RESOLUTIONS OF THE BOARD OF DIRECTORS OF CALLOWAY-BRIGGS RENEWABLES INC.
Approval and Recommendation of Amended and Restated Certificate of Incorporation
Adopted by Unanimous Written Consent in Lieu of a Special Meeting
March 16, 2022
The undersigned, being all of the members of the Board of Directors (the "Board") of Calloway-Briggs Renewables Inc., a Delaware corporation (the "Company" or "CBR"), acting pursuant to Section 141(f) of the General Corporation Law of the State of Delaware, as amended (the "DGCL"), and the Bylaws of the Company, each of which permits the Board to take action by unanimous written consent without a meeting, do hereby adopt the following recitals and resolutions by unanimous written consent, effective as of March 16, 2022 (the "Effective Date"):
RECITALS
WHEREAS, the Company is a corporation duly organized and existing under the laws of the State of Delaware, bearing Employer Identification Number 83-4027615, with its registered agent for service of process being Capitol Statutory Services, Inc., located at 1209 Orange Street, Wilmington, Delaware 19801, and with its principal executive offices located at 4200 Ridgeline Parkway, Suite 1100, Austin, Texas 78746;
WHEREAS, the Company proposes to conduct an initial public offering (the "IPO") of shares of its common stock, par value $0.01 per share (the "Common Stock"), with a proposed aggregate offering size of approximately Six Hundred Million Dollars ($600,000,000) (inclusive of shares subject to the underwriters' overallotment option), and proposes to list the Common Stock on the New York Stock Exchange (the "NYSE") under the proposed ticker symbol "CBRI," and the IPO will be effected pursuant to a registration statement on Form S-1 (the "Registration Statement") to be filed confidentially with the United States Securities and Exchange Commission (the "SEC") under the Securities Act of 1933, as amended (the "Securities Act");
WHEREAS, in connection with the IPO, the Company has engaged Hargrove Keating & Co. as lead-left book-running manager and representative of the several underwriters (the "Representative"), together with Linden Pratt Securities LLC and Graymont Brothers Inc. as joint book-running managers, and Barfield Stuart & Co. and Crane Whitley Capital LLC as co-managers (collectively with the Representative, the "Underwriters"), to underwrite and manage the IPO; the Company has retained Calderwood & Harkness LLP ("Calderwood & Harkness") as issuer's counsel in connection with the IPO and related transactions; and Prescott, Danforth & Yee LLP serves as counsel to the Underwriters in connection with the IPO;
WHEREAS, in connection with the IPO and the Company's transition from a privately held corporation to a publicly traded company, the Board has determined that it is advisable, fair, and in the best interests of the Company and its stockholders to amend and restate the Company's existing Certificate of Incorporation (as heretofore amended, the "Existing Certificate") in its entirety by adopting an Amended and Restated Certificate of Incorporation (the "Amended and Restated Certificate of Incorporation" or the "Charter"), which shall become effective upon its filing with the Secretary of State of the State of Delaware, such filing to occur immediately prior to or upon the closing of the IPO (the "Closing");
WHEREAS, the Amended and Restated Certificate of Incorporation will, among other things:
(a) set forth the authorized capital stock of the Company, consisting of shares of Common Stock, par value $0.01 per share, and shares of preferred stock, par value $0.01 per share (the "Preferred Stock"), in such amounts as shall be determined and reflected in the final form of the Charter;
(b) establish the rights, preferences, privileges, qualifications, limitations, and restrictions applicable to the Common Stock, including one vote per share on all matters submitted to a vote of the stockholders, and provide that no holder of Common Stock shall be entitled to cumulative voting rights;
(c) authorize the Board to issue Preferred Stock in one or more series from time to time, without further approval of the stockholders, and to fix the designations, preferences, powers, qualifications, limitations, and restrictions thereof, including dividend rights, conversion rights, voting rights, redemption rights, liquidation preferences, sinking fund provisions, and the number of shares constituting each such series (commonly referred to as "blank check" preferred stock authority);
(d) provide for a classified Board of Directors divided into three classes of directors (Class I, Class II, and Class III), with the members of each class serving staggered three-year terms, such that approximately one-third of the directors shall be elected at each annual meeting of stockholders;
(e) include provisions electing or opting into the protections of Section 203 of the DGCL (the business combination statute), which imposes restrictions on certain business combinations between the Company and interested stockholders;
(f) establish an exclusive forum provision designating the Court of Chancery of the State of Delaware (or, if the Court of Chancery does not have jurisdiction, the Superior Court of the State of Delaware, or, if the Superior Court of the State of Delaware does not have jurisdiction, the United States District Court for the District of Delaware) as the exclusive forum for (i) any derivative action or proceeding brought on behalf of the Company, (ii) any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer, employee, or agent of the Company to the Company or the Company's stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL, the Charter, or the Bylaws of the Company, or (iv) any action asserting a claim governed by the internal affairs doctrine, and further providing that the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act;
(g) provide for the elimination of the personal monetary liability of directors of the Company to the Company or its stockholders for breach of fiduciary duty as a director to the fullest extent permitted by Section 102(b)(7) of the DGCL, as the same may be amended or supplemented from time to time;
(h) contain provisions specifying that stockholders of the Company may not act by written consent in lieu of a meeting following the Closing and that special meetings of the stockholders may be called only by the Board, the Chairman of the Board, or the Chief Executive Officer, as appropriate for a publicly traded company;
(i) include supermajority voting requirements (not less than sixty-six and two-thirds percent (66⅔%) of the voting power of all then-outstanding shares of capital stock entitled to vote generally in the election of directors, voting together as a single class) for certain amendments to specified provisions of the Charter and the Bylaws; and
(j) contain such dual-class sundown provision, if applicable, as the Board may determine in the final form of the Charter;
WHEREAS, the Board has received and reviewed in detail a substantially final draft of the Amended and Restated Certificate of Incorporation prepared by Calderwood & Harkness, together with a blackline comparison of the Existing Certificate against the proposed Amended and Restated Certificate of Incorporation clearly showing all additions, deletions, and modifications, and the officers of the Company have discussed the terms and provisions of the Charter with Calderwood & Harkness and with the Company's financial advisors, including the Representative;
WHEREAS, the Board has carefully considered the terms and provisions of the Amended and Restated Certificate of Incorporation and, in the exercise of its business judgment and in fulfillment of its fiduciary duties to the Company and its stockholders, has determined that the adoption of the Amended and Restated Certificate of Incorporation is fair to, advisable for, and in the best interests of the Company and its stockholders, taking into account, among other things, the governance protections afforded to the Company and its stockholders in connection with the Company's transition to public company status, the requirements of the NYSE listing standards, and prevailing market practice for companies undertaking initial public offerings of comparable size and complexity; and
WHEREAS, under Section 242 of the DGCL, the amendment and restatement of the Certificate of Incorporation requires adoption by the holders of a majority of the outstanding stock of the Company entitled to vote thereon, and the Board has been advised that Pinnacle Vista Capital Partners III, LP ("Pinnacle Vista"), the Company's principal financial sponsor, holds approximately sixty-two percent (62%) of the fully diluted pre-IPO Common Stock, and the Company's co-founders, Garrett Calloway and Elaine Briggs (collectively, the "Co-Founders"), together hold approximately twenty-four percent (24%) of the fully diluted pre-IPO Common Stock, such that Pinnacle Vista and the Co-Founders collectively represent more than ninety percent (90%) of the voting power of the outstanding capital stock of the Company and are expected to execute and deliver a written consent adopting the Amended and Restated Certificate of Incorporation in accordance with Section 228 of the DGCL.
RESOLUTIONS
NOW, THEREFORE, BE IT RESOLVED, that the form of Amended and Restated Certificate of Incorporation of the Company, substantially in the form attached hereto as Exhibit A and incorporated herein by reference (with such changes thereto as may be approved by the officers of the Company, acting individually, with the advice of Calderwood & Harkness, as not being materially adverse to the Company or its stockholders), is hereby approved, adopted, and authorized in all respects, and the terms, provisions, and conditions set forth therein are hereby ratified and confirmed;
RESOLVED FURTHER, that the Board hereby recommends and declares it advisable that the stockholders of the Company adopt the Amended and Restated Certificate of Incorporation in the form approved hereby, and the Board hereby directs that the Amended and Restated Certificate of Incorporation be submitted to the stockholders of the Company for their approval and adoption by written consent in lieu of a meeting, in accordance with Section 228 of the DGCL and the applicable provisions of the Company's Bylaws;
RESOLVED FURTHER, that the officers of the Company, acting individually, are hereby authorized and directed to solicit the written consent of the stockholders of the Company holding a majority of the outstanding shares of Common Stock entitled to vote thereon for the adoption of the Amended and Restated Certificate of Incorporation, and that such solicitation may be conducted by delivering to each such stockholder (or such stockholder's designated legal counsel) an action by written consent of the stockholders, together with a copy of the Amended and Restated Certificate of Incorporation in the form approved by the Board, and such other materials as such officer or officers may determine to be necessary, appropriate, or advisable in connection therewith;
RESOLVED FURTHER, that upon receipt of the requisite stockholder approval for the adoption of the Amended and Restated Certificate of Incorporation, and at such time as the officers of the Company shall determine to be appropriate in their sole discretion (which time shall be immediately prior to or upon the Closing), the officers of the Company, acting individually, are hereby authorized and directed to execute and file the Amended and Restated Certificate of Incorporation with the Secretary of State of the State of Delaware, in accordance with Sections 242 and 245 of the DGCL, and the Amended and Restated Certificate of Incorporation shall become effective upon such filing with the Secretary of State of the State of Delaware (or at such later time and date as may be specified in the Amended and Restated Certificate of Incorporation or any certificate of amendment filed in connection therewith);
RESOLVED FURTHER, that each of the officers of the Company, including without limitation Garrett Calloway, in his capacity as Chairman of the Board and Chief Executive Officer; Elaine Briggs, in her capacity as President, Development; Marcus Yoon, in his capacity as Chief Financial Officer; and Sandra Haverford, in her capacity as General Counsel and Corporate Secretary (each, an "Authorized Officer"), acting individually, is hereby authorized, empowered, and directed, in the name and on behalf of the Company, to:
(a) execute and deliver the Amended and Restated Certificate of Incorporation and any certificate of amendment, restated certificate of incorporation, certificate of correction, or other certificate or filing required or advisable in connection therewith, and to cause any such document to be filed with the Secretary of State of the State of Delaware or any other governmental authority, as applicable;
(b) execute and deliver any and all documents, instruments, agreements, certificates, and filings as any such Authorized Officer may deem necessary, appropriate, or advisable to carry out, evidence, or give effect to the intent and purposes of the foregoing resolutions and the transactions contemplated thereby, including, without limitation, any filings with or notifications to the SEC, the NYSE, or any other regulatory body or stock exchange;
(c) take any and all actions, and execute and deliver any and all additional documents and instruments, as such Authorized Officer may deem necessary, appropriate, or advisable to carry out and effectuate the intent and purposes of the foregoing resolutions, with the execution and delivery of any such document or the taking of any such action to be conclusive evidence of the Board's approval thereof; and
(d) pay, or cause the Company to pay, all fees, costs, expenses, and taxes of any kind incurred or to be incurred in connection with the foregoing, including filing fees payable to the Secretary of State of the State of Delaware and all legal and advisory fees incurred in connection therewith;
RESOLVED FURTHER, that the officers of the Company, acting individually, with the advice of Calderwood & Harkness, are hereby authorized to make such non-material changes, modifications, amendments, or corrections to the form of the Amended and Restated Certificate of Incorporation as any such officer may deem necessary, appropriate, or advisable, including, without limitation, changes required or requested in response to comments received from the staff of the SEC in connection with their review of the Registration Statement, changes required or requested by the NYSE in connection with the listing application, and changes that may be appropriate in light of market conditions, customary practice, or other circumstances arising in connection with the IPO, in each case without the need for further approval by the Board, provided, however, that no such change, modification, amendment, or correction shall materially and adversely affect the rights, obligations, or interests of the Company or its stockholders;
RESOLVED FURTHER, that all actions heretofore taken by any officer or director of the Company, or by any agent acting at the direction of any officer or director of the Company, in connection with the preparation, review, negotiation, and finalization of the Amended and Restated Certificate of Incorporation, including, without limitation, the engagement of Calderwood & Harkness as issuer's counsel, the circulation and review of drafts of the Charter, and discussions with the Underwriters and their counsel with respect to the governance provisions contained therein, are hereby ratified, confirmed, approved, and adopted in all respects as the acts and deeds of the Company; and
RESOLVED FURTHER, that these resolutions shall be effective as of the Effective Date upon execution hereof by all members of the Board of Directors.
EXHIBIT A
The Amended and Restated Certificate of Incorporation of Calloway-Briggs Renewables Inc. is attached hereto as Exhibit A and incorporated herein by reference. The final form of the Amended and Restated Certificate of Incorporation shall reflect the authorized share amounts (including the number of authorized shares of Common Stock, par value $0.01 per share, and the number of authorized shares of Preferred Stock, par value $0.01 per share), as well as all governance provisions, as approved by the Board in accordance with these resolutions.
[Cross-reference to separately maintained document: "amended-restated-certificate-of-incorporation.docx"]
EXECUTION
The undersigned, being all of the members of the Board of Directors of Calloway-Briggs Renewables Inc., do hereby execute this unanimous written consent as of March 16, 2022, and acknowledge that this consent may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart by facsimile or electronic transmission (including by .pdf or similar format) shall be equally effective as delivery of a manually executed counterpart.
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Garrett Calloway Director (Co-Founder, Chairman & Chief Executive Officer)
Date: ________
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Elaine Briggs Director (Co-Founder & President, Development)
Date: ________
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Hugh Pemberton Director (Pinnacle Vista Capital Partners Designee)
Date: ________
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Diane Kovac Director (Pinnacle Vista Capital Partners Designee)
Date: ________
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Warren Okoro Director (Independent)
Date: ________
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Catherine Liang Director (Independent)
Date: ________
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Richard Estavez Director (Independent)
Date: ________
SECRETARY'S CERTIFICATION
I, Sandra Haverford, do hereby certify that I am the duly appointed General Counsel and Corporate Secretary of Calloway-Briggs Renewables Inc., a Delaware corporation, and that the foregoing is a true, correct, and complete copy of the resolutions adopted by the unanimous written consent of the Board of Directors of the Company, effective as of March 16, 2022. I further certify that such resolutions have not been amended, modified, rescinded, or revoked in any respect and remain in full force and effect as of the date hereof.
IN WITNESS WHEREOF, I have hereunto set my hand as of the date written below.
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Sandra Haverford General Counsel & Corporate Secretary Calloway-Briggs Renewables Inc.
Date: ________