Item 1.01 Entry into a Material Definitive Agreement.
Amendment to the Equity Commitment Agreement
On August 30, 2019, the Company entered into an Amendment (the “ECA Amendment”) to the Second Equity Commitment Agreement by and among the Company, Ares, Infrastructure and Energy Alternatives, LLC, OT POF IEA Preferred B Aggregator, L.P. and Oaktree Power Opportunities Fund III Delaware, L.P. The ECA Amendment provides that the “Diligence Period”, as defined in the Second Equity Commitment Agreement, is extended from September 13, 2019 to September 18, 2019. This description of the ECA Amendment is qualified in its entirety by reference to the full text of the ECA Amendment, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated in this Item 1.01 by reference.
Warrant Certificate
On August 30, 2019, in connection with the closing of the transactions under the Second Equity Commitment Agreement, the Company issued 900,000 Warrants and entered into a warrant certificate with each of Ares Special Situations Fund IV, L.P. and ASOF Holdings I, L.P (the “Warrant Certificates”). Each Warrant is exercisable into the Company’s common stock at an exercise price per share of $0.0001 (the “Exercise Price”). The Exercise Price may be paid by the holder by payment of the aggregate Exercise Price by check or wire transfer, or by instructing the Company to withhold a number of shares of common stock then issuable upon exercise of the Warrant with an aggregate fair market value as of the date of exercise equal to the aggregate Exercise Price; or any combination of the foregoing.
The number of shares of common stock issuable upon exercise of the Warrant adjusts for dividends, subdivisions or combinations of the Company’s common stock; cash distributions or other distributions; reorganization, reclassification, consolidation or merger; and spin-offs.
The number of shares of common stock into which the Warrants are exercisable is limited as necessary to comply with NASDAQ rules.
The description of the Warrants and Warrant Certificates are qualified in its entirety by reference to the full text of the Warrant Certificates, which are filed as Exhibit 10.2 and Exhibit 10.3 to this Current Report on Form 8-K and incorporated in this Item 1.01 by reference.
Registration Rights Agreement Amendment
On August 30, 2019, in connection with the closing of the transactions under the Second Equity Commitment Agreement, the Company entered into the Third Amendment to Amended and Restated Registration Rights Agreement (the “RRA Amendment”), by and among the Company, Infrastructure and Energy Alternatives, LLC, Ares Special Situations Fund IV, L.P. and ASOF Holdings I, L.P. The RRA Amendment amends the registration rights agreement, dated as of March 28, 2018, as amended (the “Registration Rights Agreement”), to provide Ares with the same shelf registration and “piggyback” registration rights provided to the existing parties under the Registration Rights Agreement with respect to the common stock issuable upon exercise of the Warrants. This description of the RRA Amendment is qualified in its entirety by reference to the full text of the RRA Amendment, which is filed as Exhibit 10.4 to this Current Report on Form 8-K and is incorporated in this
Item 1.01 by reference.
Amended and Restated Investor Rights Agreement
On August 30, 2019, in connection with the closing of the transactions under the Second Equity Commitment Agreement, the Company entered into an Amended and Restated Investor Rights Agreement (“A&R Investor Rights Agreement”), by and among the Company, M III Sponsor I LLC (“M III Sponsor”) (and any affiliated transferee), Infrastructure and Energy Alternatives, LLC (and any affiliated transferee) and Oaktree Power Opportunities Fund III Delaware, L.P. The A&R Investor Rights Agreement amends and restates the investor rights agreement, dated as of March 26, 2018, as amended, in order to, among other things, increase the size of the Company’s Board of Directors (the “Board”) to ten (10) directors (as a result of Ares Management LLC obtaining the right to designate an additional director to the Board pursuant to the Amended and Restated Series B-1 Certificate and the Series B-2 Certificate (as defined herein)). This description of the A&R Investor Rights Agreement is qualified in its entirety by reference to the full text of the A&R Investor Rights Agreement, which is filed as Exhibit 10.5 to this Current Report on Form 8-K and is incorporated in this Item 1.01 by reference.
Certain Relationships
Ares Special Situations Fund IV, L.P. previously purchased 30,000 shares of Series B Preferred Stock (re-designated as Series B-1 Preferred Stock at the closing of the transactions under the Second Equity Commitment Agreement as described above) and 1,527,560 Warrants on May 20, 2019, and as of such date, Ares Management LLC obtained a right to designate a member to the Company’s Board. The Second Equity Commitment Agreement, the issuance of Series B Preferred Stock (issued as Series B-2 Preferred Stock at the closing of the transactions under the Second Equity Commitment Agreement as described above) and Warrants were approved by a special committee of the Company’s Board consisting entirely of disinterested directors and, upon recommendation of such special committee, by the full Board.