchaser nor the seller were under economic compulsion to enter into the transaction (without regard to
any discount in value as a result of the Company’s minority interest in any property or any illiquidity of the Company’s
interest in any property), which estimate, to the extent relying on any commodity, renewable energy attribute or other forecasts, shall
be based on the Person making the estimate’s own or other independent third party forecasts.
“VWAP”
means, with respect to a specified time period, the volume weighted average price of the Common Units or Pubco Common Shares, as applicable,
over such time period (as adjusted to reflect any dividends or distributions (including stock splits) for which the record date thereof
occurs during such period).
Section
4. Dividends.
(a)
Rate and Payment. From and after the date of issuance of a Series A-1 Preferred Unit, the record holder thereof (the “Holder”)
shall be entitled to receive cash dividends, which shall be cumulative and shall accrue on the Base Amount of each Series A-1 Preferred
Unit at the rate of eight percent (8%) per annum (accruing daily and compounding monthly until paid in full from the date of issuance
of such Series A-1 Preferred Unit, whether or not declared, and subject to such rate increases as may be provided for herein) on the
Base Amount (the “Series A-1 Mandatory Cumulative Dividends”), to the fullest extent permitted by applicable law;
provided, however, that in lieu of paying such Series A-1 Mandatory Cumulative Dividends in cash on any one or more of
the first eight (8) Dividend Payment Dates following the first date that any Series A-1 Preferred Units are issued by the Company, the
Company shall have the option, at its sole and exclusive election, to pay all Series A-1 Mandatory Cumulative Dividends (including Series
A-1 Mandatory Cumulative Dividends accruing on Series A-1 Preferred Units issued after such first date) by issuing a number of additional
Series A-1 Preferred Units (or fraction thereof) to the Holders having a value equal to the Series A-1 Mandatory Cumulative Dividend
payable to the Holders on such Dividend Payment Date (with each additional Series A-1 Preferred Unit so issued valued at the Original
Issue Price, and with any fractional Series A-1 Preferred Unit so issued being proportionately valued). To the extent not paid in cash
(including as a result of such dividend payment not being permitted by applicable law) or by issuance of additional Series A-1 Preferred
Units, the Series A-1 Mandatory Cumulative Dividends on the Series A-1 Preferred Unit shall continue to accrue and compound whether or
not declared. The Series A-1 Mandatory Cumulative Dividends shall be payable quarterly in arrears on each Dividend Payment Date, beginning,
with respect to a Series A-1 Preferred Unit, with the first Dividend Payment Date following the date on which such Series A-1 Preferred
Unit is issued; provided, that if any such day is not a Business Day, then payment of any dividend otherwise payable on that date
will be made on the next succeeding day that is a Business Day (unless that day falls in the next calendar year, in which case payment
of such dividend will occur on the immediately preceding Business Day), in each case, without any additional dividends accruing or other
payment adjustment and the relevant Dividend Period will not be adjusted. The record date for payment of dividends on the Series A-1
Preferred Units shall be the fifteenth day of the calendar month preceding the month in which the Dividend Payment Date falls. The amount
of dividends payable shall be computed on the basis of a 360-day year of twelve 30-day months. Dollar amounts resulting from that calculation
shall be rounded to the nearest cent, with one-half cent being rounded upward.
(b)
No Other Rights to Distributions. Except as set forth in Section 4(a) and Section 5, or as otherwise set forth in the
Operating Agreement, a Holder shall not be entitled to any dividends or distributions with respect to the Series A-1 Preferred Units
(including tax distributions and whether upon dissolution, liquidation or winding up of the Company or otherwise).
(c)
Qualifications. Subject to Section 5, dividends and other distributions (payable in cash, units or otherwise) as may be determined
by the Board of Managers or any duly authorized committee of the Board of Managers may be declared and paid on any Junior Units from
time to time out of any funds legally available therefor, and the Series A-1 Preferred Units shall not be entitled to participate in
any such dividend or other distributions. Notwithstanding anything to the contrary set forth in this Certificate of Designations, nothing
in this Section 4 shall limit or restrict the Company or its Affiliates from (i) declaring or paying any dividend or distribution
on or repurchasing or redeeming any Senior Units or Pari Passu Units, (ii) declaring or paying any dividend or distribution on or repurchasing
or redeeming any Junior Units or (iii) taking any action necessary to effectuate an IPO or a Business Combination.
(d)
Dividend Rate upon an Event of Default. In the event the Company materially breaches any of its obligations to a Holder pursuant
to Section 4 (including a failure to pay dividends on the Series A-1 Preferred Units either in cash or by issuance of additional
Series A-1 Preferred Units (to the extent permitted under Section 4(a)), regardless of whether such dividends are permitted by applicable
law), or 5 (each a “Material Breach”), in addition to any other rights or remedies such Holder may have at
law, in equity, under contract or otherwise, the dividend rate on such Holder’s outstanding Series A-1 Preferred Units (as otherwise
provided in Section 4(a)) shall be increased to the greater of (i) twelve percent (12%) per annum and (ii) the dividend rate then
in effect plus two percent (2%) per annum, until such time as such Material Breach is cured (at which time the dividend rate shall return
to the dividend rate in effect prior to such increase in respect of such Material Breach). In the event of multiple Material Breaches
that are unrelated to one another (each an “Unrelated Material Breach”) and that remain uncured contemporaneously
with one another, such dividend rate shall increase by an additional two percent (2%) per annum for each Unrelated Material Breach that
is in addition to the Material Breach specified in the immediately preceding sentence, until such time as such Unrelated Material Breach
is cured (at which time the dividend rate shall return to the dividend rate in effect prior to such increase in respect of such Unrelated
Material Breach); provided, that in no circumstance shall such dividend rate exceed twenty percent (20%) per annum at any time.
For the avoidance of doubt, any failure to pay cash dividends when due for a specific quarterly period shall be deemed an Unrelated Material
Breach from the failure to pay cash dividends when due for a different specific quarterly period.
Section
5. Distributions upon Dissolution. Upon dissolution, liquidation or winding up of the Company (a “Liquidation”),
to the fullest extent permitted by applicable law, the Holders shall be entitled to receive from any proceeds resulting from the Liquidation
of the Company (“Liquidation Proceeds”), before any Liquidation Proceeds shall be distributed in respect of any Junior
Units, an amount per Series A-1 Preferred Unit equal to the Base Amount per Series A-1 Preferred Unit as of the date of Liquidation (the
“Liquidation Payment”). If, following (i) the satisfaction of the Company’s debts and liabilities (including
the satisfaction of all indebtedness to Members and/or their Affiliates to the extent otherwise permitted by law) including the expenses
of liquidation, and including the establishment of any reserves which the Board of Managers (or liquidation agent) may deem reasonably
for any contingent, conditional or unmatured contractual liabilities or obligations of the Company and (ii) the payment to the holders
of any Senior Units of the full amounts to which they may be entitled upon such Liquidation, the remaining Liquidation Proceeds are insufficient
to pay Holders and the holder of any Pari Passu Units in full the Liquidation Payment per Series A-1 Preferred Unit and the liquidation
preference amount payable to the holders of any Pari Passu Units, then the Company shall allocate any remaining Liquidation Proceeds
on a pro rata basis among the holders of Series A-1 Preferred Units and Pari Passu Units then outstanding.
Section
6. Redemption.
(a)
Optional Redemption. To the fullest extent permitted by applicable law, the Series A-1 Preferred Units may be redeemed, in whole
or in part, at the Company’s election (in its sole and absolute discretion), at any time, at a price equal to the Base Amount per
Series A-1 Preferred Unit as of the date of redemption (the “Redemption Price”). Any such redemption election by the
Company (i) shall be made ratably across all Holders based on the number of Series A-1 Preferred Units held by each Holder such that
the Company shall redeem the same percentage of Series A-1 Preferred Units held by each Holder, and (ii) may be made contingent upon
the happening of any event or circumstance (including a Change of Control). If on any Optional Redemption Date, Delaware law governing
distributions to Members does not permit the Company to redeem all the Series A-1 Preferred Units to be redeemed, the Company shall ratably
redeem the maximum number of Series A-1 Preferred Units that it may redeem consistent with such law, and shall redeem the remaining Series
A-1 Preferred Units as soon as it may lawfully do so under such law (with the Series A-1 Mandatory Cumulative Dividends continuing to
accrue and compound during such interim period). The Company shall send written notice of its redemption election (the “Optional
Redemption Notice”) to each Holder not less than ten (10) or more than sixty (60) days prior to each Optional Redemption Date
(defined below). Each Optional Redemption Notice shall state:
(i)
the number of Series A-1 Preferred Units held by such Holders that the Company shall redeem on the Optional Redemption Date specified
in the Optional Redemption Notice;
(ii)
the Optional Redemption Date and the Redemption Price; and
(iii)
to the extent such Holder holds its Series A-1 Preferred Units in certificated form, the certificate or certificates representing the
Series A-1 Preferred Units to be redeemed which will be surrendered to the Company in the manner and at the place designated by the Company.
The
date of each such redemption provided in the Optional Redemption Notice shall be referred to as an “Optional Redemption Date.”
(b)
Mandatory Redemption. If at any time a Holder delivers written notice to the Company requesting redemption (in whole or in part)
of the Series A-1 Preferred Units held by such Holder (each, a “Mandatory Redemption Request”) either (i) in connection
with a Change of Control or (ii) at any time on or after the later to occur of (A) the four (4) year anniversary of the Exchange Date
(the “4-Year Anniversary Date”) and (B) if any Series A Preferred Units are issued under the NextEra Subscription
Agreement, thirty (30) days following the “4-Year Anniversary Date” of the Series A Preferred Units (as provided in the Certificate
of Designations of the Series A Preferred Units contemplated by the NextEra Subscription Agreement) (the “Series A Redemption
Date”), then the Company shall redeem, to the fullest extent permitted by applicable law (subject to the next sentence), on
the Mandatory Redemption Date (defined below), at the Redemption Price per Series A-1 Preferred Unit, the number of Series A-1 Preferred
Units requested by the Holder to be redeemed in the Mandatory Redemption Request. In connection with the foregoing, the Company shall
apply all of its assets to any such redemption, and to no other corporate or other purpose, except to the extent prohibited by Delaware
law governing distributions to unitholders or as restricted by Section 12 of this Agreement. In connection with a Change of Control,
the Company shall provide written notice (a “Change of Control Notice”) to Holders at least fifteen (15) Business
Days prior to the anticipated date of consummation of the Change of Control (such anticipated date, the “Closing Date”)
stating, (i) the Closing Date, (ii) that Holders may elect to have all, or a portion of, their Series A-1 Preferred Units redeemed upon
the consummation of the Change of Control by delivering to the Company a Mandatory Redemption Request no later than the later of (A)
seven (7) Business Days following receipt of the Change of Control Notice or (B) twenty (20) Business Days prior to the Closing Date
specified in the written notice, (iii) the Redemption Price, and (iv) for Holders which hold Series A-1 Preferred Units in certificated
form, if any, the certificate or certificates representing the Series A-1 Preferred Units to be redeemed which will be surrendered to
the Company in the manner and at the place designated by the Company. In the case of a Mandatory Redemption Request other than in connection
with a Change of Control, within thirty (30) days after receipt of the Mandatory Redemption Request, the Company shall send to the Holder
making such Mandatory Redemption Request a written confirmation notice (the “Confirmation Notice”) stating, (i) the
Mandatory Redemption Date applicable to such Mandatory Redemption Request, (ii) the Redemption Price and (iii) for Holders which hold
Series A-1 Preferred Units in certificated form, if any, the certificate or certificates representing the Series A-1 Preferred Units
to be redeemed which will be surrendered to the Company in the manner and at the place designated by the Company. “Mandatory
Redemption Date” means (i) in the case of a Change of Control, the date of consummation of such Change of Control and (ii)
in the case of a redemption of Series A-1 Preferred Units any time on or after the Series A Redemption Date (if applicable), no later
than 90 days after the Company’s receipt of the Mandatory Redemption Request in respect of such Series A-1 Preferred Units (but
in no event prior to the Series A Redemption Date). If on any Mandatory Redemption Date, Delaware law governing distributions to Members
does not permit the Company to redeem all Series A-1 Preferred Units to be redeemed, the Company shall ratably redeem the maximum number
of Series A-1 Preferred Units that it may redeem consistent with such law, and shall redeem the remaining Series A-1 Preferred Units
as soon as it may lawfully do so under such law; provided, however, that if the applicable Mandatory Redemption Request
relates to the consummation of a Change of Control, the Company shall not permit the consummation of such Change of Control to occur
unless and until all Series A-1 Preferred Units requested by the Holder to be redeemed in the Mandatory
Redemption
Request are redeemed.
(c)
Surrender of Certificates. On or before the applicable Optional Redemption Date or Mandatory Redemption Date (each a “Redemption
Date”), each Holder of Series A-1 Preferred Units to be redeemed on such Redemption Date, shall, if a Holder holds Series A-1
Preferred Units in certificated form, surrender the certificate or certificates representing such units (or, if such Holder alleges that
such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Company
to indemnify the Company against any claim that may be made against the Company on account of the alleged loss, theft or destruction
of such certificate) to the Company, in the manner and at the place designated in the Optional Redemption Notice, Change of Control Notice
or Confirmation Notice, as applicable, and thereupon the Redemption Price for such units shall be payable to the order of the person
whose name appears on such certificate or certificates as the owner thereof. In the event less than all of the Series A-1 Preferred Units
represented by a certificate are redeemed, a new certificate, instrument, or book entry representing the unredeemed Series A-1 Preferred
Units shall promptly be issued to such Holder.
(d)
Mandatory Redemption Delay. If any Series A-1 Preferred Units subject to a Mandatory Redemption Request are not redeemed on the corresponding
Mandatory Redemption Date for any reason (such date, a “Delayed Redemption Date” and such failure to timely redeem,
a “Delayed Redemption”), all such unredeemed Series A-1 Preferred Units shall remain outstanding and entitled to all
the rights and preferences provided herein. Additionally, for so long as such Mandatory Redemption Request remains unsatisfied, the Holder(s)
of such unredeemed Series A-1 Preferred Units (a “Delayed Redemption Holder” and such unredeemed Series A-1 Preferred
Units, for so long as such Series A-1 Preferred Units have not been redeemed or converted to Common Units, being referred to as “Delayed
Redemption Units”) shall have the following rights and remedies (which shall constitute such Holder(s)’(s) sole rights
and remedies with respect to such unredeemed Series A-1 Preferred Units in circumstances in which the Company is not permitted by applicable
law to satisfy such Mandatory Redemption Request in full:
(i)
Until the satisfaction of such Mandatory Redemption Request in full, the Delayed Redemption Holder may elect to convert all, or a portion
of, its Delayed Redemption Units into a number of Common Units equal to (i) the number of Delayed Redemption Units the Delayed Redemption
Holder elects to convert into Common Units multiplied by a fraction (x) the numerator of which is the Base Amount for the Delayed Redemption
Units, and (y) the denominator of which is the then-applicable Conversion Price. In order for a Delayed Redemption Holder to convert
Delayed Redemption Units into Common Units, such Holder shall (a) provide written notice (a “Conversion Election Notice”)
to the Company’s transfer agent at the office of the transfer agent for the Series A-1 Preferred Units (or to the Company, pursuant
to the notice requirements set forth in the Operating Agreement, if the Company serves as its own transfer agent) that such Holder elects
to convert all or any number of such Holder’s Delayed Redemption Units and (b), if such Holder’s shares are certificated,
surrender the certificate or certificates for such Delayed Redemption Units (or, if such Delayed Redemption Holder alleges that such
certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Company to indemnify
the Company against any claim that may be made against the Company on account of the alleged loss, theft or destruction of such certificate),
at the office of the transfer agent for the Series A-1 Preferred Units (or to the Company, pursuant to the notice requirements set forth
in the Operating Agreement, if the Company serves as its own transfer agent). Such notice shall state such Holder’s name or the
names of the nominees in which such Holder wishes the Common Units to be issued. If required by the Company, any certificates surrendered
for conversion shall be endorsed or accompanied by a written instrument or instruments of transfer, in form satisfactory to the Company,
duly executed by the registered Holder or his, her or its attorney duly authorized in writing. The close of business on the date of receipt
by the transfer agent (or by the Company if the Company serves as its own transfer agent) of such notice and, if applicable, certificates
(or lost certificate affidavit and agreement) shall be the time of conversion (the “Conversion Time”), and the Common
Units issuable upon conversion of the Delayed Redemption Units shall be deemed to be outstanding of record as of such date; provided,
however, that in the event the Common Unit Price used in calculating the Conversion Price is determined pursuant to paragraph
(iii) of the definition of “Common Unit Price,” the Conversion Time shall be deferred until such time as the Common Unit
Price is finally determined as set forth in said paragraph (iii) of the definition of “Common Unit Price.” Notwithstanding
the foregoing, any election by a Delayed Redemption Holder to convert any Delayed Redemption Units into Common Units pursuant to this
Section 6(d)(i) shall (A) be for no less than the lesser of (1) Delayed Redemption Units with an aggregate Base Amount equal to
or greater than $5 million and (2) all of the Delayed Redemption Units held by the Delayed Redemption Holder and (B) shall occur no more
frequently than once per rolling three month-period. For the avoidance of doubt, any Common Units issued upon conversion of any Delayed
Redemption Units shall be coupled with an equal number of Paired Voting Shares issued to the Delayed Redemption Holder to the extent
Holders of Common Units were issued any Paired Voting Shares in conjunction with an IPO, Business Combination or other transaction. With
respect to any Exchange Rights in respect of the Common Units into which the Delayed Redemption Units may be converted, such Exchange
Rights shall afford the Delayed Redemption Holder only the right to receive Pubco Common Shares entitling the holder thereof to a single
vote per Pubco Common Share in respect of those matters for which holders of the Reporting Company Affiliate’s voting shares are
entitled to vote, notwithstanding that other holders of Common Units may receive pursuant to the IPO or Business Combination Exchange
Rights entitling the holder thereof to receive upon exchange or conversion of their Common Units Pubco Common Shares entitling the holder
thereof to more than one vote per Pubco Common Share in respect of those matters for which holders of the Reporting Company Affiliate’s
voting shares are entitled to vote.
(ii)
Until such time as all Delayed Redemption Units are redeemed or converted to Common Units, the dividend rate on all outstanding Series
A-1 Preferred Units (as provided in Section 4(a), as further adjusted by Section 4(d)) shall (i) be increased to twelve
percent (12%) per annum of the Base Amount (or, if the current dividend rate is already at or higher than twelve percent (12%) per annum
pursuant to Section 4(e), be left at such rate), commencing on the Delayed Redemption Date, and (ii) be further increased in increments
of two percent (2%) per annum of the Base Amount with the first such increment commencing on the 1st anniversary of the Delayed
Redemption Date and each additional increment commencing following the conclusion of each succeeding ninety (90) day period thereafter
(subject to a total dividend rate cap of twenty percent (20%) per annum of the Base Amount).
(e)
Paying Agent. If on the applicable Redemption Date the Redemption Price payable upon redemption of the Series A-1 Preferred Units
to be redeemed on such Redemption Date is paid or tendered for payment or deposited with an independent payment agent so as to be available
therefor in a timely manner, then notwithstanding that any certificates evidencing any of the Series A-1 Preferred Units so called for
redemption shall not have been surrendered, dividends with respect to such Series A-1 Preferred Units shall cease to accrue after such
Redemption Date and all rights with respect to such Series A-1 Preferred Units shall forthwith after the Redemption Date terminate, except
only the right of the Holders to receive the Redemption Price without interest upon surrender of any such certificate or certificates
therefor.
Section
7. Reserved.
Section
8. Preemption and Conversion. Except pursuant to the terms and conditions set forth in Section 6(d)(i) above with regard to
conversion, the Holders shall not have any rights of preemption or rights to convert such Series A-1 Preferred Units into units of any
other class or series of the Company.
Section
9. Issuance of Junior Units. Notwithstanding anything set forth in the Operating Agreement or this Certificate of Designations to
the contrary, the Board of Managers or any authorized committee of the Board of Managers, without the vote of the Holders, may authorize
and issue additional Common Units or create or issue any other Junior Units.
Section
10. Repurchase. Subject to the limitations imposed herein, the Company may purchase Series A-1 Preferred Units from time to time
to such extent, in such manner, and upon such terms as the Board of Managers or any duly authorized committee of the Board of Managers
may determine; provided, however, that the Company shall not use any of its assets for any such purchase when there are
reasonable grounds to believe that such purchase is not permitted by applicable law.
Section
11. Tax Receivable Agreement. In the event that (i) the Company is involved in a Business Combination pursuant to which any unitholders
of the Company will be offered the ability to enter into tax receivable agreement and (ii) any Series A-1 Preferred Units are converted
into Common Units pursuant to the terms hereof, the holders of such converted Series A-1 Preferred Units will be offered the right to
enter into a tax receivable agreement on the same terms and conditions as such other unitholders.
Section
12. Subordination. In the event (i) that a court of competent jurisdiction makes a determination or ruling that has the effect of
treating the Series A-1 Preferred Units as indebtedness of the Company owing to the holders thereof and not an equity interest in the
Company or (ii) if it is requested to be acknowledged by Lenders (as defined below), any and all amounts due for or represented by the
Series A-1 Preferred Units are hereby expressly subordinated in right of payment to the prior payment in full of all of the Company’s
or its Subsidiaries’ present or future indebtedness (“Senior Indebtedness”) owed to banks, insurance companies,
lease financing institutions or other lending institutions regularly engaged in the business of lending money (the “Lenders”);
provided, however, that a Holder may continue to receive regularly scheduled dividend payments and redemption payments
in accordance with this Certificate of Designations and the Operating Agreement so long as a default or event of default under the Senior
Indebtedness has not occurred and is then continuing with respect to such Senior Indebtedness. The Lenders shall be deemed express third-party
beneficiaries of this Section 12.
Section
13. Integration. Each Holder, hereby agrees, by accepting such units, to be bound by the terms and conditions of this Certificate
of Designations and the Operating Agreement. This Certificate of Designations, the Operating Agreement and the Exchange Agreement constitute
the entire understanding between the Company and the Holders as to the subject matter set forth herein and therein, and supersede any
prior agreements, commitments or negotiations in respect thereof.
Section
14. Notices. Unless otherwise specified herein, any notice or communication required to be given pursuant to the terms of this Certificate
of Designations shall be given in accordance with the notice requirements set forth in the Operating Agreement.
[Signature
Page Follows]
IN
WITNESS WHEREOF, Opal Fuels LLC has caused this Certificate of Designations to be executed by its duly authorized officer on this
29th day of November, 2021.
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OPAL FUELS LLC |
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By: |
/s/ Jonathan Maurer |
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Name: |
Jonathan Maurer |
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Title: |
Co-CEO |
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