DRAFT — UNDATED — TO BE DATED AT OR PRIOR TO CLOSING
CALDERWOOD & HARKNESS LLP 599 Lexington Avenue New York, NY 10022
Tel: (212) 558-4000
Fax: (212) 558-3588
www.calderwoodharkness.com
C&H Matter No. 1015-00001
[DATE]
VIA ELECTRONIC MAIL AND Sundial Data Systems
Maria Costello Vice President, Corporate Actions Continental Shareowner Services, Inc. 1 Ashbury Asset Advisors Plaza, 30th Floor New York, NY 10004
Re: Request for DTC Eligibility — Common Stock of Calloway-Briggs Renewables Inc.
Dear Ms. Costello:
I. Introduction
We are counsel to Calloway-Briggs Renewables Inc., a Delaware corporation ("CBR" or the "Company"), in connection with its proposed initial public offering (the "IPO" or the "Offering") of shares of common stock, par value $0.01 per share (the "Common Stock"), to be listed and traded on the New York Stock Exchange (the "NYSE") under the proposed ticker symbol "CBRI." We understand that Continental Shareowner Services, Inc. ("CSS") has been engaged to serve as the transfer agent and registrar for the Common Stock of the Company pursuant to that certain Transfer Agent and Registrar Agreement between CBR and CSS, dated as of March 14, 2022 (the "Transfer Agency Agreement").
The purpose of this letter is to request, on behalf of the Company, that CSS take all necessary steps to make the Common Stock eligible for deposit, clearance, and book-entry settlement through the facilities of The Depository Trust Company ("DTC") in connection with the IPO, as more fully described below.
II. Description of the Issuer
The Company's pertinent organizational and identifying information is set forth below for purposes of CSS's records and the DTC eligibility application:
Full Legal Name: Calloway-Briggs Renewables Inc.
Entity Type: Corporation incorporated under the General Corporation Law of the State of Delaware
Employer Identification Number (EIN): 83-4027615
Principal Executive Offices: 4200 Ridgeline Parkway, Suite 1100, Austin, TX 78746
Registered Agent in Delaware: Capitol Statutory Services, Inc., 1209 Orange Street, Wilmington, DE 19801
SEC Central Index Key (CIK) Number: 0001948372
Principal Business: The Company is a developer and operator of utility-scale solar photovoltaic, onshore wind, and battery energy storage projects across North America. The Company develops, constructs, owns, and operates renewable energy generation and storage assets, and sells the electricity generated by such assets under long-term power purchase agreements to investment-grade utility, commercial, and industrial counterparties.
III. Description of the Offering and the Securities
The Company has confidentially submitted a draft registration statement on Form S-1 under the Securities Act of 1933, as amended (the "Securities Act"), to the Securities and Exchange Commission (the "SEC") in connection with the proposed IPO. The registration statement, as filed and amended, bears the following EDGAR accession numbers:
• Initial Confidential Submission (Form DRS): Accession No. 0001948372-22-000001;
• Amendment No. 1: Accession No. 0001948372-22-000002; and
• Amendment No. 2: Accession No. 0001948372-22-000003 (filed June 10, 2022) (collectively, and as may be further amended, the "Registration Statement").
The principal terms of the Offering and the securities to be offered are summarized as follows:
Proposed Aggregate Offering Size: Approximately $600,000,000 of Common Stock (inclusive of the underwriters' overallotment option described below).
Assumed Midpoint Offering Price: $22.00 per share.
Base Shares to Be Offered: 23,713,636 shares of Common Stock.
Overallotment Option Shares: 3,559,091 additional shares of Common Stock, representing a 15% overallotment option granted to the underwriters.
Total Shares (Full Overallotment Exercise): 27,272,727 shares of Common Stock.
Composition of the Offering:
(a) A primary offering by the Company of approximately 16,895,455 shares of Common Stock (representing aggregate gross proceeds to the Company of approximately $371,700,000, before deduction of underwriting discounts, commissions, and estimated offering expenses); and
(b) A secondary offering by Pinnacle Vista Capital Partners III, LP (the "Selling Stockholder"), a limited partnership affiliated with the Company's principal financial sponsor, of approximately 6,818,182 shares of Common Stock (representing aggregate gross proceeds to the Selling Stockholder of approximately $150,000,000, before deduction of underwriting discounts and commissions). The Company will not receive any proceeds from the sale of shares by the Selling Stockholder.
Pre-IPO Shares Outstanding: 100,000,000 shares of Common Stock (on a fully diluted basis, after giving effect to the reclassification of all outstanding equity interests of the Company into shares of Common Stock to be effected immediately prior to the consummation of the IPO) (the "Reclassification").
Post-IPO Shares Outstanding (Base Offering, No Overallotment): 123,713,636 shares of Common Stock (consisting of 100,000,000 pre-existing shares plus 23,713,636 shares issued in the primary offering, noting that the secondary offering consists of existing shares and does not increase the total number of shares outstanding).
Post-IPO Shares Outstanding (Full Overallotment Exercise): 127,272,727 shares of Common Stock (consisting of 100,000,000 pre-existing shares plus 27,272,727 shares issued in the primary offering in the event the underwriters exercise their overallotment option in full).
Par Value: $0.01 per share.
Proposed Listing: New York Stock Exchange.
Proposed Ticker Symbol: "CBRI."
NYSE Listing Application Number: NYSE-2022-04218.
CUSIP Number: To be assigned by CUSIP Global Services. We will provide the assigned CUSIP number to CSS promptly upon receipt.
All shares of Common Stock offered in the IPO will be delivered to purchasers in book-entry form through the facilities of DTC on the closing date of the Offering.
IV. Identification of the Underwriters
The Offering will be underwritten on a firm commitment basis by a syndicate of underwriters led by the following institutions:
Lead-Left Book-Running Manager and Representative of the Several Underwriters: Hargrove Keating & Co. 383 Madison Place New York, NY 10017
Attention: Oliver Marchetti, Managing Director, Equity Capital Markets
(the "Representative")
Joint Book-Running Managers: Linden Pratt Securities LLC Graymont Brothers Inc.
Co-Managers: Barfield Stuart & Co. Crane Whitley Capital LLC
The underwriting arrangements are governed by an underwriting agreement to be entered into among the Company, the Selling Stockholder, and the several underwriters named therein, with Hargrove Keating & Co. acting as representative of the several underwriters (the "Underwriting Agreement"). On the closing date of the Offering, shares of Common Stock will be delivered by the Company and the Selling Stockholder to the accounts of the several underwriters at DTC against payment of the aggregate purchase price therefor in immediately available funds, through DTC's book-entry settlement system. Accordingly, it is essential that the Common Stock be DTC-eligible in advance of the closing date.
V. Specific Request
On behalf of the Company, we respectfully request that CSS, in its capacity as transfer agent and registrar for the Common Stock, take the following actions in connection with the DTC eligibility of the Common Stock:
1. Application for DTC Eligibility. Apply to DTC for eligibility of the Common Stock for book-entry deposit, transfer, clearance, and settlement through DTC's facilities, including compliance with all applicable DTC operational requirements and procedures.
2. Submission of Required Documentation. Complete and submit to DTC all required eligibility questionnaires, applications, and supporting documentation on behalf of the Company, including without limitation any Operational Arrangements questionnaires, issuer information forms, and such other forms, certifications, and agreements as DTC may require in connection with the eligibility determination.
3. DRS and FAST Enrollment. Coordinate with DTC to ensure that the Common Stock is eligible for deposit through DTC's Direct Registration System ("DRS") and that CSS is enrolled as a participant in DTC's Fast Automated Securities Transfer ("FAST") program with respect to the Common Stock, such that shares may be held in book-entry form on the books of the transfer agent as balance certificate shares on behalf of DTC's nominee, Cede & Co.
4. Confirmation of Eligibility. Provide written confirmation of DTC eligibility to both the Company and to Calderwood & Harkness LLP promptly upon receipt of such confirmation from DTC, including the effective date of eligibility and any conditions or limitations applicable thereto.
We understand that DTC eligibility is a condition to the closing of the Offering and to the listing of the Common Stock on the NYSE, and we appreciate CSS's prompt attention to this request.
VI. Supporting Documentation
In support of the DTC eligibility application, the following documents will be provided to CSS (to be transmitted under separate cover or upon CSS's request, as applicable):
(a) A certified copy of the Amended and Restated Certificate of Incorporation of the Company, in the form to be filed with the Secretary of State of the State of Delaware, effective upon or immediately prior to the closing of the IPO (the "Restated Charter");
(b) A certified copy of the Amended and Restated Bylaws of the Company, in the form to be adopted by the Board of Directors of the Company, effective upon or immediately prior to the closing of the IPO (the "Restated Bylaws");
(c) Resolutions of the Board of Directors of the Company (and, to the extent required, the stockholders of the Company) authorizing the issuance of shares of Common Stock in connection with the IPO and the transactions contemplated by the Underwriting Agreement;
(d) A specimen stock certificate for the Common Stock, or, in the alternative, written confirmation from the Company that all shares of Common Stock will be issued in book-entry (uncertificated) form only, as contemplated by the Restated Charter and the Restated Bylaws;
(e) A copy of the most current version of the Registration Statement on Form S-1 (Amendment No. 2, dated June 10, 2022), together with all exhibits thereto;
(f) A legal opinion of Calderwood & Harkness LLP, addressed to the Company and the underwriters, regarding the due authorization, valid issuance, full payment, and non-assessability of the shares of Common Stock to be issued in the IPO (the "Legality Opinion"), to be provided at the closing of the Offering;
(g) An executed IRS Form W-9 for the Company (EIN: 83-4027615); and
(h) Any additional documentation, certifications, or information that DTC or CSS may require in connection with the eligibility application or the FAST/DRS enrollment process.
We will coordinate with CSS regarding the timing and manner of delivery of the foregoing documents, and we are available to respond to any questions that DTC or CSS may have in connection with the review of the eligibility application.
VII. Timing
We note that the Offering is currently in dormant status as of June 17, 2022, as a result of adverse market conditions in the equity capital markets. The Company and its Board of Directors, in consultation with the underwriters, have determined to defer the launch of the Offering until market conditions improve and to maintain the Registration Statement on a confidential basis with the SEC in the interim. The exact timing of the reactivation of the Offering and the closing date have not yet been determined.
Notwithstanding the foregoing, we respectfully request that CSS proceed with all preliminary steps necessary to position the Company for prompt DTC eligibility upon reactivation of the Offering. To the extent that CSS is able to initiate the DTC eligibility application process, complete and submit preliminary questionnaires, and take such other preparatory actions as may be appropriate, doing so will allow eligibility to be confirmed on an expedited basis once the Offering is reactivated and a closing date is established. Our goal is to ensure that DTC eligibility will be in place no later than two business days prior to the expected closing date.
Upon reactivation of the Offering, the Company and Calderwood & Harkness LLP will promptly notify CSS and provide updated information regarding the anticipated timeline for pricing, closing, and settlement, and we will coordinate closely with CSS regarding the specific closing date and settlement mechanics, including the initial deposit of shares into DTC's FAST system on the closing date.
VIII. Contact Information
All communications regarding this request, including any questions, requests for additional information or documentation, and status updates regarding the DTC eligibility application, should be directed to the following contacts:
At Calderwood & Harkness LLP:
Natasha Forbes Working Associate, Capital Markets Calderwood & Harkness LLP 599 Lexington Avenue New York, NY 10022 Telephone: (212) 558-4217
Email: natasha.forbes@calderwoodharkness.com
Jennifer Kwon Partner, Capital Markets Calderwood & Harkness LLP 599 Lexington Avenue New York, NY 10022 Telephone: (212) 558-3891
Email: jennifer.kwon@calderwoodharkness.com
At Calloway-Briggs Renewables Inc.:
Sandra Haverford General Counsel & Corporate Secretary Calloway-Briggs Renewables Inc. 4200 Ridgeline Parkway, Suite 1100 Austin, TX 78746 Telephone: (512) 714-3300
Email: shaverford@calloway-briggs.com
Priya Anand Senior Vice President, Finance & Treasurer Calloway-Briggs Renewables Inc. 4200 Ridgeline Parkway, Suite 1100 Austin, TX 78746 Telephone: (512) 714-3342
Email: panand@calloway-briggs.com
We kindly request that CSS direct any questions or requests for additional information to the contacts listed above. In the event of any urgent matters requiring immediate attention, please contact Ms. Forbes and Ms. Kwon at Calderwood & Harkness LLP in the first instance.
IX. Authorization and Acknowledgment
This letter constitutes the Company's authorization and instruction to CSS to act on the Company's behalf in connection with the DTC eligibility application for the Common Stock, including the submission of all required applications, questionnaires, and supporting documentation to DTC. This authorization is given in accordance with, and subject to the terms of, the Transfer Agency Agreement between the Company and CSS, and CSS is authorized to take all actions reasonably necessary to effectuate the requests set forth herein, subject to any additional authorization that may be required under the Transfer Agency Agreement or CSS's internal policies and procedures.
We request that CSS acknowledge receipt of this letter by executing and returning the enclosed copy of this letter at the place indicated below, and that CSS confirm the anticipated timeline and any preliminary steps that can be taken to advance the DTC eligibility process during the period in which the Offering remains in dormant status. In addition, we request that CSS promptly advise the Company and Calderwood & Harkness LLP of any additional information, documentation, or action required on the part of the Company or its counsel to facilitate the eligibility application.
We appreciate CSS's cooperation and assistance in this matter, and we look forward to working with you to ensure a smooth and timely DTC eligibility process for the Common Stock of Calloway-Briggs Renewables Inc.
X. Closing
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Natasha Forbes Working Associate, Capital Markets
Approved by:
________________________________________
Jennifer Kwon Partner, Capital Markets
cc: (via electronic mail)
Sandra Haverford, General Counsel & Corporate Secretary, Calloway-Briggs Renewables Inc. Priya Anand, SVP, Finance & Treasurer, Calloway-Briggs Renewables Inc. Marcus Yoon, Chief Financial Officer, Calloway-Briggs Renewables Inc. Jennifer Kwon, Partner, Calderwood & Harkness LLP Brendan Walsh, Associate, Calderwood & Harkness LLP
Enclosures: None.
[Draft — documents to be transmitted under separate cover upon reactivation of the offering. Supporting documentation enumerated in Section VI above will be provided to CSS at such time as the Offering is reactivated and a closing date is established, or upon CSS's earlier request.]
Acknowledgment of Receipt
The undersigned hereby acknowledges receipt of the foregoing letter and confirms that Continental Shareowner Services, Inc. will proceed with preliminary steps to obtain DTC eligibility for the Common Stock of Calloway-Briggs Renewables Inc. in accordance with the requests set forth herein.
CONTINENTAL SHAREOWNER SERVICES, INC.
By: ________
Name: Maria Costello
Title: Vice President, Corporate Actions
Date: ________