ATTORNEY-CLIENT PRIVILEGED & CONFIDENTIAL ATTORNEY WORK PRODUCT

ATTORNEY-CLIENT PRIVILEGED & CONFIDENTIAL ATTORNEY WORK PRODUCT
CALDERWOOD & HARKNESS LLP 599 Lexington Avenue New York, NY 10022
DUE DILIGENCE REQUEST LIST EMPLOYMENT & BENEFITS
Addressed to:
Sandra Haverford General Counsel & Corporate Secretary Calloway-Briggs Renewables Inc. 4200 Ridgeline Parkway, Suite 1100 Austin, TX 78746
Rachel Whitmore Chief People Officer Calloway-Briggs Renewables Inc. 4200 Ridgeline Parkway, Suite 1100 Austin, TX 78746
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INTRODUCTORY INSTRUCTIONS
This Due Diligence Request List — Employment & Benefits (this "Request List") sets forth requests for documents and information relating to the employment, compensation, and employee benefit matters of Calloway-Briggs Renewables Inc. ("CBR" or the "Company") and its direct and indirect subsidiaries, in connection with the proposed initial public offering (the "IPO") of approximately $600,000,000 of shares of common stock of the Company on the New York Stock Exchange (proposed ticker symbol: CBRI).
Scope of Requests. Unless otherwise specified, each request in this Request List covers CBR and all of its direct and indirect subsidiaries, including the following entities (collectively with CBR, the "Company Group"):
•  CBR Holdings LLC
•  Calloway-Briggs Operating Company LLC
•  Solaris West Solar LLC
•  Red Mesa Wind Energy LLC
•  Painted Rock Solar LLC
•  Pronghorn Wind LLC
•  Brazos Energy Storage LLC
•  Mesquite Wind Holdings LLC
•  Cimarron Solar Development LLC
•  CBR Development Co. LLC
A complete list of subsidiary entities is set forth in Appendix B attached hereto for reference. The Company currently has approximately 1,240 employees across the Company Group.
Time Period. Unless otherwise indicated, each request covers the period from January 1, 2019 through the most recent practicable date prior to the date of production.
General Instructions. The following instructions apply to all requests set forth in this Request List:
1.  Document Production. Please provide complete and legible copies of all requested documents, including all amendments, supplements, exhibits, schedules, side letters, and attachments thereto. Where a request calls for a summary, schedule, or description and no existing document satisfies the request, please prepare and provide a written response addressing each element of the request.
2.  Non-Existence of Documents. Where documents responsive to a particular request do not exist, please provide a written statement to that effect, specifying the request number and confirming that no responsive documents exist for any entity within the Company Group.
3.  Identification of Responding Party. For each response, please identify the individual(s) responsible for gathering and reviewing the responsive materials, together with the date on which the response is provided.
4.  Organization of Responses. All responses should be organized by request number (e.g., 1.1, 1.2, 2.1, etc.) to facilitate efficient review. Where a single document is responsive to multiple requests, it may be produced once with appropriate cross-references noted.
5.  Cross-References to Other Request Lists. Certain requests in this Request List may overlap with requests set forth in the Due Diligence Request List — Corporate/General or other due diligence request lists circulated in connection with the proposed IPO. Where responsive documents have already been produced in response to another request list, please note the cross-reference (including the applicable request number in the other list) rather than duplicating the production.
6.  Coordination of Responses. All responses should be coordinated through Sandra Haverford, General Counsel & Corporate Secretary, and Rachel Whitmore, Chief People Officer. Please direct any questions regarding the scope or interpretation of individual requests to the undersigned.
7.  Delivery of Materials. All materials should be uploaded to the secure virtual data room (the "Data Room") established for the proposed IPO. Materials should be organized in the Data Room by request number in accordance with the folder structure provided separately. To the extent any documents cannot be uploaded to the Data Room (e.g., due to file size or format limitations), hard copies may be delivered to:
Calderwood & Harkness LLP 599 Lexington Avenue New York, NY 10022
Attention: Brendan Walsh
8.  Privilege. To the extent any responsive documents are subject to the attorney-client privilege, the attorney work-product doctrine, or any other applicable privilege or protection, please identify such documents on a privilege log rather than producing them, and consult with the undersigned regarding the appropriate treatment of such materials.
9.  Continuing Obligation. This Request List is not intended to be exhaustive. We may supplement this Request List with additional requests as our review progresses. In addition, to the extent that additional documents or information responsive to these requests come into existence or come to the attention of the Company or its personnel after the initial production, we ask that such materials be produced on a rolling basis.
SECTION I: ORGANIZATIONAL INFORMATION AND EMPLOYEE CENSUS
Request 1.1. Current organizational chart for CBR and all subsidiaries within the Company Group, showing all departments, reporting lines, and headcount by entity, location, and function. The organizational chart should reflect the Company's current structure and should identify each subsidiary or project-level special purpose vehicle ("SPV") through which employees are engaged. To the extent that separate organizational charts exist for individual subsidiaries, project sites, or functional groups (e.g., development, construction, operations and maintenance, finance, legal, human resources), please provide each such chart.
Request 1.2. Employee census or headcount report as of the most recent practicable date, broken down by:
(a) Entity (i.e., CBR, CBR Holdings LLC, Calloway-Briggs Operating Company LLC, each project-level SPV, and CBR Development Co. LLC);
(b) Location and state of employment (including, without limitation, Texas, New Mexico, Arizona, California, Oklahoma, and any other jurisdiction in which any member of the Company Group employs or has employed individuals during the relevant period);
(c) Full-time versus part-time employment status;
(d) Exempt versus non-exempt classification under the Fair Labor Standards Act ("FLSA") and applicable state wage-and-hour laws; and
(e) Job title and job level (or equivalent internal classification or banding system used by the Company).
Request 1.3. Historical headcount data for fiscal year 2019 ("FY 2019"), fiscal year 2020 ("FY 2020"), fiscal year 2021 ("FY 2021"), and the first quarter of fiscal year 2022 ("Q1 2022"), presented in a format consistent with the breakdowns requested in Request 1.2 above, to the extent such data is available. Where exact historical breakdowns are not available, please provide the best available approximation and identify any limitations in the data.
Request 1.4. A list of all office locations and project-site locations at which employees of any member of the Company Group are based, organized by state. For each location, please indicate the approximate number of employees, the entity that employs the workers at such location, and whether the location is an office, a project construction site, or an operating project site.
SECTION II: EXECUTIVE EMPLOYMENT AGREEMENTS
Request 2.1. Copies of all employment agreements, offer letters, and any amendments, supplements, or side letters for each of the following named executive officers of the Company:
(a) Garrett Calloway, Co-Founder, Chairman & Chief Executive Officer;
(b) Elaine Briggs, Co-Founder & President, Development;
(c) Marcus Yoon, Chief Financial Officer;
(d) Sandra Haverford, General Counsel & Corporate Secretary;
(e) Dale Renfroe, Chief Operating Officer;
(f) Priya Anand, Senior Vice President, Finance & Treasurer;
(g) Tomás Quintero, Senior Vice President, Project Development; and
(h) Rachel Whitmore, Chief People Officer.
For purposes of this request, "employment agreements" includes any written or oral agreement, understanding, or arrangement governing the terms and conditions of the individual's employment, including provisions relating to compensation, benefits, termination, severance, restrictive covenants, and any other material terms.
Request 2.2. Copies of all employment agreements, offer letters, and any amendments, supplements, or side letters for any other officer, vice president, or senior manager of any member of the Company Group whose current annual base compensation exceeds $200,000. To the extent that a comprehensive list of such individuals does not already exist, please prepare and provide such a list, including the individual's name, title, employing entity, date of hire, and current annual base compensation.
Request 2.3. A schedule of current compensation for each named executive officer identified in Request 2.1 above, including the following elements:
(a) Annual base salary (current rate);
(b) Target annual cash bonus or incentive opportunity (expressed as a percentage of base salary and/or a dollar amount), together with a description of the applicable performance metrics and any threshold, target, and maximum payout levels;
(c) Equity-based compensation, including all outstanding stock options, restricted stock units ("RSUs"), performance stock units ("PSUs"), profits interests, phantom equity awards, or other equity-based awards, specifying for each award the type of award, grant date, number of shares or units subject to the award, exercise or strike price (if applicable), vesting schedule, and current vesting status;
(d) Any sign-on bonuses, retention bonuses, or special incentive arrangements (whether paid or payable);
(e) All perquisites and other personal benefits, including but not limited to car allowances, housing allowances, relocation assistance, club memberships, executive physical programs, financial planning or tax preparation assistance, supplemental insurance coverage, and any other benefits not generally available to all employees.
Request 2.4. Copies of any compensation arrangements, consulting agreements, advisory agreements, or other agreements or understandings with the co-founders, Garrett Calloway and Elaine Briggs, that are separate from and in addition to their employment agreements with the Company. This request includes, without limitation, any arrangements between either co-founder and Pinnacle Vista Capital Partners III, LP ("Pinnacle Vista"), Pinnacle Vista Capital Management LLC, or any of their respective affiliates, including any management carry, co-investment arrangements, transaction-fee sharing, monitoring-fee sharing, or similar arrangements.
Request 2.5. A summary of any management-services agreement, management-fee arrangement, or similar arrangement between any member of the Company Group and Pinnacle Vista Capital Partners III, LP or any of its affiliates (including Pinnacle Vista Capital Management LLC). We understand that there is an existing management-services agreement pursuant to which Pinnacle Vista receives an annual management fee of $2,400,000, which is scheduled to terminate upon the consummation of the IPO. Please provide a copy of the management-services agreement and all amendments thereto, together with a description of the terms and conditions of termination, any termination fees or payments, and any ongoing obligations that survive termination.
SECTION III: SEVERANCE AND CHANGE-OF-CONTROL ARRANGEMENTS
Request 3.1. Copies of all severance agreements, severance plans, severance policies, or severance guidelines applicable to any employee or group of employees of any member of the Company Group, whether set forth in a stand-alone agreement, an employment agreement, an employee handbook, or otherwise. This request includes both individual severance arrangements negotiated with specific employees and any broad-based severance plans or policies applicable to categories of employees (e.g., all salaried employees, all employees at a particular level, or all employees of a particular entity).
Request 3.2. Copies of all change-of-control agreements, "golden parachute" agreements, or provisions in any employment agreement, equity award agreement, or other arrangement that provide for payments, benefits, or accelerated vesting upon a change of control of the Company, any member of the Company Group, or any material portion of the Company's assets. For purposes of this request, "change of control" includes any sale of all or substantially all assets, any merger or consolidation, any change in the majority of the board of directors, and any acquisition of a specified percentage of outstanding voting securities, however defined in the applicable agreement or plan.
Request 3.3. An analysis or summary of all payments and benefits that would be triggered by the proposed IPO itself, or by any change of control of CBR (whether or not the IPO constitutes a change of control under the applicable agreements), including payments and benefits arising under:
(a) Employment agreements;
(b) Severance agreements and plans;
(c) Equity compensation plans and individual award agreements;
(d) Nonqualified deferred compensation arrangements;
(e) The Pinnacle Vista management-services agreement; and
(f) Any other agreement, plan, or arrangement.
To the extent that the Company has prepared any estimates of the aggregate cost of such payments and benefits, or any analyses under Section 280G of the Internal Revenue Code (relating to excess parachute payments), please provide copies of such estimates and analyses.
Request 3.4. Copies of any retention agreements or retention bonus arrangements entered into in connection with the proposed IPO, or entered into at any other time and currently in effect, with any employee, officer, or other service provider of any member of the Company Group.
Request 3.5. A schedule identifying all "single-trigger" and "double-trigger" vesting acceleration provisions in any employment agreement, equity plan, award agreement, or other arrangement with any employee or officer of any member of the Company Group. For purposes of this request, a "single-trigger" provision is one that provides for accelerated vesting solely upon the occurrence of a change of control (or similar event), without requiring a qualifying termination of employment, and a "double-trigger" provision is one that requires both a change of control and a qualifying termination of employment. Please identify each applicable agreement or plan, the individual(s) covered, the triggering events, and the nature and extent of the acceleration.
SECTION IV: NON-COMPETITION, NON-SOLICITATION, AND RESTRICTIVE COVENANT AGREEMENTS
Request 4.1. Copies of all non-competition agreements, non-solicitation agreements, and other restrictive covenant agreements (including non-servicing and garden-leave provisions) with current and former employees, officers, directors, and consultants of any member of the Company Group. Where a large number of individuals are subject to a standard form of restrictive covenant agreement, production of the standard form together with a list of individuals who have executed such form is acceptable.
Request 4.2. Copies of the form(s) of non-competition and/or non-solicitation agreement currently in use by the Company or any member of the Company Group. If different forms are used for different categories of personnel (e.g., executives, management-level employees, technical employees, sales personnel), please provide each such form and identify the categories to which it applies.
Request 4.3. Copies of all confidentiality, non-disclosure, or proprietary information agreements entered into with employees, officers, directors, or consultants of any member of the Company Group. For standard-form confidentiality or non-disclosure agreements used across the organization, please provide the current standard form together with a confirmation that all current employees have executed such form. For any non-standard confidentiality or non-disclosure agreements (i.e., agreements that contain terms or provisions that differ materially from the standard form), please provide complete copies of each such agreement.
Request 4.4. Copies of all invention-assignment agreements, work-for-hire agreements, intellectual property assignment agreements, or similar agreements with employees, officers, or consultants of any member of the Company Group pursuant to which such individuals have assigned (or agreed to assign) to the Company or any subsidiary any intellectual property rights, inventions, or works of authorship. If a standard form is used, please provide the standard form together with a list of individuals who have executed it, and provide complete copies of any non-standard agreements.
Request 4.5. A summary of any ongoing disputes, threatened disputes, demand letters, cease-and-desist letters, or litigation relating to restrictive covenants (including non-competition, non-solicitation, confidentiality, and invention-assignment obligations) to which any member of the Company Group is a party, whether as plaintiff or defendant. Please cross-reference to the Due Diligence Request List — Litigation for any matters already produced in response to that request list.
SECTION V: OFFER LETTERS AND STANDARD EMPLOYMENT DOCUMENTATION
Request 5.1. Copies of the form(s) of offer letter currently in use by the Company or any member of the Company Group for each of the following employee levels, to the extent separate forms are utilized:
(a) Executive-level employees;
(b) Management-level employees;
(c) Professional-level employees;
(d) Technical-level employees;
(e) Administrative-level employees; and
(f) Field and operations employees (including project-site personnel, wind-turbine technicians, solar installation and maintenance technicians, and battery-storage facility operators).
Request 5.2. Copies of all current employee handbooks and any supplements, addenda, or amendments thereto, for each jurisdiction or entity within the Company Group where a separate handbook is maintained. If a single handbook is used across the Company Group, please provide the current version of that handbook and identify any jurisdiction-specific addenda or supplements. Please also indicate the most recent date on which each handbook was reviewed or updated.
Request 5.3. Copies of all policies and procedures manuals currently provided to employees of any member of the Company Group, including but not limited to the following:
(a) Code of conduct and/or code of ethics;
(b) Anti-harassment and anti-discrimination policies;
(c) Whistleblower and ethics-hotline policy;
(d) Drug and alcohol policy (including policies applicable to employees performing safety-sensitive functions at project sites);
(e) Social media and electronic communications policy;
(f) Remote work, telecommuting, and flexible work arrangements policy;
(g) Travel and expense reimbursement policy; and
(h) Any other material employment policies not otherwise covered by this Request List.
Request 5.4. Copies of all at-will employment acknowledgment forms, disclaimers, or similar documents used by the Company or any member of the Company Group. If such acknowledgments are incorporated into the employee handbook or offer letters, please identify where they appear.
SECTION VI: INDEPENDENT CONTRACTOR AND WORKER CLASSIFICATION
Request 6.1. A list of all independent contractors, consultants, and temporary or staffing-agency workers currently engaged by any member of the Company Group, including the following information for each individual or entity:
(a) Name of the individual or entity (or, if the engagement is through a staffing agency, the name of the agency and a description of the role);
(b) The member of the Company Group that has engaged the individual or entity;
(c) Description of the services performed;
(d) Compensation or fee arrangement (hourly rate, project fee, retainer, etc.), including the annualized cost of the engagement;
(e) Start date and expected duration of the engagement; and
(f) Location where services are primarily performed.
Request 6.2. Copies of the form(s) of independent contractor agreement and consulting agreement currently in use by the Company or any member of the Company Group. If different forms are used for different types of engagements (e.g., professional consulting, construction services, engineering services, staffing), please provide each form.
Request 6.3. Copies of any non-standard independent contractor or consulting agreements with individual contractors whose compensation exceeds $100,000 per annum, or who are engaged in key functions such as engineering, project development, finance, legal, regulatory, or executive advisory services. This request includes any consulting agreements with former employees of the Company Group.
Request 6.4. A summary of the Company's policies and procedures for classifying workers as employees versus independent contractors, including any internal guidelines, decision frameworks, checklists, or legal opinions obtained from outside counsel or tax advisors regarding worker classification. Please describe the process by which classification decisions are made and the individuals responsible for approving such classifications.
Request 6.5. A description of any pending or threatened audits, investigations, or claims by any federal or state agency — including the Internal Revenue Service ("IRS"), the U.S. Department of Labor ("DOL"), or any state labor, employment, or tax agency — relating to the classification of any individual as an independent contractor rather than an employee. This request also covers any voluntary self-audits or reclassification efforts undertaken by the Company or any subsidiary.
Request 6.6. Copies of all master service agreements, staffing agreements, temporary-worker agreements, or similar arrangements with staffing agencies or temporary-employment firms, together with a list of the staffing agencies currently engaged and the approximate number of temporary or agency workers currently on assignment with any member of the Company Group.
SECTION VII: COLLECTIVE BARGAINING AND LABOR RELATIONS
Request 7.1. A statement as to whether any employees of CBR or any subsidiary within the Company Group are currently represented by a labor union, works council, or other collective bargaining representative, or are covered by any collective bargaining agreement, whether at the company level, the project-site level, or otherwise.
Request 7.2. Copies of all collective bargaining agreements ("CBAs"), if any, including all amendments, memoranda of understanding, side letters, grievance settlements, and arbitration awards that supplement or modify any CBA. For each CBA, please identify the applicable union or labor organization, the bargaining unit covered, the number of employees in the bargaining unit, the effective date and expiration date of the agreement, and the status of any ongoing negotiations for a successor agreement.
Request 7.3. A description of any pending or threatened union organizing campaigns, representation petitions filed with the National Labor Relations Board ("NLRB"), unfair labor practice charges filed with or by the NLRB, or other labor relations proceedings involving any member of the Company Group. This request covers activities during the past five years.
Request 7.4. Copies of any neutrality agreements, voluntary recognition agreements, card-check agreements, labor peace agreements, or similar agreements entered into between any member of the Company Group and any labor union or labor organization.
Request 7.5. A description and history of any work stoppages, strikes, slowdowns, lockouts, or other concerted labor actions involving employees of any member of the Company Group during the past five years. Please include the dates, duration, number of employees involved, the entity and location affected, and the circumstances giving rise to the action.
SECTION VIII: BENEFIT PLANS — HEALTH AND WELFARE
Request 8.1. Copies of all health and welfare benefit plans, programs, and arrangements sponsored, maintained, contributed to, or required to be contributed to by any member of the Company Group for the benefit of current or former employees, retirees, or their dependents, including the following:
(a) Medical and hospital insurance plans;
(b) Dental insurance plans;
(c) Vision insurance plans;
(d) Life insurance plans and accidental death and dismemberment ("AD&D") coverage;
(e) Short-term disability plans;
(f) Long-term disability plans;
(g) Flexible spending account plans (health care and dependent care);
(h) Health savings account ("HSA") programs;
(i) Employee assistance programs ("EAPs"); and
(j) Wellness programs and initiatives.
For each plan, please provide the plan document, summary plan description, and any amendments or modifications thereto.
Request 8.2. Summary plan descriptions ("SPDs") and summaries of material modifications ("SMMs") for each health and welfare plan identified in response to Request 8.1. If no formal SPD has been prepared for a particular plan, please so indicate and provide whatever written description of the plan has been provided to participants.
Request 8.3. Copies of all insurance contracts, group insurance policies, administrative services only ("ASO") agreements, third-party administrator agreements, and stop-loss or reinsurance policies for each health and welfare plan. Please include all riders, endorsements, and amendments.
Request 8.4. Copies of the most recent Form 5500 annual return/report filings (for the last three plan years, i.e., plan years ending in 2019, 2020, and 2021) for each ERISA-covered health and welfare plan, if applicable, together with all schedules, attachments, and actuarial certifications filed therewith.
Request 8.5. Evidence of compliance with the continuation coverage requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), including copies of COBRA initial notices, election notices, and premium schedules currently in use, and a description of any COBRA-related claims, disputes, or compliance issues that have arisen during the past three years.
Request 8.6. Copies of all policies and procedures adopted by the Company or any member of the Company Group to comply with the privacy and security requirements of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), as amended by the Health Information Technology for Economic and Clinical Health Act ("HITECH"), including all Business Associate Agreements entered into with third-party service providers.
Request 8.7. A summary of any self-insured health plan arrangements maintained by any member of the Company Group, including a description of the plan design, current reserve levels, claims experience for the past three plan years, and copies of any actuarial reports, loss-run reports, or claims analyses prepared by the plan's actuary, third-party administrator, or stop-loss carrier.
SECTION IX: BENEFIT PLANS — RETIREMENT AND DEFERRED COMPENSATION
Request 9.1. Copies of all retirement plans, pension plans, and other similar plans sponsored, maintained, contributed to, or required to be contributed to by any member of the Company Group for the benefit of current or former employees, including the following:
(a) 401(k) plans or other Section 401(a) qualified defined contribution plans;
(b) Defined benefit plans or pension plans (if any);
(c) Profit-sharing plans; and
(d) Money purchase pension plans (if any).
Request 9.2. Plan documents, trust agreements, adoption agreements, and all amendments for each retirement plan identified in response to Request 9.1. If any plan has been restated, please provide the most recent restated plan document together with all subsequent amendments.
Request 9.3. Summary plan descriptions ("SPDs") for each retirement plan identified in response to Request 9.1, together with any summaries of material modifications ("SMMs").
Request 9.4. The most recent IRS determination letter or opinion/advisory letter for each qualified retirement plan. If no determination letter has been obtained, please so indicate and describe the basis on which the Company has concluded that the plan satisfies the qualification requirements of Section 401(a) of the Internal Revenue Code.
Request 9.5. Copies of the most recent Form 5500 annual return/report filings (for the last three plan years, i.e., plan years ending in 2019, 2020, and 2021) for each retirement plan, including all schedules, attachments, and audited financial statements (if the plan is subject to the audit requirement under ERISA Section 103).
Request 9.6. The most recent nondiscrimination testing results for each 401(k) or other qualified plan, including:
(a) Actual deferral percentage ("ADP") test results;
(b) Actual contribution percentage ("ACP") test results;
(c) Top-heavy testing results;
(d) Coverage testing results under Section 410(b) of the Internal Revenue Code; and
(e) Any corrective actions taken in connection with testing failures, including excess contributions returned, qualified nonelective contributions ("QNECs") made, or corrections under the IRS Employee Plans Compliance Resolution System ("EPCRS").
Request 9.7. A schedule of employer matching contributions, safe-harbor contributions, and/or profit-sharing contributions made to each qualified retirement plan for each plan year from 2019 through 2021, including the aggregate dollar amount of contributions and the formula or methodology used to determine such contributions.
Request 9.8. Copies of all nonqualified deferred compensation plans, supplemental executive retirement plans ("SERPs"), excess benefit plans, and any other deferred compensation arrangements subject to (or intended to be exempt from) Section 409A of the Internal Revenue Code, including:
(a) Plan documents and all amendments;
(b) Copies of participant deferral elections and distribution elections;
(c) Trust agreements or rabbi trust agreements, if any; and
(d) A list of all current participants and the aggregate deferred compensation balance for each participant as of the most recent practicable date.
Request 9.9. Any analysis, memorandum, or summary of Section 409A compliance for each nonqualified deferred compensation arrangement identified in response to Request 9.8, including any analysis of whether each such arrangement is in documentary and operational compliance with the requirements of Section 409A. Please cross-reference to the Section 409A Valuation Review Memorandum being prepared separately in connection with this engagement, to the extent applicable.
SECTION X: EQUITY COMPENSATION PLANS AND AWARDS
Request 10.1. Copies of all equity compensation plans currently in effect or under which awards remain outstanding, sponsored by any member of the Company Group, including:
(a) Plan documents and all amendments thereto;
(b) Forms of award agreements for each type of award granted under each plan (including stock options, restricted stock awards, restricted stock units, performance stock units, phantom equity awards, profits interests, and any other equity-based or equity-linked awards); and
(c) Any board of directors or compensation committee resolutions approving the adoption or amendment of such plans or the grant of awards thereunder.
Request 10.2. A description of the proposed 2022 Omnibus Equity Incentive Plan and the proposed 2022 Employee Stock Purchase Plan, including the following:
2022 Omnibus Equity Incentive Plan:
(a) The proposed share reserve of 12,727,273 shares, representing approximately 10% of the post-IPO outstanding shares of common stock on a fully-exercised and fully-converted basis (based on 127,272,727 shares of common stock outstanding on a post-IPO, fully-diluted basis);
(b) The types of awards that may be granted under the plan;
(c) Eligibility criteria;
(d) Plan administration (including the role of the Compensation Committee);
(e) Any annual limits on awards to individual participants;
(f) Treatment of awards upon termination of employment or change of control; and
(g) Any "evergreen" or automatic share replenishment provisions.
2022 Employee Stock Purchase Plan:
(a) The proposed share reserve of 2,545,455 shares, representing approximately 2% of post-IPO outstanding shares of common stock;
(b) The purchase price discount of 15%;
(c) The six-month offering period structure;
(d) Qualification under Section 423 of the Internal Revenue Code;
(e) Eligibility criteria and participation limits; and
(f) Any "evergreen" or automatic share replenishment provisions.
Please provide all current drafts of the plan documents, together with any board or compensation committee materials relating to the design and approval of these plans.
Request 10.3. A complete schedule of all outstanding equity awards as of the most recent practicable date, for each member of the Company Group, setting forth the following information for each award:
(a) Grantee name and current title or position;
(b) Type of award (stock option, RSU, PSU, restricted stock, profits interest, phantom equity, etc.);
(c) Grant date;
(d) Exercise price or strike price (if applicable);
(e) Number of shares, units, or interests subject to the award (at grant);
(f) Number of shares, units, or interests vested as of the date of the schedule;
(g) Number of shares, units, or interests unvested as of the date of the schedule;
(h) Vesting schedule and vesting commencement date;
(i) Expiration date (if applicable); and
(j) Fair market value of the underlying shares or interests on the date of grant, as determined by the board of directors or compensation committee (and the basis for such determination, including any reference to a Section 409A valuation).
Request 10.4. A schedule of proposed IPO equity grants, including the following grants anticipated to be made in connection with the IPO:
(a) Garrett Calloway, Co-Founder, Chairman & CEO: 500,000 RSUs;
(b) Elaine Briggs, Co-Founder & President, Development: 400,000 RSUs;
(c) Marcus Yoon, Chief Financial Officer: 300,000 RSUs;
(d) Other named executive officers: 150,000 to 200,000 RSUs each (please specify the proposed grant for each individual); and
(e) Vesting terms: four-year ratable vesting (i.e., 25% per year).
Please provide any board or compensation committee materials, including compensation consultant recommendations, supporting the proposed grant levels.
Request 10.5. Copies of all Section 409A valuations (i.e., independent fair market value appraisals of the Company's common stock, commonly referred to as "409A valuations") obtained by the Company from January 1, 2019 through Q1 2022, including:
(a) Complete valuation reports;
(b) Supporting methodologies, assumptions, and financial projections used in each valuation;
(c) Board of directors or compensation committee resolutions approving the fair market value determinations; and
(d) Any correspondence with the valuation firm relating to the scope of the engagement, the selection of valuation methodology, or revisions to the valuation.
Please cross-reference to the Section 409A Valuation Review Memorandum and the cheap-stock analysis being prepared separately in connection with this engagement.
Request 10.6. Copies of any equity repurchase agreements, rights of first refusal, call rights, put rights, or similar agreements or provisions relating to shares of Company common stock, membership interests, or other equity securities held by current or former employees, officers, or consultants of any member of the Company Group.
Request 10.7. Copies of any stockholders' agreement, investor rights agreement, or similar agreement containing provisions applicable to employee stockholders, including but not limited to transfer restrictions, lock-up provisions, tag-along rights, drag-along rights, registration rights, and information rights. Please cross-reference to the Amended and Restated Stockholders' Agreement among CBR, Pinnacle Vista Capital Partners III, LP, and the Founders (Garrett Calloway and Elaine Briggs) provided in response to the Due Diligence Request List — Corporate/General, to the extent applicable.
Request 10.8. Copies of any benchmarking studies, peer-group analyses, market surveys, tally sheets, or compensation consultant reports related to equity compensation design, grant levels, or dilution, including all materials prepared by or received from Clarendon Rowe Advisory Group LLC (Patricia Voss, Senior Managing Director) or any other compensation consultant engaged by the Company or the Compensation Committee.
SECTION XI: COMPENSATION POLICIES AND PRACTICES
Request 11.1. A description of the Company's compensation philosophy and policies, including any written statements of compensation philosophy adopted by the board of directors or the Compensation Committee, and a description of the Company's approach to setting base salaries, determining annual bonus opportunities, granting equity awards, and positioning total compensation relative to market benchmarks.
Request 11.2. Copies of all annual incentive and bonus plan documents currently in effect or under which payments were made during FY 2019, FY 2020, FY 2021, or Q1 2022, including:
(a) Plan documents and all amendments;
(b) A description of the performance metrics applicable to each plan year (e.g., revenue, EBITDA, megawatts developed, capacity factor, safety metrics, individual performance goals);
(c) Target and maximum payout levels (expressed as a percentage of base salary or as a dollar amount);
(d) Actual payouts for each named executive officer and for each other participant category for FY 2019, FY 2020, and FY 2021; and
(e) Any mid-year adjustments to performance metrics or payout levels.
Request 11.3. Copies of any long-term incentive plans (other than the equity plans covered in Section X) maintained by any member of the Company Group, including any cash-based long-term incentive plans, multi-year performance bonus plans, or similar arrangements.
Request 11.4. A schedule of all perquisites and other personal benefits provided to named executive officers and directors of CBR, including but not limited to:
(a) Automobile allowances or company-provided vehicles;
(b) Housing or relocation allowances;
(c) Club memberships (country club, athletic club, dining club, etc.);
(d) Tax gross-up payments (including any gross-ups on relocation expenses, perquisites, or Section 280G excise tax);
(e) Personal use of company aircraft (if any);
(f) Executive physical or health programs;
(g) Financial planning, tax preparation, or estate planning services;
(h) Supplemental disability or life insurance coverage; and
(i) Any other perquisite with an aggregate incremental cost exceeding $10,000 per year.
Request 11.5. Copies of all director compensation policies, arrangements, or programs for non-employee directors of CBR, including a description of the following for each non-employee director (Warren Okoro, Catherine Liang, Richard Estavez, Hugh Pemberton, and Diane Kovac):
(a) Annual board retainer;
(b) Committee chair and committee member retainers;
(c) Per-meeting fees (if any);
(d) Equity grants (including the type, number, vesting schedule, and grant date of any equity awards); and
(e) Any other compensation, reimbursement, or benefits provided.
Request 11.6. Copies of any clawback policies (including any compensation recovery policies adopted in anticipation of compliance with the Dodd-Frank Wall Street Reform and Consumer Protection Act and SEC and NYSE listing standards), hedging and pledging policies, stock ownership guidelines, and equity retention requirements applicable to officers, directors, or other employees.
Request 11.7. Copies of the charter of the Compensation Committee of the board of directors. Please note that our understanding is that the Compensation Committee currently comprises Catherine Liang (Chair), Richard Estavez, and Warren Okoro. Please confirm the current composition and provide copies of all committee charters, including any recent amendments.
Request 11.8. Copies of the engagement letter and any subsequent amendments or extensions of the engagement between the Company (or the Compensation Committee) and Clarendon Rowe Advisory Group LLC for compensation consulting services, together with copies of all reports, presentations, analyses, and recommendations prepared by Clarendon Rowe Advisory Group LLC for the Company or the Compensation Committee during the period covered by this Request List.
SECTION XII: OSHA AND WORKPLACE SAFETY COMPLIANCE
Request 12.1. Copies of all OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 300A (Summary of Work-Related Injuries and Illnesses) for each establishment of each member of the Company Group for the past three calendar years (2019, 2020, and 2021). Please organize the logs by establishment and calendar year.
Request 12.2. A description of all inspections, citations, penalties, abatement orders, or enforcement actions by the Occupational Safety and Health Administration ("OSHA") or any state occupational safety and health agency involving any member of the Company Group during the past five years. For each such matter, please provide copies of all citations, penalty assessments, abatement plans, informal settlement agreements, and any related correspondence.
Request 12.3. Copies of all workplace safety programs, safety manuals, job hazard analyses, and safety training materials maintained by any member of the Company Group, including programs and materials specific to solar energy project sites, wind energy project sites (including programs addressing fall protection, electrical safety, confined-space entry, and lockout/tagout procedures for wind turbines), and battery-storage project sites (including programs addressing thermal runaway, electrolyte management, and fire safety).
Request 12.4. A description of any serious workplace injuries (including hospitalizations, amputations, and losses of an eye) or fatalities involving employees or contractors of any member of the Company Group at any project site or office location during the past five years. For each such incident, please provide copies of any incident investigation reports, root cause analyses, corrective action plans, and communications with OSHA or other regulatory agencies.
Request 12.5. Copies of any voluntary protection program ("VPP") certifications, OSHA Strategic Partnership agreements, safety achievement awards, or similar safety recognitions received by any member of the Company Group.
Request 12.6. A description of any pending or threatened OSHA complaints, OSHA whistleblower claims (including claims under Section 11(c) of the Occupational Safety and Health Act), or other workplace safety-related claims or proceedings involving any member of the Company Group.
SECTION XIII: EMPLOYMENT LITIGATION AND PROCEEDINGS
Request 13.1. A summary of all pending, threatened, or recently settled (within the past three years) employment-related litigation, arbitration proceedings, administrative complaints, or government agency proceedings involving any member of the Company Group, whether as plaintiff, defendant, respondent, or other party. This request includes, without limitation:
(a) Wrongful termination claims;
(b) Claims of discrimination on any basis (including claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act ("ADA"), the Age Discrimination in Employment Act ("ADEA"), Section 1981, and state or local equivalents);
(c) Claims of sexual harassment or other unlawful harassment;
(d) Wage-and-hour claims (including claims under the FLSA and state wage-and-hour laws for unpaid overtime, minimum-wage violations, misclassification of exempt status, meal-and-rest-period violations, and similar matters);
(e) Retaliation and whistleblower claims (including claims under the Sarbanes-Oxley Act, the Dodd-Frank Act, and state whistleblower statutes);
(f) Workers' compensation claims that are material in amount or involve allegations of employer misconduct;
(g) Charges filed with or by the U.S. Equal Employment Opportunity Commission ("EEOC") or any state or local fair employment practices agency; and
(h) DOL investigations, audits, or enforcement actions relating to wages, hours, or working conditions.
For each matter, please provide the name of the claimant, the forum, the date filed or threatened, a brief description of the allegations, the current status, and an estimate of the potential exposure (if available).
Request 13.2. A description of all settlements, consent decrees, conciliation agreements, and similar resolutions of employment-related matters during the past five years involving any member of the Company Group, including the material terms and the amounts paid or to be paid.
Request 13.3. Copies of any demand letters, complaints, petitions, charges, or agency notices received by any member of the Company Group relating to employment matters that have not yet been resolved as of the date of production.
Request 13.4. Please cross-reference to the Due Diligence Request List — Litigation for any employment-related matters already produced in response to that request list, identifying the applicable request numbers.
SECTION XIV: IMMIGRATION AND WORK AUTHORIZATION
Request 14.1. A description of the Company's policies and procedures for verifying employment eligibility and maintaining Form I-9 (Employment Eligibility Verification) records, including any internal audit or review processes and the identity of any outside counsel or service provider engaged to assist with I-9 compliance.
Request 14.2. A summary of all employees of any member of the Company Group who are currently on employer-sponsored work visas, including the following information for each such employee:
(a) Name and current title or position;
(b) Sponsoring entity within the Company Group;
(c) visa classification (H-1B, L-1A, L-1B, O-1, TN, E-2, or other);
(d) Visa expiration date; and
(e) Any pending petitions for extension, change of status, or adjustment of status.
Request 14.3. A description of any pending or threatened audits, investigations, or enforcement actions by U.S. Immigration and Customs Enforcement ("ICE"), U.S. Citizenship and Immigration Services ("USCIS"), the DOL, or any other federal or state agency relating to immigration compliance, I-9 compliance, or the employment of unauthorized workers. This request includes any notices of inspection ("NOIs"), fines, or penalties received during the past five years.
Request 14.4. Copies of any PERM labor certification applications (ETA Form 9089) filed on behalf of employees of any member of the Company Group that are currently pending or that have been approved within the past three years, together with a description of the status of each application and any related immigrant visa petitions (Form I-140).
SECTION XV: LEAVES OF ABSENCE AND ACCOMMODATION POLICIES
Request 15.1. Copies of all policies relating to family and medical leave under the Family and Medical Leave Act ("FMLA"), military leave under the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), and any state-specific leave requirements applicable to any member of the Company Group, including leave requirements under the laws of California, New Mexico, Arizona, Oklahoma, and Texas (and any other state in which employees are located). Please include any written leave-of-absence policies, procedures, and forms used in the administration of such leaves.
Request 15.2. A description of any paid family leave, paid sick leave, paid parental leave, or other paid time-off programs offered by any member of the Company Group, beyond what is required by applicable law, including the terms, eligibility criteria, and duration of such programs.
Request 15.3. Copies of any reasonable accommodation policies and interactive process procedures adopted by any member of the Company Group under the ADA and applicable state disability discrimination laws.
Request 15.4. A description of any COVID-19-related leave policies, accommodation policies, vaccination policies, or return-to-work policies that remain in effect as of the date of production for any member of the Company Group.
SECTION XVI: PAYROLL AND WAGE-AND-HOUR COMPLIANCE
Request 16.1. A description of the Company's payroll processing procedures, including the identification of the payroll service provider (e.g., Larkspur Systems, Tarrant Technologies, or other), the pay frequency for each category of employee, and the entities within the Company Group processed through the payroll system.
Request 16.2. A summary of all states and other jurisdictions in which any member of the Company Group is registered as an employer, maintains a state unemployment insurance account, and/or withholds state or local income taxes. Please identify the applicable entity for each jurisdiction.
Request 16.3. A description of any pending or completed wage-and-hour audits, investigations, or claims (by the DOL, any state agency, or through private litigation) involving any member of the Company Group during the past five years, including any voluntary compliance reviews or self-audits undertaken by the Company. For each matter, please describe the nature of the inquiry, the agency or claimant involved, the current status, and any amounts paid or accrued.
Request 16.4. A description of the Company's methodology for classifying employees as exempt or non-exempt under the FLSA and applicable state wage-and-hour laws, including any audits, reviews, or assessments performed by outside counsel, human resources consultants, or internal personnel to evaluate the accuracy of such classifications.
Request 16.5. Copies of any minimum-wage or overtime-exemption analyses prepared for specific job classifications, including any analyses relating to the application of the administrative, executive, professional, computer-employee, or outside-sales exemptions under the FLSA and state equivalents.
Request 16.6. A description of any commission-based, piece-rate, or alternative compensation structures used for any group of employees of the Company Group, including a description of the applicable compensation formula, the employees or positions to which it applies, and any written commission plans or agreements.
SECTION XVII: TRAINING AND DEVELOPMENT
Request 17.1. A description of all mandatory compliance training programs maintained by any member of the Company Group, including but not limited to:
(a) Sexual harassment prevention training (including any state-mandated training under California, New York, or other applicable state law);
(b) Ethics and compliance training;
(c) Workplace safety training;
(d) Cybersecurity awareness training; and
(e) Any other compliance training required by law, regulation, or Company policy.
For each program, please describe the frequency of training, the method of delivery (in-person, online, etc.), the categories of employees required to complete the training, and the system used to track completion.
Request 17.2. A description of all training records and professional certifications required by regulation for employees of any member of the Company Group, including but not limited to:
(a) OSHA-required safety training (e.g., OSHA 10-Hour, OSHA 30-Hour, hazard communication, bloodborne pathogens);
(b) NERC Critical Infrastructure Protection ("CIP") training for employees with access to bulk electric system cyber assets;
(c) Electrical safety and arc-flash training;
(d) Fall protection training and certification for wind-turbine technicians;
(e) First aid and CPR certification;
(f) Confined-space entry training; and
(g) Any other regulatory training or certification applicable to the Company's operations.
Please provide a summary of the Company's system for tracking and maintaining such records.
SECTION XVIII: KEY-PERSON AND SUCCESSION PLANNING
Request 18.1. A description of any key-person life insurance or key-person disability insurance policies maintained by any member of the Company Group covering any officer or employee, including the identity of the insured individual, the beneficiary, the face amount of coverage, the annual premium, and the issuing insurer.
Request 18.2. A summary of the Company's succession planning for senior management positions, including any formal succession plans adopted by the board of directors or the Compensation Committee, and any informal processes or discussions relating to management succession. Please identify any positions for which a successor has been identified or for which succession planning is in progress.
Request 18.3. Identification of any key employees who have provided notice of resignation, retirement, or other departure, or whose departure from the Company is anticipated or under discussion as of the date of production. Please also identify any key employees who are subject to expiring employment agreements or whose employment terms are currently under renegotiation.
SECTION XIX: MISCELLANEOUS
Request 19.1. Copies of all EEO-1 Component 1 reports (Employer Information Reports) filed by any member of the Company Group with the EEOC for the past three reporting years. If Component 2 (pay data) reports were filed, please provide those as well.
Request 19.2. Copies of any affirmative action plans maintained by any member of the Company Group, including any plans required under Executive Order 11246 for federal contractors or subcontractors, together with any OFCCP audit reports or compliance evaluations received during the past five years.
Request 19.3. A description of any material pending or anticipated changes to employee compensation, benefits, headcount, or organizational structure, including:
(a) Any planned reductions in force, layoffs, or restructurings;
(b) Any planned increases in headcount (by function and location);
(c) Any planned changes to base salaries, bonus programs, or benefit plans; and
(d) Any other changes that may be material to the Company's financial statements or that may require disclosure in the S-1 registration statement.
Request 19.4. Copies of any employee surveys, employee engagement reports, culture assessments, or similar studies or reports conducted within the past two years by or on behalf of any member of the Company Group.
Request 19.5. A description of any pending or anticipated employment-related obligations that will be triggered by the consummation of the proposed IPO, including but not limited to:
(a) Acceleration of vesting of any equity awards;
(b) Termination of the Pinnacle Vista management-services agreement (and any associated termination payments);
(c) Adoption of new public-company policies, including an insider trading policy, a code of ethics satisfying the requirements of Item 406 of Regulation S-K and NYSE listing standards, a clawback policy, stock ownership guidelines, and a hedging and pledging policy;
(d) Registration of equity compensation plans on Form S-8;
(e) Establishment of the Compensation Committee as a fully independent committee in compliance with NYSE listing standards; and
(f) Any other obligations triggered by the IPO or by the Company's transition to public-company status.
Request 19.6. Copies of any consulting or advisory agreements currently in effect with former employees of any member of the Company Group, including a description of the services to be provided, the compensation arrangement, and the term of the engagement.
Request 19.7. Any other documents, information, agreements, or materials relating to employment, compensation, and employee benefit matters that may be material to the preparation of the S-1 registration statement, the prospectus, or the related exhibits, or that may give rise to a risk factor disclosure, legal proceeding disclosure, or related-party transaction disclosure under applicable SEC rules and regulations.
APPENDIX A: DOCUMENT DELIVERY INSTRUCTIONS
The following instructions govern the delivery of documents and information in response to this Request List:
1.  Virtual Data Room. All materials should be uploaded to the secure virtual data room (the "Data Room") established for the proposed IPO. Materials should be organized in the Data Room by request number, using the folder structure provided separately by Calderwood & Harkness LLP. Each document should be clearly labeled with the applicable request number and a brief description of the document (e.g., "2.1 — Employment Agreement — Garrett Calloway — Amended 2021").
2.  Voluminous Files. For voluminous files, such as Form 5500 filings, OSHA logs, equity award schedules, and employee census data, indexed sub-folders within the applicable request number folder are acceptable. Each sub-folder should be clearly labeled.
3.  Privilege. Any documents withheld from production on the basis of the attorney-client privilege, the attorney work-product doctrine, or any other applicable privilege or protection should be identified on a privilege log. The privilege log should include, for each withheld document, the date of the document, the author and recipients, a general description of the subject matter (without disclosing privileged content), and the basis for the privilege claim. Please consult with the undersigned before withholding any documents on privilege grounds.
4.  Confidentiality Restrictions. To the extent any documents are subject to confidentiality restrictions imposed by third parties (e.g., insurance carriers, staffing agencies, or government agencies), please identify such restrictions and consult with the undersigned regarding appropriate treatment.
5.  Contact Information. Please direct all questions regarding this Request List to:
Brendan Walsh, Lead Associate Calderwood & Harkness LLP 599 Lexington Avenue New York, NY 10022 Telephone: (212) 558-4000
Email: bwalsh@calderwoodharkness.com
Natasha Forbes, Working Associate Calderwood & Harkness LLP 599 Lexington Avenue New York, NY 10022 Telephone: (212) 558-4000
Email: nforbes@calderwoodharkness.com
6.  Requested Return Date. The initial production of documents and information is requested by April 8, 2022. We understand that certain materials may require additional time to compile, and we are prepared to accept rolling production of additional documents as they become available through the conclusion of the due diligence period on April 29, 2022. Please advise us promptly of any anticipated delays in production so that we may adjust our review schedule accordingly.
APPENDIX B: SUBSIDIARY ENTITY LIST
The following is a list of the direct and indirect subsidiaries of Calloway-Briggs Renewables Inc. included within the scope of this Request List (collectively with CBR, the "Company Group"):
This list is based on the corporate structure chart provided by the Company as of the date of this Request List. To the extent that additional subsidiaries or affiliated entities are identified during the due diligence process, the scope of this Request List may be expanded accordingly.
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This Due Diligence Request List is prepared solely for the purpose of conducting due diligence in connection with the proposed initial public offering of Calloway-Briggs Renewables Inc. and is subject to the attorney-client privilege and the attorney work-product doctrine. This document is confidential and is not to be distributed to, or relied upon by, any third party without the prior written consent of Calderwood & Harkness LLP.
CALDERWOOD & HARKNESS LLP
By: ________
Brendan Walsh Lead Associate, Capital Markets
Supervised by: ________ Jennifer Kwon Responsi