CALDERWOOD & HARKNESS LLP Attorneys at Law
599 Lexington Avenue New York, NY 10022
Telephone: (212) 506-7000 Facsimile: (212) 506-7001 www.calderwoodharkness.com
March 10, 2022
Firm Matter No.: 1015-00001
VIA EMAIL AND Sundial Data Systems
Sandra Haverford, Esq. General Counsel & Corporate Secretary Calloway-Briggs Renewables Inc. 4200 Ridgeline Parkway, Suite 1100 Austin, TX 78746
Dear Ms. Haverford:
We are delighted to set forth in this letter (this "Engagement Letter") the terms and conditions upon which Calderwood & Harkness LLP ("C&H," "we," the "Firm," or "us") will represent Calloway-Briggs Renewables Inc., a Delaware corporation ("CBR," the "Company," or "you"), in the matter described below. We appreciate the confidence that you and the CBR management team have placed in our Firm, and we look forward to a productive and collaborative working relationship throughout this engagement.
1. Engagement and Scope of Representation
1.1 Engagement. Calderwood & Harkness LLP is pleased to confirm its engagement by Calloway-Briggs Renewables Inc., a Delaware corporation, in connection with the proposed initial public offering (the "IPO" or the "Offering") of shares of common stock, par value $0.01 per share, of the Company on the New York Stock Exchange (the "NYSE"). The anticipated aggregate offering size is approximately $600,000,000, which amount includes the full exercise of the underwriters' overallotment option (the "Overallotment Option"). The Company has indicated that it intends to list the shares of common stock under the proposed ticker symbol "CBRI." This Engagement Letter sets forth the terms upon which C&H will represent the Company in connection with the Offering, and upon countersignature by the Company, shall constitute a binding agreement between C&H and the Company with respect to the matters described herein.
1.2 Scope of Services
Calderwood & Harkness will serve as issuer's counsel to CBR in connection with the IPO. In such capacity, C&H will provide the following legal services in connection with the Offering:
(a) Registration Statement and Prospectus. Preparation, drafting, and filing of a registration statement on Form S-1 under the Securities Act of 1933, as amended (the "Securities Act"), including the prospectus contained therein (the "Prospectus"), and all amendments and supplements thereto. This work will include preparation and coordination of any confidential submissions to the Securities and Exchange Commission (the "SEC") under the Jumpstart Our Business Startups Act (the "JOBS Act"), to the extent the Company is eligible for and elects to avail itself of such confidential submission procedures. C&H will coordinate with the Company's management, auditors, and other advisors in connection with the drafting and review of the registration statement and Prospectus to ensure accuracy and completeness of disclosure.
(b) SEC Correspondence. Preparation of responses to written and oral comments from the staff of the SEC (including the Division of Corporation Finance and the Office of the Chief Accountant) on the registration statement, and management of all interactions with the SEC staff throughout the review process, including any pre-filing conferences, telephonic discussions, and requests for acceleration of effectiveness.
(c) Due Diligence. Coordination and conduct of comprehensive legal due diligence on the Company and its direct and indirect subsidiaries, including the preparation and distribution of due diligence request lists and the preparation of due diligence memoranda addressing, among other things, the following areas: corporate organization and capitalization; material contracts and commercial arrangements; regulatory compliance and permitting (including FERC, state public utility commission, and environmental permitting); real property interests (owned and leased); pending, threatened, and settled litigation and regulatory proceedings; employment and labor matters and employee benefit plans; tax structure and tax-equity arrangements; insurance coverage; intellectual property and technology; environmental compliance and liabilities; and outstanding indebtedness, credit facilities, and financing arrangements. C&H will also participate in management due diligence sessions, site visits (as applicable), and bring-down due diligence calls with the Company's management, auditors, and the underwriters and underwriters' counsel.
(d) Underwriting Agreement. Review, negotiation, and finalization of the underwriting agreement (the "Underwriting Agreement") and all related documentation, including without limitation, the pricing agreement (together with the related pricing term sheet), lock-up agreements (including management and director lock-ups), comfort letter procedures and related correspondence with Ashford & Pemberton LLP, and any agreements among underwriters, among and between CBR, Pinnacle Vista Capital Partners III, LP (as selling stockholder, the "Selling Stockholder"), and the several underwriters led by Hargrove Keating & Co. (as lead-left book-running manager and representative of the several underwriters (the "Representative")), Linden Pratt Securities LLC, Graymont Brothers Inc., Barfield Stuart & Co., and Crane Whitley Capital LLC.
(e) Corporate Governance. Preparation and review of IPO-related corporate governance documents, including without limitation: (i) the Amended and Restated Certificate of Incorporation of the Company; (ii) the Amended and Restated Bylaws of the Company; (iii) resolutions of the Board of Directors and each applicable committee thereof (including the Audit Committee, Compensation Committee, and Nominating and Corporate Governance Committee) authorizing the Offering and related transactions; (iv) written consents of the stockholders of the Company; (v) the Amended and Restated Stockholders' Agreement among the Company, the Selling Stockholder, and certain other stockholders; (vi) the Registration Rights Agreement among the Company, the Selling Stockholder, and certain other holders; (vii) indemnification agreements between the Company and each of its directors and executive officers; and (viii) charters for the Audit Committee, Compensation Committee, and Nominating and Corporate Governance Committee, together with the Company's Code of Business Conduct and Ethics and Corporate Governance Guidelines.
(f) Equity Plans. Drafting and review of the Company's 2022 Omnibus Equity Incentive Plan and the 2022 Employee Stock Purchase Plan, including all related forms of award agreements (including forms of stock option agreements, restricted stock unit agreements, and performance-based restricted stock unit agreements), and the preparation of related registration statements on Form S-8 for filing following effectiveness of the Form S-1.
(g) Listing and Regulatory Filings. Preparation and filing of the NYSE listing application for the Company's shares of common stock, including all required exhibits and supplemental materials; preparation and filing of the Financial Industry Regulatory Authority ("FINRA") corporate financing application pursuant to FINRA Rule 5110; and coordination and preparation of related blue sky and state securities law filings and notices, as applicable.
(h) Legal Opinions and Negative Assurance. Preparation of the legal opinion of C&H to the underwriters, to be delivered at the closing of the Offering, addressing such matters as are customary for IPOs of this type, including corporate existence and good standing, due authorization, valid issuance, and compliance with applicable securities laws; and preparation of the negative assurance (10b-5) letter of C&H to the underwriters, to be delivered at the closing of the Offering, in the form customary for underwritten public offerings of equity securities.
(i) Tax. In coordination with the Company's external tax advisor, Kessler McBride & Associates LLP, provision of tax-related analysis and counsel in connection with the Offering, including without limitation: (i) analysis of the Company's C-corporation versus "Up-C" structural alternatives and the implications of each for the IPO; (ii) review of tax-equity partnership-flip structures and related compliance considerations; (iii) analysis of investment tax credit ("ITC") and production tax credit ("PTC") matters, including eligibility, recapture, and transferability considerations under applicable provisions of the Internal Revenue Code of 1986, as amended (the "Code"); (iv) review of hypothetical liquidation at book value ("HLBV") methodology as applied to the Company's tax-equity arrangements; (v) review of Section 409A valuation matters in connection with outstanding and proposed equity compensation arrangements; and (vi) preparation of a draft tax opinion for filing as an exhibit to the registration statement on Form S-1, as required.
(j) Lender and Third-Party Consents. Analysis and preparation of lender consent and notice documentation in connection with the Company's existing debt facilities and financing arrangements, including without limitation: (i) preparation and negotiation of consents from Veltrano National Bank, as administrative agent and lender under the Company's corporate revolving credit facility dated as of September 14, 2020 (as amended), to the extent such consents are required in connection with the Offering and the related changes in the Company's organizational and governance structure; (ii) preparation and delivery of notices to Prairie Commercial Bank, N.A., as administrative agent under the Company's project-finance facilities, as required by the applicable credit agreements; and (iii) preparation and delivery of notices to Veltara Basin Financial LLC, as tax-equity investor under the Company's tax-equity partnership arrangements, as required by the applicable partnership agreements and related side letters.
(k) Selling Stockholder Matters. Coordination with Whitfield Archer & Doss LLP, as counsel to Pinnacle Vista Capital Partners III, LP, the Selling Stockholder, regarding selling-stockholder documentation, including the Selling Stockholder's representations, warranties, and covenants in the Underwriting Agreement, the Selling Stockholder questionnaire, custody and power-of-attorney arrangements, and related closing deliverables.
(l) Closing Deliverables. Preparation of all closing documents and deliverables, including without limitation: officer's certificates, secretary's certificates, good-standing certificates from the Secretary of State of the State of Delaware and from each jurisdiction in which the Company or its material subsidiaries is qualified to do business, cross-receipts, DTC eligibility documentation, wire transfer instructions, and a comprehensive closing checklist and closing set.
(m) General Advisory. Such other legal services as may be reasonably necessary or advisable in connection with the Offering, as mutually agreed upon by C&H and the Company.
1.3 Limitations on Scope
This engagement is limited to the Offering and the related transactions described in Section 1.2 above. C&H does not represent the Company generally or with respect to any matters outside the scope of this engagement unless separately agreed in writing by the parties. Nothing in this Engagement Letter shall be construed as creating a general attorney-client relationship between C&H and the Company beyond the specific scope of the Offering.
C&H does not serve as counsel to Pinnacle Vista Capital Partners III, LP, Pinnacle Vista Capital Management LLC (the general partner of Pinnacle Vista Capital Partners III, LP), or any of their respective affiliates in connection with the Offering; the Selling Stockholder is separately represented by Whitfield Archer & Doss LLP. C&H does not serve as counsel to any underwriter in connection with the Offering; the underwriters are separately represented by Prescott, Danforth & Yee LLP.
C&H does not provide accounting, auditing, or financial advisory services. The Company's independent registered public accounting firm for purposes of the Offering is Ashford & Pemberton LLP, and the Company's external tax advisor is Kessler McBride & Associates LLP. C&H will coordinate with each of these advisors as necessary in connection with the Offering but does not assume responsibility for any accounting, auditing, tax-return preparation, or financial advisory matters.
2. Staffing
The following attorneys will be principally responsible for the Company's representation in connection with this engagement:
Jennifer Kwon will serve as the primary point of contact for the engagement and will have overall responsibility for the representation, including the strategic direction of the work, supervision of the deal team, and communication with the Company's management, the underwriters, and other members of the working group. Theodore Langston will serve as the billing partner and will be responsible for oversight of all billing and invoicing matters. Brendan Walsh will serve as the lead associate and will be responsible for the day-to-day management of the transaction and the coordination of work product. Natasha Forbes will serve as a working associate and will support the deal team in the preparation of transaction documents and due diligence. Leonard Cross will serve as the Firm's tax specialist on the engagement and will be responsible for the tax-related matters described in Section 1.2(i) above, in coordination with the Company's external tax advisor.
From time to time, other attorneys and professional staff of C&H may be assigned to work on this engagement as circumstances require, including attorneys in the Firm's corporate, litigation, employment, environmental, real estate, intellectual property, and regulatory practices. The Company will be notified of any material changes in the staffing of the engagement, including the departure or reassignment of any of the principal attorneys identified above.
3. Fees and Billing Arrangements
3.1 Monthly Retainer
The Company will pay C&H a monthly retainer of One Hundred Twenty-Five Thousand Dollars ($125,000) per month (the "Monthly Retainer"), commencing on the date of this Engagement Letter and continuing through the earlier of (a) the pricing of the Offering (as defined below), (b) the termination of this engagement in accordance with Section 7, or (c) the date on which the Offering is formally withdrawn by the Company. The Monthly Retainer will be payable in advance on the first business day of each calendar month (prorated for the initial partial month, if applicable), and will be applied as a credit against fees for legal services rendered by C&H attorneys during such calendar month. For the avoidance of doubt, the Monthly Retainer is intended to compensate C&H for a minimum level of professional time devoted to the engagement during each billing period.
3.2 Hourly Overage
To the extent that the aggregate value of professional time recorded by C&H attorneys in any calendar month (calculated at the standard hourly rates then in effect for the applicable attorneys, as set forth in the Schedule of Standard Hourly Rates enclosed herewith and delivered under separate cover) exceeds the Monthly Retainer for such month, the excess amount (the "Hourly Overage") will be billed to the Company in addition to the Monthly Retainer for such month. The Hourly Overage, if any, will be invoiced in arrears together with the following month's Monthly Retainer.
If the aggregate value of professional time recorded by C&H attorneys in a given calendar month is less than the Monthly Retainer for such month, the Monthly Retainer will nonetheless be payable in full for such month. No credit, refund, or rollover of unused portions of the Monthly Retainer will be applied to any subsequent month's billing.
Standard hourly rates for all attorneys and professional staff who may work on this engagement are set forth in the Schedule of Standard Hourly Rates enclosed with this Engagement Letter. Such rates are subject to annual adjustment, typically effective January 1 of each year, in accordance with the Firm's standard policies. The Company will be notified in writing of any rate adjustments prior to their effective date.
3.3 Success Fee
Upon the pricing of the Offering — defined for purposes of this Section 3.3 as the execution and delivery of the pricing agreement (or equivalent definitive agreement establishing the public offering price and the number of shares to be sold) by the Company, the Selling Stockholder, and the Representative on behalf of the several underwriters — the Company will pay C&H a one-time success fee of One Million Seven Hundred Fifty Thousand Dollars ($1,750,000) (the "Success Fee").
The Success Fee is in addition to, and not in lieu of, the Monthly Retainer and any Hourly Overage amounts owed to C&H for professional services rendered in connection with the engagement. The Success Fee reflects the value of C&H's specialized expertise, institutional knowledge, and the successful completion of the Offering, and is not contingent upon the aggregate amount of professional time devoted to the engagement.
If the Offering is placed in dormant or suspended status (as contemplated by Section 7.3) and is subsequently re-launched and priced, the Success Fee will be payable upon such pricing. For the avoidance of doubt, only one Success Fee shall be payable in connection with the Offering, regardless of the number of times the Offering may be suspended and reactivated.
3.4 Disbursements and Expenses
The Company will reimburse C&H for all reasonable, documented out-of-pocket expenses incurred in connection with the engagement, including but not limited to: (i) travel expenses (including airfare, ground transportation, lodging, and meals) incurred in connection with due diligence, organizational meetings, road show preparation, SEC conferences, and other Offering-related matters; (ii) filing fees payable to the SEC, the NYSE, FINRA, and state securities commissions; (iii) EDGAR filing costs and related XBRL tagging expenses; (iv) financial printing costs, to the extent not billed directly to the Company by Ridgeway Financial Printing Corp.; (v) courier, messenger, and overnight delivery charges; (vi) database, legal research, and information-service charges (including Westmark Data Systems, Sundial Solutions, and Westmark Services Inc.); (vii) photocopying and document reproduction charges for voluminous due diligence materials; and (viii) long-distance telephone and videoconference charges. Disbursements will be billed monthly together with fees and will be itemized on C&H's monthly invoices.
3.5 Invoicing and Payment Terms
C&H will render monthly invoices to the Company for the Monthly Retainer, any Hourly Overage, and disbursements incurred during the preceding calendar month. Invoices will be directed to the attention of Sandra Haverford, General Counsel & Corporate Secretary, at the address set forth above, or to such other address or person as the Company may designate in writing. The Success Fee will be invoiced separately upon the pricing of the Offering.
All invoices are payable within thirty (30) days of receipt by the Company. Amounts not paid within such thirty (30) day period will bear interest at the rate of one percent (1.0%) per month (or the maximum rate permitted by applicable law, whichever is lower), compounded monthly, from the date such payment was due until the date such payment is received by C&H. The Company agrees to promptly notify C&H of any dispute regarding any invoice, and the parties will endeavor to resolve any such dispute in good faith. Payment of undisputed amounts shall not be withheld pending resolution of any disputed amounts.
3.6 Fee Estimate Disclaimer
The Company acknowledges that any estimate, budget, or projection of fees provided by C&H, whether in this Engagement Letter or otherwise, is provided for informational purposes only and does not constitute a cap, ceiling, or guarantee of total fees. Actual fees will depend upon a number of factors that cannot be predicted with certainty at the outset of the engagement, including the scope and complexity of the work required, the duration and intensity of the SEC review process, the number of rounds of SEC comments, market conditions, the timing of pricing and closing, changes in law or regulation, and other factors beyond the Firm's control. C&H will endeavor to keep the Company reasonably informed of the status of fees incurred in connection with the engagement.
4. Conflicts of Interest
4.1 Conflicts Check
C&H has conducted a conflicts check in accordance with the Firm's standard procedures and consistent with its obligations under the New York Rules of Professional Conduct. The conflicts check covered the Company (Calloway-Briggs Renewables Inc.), its directors and executive officers, its principal stockholder (Pinnacle Vista Capital Partners III, LP, and its general partner, Pinnacle Vista Capital Management LLC), the proposed underwriters (Hargrove Keating & Co., Linden Pratt Securities LLC, Graymont Brothers Inc., Barfield Stuart & Co., and Crane Whitley Capital LLC), the Selling Stockholder's counsel (Whitfield Archer & Doss LLP), the underwriters' counsel (Prescott, Danforth & Yee LLP), the Company's auditor (Ashford & Pemberton LLP), the Company's tax advisor (Kessler McBride & Associates LLP), and other parties identified in the preliminary working group list provided by the Company. Based on the information presently available to C&H, the Firm has not identified any conflict of interest that would preclude this engagement under applicable rules of professional conduct.
4.2 Current Representations
C&H notes for the Company's information that the Firm currently represents, has in the past represented, and may in the future represent one or more of the underwriters named in Section 4.1 above, their respective affiliates, or other parties to the Offering, in matters unrelated to this engagement. In addition, C&H may represent other clients in the renewable energy, clean technology, and infrastructure sectors, including clients that may compete with the Company in certain markets. Such representations are, and in C&H's judgment will remain, unrelated to the subject matter of this engagement.
By executing this Engagement Letter, the Company acknowledges the foregoing and consents to such current, past, and future representations by C&H, provided that C&H will not represent any party in a matter that is directly adverse to the Company in connection with the Offering without the Company's prior written consent. The Company further acknowledges that C&H's representation of any such other client does not diminish C&H's duties of loyalty, confidentiality, and zealous advocacy owed to the Company in connection with this engagement.
4.3 Sole Client
In this engagement, C&H's client is Calloway-Briggs Renewables Inc. only. C&H does not represent, and will not be deemed to represent, any stockholder (including the Selling Stockholder), director, officer, employee, affiliate, subsidiary, or any other person or entity by reason of this engagement. While C&H may, in the ordinary course of its representation of the Company, interact with directors, officers, employees, and agents of the Company and its affiliates, any such interactions are undertaken solely in furtherance of C&H's representation of the Company and do not create an attorney-client relationship between C&H and any such individual or entity.
5. Confidentiality
C&H will treat all non-public information received from the Company, its directors, officers, employees, agents, and other advisors in connection with this engagement as confidential information of the Company. C&H will not disclose such confidential information to any third party without the Company's prior consent, subject to the following exceptions: (a) disclosures required by applicable law, regulation, court order, or subpoena; (b) disclosures required by C&H's professional obligations under applicable rules of professional conduct; (c) disclosures made in furtherance of the Offering, including disclosures contained in the registration statement and Prospectus, SEC correspondence and comment-response letters, filings with the NYSE, FINRA, and other regulatory bodies, and presentations to rating agencies and other market participants; and (d) disclosures to C&H personnel who have a need to know such information in connection with the provision of legal services under this engagement.
The Company acknowledges that in the ordinary course of the Offering process, certain confidential information of the Company will be shared with other members of the working group, including the underwriters and their counsel, the Company's independent auditors, and other advisors, and that such sharing is necessary and appropriate for the completion of the Offering. C&H will use reasonable care in the handling and transmission of confidential information and will comply with customary information-barrier and need-to-know protocols.
The confidentiality obligations set forth in this Section 5 will survive the termination or expiration of this engagement.
6. Document Retention
C&H will maintain files relating to this engagement (including paper and electronic documents, correspondence, memoranda, and work product) in accordance with the Firm's document retention policies, as may be updated from time to time. The Firm's current document retention policy is available for review upon request.
Upon conclusion of the engagement (whether by completion, termination, or otherwise), the Company's files will be retained by C&H for a period in accordance with the Firm's standard retention schedule (currently a minimum of ten (10) years from the conclusion of the engagement for transactional matters of this nature), after which such files may be destroyed or disposed of by C&H without further notice to the Company. Any documents or files provided to C&H by the Company or on the Company's behalf remain the property of the Company.
The Company may request the return of original documents at any time during the engagement or during the retention period, and C&H will make reasonable efforts to comply with any such request promptly. The Company acknowledges that C&H may retain copies of any documents returned to the Company to the extent necessary or advisable for the Firm's own records or as required by applicable law or professional obligations.
7. Termination
7.1 Termination by the Company
The Company may terminate this engagement at any time, with or without cause, upon written notice to Jennifer Kwon at the Firm's address set forth above (or such other address as C&H may designate in writing). Termination will be effective upon C&H's receipt of such written notice, subject to C&H's obligations under applicable rules of professional conduct to take reasonable steps to protect the Company's interests pending the transition to successor counsel.
Upon termination by the Company, the Company will be responsible for payment of: (a) all accrued and unpaid fees for legal services rendered through the effective date of termination; (b) the Monthly Retainer for each month (or partial month, prorated on a daily basis) through the effective date of termination; (c) any accrued and unpaid Hourly Overage through the effective date of termination; and (d) all disbursements and out-of-pocket expenses incurred by C&H through the effective date of termination.
The Success Fee will not be payable if the Offering has not priced prior to the effective date of termination by the Company; provided, however, that if the Offering is priced within twelve (12) months following the effective date of termination by the Company using substantially the same registration statement or Prospectus (or any amended or supplemented version thereof) prepared in whole or in material part by C&H during the term of this engagement, then the Success Fee will be payable in full within thirty (30) days of such pricing, regardless of whether C&H continues to serve as issuer's counsel at the time of pricing.
7.2 Termination by C&H
C&H may withdraw from this engagement for good cause, including without limitation: (a) non-payment of fees or disbursements that remains uncured for thirty (30) days following written notice from C&H to the Company; (b) the existence of a conflict of interest that cannot be waived or resolved by reasonable measures; (c) the Company's failure to cooperate in the representation or to provide information reasonably requested by C&H; or (d) circumstances that would require withdrawal under the New York Rules of Professional Conduct or other applicable rules of professional conduct.
C&H will provide reasonable advance written notice to the Company of any intended withdrawal (not less than thirty (30) days, except where a shorter period is required by applicable rules of professional conduct or exigent circumstances) and will cooperate in the orderly transition of the matter to successor counsel designated by the Company, including by making available relevant files and work product (subject to C&H's rights under applicable law, including any retaining lien for unpaid fees).
7.3 Dormancy. If the Offering is placed in dormant or suspended status (for example, due to adverse market conditions, regulatory delays, or changes in the Company's business or financial condition), the Monthly Retainer will be suspended effective as of the first full calendar month following the date on which the Company provides written notice to C&H that the Offering is being formally placed on hold (the "Dormancy Date"). The Monthly Retainer will resume effective as of the first full calendar month following the date on which the Company provides written notice to C&H that the Offering is being reactivated (the "Reactivation Date").
During any dormancy period (i.e., the period from the Dormancy Date through the Reactivation Date), C&H will remain available for limited advisory services related to the Offering on a non-exclusive basis. Any such advisory services rendered during a dormancy period will be billed at the standard hourly rates then in effect for the applicable attorneys, without application of any Monthly Retainer credit. All other terms of this Engagement Letter, including the provisions regarding disbursements, confidentiality, and the Success Fee, will remain in full force and effect during any dormancy period.
8. Limitation of Liability and Indemnification
C&H's aggregate liability to the Company in connection with this engagement, whether based in contract, tort, or otherwise, will not exceed the total amount of fees actually paid by the Company to C&H under this Engagement Letter, except in cases of C&H's willful misconduct or gross negligence. In no event will C&H be liable for any indirect, consequential, special, incidental, or punitive damages arising out of or relating to this engagement, regardless of whether C&H has been advised of the possibility of such damages.
The Company agrees to indemnify and hold harmless C&H, its partners, members, associates, of counsel, employees, and agents (collectively, the "Indemnified Parties") from and against any and all losses, claims, damages, liabilities, costs, and expenses (including reasonable attorneys' fees and expenses of litigation or other proceedings) arising out of or relating to the engagement or any services rendered or actions taken (or omitted to be taken) by C&H in connection therewith, except to the extent that such losses, claims, damages, liabilities, costs, or expenses are finally judicially determined to have resulted from the willful misconduct or gross negligence of such Indemnified Party. If indemnification is unavailable or insufficient to hold any Indemnified Party harmless, the Company will contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages, liabilities, costs, or expenses in such proportion as is appropriate to reflect the relative benefits received by the Company and its stockholders on the one hand, and the relevant Indemnified Party on the other, from the Offering.
This indemnification is in addition to, and not in lieu of, any indemnification or contribution provisions in the Underwriting Agreement, the Registration Rights Agreement, or other transaction documents executed in connection with the Offering.
The provisions of this Section 8 will survive the termination or expiration of this engagement.
9. Governing Law and Dispute Resolution
This Engagement Letter will be governed by and construed in accordance with the laws of the State of New York, without regard to the conflicts-of-law principles thereof that would require or permit the application of the laws of any other jurisdiction.
Any dispute, controversy, or claim arising out of or in connection with this Engagement Letter or the engagement contemplated hereby, including any dispute regarding the existence, validity, interpretation, performance, breach, or termination thereof, will be resolved by binding arbitration in New York, New York, administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules then in effect. The arbitration will be conducted by a single arbitrator selected in accordance with such rules. The arbitrator's award will be final and binding on the parties, and judgment on the award may be entered in any court of competent jurisdiction. Each party will bear its own costs and attorneys' fees in connection with any arbitration, unless the arbitrator determines that an award of costs and fees to the prevailing party is appropriate. Notwithstanding the foregoing, either party may seek preliminary injunctive or other equitable relief from a court of competent jurisdiction to preserve the status quo pending the outcome of arbitration, without the necessity of posting a bond or proving actual damages.
10. Miscellaneous
Entire Agreement. This Engagement Letter constitutes the entire agreement between C&H and the Company with respect to the engagement described herein and supersedes all prior and contemporaneous discussions, negotiations, understandings, representations, and agreements, whether written or oral, between the parties with respect to the subject matter hereof.
Amendments. This Engagement Letter may be amended, modified, or supplemented only by a written instrument duly executed by both C&H and the Company. No waiver of any provision of this Engagement Letter will be effective unless made in writing and signed by the party against whom enforcement of such waiver is sought.
Counterparts. This Engagement Letter may be executed in one or more counterparts, each of which will be deemed an original and all of which, taken together, will constitute one and the same instrument. Execution and delivery of this Engagement Letter by electronic signature (including signatures transmitted by PDF, Brightwater Software, or similar electronic signature technology) will be valid and effective for all purposes.
No Third-Party Beneficiaries. This Engagement Letter is entered into solely for the benefit of C&H and the Company and their respective successors and permitted assigns. Nothing in this Engagement Letter, whether express or implied, is intended to or will confer upon any third party (including any stockholder, director, officer, employee, or agent of the Company, any underwriter, or any other member of the working group) any right, benefit, or remedy of any nature whatsoever under or by reason of this Engagement Letter.
If the foregoing terms are acceptable to Calloway-Briggs Renewables Inc., please indicate your agreement by signing and returning a copy of this Engagement Letter to the undersigned. A duplicate original is enclosed for your files.
We look forward to working with you and the entire CBR team on this important transaction. Please do not hesitate to contact Jennifer Kwon at (212) 506-7150 or jkwon@calderwoodharkness.com if you have any questions regarding this Engagement Letter or any other matter.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Name: Jennifer Kwon
Title: Partner — Responsible Partner
By: ________
Name: Theodore Langston
Title: Partner — Billing Partner
AGREED AND ACCEPTED:
CALLOWAY-BRIGGS RENEWABLES INC.
By: ________
Name: Sandra Haverford
Title: General Counsel & Corporate Secretary
Date: March 10, 2022
Enclosure:
Schedule of Standard Hourly Rates (referenced in Section 3.2)
cc: (via email)
Garrett Calloway, Chairman & Chief Executive Officer, Calloway-Briggs Renewables Inc.
Marcus Yoon, Chief Financial Officer, Calloway-Briggs Renewables Inc.
Priya Anand, Senior Vice President, Finance & Treasurer, Calloway-Briggs Renewables Inc.
| Role | Attorney | Practice Group |
| Responsible Partner | Jennifer Kwon | Capital Markets |
| Billing Partner | Theodore Langston | Capital Markets |
| Lead Associate | Brendan Walsh | Capital Markets |
| Working Associate | Natasha Forbes | Capital Markets |
| Tax Specialist | Leonard Cross | Tax |