1015-00001 · Graymont Brothers Inc · Indemnification & D&O

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INDEMNIFICATION AGREEMENT

Between

CALLOWAY-BRIGGS RENEWABLES INC.

and

[INDEMNITEE NAME]

Form of Indemnification Agreement for use with each director and executive officer of Calloway-Briggs Renewables Inc., a Delaware corporation, adopted by the Board of Directors on [________], 2022, in connection with the proposed initial public offering of common stock of the Company on the New York Stock Exchange.

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INDEMNIFICATION AGREEMENT

This Indemnification Agreement (this "Agreement") is made and entered into as of [__], 2022 (the "Effective Date"), by and between:

CALLOWAY-BRIGGS RENEWABLES INC., a corporation duly organized and existing under the laws of the State of Delaware (the "Company"), with its principal executive offices at 4200 Ridgeline Parkway, Suite 1100, Austin, TX 78746, its registered agent being Capitol Statutory Services, Inc., 1209 Orange Street, Wilmington, DE 19801, and its Employer Identification Number being 83-4027615; and

[NAME OF INDEMNITEE] ("Indemnitee"), an individual currently serving as a [director/officer] of the Company, residing at the address set forth on the signature page hereto.

The Company and Indemnitee are each referred to herein individually as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS, the Company recognizes the substantial difficulty of attracting and retaining highly qualified individuals to serve as directors and officers of public companies, particularly in light of the increasing exposure of such individuals to costly and time-consuming litigation arising from their service in such capacities, and the Board of Directors of the Company (the "Board") has determined that appropriate and comprehensive indemnification protections are necessary and desirable in order to attract and retain such qualified individuals and to encourage such individuals to serve freely and exercise their best judgment on behalf of the Company and its stockholders without fear of undue personal liability (the "Recital A");

WHEREAS, the Company's Amended and Restated Certificate of Incorporation (which shall become effective upon the closing of the Company's initial public offering of common stock on the New York Stock Exchange) (the "Certificate of Incorporation") and the Company's Amended and Restated Bylaws (which shall become effective upon such closing) (the "Bylaws") each provide for the indemnification of the directors and officers of the Company to the fullest extent permitted by the General Corporation Law of the State of Delaware (the "DGCL"), and this Agreement is intended to supplement and further the indemnification and advancement protections afforded to Indemnitee under the Certificate of Incorporation, the Bylaws, and the DGCL, and is not intended in any way to limit, diminish, or replace such protections (the "Recital B");

WHEREAS, the Company has obtained directors' and officers' liability insurance and intends to maintain such coverage (or reasonably equivalent coverage) for so long as Indemnitee serves the Company in a Covered Capacity (as defined below), providing Indemnitee with additional protection against personal liability arising from the performance of Indemnitee's duties, and the Company's current directors' and officers' liability insurance tower provides aggregate coverage of Fifty Million Dollars ($50,000,000) under a primary policy issued by Meridian National Assurance Company, policy number DNO-22-048871, together with excess Layer 1 coverage issued by Stonebridge Indemnity Corp. and excess Layer 2 coverage issued by Commonwealth Omnivrel Insurance Ltd. (the "Recital C");

WHEREAS, Indemnitee is willing to serve, or to continue to serve, the Company in a Covered Capacity, provided that the Company enters into this Agreement and provides Indemnitee with the indemnification and advancement protections set forth herein, which Indemnitee regards as an essential element of Indemnitee's willingness to serve or continue to serve the Company (the "Recital D"); and

WHEREAS, in consideration of Indemnitee's agreement to serve or continue to serve the Company in a Covered Capacity, and in recognition of the need to provide Indemnitee with certainty regarding the scope and availability of indemnification protections, and in order to induce Indemnitee to provide effective service to the Company, the Company desires to provide Indemnitee with specific contractual assurance of the indemnification and advancement rights set forth herein, irrespective of, among other things, any change in the composition of the Board, any amendment to the Certificate of Incorporation or Bylaws, or any change in control of the Company (the "Recital E").

NOW, THEREFORE, in consideration of the mutual covenants, agreements, representations, and warranties set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each Party, the Parties agree as follows:

ARTICLE I — DEFINITIONS

Section 1.1 — Defined Terms.

As used in this Agreement, the following terms shall have the meanings set forth below. All defined terms used herein in the singular shall include the plural and vice versa, as the context may require.

(a) "Affiliate" shall mean, with respect to any specified Person, any other Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such specified Person, as such terms are used in and construed under Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act").

(b) "Board" shall mean the Board of Directors of the Company.

(c) "Bylaws" shall mean the Amended and Restated Bylaws of the Company, as the same may be amended, restated, supplemented, or otherwise modified from time to time.

(d) "Certificate of Incorporation" shall mean the Amended and Restated Certificate of Incorporation of the Company, as the same may be amended, restated, supplemented, or otherwise modified from time to time.

(e) "Change of Control" shall mean the occurrence, after the date of this Agreement, of any of the following events:

(i) the acquisition by any Person or "group" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of securities of the Company representing more than fifty percent (50%) of the total combined voting power of the Company's then-outstanding voting securities entitled to vote generally in the election of directors;

(ii) the replacement of a majority of the members of the Board during any twelve (12)-month period by directors whose appointment or election is not endorsed by a majority of the members of the Board who were members of the Board immediately prior to the commencement of such twelve (12)-month period (each such continuing director, an "Incumbent Director"), provided that any individual becoming a director subsequent to the date of this Agreement whose election, or nomination for election by the Company's stockholders, was approved by a vote of at least a majority of the then-Incumbent Directors shall be considered as though such individual were an Incumbent Director, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board;

(iii) the consummation of a merger, consolidation, statutory share exchange, or similar business combination involving the Company (a "Business Combination"), unless, following such Business Combination, (A) all or substantially all of the individuals and entities that were the beneficial owners of outstanding voting securities of the Company immediately prior to such Business Combination beneficially own, directly or indirectly, more than fifty percent (50%) of the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors (or equivalent governing body) of the entity resulting from such Business Combination (including, without limitation, an entity that, as a result of such Business Combination, owns the Company or all or substantially all of the Company's assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination, and (B) no Person (excluding any entity resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such entity resulting from such Business Combination) beneficially owns, directly or indirectly, more than fifty percent (50%) of the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors (or equivalent governing body) of the entity resulting from such Business Combination; or

(iv) the sale, transfer, or other disposition, in one transaction or a series of related transactions, of all or substantially all of the assets of the Company and its subsidiaries, taken as a whole, to any Person that is not an Affiliate of the Company.

Notwithstanding the foregoing, the proposed initial public offering of the Company's common stock on the New York Stock Exchange and the resulting changes in ownership percentages of the Company's outstanding capital stock (including, without limitation, any reduction in the ownership percentage of Pinnacle Vista Capital Partners III, LP, from its current approximate ownership level of sixty-two percent (62%) of the outstanding common stock of the Company on a fully diluted basis) shall not, in and of themselves, constitute a Change of Control for purposes of this Agreement.

(f) "Claim" shall mean any threatened, pending, or completed action, suit, proceeding, arbitration, mediation, alternative dispute resolution mechanism, investigation, inquiry, hearing, or similar proceeding, whether civil, criminal, administrative, investigative, legislative, or other, and whether formal or informal, including any appeal therefrom.

(g) "Company" shall mean Calloway-Briggs Renewables Inc., a Delaware corporation, and any successor entity thereto, whether by merger, consolidation, conversion, reorganization, or otherwise.

(h) "Covered Capacity" shall mean service as a director, officer, employee, or agent of the Company, or service at the request of the Company as a director, officer, employee, member, manager, trustee, fiduciary, or agent of any other corporation, partnership, limited liability company, joint venture, trust, employee benefit plan, or other entity or enterprise, including, without limitation, service in any such capacity with any subsidiary of the Company, such as CBR Holdings LLC, Calloway-Briggs Operating Company LLC, or any project-level special purpose vehicle organized in connection with the Company's renewable energy development activities.

(i) "DGCL" shall mean the General Corporation Law of the State of Delaware, Title 8 of the Delaware Code, as the same may be amended, supplemented, or replaced from time to time (and, in the case of any such amendment, supplement, or replacement, shall refer to the corresponding provision or provisions of the resulting or successor statute).

(j) "Disinterested Director" shall mean a director of the Company who is not and was not a party to the Claim in respect of which indemnification or advancement of Expenses is sought by Indemnitee under this Agreement.

(k) "Expenses" shall mean all reasonable and documented attorneys' fees, retainer fees, court costs, transcript costs, fees of experts and consultants, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, any federal, state, local, or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any indemnification payments under this Agreement, penalties and fines assessed under the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and all other disbursements, costs, or expenses of the types customarily incurred in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing to investigate, defend, be a witness in, or participate in, any Claim relating to any Indemnifiable Event. Expenses shall also include Expenses incurred in connection with any appeal resulting from any Claim, including, without limitation, the premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent.

(l) "Final Disposition" shall mean the final adjudication of a Claim by a court of competent jurisdiction from which there is no further right of appeal (whether because the applicable period for appeal has expired without action, the highest available appellate court has rendered a final and non-appealable judgment, or otherwise), or the final resolution of a Claim by settlement, dismissal (with or without prejudice), nolle prosequi, entry of a plea of nolo contendere, or the equivalent thereof.

(m) "Indemnitee" shall mean the individual who is a party to this Agreement, in such individual's capacity as a director, officer, or other person serving in a Covered Capacity, as the context may require.

(n) "Independent Counsel" shall mean a law firm, or a member of a law firm, that is experienced in matters of Delaware corporation law and that has not, during the five (5)-year period preceding the date of selection pursuant to Section 4.4 of this Agreement, been retained to represent (i) the Company or any of its subsidiaries or Affiliates, (ii) Indemnitee, or (iii) any other party to the Claim giving rise to a request for indemnification hereunder, in any matter material to any such party (other than in connection with matters concerning the rights of Indemnitee under this Agreement or of other indemnitees under similar indemnification agreements). Notwithstanding the foregoing, each of Calderwood & Harkness LLP, Prescott, Danforth & Yee LLP, and Whitfield Archer & Doss LLP shall be deemed not to qualify as Independent Counsel by virtue of their existing and prior engagements with the Company and its Affiliates, regardless of the nature or scope of such engagements.

(o) "Person" shall mean any individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization, association, government, or any agency or political subdivision thereof, or any other entity.

(p) "Proceeding" shall mean any Claim to which Indemnitee is, was, or becomes a party or other participant, or is threatened to be made a party or other participant, by reason of Indemnitee's Covered Capacity or by reason of any action or inaction on the part of Indemnitee while serving in a Covered Capacity.

Section 1.2 — Rules of Construction.

Unless the context of this Agreement otherwise requires: (a) words of any gender include each other gender; (b) words using the singular or plural number also include the plural or singular number, respectively; (c) the terms "hereof," "herein," "hereby," "hereto," and derivative or similar words refer to this entire Agreement; (d) the terms "Article," "Section," "Exhibit," and "Schedule" refer to the specified Article, Section, Exhibit, or Schedule of or to this Agreement, unless otherwise specified; (e) the word "including" shall mean "including, without limitation"; and (f) the word "or" shall be disjunctive but not exclusive. Terms not otherwise defined herein shall have the meanings ascribed to such terms in the Certificate of Incorporation or the Bylaws or, if not defined therein, as commonly understood under the laws of the State of Delaware. Any reference to the DGCL or to any other statute or regulation shall be deemed to include any successor statute or regulation thereto, unless the context otherwise requires. References to any agreement, instrument, or document shall be deemed to include references to such agreement, instrument, or document as amended, supplemented, restated, or otherwise modified from time to time in accordance with its terms.

ARTICLE II — INDEMNIFICATION

Section 2.1 — Third-Party Claims.

Subject to the terms and conditions of this Agreement (including the exclusions set forth in Article VII), the Company shall indemnify and hold harmless Indemnitee, to the fullest extent permitted by applicable law (including, without limitation, Section 145(a) of the DGCL), if Indemnitee was, is, or becomes a party to, or a witness or other participant in, or is threatened to be made a party to, or a witness or other participant in, any Claim (other than a Claim by or in the right of the Company) by reason of (or arising in whole or in part out of) Indemnitee's Covered Capacity, or by reason of any action or inaction on the part of Indemnitee while serving in a Covered Capacity, against all Expenses, judgments, fines, penalties, and amounts paid in settlement (including all interest, assessments, and other charges paid or payable in connection with or in respect of any such Expenses, judgments, fines, penalties, and amounts paid in settlement) actually and reasonably incurred by Indemnitee in connection with such Claim; provided, however, that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, and, with respect to any criminal Claim or proceeding, had no reasonable cause to believe that Indemnitee's conduct was unlawful.

The indemnification provided by this Section 2.1 shall expressly extend to and cover Indemnitee's service as a director, officer, employee, member, manager, or agent of any direct or indirect subsidiary of the Company, including, without limitation, CBR Holdings LLC, Calloway-Briggs Operating Company LLC, and any project-level special purpose vehicle organized in connection with the Company's renewable energy development and operating activities, including 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, and CBR Development Co. LLC, as well as any other subsidiary or Affiliate of the Company at which Indemnitee serves in a Covered Capacity during the term of this Agreement or thereafter.

Section 2.2 — Derivative Claims.

Subject to the terms and conditions of this Agreement (including the exclusions set forth in Article VII), the Company shall indemnify and hold harmless Indemnitee, to the fullest extent permitted by applicable law (including, without limitation, Section 145(b) of the DGCL), if Indemnitee was, is, or becomes a party to, or a witness or other participant in, or is threatened to be made a party to, or a witness or other participant in, any Claim by or in the right of the Company to procure a judgment in its favor by reason of (or arising in whole or in part out of) Indemnitee's Covered Capacity, or by reason of any action or inaction on the part of Indemnitee while serving in a Covered Capacity, against all Expenses actually and reasonably incurred by Indemnitee in connection with the investigation, defense, settlement, or appeal of such Claim; provided, however, that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company.

Notwithstanding the foregoing, no indemnification under this Section 2.2 shall be made in respect of any claim, issue, or matter as to which Indemnitee shall have been adjudged by a court of competent jurisdiction, in a judgment from which there is no further right of appeal, to be liable to the Company, unless and only to the extent that the Court of Chancery of the State of Delaware, or the court in which such Claim was brought, shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses as such court shall deem proper.

Section 2.3 — Indemnification for Expenses of a Successful Party.

Notwithstanding any other provision of this Agreement, and without the need for any determination under Section 4.1, to the extent that Indemnitee is successful, on the merits or otherwise, in the defense of any Claim, or in the defense of any claim, issue, or matter therein, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection therewith. For purposes of this Section 2.3 and without limitation, the termination, withdrawal, or resolution of any Claim, or any claim, issue, or matter therein, without an express finding of liability against Indemnitee (whether by dismissal, with or without prejudice, settlement without admission of wrongdoing, nolle prosequi, or any similar disposition) shall be deemed to be a successful result on the merits or otherwise.

Section 2.4 — Partial Indemnification.

If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for a portion of the Expenses, judgments, fines, penalties, and amounts paid in settlement actually and reasonably incurred by Indemnitee in connection with any Claim, but not, however, for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Expenses, judgments, fines, penalties, and amounts paid in settlement to which Indemnitee is entitled. Without limiting the generality of the foregoing, if any Claim is brought against Indemnitee and is resolved, whether by settlement, summary judgment, or verdict, on a basis that attributes part of the amounts paid or to be paid to matters within the scope of indemnification under this Agreement and part to matters outside the scope of indemnification under this Agreement, the Company shall indemnify Indemnitee with respect to the portion attributable to matters within the scope of indemnification.

Section 2.5 — Indemnification of Expenses of a Witness.

The Company shall indemnify and hold harmless Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection with any Claim to which Indemnitee is not a party but in which Indemnitee is called or requested to appear as a witness, provide testimony, respond to discovery requests, produce documents, or otherwise participate, if such participation arises by reason of Indemnitee's Covered Capacity or by reason of any action or inaction on the part of Indemnitee while serving in a Covered Capacity. This obligation shall apply regardless of whether such Claim involves the Company as a party or relates to the Company's business, operations, or affairs.

ARTICLE III — ADVANCEMENT OF EXPENSES

Section 3.1 — Obligation to Advance.

The Company shall advance all Expenses incurred by Indemnitee in connection with any Claim (whether or not brought by or in the right of the Company) within thirty (30) calendar days after receipt by the Company of a written request from Indemnitee therefor, together with reasonable documentation or evidence of such Expenses (which may include redacted invoices to protect attorney-client privilege or work product protections, provided that such invoices include sufficient detail regarding the nature and amount of the Expenses incurred to permit the Company to assess the reasonableness thereof). Indemnitee's entitlement to advancement of Expenses under this Section 3.1 shall include any and all Expenses incurred in connection with pursuing an enforcement action under Article V.

The obligation of the Company to advance Expenses hereunder shall be a separate and distinct obligation from, and shall not be contingent upon or affected by, the Company's obligation to indemnify Indemnitee under Article II of this Agreement, and shall be enforceable by Indemnitee independently of, and in addition to, Indemnitee's right to seek indemnification under this Agreement. Advances shall be unsecured and interest-free. The Company shall make advances pursuant to this Section 3.1 without regard to Indemnitee's ultimate entitlement to indemnification under Article II and without any preliminary determination that Indemnitee has met the applicable standard of conduct set forth in Section 2.1 or Section 2.2, as applicable.

Section 3.2 — Undertaking to Repay.

As a condition precedent to the advancement of Expenses by the Company under this Article III, Indemnitee shall execute and deliver to the Company an unsecured written undertaking, substantially in the form attached hereto as Exhibit A (the "Undertaking"), to repay to the Company all amounts so advanced in the event that it is ultimately determined by a Final Disposition that Indemnitee is not entitled to be indemnified by the Company under this Agreement, the Certificate of Incorporation, the Bylaws, the DGCL, or other applicable law. The Undertaking shall be accepted by the Company without reference to the financial ability of Indemnitee to make repayment. No security shall be required in connection with the Undertaking, and acceptance thereof shall not be conditioned upon any investigation of, or inquiry into, the financial status or creditworthiness of Indemnitee.

Section 3.3 — Continuation of Obligation.

The obligation of the Company to advance Expenses under this Article III shall not be terminated, diminished, or otherwise affected by any change in the status of Indemnitee, including, without limitation, any termination of Indemnitee's service as a director, officer, employee, or agent of the Company or of any subsidiary or Affiliate of the Company, so long as the Claim for which advancement is sought relates to or arises out of Indemnitee's service in a Covered Capacity, regardless of whether such service occurred before, on, or after the date of this Agreement.

ARTICLE IV — PROCEDURES FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION

Section 4.1 — Determination of Entitlement.

Subject to Section 2.3 (which requires no determination), any indemnification of Indemnitee under Article II of this Agreement (unless ordered by a court of competent jurisdiction) shall be made by the Company only upon a determination that the indemnification of Indemnitee is proper in the circumstances because Indemnitee has met the applicable standard of conduct set forth in Section 2.1 or Section 2.2, as applicable. Such determination shall be made in the specific case by one of the following methods (at the election of Indemnitee, to the extent permitted by applicable law):

(a) by the Board, acting by a majority vote of the Disinterested Directors, even though less than a quorum of the Board;

(b) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board;

(c) by Independent Counsel, selected in accordance with Section 4.4, in a written opinion delivered to the Company and Indemnitee; or

(d) by the stockholders of the Company (excluding any stockholder who is a party to the Claim in respect of which indemnification is sought).

Notwithstanding the foregoing, in the event that a Change of Control shall have occurred, the determination of Indemnitee's entitlement to indemnification under this Section 4.1 shall be made exclusively by Independent Counsel, selected in accordance with Section 4.4.

Section 4.2 — Request for Indemnification.

To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request for indemnification (the "Indemnification Request"), which shall be addressed to the Company's General Counsel (currently Sandra Haverford) at the principal executive offices of the Company at the address set forth in Section 10.5 or, if the General Counsel is the Indemnitee seeking indemnification under this Agreement or has a conflict of interest with respect to the applicable Claim, to the Chairman of the Board (currently Garrett Calloway) at such address. The Indemnification Request shall include or be accompanied by (a) reasonable documentation concerning the Claim giving rise to the request, including, as applicable, copies of any complaints, indictments, subpoenas, or similar documents; (b) a detailed statement of the nature and amount of the Expenses or other amounts for which indemnification is sought; and (c) a written statement by Indemnitee that Indemnitee believes in good faith that Indemnitee has met the applicable standard of conduct required for indemnification under this Agreement. Indemnitee shall supplement the Indemnification Request from time to time as additional information becomes available.

Section 4.3 — Timing.

The Company shall make a determination regarding Indemnitee's entitlement to indemnification under this Article IV within sixty (60) calendar days after receipt of a complete Indemnification Request from Indemnitee. If the determination is to be made by Independent Counsel pursuant to Section 4.1(c) or as required following a Change of Control, such Independent Counsel shall be selected within fifteen (15) calendar days after the date of the Indemnification Request and shall render its written determination within forty-five (45) calendar days after the date of its selection. The Company and Indemnitee shall cooperate in good faith with Independent Counsel and shall provide such information as Independent Counsel may reasonably request in connection with its determination.

If the Company fails to make a timely determination of Indemnitee's entitlement to indemnification within the applicable time period specified in this Section 4.3, Indemnitee shall be deemed to have satisfied the applicable standard of conduct and to be entitled to indemnification with respect to the applicable Claim, and the Company shall promptly pay all Expenses and other amounts for which indemnification is sought in the Indemnification Request. Any judicial proceeding or arbitration commenced pursuant to Article V with respect to the Company's failure to make a timely determination shall be conducted in all respects as a de novo proceeding.

Section 4.4 — Selection of Independent Counsel.

In the event that a determination of Indemnitee's entitlement to indemnification is to be made by Independent Counsel, such Independent Counsel shall be selected as follows:

(a) If no Change of Control shall have occurred, Independent Counsel shall be selected by the Board (or a committee thereof consisting of Disinterested Directors), and such selection shall be subject to the reasonable approval of Indemnitee. Indemnitee may, within ten (10) calendar days after written notice of the Board's selection, deliver to the Company a written objection to such selection, which objection may be asserted only on the ground that the firm or individual selected does not satisfy the requirements of the definition of "Independent Counsel" set forth in Section 1.1(n). If Indemnitee so objects, the Board shall select an alternative firm or individual, subject again to Indemnitee's reasonable approval, and this process shall continue until Independent Counsel is selected.

(b) If a Change of Control shall have occurred, Independent Counsel shall be selected by Indemnitee, and such selection shall be subject to the reasonable approval of the Company (which approval shall not be unreasonably withheld, delayed, or conditioned). The Company may, within ten (10) calendar days after written notice of Indemnitee's selection, deliver to Indemnitee a written objection to such selection, which objection may be asserted only on the ground that the firm or individual selected does not satisfy the requirements of the definition of "Independent Counsel" set forth in Section 1.1(n). If the Company so objects, Indemnitee shall select an alternative firm or individual, subject again to the Company's reasonable approval, and this process shall continue until Independent Counsel is selected.

The Company shall pay all reasonable fees and expenses of Independent Counsel incurred in connection with the determination of Indemnitee's entitlement to indemnification under this Agreement, and the Company shall pay such fees and expenses promptly upon receipt of invoices therefor. Neither the Company nor Indemnitee shall unreasonably withhold approval of any proposed Independent Counsel.

Section 4.5 — Presumptions and Burdens of Proof.

In connection with any determination under this Article IV as to whether Indemnitee is entitled to indemnification hereunder:

(a) Indemnitee shall be presumed to have acted in good faith and in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, and, with respect to any criminal Claim, to have had no reasonable cause to believe that Indemnitee's conduct was unlawful. The Company shall have the burden of proof to overcome such presumption, and such presumption shall be overcome only by clear and convincing evidence.

(b) The termination of any Claim by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that Indemnitee did not act in good faith and in a manner that Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, or, with respect to any criminal Claim, that Indemnitee had reasonable cause to believe that Indemnitee's conduct was unlawful.

(c) For purposes of any determination of the standard of conduct applicable to Indemnitee under this Agreement, any knowledge of the Company attributable to Indemnitee solely by reason of Indemnitee's position as a director, officer, or agent of the Company shall not be imputed to Indemnitee individually for purposes of determining whether Indemnitee met the applicable standard of conduct.

(d) The knowledge and/or actions, or failure to act, of any director, officer, agent, or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.

ARTICLE V — REMEDIES OF INDEMNITEE

Section 5.1 — Enforcement.

Indemnitee shall have the right to bring suit in the Court of Chancery of the State of Delaware (or, if the Court of Chancery declines to exercise jurisdiction, in any other court of the State of Delaware or any federal court located in the State of Delaware) to enforce Indemnitee's rights under this Agreement if any of the following circumstances exist:

(a) the Company denies, in whole or in part, an Indemnification Request submitted by Indemnitee pursuant to Section 4.2;

(b) the Company fails to make a timely determination of Indemnitee's entitlement to indemnification within the time periods specified in Section 4.3;

(d) Independent Counsel has rendered an adverse determination with respect to Indemnitee's entitlement to indemnification, and Indemnitee contests such determination.

In any such enforcement action, the court shall have the authority to determine de novo whether Indemnitee is entitled to indemnification or advancement of Expenses under this Agreement, the Certificate of Incorporation, the Bylaws, the DGCL, or any other applicable law, and shall not be bound by any prior determination made (or not made) pursuant to Article IV.

Section 5.2 — Presumption in Enforcement Proceedings.

In any judicial proceeding brought by Indemnitee to enforce rights under this Agreement, the Company shall have the burden of proving, by clear and convincing evidence, that indemnification or advancement of Expenses is not required under this Agreement, the Certificate of Incorporation, the Bylaws, the DGCL, or any other applicable law. Neither the failure of the Company (including the Board, a committee thereof, Independent Counsel, or the Company's stockholders) to have made a determination prior to the commencement of such enforcement action that indemnification or advancement is proper in the circumstances, nor an actual adverse determination by the Company (including the Board, a committee thereof, Independent Counsel, or the Company's stockholders) that Indemnitee has not met the applicable standard of conduct, shall be a defense to the enforcement action or create a presumption that Indemnitee has not met the applicable standard of conduct.

Section 5.3 — Expenses of Enforcement.

In the event that Indemnitee is successful, in whole or in part, in any judicial proceeding brought to enforce rights under this Agreement, or in connection with any Claim brought against Indemnitee to enforce an alleged obligation of Indemnitee to the Company (including any Claim to enforce Indemnitee's obligation to repay amounts advanced pursuant to Article III), the Company shall reimburse Indemnitee for all Expenses actually and reasonably incurred by Indemnitee in connection with such proceeding, including, without limitation, attorneys' fees, court costs, and other expenses incurred in the enforcement proceeding itself. Such reimbursement shall be made promptly following the resolution of the enforcement proceeding. Notwithstanding any contrary provision of this Agreement or any other agreement between the Parties, if the Company prevails in an enforcement action brought under this Section 5.1, the Company shall not seek to recover from Indemnitee any attorneys' fees, costs, or expenses incurred by the Company in connection with such enforcement action.

ARTICLE VI — SCOPE OF INDEMNIFICATION; NON-EXCLUSIVITY

Section 6.1 — Broadest Permissible Indemnification.

The indemnification and advancement of Expenses provided under this Agreement shall be to the fullest extent permitted by the DGCL as in effect at the time of the subject act or omission, or as in effect at the time of the determination of Indemnitee's entitlement to indemnification, whichever affords the greater protection to Indemnitee. If any amendment to the DGCL or any other applicable law is enacted after the date of this Agreement that permits broader indemnification or advancement of Expenses than is permitted on the date hereof, the protections afforded to Indemnitee under this Agreement shall automatically expand to the maximum extent permitted by such amendment, without the necessity of any further action by the Parties. The Company shall not adopt any amendment to the Certificate of Incorporation or the Bylaws the effect of which would be to deny, diminish, or encumber Indemnitee's right to indemnification or advancement under this Agreement.

Section 6.2 — Non-Exclusivity.

The rights of indemnification and advancement of Expenses provided to Indemnitee under this Agreement are in addition to, and not in substitution for, any other rights to which Indemnitee may be entitled under:

(a) the Certificate of Incorporation;

(b) the Bylaws;

(d) any separate agreement between the Company (or any of its subsidiaries or Affiliates) and Indemnitee;

(e) any insurance policy (including the directors' and officers' liability insurance policies described herein and any successor policies thereto); or

(f) the DGCL or any other applicable law.

To the extent that a change in the DGCL, whether by statute or judicial decision, permits greater indemnification or advancement of Expenses than would be afforded currently under the Certificate of Incorporation, the Bylaws, and this Agreement, it is the intent of the Parties that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy conferred by this Agreement shall be deemed exclusive of any other right or remedy, and every such right or remedy shall be cumulative and in addition to every other right or remedy given hereunder or now or hereafter existing at law or in equity or otherwise.

Section 6.3 — Not Deemed an Exclusive Remedy.

Nothing in this Agreement shall be deemed to diminish, limit, or impair any right of Indemnitee under any policy of directors' and officers' liability insurance maintained by the Company, including, without limitation, the primary directors' and officers' liability insurance policy issued by Meridian National Assurance Company (policy number DNO-22-048871) and the excess directors' and officers' liability insurance policies issued by Stonebridge Indemnity Corp. and Commonwealth Omnivrel Insurance Ltd., or any renewal, replacement, or successor policy thereto. The Company shall use its best efforts to ensure that Indemnitee is named as an insured under all such policies and that the coverage provided to Indemnitee thereunder is at least as favorable as the coverage provided to any other director or officer of the Company.

ARTICLE VII — EXCLUSIONS

Section 7.1 — Excluded Claims.

Notwithstanding any provision of this Agreement to the contrary, the Company shall not be obligated under this Agreement to indemnify or advance Expenses to Indemnitee with respect to any of the following:

(a) Claims Initiated by Indemnitee. Any Claim initiated or brought voluntarily by Indemnitee against the Company or any director, officer, employee, or agent of the Company (other than (i) an enforcement action brought by Indemnitee pursuant to Article V to enforce rights under this Agreement, which shall be governed by the provisions of Section 5.3, or (ii) a mandatory or compulsory counterclaim asserted by Indemnitee in a Claim brought against Indemnitee by or on behalf of the Company), unless the initiation of such Claim was authorized or consented to by the Board prior to the commencement thereof.

(b) Section 16(b) Violations. Any Claim arising from the purchase or sale, or offer of purchase or sale, by Indemnitee of securities of the Company in violation of Section 16(b) of the Exchange Act, or any similar successor statute, to the extent that Indemnitee realized personal profit or other personal financial benefit from such purchase or sale.

(c) Insurance Payments. Any amounts for which payment is actually made to or on behalf of Indemnitee under a valid and collectible insurance policy, including any directors' and officers' liability insurance policy maintained by the Company, except with respect to any amounts in excess of the amount of such insurance payment (i.e., the Company's obligations under this Agreement shall apply only to the extent that the applicable Expenses, judgments, fines, penalties, or amounts paid in settlement exceed the amounts actually paid or payable under such insurance policy).

(d) Prohibited Indemnification. Any matter as to which indemnification of Indemnitee would be prohibited by applicable law, even after giving full effect to the "fullest extent permitted" standard set forth in this Agreement, including, without limitation, as to any matter where a final, non-appealable judgment or other adjudication establishes that Indemnitee's acts or omissions involved intentional misconduct, a knowing violation of law, or a transaction from which Indemnitee derived an improper personal benefit.

(e) Unauthorized Settlements. Amounts paid in settlement of any Claim that is settled without the prior written consent of the Company, which consent shall not be unreasonably withheld, delayed, or conditioned. The Company shall be deemed to have given its consent to a proposed settlement if the Company fails to respond in writing within thirty (30) calendar days after receipt of a written request for consent from Indemnitee, which request shall include the material terms of the proposed settlement.

ARTICLE VIII — D&O INSURANCE

Section 8.1 — Obligation to Maintain Insurance.

For so long as Indemnitee serves the Company in a Covered Capacity, and for a period of six (6) years following the date on which Indemnitee ceases to serve in a Covered Capacity (the "Tail Period"), the Company shall use commercially reasonable efforts to obtain and maintain in full force and effect one or more policies of directors' and officers' liability insurance (the "D&O Insurance") with reputable insurance carriers, on terms and conditions and in amounts that are no less favorable to Indemnitee than those in effect as of the date of this Agreement. As of the date of this Agreement, the Company's D&O Insurance tower provides aggregate coverage of Fifty Million Dollars ($50,000,000), comprised of the following policies:

(a) Primary Policy: Meridian National Assurance Company, policy number DNO-22-048871;

(b) Excess Layer 1: Stonebridge Indemnity Corp.; and

The annual premium for the foregoing D&O Insurance tower is approximately One Million Eight Hundred Seventy Thousand Dollars ($1,870,000). The D&O Insurance program is placed through and administered by Dravello Place Insurance Advisors LLC (contact: Nina Radcliffe), or such successor insurance broker as the Company may designate from time to time.

Notwithstanding the foregoing, the Company shall not be required to obtain or maintain D&O Insurance if, after consultation with Dravello Place Insurance Advisors LLC (or its successor broker), the Board determines in good faith that (i) such insurance is not reasonably available at a commercially reasonable cost (taking into account the scope and amount of coverage, the premium cost, and the financial condition and risk profile of the Company), or (ii) the coverage provided by reasonably available policies is so limited in scope as to be of negligible benefit to Indemnitee. In any such event, the Company shall promptly notify Indemnitee in writing of such determination and the basis therefor.

Section 8.2 — Coverage of Indemnitee.

During the period of Indemnitee's service in a Covered Capacity and throughout the Tail Period, Indemnitee shall be covered as an insured under all D&O Insurance policies maintained by the Company. Such coverage shall be at least as favorable in terms and conditions (including scope, limits, retentions, and exclusions) as the coverage afforded to any other current or former director or officer of the Company. The Company shall not take any action, or permit any action to be taken, that would result in Indemnitee being excluded from coverage under any D&O Insurance policy, or that would result in Indemnitee receiving coverage that is less favorable than the coverage afforded to any other director or officer of the Company.

Section 8.3 — Notice of Reduction or Cancellation.

The Company shall provide Indemnitee with not less than thirty (30) calendar days' prior written notice of any material reduction in the scope or amount of coverage, non-renewal, or cancellation of any D&O Insurance policy maintained by the Company. Such notice shall describe in reasonable detail the nature and extent of the change in coverage and, if applicable, the reasons therefor. The Company shall provide such notice regardless of whether the reduction, non-renewal, or cancellation is initiated by the Company or by the insurance carrier.

Section 8.4 — Run-Off / Tail Coverage.

In the event that the Company undergoes a Change of Control (as defined in Section 1.1(e)), the Company (or its successor in interest) shall, prior to or concurrently with the consummation of such Change of Control, obtain and fully prepay a run-off (tail) D&O Insurance policy covering acts or omissions occurring on or before the date of such Change of Control, with a coverage period of not less than six (6) years from the date of such Change of Control and with coverage terms, conditions, retentions, and limits of liability that are no less favorable to Indemnitee than those contained in the D&O Insurance policies in effect immediately prior to the date of such Change of Control. In the event that the Company or its successor fails to obtain and prepay such run-off coverage, Indemnitee shall be entitled to purchase such coverage at the expense of the Company (or its successor).

ARTICLE IX — CONTRIBUTION

Section 9.1 — Contribution Obligation.

In the event that the indemnification provided for in Article II of this Agreement is unavailable to Indemnitee for any reason (other than as a result of an exclusion set forth in Article VII), the Company shall, in lieu of indemnifying Indemnitee, contribute to the amounts paid or payable by Indemnitee as a result of any Claim in such proportion as is appropriate to reflect (a) the relative benefits received by the Company and Indemnitee in connection with the events, transactions, or circumstances giving rise to such Claim, and (b) the relative fault of the Company and Indemnitee in connection therewith, as well as any other relevant equitable considerations. The relative fault of the Company and Indemnitee shall be determined by reference to, among other things, the Parties' relative intent, knowledge, access to information, and opportunity to correct or prevent the events, transactions, or circumstances giving rise to such Claim.

Notwithstanding the foregoing, in no event shall the aggregate contribution obligation of Indemnitee under this Section 9.1 exceed an amount equal to the aggregate cash compensation (excluding the value of any equity-based awards, including stock options, restricted stock, restricted stock units, and similar awards) actually received by Indemnitee from the Company during the twelve (12)-month period immediately preceding the date of the act or omission giving rise to the applicable Claim.

ARTICLE X — GENERAL PROVISIONS

Section 10.1 — Contractual Nature; No Modification of Rights.

The Parties acknowledge and agree that the rights of Indemnitee under this Agreement are contractual in nature and shall vest immediately upon the execution and delivery of this Agreement by the Parties. Such rights shall not be subject to modification, diminishment, or elimination by any amendment, repeal, or other modification of the Certificate of Incorporation, the Bylaws, or any provision of the DGCL, in each case to the extent that such amendment, repeal, or modification would adversely affect any right or protection of Indemnitee under this Agreement with respect to acts or omissions occurring prior to the effective date of such amendment, repeal, or modification. The Company's obligations to indemnify and advance Expenses under this Agreement shall survive any termination of Indemnitee's service in a Covered Capacity and shall continue in full force and effect until all Claims arising from or relating to Indemnitee's service in a Covered Capacity have been fully and finally resolved.

Section 10.2 — Duration.

This Agreement shall continue in full force and effect:

(a) during the entire period that Indemnitee serves the Company (or any of its subsidiaries or Affiliates) in a Covered Capacity; and

(b) thereafter, as to any Claim arising from or relating to acts or omissions during the period of Indemnitee's service in a Covered Capacity, until all applicable statutes of limitation (including any tolling periods) with respect to such acts or omissions have expired, and all Claims that are pending at the time of such expiration have been fully and finally resolved by Final Disposition.

Section 10.3 — Successors and Assigns.

This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors, assigns, heirs, executors, personal representatives, and administrators. The Company shall not effect any merger, consolidation, conversion, reorganization, sale of all or substantially all of its assets, or other transaction in which the Company is not the surviving entity (a "Successor Transaction") unless the surviving, resulting, or acquiring entity (the "Successor Entity") shall, as a condition to the consummation of such Successor Transaction, expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such Successor Transaction had taken place. Such assumption shall be evidenced by a written instrument of assumption in form and substance reasonably satisfactory to Indemnitee.

Section 10.4 — Severability.

If any provision of this Agreement (or any portion thereof) shall be held by a court of competent jurisdiction to be invalid, illegal, void, or unenforceable, such determination shall not affect, impair, or invalidate the remaining provisions hereof, and the remaining provisions shall continue in full force and effect. If any provision of this Agreement (or any portion thereof) is so held to be invalid, illegal, void, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible, and the invalid, illegal, void, or unenforceable provision shall be modified to the minimum extent necessary to make it valid, legal, and enforceable while preserving such original intent.

Section 10.5 — Notices.

All notices, requests, demands, consents, and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given (a) when delivered personally (with written confirmation of receipt), (b) when sent by nationally recognized overnight courier service (with confirmation of delivery), or (c) when sent by email (with written confirmation of receipt by the addressee, which may be by return email or other written acknowledgment), in each case addressed as follows:

If to the Company:

Calloway-Briggs Renewables Inc. 4200 Ridgeline Parkway, Suite 1100 Austin, TX 78746

Attention: General Counsel (Sandra Haverford)

Email: [__]

With a copy (which shall not constitute notice) to:

Calderwood & Harkness LLP 599 Lexington Avenue New York, NY 10022

Attention: Jennifer Kwon

Email: [__]

If to Indemnitee:

At the address set forth on the signature page hereto, or at such other address as Indemnitee may designate in writing to the Company in accordance with this Section 10.5, or at the most recent address for Indemnitee on file with the Company's Human Resources Department or Corporate Secretary.

Either Party may change its address for notice purposes by giving written notice of such change to the other Party in accordance with this Section 10.5.

Section 10.6 — Governing Law.

This Agreement, and all claims, causes of action, and disputes (whether in contract, tort, or otherwise) that may be based upon, arise out of, or relate to this Agreement or the negotiation, execution, or performance of this Agreement (including any claim, cause of action, or dispute based upon, arising out of, or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any choice-of-law or conflict-of-law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

Section 10.7 — Forum Selection.

Each of the Parties hereby irrevocably and unconditionally (a) agrees that any action, suit, or proceeding arising out of or relating to this Agreement shall be brought exclusively in the Court of Chancery of the State of Delaware (or, if the Court of Chancery declines to exercise jurisdiction, in any other state court of the State of Delaware or any federal court located in the State of Delaware), (b) consents to the exclusive jurisdiction of such courts in any such action, suit, or proceeding, (c) waives any objection that it may now or hereafter have to the laying of venue of any such action, suit, or proceeding in any such court, (d) waives any claim that any such action, suit, or proceeding has been brought in an inconvenient forum, and (e) agrees that service of process in any such action, suit, or proceeding may be effected by the means by which notices are to be given to it under Section 10.5.

EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 10.8 — Entire Agreement.

This Agreement, together with the Certificate of Incorporation, the Bylaws, and any D&O Insurance policies maintained by the Company, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, discussions, representations, understandings, and agreements, whether written or oral, between the Parties with respect to the indemnification and advancement obligations of the Company to Indemnitee, except to the extent that such prior agreements provide rights that are broader than or in addition to those provided herein (in which case such broader or additional rights shall not be deemed superseded).

Section 10.9 — Amendment and Waiver.

This Agreement may not be amended, modified, or supplemented except by a written instrument duly executed by both Parties. No waiver by either Party of any breach or default hereunder shall constitute a waiver of any prior, concurrent, or subsequent breach or default, whether or not similar, and no waiver shall be effective unless set forth in a writing signed by the Party to be bound thereby. The failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of such provision or any other provision of this Agreement.

Section 10.10 — Counterparts.

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of this Agreement by facsimile, email (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the Uniform Electronic Transactions Act, such as Brightwater Software or Ashford Health IT), or other means of electronic transmission shall be equally as effective as delivery of an original executed counterpart of this Agreement, and each Party hereby waives any objection to the use of such electronic signatures.

Section 10.11 — Subrogation.

In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee against third parties (other than insurance carriers under policies of D&O Insurance maintained by the Company), and Indemnitee shall execute all papers, take all actions, and do all things necessary to secure such rights, including the execution of such documents as are necessary to enable the Company to bring suit to enforce such rights. The Company shall not be subrogated to any rights of Indemnitee against any insurance carrier under any D&O Insurance policy or other insurance policy maintained by the Company.

Section 10.12 — No Duplication of Payments.

The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable or payable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under the Certificate of Incorporation, the Bylaws, any other agreement, any insurance policy (including any D&O Insurance policy), or from any other source. The foregoing shall not affect the obligation of the Company to advance Expenses under Article III in the first instance, subject to subsequent reduction for amounts actually received from other sources.

Section 10.13 — Headings.

The section headings and article headings contained in this Agreement are inserted for conveni

INDEMNIFICATION AGREEMENT
Between
CALLOWAY-BRIGGS RENEWABLES INC.
and
[INDEMNITEE NAME]
Form of Indemnification Agreement for use with each director and executive officer of Calloway-Briggs Renewables Inc., a Delaware corporation, adopted by the Board of Directors on [________], 2022, in connection with the proposed initial public offering of common stock of the Company on the New York Stock Exchange.
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INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is made and entered into as of [__], 2022 (the "Effective Date"), by and between:
CALLOWAY-BRIGGS RENEWABLES INC., a corporation duly organized and existing under the laws of the State of Delaware (the "Company"), with its principal executive offices at 4200 Ridgeline Parkway, Suite 1100, Austin, TX 78746, its registered agent being Capitol Statutory Services, Inc., 1209 Orange Street, Wilmington, DE 19801, and its Employer Identification Number being 83-4027615; and
[NAME OF INDEMNITEE] ("Indemnitee"), an individual currently serving as a [director/officer] of the Company, residing at the address set forth on the signature page hereto.
The Company and Indemnitee are each referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, the Company recognizes the substantial difficulty of attracting and retaining highly qualified individuals to serve as directors and officers of public companies, particularly in light of the increasing exposure of such individuals to costly and time-consuming litigation arising from their service in such capacities, and the Board of Directors of the Company (the "Board") has determined that appropriate and comprehensive indemnification protections are necessary and desirable in order to attract and retain such qualified individuals and to encourage such individuals to serve freely and exercise their best judgment on behalf of the Company and its stockholders without fear of undue personal liability (the "Recital A");
WHEREAS, the Company's Amended and Restated Certificate of Incorporation (which shall become effective upon the closing of the Company's initial public offering of common stock on the New York Stock Exchange) (the "Certificate of Incorporation") and the Company's Amended and Restated Bylaws (which shall become effective upon such closing) (the "Bylaws") each provide for the indemnification of the directors and officers of the Company to the fullest extent permitted by the General Corporation Law of the State of Delaware (the "DGCL"), and this Agreement is intended to supplement and further the indemnification and advancement protections afforded to Indemnitee under the Certificate of Incorporation, the Bylaws, and the DGCL, and is not intended in any way to limit, diminish, or replace such protections (the "Recital B");
WHEREAS, the Company has obtained directors' and officers' liability insurance and intends to maintain such coverage (or reasonably equivalent coverage) for so long as Indemnitee serves the Company in a Covered Capacity (as defined below), providing Indemnitee with additional protection against personal liability arising from the performance of Indemnitee's duties, and the Company's current directors' and officers' liability insurance tower provides aggregate coverage of Fifty Million Dollars ($50,000,000) under a primary policy issued by Meridian National Assurance Company, policy number DNO-22-048871, together with excess Layer 1 coverage issued by Stonebridge Indemnity Corp. and excess Layer 2 coverage issued by Commonwealth Omnivrel Insurance Ltd. (the "Recital C");
WHEREAS, Indemnitee is willing to serve, or to continue to serve, the Company in a Covered Capacity, provided that the Company enters into this Agreement and provides Indemnitee with the indemnification and advancement protections set forth herein, which Indemnitee regards as an essential element of Indemnitee's willingness to serve or continue to serve the Company (the "Recital D"); and
WHEREAS, in consideration of Indemnitee's agreement to serve or continue to serve the Company in a Covered Capacity, and in recognition of the need to provide Indemnitee with certainty regarding the scope and availability of indemnification protections, and in order to induce Indemnitee to provide effective service to the Company, the Company desires to provide Indemnitee with specific contractual assurance of the indemnification and advancement rights set forth herein, irrespective of, among other things, any change in the composition of the Board, any amendment to the Certificate of Incorporation or Bylaws, or any change in control of the Company (the "Recital E").
NOW, THEREFORE, in consideration of the mutual covenants, agreements, representations, and warranties set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each Party, the Parties agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 — Defined Terms.
As used in this Agreement, the following terms shall have the meanings set forth below. All defined terms used herein in the singular shall include the plural and vice versa, as the context may require.
(a) "Affiliate" shall mean, with respect to any specified Person, any other Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such specified Person, as such terms are used in and construed under Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Bylaws" shall mean the Amended and Restated Bylaws of the Company, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
(d) "Certificate of Incorporation" shall mean the Amended and Restated Certificate of Incorporation of the Company, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
(e) "Change of Control" shall mean the occurrence, after the date of this Agreement, of any of the following events:
(i) the acquisition by any Person or "group" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of securities of the Company representing more than fifty percent (50%) of the total combined voting power of the Company's then-outstanding voting securities entitled to vote generally in the election of directors;
(ii) the replacement of a majority of the members of the Board during any twelve (12)-month period by directors whose appointment or election is not endorsed by a majority of the members of the Board who were members of the Board immediately prior to the commencement of such twelve (12)-month period (each such continuing director, an "Incumbent Director"), provided that any individual becoming a director subsequent to the date of this Agreement whose election, or nomination for election by the Company's stockholders, was approved by a vote of at least a majority of the then-Incumbent Directors shall be considered as though such individual were an Incumbent Director, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board;
(iii) the consummation of a merger, consolidation, statutory share exchange, or similar business combination involving the Company (a "Business Combination"), unless, following such Business Combination, (A) all or substantially all of the individuals and entities that were the beneficial owners of outstanding voting securities of the Company immediately prior to such Business Combination beneficially own, directly or indirectly, more than fifty percent (50%) of the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors (or equivalent governing body) of the entity resulting from such Business Combination (including, without limitation, an entity that, as a result of such Business Combination, owns the Company or all or substantially all of the Company's assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination, and (B) no Person (excluding any entity resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such entity resulting from such Business Combination) beneficially owns, directly or indirectly, more than fifty percent (50%) of the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors (or equivalent governing body) of the entity resulting from such Business Combination; or
(iv) the sale, transfer, or other disposition, in one transaction or a series of related transactions, of all or substantially all of the assets of the Company and its subsidiaries, taken as a whole, to any Person that is not an Affiliate of the Company.
Notwithstanding the foregoing, the proposed initial public offering of the Company's common stock on the New York Stock Exchange and the resulting changes in ownership percentages of the Company's outstanding capital stock (including, without limitation, any reduction in the ownership percentage of Pinnacle Vista Capital Partners III, LP, from its current approximate ownership level of sixty-two percent (62%) of the outstanding common stock of the Company on a fully diluted basis) shall not, in and of themselves, constitute a Change of Control for purposes of this Agreement.
(f) "Claim" shall mean any threatened, pending, or completed action, suit, proceeding, arbitration, mediation, alternative dispute resolution mechanism, investigation, inquiry, hearing, or similar proceeding, whether civil, criminal, administrative, investigative, legislative, or other, and whether formal or informal, including any appeal therefrom.
(g) "Company" shall mean Calloway-Briggs Renewables Inc., a Delaware corporation, and any successor entity thereto, whether by merger, consolidation, conversion, reorganization, or otherwise.
(h) "Covered Capacity" shall mean service as a director, officer, employee, or agent of the Company, or service at the request of the Company as a director, officer, employee, member, manager, trustee, fiduciary, or agent of any other corporation, partnership, limited liability company, joint venture, trust, employee benefit plan, or other entity or enterprise, including, without limitation, service in any such capacity with any subsidiary of the Company, such as CBR Holdings LLC, Calloway-Briggs Operating Company LLC, or any project-level special purpose vehicle organized in connection with the Company's renewable energy development activities.
(i) "DGCL" shall mean the General Corporation Law of the State of Delaware, Title 8 of the Delaware Code, as the same may be amended, supplemented, or replaced from time to time (and, in the case of any such amendment, supplement, or replacement, shall refer to the corresponding provision or provisions of the resulting or successor statute).
(j) "Disinterested Director" shall mean a director of the Company who is not and was not a party to the Claim in respect of which indemnification or advancement of Expenses is sought by Indemnitee under this Agreement.
(k) "Expenses" shall mean all reasonable and documented attorneys' fees, retainer fees, court costs, transcript costs, fees of experts and consultants, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, any federal, state, local, or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any indemnification payments under this Agreement, penalties and fines assessed under the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and all other disbursements, costs, or expenses of the types customarily incurred in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing to investigate, defend, be a witness in, or participate in, any Claim relating to any Indemnifiable Event. Expenses shall also include Expenses incurred in connection with any appeal resulting from any Claim, including, without limitation, the premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent.
(l) "Final Disposition" shall mean the final adjudication of a Claim by a court of competent jurisdiction from which there is no further right of appeal (whether because the applicable period for appeal has expired without action, the highest available appellate court has rendered a final and non-appealable judgment, or otherwise), or the final resolution of a Claim by settlement, dismissal (with or without prejudice), nolle prosequi, entry of a plea of nolo contendere, or the equivalent thereof.
(m) "Indemnitee" shall mean the individual who is a party to this Agreement, in such individual's capacity as a director, officer, or other person serving in a Covered Capacity, as the context may require.
(n) "Independent Counsel" shall mean a law firm, or a member of a law firm, that is experienced in matters of Delaware corporation law and that has not, during the five (5)-year period preceding the date of selection pursuant to Section 4.4 of this Agreement, been retained to represent (i) the Company or any of its subsidiaries or Affiliates, (ii) Indemnitee, or (iii) any other party to the Claim giving rise to a request for indemnification hereunder, in any matter material to any such party (other than in connection with matters concerning the rights of Indemnitee under this Agreement or of other indemnitees under similar indemnification agreements). Notwithstanding the foregoing, each of Calderwood & Harkness LLP, Prescott, Danforth & Yee LLP, and Whitfield Archer & Doss LLP shall be deemed not to qualify as Independent Counsel by virtue of their existing and prior engagements with the Company and its Affiliates, regardless of the nature or scope of such engagements.
(o) "Person" shall mean any individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization, association, government, or any agency or political subdivision thereof, or any other entity.
(p) "Proceeding" shall mean any Claim to which Indemnitee is, was, or becomes a party or other participant, or is threatened to be made a party or other participant, by reason of Indemnitee's Covered Capacity or by reason of any action or inaction on the part of Indemnitee while serving in a Covered Capacity.
Section 1.2 — Rules of Construction.
Unless the context of this Agreement otherwise requires: (a) words of any gender include each other gender; (b) words using the singular or plural number also include the plural or singular number, respectively; (c) the terms "hereof," "herein," "hereby," "hereto," and derivative or similar words refer to this entire Agreement; (d) the terms "Article," "Section," "Exhibit," and "Schedule" refer to the specified Article, Section, Exhibit, or Schedule of or to this Agreement, unless otherwise specified; (e) the word "including" shall mean "including, without limitation"; and (f) the word "or" shall be disjunctive but not exclusive. Terms not otherwise defined herein shall have the meanings ascribed to such terms in the Certificate of Incorporation or the Bylaws or, if not defined therein, as commonly understood under the laws of the State of Delaware. Any reference to the DGCL or to any other statute or regulation shall be deemed to include any successor statute or regulation thereto, unless the context otherwise requires. References to any agreement, instrument, or document shall be deemed to include references to such agreement, instrument, or document as amended, supplemented, restated, or otherwise modified from time to time in accordance with its terms.
ARTICLE II — INDEMNIFICATION
Section 2.1 — Third-Party Claims.
Subject to the terms and conditions of this Agreement (including the exclusions set forth in Article VII), the Company shall indemnify and hold harmless Indemnitee, to the fullest extent permitted by applicable law (including, without limitation, Section 145(a) of the DGCL), if Indemnitee was, is, or becomes a party to, or a witness or other participant in, or is threatened to be made a party to, or a witness or other participant in, any Claim (other than a Claim by or in the right of the Company) by reason of (or arising in whole or in part out of) Indemnitee's Covered Capacity, or by reason of any action or inaction on the part of Indemnitee while serving in a Covered Capacity, against all Expenses, judgments, fines, penalties, and amounts paid in settlement (including all interest, assessments, and other charges paid or payable in connection with or in respect of any such Expenses, judgments, fines, penalties, and amounts paid in settlement) actually and reasonably incurred by Indemnitee in connection with such Claim; provided, however, that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, and, with respect to any criminal Claim or proceeding, had no reasonable cause to believe that Indemnitee's conduct was unlawful.
The indemnification provided by this Section 2.1 shall expressly extend to and cover Indemnitee's service as a director, officer, employee, member, manager, or agent of any direct or indirect subsidiary of the Company, including, without limitation, CBR Holdings LLC, Calloway-Briggs Operating Company LLC, and any project-level special purpose vehicle organized in connection with the Company's renewable energy development and operating activities, including 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, and CBR Development Co. LLC, as well as any other subsidiary or Affiliate of the Company at which Indemnitee serves in a Covered Capacity during the term of this Agreement or thereafter.
Section 2.2 — Derivative Claims.
Subject to the terms and conditions of this Agreement (including the exclusions set forth in Article VII), the Company shall indemnify and hold harmless Indemnitee, to the fullest extent permitted by applicable law (including, without limitation, Section 145(b) of the DGCL), if Indemnitee was, is, or becomes a party to, or a witness or other participant in, or is threatened to be made a party to, or a witness or other participant in, any Claim by or in the right of the Company to procure a judgment in its favor by reason of (or arising in whole or in part out of) Indemnitee's Covered Capacity, or by reason of any action or inaction on the part of Indemnitee while serving in a Covered Capacity, against all Expenses actually and reasonably incurred by Indemnitee in connection with the investigation, defense, settlement, or appeal of such Claim; provided, however, that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company.
Notwithstanding the foregoing, no indemnification under this Section 2.2 shall be made in respect of any claim, issue, or matter as to which Indemnitee shall have been adjudged by a court of competent jurisdiction, in a judgment from which there is no further right of appeal, to be liable to the Company, unless and only to the extent that the Court of Chancery of the State of Delaware, or the court in which such Claim was brought, shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses as such court shall deem proper.
Section 2.3 — Indemnification for Expenses of a Successful Party.
Notwithstanding any other provision of this Agreement, and without the need for any determination under Section 4.1, to the extent that Indemnitee is successful, on the merits or otherwise, in the defense of any Claim, or in the defense of any claim, issue, or matter therein, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection therewith. For purposes of this Section 2.3 and without limitation, the termination, withdrawal, or resolution of any Claim, or any claim, issue, or matter therein, without an express finding of liability against Indemnitee (whether by dismissal, with or without prejudice, settlement without admission of wrongdoing, nolle prosequi, or any similar disposition) shall be deemed to be a successful result on the merits or otherwise.
Section 2.4 — Partial Indemnification.
If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for a portion of the Expenses, judgments, fines, penalties, and amounts paid in settlement actually and reasonably incurred by Indemnitee in connection with any Claim, but not, however, for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Expenses, judgments, fines, penalties, and amounts paid in settlement to which Indemnitee is entitled. Without limiting the generality of the foregoing, if any Claim is brought against Indemnitee and is resolved, whether by settlement, summary judgment, or verdict, on a basis that attributes part of the amounts paid or to be paid to matters within the scope of indemnification under this Agreement and part to matters outside the scope of indemnification under this Agreement, the Company shall indemnify Indemnitee with respect to the portion attributable to matters within the scope of indemnification.
Section 2.5 — Indemnification of Expenses of a Witness.
The Company shall indemnify and hold harmless Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection with any Claim to which Indemnitee is not a party but in which Indemnitee is called or requested to appear as a witness, provide testimony, respond to discovery requests, produce documents, or otherwise participate, if such participation arises by reason of Indemnitee's Covered Capacity or by reason of any action or inaction on the part of Indemnitee while serving in a Covered Capacity. This obligation shall apply regardless of whether such Claim involves the Company as a party or relates to the Company's business, operations, or affairs.
ARTICLE III — ADVANCEMENT OF EXPENSES
Section 3.1 — Obligation to Advance.
The Company shall advance all Expenses incurred by Indemnitee in connection with any Claim (whether or not brought by or in the right of the Company) within thirty (30) calendar days after receipt by the Company of a written request from Indemnitee therefor, together with reasonable documentation or evidence of such Expenses (which may include redacted invoices to protect attorney-client privilege or work product protections, provided that such invoices include sufficient detail regarding the nature and amount of the Expenses incurred to permit the Company to assess the reasonableness thereof). Indemnitee's entitlement to advancement of Expenses under this Section 3.1 shall include any and all Expenses incurred in connection with pursuing an enforcement action under Article V.
The obligation of the Company to advance Expenses hereunder shall be a separate and distinct obligation from, and shall not be contingent upon or affected by, the Company's obligation to indemnify Indemnitee under Article II of this Agreement, and shall be enforceable by Indemnitee independently of, and in addition to, Indemnitee's right to seek indemnification under this Agreement. Advances shall be unsecured and interest-free. The Company shall make advances pursuant to this Section 3.1 without regard to Indemnitee's ultimate entitlement to indemnification under Article II and without any preliminary determination that Indemnitee has met the applicable standard of conduct set forth in Section 2.1 or Section 2.2, as applicable.
Section 3.2 — Undertaking to Repay.
As a condition precedent to the advancement of Expenses by the Company under this Article III, Indemnitee shall execute and deliver to the Company an unsecured written undertaking, substantially in the form attached hereto as Exhibit A (the "Undertaking"), to repay to the Company all amounts so advanced in the event that it is ultimately determined by a Final Disposition that Indemnitee is not entitled to be indemnified by the Company under this Agreement, the Certificate of Incorporation, the Bylaws, the DGCL, or other applicable law. The Undertaking shall be accepted by the Company without reference to the financial ability of Indemnitee to make repayment. No security shall be required in connection with the Undertaking, and acceptance thereof shall not be conditioned upon any investigation of, or inquiry into, the financial status or creditworthiness of Indemnitee.
Section 3.3 — Continuation of Obligation.
The obligation of the Company to advance Expenses under this Article III shall not be terminated, diminished, or otherwise affected by any change in the status of Indemnitee, including, without limitation, any termination of Indemnitee's service as a director, officer, employee, or agent of the Company or of any subsidiary or Affiliate of the Company, so long as the Claim for which advancement is sought relates to or arises out of Indemnitee's service in a Covered Capacity, regardless of whether such service occurred before, on, or after the date of this Agreement.
ARTICLE IV — PROCEDURES FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION
Section 4.1 — Determination of Entitlement.
Subject to Section 2.3 (which requires no determination), any indemnification of Indemnitee under Article II of this Agreement (unless ordered by a court of competent jurisdiction) shall be made by the Company only upon a determination that the indemnification of Indemnitee is proper in the circumstances because Indemnitee has met the applicable standard of conduct set forth in Section 2.1 or Section 2.2, as applicable. Such determination shall be made in the specific case by one of the following methods (at the election of Indemnitee, to the extent permitted by applicable law):
(a) by the Board, acting by a majority vote of the Disinterested Directors, even though less than a quorum of the Board;
(b) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board;
(c) by Independent Counsel, selected in accordance with Section 4.4, in a written opinion delivered to the Company and Indemnitee; or
(d) by the stockholders of the Company (excluding any stockholder who is a party to the Claim in respect of which indemnification is sought).
Notwithstanding the foregoing, in the event that a Change of Control shall have occurred, the determination of Indemnitee's entitlement to indemnification under this Section 4.1 shall be made exclusively by Independent Counsel, selected in accordance with Section 4.4.
Section 4.2 — Request for Indemnification.
To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request for indemnification (the "Indemnification Request"), which shall be addressed to the Company's General Counsel (currently Sandra Haverford) at the principal executive offices of the Company at the address set forth in Section 10.5 or, if the General Counsel is the Indemnitee seeking indemnification under this Agreement or has a conflict of interest with respect to the applicable Claim, to the Chairman of the Board (currently Garrett Calloway) at such address. The Indemnification Request shall include or be accompanied by (a) reasonable documentation concerning the Claim giving rise to the request, including, as applicable, copies of any complaints, indictments, subpoenas, or similar documents; (b) a detailed statement of the nature and amount of the Expenses or other amounts for which indemnification is sought; and (c) a written statement by Indemnitee that Indemnitee believes in good faith that Indemnitee has met the applicable standard of conduct required for indemnification under this Agreement. Indemnitee shall supplement the Indemnification Request from time to time as additional information becomes available.
Section 4.3 — Timing.
The Company shall make a determination regarding Indemnitee's entitlement to indemnification under this Article IV within sixty (60) calendar days after receipt of a complete Indemnification Request from Indemnitee. If the determination is to be made by Independent Counsel pursuant to Section 4.1(c) or as required following a Change of Control, such Independent Counsel shall be selected within fifteen (15) calendar days after the date of the Indemnification Request and shall render its written determination within forty-five (45) calendar days after the date of its selection. The Company and Indemnitee shall cooperate in good faith with Independent Counsel and shall provide such information as Independent Counsel may reasonably request in connection with its determination.
If the Company fails to make a timely determination of Indemnitee's entitlement to indemnification within the applicable time period specified in this Section 4.3, Indemnitee shall be deemed to have satisfied the applicable standard of conduct and to be entitled to indemnification with respect to the applicable Claim, and the Company shall promptly pay all Expenses and other amounts for which indemnification is sought in the Indemnification Request. Any judicial proceeding or arbitration commenced pursuant to Article V with respect to the Company's failure to make a timely determination shall be conducted in all respects as a de novo proceeding.
Section 4.4 — Selection of Independent Counsel.
In the event that a determination of Indemnitee's entitlement to indemnification is to be made by Independent Counsel, such Independent Counsel shall be selected as follows:
(a) If no Change of Control shall have occurred, Independent Counsel shall be selected by the Board (or a committee thereof consisting of Disinterested Directors), and such selection shall be subject to the reasonable approval of Indemnitee. Indemnitee may, within ten (10) calendar days after written notice of the Board's selection, deliver to the Company a written objection to such selection, which objection may be asserted only on the ground that the firm or individual selected does not satisfy the requirements of the definition of "Independent Counsel" set forth in Section 1.1(n). If Indemnitee so objects, the Board shall select an alternative firm or individual, subject again to Indemnitee's reasonable approval, and this process shall continue until Independent Counsel is selected.
(b) If a Change of Control shall have occurred, Independent Counsel shall be selected by Indemnitee, and such selection shall be subject to the reasonable approval of the Company (which approval shall not be unreasonably withheld, delayed, or conditioned). The Company may, within ten (10) calendar days after written notice of Indemnitee's selection, deliver to Indemnitee a written objection to such selection, which objection may be asserted only on the ground that the firm or individual selected does not satisfy the requirements of the definition of "Independent Counsel" set forth in Section 1.1(n). If the Company so objects, Indemnitee shall select an alternative firm or individual, subject again to the Company's reasonable approval, and this process shall continue until Independent Counsel is selected.
The Company shall pay all reasonable fees and expenses of Independent Counsel incurred in connection with the determination of Indemnitee's entitlement to indemnification under this Agreement, and the Company shall pay such fees and expenses promptly upon receipt of invoices therefor. Neither the Company nor Indemnitee shall unreasonably withhold approval of any proposed Independent Counsel.
Section 4.5 — Presumptions and Burdens of Proof.
In connection with any determination under this Article IV as to whether Indemnitee is entitled to indemnification hereunder:
(a) Indemnitee shall be presumed to have acted in good faith and in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, and, with respect to any criminal Claim, to have had no reasonable cause to believe that Indemnitee's conduct was unlawful. The Company shall have the burden of proof to overcome such presumption, and such presumption shall be overcome only by clear and convincing evidence.
(b) The termination of any Claim by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that Indemnitee did not act in good faith and in a manner that Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, or, with respect to any criminal Claim, that Indemnitee had reasonable cause to believe that Indemnitee's conduct was unlawful.
(c) For purposes of any determination of the standard of conduct applicable to Indemnitee under this Agreement, any knowledge of the Company attributable to Indemnitee solely by reason of Indemnitee's position as a director, officer, or agent of the Company shall not be imputed to Indemnitee individually for purposes of determining whether Indemnitee met the applicable standard of conduct.
(d) The knowledge and/or actions, or failure to act, of any director, officer, agent, or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.
ARTICLE V — REMEDIES OF INDEMNITEE
Section 5.1 — Enforcement.
Indemnitee shall have the right to bring suit in the Court of Chancery of the State of Delaware (or, if the Court of Chancery declines to exercise jurisdiction, in any other court of the State of Delaware or any federal court located in the State of Delaware) to enforce Indemnitee's rights under this Agreement if any of the following circumstances exist:
(a) the Company denies, in whole or in part, an Indemnification Request submitted by Indemnitee pursuant to Section 4.2;
(b) the Company fails to make a timely determination of Indemnitee's entitlement to indemnification within the time periods specified in Section 4.3;
(c) the Company fails to advance Expenses to Indemnitee in a timely manner as required by Section 3.1; or
(d) Independent Counsel has rendered an adverse determination with respect to Indemnitee's entitlement to indemnification, and Indemnitee contests such determination.
In any such enforcement action, the court shall have the authority to determine de novo whether Indemnitee is entitled to indemnification or advancement of Expenses under this Agreement, the Certificate of Incorporation, the Bylaws, the DGCL, or any other applicable law, and shall not be bound by any prior determination made (or not made) pursuant to Article IV.
Section 5.2 — Presumption in Enforcement Proceedings.
In any judicial proceeding brought by Indemnitee to enforce rights under this Agreement, the Company shall have the burden of proving, by clear and convincing evidence, that indemnification or advancement of Expenses is not required under this Agreement, the Certificate of Incorporation, the Bylaws, the DGCL, or any other applicable law. Neither the failure of the Company (including the Board, a committee thereof, Independent Counsel, or the Company's stockholders) to have made a determination prior to the commencement of such enforcement action that indemnification or advancement is proper in the circumstances, nor an actual adverse determination by the Company (including the Board, a committee thereof, Independent Counsel, or the Company's stockholders) that Indemnitee has not met the applicable standard of conduct, shall be a defense to the enforcement action or create a presumption that Indemnitee has not met the applicable standard of conduct.
Section 5.3 — Expenses of Enforcement.
In the event that Indemnitee is successful, in whole or in part, in any judicial proceeding brought to enforce rights under this Agreement, or in connection with any Claim brought against Indemnitee to enforce an alleged obligation of Indemnitee to the Company (including any Claim to enforce Indemnitee's obligation to repay amounts advanced pursuant to Article III), the Company shall reimburse Indemnitee for all Expenses actually and reasonably incurred by Indemnitee in connection with such proceeding, including, without limitation, attorneys' fees, court costs, and other expenses incurred in the enforcement proceeding itself. Such reimbursement shall be made promptly following the resolution of the enforcement proceeding. Notwithstanding any contrary provision of this Agreement or any other agreement between the Parties, if the Company prevails in an enforcement action brought under this Section 5.1, the Company shall not seek to recover from Indemnitee any attorneys' fees, costs, or expenses incurred by the Company in connection with such enforcement action.
ARTICLE VI — SCOPE OF INDEMNIFICATION; NON-EXCLUSIVITY
Section 6.1 — Broadest Permissible Indemnification.
The indemnification and advancement of Expenses provided under this Agreement shall be to the fullest extent permitted by the DGCL as in effect at the time of the subject act or omission, or as in effect at the time of the determination of Indemnitee's entitlement to indemnification, whichever affords the greater protection to Indemnitee. If any amendment to the DGCL or any other applicable law is enacted after the date of this Agreement that permits broader indemnification or advancement of Expenses than is permitted on the date hereof, the protections afforded to Indemnitee under this Agreement shall automatically expand to the maximum extent permitted by such amendment, without the necessity of any further action by the Parties. The Company shall not adopt any amendment to the Certificate of Incorporation or the Bylaws the effect of which would be to deny, diminish, or encumber Indemnitee's right to indemnification or advancement under this Agreement.
Section 6.2 — Non-Exclusivity.
The rights of indemnification and advancement of Expenses provided to Indemnitee under this Agreement are in addition to, and not in substitution for, any other rights to which Indemnitee may be entitled under:
(a) the Certificate of Incorporation;
(b) the Bylaws;
(c) any resolution adopted by the Board or the stockholders of the Company;
(d) any separate agreement between the Company (or any of its subsidiaries or Affiliates) and Indemnitee;
(e) any insurance policy (including the directors' and officers' liability insurance policies described herein and any successor policies thereto); or
(f) the DGCL or any other applicable law.
To the extent that a change in the DGCL, whether by statute or judicial decision, permits greater indemnification or advancement of Expenses than would be afforded currently under the Certificate of Incorporation, the Bylaws, and this Agreement, it is the intent of the Parties that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy conferred by this Agreement shall be deemed exclusive of any other right or remedy, and every such right or remedy shall be cumulative and in addition to every other right or remedy given hereunder or now or hereafter existing at law or in equity or otherwise.
Section 6.3 — Not Deemed an Exclusive Remedy.
Nothing in this Agreement shall be deemed to diminish, limit, or impair any right of Indemnitee under any policy of directors' and officers' liability insurance maintained by the Company, including, without limitation, the primary directors' and officers' liability insurance policy issued by Meridian National Assurance Company (policy number DNO-22-048871) and the excess directors' and officers' liability insurance policies issued by Stonebridge Indemnity Corp. and Commonwealth Omnivrel Insurance Ltd., or any renewal, replacement, or successor policy thereto. The Company shall use its best efforts to ensure that Indemnitee is named as an insured under all such policies and that the coverage provided to Indemnitee thereunder is at least as favorable as the coverage provided to any other director or officer of the Company.
ARTICLE VII — EXCLUSIONS
Section 7.1 — Excluded Claims.
Notwithstanding any provision of this Agreement to the contrary, the Company shall not be obligated under this Agreement to indemnify or advance Expenses to Indemnitee with respect to any of the following:
(a) Claims Initiated by Indemnitee. Any Claim initiated or brought voluntarily by Indemnitee against the Company or any director, officer, employee, or agent of the Company (other than (i) an enforcement action brought by Indemnitee pursuant to Article V to enforce rights under this Agreement, which shall be governed by the provisions of Section 5.3, or (ii) a mandatory or compulsory counterclaim asserted by Indemnitee in a Claim brought against Indemnitee by or on behalf of the Company), unless the initiation of such Claim was authorized or consented to by the Board prior to the commencement thereof.
(b) Section 16(b) Violations. Any Claim arising from the purchase or sale, or offer of purchase or sale, by Indemnitee of securities of the Company in violation of Section 16(b) of the Exchange Act, or any similar successor statute, to the extent that Indemnitee realized personal profit or other personal financial benefit from such purchase or sale.
(c) Insurance Payments. Any amounts for which payment is actually made to or on behalf of Indemnitee under a valid and collectible insurance policy, including any directors' and officers' liability insurance policy maintained by the Company, except with respect to any amounts in excess of the amount of such insurance payment (i.e., the Company's obligations under this Agreement shall apply only to the extent that the applicable Expenses, judgments, fines, penalties, or amounts paid in settlement exceed the amounts actually paid or payable under such insurance policy).
(d) Prohibited Indemnification. Any matter as to which indemnification of Indemnitee would be prohibited by applicable law, even after giving full effect to the "fullest extent permitted" standard set forth in this Agreement, including, without limitation, as to any matter where a final, non-appealable judgment or other adjudication establishes that Indemnitee's acts or omissions involved intentional misconduct, a knowing violation of law, or a transaction from which Indemnitee derived an improper personal benefit.
(e) Unauthorized Settlements. Amounts paid in settlement of any Claim that is settled without the prior written consent of the Company, which consent shall not be unreasonably withheld, delayed, or conditioned. The Company shall be deemed to have given its consent to a proposed settlement if the Company fails to respond in writing within thirty (30) calendar days after receipt of a written request for consent from Indemnitee, which request shall include the material terms of the proposed settlement.
ARTICLE VIII — D&O INSURANCE
Section 8.1 — Obligation to Maintain Insurance.
For so long as Indemnitee serves the Company in a Covered Capacity, and for a period of six (6) years following the date on which Indemnitee ceases to serve in a Covered Capacity (the "Tail Period"), the Company shall use commercially reasonable efforts to obtain and maintain in full force and effect one or more policies of directors' and officers' liability insurance (the "D&O Insurance") with reputable insurance carriers, on terms and conditions and in amounts that are no less favorable to Indemnitee than those in effect as of the date of this Agreement. As of the date of this Agreement, the Company's D&O Insurance tower provides aggregate coverage of Fifty Million Dollars ($50,000,000), comprised of the following policies:
(a) Primary Policy: Meridian National Assurance Company, policy number DNO-22-048871;
(b) Excess Layer 1: Stonebridge Indemnity Corp.; and
(c) Excess Layer 2: Commonwealth Omnivrel Insurance Ltd.
The annual premium for the foregoing D&O Insurance tower is approximately One Million Eight Hundred Seventy Thousand Dollars ($1,870,000). The D&O Insurance program is placed through and administered by Dravello Place Insurance Advisors LLC (contact: Nina Radcliffe), or such successor insurance broker as the Company may designate from time to time.
Notwithstanding the foregoing, the Company shall not be required to obtain or maintain D&O Insurance if, after consultation with Dravello Place Insurance Advisors LLC (or its successor broker), the Board determines in good faith that (i) such insurance is not reasonably available at a commercially reasonable cost (taking into account the scope and amount of coverage, the premium cost, and the financial condition and risk profile of the Company), or (ii) the coverage provided by reasonably available policies is so limited in scope as to be of negligible benefit to Indemnitee. In any such event, the Company shall promptly notify Indemnitee in writing of such determination and the basis therefor.
Section 8.2 — Coverage of Indemnitee.
During the period of Indemnitee's service in a Covered Capacity and throughout the Tail Period, Indemnitee shall be covered as an insured under all D&O Insurance policies maintained by the Company. Such coverage shall be at least as favorable in terms and conditions (including scope, limits, retentions, and exclusions) as the coverage afforded to any other current or former director or officer of the Company. The Company shall not take any action, or permit any action to be taken, that would result in Indemnitee being excluded from coverage under any D&O Insurance policy, or that would result in Indemnitee receiving coverage that is less favorable than the coverage afforded to any other director or officer of the Company.
Section 8.3 — Notice of Reduction or Cancellation.
The Company shall provide Indemnitee with not less than thirty (30) calendar days' prior written notice of any material reduction in the scope or amount of coverage, non-renewal, or cancellation of any D&O Insurance policy maintained by the Company. Such notice shall describe in reasonable detail the nature and extent of the change in coverage and, if applicable, the reasons therefor. The Company shall provide such notice regardless of whether the reduction, non-renewal, or cancellation is initiated by the Company or by the insurance carrier.
Section 8.4 — Run-Off / Tail Coverage.
In the event that the Company undergoes a Change of Control (as defined in Section 1.1(e)), the Company (or its successor in interest) shall, prior to or concurrently with the consummation of such Change of Control, obtain and fully prepay a run-off (tail) D&O Insurance policy covering acts or omissions occurring on or before the date of such Change of Control, with a coverage period of not less than six (6) years from the date of such Change of Control and with coverage terms, conditions, retentions, and limits of liability that are no less favorable to Indemnitee than those contained in the D&O Insurance policies in effect immediately prior to the date of such Change of Control. In the event that the Company or its successor fails to obtain and prepay such run-off coverage, Indemnitee shall be entitled to purchase such coverage at the expense of the Company (or its successor).
ARTICLE IX — CONTRIBUTION
Section 9.1 — Contribution Obligation.
In the event that the indemnification provided for in Article II of this Agreement is unavailable to Indemnitee for any reason (other than as a result of an exclusion set forth in Article VII), the Company shall, in lieu of indemnifying Indemnitee, contribute to the amounts paid or payable by Indemnitee as a result of any Claim in such proportion as is appropriate to reflect (a) the relative benefits received by the Company and Indemnitee in connection with the events, transactions, or circumstances giving rise to such Claim, and (b) the relative fault of the Company and Indemnitee in connection therewith, as well as any other relevant equitable considerations. The relative fault of the Company and Indemnitee shall be determined by reference to, among other things, the Parties' relative intent, knowledge, access to information, and opportunity to correct or prevent the events, transactions, or circumstances giving rise to such Claim.
Notwithstanding the foregoing, in no event shall the aggregate contribution obligation of Indemnitee under this Section 9.1 exceed an amount equal to the aggregate cash compensation (excluding the value of any equity-based awards, including stock options, restricted stock, restricted stock units, and similar awards) actually received by Indemnitee from the Company during the twelve (12)-month period immediately preceding the date of the act or omission giving rise to the applicable Claim.
ARTICLE X — GENERAL PROVISIONS
Section 10.1 — Contractual Nature; No Modification of Rights.
The Parties acknowledge and agree that the rights of Indemnitee under this Agreement are contractual in nature and shall vest immediately upon the execution and delivery of this Agreement by the Parties. Such rights shall not be subject to modification, diminishment, or elimination by any amendment, repeal, or other modification of the Certificate of Incorporation, the Bylaws, or any provision of the DGCL, in each case to the extent that such amendment, repeal, or modification would adversely affect any right or protection of Indemnitee under this Agreement with respect to acts or omissions occurring prior to the effective date of such amendment, repeal, or modification. The Company's obligations to indemnify and advance Expenses under this Agreement shall survive any termination of Indemnitee's service in a Covered Capacity and shall continue in full force and effect until all Claims arising from or relating to Indemnitee's service in a Covered Capacity have been fully and finally resolved.
Section 10.2 — Duration.
This Agreement shall continue in full force and effect:
(a) during the entire period that Indemnitee serves the Company (or any of its subsidiaries or Affiliates) in a Covered Capacity; and
(b) thereafter, as to any Claim arising from or relating to acts or omissions during the period of Indemnitee's service in a Covered Capacity, until all applicable statutes of limitation (including any tolling periods) with respect to such acts or omissions have expired, and all Claims that are pending at the time of such expiration have been fully and finally resolved by Final Disposition.
Section 10.3 — Successors and Assigns.
This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors, assigns, heirs, executors, personal representatives, and administrators. The Company shall not effect any merger, consolidation, conversion, reorganization, sale of all or substantially all of its assets, or other transaction in which the Company is not the surviving entity (a "Successor Transaction") unless the surviving, resulting, or acquiring entity (the "Successor Entity") shall, as a condition to the consummation of such Successor Transaction, expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such Successor Transaction had taken place. Such assumption shall be evidenced by a written instrument of assumption in form and substance reasonably satisfactory to Indemnitee.
Section 10.4 — Severability.
If any provision of this Agreement (or any portion thereof) shall be held by a court of competent jurisdiction to be invalid, illegal, void, or unenforceable, such determination shall not affect, impair, or invalidate the remaining provisions hereof, and the remaining provisions shall continue in full force and effect. If any provision of this Agreement (or any portion thereof) is so held to be invalid, illegal, void, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible, and the invalid, illegal, void, or unenforceable provision shall be modified to the minimum extent necessary to make it valid, legal, and enforceable while preserving such original intent.
Section 10.5 — Notices.
All notices, requests, demands, consents, and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given (a) when delivered personally (with written confirmation of receipt), (b) when sent by nationally recognized overnight courier service (with confirmation of delivery), or (c) when sent by email (with written confirmation of receipt by the addressee, which may be by return email or other written acknowledgment), in each case addressed as follows:
If to the Company:
Calloway-Briggs Renewables Inc. 4200 Ridgeline Parkway, Suite 1100 Austin, TX 78746
Attention: General Counsel (Sandra Haverford)
Email: [__]
With a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP 599 Lexington Avenue New York, NY 10022
Attention: Jennifer Kwon
Email: [__]
If to Indemnitee:
At the address set forth on the signature page hereto, or at such other address as Indemnitee may designate in writing to the Company in accordance with this Section 10.5, or at the most recent address for Indemnitee on file with the Company's Human Resources Department or Corporate Secretary.
Either Party may change its address for notice purposes by giving written notice of such change to the other Party in accordance with this Section 10.5.
Section 10.6 — Governing Law.
This Agreement, and all claims, causes of action, and disputes (whether in contract, tort, or otherwise) that may be based upon, arise out of, or relate to this Agreement or the negotiation, execution, or performance of this Agreement (including any claim, cause of action, or dispute based upon, arising out of, or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any choice-of-law or conflict-of-law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
Section 10.7 — Forum Selection.
Each of the Parties hereby irrevocably and unconditionally (a) agrees that any action, suit, or proceeding arising out of or relating to this Agreement shall be brought exclusively in the Court of Chancery of the State of Delaware (or, if the Court of Chancery declines to exercise jurisdiction, in any other state court of the State of Delaware or any federal court located in the State of Delaware), (b) consents to the exclusive jurisdiction of such courts in any such action, suit, or proceeding, (c) waives any objection that it may now or hereafter have to the laying of venue of any such action, suit, or proceeding in any such court, (d) waives any claim that any such action, suit, or proceeding has been brought in an inconvenient forum, and (e) agrees that service of process in any such action, suit, or proceeding may be effected by the means by which notices are to be given to it under Section 10.5.
EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 10.8 — Entire Agreement.
This Agreement, together with the Certificate of Incorporation, the Bylaws, and any D&O Insurance policies maintained by the Company, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, discussions, representations, understandings, and agreements, whether written or oral, between the Parties with respect to the indemnification and advancement obligations of the Company to Indemnitee, except to the extent that such prior agreements provide rights that are broader than or in addition to those provided herein (in which case such broader or additional rights shall not be deemed superseded).
Section 10.9 — Amendment and Waiver.
This Agreement may not be amended, modified, or supplemented except by a written instrument duly executed by both Parties. No waiver by either Party of any breach or default hereunder shall constitute a waiver of any prior, concurrent, or subsequent breach or default, whether or not similar, and no waiver shall be effective unless set forth in a writing signed by the Party to be bound thereby. The failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of such provision or any other provision of this Agreement.
Section 10.10 — Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of this Agreement by facsimile, email (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the Uniform Electronic Transactions Act, such as Brightwater Software or Ashford Health IT), or other means of electronic transmission shall be equally as effective as delivery of an original executed counterpart of this Agreement, and each Party hereby waives any objection to the use of such electronic signatures.
Section 10.11 — Subrogation.
In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee against third parties (other than insurance carriers under policies of D&O Insurance maintained by the Company), and Indemnitee shall execute all papers, take all actions, and do all things necessary to secure such rights, including the execution of such documents as are necessary to enable the Company to bring suit to enforce such rights. The Company shall not be subrogated to any rights of Indemnitee against any insurance carrier under any D&O Insurance policy or other insurance policy maintained by the Company.
Section 10.12 — No Duplication of Payments.
The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable or payable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under the Certificate of Incorporation, the Bylaws, any other agreement, any insurance policy (including any D&O Insurance policy), or from any other source. The foregoing shall not affect the obligation of the Company to advance Expenses under Article III in the first instance, subject to subsequent reduction for amounts actually received from other sources.
Section 10.13 — Headings.
The section headings and article headings contained in this Agreement are inserted for conveni

INDEMNIFICATION AGREEMENT

CALLOWAY-BRIGGS RENEWABLES INC.

INDEMNIFICATION AGREEMENT

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