Form 8-K
8-K — Suncrete, Inc.
Accession: 0001104659-26-043237
Filed: 2026-04-14
Period: 2026-04-08
CIK: 0002094433
SIC: 3272 (CONCRETE PRODUCTS, EXCEPT BLOCK & BRICK)
Item: Entry into a Material Definitive Agreement
Item: Completion of Acquisition or Disposition of Assets
Item: Unregistered Sales of Equity Securities
Item: Material Modifications to Rights of Security Holders
Item: Changes in Registrant's Certifying Accountant
Item: Changes in Control of Registrant
Item: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers
Item: Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
Item: Amendments to the Registrant's Code of Ethics, or Waiver of a Provision of the Code of Ethics
Item: Change in Shell Company Status
Item: Financial Statements and Exhibits
Documents
8-K — tm2611641d1_8k.htm (Primary)
EX-2.3 — EXHIBIT 2.3 (tm2611641d1_ex2-3.htm)
EX-3.1 — EXHIBIT 3.1 (tm2611641d1_ex3-1.htm)
EX-3.2 — EXHIBIT 3.2 (tm2611641d1_ex3-2.htm)
EX-3.3 — EXHIBIT 3.3 (tm2611641d1_ex3-3.htm)
EX-4.2 — EXHIBIT 4.2 (tm2611641d1_ex4-2.htm)
EX-10.1 — EXHIBIT 10.1 (tm2611641d1_ex10-1.htm)
EX-10.2 — EXHIBIT 10.2 (tm2611641d1_ex10-2.htm)
EX-10.7 — EXHIBIT 10.7 (tm2611641d1_ex10-7.htm)
EX-10.9 — EXHIBIT 10.9 (tm2611641d1_ex10-9.htm)
EX-10.10 — EXHIBIT 10.10 (tm2611641d1_ex10-10.htm)
EX-10.11 — EXHIBIT 10.11 (tm2611641d1_ex10-11.htm)
EX-10.12 — EXHIBIT 10.12 (tm2611641d1_ex10-12.htm)
EX-10.13 — EXHIBIT 10.13 (tm2611641d1_ex10-13.htm)
EX-10.14 — EXHIBIT 10.14 (tm2611641d1_ex10-14.htm)
EX-10.15 — EXHIBIT 10.15 (tm2611641d1_ex10-15.htm)
EX-10.19 — EXHIBIT 10.19 (tm2611641d1_ex10-19.htm)
EX-10.20 — EXHIBIT 10.20 (tm2611641d1_ex10-20.htm)
EX-10.22 — EXHIBIT 10.22 (tm2611641d1_ex10-22.htm)
EX-14.1 — EXHIBIT 14.1 (tm2611641d1_ex14-1.htm)
EX-16.1 — EXHIBIT 16.1 (tm2611641d1_ex16-1.htm)
EX-21.1 — EXHIBIT 21.1 (tm2611641d1_ex21-1.htm)
EX-99.1 — EXHIBIT 99.1 (tm2611641d1_ex99-1.htm)
EX-99.2 — EXHIBIT 99.2 (tm2611641d1_ex99-2.htm)
EX-99.3 — EXHIBIT 99.3 (tm2611641d1_ex99-3.htm)
EX-99.4 — EXHIBIT 99.4 (tm2611641d1_ex99-4.htm)
EX-99.5 — EXHIBIT 99.5 (tm2611641d1_ex99-5.htm)
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported):
April 8, 2026
Suncrete, Inc.
(Exact name of registrant as specified in its
charter)
Delaware
001-43227
39-4989597
(State or other jurisdiction
of incorporation)
(Commission
File Number)
(I.R.S. Employer
Identification Number)
817 E. 4th Street
Tulsa, Oklahoma 74120
(Address of principal executive offices, including zip code)
(918) 355-5700
Registrant’s telephone number, including
area code
Not
Applicable
(Former
name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title
of each class
Trading
Symbol(s)
Name
of each exchange on which
registered
Class A common stock, par value $0.0001 per share
RMIX
The Nasdaq Stock Market LLC
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2
of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company x
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Introductory Note
The Business Combination
On April 8, 2026 (the “Closing
Date”), Suncrete, Inc. (the “Company”) consummated its previously announced business combination (the “Closing”)
pursuant to that certain Business Combination Agreement, dated October 9, 2025 (the “Business Combination Agreement”), by
and among the Company, Haymaker Acquisition Corp. 4, a Cayman Islands exempted company (“Haymaker” or “SPAC”),
Haymaker Merger Sub I, Inc., a Delaware corporation and a direct wholly owned subsidiary of the Company (“Merger Sub I”),
Haymaker Merger Sub II, LLC, a Delaware limited liability company and direct wholly owned subsidiary of the Company (“Merger Sub
II”), and Concrete Partners Holding, LLC, a Delaware limited liability company (“Suncrete”), a copy of which is attached
to this Current Report on Form 8-K as Exhibit 2.1 and is incorporated herein by reference.
Immediately prior to the Closing,
on April 8, 2026, Haymaker redeemed all of its issued and outstanding public warrants to purchase Class A Ordinary Shares of Haymaker,
par value $0.0001 per share (“SPAC Class A Ordinary Shares” and such warrants, the “SPAC Public Warrants”) in
exchange for (i) $2.25 in cash and (ii) 0.075 SPAC Class A Ordinary Shares per SPAC Public Warrant (the “Warrant Redemption”).
Also immediately prior to
the Closing, on April 8, 2026, Haymaker transferred by way of continuation out of its jurisdiction of incorporation from the Cayman Islands
and domesticated into the State of Delaware (the “Domestication” and the time at which the Domestication became effective,
the “Domestication Effective Time”). At the Domestication Effective Time (a) each SPAC Class A Ordinary Share that was issued
and outstanding immediately prior to the Domestication Effective Time converted automatically, on a one-for-one basis, into one share
of Class A Common Stock of the post-Domestication SPAC, par value $0.0001 per share (“SPAC Class A Common Stock”), (b) each
Class B Ordinary Share of Haymaker, par value $0.0001 per share, that was issued and outstanding immediately prior to the Domestication
Effective Time converted automatically, on a one-for-one basis, into one share of Class B Common Stock of the post-Domestication SPAC,
par value $0.0001 per share (“SPAC Class B Common Stock”), and (c) each then-issued and outstanding private warrant to purchase
SPAC Class A Ordinary Shares prior to the Domestication converted automatically, on a one-for-one basis, into one private warrant to purchase
SPAC Class A Common Stock (a “SPAC Private Warrant”).
On April 8, 2026, immediately
following the Domestication, Merger Sub I merged with and into Haymaker (the “Initial Merger”), with Haymaker surviving the
Initial Merger as a wholly owned subsidiary of the Company (the time at which the Initial Merger became effective, the “Initial
Merger Effective Time”). At the Initial Merger Effective Time, among other things, (a) Haymaker Sponsor IV, LLC (“Sponsor”)
distributed 2,800,000 shares of SPAC Class A Common Stock (the “Dothan Founder Shares”) and 398,800
SPAC Private Warrants to Dothan Independent GP, LP (“Dothan Independent”), (b) each share of SPAC Class A Common Stock
issued and outstanding immediately prior to the Initial Merger Effective Time was canceled and converted into one share of Class A Common
Stock of the Company, par value $0.0001 per share (“Company Class A Common Stock”), (c) each share of SPAC Class B Common
Stock issued and outstanding immediately prior to the Initial Merger Effective Time was canceled and converted into one share of Class
B Common Stock of the Company, par value $0.0001 per share (“Company Class B Common Stock” and, together with the Company
Class A Common Stock, the “Company Common Stock”) and (d) each then-outstanding SPAC Private Warrant was automatically assumed
and converted into a private warrant to purchase one share of Company Class A Common Stock (“Company Warrants”).
On April 8, 2026, immediately
following the Initial Merger, Merger Sub II merged with and into Suncrete (the “Acquisition Merger” and, together with the
Initial Merger, the “Mergers”, and together with the Domestication, the Warrant Redemption and all other transactions contemplated
by the Business Combination Agreement, the “Business Combination” and the time at which the Acquisition Merger became effective,
the “Acquisition Merger Effective Time”), with Suncrete surviving the Acquisition Merger as a wholly owned subsidiary of the
Company. At the Acquisition Merger Effective Time, among other things, (a) each share of Company Class B Common Stock issued and outstanding
immediately prior to the Acquisition Merger Effective Time (other than the Dothan Founder Shares) was converted into and exchanged, on
a one-for-one basis, into one share of Company Class A Common Stock, (b) the Company issued 14,117,894 shares of Company Class A Common
Stock to members of Suncrete, (c) the Company issued 3,481,776 shares of restricted Company Class A Common Stock upon the cancelation
and conversion of the incentive units granted to management of Suncrete (“Rollover Equity Awards”), (d) the Company issued
18,414,609 shares of Company Class B Common Stock to members of Suncrete, and (e) the Company issued 2,500,000 shares of Company Class
B Common Stock to Dothan Independent.
In addition, as previously
disclosed, the Company previously entered into subscription agreements (the “PIPE Subscription Agreements”) with certain institutional
investors (collectively, the “PIPE Investors”), pursuant to which (a) immediately prior to the Acquisition Merger Effective
Time, the Company issued and sold to certain of the PIPE Investors in a private placement an aggregate of 11,216,667 shares of Company
Class A Common Stock and pre-funded warrants to purchase 2,525,094 shares of Company Class A Common Stock (the “Pre-Funded Warrants”)
and (b) at the Acquisition Merger Effective Time, the Company issued and sold to certain of the PIPE Investors in a private placement
an aggregate of 6,162,009 shares of Company Class A Common Stock.
Further, as previously disclosed,
the Company previously entered into a Securities Exchange Agreement (the “Exchange Agreement”) with holders of Suncrete’s
Senior Preferred Units (the “Senior Preferred Units”), pursuant to which the Company agreed to issue an aggregate of 26,000
shares of Series A Convertible Perpetual Preferred Stock, par value $0.0001 per share (the “Series A Preferred Stock”), to
such Senior Preferred Unit holders in exchange for their Senior Preferred Units (the “Exchange”). On April 8, 2026, the Exchange
occurred immediately prior to the closing of the Acquisition Merger, and the Company issued 26,000 shares of Series A Preferred Stock
to the Senior Preferred Unit holders, following the acceptance by the Secretary of State of the State of Delaware of the Certificate of
Designation for the Series A Convertible Perpetual Preferred Stock (the “Certificate of Designation”).
In connection with the closing
of the Business Combination, holders of 12,628,150 SPAC Class A Ordinary Shares sold in Haymaker’s initial public offering properly
exercised their right to have their shares redeemed for a pro rata portion of the trust account holding the proceeds from Haymaker’s
initial public offering, and on April 8, 2026, prior to the Domestication, Haymaker redeemed 12,628,150 Class A ordinary shares for $11.57
per share (the “Public Share Redemptions”). As a result, on April 8, 2026, after giving effect to the Public Share Redemptions
and payments to holders under prepaid forward agreements and before paying expenses, there was approximately $59 million remaining in
the trust account.
As of the Closing Date, following
the Public Share Redemptions, the issuance of the shares of Company Class A Common Stock pursuant to the PIPE Subscription Agreements,
and the consummation of the Mergers, there were (i) 46,879,768 shares of Company Class A Common Stock issued and outstanding, (ii) 23,714,609
shares of Company Class B Common Stock issued and outstanding, and (iii) Company Warrants to purchase 398,800 shares of Company Class
A Common Stock outstanding. The Company Class A Common Stock commenced trading on The Nasdaq Global Market (“Nasdaq”) under
the symbol “RMIX” on April 9, 2026.
Item 1.01. Entry into a Material Definitive Agreement.
Warrant Amendment and Redemption
On April 8, 2026, prior to
the Warrant Redemption, Haymaker, the Company and Continental Stock Transfer & Trust Company, in its capacity as warrant agent (the
“Warrant Agent”), entered into Amendment No. 1 to the Warrant Agreement (the “Warrant Amendment”) to amend that
certain Warrant Agreement, dated as of July 25, 2023, by and between Haymaker and the Warrant Agent (the “Warrant Agreement”)
to effect the Warrant Redemption.
The foregoing summary of the
Warrant Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Warrant Amendment,
a copy of which is attached as Exhibit 4.2 to this Current Report on Form 8-K and is incorporated herein by reference.
Amended and Restated Registration Rights Agreement
In connection with the Initial
Closing, the Company, Haymaker, and Sponsor entered into an Amended and Restated Registration Rights Agreement (the “A&R Registration
Rights Agreement”) amending and restating the existing Registration Rights Agreement, dated as of July 25, 2023, by and between
Haymaker and Sponsor and certain other equityholders of Haymaker, pursuant to which, among other things, the Company agreed to register
for resale on Form S-1 or, if available, Form S-3, pursuant to Rule 415 under the Securities Act of 1933, as amended (the “Securities
Act”), certain securities of the Company that are held by Sponsor.
Under the A&R Registration
Rights Agreement, the Company agreed to indemnify holders of registrable securities and their respective officers, directors and each
person who controls such holders (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses
(including attorneys’ fees) resulting from any untrue or alleged untrue statement, or omission or alleged omission of a material
fact in any registration statement, prospectus or any amendment thereof or supplement thereto pursuant to which such holders sell their
registrable securities, unless such liability arose from such holder’s misstatement or alleged misstatement, or omission or alleged
omission, and such holders agreed to indemnify the Company, its officers and directors and agents and each person who controls the Company
(within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expenses (including without limitation
reasonable attorneys’ fees) resulting from any untrue statement of material facts or any omission of a material fact in any registration
statement, prospectus or any amendment thereof or supplement thereto pursuant to which such holders sell their registrable securities.
The foregoing summary of the
A&R Registration Rights Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of
the A&R Registration Rights Agreement, a copy of which is attached as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated
herein by reference.
Company Registration Rights Agreement
In addition, in connection
with the closing of the Acquisition Merger, the Company, Dothan Independent and certain members of Suncrete (the “Company Members”)
entered into a Registration Rights Agreement (the “Company Registration Rights Agreement”), pursuant to which certain members
of Suncrete were granted customary registration rights with respect to the Company securities held by such parties following the Closing
of the Business Combination. In certain circumstances, the Company Members can demand the Company’s assistance with underwritten
offerings and block trades, and the Company Members are entitled to certain piggyback registration rights.
Under the Company Registration
Rights Agreement, the Company agreed to indemnify the Company Members and their respective officers, directors and each person who controls
such holders (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses (including attorneys’
fees) resulting from any untrue or alleged untrue statement, or omission or alleged omission of a material fact in any registration statement,
prospectus or any amendment thereof or supplement thereto pursuant to which such holders sell their registrable securities, unless such
liability arose from such holder’s misstatement or alleged misstatement, or omission or alleged omission, and such holders agreed
to indemnify the Company, its officers and directors and agents and each person who controls the Company (within the meaning of the Securities
Act) against any losses, claims, damages, liabilities and expenses (including without limitation reasonable attorneys’ fees) resulting
from any untrue statement of material facts or any omission of a material fact in any registration statement, prospectus or any amendment
thereof or supplement thereto pursuant to which such holders sell their registrable securities.
The foregoing summary of the
Company Registration Rights Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of
the Company Registration Rights Agreement, a copy of which is attached as Exhibit 10.2 to this Current Report on Form 8-K and is incorporated
herein by reference.
Indemnification of Directors and Officers
Concurrently with the Closing,
the Company entered into indemnification agreements with its directors and executive officers. Each indemnification agreement provides
that, subject to limited exceptions, the Company will indemnify the applicable indemnified person to the fullest extent permitted by law
for claims arising in his or her capacity as a director or officer of the Company, as applicable.
The foregoing description
of the indemnification agreements does not purport to be complete and is qualified in its entirety by reference to the full text of the
indemnification agreements, a form of which is filed as Exhibit 10.16 to this Current Report on Form 8-K and is incorporated herein by
reference.
Forward Purchase Agreement
On April 6, 2026, Haymaker and Pubco entered into
a forward purchase agreement (the “Forward Purchase Agreement”) with each of Harraden Circle Investors, LP (“HCI”),
Harraden Circle Special Opportunities, LP (“HCSO”), Harraden Circle Strategic Investments, LP (“HCSI”) and Harraden
Circle Concentrated, LP (“HCC”) (with HCI, HCSO, HCSI, HCC, collectively as “Seller”) for a prepaid share forward
transaction. Pursuant to the terms of the Forward Purchase Agreement, the Seller has agreed to purchase up to 5,000,000 Shares (as defined
in the Forward Purchase Agreement) in accordance with the terms and conditions therein. The Forward Purchase Agreement provides that the
Seller will be prepaid an aggregate cash amount (the “Prepayment Amount”) equal to the (i) number of Shares, multiplied by
(ii) the per-share redemption price at the closing of the Business Combination (the “Initial Price”). The Seller will be paid
the Prepayment Amount directly from Haymaker’s trust account on the earlier of (a) one (1) business day after the closing of the
Business Combination and (b) the date any assets from the trust account are disbursed in connection with the Business Combination. From
time to time and on any business day on which Nasdaq and commercial banks in the City of New York are open for business (an “Exchange
Business Day”), following the closing of the Business Combination (any such date, an “OET Date”), and subject to the
terms and conditions therein, the Seller shall terminate the Transaction in whole or in part with respect to any number of Shares that
are sold by Seller on such OET Date by giving notice of such termination and the specified number of Shares (such quantity, the “Terminated
Shares”). As of each OET Date, the Company will be entitled to from Seller, and Seller shall pay to Pubco, an amount equal to (a)
the Initial Price multiplied by (b) the Terminated Shares. The Forward Purchase Agreement maturity date will be the earlier of (a) 6 months
after the closing of the Business Combination, or (b) ten Exchange Business Days following the date upon which Pubco, in its sole discretion,
delivers written notice to Seller that Pubco is accelerating the maturity date; provided that such notice will not be effective until
three months after the closing of the Business Combination. In addition, Pubco has the right, in its sole discretion, to extend the maturity
up to two times by three months each time by delivering written notice to Seller at least ten Exchange Business Days in advance of the
then-scheduled maturity date. At maturity, in exchange for the return of the number of remaining Shares under the Forward Purchase Agreement,
the Seller shall retain an amount equal to (i) the number of Shares multiplied by (ii) the Initial Price. The Seller also agreed to waive
any redemption rights with respect to the Shares during the term of the Forward Purchase Agreement.
The foregoing summary of the
Forward Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Forward
Purchase Agreement, which is filed as Exhibit 10.8 to this Current Report on Form 8-K and is incorporated herein by reference.
Credit Agreement Amendments
As previously disclosed, as
of July 29, 2024 and as amended on October 17, 2025, certain of the Company’s subsidiaries are party to a credit agreement (the
“Credit Agreement”) with Bank of America, N.A., as administrative agent and certain lenders party thereto (the “Lenders”)
providing for a fully drawn senior secured first lien term loan facility in the aggregate principal amount of $205 million (the “Term
Loan”) and a $25 million revolving credit facility (the “Revolving Credit Facility”). On March 25, 2026, certain of
the Company’s subsidiaries entered into that certain Consent and Second Amendment to Credit Agreement and First Amendment to Security
and Pledge Agreement (the “Second Amendment,” and the Credit Agreement, as amended by the Second Amendment and the Third Amendment
(as hereinafter defined), the “Amended Credit Agreement” ) to, among other things, to permit the consummation of the Business
Combination and giving effect to the Closing, to add the Company and SPAC as guarantors under the Amended Credit Agreement. On April 7,
2026, certain of the Company’s subsidiaries and, giving effect to the Closing, the Company and SPAC, entered into that certain Limited
Consent and Third Amendment to Credit Agreement (the “Third Amendment”) to, among other things, permit the previously disclosed
prepaid forward agreement with the Closing.
The foregoing summary of the
Second Amendment and the Third Amendment do not purport to be complete and are qualified in their entirety by reference to the full text
of the Second Amendment and the Third Amendment, copies of which are attached as Exhibit 10.19 and 10.20, respectively, to this Current
Report on Form 8-K and are incorporated herein by reference.
Amendment to Schwarz Purchase Agreement
On
March 27, 2026, Eagle Redi-Mix Concrete, LLC (“Eagle Redi-Mix”), an indirect wholly owned subsidiary of the Company, and SRM,
Inc. DBA Schwarz Ready Mix (“Schwarz Ready Mix”), in its capacity as representative of the selling parties, entered into the
First Amendment to the Equity and Asset Purchase and Contribution Agreement (the “Schwarz Purchase Agreement Amendment”),
which amends that certain Equity and Asset Purchase and Contribution Agreement, dated October 17, 2025 (the “Schwarz Purchase Agreement”),
by and among Eagle Redi-Mix, SRM Leasing, LLC, an Oklahoma limited liability company (“Schwarz Leasing”), Schwarz Sand,
LLC an Oklahoma limited liability company (“Schwarz Sand,” and together with Schwarz Ready Mix and Schwarz Leasing, the “Schwarz
Entities”) and the other selling parties named therein. The Schwarz Purchase Agreement Amendment extends the deadline for payment
of any unpaid portion of the Deferred Payment (as defined in the Schwarz Purchase Agreement, and as adjusted pursuant to the Schwarz Purchase
Agreement from March 31, 2026 to June 30, 2026, with an automatic extension to July 31, 2026 in the event payment is not made by June
30, 2026), and provides that if amounts remain unpaid as of July 31, 2026, interest shall accrue on any such unpaid amounts from June
30, 2026 until payment is made.
The foregoing summary of the
Schwarz Purchase Agreement Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of
the Schwarz Purchase Agreement Amendment, a copy of which is attached as Exhibit 2.3 to this Current Report on Form 8-K and is incorporated
herein by reference.
Dothan Management Agreement Amendment
Pursuant to the Business Combination
Agreement, on April 8, 2026, the Company entered into an amendment (the “Dothan Management Agreement Amendment”) to that certain
Management and Consulting Agreement, dated as of July 29, 2024, by and between Dothan Concrete Investments Management, LLC (“Dothan
Management”) and Suncrete (the “Dothan Management Agreement”). Among other things, the Dothan Management Agreement Amendment
provides for (i) the assumption of the Dothan Management Agreement by the Company from Suncrete, (ii) payment by the Company to Dothan
Management of diligence and integration fees in the amount of $10 million as the diligence and integration fee in consideration for the
services provided by Dothan Management and its personnel to Suncrete in relation to the Business Combination, and (iii) quarterly consulting
payments by Suncrete to Dothan Management. Dothan Management is an affiliate of the Company, Dothan Independent and SunTx Capital Management
Corp.
The foregoing summary of the
Dothan Management Agreement Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of
the Dothan Management Agreement Amendment, a copy of which is attached as Exhibit 10.22 to this Current Report on Form 8-K and is incorporated
herein by reference.
Item 2.01. Completion of Acquisition or Disposition of Assets.
The disclosure set forth in
the “Introductory Note” above is incorporated into this Item 2.01 by reference. On April 2, 2026, the Business Combination
was approved by the shareholders of Haymaker at an extraordinary general meeting of its shareholders (the “Shareholder Meeting”).
The Business Combination was completed on April 8, 2026. The material terms of the Business Combination are described in greater detail
in the section of the Proxy Statement/Prospectus titled “The Business Combination” beginning on page 121, which information
is incorporated herein by reference.
FORM 10 INFORMATION
Item 2.01(f) of Form 8-K
states that if the predecessor registrant was a shell company, as the Company was immediately before the Business Combination, then the
registrant must disclose the information that would be required if the registrant were filing a general form for registration of securities
on Form 10. Accordingly, the Company is providing the information below that would be included in a Form 10. Please note that unless
the context otherwise requires, all references to the business of the “Company” refer to the business of Concrete Partners
Holding, LLC (doing business as Suncrete), prior to the consummation of the Business Combination, which is the business of the Company
and its subsidiaries following the consummation of the Business Combination.
Forward-Looking Statements
Certain statements contained
in this Current Report on Form 8-K may constitute “forward-looking statements” within the meaning of the Private Securities
Litigation Reform Act of 1995, Section 27A of the Securities Act, and Rule 175 promulgated thereunder, and Section 21E of the Securities
Exchange Act of 1934 (the “Exchange Act”), as amended, and Rule 3b-6 promulgated thereunder, which statements involve inherent
risks and uncertainties.
Examples of forward-looking
statements include, but are not limited to, statements with respect to the expectations, hopes, beliefs, intentions, plans, prospects,
financial results or strategies regarding Suncrete, statements regarding the plans and use of proceeds, future financial condition of
the Company and performance and expected financial impacts of the Business Combination on the Company’s business, and the Company’s
expectations, intentions, strategies, assumptions or beliefs about future events, results of operations or performance that do not solely
relate to historical or current facts. These forward-looking statements generally are identified by the words “believe,” “project,”
“expect,” “anticipate,” “estimate,” “intend,” “strategy,” “future,”
“opportunity,” “potential,” “plan,” “may,” “should,” “will,” “would,”
“will be,” “will continue,” “will likely result,” and similar expressions. Forward-looking statements
are based on assumptions as of the time they are made and are subject to risks, uncertainties and other factors that are difficult to
predict with regard to timing, extent, likelihood and degree of occurrence, which could cause actual results to differ materially from
anticipated results expressed or implied by such forward-looking statements. Such risks, uncertainties and assumptions, include, but are
not limited to:
· the failure to realize the anticipated benefits of the Business Combination and any transactions contemplated thereby;
· the outcome of any potential legal proceedings that may be instituted against the Company, Suncrete, Haymaker or others following
announcement of the Business Combination;
· the failure of the Company to maintain the listing of its securities on Nasdaq;
· costs related to the Business Combination and as a result of the Company becoming a public company;
· changes in business, market, financial, political and regulatory conditions;
· the ability of the Company to grow and manage growth profitably;
· risks relating to the Company’s anticipated operations and business, including the success of any future acquisitions;
· the Company’s ability to retain its management and key employees;
· the risk that issuances of equity or debt securities, including issuances of equity securities in connection with the Company’s
acquisition strategy, may adversely affect the value of the Company’s common stock and dilute its stockholders;
· the risk that the Company experiences difficulties managing its growth and expanding operations following the consummation of the
Business Combination;
· challenges in implementing the business plan, due to lack of an operating history, operational challenges, significant competition
and regulation; and
· other risks and uncertainties described in this Current Report on Form 8-K, including those under the section entitled “Risk
Factors.”
In addition, there may be
events that the Company’s management is not able to predict accurately or over which the Company has no control.
Business
The business of the Company
is described in the Proxy Statement/Prospectus in the section titled “Information about Suncrete” on page 233, and
such information is incorporated herein by reference.
Risk Factors
The risks associated with
the Company are described in the Proxy Statement/Prospectus in the section titled “Risk Factors” beginning on page
50 of the Proxy Statement/Prospectus, which is incorporated herein by reference.
Financial Information
Information responsive to
Item 2 of Form 10 is set forth in the Management’s Discussion and Analysis of Financial Condition and Results of Operations of Suncrete,
which is attached hereto as Exhibit 99.3 and is incorporated herein by reference.
Quantitative and Qualitative Disclosures about Market Risk
The description of the Company’s
quantitative and qualitative disclosures about market risk is incorporated herein by reference to the Management’s Discussion and
Analysis of Financial Condition and Results of Operations of Suncrete attached hereto as Exhibit 99.3.
Properties
The description of the Company’s
properties is contained in the Proxy Statement/Prospectus in the section titled “Information about Suncrete – Properties,”
on page 243 of the Proxy Statement/Prospectus, which is incorporated herein by reference.
Security Ownership of Certain Beneficial Owners and Management
The following table sets forth
information regarding the beneficial ownership of shares of Company Common Stock, as of the Closing Date, following the consummation of
the Business Combination, by:
· each person known by the Company to be the beneficial owner of more than 5% of a class of voting securities
on the Closing Date;
· each of the Company’s officers and directors; and
· all executive officers and directors of the Company as a group.
Beneficial ownership is determined
according to the rules of the SEC, which generally provide that a person has beneficial ownership of a security if he, she or it possesses
sole or shared voting or investment power over that security, including options and warrants that are currently exercisable or exercisable
within sixty (60) days.
The beneficial ownership of
shares of the Company Common Stock immediately following completion of the Business Combination is based on the following: (i) an aggregate
of 46,879,768 shares of Company Class A Common Stock issued and outstanding immediately following the completion of the Business Combination,
(ii) 23,714,609 shares of Company Class B Common Stock issued and outstanding immediately following the completion of the Business Combination
and (iii) 398,800 Company Warrants of the Company, each whole warrant to become exercisable for one share of common stock.
Name of Beneficial Owners(1)
Shares of
Company Class A
Common Stock
Percentage of
Company Class A
Common Stock
Shares of
Company Class B
Common Stock
Percentage of
Company Class B
Common Stock
Combined
Voting Power(2)
Five Percent Holders of Company
FMR LLC(3)
6,162,009
13.1
%
-
-
2.2
%
Alyeska Master Fund, LP(4)
4,641,097
9.99
%
-
-
1.6
%
Haymaker Sponsor IV LLC(5)
3,639,267
7.7
%
-
-
1.3
%
Dothan Independent GP, LP(6)
398,800
*
5,300,000
22.3
%
18.8
%
Dothan Concrete Investors, LLC(7)
-
-
18,414,609
77.7
%
64.8
%
Eaglesnest Investments, LLC(8)
4,808,790
10.3
%
-
-
1.7
%
Directors and Executive Officers
Randall Edgar(9)
4,808,790
10.3
%
-
-
1.7
%
Ned N. Fleming, III(10)
398,800
*
23,714,609
100.0
%
83.5
%
Andrew R. Heyer(5)
3,639,267
7.8
%
-
-
1.3
%
William Holden(11)
225,605
*
-
-
*
Bretton Johnston
-
-
-
-
-
Mark R. Matteson(12)
-
-
18,414,609
77.7
%
64.8
%
David Rees-Jones
-
-
-
-
-
Tommy Wentroth(13)
449,261
1.0
%
-
-
*
Mark Jones(14)
898,521
1.9
%
-
-
*
All Company directors and executive officers as a group (9 persons)
9,521,723
20.3
%
23,714,609
100.0
%
87.0
%
*
Less than 1% of the outstanding shares.
(1) Unless otherwise noted, the business address
of each of the following entities or individuals is 817 E. 4th Street, Tulsa, Oklahoma 74120.
(2) Represents the voting power with respect to
all shares of Company Class A Common Stock and Company Class B Common Stock outstanding, voting as a single class. Shares of Company Class
A Common Stock are entitled to one vote per share, and shares of Company Class B Common Stock are entitled to 10 votes per share.
(3) These funds and accounts are managed by direct
or indirect subsidiaries of FMR LLC. Abigail P. Johnson is a Director, the Chairman and the Chief Executive Officer of FMR LLC. Members
of the Johnson family, including Abigail P. Johnson, are the predominant owners, directly or through trusts, of Series B voting common
shares of FMR LLC, representing 49% of the voting power of FMR LLC. The Johnson family group and all other Series B shareholders have
entered into a shareholders’ voting agreement under which all Series B voting common shares will be voted in accordance with the
majority vote of Series B voting common shares. Accordingly, through their ownership of voting common shares and the execution of the
shareholders’ voting agreement, members of the Johnson family may be deemed, under the Investment Company Act of 1940, to form a
controlling group with respect to FMR LLC. The address of these funds and accounts is 245 Summer Street, Boston, MA 02210.
(4) Consists of (i) 4,141,573 shares of Company
Class A Common Stock and (ii) Pre-Funded Warrants exercisable for up to 2,525,094 shares of Common Stock, subject to a 9.99% beneficial
ownership limitation provision. Alyeska Investment Group, L.P., the investment manager of Alyeska Master Fund, L.P. (“Alyeska”),
has voting and investment control of the shares held by Alyeska. Anand Parekh is the Chief Executive Officer of Alyeska Investment Group,
L.P., and may be deemed to be the beneficial owner of such shares. Mr. Parekh, however, disclaims any beneficial ownership of the shares
held by Alyeska. The registered address of Alyeska Master Fund, L.P. is at c/o Maples Corporate Services Limited, P.O. Box 309, Ugland
House, South Church Street George Town, Grand Cayman, KY1-1104, Cayman Islands. Alyeska Investment Group, L.P. is located at 77 W. Wacker,
Suite 700, Chicago IL 60601.
(5) Consists of (i) 75,000 private placement warrants
and (ii) 3,564,267 shares of Company Class A Common Stock held by Haymaker. Steven J. Heyer and Andrew R. Heyer are managing members of
the Sponsor and have voting and investment discretion with respect to the securities held of record by the Sponsor and may be deemed to
have shared beneficial ownership of the securities held directly by the Sponsor. Each such person disclaims any beneficial ownership of
the reported shares other than to the extent of any pecuniary interest they may have therein, directly or indirectly. The principal business
address of Sponsor is 501 Madison Avenue, Floor 5, New York, NY 10022.
(6) Consists of shares of Company Class A Common
Stock issuable upon the exercise of 398,800 Company Warrants and 5,300,000 shares of Company Class B Common Stock. Dothan Sponsor, LLC
(“Dothan Sponsor”) is the general partner of Dothan Independent. Ned N. Fleming, III, the Company’s Executive Chairman,
is the sole manager of Dothan Sponsor. Each of Dothan Sponsor and Mr. Fleming may be deemed to beneficially own securities of Company
held by Dothan Independent. Each such person and entity disclaims beneficial ownership of such securities except to the extent of his
or its pecuniary interest therein. The address for Mr. Fleming, Dothan Sponsor and Dothan Independent is c/o SunTx Capital Management
Corp., 5420 LBJ Freeway, Suite 950, Dallas, Texas 75240.
(7) Dothan Concrete Manager, LLC (“Dothan
Concrete Manager”) is the managing member of Dothan Concrete Investors, LLC (“Dothan Concrete Investors”). The manager
of Dothan Concrete Manager is SunTx Capital Management Corp. (“SunTx Capital Management”). Ned N. Fleming, III, the Company’s
Executive Chairman, is the sole shareholder and director of SunTx Capital Management. Mark R. Matteson, a director of the Company, is
an executive officer of SunTx Capital Management. Each of Dothan Concrete Manager, SunTx Capital Management, Mr. Fleming and Mr. Matteson
may be deemed to beneficially own securities of the Company held by Dothan Concrete Investors. Each such entity and person disclaims beneficial
ownership of such securities except to the extent of its or his pecuniary interest therein. The address of each of Messrs. Fleming and
Matteson, SunTx Capital Management and Dothan Concrete Manager is c/o SunTx Capital Management Corp., 5420 LBJ Freeway, Suite 950, Dallas,
Texas 75240.
(8) Eaglesnest Investments, LLC (“Eaglesnest”)
is controlled by Randall Edgar, the Chief Executive Officer and a director of Company. Mr. Edgar may be deemed to beneficially own securities
of Company held by Eaglesnest. Mr. Edgar disclaims beneficial ownership of such securities except to the extent of his pecuniary interest
therein. The address for Eaglesnest is 405 N Main St. 6E, Tulsa, OK 74103.
(9) Includes shares of Company Class A Common
Stock held by Eaglesnest. See footnote 8 above.
(10) Includes (i) shares of Company Class B Common
Stock held by Dothan Independent and Dothan Concrete Investors and (ii) shares of Company Class A Common Stock issuable upon the exercise
of 398,800 Company Warrants held by Dothan Independent. See footnotes 4 and 5 above.
(11) Consists of 225,606 shares of restricted
Company Class A Common Stock.
(12) Includes shares of Company Class B Common
Stock held by Dothan Concrete Investors. See footnote 7 above.
(13) Consists of 451,211 shares of restricted
Company Class A Common Stock, one-third of such vest on each of December 9, 2027, 2028 and 2029, respectively, subject to continued service
with the Company.
(14) Consists of 898,521 shares of restricted
Company Class A Common Stock one-third of such vest on each of December 9, 2027, 2028 and 2029, respectively, subject to continued service
with the Company.
Directors and Executive Officers
The Company’s directors
and executive officers after the Closing are described in the Proxy Statement/Prospectus in the section titled “Management Following
the Business Combination” on page 266 of the Proxy Statement/Prospectus, which is incorporated herein by reference.
Director and Executive Compensation
Information regarding the
compensation of the named executive officers of the Company before the Business Combination is set forth in the Proxy Statement/Prospectus
in the section titled “Executive Compensation – Suncrete” beginning on page 263 of the Proxy Statement/Prospectus,
which is incorporated herein by reference. Information regarding the compensation of the Company’s board of directors (the “Board”)
before the Business Combination is set forth in the Proxy Statement/Prospectus in the section titled “Executive Compensation — Non-Employee
Director Compensation Program,” beginning on page 264 of the Proxy Statement/Prospectus, which is incorporated herein by reference.
At the Shareholder Meeting
held on April 2, 2026, Haymaker’s shareholders approved the Suncrete, Inc. 2026 Omnibus Incentive Plan (the “2026 Plan”)
and the Suncrete, Inc. Employee Stock Purchase Plan (the “ESPP”), which were previously adopted by the Board. A description
of the material terms of the 2026 Plan is set forth in the section of the Proxy Statement/Prospectus titled “Shareholder Proposal
No. 6 – The 2026 Plan Proposal” beginning on page 192 of the Proxy Statement/Prospectus, which is incorporated herein
by reference, and a description of the material terms of the ESPP is set forth in the section of the Proxy Statement/Prospectus titled
“Shareholder Proposal No. 7 – The ESPP Proposal” beginning on page 201 of the Proxy Statement/Prospectus, which
is incorporated herein by reference
The foregoing description
of the 2026 Plan and the ESPP does not purport to be complete and is qualified in its entirety by reference to the complete text of the
2026 Plan and the ESPP, copies of which are attached as Exhibits 10.9 and 10.10, respectively, to this Current Report on Form 8-K and are
incorporated herein by reference.
The information set forth
in this Current Report on Form 8-K under Item 5.02 is incorporated in this Item 2.01 by reference.
Certain Relationships and Related Transactions, and Director
Independence
Certain relationships and
related person transactions of Haymaker and Suncrete are described in the Proxy Statement/Prospectus in the section titled “Certain
Relationships and Related Person Transactions,” beginning on page 296 of the Proxy Statement/Prospectus, which is incorporated
herein by reference.
Reference is made to the disclosure
regarding director independence in the section of the Proxy Statement/Prospectus titled “Management Following the Business Combination
– Director Independence; Controlled Company Exemption,” beginning on page 269 of the Proxy Statement/Prospectus, which
is incorporated herein by reference.
The information set forth
under “Item 1.01 Entry into a Material Definitive Agreement – Amended and Restated Registration Rights Agreement,”
“Item 1.01 Entry into a Material Definitive Agreement – Company Registration Rights Agreement,” and “Item
5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of
Certain Officers – Suncrete, Inc. 2026 Omnibus Incentive Plan” of this Current Report on Form 8-K is incorporated into
this Item 2.01 by reference.
The Board has adopted
a written policy for the review, approval and ratification of transactions with related parties. The policy covers transactions between
the Company and any of our executive officers and directors or their respective affiliates, director nominees, 5% or greater security
holders or family members of any of the foregoing.
A related party transaction
is a transaction, arrangement or relationship, or any series of similar transactions, arrangements or relationships in which the Company
was or is to be a participant in which the amount involves exceeds $120,000 in the aggregate in any fiscal year, and in which a related
party had or will have a direct or indirect material interest.
Under the policy, the audit
committee of the Board reviews transactions covered by this policy to determine, among other things:
· whether the terms of the transaction are fair to the Company, have resulted from arm’s length negotiations
and are on terms at least as favorable as would apply if the transaction did not involve a related party;
· whether there are demonstrable business reasons for the Company to enter into the transaction;
· whether the transaction is material to the Company;
· the role the related party played in arranging the transaction;
· whether the transaction could impair the independence of a director; and
· the interests of all related parties in the transaction.
A related party transaction
will only be approved or ratified by the audit committee if the audit committee determines that the transaction is beneficial to the Company
and the terms of the transaction are fair to the Company. In addition, under the Company’s Code of Business Conduct and Ethics,
directors and executive officers have an affirmative responsibility to seek determinations and prior authorizations or approvals of potential
conflicts of interest exclusively from the Board.
Legal Proceedings
Reference is made to the disclosure
regarding legal proceedings in the sections of the Proxy Statement/Prospectus titled “Information About Suncrete – Legal
Proceedings” on page 244, which is incorporated herein by reference.
Market Price of and Dividends on the Registrant’s Common
Equity and Related Shareholder Matters
Following the Closing of the
Business Combination, the Company Class A Common Stock began trading on The Nasdaq Global Market under the symbol “RMIX” on
April 9, 2026. The Company has not paid any cash dividends on the Company Common Stock to date.
The Board, in its sole discretion,
will make any determination from time to time with respect to the use of any excess cash accumulated, which may include, among other uses,
the payment of dividends on the Company Common Stock. It is not contemplated that the Company will pay cash dividends for the foreseeable
future.
Recent Sales of Unregistered Securities
The information set forth
in Item 3.02 of this Current Report on Form 8-K is incorporated herein by reference.
Description of Registrant’s Securities to be Registered
The description of the Company’s
securities is contained in the Proxy Statement/Prospectus in the section titled “Description of New Suncrete Securities,”
beginning on page 288 of the Proxy Statement/Prospectus, which is incorporated herein by reference.
Indemnification of Directors and Officers
The description of the indemnification
arrangements with the Company’s directors and officers is contained in Item 1.01 of this Current Report on Form 8-K, which is incorporated
herein by reference.
Financial Statements and Supplementary Data
Reference is made to the disclosure
set forth under Item 9.01 of this Current Report on Form 8-K concerning the Company’s financial statements and supplementary information.
Changes in and Disagreements with Accountants
on Accounting and Financial Disclosure
The information set forth
in Item 4.01 of this Current Report on Form 8-K is incorporated herein by reference.
Financial Statements and Exhibits
Reference is made to the disclosure
set forth under Item 9.01 of this Current Report on Form 8-K concerning the financial information of the Company.
Item 3.02. Unregistered Sales of Equity Securities.
The information set forth above in “Introductory
Note” above regarding the PIPE Subscription Agreements and the Exchange Agreement is incorporated herein by reference.
In connection with the Business
Combination, Haymaker and the Company previously entered into subscription agreements (the “Original Subscription Agreements”)
with certain PIPE Investors for an aggregate commitment amount of approximately $105.5 million in shares of Company Class A Common Stock
and, in certain circumstances, Pre-Funded Warrants to purchase Company Class A Common Stock (the “PIPE Investment”). On March
27, 2026, Haymaker and the Company entered into a subscription agreement (the “New Subscription Agreement,” collectively with
the Original Subscription Agreements, the “PIPE Subscription Agreements”) with an additional PIPE Investor for a commitment
amount of $61.6 million, bringing the aggregate total subscription amount of the PIPE Investment to $167.1 million. Haymaker and the Company
also agreed to afford the existing PIPE Investors the benefit of the additional rights set forth in the New Subscription Agreement.
Immediately prior to the Acquisition
Merger Effective Time, the Company issued and sold to certain of the PIPE Investors in a private placement an aggregate of 11,216,667
shares of Company Class A Common Stock and 2,525,094 Pre-Funded Warrants. At the Acquisition Merger Effective Time, the Company issued
and sold to certain of the PIPE Investors in a private placement an aggregate of 6,162,009 shares of Company Class A Common Stock.
The foregoing descriptions
of the Original Subscription Agreements and the New Subscription Agreement do not purport to be complete and are qualified in their entirety
by reference to the full text of the forms thereof, which are attached hereto as Exhibits 10.5 and 10.6, respectively, and are incorporated
herein by reference.
Further, as previously disclosed,
the Company previously entered into the Exchange Agreement with holders of Senior Preferred Units, pursuant to which the Company would
issue an aggregate of 26,000 shares of Series A Preferred Stock to such Senior Preferred Unit holders in exchange for their Senior Preferred
Units. On April 8, 2026, the Exchange occurred immediately prior to the closing of the Acquisition Merger, and the Company issued 26,000
shares of Series A Preferred Stock to the Senior Preferred Unit holders, following the acceptance by the Secretary of State of the State
of Delaware of the Certificate of Designation.
The foregoing description
of the Exchange Agreement and the Certificate of Designation do not purport to be complete and are qualified in their entirety by reference
to the full text of the Exchange Agreement and the Certificate of Designation, which are attached hereto as Exhibits 10.7 and 3.3, respectively,
and are incorporated herein by reference.
The Series A Preferred Stock,
the shares of Company Class A Common Stock issuable upon conversion of the Series A Preferred Stock and the securities issued or issuable
in connection with the PIPE Investment were not or will not be registered under the Securities Act, in reliance on the exemption from
registration provided by Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder.
Item 3.03. Material Modification to Rights of Security Holders.
At the Shareholder Meeting,
Haymaker’s shareholders approved an Amended and Restated Certificate of Incorporation of the Company (the “Certificate of
Incorporation”) to replace the Company’s current certificate of formation following the Business Combination. The Certificate
of Incorporation, among other things, increased the total number of authorized shares of the Company’s capital stock to 510,000,000
shares, divided into three classes consisting of (a) 400,000,000 shares of Company Class A Common Stock, (b) 100,000,000 shares of Company
Class B Common Stock, and (c) 10,000,000 shares of preferred stock, par value $0.0001 per share (“Preferred Stock”). Subject
to the rights of any Preferred Stock, directors on the Board may only be removed for cause by the affirmative vote of the holders of at
least a majority of the voting power of then-outstanding shares of Company Common Stock entitled to vote in the election of directors;
provided, however, that once no shares of Company Class B Common Stock remain outstanding, any such director or all such directors may
be removed only for cause and only by the affirmative vote of the holders of at least 66-2∕3% in voting power of all the then-outstanding
shares of stock of the Company entitled to vote thereon, voting together as a single class. The terms of the Certificate of Incorporation
are described in greater detail in the Proxy Statement/Prospectus in the sections titled “Shareholder Proposal No. 3 –
The Organizational Documents Proposal” and “Shareholder Proposal No. 4 – The Advisory Organizational Documents
Proposal” beginning on page 176 and page 178, respectively, of the Proxy Statement/Prospectus and are incorporated herein by
reference. The Certificate of Incorporation became effective upon filing with the Secretary of State of the State of Delaware on the Closing
Date.
On the Closing Date, the Board
approved and adopted the Amended and Restated By-Laws of the Company (the “Bylaws”), effective as of the Closing.
Immediately prior to the Acquisition
Merger Effective Time, the Company filed with the Secretary of State of the State of Delaware of the Certificate of Designation. The voting
powers, designations, preferences, limitations, restrictions and relative rights of the Series A Preferred Stock are set forth in the
Certificate of Designation. The terms of the Certificate of Designation are described in greater detail in that certain Supplement to
the Proxy Statement/Prospectus, filed with the SEC on March 27, 2026, which is incorporated herein by reference.
Copies of the Certificate
of Incorporation, the Bylaws and the Series A Certificate of Designation are attached hereto as Exhibit 3.1, Exhibit 3.2 and Exhibit 3.3,
respectively, and are incorporated herein by reference.
Item 4.01 Changes in Registrant’s Certifying
Accountant.
On April 8, 2026, the audit
committee of the Board approved the engagement of Grant Thornton LLP (“Grant Thornton”) as the independent registered public
accounting firm to audit the Company’s consolidated financial statements for the year ending December 31, 2026, subject to the completion
of Grant Thornton’s standard client acceptance procedures, Grant Thornton’s appointment will be effective upon the filing
of the Company’s quarterly report on Form 10-Q for the three months ended March 31, 2026. Grant Thornton served as the independent
registered public accounting firm of Suncrete prior to the Business Combination. Accordingly, WithumSmith+Brown, PC (“Withum”),
the Company’s independent registered public accounting firm prior to the Business Combination, was informed on April 8, 2026 that
it would not be retained to serve as the Company’s independent registered public accounting firm upon the filing of the Company’s
quarterly report on Form 10-Q for the three months ended March 30, 2026. The termination of the engagement of Withum was approved by the
audit committee.
The report of Withum on the
Company’s consolidated financial statements as of and for the year ended December 31, 2025, did not contain an adverse opinion or
a disclaimer of opinion, nor was it qualified or modified as to uncertainty, audit scope or accounting principles, except that such report
contained a paragraph which noted that there was substantial doubt as to the Company’s ability to continue as a going concern because
of the Company’s liquidity condition and subsequent dissolution.
During the period from September
30, 2025 (inception) to December 31, 2025, and the subsequent interim period through April 8, 2026, there were no: (i) disagreements (as
defined in Item 304(a)(1)(iv) of Regulation S-K and the related instructions) with Withum on any matter of accounting principles or practices,
financial statement disclosure, or auditing scope or procedures, which disagreements, if not resolved to the satisfaction of Withum would
have caused Withum to make reference thereto in its reports on the consolidated financial statements for such years, or (ii) reportable
events (as described in Item 304 (a)(1)(v) of Regulation S-K).
During the period from September
30, 2025 (inception) to December 31, 2025, and the subsequent interim period through April 8, 2026, neither the Company nor anyone on
the Company’s behalf consulted with Grant Thornton regarding (i) the application of accounting principles to a specified transaction,
either completed or proposed, or the type of audit opinion that might be rendered on the financial statements of the Company, and no written
report or oral advice was provided to the Company by Grant Thornton that Grant Thornton concluded was an important factor considered by
the Company in reaching a decision as to the accounting, auditing or financial reporting issue; or (ii) any matter that was either the
subject of a disagreement, as that term is defined in Item 304(a)(1)(iv) of Regulation S- K, or a reportable event, as that term is defined
in Item 304(a)(1)(v) of Regulation S-K of the Exchange Act.
The Company provided Withum
with a copy of the foregoing disclosures prior to the filing of this Report and requested that Withum furnish the Company with a letter
addressed to the SEC stating whether it agrees with the statements made by the Company set forth above. A copy of Withum’s letter,
dated April 14, 2026, is attached as Exhibit 16.1 to this Report.
Item 5.01. Changes in Control of Registrant.
Reference is made to the disclosure
in the Proxy Statement/Prospectus in the section titled “Shareholder Proposal No. 1 – The Business Combination Proposals,”
on page 171 which is incorporated herein by reference. Further reference is made to the information contained in Item 2.01 of this Current
Report on Form 8-K, which is incorporated herein by reference.
Item 5.02. Departure of Directors or Certain
Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Directors and Executive Officers
The information set forth
above in the sections titled “Management Following the Business Combination,” “Executive Compensation – Suncrete,”
“Certain Relationships and Related Person Transactions” and “Indemnification of Directors and Officers”
under Item 2.01 of this Current Report on Form 8-K is incorporated into this Item 5.02 by reference.
On April 8, 2026, the Board
appointed Mr. Mark Jones as the Chief Operating Officer of the Company, effective April 8, 2026.
Mr. Jones, age 56, has served
in senior leadership roles at Suncrete since its original founding as Eagle Redi-Mix Concrete in 2008, including Vice President, Executive
Vice President, and President. Mr. Jones has more than 35 years of experience in the construction materials industry, with a background
spanning geotechnical engineering, concrete production, operations management, and executive leadership. Prior to joining Eagle Redi-Mix
Concrete, he served in multiple operational and management roles at Mid-Continent Concrete Company for ten years. At Mid-Continent, Jones’
roles included Quality Control Manager, Operations and Production Manager, General Manager of Material Logistics, and ultimately Vice
President of Mid-Continent Concrete, a role he continued for Mexican cement producer Grupo Cementos de Chihuahua following their acquisition
of Mid-Contient.
There are no arrangements
or understandings between Mr. Jones and any other persons pursuant to which he was selected to serve as the Company’s Chief Operating
Officer. There is no family relationship between Mr. Jones and any director or executive officer of the Company. There are no transactions
between Mr. Jones and the Company that would be required to be reported under Item 404(a) of Regulation S-K of the Exchange Act.
Suncrete, Inc. 2026 Omnibus Incentive Plan
At the Shareholder Meeting
held on April 2, 2026, Haymaker’s shareholders approved the 2026 Plan, which was previously adopted by the Board. A description
of the material terms of the 2026 Plan is set forth in the section of the Proxy Statement/Prospectus titled “Shareholder Proposal
No. 6 – The 2026 Plan Proposal” beginning on page 192 of the Proxy Statement/Prospectus, which is incorporated herein
by reference. That summary and the foregoing description are qualified in their entirety by reference to the complete text of the 2026
Plan, a copy of which is attached as Exhibit 10.9 to this Current Report on Form 8-K and incorporated herein by reference.
Suncrete, Inc. Employee Stock Purchase Plan
At the Shareholder Meeting
held on April 2, 2026, Haymaker’s shareholders approved the ESPP, which was previously adopted by the Board. The ESPP became effective
immediately upon the Closing of the Business Combination. A description of the material terms of the ESPP is set forth in the section
of the Proxy Statement/Prospectus titled “Shareholder Proposal No. 7 – The ESPP Proposal” beginning on page 201
of the Proxy Statement/Prospectus, which is incorporated herein by reference. That summary and the foregoing description are qualified
in their entirety by reference to the complete text of the ESPP, a copy of which is attached as Exhibit 10.10 to this Current Report on
Form 8-K and incorporated herein by reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change
in Fiscal Year.
The information set forth
in Item 3.03 of this Current Report on Form 8-K is incorporated by reference into this Item 5.03.
Item 5.05. Amendment to the Registrant’s Code of Ethics, or
Waiver of a Provision of the Code of Ethics.
On the Closing Date, the Board
adopted a Code of Business Conduct and Ethics (the “Code”) applicable to the Company’s employees, officers and directors.
The Company intends to post any legally required disclosures regarding amendments to or any waivers from a provision of the Code on our
website. A copy of the Code can be found on the Company’s Investor Relations website at suncrete.com/investors. The information
contained on the Company’s website shall not be deemed incorporated by reference in any filing under the Securities Act or the Exchange
Act.
The foregoing description
of the Code does not purport to be complete and is qualified in its entirety by reference to the full text of the Code, which is included
as Exhibit 14.1 to this Current Report on Form 8-K and incorporated herein by reference.
Item 5.06. Change in Shell Company Status.
As a result of the Business
Combination, the Company ceased to be a shell company. Reference is made to the disclosure in the Proxy Statement/Prospectus in the section
titled “Shareholder Proposal No. 1 – The Business Combination Proposals” beginning on page 171 of the Proxy Statement/Prospectus,
and such disclosure is incorporated herein by reference. The information contained in Item 2.01 of this Current Report on Form 8-K is
incorporated by reference into this Item 5.06.
Item 9.01. Financial Statements and Exhibits.
(a) Financial Statements of Businesses or Funds Acquired.
The consolidated financial
statements of the Company as of December 31, 2025 and for the period from September 30, 2025 (inception) to December 31, 2025, and the
related notes thereto are attached as Exhibit 99.1 hereto and are incorporated herein by reference.
The financial statements of
Concrete Partners Holdings, LLC as of December 31, 2025 and 2024 and for the three year period ended December 31, 2025, and the related
notes thereto are attached as Exhibit 99.2 hereto and are incorporated herein by reference. Also included as Exhibit 99.3 and incorporated
herein by reference is Management’s Discussion and Analysis of Financial Condition and Results of Operations of Concrete Partners
Holdings, LLC for the twelve months ended December 31, 2025.
The consolidated financial
statements of Haymaker Acquisition Corp. 4 as of December 31, 2025 and 2024 and for the two year period ended December 31, 2025, and the
related notes thereto and Management’s Discussion and Analysis of Financial Condition and Results of Operations of Haymaker Acquisition
Corp. 4. for the twelve months ended December 31, 2025 are incorporated herein by reference to Haymaker’s Annual Report on Form 10-K for the fiscal year ended December 31, 2025, filed by Haymaker with the SEC on March 30, 2026.
The consolidated
financial statements of SRM, Inc. dba Schwarz Ready Mix as of October 17, 2025 and for the period from January 1, 2025 to October
17, 2025, and the related notes thereto are attached as Exhibit 99.5 hereto and are incorporated herein by
reference.
(b) Pro Forma Financial Information.
The unaudited pro forma condensed
combined financial information of Suncrete, Haymaker and the Company as of and for the year ended December 31, 2025 is filed as Exhibit
99.4 hereto and is incorporated herein by reference.
(d) Exhibits.
Exhibit
Number
Description of Exhibit
2.1†
Business Combination Agreement (Incorporated by reference to Exhibit 2.1 to Haymaker’s Current Report on Form 8-K/A, filed with the SEC on October 14, 2025).
2.2#
Equity and Asset Purchase and Contribution Agreement, dated October 17, 2025, by and among SRM, Inc., SRM Leasing, LLC, Schwarz Sand, LLC, certain equity holders of SRM, Inc., SRM Leasing, LLC, Schwarz Sand, LLC, certain other transaction beneficiaries and SRM, Inc., in its capacity as a representative of the selling parties (Incorporated by reference to Exhibit 2.2 to the Company’s Amendment No. 2 to the Form S-4, filed with the SEC on February 4, 2026).
2.3*
First Amendment to Equity Asset Purchase and Contribution Agreement, dated March 27, 2026, by and between Eagle Redi-Mix Concrete, LLC and SRM, Inc. DBA Schwarz Ready Mix, in its capacity as representative of the selling parties.
3.1*
Amended and Restated Certificate of Incorporation of Suncrete, Inc.
3.2*
Amended and Restated By-Laws of Suncrete, Inc.
3.3*
Certificate of Designation for the Series A Convertible Perpetual Preferred Stock.
4.1
Warrant Agreement, dated July 25, 2023, by and between Haymaker and Continental Stock Transfer & Trust Company, as Warrant Agent (Incorporated by reference to Exhibit 4.1 to Haymaker’s Current Report on Form 8-K, filed with the SEC on July 31, 2023).
4.2*
Amendment No. 1 to Warrant Agreement, dated April 8, 2026, by and between Haymaker and Continental Stock Transfer & Trust Company.
4.3
Specimen Warrant Certificate (Incorporated by reference to Exhibit 4.3 to Haymaker’s Registration Statement on Form S-1/A (File No. 333-273117), filed with the SEC on July 17, 2023).
10.1*
Amended and Restated Registration Rights Agreement, dated April 8, 2026, by and among the Company and Sponsor.
10.2*
Registration Rights Agreement, dated April 8, 2026, by and among the Company, Dothan Concrete, Dothan Independent and Eaglesnest Investments, LLC.
10.3
Sponsor Support Agreement, dated October 9, 2025, by and among Haymaker, the Company, Suncrete and the other parties signatory thereto (Incorporated by reference to Exhibit 10.2 to Haymaker’s Current Report on Form 8-K, filed with the SEC on October 10, 2025 (as amended on October 14, 2025)).
10.4
Form Company Support Agreement (Incorporated by reference to Exhibit 10.1 to the Haymaker’s Current Report on Form 8-K, filed with the SEC on October 10, 2025 (as amended on October 14, 2025)).
10.5
Form of Subscription Agreement (Incorporated by reference to Exhibit 10.3 to the Haymaker’s Current Report on Form 8-K, filed with the SEC on October 10, 2025 (as amended on October 14, 2025)).
10.6
Form of Subscription Agreement (Incorporated by reference to Exhibit 99.3 to the Company’s Current Report on Form 8-K, filed with the SEC on April 2, 2026).
10.7*#
Securities Exchange Agreement, dated March 26, 2026, by and between the Company, Suncrete and the holders signatory thereto.
10.8
Forward Purchase Agreement, dated April 6, 2026, by and between the Company, Haymaker and Harraden Circle Investors, LP, Harraden Circle Special Opportunities, LP, Harraden Circle Strategic Investments, LP, Harraden Circle Concentrated, LP (Incorporated by reference to Exhibit 10.1 to Haymaker’s Current Report on Form 8-K, filed with the SEC on April 7, 2026).
10.9*+
Suncrete, Inc. 2026 Omnibus Incentive Plan.
10.10*+
Suncrete, Inc. Employee Stock Purchase Plan.
10.11*+
Form of Restricted Stock Award Agreement.
10.12*+
Form of Restricted Stock Unit Agreement.
10.13*+#
Form of Performance Stock Unit Award Agreement (Officers).
10.14*+
Form Restricted Stock Award Agreement (Outside Incentive Plan).
10.15*+
Form Restricted Stock Award Agreement (Heyer).
10.16
Form of Indemnification Agreement (Incorporated by reference to Exhibit 10.11 to the Company’s Amendment No. 2 to the Form S-4, filed with the SEC on February 4, 2026).
10.17#
Credit Agreement, dated July 29, 2024, by and among Concrete Partners, LLC, Concrete Partners Holding, LLC, Eagle Concrete Holdings, LLC, Eagle Redi-Mix Concrete, LLC, RAM Transportation, LLC and Bank of America, N.A., as administrative agent, swingline lender and L/C issuer (Incorporated by reference to Exhibit 10.14 to the Company’s Amendment No. 2 to the Form S-4, filed with the SEC on February 4, 2026).
10.18#
First Amendment and Increase to Credit Agreement, dated October 17, 2025, by and among Concrete Partners, LLC, Concrete Partners Holding, LLC, Eagle Concrete Holdings, LLC, Eagle Redi-Mix Concrete, LLC, RAM Transportation, LLC, Schwarz Sand, LLC and Bank of America, N.A., as administrative agent, swingline lender and L/C issuer (Incorporated by reference to Exhibit 10.15 to the Company’s Amendment No. 2 to the Form S-4, filed with the SEC on February 4, 2026).
10.19*#
Consent and Second Amendment to the Credit Agreement and First Amendment to the Security and Pledge Agreement, dated March 25, 2026, by and among Concrete Partners, LLC, Concrete Partners Holding, LLC, Eagle Concrete Holdings, LLC, Eagle Redi-Mix Concrete, LLC, RAM Transportation, LLC, Schwarz Sand, LLC and Bank of America, N.A., as administrative agent, swingline lender and L/C issuer.
10.20*#
Limited Consent and Third Amendment to Credit Agreement, dated April 7, 2026, by and among Concrete Partners, LLC, Concrete Partners Holding, LLC, Eagle Concrete Holdings, LLC, Eagle Redi-Mix Concrete, LLC, RAM Transportation, LLC, Schwarz Sand, LLC, the Company, Haymaker and Bank of America, N.A., as administrative agent, swingline lender and L/C issuer.
10.21
Management and Consulting Agreement, dated as of July 29, 2024, by and between Concrete Investments Management, LLC and Suncrete (Incorporated by reference to Exhibit 10.12 to the Company’s Amendment No. 2 to the Form S-4, filed with the SEC on February 4, 2026).
10.22*
Amendment No. 1 to Management and Consulting Agreement, by and among the Company, Suncrete and Dothan Concrete Investments Management, LLC.
14.1*
Suncrete, Inc. Code of Business Conduct and Ethics.
16.1*
Letter from WithumSmith+Brown, PC to the Securities and Exchange Commission, dated April 14, 2026.
21.1*
List of Subsidiaries.
99.1*
Condensed financial statements of Suncrete, Inc. and its subsidiaries for the year ended December 31, 2025, and the noted related thereto.
99.2*
Financial statements of Concrete Partners Holding, LLC for the year ended December 31, 2025, and the notes related thereto.
99.3*
Management’s Discussion and Analysis of Financial Condition and Results of Operations for Concrete Partners Holding, LLC for the twelve months ended December 31, 2025 and 2024.
99.4*
Unaudited pro forma financial statements of Suncrete, Inc.
99.5*
Financial statements of SRM, Inc. dba Schwarz Ready Mix as of October
17, 2025 and for the period from January 1, 2025 to October 17, 2025, and the notes related thereto.
104
Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101).
*
Filed herewith
+
Indicates a management or compensatory plan.
†
Schedules and exhibits to this exhibit have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The registrant hereby agrees to furnish a copy of any omitted schedules to the SEC upon request.
#
Schedules and exhibits to this exhibit have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The registrants agree to furnish a copy of any omitted schedules to the SEC upon request. Certain confidential information has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K. Such excluded information is not material and is the type that the Company treats as private or confidential.
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
SUNCRETE, INC.
Date: April 14, 2026
By:
/s/ Randall Edgar
Name:
Randall Edgar
Title:
Chief Executive Officer
EX-2.3 — EXHIBIT 2.3
EX-2.3
Filename: tm2611641d1_ex2-3.htm · Sequence: 2
Exhibit 2.3
FIRST AMENDMENT TO
EQUITY AND ASSET PURCHASE AND CONTRIBUTION AGREEMENT
This First Amendment to Equity
and Asset Purchase and Contribution Agreement (this “Amendment”), dated as of March 27, 2026 (the “Amendment
Date”), is entered into by and between Eagle Redi-Mix Concrete, LLC, an Oklahoma limited liability company (“Purchaser”)
and SRM, Inc. DBA Schwarz Ready Mix, an Oklahoma corporation, in its capacity as representative of the Selling Parties (defined below)
(“Sellers Representative”). Each of Purchaser and Sellers Representative are sometimes referred to individually
herein as a “Party” and collectively as the “Parties.”
RECITALS:
A. The Parties, together with SRM, Inc. (“Schwarz Ready Mix”) and SRM Leasing,
LLC, an Oklahoma limited liability company (“SRM Leasing” together with Schwarz Ready Mix, each an “Asset
Seller” and, collectively, the “Asset Sellers”), Schwarz Sand, LLC, an Oklahoma limited liability
company (“Schwarz Sand”), each equity holder of the Asset Sellers (each an “Owner”
and, collectively, the “Owners”), each equity holder of Schwarz Sand (collectively, the “SS Sellers”,
together with the Asset Sellers, each a “Seller” and collectively, the “Sellers”),
Charles P. Schwarz, Philip J. Schwarz, Eugene J. Schwarz, Ronald E. Schwarz, George T. Schwarz, and Paul D. Schwarz (together, the “Transaction
Beneficiaries”, and together with the Sellers and the Owners, the “Selling Parties”) entered into
that certain Equity and Asset Purchase and Contribution Agreement, dated as of October 17, 2025 (the “Purchase Agreement”).
B. Pursuant to Section 11.3 of the Purchase Agreement, the Purchase Agreement may be amended, supplemented
or changed, only by written instrument making specific reference to the Purchase Agreement signed by Purchaser and Sellers Representative.
C. The Parties desire to amend the Purchase Agreement as set forth in this Amendment.
NOW, THEREFORE, in
consideration of the premises and the mutual agreements set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
1. Defined
Terms. Capitalized terms used but not otherwise defined herein shall have their respective meanings as set forth in that certain Equity
and Asset Purchase and Contribution Agreement, dated October 17, 2025, by and among Buyer, Selling Parties and the Sellers Representative
(the “Purchase Agreement”).
2. Amendments
to the Purchase Agreement. Effective as of the date of this Agreement:
(a) The
penultimate sentence of Section 3.3 of the of the Purchase Agreement is hereby amended and restated as follows:
“If for any reason any portion
of the Deferred Payment, as adjusted pursuant to this Agreement and that certain Project Thunder – Adjustment Statement Agreement
dated March 4, 2026 between Purchaser and Sellers Representative, is not made on or before June 30, 2026, the payment date for
such unpaid portion of the Deferred Payment shall automatically be extended to July 31, 2026, and if such payment is not made on
or prior to July 31, 2026, then such unpaid portion of the Deferred Payment shall, for the period beginning on June 30, 2026
and ending on the date such unpaid portion of the Deferred Payment is paid, accrue simple interest at the rate of twelve percent (12%)
per annum calculated on the basis of a 365 day year.”
(b) Section 3.8(a) of
the Purchase Agreement is hereby amended by replacing “on March 31, 2026” with “no later than June 30, 2026”.
3. References.
Each reference to “hereof,” “herein,” “hereunder,” “hereby” and “this Agreement”
set forth in the Purchase Agreement shall, from and after the date of this Amendment, refer to the Purchase Agreement, as amended by this
Amendment. Notwithstanding the foregoing, references to the date of the Purchase Agreement, as amended hereby, shall in all instances
continue to refer to October 17, 2025, and references to “the date hereof” and “the date of this Agreement”
shall continue to refer to October 17, 2025.
4. Continuing
Effectiveness. Except as expressly modified by this Amendment, the Purchase Agreement and Disclosure Schedules shall continue in full
force and effect.
5. Counterparts.
This Amendment may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Amendment and
all of which, when taken together, will be deemed to constitute one and the same agreement.
[Signature page follows.]
2
IN WITNESS WHEREOF,
the Parties have caused this Agreement to be duly executed as of the Amendment Date.
PURCHASER:
EAGLE
REDI-MIX CONCRETE, LLC
By:
/s/
Randall Edgar
Name:
Randall Edgar
Title:
Chief Executive Officer
SELLERS
REPRESENTATIVE:
SRM, INC.,
DBA SCHWARZ READY MIX
By:
/s/
Philip J. Schwarz
Name:
Philip J. Schwarz
Title:
President
Signature Page to
First Amendment to the Equity and
Asset Purchase and Contribution Agreement
EX-3.1 — EXHIBIT 3.1
EX-3.1
Filename: tm2611641d1_ex3-1.htm · Sequence: 3
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SUNCRETE, INC.
Suncrete, Inc., a corporation
organized and existing under the General Corporation Law of the State of Delaware (the “DGCL”), DOES HEREBY
CERTIFY AS FOLLOWS:
1. The name of the Corporation
is “Suncrete, Inc.”. The original Certificate of Incorporation of the Corporation was filed with the Secretary of State
of the State of Delaware on September 30, 2025.
2. The Amended and Restated
Certificate of Incorporation of the Corporation in the form attached hereto as Exhibit A (the “Restated Certificate”)
has been duly adopted in accordance with the provisions of Sections 228, 242 and 245 of the DGCL by the board of directors and stockholders
of the Corporation.
3. The Restated Certificate
restates, integrates and amends the provisions of the Certificate Of Incorporation of the Corporation as heretofore amended.
4. The Restated Certificate
so adopted reads in full as set forth in the form attached hereto as Exhibit A and is incorporated herein by this reference.
IN WITNESS WHEREOF, this
Amended and Restated Certificate of Incorporation has been executed by the undersigned duly authorized officer of the Corporation on this
8th day of April.
SUNCRETE, INC.
By:
/s/ Christopher Bradley
Name: Christopher Bradley
Title: Vice President
EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SUNCRETE, INC.
ARTICLE I
NAME
The name of the corporation
is Suncrete, Inc. (the “Corporation”).
ARTICLE II
PURPOSE
The purpose of the Corporation
is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware
(the “DGCL”).
ARTICLE III
REGISTERED AGENT
The street address of the
registered office of the Corporation in the State of Delaware is 108 Lakeland Ave., Dover, Delaware 19901, County of Kent, and the name
of the Corporation’s registered agent at such address is Capitol Services, Inc.
ARTICLE IV
CAPITALIZATION
Section 4.1 Authorized
Capital Stock.
The total number of shares
of capital stock that the Corporation is authorized to issue is 510,000,000 shares, divided into three classes consisting of (a) 400,000,000
shares of Class A common stock, par value $0.0001 per share (“Class A Common Stock”); (b) 100,000,000
shares of Class B common stock, par value $0.0001 per share (“Class B Common Stock” and, together
with Class A Common Stock, the “Common Stock”); and (c) 10,000,000 shares of preferred stock, par
value $0.0001 per share (“Preferred Stock”).
The number of authorized shares
of Preferred Stock or either class of Common Stock may be increased or decreased (but not below the number of shares thereof then-outstanding)
by the affirmative vote of the holders of a majority in voting power of the stock of the Corporation entitled to vote thereon irrespective
of the provisions of Section 242(b)(2) of the DGCL (or any successor provision thereto), and no vote of the holders of either
the Preferred Stock or either class of Common Stock voting separately as a class shall be required therefor, unless a vote of any such
holder is required pursuant to this Certificate (including any certificate of designation relating to any series of Preferred Stock).
Section 4.2 Common
Stock.
(a) Voting Rights.
1. Except as otherwise
provided in this Certificate or otherwise required by applicable law, the holders of shares of Class A Common Stock and Class B
Common Stock shall at all times vote together as one class on all matters (including the election of directors) submitted to a vote or
to be acted on by consent of the stockholders of the Corporation.
2. Each holder of
Class A Common Stock shall be entitled to one vote for each share of Class A Common Stock held as of the applicable record date
on any matter that is submitted to a vote or to be acted on by consent of the stockholders of the Corporation.
3. Except as otherwise
provided in this Certificate or otherwise required by applicable law, each holder of Class B Common Stock shall be entitled to ten
votes for each share of Class B Common Stock held as of the applicable date on any matter that is submitted to a vote or to be acted
on by consent of the stockholders of the Corporation.
(b) Dividends.
Subject to the preferences applicable to any series of Preferred Stock, if any, outstanding at any time, the holders of Class A Common
Stock and the holders of Class B Common Stock shall be entitled to share equally, on a per share basis, in such dividends and other
distributions of cash, property or shares of stock of the Corporation as may be declared by the board of directors of the Corporation
(the “Board”) from time to time with respect to the Common Stock out of assets or funds of the Corporation legally
available therefor; provided, however, that in the event that such dividend is paid in the form of shares of Common Stock or rights to
acquire Common Stock, the holders of Class A Common Stock shall receive Class A Common Stock or rights to acquire Class A
Common Stock, as the case may be, and the holders of Class B Common Stock shall receive Class B Common Stock or rights to acquire
Class B Common Stock, as the case may be. Notwithstanding the foregoing, the Board may pay or make a disparate dividend or distribution
per share of Class A Common Stock or Class B Common Stock (whether in the amount of such dividend or distribution payable per
share, the form in which such dividend or distribution is payable, the timing of the payment, or otherwise) if such disparate dividend
or distribution is approved in advance by the affirmative vote (or written consent) of the holders of a majority of the outstanding shares
of Class A Common Stock and Class B Common Stock, each voting separately as a class.
(c) Liquidation.
Subject to the preferences applicable to any series of Preferred Stock, if any, outstanding at any time, in the event of the voluntary
or involuntary liquidation, dissolution, distribution of assets or winding up of the Corporation, all assets of the Corporation of whatever
kind available for distribution to the holders of Common Stock shall be divided among and paid ratably to the holders of the Class A
Common Stock and the Class B Common Stock treated as a single class unless disparate or different treatment of the shares of each
such class with respect to distributions upon any such liquidation, dissolution, distribution of assets or winding up is approved in advance
by the affirmative vote (or written consent) of the holders of a majority of the outstanding shares of Class A Common Stock and Class B
Common Stock, each voting separately as a class.
(d) Subdivision or
Combination. If the Corporation in any manner subdivides or combines the outstanding shares of one class of Common Stock, the outstanding
shares of the other class of Common Stock will be subdivided or combined in the same manner; provided, however, that shares of one such
class of Common Stock may be subdivided or combined in a different or disproportionate manner if such subdivision or combination is approved
in advance by the affirmative vote (or written consent) of the holders of a majority of the outstanding shares of Class A Common
Stock and Class B Common Stock, each voting separately as a class.
(e) Equal Status.
Except as expressly provided in this Article IV, Class A Common Stock and Class B Common Stock shall have the same rights
and privileges and rank equally (including as to dividends and distributions, and upon any liquidation, dissolution, distribution of assets
or winding up of the Corporation), share ratably and be identical in all respects as to all matters.
(f) Conversion of
Class B Common Stock.
1. Voluntary
Conversion. Each share of Class B Common Stock shall be convertible into one fully paid and nonassessable share of Class A
Common Stock at the option of the holder thereof. Before any holder of Class B Common Stock shall be entitled voluntarily to convert
any shares of such Class B Common Stock, such holder shall surrender the certificate or certificates therefor (if any), duly endorsed,
at the principal corporate office of the Corporation or of any transfer agent for the Class B Common Stock, and shall give written
notice to the Corporation at its principal corporate office of the election to convert the same and shall state therein the name or names
(a) in which the certificate or certificates representing the shares of Class A Common Stock into which the shares of Class B
Common Stock are so converted are to be issued if such shares are certificated or (b) in which such shares are to be registered in
book entry if such shares are uncertificated. The Corporation shall, as soon as practicable thereafter, issue and deliver at such office
to such holder of Class B Common Stock, or to the nominee or nominees of such holder, a certificate or certificates representing
the number of shares of Class A Common Stock to which such holder shall be entitled as aforesaid (if such shares are certificated)
or, if such shares are uncertificated, register such shares in book-entry form. Such conversion shall be deemed to have been made immediately
prior to the close of business on the date of such surrender of the shares of Class B Common Stock to be converted following or contemporaneously
with the written notice of such holder’s election to convert, and the person or persons entitled to receive the shares of Class A
Common Stock issuable upon such conversion shall be treated for all purposes as the record holder or holders of such shares of Class A
Common Stock as of such date. Each share of Class B Common Stock that is converted pursuant to this Section 4.2(f)(1) shall
be retired by the Corporation and shall not be available for reissuance.
2. Automatic
Conversion. (a) Each share of Class B Common Stock shall automatically, without further action by the holder thereof, be
converted into one fully paid and nonassessable share of Class A Common Stock upon the occurrence of a Transfer (as defined below),
other than a Permitted Transfer (as defined below), of such share of Class B Common Stock, and (b) all shares of Class B
Common Stock shall automatically, without further action by any holder thereof, be converted into an identical number of shares of fully
paid and nonassessable Class A Common Stock upon the affirmative vote (or written consent) of the holders of a majority of the then-outstanding
shares Class B Common Stock, voting as a separate class (the occurrence of an event described in clause (a) or (b) of this
Section 4.2(f)(2), a “Conversion Event”). Each outstanding stock certificate that, immediately prior
to a Conversion Event, represented one or more shares of Class B Common Stock subject to such Conversion Event shall, upon such Conversion
Event, be deemed to represent an equal number of shares of Class A Common Stock, without the need for surrender or exchange thereof.
The Corporation, or any transfer agent of the Corporation, shall, upon the request of any holder whose shares of Class B Common Stock
have been converted into shares of Class A Common Stock as a result of a Conversion Event and upon surrender by such holder to the
Corporation of the outstanding certificate(s) formerly representing such holder’s shares of Class B Common Stock (if any),
issue and deliver to such holder certificate(s) representing the shares of Class A Common Stock into which such holder’s
shares of Class B Common Stock were converted as a result of such Conversion Event (if such shares are certificated) or, if such
shares are uncertificated, register such shares in book-entry form. Each share of Class B Common Stock that is converted pursuant
to this Section 4.2(f)(2) shall thereupon be retired by the Corporation and shall not be available for reissuance.
3. The Corporation
may, from time to time, establish such policies and procedures, not in violation of applicable law or the other provisions of this Certificate,
relating to the conversion of the Class B Common Stock into Class A Common Stock, as it may deem necessary or advisable in connection
therewith. If the Corporation has a reasonable basis to believe that a Transfer giving rise to a conversion of shares of Class B
Common Stock into Class A Common Stock has occurred but has not theretofore been reflected on the books of the Corporation, the Corporation
may request in writing that the holder of such shares furnish affidavits or other reasonable evidence to the Corporation as the Corporation
deems necessary to determine whether a conversion of shares of Class B Common Stock to Class A Common Stock has occurred and
if such holder does not, within thirty days after receipt of such written request, furnish reasonable evidence to the Corporation to enable
the Corporation to determine that no such conversion has occurred, any such shares of Class B Common Stock, to the extent not previously
converted, shall be automatically converted into shares of Class A Common Stock and the same shall thereupon be registered on the
books and records of the Corporation. In connection with any action of stockholders taken at a meeting or by written consent, the stock
ledger of the Corporation shall be presumptive evidence as to who are the stockholders entitled to vote in person or by proxy at any meeting
of stockholders or in connection with any such written consent and the class or classes or series of shares held by each such stockholder
and the number of shares of each class or classes or series held by such stockholder.
4. Reservation
of Stock. The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Class A
Common Stock, solely for the purpose of effecting the conversion of the shares of Class B Common Stock, such number of shares of
Class A Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of Class B
Common Stock into shares of Class A Common Stock.
5. Protective
Provisions. The Corporation shall not, whether by merger, consolidation, conversion or otherwise, amend, alter, repeal or waive this
Section 4.2 (or adopt any provision inconsistent therewith) or effect any reclassification of the shares of Class A Common
Stock or Class B Common Stock, unless such action is first approved by the affirmative vote (or written consent) of the holders of
a majority of the then-outstanding shares of Class B Common Stock, voting as a separate class, in addition to any other vote required
by applicable law, this Certificate or the Bylaws (as defined in Article V), and, to the fullest extent permitted by law, the holders
of Class A Common Stock shall have no right to vote thereon.
(g) Definitions.
For purposes of this Article IV:
1. “Affiliate”
shall mean, with respect to any Person, any Person directly or indirectly controlling, controlled by or under common control with such
Person, and shall include any principal, managing member, director, general partner, officer, employee or other representative of any
of the foregoing (other than the Corporation and any entity that is controlled by the Corporation).
2. “control”
(including the terms “controlled by” and “under common control with”), with respect to the relationship between
or among two or more Persons, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the
affairs or management of a Person, whether through the ownership of voting securities, by contract or otherwise.
3. “Family
Member” shall mean, with respect to any Class B Stockholder, (x) the spouse, and any parent, child, sibling, parent-in-law
or child-in-law of such stockholder, (y) any individual who shares a home (other than a domestic employee) with such stockholder
or (z) any lineal descendent (including by adoption) of any of the foregoing individuals.
4. “Permitted
Transfer” shall mean a Transfer by a holder of Class B Common Stock to any of the persons or entities listed below
(each, a “Permitted Transferee”) and from any such Permitted Transferee back to such holder of Class B
Common Stock and/or any other Permitted Transferee established by or for such holder of Class B Common Stock:
(A) a broker
or other nominee; provided that the transferor retains (1) Voting Control, (2) control over the disposition of such shares,
and (3) the economic consequences of ownership of such shares;
(B) by a holder
of Class B Common Stock who is a natural person to any of the following Permitted Transferees:
(1) a trust for
the benefit of such holder or other persons so long as the holder (either alone or with any Family Member of such holder) retains: (i) Voting
Control, (ii) control over the disposition of such shares, and (iii) such Transfer does not involve any payment of cash, securities,
property or other consideration (other than an interest in such trust) to the holder; provided that in the event such holder (either alone
or with any Family Member of such holder) no longer retains Voting Control and control over the disposition of the shares of Class B
Common Stock held by such trust, each share of Class B Common Stock then held by such trust shall automatically convert into one
(1) fully paid and nonassessable share of Class A Common Stock;
(2) a Family
Member; provided such Transfer does not involve any payment of cash, securities, property or other consideration to the holder;
(3) a trust under
the terms of which such holder has retained a “qualified interest” within the meaning of Section 2702(b)(1) of the
Internal Revenue Code of 1986, as amended (the “Internal Revenue Code”), and/or a reversionary interest so long
as the holder (either alone or with any Family Member of such holder) retains Voting Control and control over the disposition of the shares
of Class B Common Stock held by such trust; provided, however, that in the event the holder (either alone or with any Family Member
of such holder) no longer retains Voting Control and control over the disposition of the shares of Class B Common Stock held by such
trust, each share of Class B Common Stock then held by such trust shall automatically convert into one (1) fully paid and nonassessable
share of Class A Common Stock;
(4) an Individual
Retirement Account, as defined in Section 408(a) of the Internal Revenue Code, or a pension, profit sharing, stock bonus or
other type of plan or trust of which such holder is a participant or beneficiary and which satisfies the requirements for qualification
under Section 401 of the Internal Revenue Code; provided that in each case such holder (either alone or with any Family Member of
such holder) retains Voting Control and control over the disposition of the shares of Class B Common Stock held in such account,
plan or trust, and provided, further, that in the event the holder (either alone or with any Family Member of such holder) no longer retains
Voting Control and control over the disposition of the shares of Class B Common Stock held by such account, plan or trust, each share
of Class B Common Stock then held by such trust shall automatically convert into one (1) fully paid and nonassessable share
of Class A Common Stock;
(5) a corporation,
partnership or limited liability company in which such holder (either alone or with any Family Member of such holder) directly, or indirectly
through one or more Permitted Transferees, owns shares, partnership interests or membership interests, as applicable, with sufficient
Voting Control in the corporation, partnership or limited liability company, as applicable, or otherwise has legally enforceable rights,
such that the holder (either alone or with any Family Member of such holder) retains Voting Control and control over the disposition of
the shares of Class B Common Stock held by such corporation, partnership or limited liability company; provided that in the event
the holder (either alone or with any Family Member of such holder) no longer owns sufficient shares, partnership interests or membership
interests, as applicable, or no longer has sufficient legally enforceable rights to ensure the holder (either alone or with any Family
Member of such holder) retains Voting Control and control over the disposition of the shares of Class B Common Stock held by such
corporation, partnership or limited liability company, as applicable, each share of Class B Common Stock then held by such corporation,
partnership or limited liability company, as applicable, shall automatically convert into one (1) fully paid and nonassessable share
of Class A Common Stock.
(C) a SunTx
Permitted Holder; and
(D) any Person
approved by SunTx.
5. “Person”
shall mean any individual, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or other entity, whether domestic or foreign.
6. “SunTx
Permitted Holder” shall mean SunTx Capital Management Corp. (“SunTx”) and its Affiliates.
7. “Transfer”
(including the term “Transferred”) of a share of Class B Common Stock shall mean, directly or indirectly,
any sale, assignment, transfer, conveyance, hypothecation or other transfer or disposition of such share or any legal or beneficial interest
in such share, whether or not for value and whether voluntary or involuntary or by operation of law (including by merger, consolidation
or otherwise), including, without limitation, the transfer of, or entering into a binding agreement with respect to, Voting Control over
such share, by proxy or otherwise. Notwithstanding the foregoing, the following shall not be considered a “Transfer” within
the meaning of this Article IV:
(i) the granting
by a stockholder of a proxy to (y) officers or directors of the Corporation at the request of the Board, or (z) a representative
of such stockholder, in connection with actions to be taken at an annual or special meeting of stockholders or in connection with any
action by written consent of the stockholders;
(ii) the pledge
of shares of Class B Common Stock by a stockholder that creates a mere security interest in such shares pursuant to a bona fide loan
or indebtedness transaction for so long as such stockholder continues to exercise Voting Control over such pledged shares; provided, however,
that a foreclosure on such shares or other similar action by the pledgee shall constitute a “Transfer” unless such foreclosure
or similar action qualifies as a “Permitted Transfer” at such time; or
(iii) any change
in the trustees or the Person(s) acting as a fiduciary with respect to a SunTx Permitted Holder having or exercising Voting Control
over shares of Class B Common Stock of a SunTx Permitted Holder; provided that following such change such SunTx Permitted Holder
continues to be a Permitted Holder.
8. “Voting
Control” shall mean, with respect to a share of Class B Common Stock, the power (whether exclusive or shared) to vote
or direct the voting of such share by proxy, voting agreement or otherwise.
Section 4.3 Preferred
Stock.
(a) Shares of Preferred
Stock may be issued in one or more series from time to time, with each such series to consist of such number of shares and to have such
voting powers, full or limited, or no voting powers, and such designations, preferences and relative, participating, optional or other
special rights, and the qualifications, limitations or restrictions thereof, as shall be stated in the resolution or resolutions providing
for the issuance of such series adopted by the Board and included in a certificate of designations (a “Preferred Stock Designation”)
filed pursuant to the DGCL, and the Board is hereby expressly vested with the authority, to the full extent now or hereafter provided
by law, to adopt any such resolution or resolutions. The authority of the Board with respect to each series of Preferred Stock shall include,
but not be limited to, determination of the following:
1. the number of
shares constituting that series and the distinctive designation of that series;
2. the dividend
rate or rates on the shares of that series, the terms and conditions upon which and the periods in respect of which dividends shall be
payable, whether dividends shall be cumulative, and, if so, from which date or dates, and the relative rights of priority, if any, of
payment of dividends on shares of that series;
3. whether that
series shall have voting rights, in addition to the voting rights provided by law, and, if so, the terms of such voting rights;
4. whether that
series shall have conversion privileges, and, if so, the terms and conditions of such conversion, including provision for adjustment of
the conversion rate in such events as the Board shall determine;
5. whether or not
the shares of that series shall be redeemable, and, if so, the terms and conditions of such redemption, including the date or dates upon
or after which they shall be redeemable, and the amount per share payable in the event of redemption, which amount may vary under different
conditions and at different redemption dates;
6. whether that
series shall have a sinking fund for the redemption or purchase of shares of that series, and, if so, the terms and amount of such sinking
fund;
7. the rights of
the shares of that series in the event of voluntary or involuntary liquidation, distribution of assets, dissolution or winding up of the
corporation, and the relative rights of priority, if any, of payment of shares of that series; and
8. any other relative
rights, powers, and preferences, and the qualifications, limitations and restrictions thereof, of that series.
(b) Except as otherwise
required by law, holders of Common Stock shall not be entitled to vote on any amendment to this Certificate (including any certificate
of designation relating to any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred
Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series,
to vote thereon pursuant to this Certificate (including any certificate of designation relating to any series of Preferred Stock) or pursuant
to the DGCL.
(c) Except as otherwise
required by law, holders of any series of Preferred Stock shall be entitled to only such voting rights, if any, as shall expressly be
granted thereto by this Certificate (including any certificate of designation relating to such series of Preferred Stock).
ARTICLE V
AMENDMENT OF THE CERTIFICATE OF INCORPORATION AND
BYLAWS
Section 5.1 Notwithstanding
anything contained in this Certificate to the contrary, once no shares of Class B Common Stock remain outstanding, the following
provisions in this Certificate may be amended, altered, repealed or rescinded, in whole or in part, or any provision inconsistent therewith
or herewith may be adopted, only by the affirmative vote of the holders of at least 66 2⁄3% in voting power of all the then-outstanding
shares of stock of the Corporation entitled to vote thereon, voting together as a single class: this Article V, Article VI,
Article VII, Article VIII, Article IX, Article X and Article XI. For the purposes of this Certificate, beneficial
ownership of shares shall be determined in accordance with Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”) (except, for the avoidance of doubt, holders of Class B Common Stock will not be deemed
to be beneficial owners of Class A Common Stock).
Section 5.2 The Board
is expressly authorized to make, repeal, alter, amend and rescind, in whole or in part, the amended and restated bylaws of the Corporation
(as in effect from time to time, the “Bylaws”) without the assent or vote of the stockholders. For so long as
shares of Class B Common Stock remain outstanding, the affirmative vote of the holders of a majority in voting power of all the then-outstanding
shares of stock of the Corporation entitled to vote thereon, voting together as a single class, shall be required in order for the stockholders
of the Corporation to alter, amend, repeal or rescind, in whole or in part, any provision of the Bylaws or to adopt any provision inconsistent
therewith. Notwithstanding anything to the contrary contained in this Certificate or any provision of law which might otherwise permit
a lesser vote of the stockholders, once no shares of Class B Common Stock remain outstanding, in addition to any vote of the holders
of any class or series of capital stock of the Corporation required herein (including any certificate of designation relating to any series
of Preferred Stock), the Bylaws or applicable law, the affirmative vote of the holders of at least 66 2⁄3% in voting power of all
the then-outstanding shares of stock of the Corporation entitled to vote thereon, voting together as a single class, shall be required
in order for the stockholders of the Corporation to alter, amend, repeal or rescind, in whole or in part, any provision of the Bylaws
or to adopt any provision inconsistent therewith.
ARTICLE VI
BOARD OF DIRECTORS
Section 6.1 Number,
Election and Term.
(a) The number of directors
constituting the Board shall be not fewer than one (1) and not more than fifteen (15). Subject to the previous sentence, the precise
number of directors, other than those who may be elected by the holders of one or more series of Preferred Stock voting separately by
class or series, shall be fixed from time to time exclusively pursuant to a resolution adopted by the Board.
(b) Subject to Section 6.4,
the directors shall be divided with respect to the time for which they hold office into three classes, as nearly equal in number as possible
and designated Class I (the “Class I Directors”), Class II (the “Class II Directors”)
and Class III (the “Class III Directors”). The initial division of the Board into classes shall be
made by the Board. The term of the initial Class I Directors shall expire at the first annual meeting of stockholders of the Corporation
following the filing of this Certificate; the term of the initial Class II Directors shall expire at the second annual meeting of
stockholders following the filing of this Certificate; and the term of the initial Class III Directors shall expire at the third
annual meeting of stockholders following the filing of this Certificate. At each annual meeting of stockholders beginning with the first
annual meeting of stockholders following the filing of this Certificate, successors to the class of directors whose term expires at that
annual meeting shall be elected to hold office for a term expiring at the annual meeting of stockholders to be held in the third year
following the year of their election. Subject to Section 6.4, if the number of directors is changed, any increase or decrease
shall be apportioned by the Board among the classes so as to maintain the number of directors in each class as nearly equal as possible,
but in no case will a decrease in the number of directors shorten the term of any incumbent director.
(c) Subject to Section 6.4,
a director shall hold office until the annual meeting for the year in which his or her term expires and until his or her successor has
been elected and qualified, subject, however, to such director’s earlier death, resignation, retirement, disqualification or removal.
(d) Unless and except
to the extent that the By-Laws shall so require, the election of directors need not be by written ballot.
Section 6.2 Newly
Created Directorships and Vacancies.
Subject to Section 6.4,
newly created directorships resulting from an increase in the number of directors and any vacancies on the Board resulting from death,
resignation, retirement, disqualification, removal or other cause may be filled by a majority vote of the directors then in office, even
if less than a quorum, or by a sole remaining director or by the stockholders; provided, however, that once no shares of Class B
Common Stock remain outstanding, any newly created directorships resulting from an increase in the number of directors and any vacancies
on the Board resulting from death, resignation, retirement, disqualification, removal or other cause may be filled solely by a majority
vote of the directors then in office, even if less than a quorum, or by a sole remaining director (and not by the stockholders). Any director
so chosen shall hold office for the remainder of the full term of the class of directors to which the new directorship was added or in
which the vacancy occurred and until his or her successor has been elected and qualified, subject, however, to such director’s earlier
death, resignation, retirement, disqualification or removal.
Section 6.3 Removal.
Subject to Section 6.4,
any or all of the directors may be removed from office at any time either with or without cause by the affirmative vote of a majority
in voting power of all outstanding shares of stock of the Corporation entitled to vote thereon, voting as a single class; provided, however,
that once no shares of Class B Common Stock remain outstanding, any such director or all such directors may be removed only for cause
and only by the affirmative vote of the holders of at least 66 2⁄3% in voting power of all the then-outstanding shares of stock
of the Corporation entitled to vote thereon, voting together as a single class.
Section 6.4 Preferred
Stock - Directors.
Notwithstanding any other
provision of this Article VI, and except as otherwise required by law, whenever the holders of one or more series of Preferred Stock
shall have the right, voting separately by class or series, to elect one or more directors, the term of office, the filling of vacancies,
the removal from office and other features of such directorships shall be governed by the terms of such series of Preferred Stock as set
forth in this Certificate (including any Preferred Stock Designation) and such directors shall not be included in any of the classes created
pursuant to this Article VI unless expressly provided by such terms.
ARTICLE VII
CONSENT OF STOCKHOLDERS IN LIEU OF MEETING; SPECIAL
MEETINGS OF STOCKHOLDERS
Section 7.1 Consent
of Stockholders in Lieu of Meeting.
For as long as shares of Class B
Common Stock remain outstanding, any action required or permitted to be taken at any annual or special meeting of stockholders of the
Corporation may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall
be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an
officer or agent of the Corporation having custody of the books in which proceedings of meetings of stockholders are recorded. Delivery
made to the Corporation’s registered office shall be made by hand, overnight courier or by certified or registered mail, return
receipt requested. Once no shares of Class B Common Stock remain outstanding, any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual or special meeting of such holders and may not be effected by
any consent in writing by such holders; provided, however, that any action required or permitted to be taken by the holders of Preferred
Stock, voting separately as a series or separately as a class with one or more other such series, may be taken without a meeting, without
prior notice and without a vote, to the extent expressly so provided by the applicable certificate of designation relating to such series
of Preferred Stock.
Section 7.2 Special
Meetings of Stockholders.
Except as otherwise required
by law or the terms of any one or more series of Preferred Stock, special meetings of stockholders of the Corporation may be called only
by the Chairman of the Board, Chief Executive Officer, or the Board; provided, however, that special meetings of the stockholders of the
Corporation for any purpose or purposes shall also be called at the request of the holders of 25% of the Class B Common Stock. The
ability of holders of Class A Common Stock to call a special meeting is hereby specifically denied.
ARTICLE VIII
LIMITATION OF DIRECTOR AND OFFICER LIABILITY; INDEMNIFICATION
AND ADVANCEMENT OF EXPENSES
Section 8.1 Limitation
of Director and Officer Liability.
To the fullest extent that
the DGCL or any other law of the State of Delaware as the same exists or is hereafter amended permits the limitation or elimination of
the liability of directors or officers, no person who is or was a director or officer of the Corporation shall be personally liable to
the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director or officer. Any repeal or amendment
of this Section 8.1 by the stockholders of the Corporation or by changes in law, or the adoption of any other provision of
this Certificate inconsistent with this Section 8.1 will, unless otherwise required by law, be prospective only (except to
the extent such amendment or change in law permits the Corporation to further limit or eliminate the liability of directors or officers)
and shall not adversely affect any right or protection of a director or officer of the Corporation existing at the time of such repeal
or amendment or adoption of such inconsistent provision with respect to acts or omissions occurring prior to such repeal or amendment
or adoption of such inconsistent provision. If the DGCL is hereafter amended to authorize the further elimination or limitation of the
liability of directors or officers, then the liability of directors and officers of the Corporation shall be eliminated or limited to
the fullest extent authorized by the DGCL as so amended.
Section 8.2 Indemnification
and Advancement of Expenses.
(a) To the fullest extent
permitted by applicable law, as the same exists or may hereafter be amended, the Corporation shall indemnify and hold harmless each person
who is or was made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”) by reason of the
fact that he or she is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture,
trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (an “indemnitee”),
whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in any other
capacity while serving as a director, officer, employee or agent, against all expenses, liability and loss (including, without limitation,
attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred or suffered
by such indemnitee in connection with such proceeding. The right to indemnification conferred by this Section 8.2 shall include
the right to be paid by the Corporation the expenses incurred in defending or otherwise participating in any such proceeding in advance
of its final disposition; provided, however, that, if the DGCL requires, an advancement of expenses shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of the indemnitee, to repay all amounts so advanced if it shall ultimately be determined
by final judicial decision from which there is no further right to appeal that the indemnitee is not entitled to be indemnified for the
expenses under this Section 8.2 or otherwise. The rights to indemnification and advancement of expenses conferred by this
Section 8.2 shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of his or her heirs, executors and administrators. Notwithstanding the foregoing provisions
of this Section 8.2, except for proceedings to enforce rights to indemnification and advancement of expenses, the Corporation
shall indemnify and advance expenses to an indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the Board.
(b) The rights to indemnification
and advancement of expenses conferred on any indemnitee by this Section 8.2 shall not be exclusive of any other rights that
any indemnitee may have or hereafter acquire under law, this Certificate, the By-Laws, an agreement, vote of stockholders or disinterested
directors, or otherwise.
(c) Any repeal or amendment
of this Section 8.2 by the stockholders of the Corporation or by changes in law, or the adoption of any other provision of
this Certificate inconsistent with this Section 8.2, shall, unless otherwise required by law, be prospective only (except
to the extent such amendment or change in law permits the Corporation to provide broader indemnification rights on a retroactive basis
than permitted prior thereto), and shall not in any way diminish or adversely affect any right or protection existing at the time of such
repeal or amendment or adoption of such inconsistent provision in respect of any act or omission occurring prior to such repeal or amendment
or adoption of such inconsistent provision.
(d) This Section 8.2
shall not limit the right of the Corporation, to the extent and in the manner authorized or permitted by law, to indemnify and to advance
expenses to persons other than indemnitees.
ARTICLE IX
COMPETITION AND CORPORATE OPPORTUNITIES
Section 9.1 In recognition
and anticipation that (i) certain directors, principals, members, officers, associated funds, employees and/or other representatives
of SunTx and its Affiliates (as defined below) may serve as directors, officers or agents of the Corporation, (ii) SunTx and its
Affiliates may now engage and may continue to engage in the same or similar activities or related lines of business as those in which
the Corporation, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which
the Corporation, directly or indirectly, may engage, and (iii) members of the Board who are not employees of the Corporation (“Non-Employee
Directors”) and their respective Affiliates may now engage and may continue to engage in the same or similar activities
or related lines of business as those in which the Corporation, directly or indirectly, may engage and/or other business activities that
overlap with or compete with those in which the Corporation, directly or indirectly, may engage, the provisions of this Article IX
are set forth to regulate and define the conduct of certain affairs of the Corporation with respect to certain classes or categories of
business opportunities as they may involve any of SunTx, the Non-Employee Directors or their respective Affiliates and the powers, rights,
duties and liabilities of the Corporation and its directors, officers and stockholders in connection therewith.
Section 9.2 None of (i) SunTx
or any of its Affiliates or (ii) any Non-Employee Director or his or her Affiliates (the Persons (as defined below) identified in
(i) and (ii) above being referred to, collectively, as “Identified Persons” and, individually, as
an “Identified Person”) shall, to the fullest extent permitted by law, have any duty to refrain from directly
or indirectly (1) engaging in the same or similar business activities or lines of business in which the Corporation or any of its
Affiliates now engages or proposes to engage or (2) otherwise competing with the Corporation or any of its Affiliates, and, to the
fullest extent permitted by law, no Identified Person shall be liable to the Corporation or its stockholders or to any Affiliate of the
Corporation for breach of any fiduciary duty solely by reason of the fact that such Identified Person engages in any such activities.
To the fullest extent permitted by law, the Corporation hereby renounces any interest or expectancy in, or right to be offered an opportunity
to participate in, any business opportunity which may be a corporate opportunity for an Identified Person and the Corporation or any of
its Affiliates. In the event that any Identified Person acquires knowledge of a potential transaction or other matter or business opportunity
which may be a corporate opportunity for itself, herself or himself and the Corporation or any of its Affiliates, such Identified Person
shall, to the fullest extent permitted by law, have no fiduciary duty or other duty (contractual or otherwise) to communicate, present
or offer such transaction or other business opportunity to the Corporation or any of its Affiliates and, to the fullest extent permitted
by law, shall not be liable to the Corporation or its stockholders or to any Affiliate of the Corporation for breach of any fiduciary
duty or other duty (contractual or otherwise) as a stockholder, director or officer of the Corporation solely by reason of the fact that
such Identified Person pursues or acquires such corporate opportunity for itself, herself or himself, offers or directs such corporate
opportunity to another Person, or does not present such corporate opportunity to the Corporation or any of its Affiliates.
Section 9.3 The Corporation
and its Affiliates do not have any rights in and to the business ventures of any Identified Person, or the income or profits derived therefrom,
and the Corporation agrees that each of the Identified Persons may do business with any potential or actual customer or supplier of the
Corporation or may employ or otherwise engage any officer or employee of the Corporation.
Section 9.4 In addition
to and notwithstanding the foregoing provisions of this Article IX, a corporate opportunity shall not be deemed to be a potential
corporate opportunity for the Corporation if it is a business opportunity that (i) the Corporation is financially, legally or contractually
prevented from undertaking, (ii) from its nature, is not in the line of the Corporation’s business or is of no practical advantage
to the Corporation or (iii) is one in which the Corporation has no interest or reasonable expectancy.
Section 9.5. To the extent
a court might hold that the conduct of any activity related to a corporate opportunity that is renounced in this Article IX to be
a breach of duty to the Corporation or its stockholders, the Corporation hereby waives, to the fullest extent permitted by applicable
law, any and all claims and causes of action that the Corporation may have for such activities. To the fullest extent permitted by applicable
law, the provisions of this Article IX apply equally to activities conducted in the future and that have been conducted in the past.
Section 9.6 For purposes
of this Article IX, (i) “Affiliate” shall mean (a) in respect of SunTx, any Person that, directly
or indirectly, is controlled by SunTx, controls SunTx or is under common control with SunTx and shall include any principal, member, director,
partner, stockholder, officer, employee or other representative of any of the foregoing (other than the Corporation and any entity that
is controlled by the Corporation), (b) in respect of a Non-Employee Director, any Person that, directly or indirectly, is controlled
by such Non-Employee Director (other than the Corporation and any entity that is controlled by the Corporation) and (c) in respect
of the Corporation, any Person that, directly or indirectly, is controlled by the Corporation; and (ii) “Person”
shall mean any individual, corporation, general or limited partnership, limited liability company, joint venture, trust, association or
any other entity.
Section 9.7 To the fullest
extent permitted by law, any Person purchasing or otherwise acquiring any interest in any shares of capital stock of the Corporation shall
be deemed to have notice of and to have consented to the provisions of this Article IX. Neither the alteration, amendment, addition
to or repeal of this Article IX, nor the adoption of any provision of this Certificate (including any certificate of designation
relating to any series of Preferred Stock) inconsistent with this Article IX, shall eliminate or reduce the effect of this Article IX
in respect of any business opportunity first identified or any other matter occurring, or any cause of action, suit or claim that, but
for this Article IX, would accrue or arise, prior to such alteration, amendment, addition, repeal or adoption.
ARTICLE X
DGCL AND BUSINESS COMBINATIONS
Section 10.1 The Corporation
hereby expressly elects not to be governed by Section 203 of the DGCL.
Section 10.2 Notwithstanding
the foregoing, the Corporation shall not engage in any business combination (as defined below), at any point in time at which the Corporation’s
Class A Common Stock is registered under Section 12(b) or 12(g) of the Exchange Act, with any interested stockholder
(as defined below) for a period of three (3) years following the time that such stockholder became an interested stockholder, unless:
(a) prior to
such time, the Board approved either the business combination or the transaction which resulted in the stockholder becoming an interested
stockholder;
(b) upon consummation
of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85%
of the voting stock (as defined below) of the Corporation outstanding at the time the transaction commenced, excluding for purposes of
determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned
(i) by persons who are directors and also officers and (ii) employee stock plans in which employee participants do not have
the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
(c) at or subsequent
to such time, the business combination is approved by the Board and authorized at an annual or special meeting of stockholders, and not
by written consent, by the affirmative vote of at least 66 2⁄3% of the outstanding voting stock of the Corporation which is not
owned by the interested stockholder.
Section 10.3 For purposes
of this Article X, references to:
(a) “affiliate”
means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control
with, another person.
(b) “associate,”
when used to indicate a relationship with any person, means: (i) any corporation, partnership, unincorporated association or other
entity of which such person is a director, officer or partner or is, directly or indirectly, the owner of 20% or more of any class of
voting stock; (ii) any trust or other estate in which such person has at least a 20% beneficial interest or as to which such person
serves as trustee or in a similar fiduciary capacity; and (iii) any relative or spouse of such person, or any relative of such spouse,
who has the same residence as such person.
(c) “business
combination,” when used in reference to the Corporation and any interested stockholder of the Corporation, means:
1. any merger or consolidation
of the Corporation (other than a merger effected under Section 253 or Section 267 of the DGCL) or any direct or indirect majority-owned
subsidiary of the Corporation (a) with the interested stockholder, or (b) with any other corporation, partnership, unincorporated
association or other entity if the merger or consolidation is caused by the interested stockholder and as a result of such merger or consolidation
Section 10.2 is not applicable to the surviving entity;
2. any sale, lease,
exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), except proportionately as
a stockholder of the Corporation, to or with the interested stockholder, whether as part of a dissolution or otherwise, of assets of the
Corporation or of any direct or indirect majority-owned subsidiary of the Corporation which assets have an aggregate market value equal
to 10% or more of either the aggregate market value of all the assets of the Corporation determined on a consolidated basis or the aggregate
market value of all the outstanding stock of the Corporation;
3. any transaction
which results in the issuance or transfer by the Corporation or by any direct or indirect majority-owned subsidiary of the Corporation
of any stock of the Corporation or of such subsidiary to the interested stockholder, except: (a) pursuant to the exercise, exchange
or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary which
securities were outstanding prior to the time that the interested stockholder became such; (b) pursuant to a merger under Section 251(g) or
Section 253 or Section 267 of the DGCL; (c) pursuant to a dividend or distribution paid or made, or the exercise, exchange
or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary which
security is distributed, pro rata to all holders of a class or series of stock of the Corporation subsequent to the time the interested
stockholder became such; (d) pursuant to an exchange offer by the Corporation to purchase stock made on the same terms to all holders
of said stock; or (e) any issuance or transfer of stock by the Corporation; provided, however, that in no case under items (c)-(e) of
this Section 10.3(c)(3) shall there be an increase in the interested stockholder’s proportionate share of the stock
of any class or series of the Corporation or of the voting stock of the Corporation (except as a result of immaterial changes due to fractional
share adjustments);
4. any transaction
involving the Corporation or any direct or indirect majority-owned subsidiary of the Corporation which has the effect, directly or indirectly,
of increasing the proportionate share of the stock of any class or series, or securities convertible into the stock of any class or series,
of the Corporation or of any such subsidiary which is owned by the interested stockholder, except as a result of immaterial changes due
to fractional share adjustments or as a result of any purchase or redemption of any shares of stock not caused, directly or indirectly,
by the interested stockholder; or
5. any receipt by
the interested stockholder of the benefit, directly or indirectly (except proportionately as a stockholder of the Corporation), of any
loans, advances, guarantees, pledges, or other financial benefits (other than those expressly permitted in Sections 10.3(e)(1)-(4) above)
provided by or through the Corporation or any direct or indirect majority-owned subsidiary.
(d) “control,”
including the terms “controlling,” “controlled by” and “under common control
with,” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting stock, by contract, or otherwise. A person who is the owner of 20% or more
of the outstanding voting stock of the Corporation, partnership, unincorporated association or other entity shall be presumed to have
control of such entity, in the absence of proof by a preponderance of the evidence to the contrary. Notwithstanding the foregoing, a presumption
of control shall not apply where such person holds voting stock, in good faith and not for the purpose of circumventing this Article X,
as an agent, bank, broker, nominee, custodian or trustee for one or more owners who do not individually or as a group have control of
such entity.
(e) “interested
stockholder” means any person (other than the Corporation or any direct or indirect majority-owned subsidiary of the Corporation)
that (i) is the owner of 15% or more of the outstanding voting stock of the Corporation, or (ii) is an affiliate or associate
of the Corporation and was the owner of 15% or more of the outstanding voting stock of the Corporation at any time within the three (3) year
period immediately prior to the date on which it is sought to be determined whether such person is an interested stockholder, and the
affiliates and associates of such person; provided, however, that “interested stockholder” shall not include or be deemed
to include, in any case, (a) SunTx, any SunTx Direct Transferee, any SunTx Indirect Transferee or any of their respective affiliates
or successors or any “group”, or any member of any such group, to which such persons are a party under Rule 13d-5 of
the Exchange Act, or (b) any person whose ownership of shares in excess of the 15% limitation set forth herein is the result of any
action taken solely by the Corporation, provided further that such person shall be an interested stockholder if thereafter such person
acquires additional shares of voting stock of the Corporation, except as a result of further corporate action not caused, directly or
indirectly, by such person. For the purpose of determining whether a person is an interested stockholder, the voting stock of the Corporation
deemed to be outstanding shall include stock deemed to be owned by the person through application of the definition of “owner”
below but shall not include any other unissued stock of the Corporation which may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or options, or otherwise.
(f) “owner,”
including the terms “own” and “owned,” when used with respect to any stock, means
a person that individually or with or through any of its affiliates or associates:
1. beneficially owns such stock, directly
or indirectly; or
2. has (a) the right to acquire
such stock (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or
understanding, or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise; provided, however, that
a person shall not be deemed the owner of stock tendered pursuant to a tender or exchange offer made by such person or any of such person’s
affiliates or associates until such tendered stock is accepted for purchase or exchange; or (b) the right to vote such stock pursuant
to any agreement, arrangement or understanding; provided, however, that a person shall not be deemed the owner of any stock because of
such person’s right to vote such stock if the agreement, arrangement or understanding to vote such stock arises solely from a revocable
proxy or consent given in response to a proxy or consent solicitation made to ten (10) or more persons; or
3. has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent as described in item
(b) of Section 10.3(f)(2) above), or disposing of such stock with any other person that beneficially owns, or whose
affiliates or associates beneficially own, directly or indirectly, such stock.
(g) “person”
means any individual, corporation, partnership, unincorporated association or other entity.
(h) “stock”
means, with respect to any corporation, capital stock and, with respect to any other entity, any equity interest.
(i) “SunTx
Direct Transferee” means any person that acquires (other than in a registered public offering or through a broker’s
transaction executed on any securities exchange or other over-the-counter market) directly from SunTx or any of its affiliates or successors
or any “group”, or any member of any such group, of which such persons are a party under Rule 13d-5 of the Exchange Act
beneficial ownership of 5% or more of the then-outstanding voting stock of the Corporation.
(j) “SunTx
Indirect Transferee” means any person that acquires (other than in a registered public offering or through a broker’s
transaction executed on any securities exchange or other over-the-counter market) directly from any SunTx Direct Transferee or any other
SunTx Indirect Transferee beneficial ownership of 5% or more of the then-outstanding voting stock of the Corporation.
(k) “voting
stock” means stock of any class or series entitled to vote generally in the election of directors.
ARTICLE XI
FORUM FOR ADJUDICATION OF DISPUTES
Section 11.1 Unless the
Corporation consents in writing to the selection of an alternative forum, the sole and exclusive forum for (i) any derivative action
or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director,
officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting
a claim arising pursuant to any provision of the DGCL, or (iv) any action asserting a claim governed by the internal affairs doctrine
shall be a state court located within the State of Delaware (or, if no state court located within the State of Delaware has jurisdiction,
the federal district court for the District of Delaware), provided in each such case that such court has personal jurisdiction over the
indispensable parties named as defendants. If any action the subject matter of which is within the scope of this Section 11.1
is filed in a court other than a court located within the State of Delaware (a “Foreign Action”) in the name
of any stockholder, such stockholder shall be deemed to have consented to (a) the personal jurisdiction of the state and federal
courts located within the State of Delaware in connection with any action brought in any such court to enforce this Section 11.1
(an “FSC Enforcement Action”) and (b) having service of process made upon such stockholder in any such
FSC Enforcement Action by service upon such stockholder’s counsel in the Foreign Action as agent for such stockholder.
Section 11.2 Unless the
Corporation consents in writing to the selection of an alternative forum, to the fullest extent permitted by law, the federal district
courts of the United States shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under
the Securities Act of 1933, as amended. Any person or entity purchasing or otherwise acquiring any interest in any security of the Corporation
shall be deemed to have notice of and consented to the provisions of this Section 11.2.
EX-3.2 — EXHIBIT 3.2
EX-3.2
Filename: tm2611641d1_ex3-2.htm · Sequence: 4
Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS
OF
SUNCRETE, INC.
a Delaware corporation
(the “Corporation”)
(Adopted as of April 8, 2026)
ARTICLE I
OFFICES
Section 1.1 Registered
Office. The registered office of the Corporation within the State of Delaware shall be located at either (a) the principal place
of business of the Corporation in the State of Delaware or (b) the office of the corporation or individual acting as the Corporation’s
registered agent in Delaware.
Section 1.2 Additional
Offices. The Corporation may, in addition to its registered office in the State of Delaware, have such other offices and places of
business, both within and outside the State of Delaware, as the Board of Directors of the Corporation (the “Board”)
may from time to time determine or as the business and affairs of the Corporation may require.
ARTICLE II
STOCKHOLDERS MEETINGS
Section 2.1 Annual
Meetings. The annual meeting of stockholders shall be held at such place and time and on such date as shall be determined by the Board
and stated in the notice of the meeting, provided that the Board may in its sole discretion determine that the meeting shall be
(a) held solely by means of remote communication or (b) held in person and by means of remote communication, in each case pursuant
to Section 9.5(a). At each annual meeting, the stockholders shall elect directors of the Corporation and may transact any
other business as may properly be brought before the meeting.
Section 2.2 Special
Meetings. Except as otherwise required by applicable law or provided in the Corporation’s Amended and Restated Certificate of
Incorporation, as the same may be amended or restated from time to time (the “Certificate of Incorporation”),
special meetings of stockholders, for any purpose or purposes, may be called only by the Chairman of the Board, the Chief Executive Officer,
or the Board; provided, however, that at any time when shares of Class B common stock, par value $0.0001 per share (the “Class B
Common Stock”), of the Corporation remain outstanding, special meetings of the stockholders of the Corporation for any purpose
or purposes shall also be called at the request of stockholders as, and to the extent, provided in the Certificate of Incorporation. Special
meetings of stockholders shall be held at such place and time and on such date as shall be determined by the Board and stated in the Corporation’s
notice of the meeting, provided that the Board may in its sole discretion determine that the meeting shall be (a) held solely
by means of remote communication or (b) held in person and by means of remote communication, in each case pursuant to Section 9.5(a).
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Section 2.3 Notices.
Notice of each stockholders meeting stating the place, if any, date and time of the meeting, the means of remote communication, if any,
by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, and the record date for determining
the stockholders entitled to vote at the meeting if such date is different from the record date for determining stockholders entitled
to notice of the meeting shall be given in the manner permitted by Section 9.3 to each stockholder entitled to vote thereat
as of the record date for determining the stockholders entitled to notice of the meeting. Such notice shall be given by the Corporation
not less than 10 nor more than 60 days before the date of the meeting. If said notice is for a stockholders meeting other than an annual
meeting, it shall in addition state the purpose or purposes for which the meeting is called, and the business transacted at such meeting
shall be limited to the matters so stated in the Corporation’s notice of meeting (or any supplement thereto). Any meeting of stockholders
as to which notice has been given may be postponed, and any special meeting of stockholders as to which notice has been given may be cancelled,
by the Board upon public announcement (as defined in Section 2.7(c)) given before the date previously scheduled for such meeting;
provided, however, that with respect to any special meeting of stockholders previously scheduled by the Board or the Chairman of
the Board at the request of stockholders of the Corporation in accordance with the Certificate of Incorporation, the Board of Directors
shall not postpone, reschedule or cancel such special meeting without the prior written consent of the stockholders who requested such
meeting.
Section 2.4 Quorum.
Except as otherwise provided by applicable law, the Certificate of Incorporation or these By-Laws, the presence, in person or by proxy,
at a stockholders meeting of the holders of shares of outstanding capital stock of the Corporation representing a majority of the voting
power of all outstanding shares of capital stock of the Corporation entitled to vote at such meeting shall constitute a quorum for the
transaction of business at such meeting, except that when specified business is to be voted on by a class or series of stock voting as
a class, the holders of shares representing a majority of the voting power of the outstanding shares of such class or series shall constitute
a quorum of such class or series for the transaction of such business. If a quorum shall not be present or represented by proxy at any
meeting of the stockholders, the chairman of the meeting may adjourn the meeting from time to time in the manner provided in Section 2.6
until a quorum shall attend. A quorum, once established, shall not be broken by the subsequent withdrawal of enough votes to leave less
than a quorum. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the voting power of the
shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall
neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right
of the Corporation or any such other corporation to vote shares held by it in a fiduciary capacity.
Section 2.5 Voting
of Shares.
(a) Voting
Lists. The Corporation shall prepare at least 10 days before every meeting of stockholders, a complete list of the stockholders of
record entitled to vote at the meeting (provided, however, if the record date for determining the stockholders entitled to vote
is less than 10 days before the meeting date, the list shall reflect the stockholders entitled to vote as of the tenth day before the
meeting date), arranged in alphabetical order for each class of stock and showing the address and the number of shares registered in the
name of each stockholder. Nothing contained in this Section 2.5(a) shall require the Corporation to include electronic
mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, for a period of 10 days ending on the day before the meeting: (i) on a reasonably accessible
electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting,
or (ii) during ordinary business hours, at the principal place of business of the Corporation. If the Corporation determines to make
the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only
to stockholders of the Corporation. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the
list required by this Section 2.5(a) or to vote in person or by proxy at any meeting of stockholders. For purposes of
these By-Laws, “stock ledger” shall have the definition set forth in Section 219 of the Delaware General
Corporation Law, as amended (“DGCL”).
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(b) Manner
of Voting. At any stockholders meeting, every stockholder entitled to vote may vote in person or by proxy. In the case any matter
is voted upon by written ballot, if authorized by the Board, the requirement of a written ballot shall be satisfied by a ballot submitted
by electronic transmission (as defined in Section 9.3), provided that any such electronic transmission must either
set forth or be submitted with information from which the Corporation can determine that the electronic transmission was authorized by
the stockholder or proxyholder. The Board, in its discretion, or the chairman of the meeting of stockholders, in such person’s discretion,
may require that any votes cast at a meeting shall be cast by written ballot.
(c) Proxies.
Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without
a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a longer period. Proxies need not be filed with the Secretary of the Corporation
until the meeting is called to order, but shall be filed with the Secretary before being voted. The authorization of a person to act as
proxy may be documented, signed, and delivered in accordance with Section 116 of the DGCL, provided that such authorization
shall set forth, or be delivered with, information enabling the Corporation to determine the identity of the stockholder granting such
authorization. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power.
(d) Required
Vote. Subject to the rights of the holders of one or more series of preferred stock of the Corporation (“Preferred Stock”),
voting separately by class or series, to elect directors pursuant to the terms of one or more series of Preferred Stock, the election
of directors shall be determined by a plurality of the votes cast by the stockholders present in person or represented by proxy at the
meeting and entitled to vote thereon. With respect to all other matters, the affirmative vote of a majority of the votes cast (affirmatively
or negatively) by the stockholders present in person or represented by proxy at the meeting and entitled to vote thereon shall be sufficient
to approve all other matters, unless the matter is one upon which, by applicable law, the Certificate of Incorporation, these By-Laws
or applicable stock exchange rules, a different vote is required, in which case such provision shall govern and control the decision of
such matter.
(e) Inspectors
of Election. The Corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more persons
as inspectors of election, who may be employees of the Corporation or otherwise serve the Corporation in other capacities, to act at such
meeting of stockholders or any adjournment thereof and to make a written report thereof. The Corporation may appoint one or more persons
as alternate inspectors to replace any inspector who fails to act. If no inspectors of election or alternates are appointed prior to the
meeting, the chairman of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his
or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspectors shall ascertain and report the number of outstanding shares and the voting power of each; determine
the number of shares present in person or represented by proxy at the meeting and the validity of proxies and ballots; count all votes
and ballots and report the results; determine and retain for a reasonable period a record of the disposition of any challenges made to
any determination by the inspectors; and certify their determination of the number of shares represented at the meeting and their count
of all votes and ballots. No person who is a candidate for an office at an election may serve as an inspector at such election. Each report
of an inspector shall be in writing and signed by the inspector or by a majority of them if there is more than one inspector acting at
such meeting. If there is more than one inspector, the report of a majority shall be the report of the inspectors.
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Section 2.6 Adjournments.
Any meeting of stockholders, annual or special, may be adjourned by the chairman of the meeting, from time to time, whether or not there
is a quorum, to reconvene at the same or some other place, if any. Notice need not be given of any such adjourned meeting if the date,
time and place, if any, thereof, and the means of remote communication, if any, by which stockholders and proxyholders may be deemed to
be present in person and vote at such adjourned meeting are provided in accordance with applicable law. At the adjourned meeting, the
stockholders, or the holders of any class or series of stock entitled to vote separately as a class, as the case may be, may transact
any business that might have been transacted at the original meeting. If the adjournment is for more than 30 days, notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for stockholders
entitled to vote is fixed for the adjourned meeting, the Board shall fix a new record date for notice of such adjourned meeting in accordance
with Section 2.3 and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned
meeting as of the record date fixed for notice of such adjourned meeting.
Section 2.7 Advance
Notice for Business.
(a) Annual
Meetings of Stockholders. Except for nominations for election to the Board pursuant to Section 3.2, no business may be
transacted at an annual meeting of stockholders, other than business that is either (x) specified in the Corporation’s notice
of meeting (or any supplement thereto) given by or at the direction of the Board, (y) otherwise properly brought before the annual
meeting by or at the direction of the Board or (z) otherwise properly brought before the annual meeting by any stockholder of the
Corporation (A) who is a stockholder of record on the date of the giving of the notice provided for in this Section 2.7(a) and
who is entitled to vote at such annual meeting and (B) who complies with the notice procedures set forth in this Section 2.7(a).
Except for proposals properly made in accordance with Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and included in the notice of meeting given by or at the direction of the Board, the foregoing clause (z) shall
be the exclusive means for a stockholder to propose business (other than nominations) to be brought before an annual meeting of stockholders.
(i) In
addition to any other applicable requirements, for business (other than nominations) to be properly brought before an annual meeting by
a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation, even
if such matter is already the subject of any notice to the stockholders or public announcement from the Board, and such business must
otherwise be a proper matter for stockholder action. Subject to Section 2.7(a)(v), a stockholder’s notice to the Secretary
with respect to such business, to be timely, must (x) comply with the provisions of this Section 2.7(a)(i) and (y) be
timely updated by the times and in the manner required by the provisions of Section 2.7(a)(iii). A stockholder’s notice
must be received by the Secretary at the principal executive offices of the Corporation not later than the 90th day nor earlier than the
120th day before the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that if the
annual meeting is called for a date that is more than 30 days earlier or more than 60 days later than such anniversary date, notice by
the stockholder to be timely must be so received not earlier than the 120th day before the meeting and not later than the later of (x) the
90th day before the meeting or (y) the 10th day following the day on which public announcement of the date of the annual meeting
is first made by the Corporation. The public announcement of an adjournment or postponement of an annual meeting shall not commence a
new time period (or extend any notice time period) for the giving of a stockholder’s notice as described in this Section 2.7(a).
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(ii) To
be in proper written form, a stockholder’s notice to the Secretary with respect to any business (other than nominations) must set
forth (A) as to each such matter such stockholder proposes to bring before the annual meeting (1) a brief description of the
business desired to be brought before the annual meeting and any material interest in such business of such stockholder and any Stockholder
Associated Person (as defined below), individually or in the aggregate, (2) the text of the proposal or business (including the text
of any resolutions proposed for consideration and if such business includes a proposal to amend these By-Laws, the text of the proposed
amendment) and (3) the reasons for conducting such business at the annual meeting, (B) the name and address of the stockholder
proposing such business, as they appear on the Corporation’s books, and the name and address of any Stockholder Associated Person,
(C) the class or series and number of shares of capital stock of the Corporation that are owned of record or are directly or indirectly
owned beneficially by such stockholder and by any Stockholder Associated Person, (D) any option, warrant, convertible security, stock
appreciation right, swap or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related
to any class or series of shares of the Corporation or with a value derived in whole or in part from the value of any class or series
of shares of the Corporation, whether or not such instrument or right is subject to settlement in the underlying class or series of shares
of the Corporation or otherwise (a “Derivative Instrument”) directly or indirectly owned beneficially by such
stockholder or by any Stockholder Associated Person and any other direct or indirect opportunity of such stockholder or any Stockholder
Associated Person to profit or share in any profit derived from any increase or decrease in the value of shares of the Corporation, (E) any
proxy (other than a revocable proxy or written consent given in response to a solicitation made pursuant to Section 14(a) of
the Exchange Act by way of a solicitation statement filed on Schedule 14A), contract, arrangement, understanding or relationship pursuant
to which such stockholder or any Stockholder Associated Person has a right to vote any shares of the Corporation, (F) any short interest
in any security of the Corporation held by such stockholder or any Stockholder Associated Person (for purposes of this Section 2.7,
a person shall be deemed to have a short interest in a security if such person directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value
of the subject security), (G) any rights owned beneficially by such stockholder or Stockholder Associated Person to dividends on
the shares of the Corporation that are separated or separable from the underlying shares of the Corporation, (H) any proportionate
interest in shares of the Corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which
such stockholder or any Stockholder Associated Person is a general partner or, directly or indirectly, beneficially owns an interest in
a general partner, (I) any performance-related fees (other than an asset-based fee) that such stockholder or any Stockholder Associated
Person is entitled to based on any increase or decrease in the value of shares of the Corporation or Derivative Instruments, if any, including
without limitation any such interests held by members of such stockholder’s or any Stockholder Associated Person’s immediate
family sharing the same household, (J) a description of all agreements, arrangements or understandings (written or oral) between
or among such stockholder, any Stockholder Associated Person or any other person or persons (including their names) in connection with
the proposal of such business by such stockholder, (K) any other information relating to such stockholder and any Stockholder Associated
Person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitation
of proxies for a contested election of directors (even if an election contest is not involved), or would be otherwise required, in each
case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, (L) a representation
that such stockholder is a holder of record of shares of capital stock of the Corporation entitled to vote at the meeting and intends
to appear in person or through a qualified representative at the annual meeting to bring such business before the meeting and an acknowledgement
that, if such stockholder (or a qualified representative of the stockholder) does not appear to present the stockholder’s proposal
at such meeting, the Corporation need not present the stockholder’s proposal for a vote at such meeting, notwithstanding that proxies
in respect of such vote may have been received by the Corporation, (M) the names and addresses of other stockholders (including beneficial
and record owners) known by the proposing stockholder to support the proposal, and to the extent known, the class or series and number
of all shares of the Corporation’s capital stock owned beneficially or of record by such other stockholders, (N) any agreement,
arrangement or understanding (written or oral) between such stockholder, on the one hand, and a Stockholder Associated Person, on the
other hand, related to any subject matter that will be material in such stockholder’s solicitation of stockholders (including, without
limitation, matters of social, labor, environmental and governance policy), regardless of whether such agreement, arrangement or understanding
relates specifically to the Corporation, (O) any direct or indirect interest of such stockholder in any contract with the Corporation
or any affiliate of the Corporation (including any employment agreement, collective bargaining agreement or consulting agreement), (P) a
complete and accurate description of any pending, or to such stockholder’s knowledge, threatened, legal proceeding in which such
stockholder is a party or participant involving the Corporation or, to such stockholder’s knowledge, any current or former officer,
director, affiliate or associate of the Corporation, (Q) a representation that the stockholder will provide the Corporation with
the updates and supplements required by Section 2.7(a)(iii), (R) a statement of whether or not such stockholder, its
qualified representatives and/or any Stockholder Associated Person intend to (1) deliver a proxy statement and/or form of proxy to
holders of at least the percentage of voting power of all of the shares of capital stock of the Corporation required under applicable
law to carry the proposal or (2) otherwise engage in a solicitation (within the meaning of Rule 14a-1(l) under the Exchange
Act) with respect to the proposal, and if so, the name of each participant (as defined in Item 4 of Schedule 14A under the Exchange Act)
in such solicitation, and (S) a representation that the stockholder has complied with all applicable requirements of state law and
the Exchange Act with respect to matters set forth in this Section 2.7(a). A “qualified representative”
of a stockholder means a person that is a duly authorized officer, manager or partner of such stockholder or is authorized by a writing
(a) executed by such stockholder, (b) delivered (or a reliable reproduction or electronic transmission of the writing is delivered)
by such stockholder to the Corporation prior to the taking of the action taken by such person on behalf of such stockholder and (c) stating
that such person is authorized to act for such stockholder with respect to the action to be taken.
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(iii) A
stockholder providing notice of business proposed to be brought before an annual meeting shall further update and supplement such notice,
if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 2.7(a) shall
be true and correct as of the record date for the meeting and as of the date that is 10 business days prior to the meeting or any adjournment
or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary at the principal
executive offices of the Corporation (A) in the case of the update and supplement required to be made as of the record date for the
meeting, not later than five business days after such record date and (B) in the case of the update and supplement required to be
made as of 10 business days prior to the meeting or any adjournment or postponement thereof, as applicable, not later than eight business
days prior to the date for the meeting or any adjournment or postponement thereof. For the avoidance of doubt, any information provided
pursuant to this Section 2.7(a)(iii) shall not be deemed to cure any deficiencies in a notice previously delivered pursuant
to this Section 2.7(a) and shall not extend the time period for the delivery of notice pursuant to this Section 2.7(a).
If a stockholder fails to provide any written update or supplement in accordance with this Section 2.7(a)(iii), the information
as to which such written update or supplement relates may be deemed not to have been provided in accordance with this Section 2.7(a).
(iv) If
any information submitted pursuant to this Section 2.7(a) shall be inaccurate in any material respect, such information
shall be deemed not to have been provided in accordance with this Section 2.7(a). The proposing stockholder shall notify the
Secretary in writing at the principal executive offices of the Corporation of any material inaccuracy or material change in any information
submitted pursuant to this Section 2.7(a) within two business days after becoming aware of such inaccuracy or change.
Upon written request of the Secretary on behalf of the Board (or a duly authorized committee thereof), the proposing stockholder shall
provide, within five business days after delivery of such request (or such earlier period as may be specified in such request), (A) written
verification, reasonably satisfactory to the Board or any authorized officer of the Corporation, to demonstrate the accuracy of any information
submitted by such stockholder pursuant to this Section 2.7(a) and (B) a written affirmation of any information submitted
by such stockholder pursuant to this Section 2.7(a) as of an earlier date. If the proposing stockholder fails to provide
such written verification or affirmation within such period, the information as to which written verification or affirmation was requested
may be deemed not to have been provided in accordance with this Section 2.7(a).
(v) The
foregoing notice requirements of this Section 2.7(a) shall be deemed satisfied by a stockholder as to any proposal (other
than nominations) if the stockholder has notified the Corporation of such stockholder’s intention to present such proposal at an
annual meeting only pursuant to and in compliance with Rule 14a-8 (or any successor thereof) of the Exchange Act, and such stockholder’s
proposal has been included in a proxy statement prepared by the Corporation to solicit proxies for such annual meeting. No business shall
be conducted at the annual meeting of stockholders except business brought before the annual meeting in accordance with the procedures
set forth in this Section 2.7(a), provided, however, that once business has been properly brought before the annual
meeting in accordance with such procedures, nothing in this Section 2.7(a) shall be deemed to preclude discussion by
any stockholder of any such business. The Board (or an officer designated thereby) shall have the power and duty to determine whether
a stockholder proposal has been made in accordance with the provisions set forth in this Section 2.7(a) and, if the Board
or such officer determines that any stockholder proposal was not made in accordance with the provisions of this Section 2.7(a),
such proposal shall not be presented for action at the annual meeting. Notwithstanding the foregoing provisions of this Section 2.7(a),
if the stockholder (or a qualified representative of the stockholder) does not appear at the annual meeting of stockholders of the Corporation
to present the proposed business, such proposed business shall not be transacted, notwithstanding that proxies in respect of such matter
may have been received by the Corporation.
(vi) In
addition to the provisions of this Section 2.7(a), a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing in this Section 2.7(a) shall
be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to
Rule 14a-8 under the Exchange Act.
(b) Special
Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board may be made at a special
meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting only pursuant to Section 3.2.
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(c) Definitions.
For purposes of these By-Laws, (i) “public announcement” shall mean disclosure in a press release reported
by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation
with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act; (ii) “Stockholder
Associated Person” shall mean for any proposing or nominating stockholder (A) any person controlling, directly or indirectly,
or acting in concert with, such stockholder, (B) any beneficial owner of shares of stock of the Corporation owned of record or beneficially
by such stockholder, or (C) any person controlling, controlled by or under common control with such person referred to in the preceding
clauses (A) and (B); and (iii) a stockholder shall be deemed to be “acting in concert” with a person
if such stockholder has knowingly acted (whether or not pursuant to an express agreement, arrangement or understanding) at any time during
the prior two years in concert with such person (or control person thereof) in relation to matters (whether or not specific to the Corporation)
that will be material to the stockholder’s solicitation of stockholders, including, without limitation, matters of social, labor,
environmental and governance policy; provided, however, that a stockholder shall not be deemed to be acting in concert with a person
whose primary business is to serve as investment manager or adviser with respect to investing and trading in securities for a client or
its own account.
(d) Notwithstanding
anything to the contrary contained in this Section 2.7, the notice procedures set forth in paragraphs (a)(i), (a)(ii),
(a)(iii), (a)(iv) or (b) of this Section 2.7 with respect to any annual or special meeting
of stockholders shall not apply to a proposal made by a stockholder holding at least 25% of the Class B Common Stock of the Corporation.
Section 2.8 Conduct
of Meetings. The chairman of each annual and special meeting of stockholders shall be the Chairman of the Board or, in the absence
(or inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) or, in the
absence (or inability or refusal to act of the Chief Executive Officer or if the Chief Executive Officer is not a director, the President
(if he or she shall be a director) or, in the absence (or inability or refusal to act) of the President or if the President is not a director,
such other person as shall be appointed by the Board. The date and time of the opening and the closing of the polls for each matter upon
which the stockholders will vote at a meeting shall be announced at the meeting by the chairman of the meeting. The Board may adopt such
rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent
with these By-Laws or such rules and regulations as adopted by the Board, the chairman of any meeting of stockholders shall have
the right and authority to convene and to adjourn the meeting (regardless of whether a quorum is present), to prescribe such rules, regulations
and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such
rules, regulations or procedures, whether adopted by the Board or prescribed by the chairman of the meeting, may include, without limitation,
the following: (a) the establishment of an agenda or order of business for the meeting; (b) rules and procedures for maintaining
order at the meeting and the safety of those present; (c) limitations on attendance at or participation in the meeting to stockholders
of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall
determine; (d) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (e) limitations on
the time allotted to questions or comments by participants. Unless and to the extent determined by the Board or the chairman of the meeting,
meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure. The secretary
of each annual and special meeting of stockholders shall be the Secretary or, in the absence (or inability or refusal to act) of the Secretary,
an Assistant Secretary so appointed to act by the chairman of the meeting. In the absence (or inability or refusal to act) of the Secretary
and all Assistant Secretaries, the chairman of the meeting may appoint any person to act as secretary of the meeting. The secretary of
each annual and special meeting of stockholders shall keep the minutes thereof.
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Section 2.9 Consent
of Stockholders in Lieu of Meeting. Any action required or permitted to be taken at any annual or special meeting of stockholders
of the Corporation may be taken without a meeting, without prior notice and without a vote only in the manner provided in the Certificate
of Incorporation and in accordance with applicable law.
ARTICLE III
DIRECTORS
Section 3.1 Powers.
The business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise all such powers
of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these By-Laws
required to be exercised or done by the stockholders. Directors need not be stockholders or residents of the State of Delaware.
Section 3.2 Advance
Notice for Nomination of Directors.
(a) Only
persons who are nominated in accordance with the following procedures shall be eligible for election as directors by the stockholders
of the Corporation. Nominations of persons for election to the Board at any annual meeting of stockholders, or at any special meeting
of stockholders called for the purpose of electing directors as set forth in the Corporation’s notice of such special meeting, may
be made (i) by or at the direction of the Board or (ii) by any stockholder of the Corporation (A) who is a stockholder
of record on the date of the giving of the notice provided for in this Section 3.2 and who is entitled to vote in the election
of directors at such meeting and (B) who complies with the procedures set forth in this Section 3.2. Subject to Section 3.2(k),
the foregoing clause (ii) shall be the exclusive means for a stockholder to make nominations of persons for election to the Board
at any annual or special meeting of stockholders.
(b) In
addition to any other applicable requirements, for a nomination to be made by a stockholder, such stockholder must have given timely notice
thereof in proper written form to the Secretary of the Corporation, even if the election of directors to the Board is already the subject
of any notice to the stockholders or public announcement from the Board. To be timely, a stockholder’s notice to the Secretary must
(i) comply with the provisions of this Section 3.2(b) and (ii) be timely updated by the times and in the manner
required by the provisions of Section 3.2(e). A stockholder’s notice must be received by the Secretary at the principal
executive offices of the Corporation (i) in the case of an annual meeting, not later than the 90th day nor earlier than the 120th
day before the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that if the annual
meeting is called for a date that is more than 30 days earlier or more than 60 days after such anniversary date, notice by the stockholder
to be timely must be so received not earlier than the 120th day before the meeting and not later than the later of (A) the 90th day
before the meeting or (B) the 10th day following the day on which public announcement of the date of the annual meeting is first
made by the Corporation; and (ii) in the case of a special meeting of stockholders called for the purpose of electing directors,
not earlier than the 120th day before the meeting and not later than the later of (A) the 90th day before the meeting or (B) the
10th day following the day on which public announcement of the date of the special meeting is first made by the Corporation. The public
announcement of an adjournment or postponement of an annual meeting or special meeting shall not commence a new time period (or extend
any notice time period) for the giving of a stockholder’s notice as described in this Section 3.2.
(c) Notwithstanding
anything in paragraph (b) to the contrary, if the number of directors to be elected to the Board at an annual meeting is greater
than the number of directors whose terms expire on the date of the annual meeting and there is no public announcement by the Corporation
naming all of the nominees for the additional directors to be elected or specifying the size of the increased Board before the 90th day
prior to the anniversary date of the immediately preceding annual meeting of stockholders, a stockholder’s notice required by this
Section 3.2 shall also be considered timely, but only with respect to nominees for the additional directorships created by
such increase that are to be filled by election at such annual meeting, if it shall be received by the Secretary at the principal executive
offices of the Corporation not later than the 10th day following the date on which such public announcement was first made by the Corporation.
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(d) To
be in proper written form, a stockholder’s notice to the Secretary must set forth (i) as to each person whom the stockholder
proposes to nominate for election as a director (A) the name, age, business address and residence address of the person, (B) the
principal occupation or employment of the person, (C) the class or series and number of shares of capital stock of the Corporation
that are owned of record or are directly or indirectly owned beneficially by the person, (D) any Derivative Instrument directly or
indirectly owned beneficially by such nominee and any other direct or indirect opportunity to profit or share in any profit derived from
any increase or decrease in the value of shares of the Corporation and (E) any other information relating to the person that would
be required to be disclosed in a proxy statement soliciting proxies for the election of such person as a director in an election contest
(even if an election contest is not involved) or other filings required to be made in connection with solicitations of proxies for election
of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; and (ii) as
to the stockholder giving the notice (A) the name and address of such stockholder as they appear on the Corporation’s books,
and the name and address of any Stockholder Associated Person, (B) the class or series and number of shares of capital stock of the
Corporation that are owned of record or directly or indirectly owned beneficially by such stockholder and any Stockholder Associated Person,
(C) any Derivative Instrument directly or indirectly owned beneficially by such stockholder or Stockholder Associated Person and
any other direct or indirect opportunity of such stockholder or any Stockholder Associated Person to profit or share in any profit derived
from any increase or decrease in the value of shares of the Corporation, (D) any proxy (other than a revocable proxy or written consent
given in response to a solicitation made pursuant to Section 14(a) of the Exchange Act by way of a solicitation statement filed
on Schedule 14A), contract, arrangement, understanding or relationship pursuant to which such stockholder or any Stockholder Associated
Person has a right to vote any shares of the Corporation, (E) any short interest in any security of the Corporation held by such
stockholder or any Stockholder Associated Person (for purposes of this Section 3.2 a person shall be deemed to have a short
interest in a security if such person directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise,
has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security), (F) any rights
beneficially owned, directly or indirectly, by such stockholder or Stockholder Associated Person to dividends on the shares of the Corporation
that are separated or separable from the underlying shares of the Corporation, (G) any proportionate interest in shares of the Corporation
or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such stockholder or any Stockholder
Associated Person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner, (H) any performance-related
fees (other than an asset-based fee) that such stockholder or any Stockholder Associated Person is entitled to based on any increase or
decrease in the value of shares of the Corporation or Derivative Instruments, if any, including without limitation any such interests
held by members of such stockholder’s or any Stockholder Associated Person’s immediate family sharing the same household,
(I) a description of all agreements, arrangements or understandings (written or oral) between or among such stockholder, any Stockholder
Associated Person, any proposed nominee or any other person or persons (including their names) pursuant to which the nomination or nominations
are to be made by such stockholder, (J) a representation that such stockholder is a holder of record of shares of capital stock of
the Corporation entitled to vote at the meeting and intends to appear in person or by proxy at the meeting to nominate the persons named
in its notice and an acknowledgement that, if such stockholder (or a qualified representative of the stockholder) does not appear to present
the stockholder’s nomination at such meeting, the Corporation need not present the stockholder’s nomination for a vote at
such meeting, notwithstanding that proxies in respect of such vote may have been received by the Corporation, (K) the names and addresses
of other stockholders (including beneficial and record owners) known by the proposing stockholder to support the nomination, and to the
extent known, the class or series and number of all shares of the Corporation’s capital stock owned beneficially or of record by
such other stockholders, (L) any agreement, arrangement or understanding (written or oral) between such stockholder, on the one hand,
and a Stockholder Associated Person, on the other hand, related to any subject matter that will be material in such stockholder’s
solicitation of stockholders (including, without limitation, matters of social, labor, environmental and governance policy), regardless
of whether such agreement, arrangement or understanding relates specifically to the Corporation, (M) any agreement, arrangement or
understanding (written or oral) between such stockholder or any Stockholder Associated Person, on the one hand, and the director nominee,
on the other hand, related to any subject matter that will be material in such stockholder’s solicitation of stockholders (including,
without limitation, matters of social, labor, environmental and governance policy), regardless of whether such agreement, arrangement
or understanding relates specifically to the Corporation, (N) any plans or proposals on the part of such stockholder or any Stockholder
Associated Person to nominate directors at any other company with a class of equity securities registered pursuant to Section 12
of the Exchange Act, whether or not trading in such securities has been suspended, within the next 12 months (a “Public Company”),
(O) any proposals or nominations submitted on behalf of such stockholder or any Stockholder Associated Person seeking to nominate
directors at any other Public Company within the past 36 months (whether or not such proposal or nomination was publicly disclosed), (P) any
other information relating to such stockholder and any Stockholder Associated Person that would be required to be disclosed in a proxy
statement soliciting proxies for the election of such person as a director in an election contest (even if an election contest is not
involved) or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14
of the Exchange Act and the rules and regulations promulgated thereunder, (Q) a description of all direct and indirect compensation
and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships,
between or among such stockholder or any Stockholder Associated Person, or others acting in concert therewith, on the one hand, and each
proposed nominee, and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including,
without limitation all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if
the stockholder making the nomination and any Stockholder Associated Person, or any person acting in concert therewith, was the “registrant”
for purposes of such rule and the nominee was a director or executive officer of such registrant, (R) any direct or indirect
interest of such stockholder in any contract with the Corporation or any affiliate of the Corporation (including any employment agreement,
collective bargaining agreement or consulting agreement), (S) a complete and accurate description of any pending, or to such stockholder’s
knowledge, threatened, legal proceeding in which such stockholder is a party or participant involving the Corporation or, to such stockholder’s
knowledge, any current or former officer, director, affiliate or associate of the Corporation, (T) a representation that the stockholder
will provide the Corporation with the updates and supplements required by Section 3.2(e), (U) a statement of whether
or not such stockholder, its qualified representatives and/or any Stockholder Associated Person intend to solicit proxies or votes in
support of such director nominees or nomination in accordance with Rule 14a-19 promulgated under the Exchange Act (and if so, such
statement shall also include an undertaking that such stockholder will deliver to beneficial owners of shares representing at least 67%
of the voting power of the stock entitled to vote generally in the election of directors either (1) at least 20 calendar days before
the annual meeting, a copy of its definitive proxy statement for the solicitation of proxies for its director candidates, or (2) at
least 40 calendar days before the annual meeting a Notice of Internet Availability of Proxy Materials that would satisfy the requirements
of Rule 14a-16(d) of the Exchange Act), and (V) a representation that the stockholder has complied with all applicable
requirements of state law and the Exchange Act with respect to matters set forth in this Section 3.2. Such notice must be
accompanied by a written consent of each proposed nominee to being named as a nominee in the Corporation’s proxy statement and to
serve as a director if elected and a representation that such nominee currently intends to serve as a director for the full term for which
such nominee is standing for election. With respect to each person, if any, whom the stockholder proposes to nominate for election to
the Board, a stockholder’s notice must, in addition to the matters set forth above in this paragraph (d), also include a completed
and signed questionnaire, representation and agreement required by Section 3.3 of these By-Laws. The Corporation may require
any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of
such proposed nominee to serve as an independent director of the Corporation or that could be material to a reasonable stockholder’s
understanding of the independence, or lack thereof, of such nominee. If requested by the Corporation, any supplemental information required
under this Section 3.2(d) shall be provided by the stockholder within 10 days after it has been requested by the Corporation.
In addition, the Board may require any proposed nominee to submit to interviews with the Board or any committee thereof, and such proposed
nominee shall make himself or herself available for any such interviews within no less than 10 days following the date of such request.
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(e) A
stockholder providing notice of a director nomination shall further update and supplement such notice, if necessary, so that the information
provided or required to be provided in such notice pursuant to this Section 3.2 shall be true and correct as of the record
date for the meeting and as of the date that is 10 business days prior to the meeting or any adjournment or postponement thereof, and
such update and supplement shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation
(i) in the case of the update and supplement required to be made as of the record date for the meeting, not later than five business
days after such record date and (ii) in the case of the update and supplement required to be made as of 10 business days prior to
the meeting or any adjournment or postponement thereof, as applicable, not later than eight business days prior to the date for the meeting
or any adjournment or postponement thereof. For the avoidance of doubt, any information provided pursuant to this Section 3.2(e) shall
not be deemed to cure any deficiencies in a notice previously delivered pursuant to this Section 3.2 and shall not extend
the time period for the delivery of notice pursuant to this Section 3.2. If a stockholder fails to provide any written update
or supplement in accordance with this Section 3.2(e), the information as to which such written update or supplement relates
may be deemed not to have been provided in accordance with this Section 3.2.
(f) If
any information submitted pursuant to this Section 3.2 shall be inaccurate in any material respect, such information shall
be deemed not to have been provided in accordance with this Section 3.2. The nominating stockholder shall notify the Secretary
in writing at the principal executive offices of the Corporation of any material inaccuracy or material change in any information submitted
pursuant to this Section 3.2 (including if the stockholder or any Stockholder Associated Person no longer intends to solicit
proxies in accordance with the representation made pursuant to Section 3.2(d)(ii)(U)) within two business days after becoming
aware of such inaccuracy or change. Upon written request of the Secretary on behalf of the Board (or a duly authorized committee thereof),
the nominating stockholder shall provide, within five business days after delivery of such request (or such earlier period as may be specified
in such request), (i) written verification, reasonably satisfactory to the Board or any authorized officer of the Corporation, to
demonstrate the accuracy of any information submitted by such stockholder pursuant to this Section 3.2 and (ii) a written
affirmation of any information submitted by such stockholder pursuant to this Section 3.2 as of an earlier date. If the nominating
stockholder fails to provide such written verification or affirmation within such period, the information as to which written verification
or affirmation was requested may be deemed not to have been provided in accordance with this Section 3.2.
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(g) Notwithstanding
the foregoing provisions of this Section 3.2, unless otherwise required by law, no stockholder shall solicit proxies in support
of director nominees other than the Corporation’s nominees unless such stockholder has complied with Rule 14a-19 promulgated
under the Exchange Act in connection with the solicitation of such proxies. If (i) any stockholder provides notice pursuant to Rule 14a-19(b) under
the Exchange Act and (ii) such stockholder subsequently fails to comply with the requirements of Rule 14a-19(a)(2) or (3) under
the Exchange Act (as determined by the Board or an officer designated thereby), then the Corporation shall disregard any proxies for any
proposed nominees on the Corporation’s proxy card other than the Corporation’s nominees, notwithstanding that proxies in favor
thereof may have been received by the Corporation. Upon request by the Corporation, if any stockholder provides notice pursuant to Rule 14a-19(b) under
the Exchange Act, such stockholder shall deliver to the Secretary, no later than five business days prior to the applicable meeting, reasonable
evidence that the requirements of Rule 14a-19(a)(3) under the Exchange Act have been satisfied.
(h) The
Board (or an officer designated thereby) shall have the power and the duty to determine whether a nomination has been made in accordance
with the provisions set forth in this Section 3.2, and, if the Board or such officer determines that any nomination was not
made in accordance with the provisions of this Section 3.2, such nomination shall not be considered at the meeting in question.
(i) In
addition to the provisions of this Section 3.2, a stockholder shall also comply with all of the applicable requirements of
the Exchange Act and the rules and regulations thereunder with respect to the matters set forth herein.
(j) Notwithstanding
the foregoing provisions of this Section 3.2, if the stockholder (or a qualified representative of the stockholder) does not
appear at the meeting of stockholders of the Corporation to present the nomination, such nomination shall be disregarded, notwithstanding
that proxies in respect of such nomination may have been received by the Corporation.
(k) Nothing
in this Section 3.2 shall be deemed to affect any rights of the holders of Preferred Stock to nominate and elect directors
pursuant to the Certificate of Incorporation or the right of the Board to fill newly created directorships and vacancies on the Board
pursuant to the Certificate of Incorporation.
(l) Notwithstanding
anything to the contrary contained in this Section 3.2, the notice procedures set forth in paragraphs (b), (c),
(d), (e) or (f) of this Section 3.2 with respect to any annual or special meeting of stockholders
shall not apply to a nomination made by a stockholder holding at least 25% of the Class B Common Stock of the Corporation.
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Section 3.3 Submission
of Questionnaire, Representation and Agreement. To be eligible to be a nominee for election or reelection as a director of the Corporation,
a person must deliver (in accordance with the time periods prescribed for delivery of notice under Section 3.2 of these By-Laws
or, in the case of a nomination made by or at the direction of the Board or by a stockholder holding at least 25% of the Class B
Common Stock of the Corporation, in accordance with such time periods as the Board may from time to time prescribe) to the Secretary at
the principal executive offices of the Corporation a written questionnaire with respect to the background and qualification of such person
and the background of any other person or entity on whose behalf the nomination is being made in the form required by the Corporation
(which form such nominating stockholder shall request in writing from the Secretary prior to submitting notice and which the Secretary
shall provide to such nominating stockholder within 10 days after receiving such request), and a written representation and agreement
in the form required by the Corporation (which form such nominating stockholder shall request in writing from the Secretary prior to submitting
notice and which Secretary shall provide to such nominating stockholder within 10 days after receiving such request) providing that, among
other things, such person (a) is not and will not become a party to (i) any agreement, arrangement or understanding with, and
has not given any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Corporation,
will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation
or (ii) any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a director
of the Corporation, with such person’s fiduciary duties under applicable law, (b) is not and will not become a party to any
agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation,
reimbursement or indemnification in connection with service or action as a director that has not been disclosed to the Corporation, and
(c) in such person’s individual capacity and on behalf of any person or entity on whose behalf the nomination is being made,
if elected as a director of the Corporation, will be and remain in compliance with all applicable rules of any securities exchanges
upon which the Corporation’s securities are listed, the Certificate of Incorporation, these By-Laws and all applicable policies
and guidelines of the Corporation publicly disclosed from time to time, including, without limitation, those relating to corporate governance,
conflict of interest, confidentiality, stock ownership and securities trading.
Section 3.4 Compensation.
Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, the Board shall have the authority to fix the compensation
of directors. The directors may be reimbursed their expenses, if any, of attendance at each meeting of the Board and may be paid either
a fixed sum for attendance at each meeting of the Board or other compensation as director. No such payment shall preclude any director
from serving the Corporation in any other capacity and receiving compensation therefor. Members of committees of the Board may be allowed
like compensation and reimbursement of expenses for service on the committee.
ARTICLE IV
BOARD MEETINGS
Section 4.1 Annual
Meetings. The Board shall meet as soon as practicable after the adjournment of each annual stockholders meeting at the place of the
annual stockholders meeting, if any, unless the Board shall fix another time and place and give notice thereof in the manner required
herein for special meetings of the Board. No notice to the directors shall be necessary to legally convene this meeting, except as provided
in this Section 4.1.
Section 4.2 Regular
Meetings. Regularly scheduled, periodic meetings of the Board may be held without notice at such times, dates and places as shall
from time to time be determined by the Board.
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Section 4.3 Special
Meetings. Special meetings of the Board (a) may be called by the Chairman of the Board or Chief Executive Officer and (b) shall
be called by the Chairman of the Board, Chief Executive Officer or Secretary on the written request of at least a majority of directors
then in office, or the sole director, as the case may be, and shall be held at such time, date and place as may be determined by the person
calling the meeting or, if called upon the request of directors or the sole director, as specified in such written request. Notice of
each special meeting of the Board shall be given, as provided in Section 9.3, to each director (i) at least 24 hours
before the meeting if such notice is oral notice given personally or by telephone or written notice given by hand delivery or by means
of a form of electronic transmission and delivery; (ii) at least two days before the meeting if such notice is sent by a nationally
recognized overnight delivery service; and (iii) at least five days before the meeting if such notice is sent through the United
States mail. If the Secretary shall fail or refuse to give such notice, then the notice may be given by the officer who called the meeting
or the directors who requested the meeting. Any and all business that may be transacted at a regular meeting of the Board may be transacted
at a special meeting. Except as may be otherwise expressly provided by applicable law, the Certificate of Incorporation, or these By-Laws,
neither the business to be transacted at, nor the purpose of, any special meeting need be specified in the notice or waiver of notice
of such meeting. A special meeting may be held at any time without notice if all the directors are present or if those not present waive
notice of the meeting in accordance with Section 9.4.
Section 4.4 Quorum;
Required Vote. A majority of the Whole Board shall constitute a quorum for the transaction of business at any meeting of the Board,
and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board, except as
may be otherwise specifically provided by applicable law, the Certificate of Incorporation or these By-Laws. For purposes of these By-Laws,
the term “Whole Board” shall mean the total number of authorized directors whether or not there exist any vacancies
in previously authorized directorships. If a quorum shall not be present at any meeting, a majority of the directors present may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present.
Section 4.5 Consent
In Lieu of Meeting. Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, any action required or permitted
to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all members of the Board or committee,
as the case may be, consent thereto in writing or by electronic transmission, and any consent may be documented, signed and delivered
in any manner permitted by Section 116 of the DGCL. After an action is taken, the writing or writings or electronic transmission
or transmissions (or paper reproductions thereof) shall be filed with the minutes of proceedings of the Board or committee. Such filing
shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic
form.
Section 4.6 Organization.
The chairman of each meeting of the Board shall be the Chairman of the Board or, in the absence (or inability or refusal to act) of the
Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) or, in the absence (or inability or refusal to act)
of the Chief Executive Officer or if the Chief Executive Officer is not a director, the President (if he or she shall be a director) or
in the absence (or inability or refusal to act) of the President or if the President is not a director, a chairman elected from the directors
present. The Secretary shall act as secretary of all meetings of the Board. In the absence (or inability or refusal to act) of the Secretary,
an Assistant Secretary shall perform the duties of the Secretary at such meeting. In the absence (or inability or refusal to act) of the
Secretary and all Assistant Secretaries, the chairman of the meeting may appoint any person to act as secretary of the meeting.
ARTICLE V
COMMITTEES OF DIRECTORS
Section 5.1 Establishment.
The Board may designate one or more committees, including but not limited to an Audit Committee, Compensation Committee and Nominating
and Corporate Governance Committee, each committee to consist of one or more of the directors of the Corporation. Each committee shall
keep regular minutes of its meetings and report the same to the Board when required. The Board shall have the power at any time to fill
vacancies in, to change the membership of, or to dissolve any such committee.
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Section 5.2 Available
Powers. Any committee established pursuant to Section 5.1 hereof, to the extent permitted by applicable law and by resolution
of the Board, shall have and may exercise all of the powers and authority of the Board in the management of the business and affairs of
the Corporation, and may authorize the seal of the Corporation to be affixed to all papers that may require it.
Section 5.3 Alternate
Members. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified
member at any meeting of such committee.
Section 5.4 Procedures.
Unless the Board otherwise provides, the time, date, place, if any, and notice of meetings of a committee shall be determined by such
committee. At meetings of a committee, a majority of the number of members of the committee (but not including any alternate member, unless
such alternate member has replaced any absent or disqualified member at the time of, or in connection with, such meeting) shall constitute
a quorum for the transaction of business. The act of a majority of the members present at any meeting at which a quorum is present shall
be the act of the committee, except as otherwise specifically provided by applicable law, the Certificate of Incorporation, these By-Laws
or the Board. If a quorum is not present at a meeting of a committee, the members present may adjourn the meeting from time to time, without
notice other than an announcement at the meeting, until a quorum is present. Unless the Board otherwise provides and except as provided
in these By-Laws, each committee designated by the Board may make, alter, amend and repeal rules for the conduct of its business.
In the absence of such rules each committee shall conduct its business in the same manner as the Board is authorized to conduct its
business pursuant to Article III and Article IV of these By-Laws.
ARTICLE VI
OFFICERS
Section 6.1 Officers.
The officers of the Corporation elected by the Board shall be a Chairman of the Board, a Chief Executive Officer, a President, a Treasurer,
a Secretary and such other officers (including without limitation a Chief Financial Officer, Vice Presidents, Assistant Secretaries and
Assistant Treasurers) as the Board from time to time may determine. Officers elected by the Board shall each have such powers and duties
as generally pertain to their respective offices, subject to the specific provisions of this Article VI. Such officers shall
also have such powers and duties as from time to time may be conferred by the Board. The Chairman of the Board, Chief Executive Officer,
or President may also appoint such other officers (including without limitation one or more Vice Presidents and Controllers) as may be
necessary or desirable for the conduct of the business of the Corporation. Such other officers shall have such powers and duties and shall
hold their offices for such terms as may be provided in these By-Laws or as may be prescribed by the Board or, if such officer has been
appointed by the Chairman of the Board, Chief Executive Officer or President, as may be prescribed by the appointing officer.
(a) Chairman
of the Board. The Chairman of the Board shall preside when present at all meetings of the stockholders and the Board. The Chairman
of the Board shall advise and counsel the Chief Executive Officer and other officers and shall exercise such powers and perform such duties
as shall be assigned to or required of the Chairman of the Board from time to time by the Board or these By-Laws. The Chairman of the
Board must be a director of the Corporation.
(b) Chief
Executive Officer. The Chief Executive Officer shall be the chief executive officer of the Corporation, shall have general supervision
of the affairs of the Corporation and general control of all of its business subject to the ultimate authority of the Board, and shall
be responsible for the execution of the policies of the Board. In the absence (or inability or refusal to act) of the Chairman of the
Board, the Chief Executive Officer (if he or she shall be a director) shall preside when present at all meetings of the stockholders and
the Board.
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(c) President.
The President shall be the chief operating officer of the Corporation and shall, subject to the authority of the Chief Executive Officer
and the Board, have general management and control of the day-to-day business operations of the Corporation and shall consult with and
report to the Chief Executive Officer. The President shall put into operation the business policies of the Corporation as determined by
the Chief Executive Officer and the Board and as communicated to the President by the Chief Executive Officer and the Board. The President
shall make recommendations to the Chief Executive Officer on all operational matters that would normally be reserved for the final executive
responsibility of the Chief Executive Officer. In the absence (or inability or refusal to act) of the Chairman of the Board and Chief
Executive Officer, the President (if he or she shall be a director) shall preside when present at all meetings of the stockholders and
the Board.
(d) Vice
Presidents. In the absence (or inability or refusal to act) of the President, the Vice President (or in the event there be more than
one Vice President, the Vice Presidents in the order designated by the Board) shall perform the duties and have the powers of the President.
Any one or more of the Vice Presidents may be given an additional designation of rank or function.
(e) Secretary.
(i) The
Secretary shall attend all meetings of the stockholders, the Board and (as required) committees of the Board and shall record the proceedings
of such meetings in books to be kept for that purpose. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders
and special meetings of the Board and shall perform such other duties as may be prescribed by the Board, the Chairman of the Board, Chief
Executive Officer or the President. The Secretary shall have custody of the corporate seal of the Corporation and the Secretary, or any
Assistant Secretary, shall have authority to affix the same to any instrument requiring it, and when so affixed, it may be attested by
his or her signature or by the signature of such Assistant Secretary. The Board may give general authority to any other officer to affix
the seal of the Corporation and to attest the affixing thereof by his or her signature.
(ii) The
Secretary shall keep, or cause to be kept, at the principal executive office of the Corporation or at the office of the Corporation’s
transfer agent or registrar, if one has been appointed, a stock ledger, or duplicate stock ledger, showing the names of the stockholders
and their addresses, the number and classes of shares held by each and, with respect to certificated shares, the number and date of certificates
issued for the same and the number and date of certificates cancelled.
(f) Assistant
Secretaries. The Assistant Secretary or, if there be more than one, the Assistant Secretaries in the order determined by the Board
shall, in the absence (or inability or refusal to act) of the Secretary, perform the duties and have the powers of the Secretary.
(g) Treasurer.
The Treasurer shall perform all duties commonly incident to that office (including, without limitation, the care and custody of the funds
and securities of the Corporation which from time to time may come into the Treasurer’s hands and the deposit of the funds of the
Corporation in such banks or trust companies as the Board, the Chief Executive Officer, or the President may authorize).
(h) Assistant
Treasurers. The Assistant Treasurer or, if there shall be more than one, the Assistant Treasurers in the order determined by the Board
shall, in the absence (or inability or refusal to act) of the Treasurer, perform the duties and exercise the powers of the Treasurer.
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Section 6.2 Term of
Office; Removal; Vacancies. All officers elected by the Board shall hold office until their successors are duly elected and qualified
or until their earlier death, resignation, retirement, disqualification, or removal from office. Any officer may be removed, with or without
cause, at any time by the Board. Any officer appointed by the Chairman of the Board, Chief Executive Officer, or President may also be
removed, with or without cause, by the Chairman of the Board, Chief Executive Officer, or President, as the case may be, unless the Board
otherwise provides. Any vacancy occurring in any elected office of the Corporation may be filled by the Board. Any vacancy occurring in
any office appointed by the Chairman of the Board, Chief Executive Officer, or President may be filled by the Chairman of the Board, Chief
Executive Officer, or President, as the case may be, unless the Board then determines that such office shall thereupon be elected by the
Board, in which case the Board shall elect such officer.
Section 6.3 Other
Officers. The Board may delegate the power to appoint such other officers and agents, and may also remove such officers and agents
or delegate the power to remove same, as it shall from time to time deem necessary or desirable.
Section 6.4 Multiple
Officeholders; Stockholder and Director Officers; Delegation. Any number of offices may be held by the same person unless the Certificate
of Incorporation or these By-Laws otherwise provide. Officers need not be stockholders or residents of the State of Delaware. The Board
may from time to time delegate the powers or duties of any officer to any other officers or agents, notwithstanding any other provisions
of these By-Laws.
ARTICLE VII
SHARES
Section 7.1 Certificated
and Uncertificated Shares. The shares of the Corporation shall be represented by certificates, provided that the Board may
provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares. Any
such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation. Notwithstanding
the adoption of such a resolution by the Board, every holder of stock represented by certificates and upon request every holder of uncertificated
shares shall be entitled to have a certificate signed in accordance with Section 7.3 representing the number of shares registered
in certificate form. The Corporation shall not have power to issue a certificate representing shares in bearer form.
Section 7.2 Multiple
Classes of Stock. If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class,
the Corporation shall (a) cause the powers, designations, preferences and relative, participating, optional or other special rights
of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences or rights to be set forth
in full or summarized on the face or back of any certificate that the Corporation issues to represent shares of such class or series of
stock or (b) in the case of uncertificated shares, within a reasonable time after the issuance or transfer of such shares, send to
the registered owner thereof a written notice containing the information required to be set forth on certificates as specified in clause
(a) above; provided, however, that, except as otherwise provided by applicable law, in lieu of the foregoing requirements,
there may be set forth on the face or back of such certificate or, in the case of uncertificated shares, on such written notice a statement
that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions
of such preferences or rights.
Section 7.3 Signatures.
Each certificate representing capital stock of the Corporation shall be signed by or in the name of the Corporation by any two authorized
officers of the Corporation. Any or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, such certificate may be issued by the Corporation with the same effect as if such person
were such officer, transfer agent or registrar on the date of issue.
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Section 7.4 Consideration
and Payment for Shares.
(a) Subject
to applicable law and the Certificate of Incorporation, shares of stock may be issued for such consideration, having in the case of shares
with par value a value not less than the par value thereof, and to such persons, as approved by the Board in any manner permitted by the
DGCL. The consideration may consist of any tangible or intangible property or benefit to the Corporation including cash, promissory notes,
services performed, contracts for services to be performed or other securities.
(b) Subject
to applicable law and the Certificate of Incorporation, the Corporation may issue the whole or any part of its shares as partly paid and
subject to call for the remainder of the consideration to be paid therefor. Upon the face or back of each certificate issued to represent
any partly paid shares of capital stock or upon the books and records of the Corporation in the case of partly paid uncertificated shares,
the total amount of the consideration to be paid therefor and the amount paid thereon shall be stated.
Section 7.5 Lost,
Destroyed or Wrongfully Taken Certificates.
(a) If
an owner of a certificate representing shares claims that such certificate has been lost, destroyed or wrongfully taken, the Corporation
shall issue a new certificate representing such shares or such shares in uncertificated form if the owner: (i) requests such a new
certificate before the Corporation has notice that the certificate representing such shares has been acquired by a protected purchaser;
(ii) if requested by the Corporation, delivers to the Corporation a bond sufficient to indemnify the Corporation against any claim
that may be made against the Corporation on account of the alleged loss, wrongful taking or destruction of such certificate or the issuance
of such new certificate or uncertificated shares; and (iii) satisfies other reasonable requirements imposed by the Corporation.
(b) If
a certificate representing shares has been lost, apparently destroyed or wrongfully taken, and the owner fails to notify the Corporation
of that fact within a reasonable time after the owner has notice of such loss, apparent destruction or wrongful taking and the Corporation
registers a transfer of such shares before receiving notification, the owner shall be precluded from asserting against the Corporation
any claim for registering such transfer or a claim to a new certificate representing such shares or such shares in uncertificated form.
Section 7.6 Transfer
of Stock.
(a) If
a certificate representing shares of the Corporation is presented to the Corporation with a stock power or other indorsement requesting
the registration of transfer of such shares or an instruction is presented to the Corporation requesting the registration of transfer
of uncertificated shares, the Corporation shall register the transfer as requested if:
(i) in
the case of certificated shares, the certificate representing such shares has been surrendered;
(ii) (A) with
respect to certificated shares, the indorsement is made by the person specified by the certificate as entitled to such shares; (B) with
respect to uncertificated shares, an instruction is made by the registered owner of such uncertificated shares; or (C) with respect
to certificated shares or uncertificated shares, the indorsement or instruction is made by any other appropriate person or by an agent
who has actual authority to act on behalf of the appropriate person;
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(iii) the
Corporation has received a guarantee of signature of the person signing such indorsement or instruction or such other reasonable assurance
that the indorsement or instruction is genuine and authorized as the Corporation may request;
(iv) the
transfer does not violate any restriction on transfer imposed by the Corporation that is enforceable in accordance with Section 7.8(a);
and
(v) such
other conditions for such transfer as shall be provided for under applicable law have been satisfied.
(b) Whenever
any transfer of shares shall be made for collateral security and not absolutely, the Corporation shall so record such fact in the entry
of transfer if, when the certificate for such shares is presented to the Corporation for transfer or, if such shares are uncertificated,
when the instruction for registration of transfer thereof is presented to the Corporation, both the transferor and transferee request
the Corporation to do so.
Section 7.7 Registered
Stockholders. Before due presentment for registration of transfer of a certificate representing shares of the Corporation or of an
instruction requesting registration of transfer of uncertificated shares, the Corporation may treat the registered owner as the person
exclusively entitled to inspect for any proper purpose the stock ledger and the other books and records of the Corporation, vote such
shares, receive dividends or notifications with respect to such shares and otherwise exercise all the rights and powers of the owner of
such shares, except that a person who is the beneficial owner of such shares (if held in a voting trust or by a nominee on behalf of such
person) may, upon providing documentary evidence of beneficial ownership of such shares and satisfying such other conditions as are provided
under applicable law, also so inspect the books and records of the Corporation.
Section 7.8 Effect
of the Corporation’s Restriction on Transfer.
(a) A
written restriction on the transfer or registration of transfer of shares of the Corporation or on the amount of shares of the Corporation
that may be owned by any person or group of persons, if permitted by the DGCL and noted conspicuously on the certificate representing
such shares or, in the case of uncertificated shares, contained in a notice given by the Corporation to the registered owner of such shares
within a reasonable time after the issuance or transfer of such shares, may be enforced against the holder of such shares or any successor
or transferee of the holder including an executor, administrator, trustee, guardian or other fiduciary entrusted with like responsibility
for the person or estate of the holder.
(b) A
restriction imposed by the Corporation on the transfer or the registration of shares of the Corporation or on the amount of shares of
the Corporation that may be owned by any person or group of persons, even if otherwise lawful, is ineffective against a person without
actual knowledge of such restriction unless: (i) the shares are certificated and such restriction is noted conspicuously on the certificate;
or (ii) the shares are uncertificated and such restriction was contained in a notice given by the Corporation to the registered owner
of such shares within a reasonable time after the issuance or transfer of such shares.
Section 7.9 Regulations.
The Board shall have power and authority to make such additional rules and regulations, subject to any applicable requirement of
law, as the Board may deem necessary and appropriate with respect to the issue, transfer or registration of transfer of shares of stock
or certificates representing shares. The Board may appoint one or more transfer agents or registrars and may require for the validity
thereof that certificates representing shares bear the signature of any transfer agent or registrar so appointed.
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ARTICLE VIII
INDEMNIFICATION
Section 8.1 Right
to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any
threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”),
by reason of the fact that he or she is or was a director or officer of the Corporation or, while a director or officer of the Corporation,
is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (hereinafter a
“Covered Person”), whether the basis of such proceeding is alleged action in an official capacity as a director,
officer, employee or agent, or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and
held harmless by the Corporation to the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, against
all expenses, liability and loss (including, without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes and penalties
and amounts paid in settlement) reasonably incurred or suffered by such Covered Person in connection with such proceeding; provided,
however, that, except as provided in Section 8.3 with respect to proceedings to enforce rights to indemnification and
advancement of expenses, the Corporation shall indemnify a Covered Person in connection with a proceeding (or part thereof) initiated
by such Covered Person only if such proceeding (or part thereof) was authorized by the Board.
Section 8.2 Right
to Advancement of Expenses. In addition to the right to indemnification conferred in Section 8.1, a Covered Person shall
also have the right to be paid by the Corporation the expenses (including, without limitation, attorneys’ fees) incurred in defending,
testifying, or otherwise participating in any such proceeding in advance of its final disposition (hereinafter an “advancement
of expenses”); provided, however, that, if the DGCL requires, an advancement of expenses incurred by a Covered Person
in his or her capacity as a director or officer of the Corporation (and not in any other capacity in which service was or is rendered
by such Covered Person, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation
of an undertaking (hereinafter an “undertaking”), by or on behalf of such Covered Person, to repay all amounts
so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter
a “final adjudication”) that such Covered Person is not entitled to be indemnified for such expenses under this
Article VIII or otherwise.
Section 8.3 Right
of Indemnitee to Bring Suit. If a claim under Section 8.1 or Section 8.2 is not paid in full by the Corporation
within 60 days after a written claim therefor has been received by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be 20 days, the Covered Person may at any time thereafter bring suit against the Corporation
to recover the unpaid amount of the claim to the fullest extent permitted by law. If successful in whole or in part in any such suit,
or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Covered Person
shall also be entitled to be paid the expense of prosecuting or defending such suit. In any suit brought by (a) the Covered Person
to enforce a right to indemnification hereunder (but not in a suit brought by a Covered Person to enforce a right to an advancement of
expenses) it shall be a defense that, and (b) the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking,
the Corporation shall be entitled to recover such expenses upon a final adjudication that, the Covered Person has not met any applicable
standard for indemnification set forth in the DGCL. Neither the failure of the Corporation (including its directors who are not parties
to such action, a committee of such directors, independent legal counsel, or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the Covered Person is proper in the circumstances because the Covered Person has met
the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including a determination by
its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) that
the Covered Person has not met such applicable standard of conduct, shall create a presumption that the Covered Person has not met the
applicable standard of conduct or, in the case of such a suit brought by the Covered Person, shall be a defense to such suit. In any suit
brought by the Covered Person to enforce a right to indemnification or to an advancement of expenses hereunder, or by the Corporation
to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the Covered Person is not entitled
to be indemnified, or to such advancement of expenses, under this Article VIII or otherwise shall be on the Corporation. If
the Corporation shall have made a determination that the claimant is entitled to indemnification, the Corporation shall be bound by such
determination in any judicial proceeding commenced pursuant to Section 8.3. The Corporation shall be precluded from asserting in
any judicial proceeding commenced pursuant to Section 8.3 that the procedures and presumptions of this Article VIII are not
valid, binding and enforceable and shall stipulate in such proceeding that the Corporation is bound by all the provisions of this Article VIII.
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Section 8.4 Non-Exclusivity
of Rights. The rights provided to Covered Persons pursuant to this Article VIII shall not be exclusive of any other right
that any Covered Person may have or hereafter acquire under applicable law, the Certificate of Incorporation, these By-Laws, an agreement,
a vote of stockholders or disinterested directors, or otherwise. The Corporation is specifically authorized to enter into individual contracts
with any or all of its directors, officers, employees or agents with respect to indemnification and advances, to the fullest extent not
prohibited by the DGCL.
Section 8.5 Insurance.
The Corporation may maintain insurance, at its expense, to protect itself and/or any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust, other enterprise or nonprofit entity against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL.
Section 8.6 Indemnification
of Other Persons. This Article VIII shall not limit the right of the Corporation to the extent and in the manner permitted
by law to indemnify and to advance expenses to persons other than Covered Persons. Without limiting the foregoing, the Corporation may,
to the extent authorized from time to time by the Board, grant rights to indemnification and to the advancement of expenses to any employee
or agent of the Corporation and to any other person who is or was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with
respect to an employee benefit plan, to the fullest extent of the provisions of this Article VIII with respect to the indemnification
and advancement of expenses of Covered Persons under this Article VIII.
Section 8.7 Repeal,
Amendment or Modification. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer of the
Corporation, or has ceased to serve at the request of the Corporation as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit
plan, and shall inure to the benefit of the heirs, executors and administrators of such a person. Any repeal, amendment or modification
of this Article VIII by the Board or the stockholders of the Corporation or by changes in applicable law, or the adoption
of any other provision of these By-Laws inconsistent with this Article VIII, shall, to the extent permitted by applicable
law, be prospective only (except to the extent such amendment, modification or change in applicable law permits the Corporation to provide
broader indemnification rights to Covered Persons on a retroactive basis than permitted prior thereto), and will not in any way diminish
or adversely affect any right or protection existing hereunder in respect of any act or omission occurring prior to such repeal, amendment,
modification or adoption of such inconsistent provision.
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Section 8.8 Certain
Definitions. For purposes of this Article VIII, (a) references to “other enterprise” shall include any
employee benefit plan; (b) references to “fines” shall include any excise taxes assessed on a person with respect to
an employee benefit plan; (c) references to “serving at the request of the Corporation” shall include any service that
imposes duties on, or involves services by, a person with respect to any employee benefit plan, its participants, or beneficiaries; and
(d) a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interest of the Corporation”
for purposes of Section 145 of the DGCL.
Section 8.9 Contract
Rights. The rights provided to Covered Persons pursuant to this Article VIII (a) shall be contract rights based upon
good and valuable consideration, pursuant to which a Covered Person may bring suit as if the provisions of this Article VIII
were set forth in a separate written contract between the Covered Person and the Corporation, (b) shall fully vest at the time the
Covered Person first assumes his or her position as a director or officer of the Corporation, (c) are intended to be retroactive
and shall be available with respect to any act or omission occurring prior to the adoption of this Article VIII, (d) shall
continue as to a Covered Person who has ceased to be a director or officer of the Corporation, and (e) shall inure to the benefit
of the Covered Person’s heirs, executors and administrators.
Section 8.10 Severability.
If any provision or provisions of this Article VIII shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining provisions of this Article VIII shall not in any way be
affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Article VIII (including,
without limitation, each such portion of this Article VIII containing any such provision held to be invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Place
of Meetings. If the place of any meeting of stockholders, the Board or committee of the Board for which notice is required under these
By-Laws is not designated in the notice of such meeting, such meeting shall be held at the principal business office of the Corporation;
provided, however, if the Board has, in its sole discretion, determined that a meeting shall not be held at any place, but instead
shall be held by means of remote communication pursuant to Section 9.5 hereof, then such meeting shall not be held at any
place.
Section 9.2 Fixing
Certain Record Dates.
(a) In
order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof,
the Board may fix a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by the Board,
and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If the Board so fixes a record
date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board determines,
at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination.
If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of and to vote at a meeting of
stockholders shall be on the business day next preceding the day on which notice is given, or, if notice is waived, on the business day
next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting
of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for
determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders
entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote
in accordance with the foregoing provisions of this Section 9.2(a) at the adjourned meeting.
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(b) In
order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board may fix a record date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed,
the record date for determining stockholders for any such purpose shall be on the day on which the Board adopts the resolution relating
thereto.
Section 9.3 Means
of Giving Notice.
(a) Notice
to Directors. Whenever under applicable law, the Certificate of Incorporation or these By-Laws notice is required to be given to any
director, such notice shall be given either (i) in writing and sent by hand delivery, through the United States mail, or by a nationally
recognized overnight delivery service for next day delivery, (ii) by means of facsimile telecommunication or other form of electronic
transmission, or (iii) by oral notice given personally or by telephone. A notice to a director will be deemed given as follows: (i) if
given by hand delivery, orally, or by telephone, when actually received by the director, (ii) if sent through the United States mail,
when deposited in the United States mail, with postage and fees thereon prepaid, addressed to the director at the director’s address
appearing on the records of the Corporation, (iii) if sent for next day delivery by a nationally recognized overnight delivery service,
when deposited with such service, with fees thereon prepaid, addressed to the director at the director’s address appearing on the
records of the Corporation, (iv) if sent by facsimile telecommunication, when sent to the facsimile transmission number for such
director appearing on the records of the Corporation, (v) if sent by electronic mail, when sent to the electronic mail address for
such director appearing on the records of the Corporation, or (vi) if sent by any other form of electronic transmission, when sent
to the address, location or number (as applicable) for such director appearing on the records of the Corporation.
(b) Notice
to Stockholders. Whenever under applicable law, the Certificate of Incorporation or these By-Laws notice is required to be given to
any stockholder, such notice may be given (i) in writing and sent either by hand delivery, through the United States mail, or by
a nationally recognized overnight delivery service for next day delivery, or (ii) by means of a form of electronic transmission consented
to by the stockholder, to the extent permitted by, and subject to the conditions set forth in Section 232 of the DGCL. A notice to
a stockholder shall be deemed given as follows: (i) if given by hand delivery, when actually received by the stockholder, (ii) if
sent through the United States mail, when deposited in the United States mail, with postage and fees thereon prepaid, addressed to the
stockholder at the stockholder’s address appearing on the stock ledger of the Corporation, (iii) if sent for next day delivery
by a nationally recognized overnight delivery service, when deposited with such service, with fees thereon prepaid, addressed to the stockholder
at the stockholder’s address appearing on the stock ledger of the Corporation, and (iv) if given by a form of electronic transmission
consented to by the stockholder to whom the notice is given and otherwise meeting the requirements set forth above, (A) if by facsimile
transmission, when directed to a number at which the stockholder has consented to receive notice, (B) if by electronic mail, when
directed to an electronic mail address at which the stockholder has consented to receive notice, (C) if by a posting on an electronic
network together with separate notice to the stockholder of such specified posting, upon the later of (1) such posting and (2) the
giving of such separate notice, and (D) if by any other form of electronic transmission, when directed to the stockholder. A stockholder
may revoke such stockholder’s consent to receiving notice by means of electronic communication by giving written notice of such
revocation to the Corporation. Any such consent shall be deemed revoked if (1) the Corporation is unable to deliver by electronic
transmission two consecutive notices given by the Corporation in accordance with such consent and (2) such inability becomes known
to the Secretary or an Assistant Secretary or to the Corporation’s transfer agent, or other person responsible for the giving of
notice; provided, however, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or
other action.
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(c) Electronic
Transmission. “Electronic transmission” means any form of communication, not directly involving the physical
transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly
reproduced in paper form by such a recipient through an automated process, including but not limited to transmission by telex, facsimile
telecommunication, electronic mail, telegram and cablegram or any other manner permitted by the DGCL.
(d) Notice
to Stockholders Sharing Same Address. Without limiting the manner by which notice otherwise may be given effectively by the Corporation
to stockholders, any notice to stockholders given by the Corporation under any provision of the DGCL, the Certificate of Incorporation
or these By-Laws shall be effective if given by a single written notice to stockholders who share an address if consented to by the stockholders
at that address to whom such notice is given. A stockholder may revoke such stockholder’s consent by delivering written notice of
such revocation to the Corporation. Any stockholder who fails to object in writing to the Corporation within 60 days of having been given
written notice by the Corporation of its intention to send such a single written notice shall be deemed to have consented to receiving
such single written notice.
(e) Exceptions
to Notice Requirements. Whenever notice is required to be given, under the DGCL, the Certificate of Incorporation or these By-Laws,
to any person with whom communication is unlawful, the giving of such notice to such person shall not be required and there shall be no
duty to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any action or meeting
that shall be taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect
as if such notice had been duly given. If the action taken by the Corporation is such as to require the filing of a certificate with the
Secretary of State of Delaware, the certificate shall state, if such is the fact and if notice is required, that notice was given to all
persons entitled to receive notice except such persons with whom communication is unlawful.
Whenever notice is required
to be given by the Corporation, under any provision of the DGCL, the Certificate of Incorporation or these By-Laws, to any stockholder
to whom (1) notice of two consecutive annual meetings of stockholders and all notices of stockholder meetings or of the taking of
action by written consent of stockholders without a meeting to such stockholder during the period between such two consecutive annual
meetings, or (2) all, and at least two payments (if sent by first-class mail) of dividends or interest on securities during a 12-month
period, have been mailed addressed to such stockholder at such stockholder’s address as shown on the records of the Corporation
and have been returned undeliverable, the giving of such notice to such stockholder shall not be required. Any action or meeting that
shall be taken or held without notice to such stockholder shall have the same force and effect as if such notice had been duly given.
If any such stockholder shall deliver to the Corporation a written notice setting forth such stockholder’s then-current address,
the requirement that notice be given to such stockholder shall be reinstated. If the action taken by the Corporation is such as to require
the filing of a certificate with the Secretary of State of Delaware, the certificate need not state that notice was not given to persons
to whom notice was not required to be given pursuant to Section 230(b) of the DGCL. The exception in subsection (1) of
the first sentence of this paragraph to the requirement that notice be given shall not be applicable to any notice returned as undeliverable
if the notice was given by electronic transmission.
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Section 9.4 Waiver
of Notice. Whenever any notice is required to be given under applicable law, the Certificate of Incorporation, or these By-Laws, a
written waiver of such notice, signed before or after the date of such meeting by the person or persons entitled to said notice, or a
waiver by electronic transmission by the person entitled to said notice, shall be deemed equivalent to such required notice. All such
waivers shall be kept with the books of the Corporation. Attendance at a meeting shall constitute a waiver of notice of such meeting,
except where a person attends for the express purpose of objecting to the transaction of any business on the ground that the meeting was
not lawfully called or convened.
Section 9.5 Meeting
Attendance via Remote Communication Equipment.
(a) Stockholder
Meetings. If authorized by the Board in its sole discretion, and subject to such guidelines and procedures as the Board may adopt,
stockholders and proxyholders not physically present at a meeting of stockholders may, by means of remote communication:
(i) participate
in a meeting of stockholders; and
(ii) be
deemed present in person and vote at a meeting of stockholders, whether such meeting is to be held at a designated place, solely by means
of remote communication or held at a designated place and by means of remote communication, provided that (A) the Corporation
shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote
communication is a stockholder or proxyholder, (B) the Corporation shall implement reasonable measures to provide such stockholders
and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including
an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (C) if any stockholder
or proxyholder votes or takes other action at the meeting by means of remote communication, a record of such votes or other action shall
be maintained by the Corporation.
(b) Board
Meetings. Unless otherwise restricted by applicable law, the Certificate of Incorporation or these By-Laws, members of the Board or
any committee thereof may participate in a meeting of the Board or any committee thereof by means of conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear each other. Such participation in a meeting shall constitute
presence in person at the meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction
of any business on the ground that the meeting was not lawfully called or convened.
Section 9.6 Dividends.
The Board may from time to time declare, and the Corporation may pay, dividends (payable in cash, property or shares of the Corporation’s
capital stock) on the Corporation’s outstanding shares of capital stock, subject to applicable law and the Certificate of Incorporation.
Section 9.7 Reserves.
The Board may set apart out of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may
abolish any such reserve.
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Section 9.8 Contracts
and Negotiable Instruments. Except as otherwise provided by applicable law, the Certificate of Incorporation or these By-Laws, any
contract, bond, deed, lease, mortgage or other instrument may be executed and delivered in the name and on behalf of the Corporation by
such officer or officers or other employee or employees of the Corporation as the Board may from time to time authorize. Such authority
may be general or confined to specific instances as the Board may determine. The Chairman of the Board, the Chief Executive Officer, the
President or any Vice President may execute and deliver any contract, bond, deed, lease, mortgage or other instrument in the name and
on behalf of the Corporation. Subject to any restrictions imposed by the Board, the Chairman of the Board, Chief Executive Officer, President
or any Vice President may delegate powers to execute and deliver any contract, bond, deed, lease, mortgage or other instrument in the
name and on behalf of the Corporation to other officers or employees of the Corporation under such person’s supervision and authority,
it being understood, however, that any such delegation of power shall not relieve such officer of responsibility with respect to the exercise
of such delegated power.
Section 9.9 Fiscal
Year. The fiscal year of the Corporation shall be fixed by the Board.
Section 9.10 Seal.
The Board may adopt a corporate seal, which shall be in such form as the Board determines. The seal may be used by causing it or a facsimile
thereof to be impressed, affixed or otherwise reproduced.
Section 9.11 Books
and Records. The books and records of the Corporation may be kept within or outside the State of Delaware at such place or places
as may from time to time be designated by the Board.
Section 9.12 Resignation.
Any director, committee member or officer may resign by giving notice thereof in writing or by electronic transmission to the Chairman
of the Board, the Chief Executive Officer, the President or the Secretary. The resignation shall take effect at the time specified therein,
or at the time of receipt of such notice if no time is specified or the specified time is earlier than the time of such receipt. Unless
otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 9.13 Surety
Bonds. Such officers, employees and agents of the Corporation (if any) as the Chairman of the Board, Chief Executive Officer, the
President or the Board may direct, from time to time, shall be bonded for the faithful performance of their duties and for the restoration
to the Corporation, in case of their death, resignation, retirement, disqualification or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in their possession or under their control belonging to the Corporation, in such amounts and
by such surety companies as the Chairman of the Board, Chief Executive Officer, President or the Board may determine. The premiums on
such bonds shall be paid by the Corporation and the bonds so furnished shall be in the custody of the Secretary.
Section 9.14 Securities
of Other Corporations or Entities. Powers of attorney, proxies, waivers of notice of meeting, consents in writing and other instruments
relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chairman of the
Board, Chief Executive Officer, President or any Vice President. Any such officer, may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation
or other entity in which the Corporation may own securities, or to consent in writing, in the name of the Corporation as such holder,
to any action by such corporation or entity, and at any such meeting or with respect to any such consent shall possess and may exercise
any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have
exercised and possessed. The Board may from time to time confer like powers upon any other person or persons.
Section 9.15 Amendments.
The Board of Directors is authorized to make, repeal, alter, amend and rescind, in whole or in part, these By-Laws without the assent
or vote of the stockholders in any manner not inconsistent with the laws of the State of Delaware or the Certificate of Incorporation.
For so long as shares of Class B Common Stock remain outstanding, the affirmative vote of the holders of a majority in voting power
of all the then-outstanding shares of stock of the Corporation entitled to vote thereon, voting together as a single class, shall be required
in order for the stockholders of the Corporation to alter, amend, repeal or rescind, in whole or in part, any provision of the By-Laws
(including, without limitation, this Section 9.15) or to adopt any provision inconsistent therewith. Notwithstanding any other
provisions of these By-Laws or any provision of law that might otherwise permit a lesser vote of the stockholders, once no shares of Class B
Common Stock remain outstanding, in addition to any vote of the holders of any class or series of capital stock of the Corporation required
by the Certificate of Incorporation (including any certificate of designation relating to any series of Preferred Stock), these By-Laws
or applicable law, the affirmative vote of the holders of at least 66 2/3% in voting power of all the then-outstanding shares of stock
of the Corporation entitled to vote thereon, voting together as a single class, shall be required in order for the stockholders of the
Corporation to alter, amend, repeal or rescind, in whole or in part, any provision of these By-Laws (including, without limitation, this
Section 9.15) or to adopt any provision inconsistent herewith.
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EX-3.3 — EXHIBIT 3.3
EX-3.3
Filename: tm2611641d1_ex3-3.htm · Sequence: 5
Exhibit 3.3
CERTIFICATE OF DESIGNATION
SERIES A CONVERTIBLE PERPETUAL PREFERRED STOCK
OF
SUNCRETE, INC.
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
SUNCRETE, INC., a corporation
organized and existing under the General Corporation Law of the State of Delaware (the “Corporation”), in accordance
with the provisions of Section 103 thereof, DOES HEREBY CERTIFY:
That pursuant to the authority
conferred upon the Board of Directors by the Certificate of Incorporation of the Corporation, and pursuant to the provisions of Section 151
of the General Corporation Law of the State of Delaware, the Board of Directors, on April 8, 2026, duly adopted the following resolution
creating a series of Preferred Stock of the Corporation designated as “Series A Preferred Stock”:
RESOLVED, that pursuant to
the authority vested in the Board of Directors of the Corporation by the Certificate of Incorporation, a series of Preferred Stock, par
value $0.0001 per share, of the Corporation be and hereby is created, and that the designation and number of shares, and the voting and
other powers, preferences and relative, participating, optional or other rights of the shares of such series, and the qualifications,
limitations and restrictions thereof, are as follows:
1. Designation,
Amount and Par Value. The series of Preferred Stock shall be designated as Series A Convertible Perpetual Preferred Stock (the
“Series A Preferred Stock”), and the number of shares so designated shall be 26,000 shares. Each share of Series A
Preferred Stock shall have a par value of $0.0001 per share.
2. Definitions.
As used herein, the following
terms shall have the following meanings:
(a) “Board
of Directors” means the Board of Directors of the Corporation.
(b) “Business
Day” means any day other than a Saturday, Sunday or a day on which banks in New York, New York are authorized or required by
law to close.
(c) “Certificate
of Incorporation” means the Amended and Restated Certificate of Incorporation of the Corporation, as amended from time to time.
(d) “Common
Stock” means the Class A common stock, par value $0.0001 per share, of the Corporation.
(e) “Conversion
Date” means the date on which a Holder delivers a Conversion Notice to the Corporation or the Transfer Agent.
(f) “Conversion
Notice” has the meaning set forth in Section 8(b).
(g) “Conversion
Price” means the greater of (i) the Floor Price and (ii) the VWAP for the five (5) consecutive Trading Days ending
on and including the Trading Day immediately preceding the Conversion Date.
(h) “Conversion
Rate” means, with respect to each share of Series A Preferred Stock, the quotient of (i) the Stated Value of such
share as of the Conversion Date divided by (ii) the Conversion Price.
(i) “Corporation”
means Suncrete, Inc., a Delaware corporation.
(j) “Credit
Agreement” means that certain Credit Agreement dated as of July 29, 2024, among the Corporation’s subsidiaries, the
lenders party thereto, and Bank of America, N.A., as administrative agent, as amended, restated, supplemented or otherwise modified, refinanced,
or replaced from time to time.
(k) “Dividend
Payment Date” means, with respect to each Dividend Period, on or before the tenth (10th) day following the required delivery
date of the Corporation’s quarterly compliance certificate as required by its lenders under the Credit Agreement or, if no such
delivery is required, the last day of each calendar quarter.
(l) “Dividend
Period” means each calendar quarter (or portion thereof) during which Series A Preferred Stock is outstanding.
(m) “Dividend
Rate” means initially nine percent (9%) per annum, subject to increase per Section 4(d).
(n) “Floor
Price” means $18.00 per share of Common Stock, subject to equitable adjustment for stock splits, combinations and similar events.
(o) “Holder”
means a holder of record of shares of Series A Preferred Stock.
(p) “Junior
Stock” means the Common Stock, the Class B common stock, par value $0.0001 per share, of the Corporation and any other
class or series of stock of the Corporation that ranks junior to the Series A Preferred Stock as to dividend rights and rights upon
the liquidation, winding up and dissolution of the Corporation.
(q) “Liquidation”
has the meaning set forth in Section 5(a).
(r) “Liquidation
Preference” means, with respect to each share of Series A Preferred Stock, the Stated Value thereof plus all accrued and
unpaid dividends thereon.
(s) “Management
Agreement” means that certain Management and Consulting Agreement, dated as of July 29, 2024, by and among the Corporation
(as successor to Concrete Partners Holding, LLC) and Dothan Concrete Investments Management, LLC, a Texas limited liability company, as
the same has been or may be amended, restated, supplemented or otherwise modified.
(t) “Original
Issuance Date” means the date of initial issuance of shares of Series A Preferred Stock.
(u) “Parity
Stock” means any class or series of stock of the Corporation that ranks equally with the Series A Preferred Stock as to
dividend rights and rights upon the liquidation, winding up and dissolution of the Corporation.
(v) “Person”
means an individual, firm, proprietorship, partnership, corporation, limited liability company, limited partnership, association, joint
stock company, trust, joint venture, unincorporated organization or governmental authority.
(w) “Preferred
Equity Subordination Agreement” means a subordination agreement executed by each Holder in favor of the administrative agent
under the Credit Agreement, in form and substance satisfactory to such administrative agent.
(x) “Redemption
Date” has the meaning set forth in Section 6(a).
(y) “Redemption
Notice” has the meaning set forth in Section 6(a).
(z) “Redemption
Price” has the meaning set forth in Section 6(a).
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(aa) “Seed
Preferred Issuance Date” means July 29, 2024.
(bb) “Senior
Stock” means any class or series of stock of the Corporation that ranks senior to the Series A Preferred Stock as to dividend
rights or rights upon the liquidation, winding up and dissolution of the Corporation.
(cc) “Stated
Value” means, with respect to each share of Series A Preferred Stock, $1000.00 per share, subject to adjustment for any
stock splits, stock dividends, recapitalizations, combinations or similar transactions affecting the Series A Preferred Stock.
(dd) “Trading
Day” means any day on which (i) trading in the Common Stock generally occurs on the principal national securities exchange
on which the Common Stock is then listed or admitted to trading and (ii) a VWAP is available for such day.
(ee) “Transfer
Agent” means Continental Stock Transfer & Trust Company, or any successor transfer agent appointed by the Corporation
to act as transfer agent, registrar and paying agent for the Series A Preferred Stock.
(ff) “VWAP”
means, for any Trading Day, the per share volume-weighted average price of the Common Stock as displayed under the heading “Bloomberg
VWAP” on Bloomberg page “<equity> AQR” for the “ticker” corresponding to the Common Stock in
respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading
Day (or, if such volume-weighted average price is unavailable, the market value of one share of Common Stock on such Trading Day as determined,
using a volume-weighted average price method, by a nationally recognized independent investment banking firm retained for this purpose
by the Corporation).
3. Ranking.
The Series A Preferred
Stock shall rank, with respect to payment of dividends and distribution of assets upon the liquidation, winding up and dissolution of
the Corporation:
(a) senior
and prior to all classes of common stock and any other Junior Stock;
(b) on
parity with any Parity Stock; and
(c) junior
to any Senior Stock and to all existing and future indebtedness of the Corporation and its subsidiaries.
4. Dividends.
(a) Holders
of shares of Series A Preferred Stock shall be entitled to receive dividends on each outstanding share of Series A Preferred
Stock, which shall accrue on a cumulative basis, whether or not declared by the Board of Directors, at an annual rate equal to the Dividend
Rate multiplied by the Stated Value plus all previously accrued but unpaid dividends thereon. Such dividends shall accrue on each share
of Series A Preferred Stock from the Original Issuance Date for all shares issued on the Original Issuance Date (or, if later, from
the date of issuance of such share) and shall be compounded quarterly on the last day of each calendar quarter.
(b) Dividends
on the Series A Preferred Stock shall be payable quarterly on each Dividend Payment Date out of funds legally available therefor.
The Corporation shall use commercially reasonable efforts to pay accrued dividends on each Dividend Payment Date. Dividends shall be cumulative
and shall continue to accrue whether or not (i) there are funds of the Corporation legally available for the payment of such dividends,
(ii) such dividends are declared by the Board of Directors or (iii) the Corporation has earnings. Notwithstanding the foregoing,
the declaration and payment of any dividends on the Series A Preferred Stock shall be subject to the terms and conditions of the
Credit Agreement and any other agreements governing indebtedness of the Corporation or its subsidiaries.
3
(c) So
long as any shares of Series A Preferred Stock remain outstanding, unless full cumulative dividends for all past Dividend Periods
have been paid or declared and a sum sufficient for the payment thereof set aside for payment: (i) no dividend or distribution shall
be declared or paid or set aside for payment on any Junior Stock (other than dividends payable solely in shares of Junior Stock); and
(ii) no shares of Junior Stock or Parity Stock shall be purchased, redeemed or otherwise acquired for consideration by the Corporation,
directly or indirectly. If cumulative dividends for two (2) or more consecutive Dividend Periods have not been paid or declared and
a sum sufficient for the payment thereof set aside for payment, then payment of the Compensation (as defined in the Management Agreement)
and any other similar compensation to Consultant (as defined in the Management Agreement) or an affiliate of Dothan Concrete Investors,
LLC shall be deferred (but, for the avoidance of doubt, shall still accrue) until such time as the Corporation has made a subsequent quarterly
dividend payment in full, at which time the Corporation may resume paying the then-current Compensation (but not the suspended, accrued
Compensation until full cumulative dividends for all past Dividend Periods have been paid or declared and a sum sufficient for the payment
thereof set aside for payment).
(d) If
the aggregate Redemption Price for all outstanding shares of Series A Preferred Stock has not been paid in full before the sixth
(6th) anniversary of the Seed Preferred Issuance Date, then beginning on the first day of the first calendar quarter thereafter, and on
the first day of each calendar quarter following, the Dividend Rate shall increase by one-half percent (0.50%), up to a maximum annual
rate of fifteen percent (15%).
5. Liquidation.
(a) In
the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation (a “Liquidation”),
the Holders shall be entitled to receive out of the assets of the Corporation legally available for distribution to stockholders, before
any payment or distribution of any assets of the Corporation shall be made or set apart for holders of any Junior Stock, an amount equal
to the Liquidation Preference per share.
(b) If
upon any Liquidation the assets of the Corporation available for distribution to stockholders shall be insufficient to pay the Holders
the full Liquidation Preference to which they are entitled, the Holders shall share ratably in any distribution of assets in proportion
to the full respective Liquidation Preference to which they are entitled.
(c) Neither
a consolidation nor a merger of the Corporation with or into another entity, nor a sale, lease or transfer of all or substantially all
of the Corporation’s assets, shall be deemed to be a Liquidation for purposes of this Section 5, unless the Holders of at least
a majority of the outstanding shares of Series A Preferred Stock elect, by written notice to the Corporation at least five (5) Business
Days prior to the consummation of such transaction, to have such transaction treated as a Liquidation; provided, however, that the following
transactions shall not constitute a Liquidation and shall not be subject to such election by the Holders: (i) any merger, consolidation
or other business combination transaction in connection with the Corporation's initial business combination with Haymaker Acquisition
Corp. 4 or any of its affiliates, including any related reorganization, recapitalization or restructuring transactions; (ii) any
merger, consolidation, acquisition or other business combination transaction in which the Corporation or any of its direct or indirect
subsidiaries acquires equity interests, assets or businesses of any other Person (whether by merger, stock purchase, asset purchase or
otherwise), provided that the Corporation or a wholly-owned subsidiary of the Corporation is the surviving entity and the holders of the
Corporation's capital stock immediately prior to such transaction continue to hold, directly or indirectly, a majority of the voting power
of the surviving entity immediately following such transaction; and (iii) any reorganization, recapitalization, reclassification
or similar transaction involving only the Corporation and/or its wholly-owned subsidiaries in which the relative economic and voting rights
of the holders of Series A Preferred Stock are preserved in all material respects.
6. Optional
Redemption.
(a) At
any time and from time to time on or after the Original Issuance Date, the Corporation may, at its option, redeem any or all of the outstanding
shares of Series A Preferred Stock on a pro rata basis by paying to the Holders thereof an amount in cash equal to the Liquidation
Preference per share on the date fixed for redemption (the “Redemption Price”). The Corporation shall give written
notice of any redemption (the “Redemption Notice”) at least ten (10) days prior to the date fixed for redemption
(the “Redemption Date”), specifying the shares to be redeemed and the Redemption Date.
4
(b) In
the event of any redemption pursuant to Section 6(a), the Corporation shall redeem shares of Series A Preferred Stock
from Holders on a pro rata basis in proportion to the number of shares of Series A Preferred Stock held by each Holder.
(c) Upon
the payment of the full Redemption Price for any share of Series A Preferred Stock, such share shall automatically be cancelled and
retired without the need for additional documentation or consideration, and the Holder thereof shall cease to be a stockholder of the
Corporation with respect to such share, and shall have no further rights with respect to such share except the right to receive the Redemption
Price.
(d) The
Series A Preferred Stock shall not be subject to any sinking fund or other obligation of the Corporation to redeem such shares.
(e) Upon
receipt of a Redemption Notice from the Corporation, each Holder may, at its option, elect to convert its shares of Series A Preferred
Stock into Common Stock pursuant to Section 8 in lieu of having such shares redeemed for cash. Any such election must be made in
accordance with the requirements of Section 8 within five (5) Business Days of receipt of the Redemption Notice and, in any
event, must be received by the Corporation or the Transfer Agent no later than the Business Day prior to the Redemption Date.
7. Voting
Rights.
(a) Except
as required by applicable law or as set forth in this Section 7, the Holders of shares of Series A Preferred Stock shall not
be entitled to vote on any matter submitted to a vote of stockholders of the Corporation.
(b) So
long as any shares of Series A Preferred Stock are outstanding, the Corporation shall not, without the prior written consent or affirmative
vote of Holders holding at least a majority of the then-outstanding shares of Series A Preferred Stock: (i) amend, alter or
repeal any provision of the Certificate of Incorporation or Bylaws of the Corporation that would materially and adversely affect the rights,
preferences, privileges or powers of the Series A Preferred Stock in a manner disproportionate to any effect on any other class or
series of capital stock; (ii) increase or decrease the authorized number of shares of Series A Preferred Stock; (iii) create,
authorize or issue any Senior Stock or Parity Stock, or any security convertible into or exercisable for shares of Senior Stock or Parity
Stock, or reclassify any of the Corporation’s capital stock into Parity Stock or Senior Stock; or (iv) alter or change the
rights, preferences, privileges or powers of the Series A Preferred Stock so as to adversely affect the Series A Preferred Stock.
8. Conversion.
(a) Subject
to the terms and conditions of this Section 8, each Holder shall have the right, at such Holder’s option, at any time and from
time to time on or after the Original Issuance Date, to convert all or any portion of such Holder’s shares of Series A Preferred
Stock into shares of Common Stock. Upon conversion, each share of Series A Preferred Stock shall be converted into a number of shares
of Common Stock equal to the Conversion Rate in effect on the Conversion Date.
(b) To
convert shares of Series A Preferred Stock, the Holder shall deliver to the Corporation or the Transfer Agent (i) a written
notice (a “Conversion Notice”) stating that such Holder elects to convert shares of Series A Preferred Stock and
specifying the number of shares to be converted and the name(s) in which such Holder wishes the shares of Common Stock to be issued,
and (ii) if the shares of Series A Preferred Stock are represented by a certificate, such certificate (or, in the case of a
lost, stolen or destroyed certificate, an affidavit of loss and an indemnity reasonably acceptable to the Corporation). The conversion
shall be deemed to have been effected as of the close of business on the Conversion Date.
(c) As
promptly as practicable after the Conversion Date (and in any event within three (3) Business Days thereafter), the Corporation shall
(i) issue and deliver, or cause to be issued and delivered, to the converting Holder a certificate or certificates representing the
number of shares of Common Stock to which such Holder is entitled (or, if the Common Stock is held in book-entry form, register such shares
in the name of the Holder or its designee in book-entry form through the facilities of DTC), and (ii) pay all accrued and unpaid
dividends on the converted shares of Series A Preferred Stock through and including the Conversion Date in cash, to the extent funds
are legally available therefor, or, at the Corporation’s election, in additional shares of Common Stock valued at the Conversion
Price.
5
(d) The
Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose
of issuance upon conversion of the Series A Preferred Stock, such number of shares of Common Stock as shall be issuable upon the
conversion of all outstanding shares of Series A Preferred Stock. All shares of Common Stock delivered upon conversion of the Series A
Preferred Stock shall be duly and validly issued, fully paid and non-assessable, free from all preemptive rights and free from all liens,
charges and security interests with respect to the issuance thereof.
(e) No
fractional shares of Common Stock shall be issued upon conversion of the Series A Preferred Stock. In lieu of any fractional share
to which a Holder would otherwise be entitled, the Corporation shall pay to such Holder cash equal to such fraction multiplied by the
Conversion Price.
(f) The
Conversion Rate shall be adjusted from time to time as follows: (i) if the Corporation (A) pays a dividend or makes a distribution
on its Common Stock in shares of Common Stock, (B) subdivides or splits its outstanding Common Stock into a greater number of shares,
or (C) combines or reverse splits its outstanding Common Stock into a smaller number of shares, then the Conversion Rate in effect
immediately prior to such event shall be adjusted so that each Holder shall be entitled to receive the number of shares of Common Stock
that such Holder would have owned or been entitled to receive had such shares been converted immediately prior to the record date for
such dividend or distribution or the effective date of such subdivision, split, combination or reverse split; and (ii) if any capital
reorganization, reclassification of the Common Stock, consolidation or merger of the Corporation with another corporation, or sale, transfer
or other disposition of all or substantially all of the Corporation's assets to another corporation shall be effected, then, as a condition
of such reorganization, reclassification, consolidation, merger, sale, transfer or other disposition, lawful and adequate provision shall
be made whereby each Holder shall thereafter have the right to receive upon conversion of the Series A Preferred Stock the kind and
amount of stock, securities, cash or other property that would have been receivable upon such reorganization, reclassification, consolidation,
merger, sale, transfer or other disposition by a holder of the number of shares of Common Stock issuable upon conversion of such Series A
Preferred Stock immediately prior to such reorganization, reclassification, consolidation, merger, sale, transfer or other disposition.
(g) Whenever
the Conversion Rate is adjusted pursuant to this Section 8, the Corporation shall promptly provide written notice thereof to each
Holder, setting forth in reasonable detail the event requiring the adjustment and the method by which such adjustment was calculated.
(h) The
Corporation shall pay any documentary, stamp or similar issue or transfer taxes due on the issuance of shares of Common Stock upon conversion
of the Series A Preferred Stock; provided, however, that the Corporation shall not be required to pay any tax that may be payable
in respect of any transfer involved in the issuance and delivery of shares of Common Stock in a name other than that of the Holder of
the converted shares, and no such issuance or delivery shall be made unless and until the Person requesting such issuance has paid to
the Corporation the amount of any such tax or has established to the Corporation's satisfaction that such tax has been paid.
(i) The
Corporation shall, at least ten (10) Business Days prior to the applicable record date, provide written notice to each Holder of
any record date established for (i) the declaration or payment of any dividend or distribution on the Common Stock, (ii) the
effectuation of any subdivision, combination, reclassification or recapitalization of the Common Stock, or (iii) any vote of holders
of Common Stock with respect to any merger, consolidation, sale of all or substantially all assets, dissolution or winding up of the Corporation.
Such notice shall describe the material terms of the action proposed to be taken and shall afford the Holders a reasonable opportunity
to convert their shares of Series A Preferred Stock into Common Stock prior to such record date pursuant to the terms hereof.
6
9. Preemptive
Rights. The Holders of Series A Preferred Stock shall not have any preemptive rights to subscribe for or purchase any additional
securities of the Corporation.
10. Maturity
Date. The Series A Preferred Stock shall be perpetual and shall have no stated maturity date.
11. Transfer
Restrictions. The shares of Series A Preferred Stock may be transferred, subject to compliance with applicable securities laws
and any transfer restrictions set forth in the Certificate of Incorporation, Bylaws or any agreement to which the Corporation or any
Holder is a party. Each Holder, by acceptance of shares of Series A Preferred Stock, agrees to execute and deliver a Preferred Equity
Subordination Agreement in favor of the administrative agent under the Credit Agreement as a condition to acquiring shares of Series A
Preferred Stock.
12. Transfer
Agent.
(a) The
Transfer Agent shall act as transfer agent, registrar and paying agent for the Series A Preferred Stock. The Corporation may, in
its sole discretion, remove the Transfer Agent and appoint a successor transfer agent; provided that the Corporation shall appoint a successor
transfer agent who shall accept such appointment prior to the effectiveness of such removal.
(b) The
Corporation and the Transfer Agent may deem and treat the record holder of any share of Series A Preferred Stock as the true and
lawful owner thereof for all purposes, and neither the Corporation nor the Transfer Agent shall be affected by any notice to the contrary.
13. Notices.
All notices required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given (i) upon
personal delivery to the party to be notified, (ii) when sent, if sent by email during normal business hours of the recipient, and
if not sent during normal business hours, then on the next Business Day, (iii) when received, if sent by a nationally recognized
overnight courier with tracking capabilities, or (iv) when received, if sent by certified or registered mail, postage prepaid, return
receipt requested. Such notices must be sent (a) to the Corporation at its principal executive offices, and (b) to any Holders,
at the address or email address set forth in the stock register maintained by the Transfer Agent. Each Holder shall be responsible for
providing and maintaining a current address with the Transfer Agent, and the Corporation and the Transfer Agent shall be entitled to rely
on the most recent address on file for purposes of delivering any notice hereunder. Failure by a Holder to provide a current address shall
not affect the validity of any notice given in accordance with this Section 13.
14. Fractional
Shares. The Series A Preferred Stock may be issued in fractional shares, which fractional shares shall entitle the Holder thereof,
in proportion to such Holder’s fractional share, to exercise voting rights, receive dividends, participate in distributions and
have the benefit of all other rights of Holders of Series A Preferred Stock.
15. Amendments.
Any of the rights, powers, preferences and other terms of the Series A Preferred Stock set forth herein may be waived or amended
on behalf of all Holders by the affirmative written consent or vote of the Holders of at least a majority of the then-outstanding shares
of Series A Preferred Stock.
16. Governing
Law. This Certificate of Designation and the rights and obligations of the Holders set forth herein shall be governed by, and construed
in accordance with, the laws of the State of Delaware, without giving effect to conflicts of law principles thereof.
17. Withholding.
The Corporation and its paying agent shall be entitled to withhold taxes on all payments on the Series A Preferred Stock or Common
Stock or other securities issued upon conversion of the Series A Preferred Stock in each case to the extent required by applicable
law; provided that to the extent that the Holders of Series A Preferred Stock have previously delivered an appropriate IRS Form W-8
or W-9 to the Corporation establishing an exemption for U.S. federal withholding (including backup withholding), the Corporation shall
not be permitted to withhold unless the Corporation has provided such a Holder advance written notice of its intent to withhold at least
five (5) days prior to the payment of the amount subject to withholding, and has given such a Holder a reasonable opportunity to
provide any form or certificate available to reduce or eliminate such withholding. Within a reasonable amount of time after making such
withholding payment, the Corporation shall furnish the applicable Holder with copies of any tax certificate, receipt or other documentation
reasonably acceptable to the Holder evidencing such payment.
[Remainder of page intentionally left blank]
7
IN WITNESS WHEREOF, the Corporation
has caused this Certificate of Designation to be executed and acknowledged this 8th day of April, 2026.
SUNCRETE, INC.
By:
/s/ Christopher Bradley
Name:
Christopher Bradley
Title:
Vice President
[Signature Page to Suncrete,
Inc. Certificate of Designation]
EX-4.2 — EXHIBIT 4.2
EX-4.2
Filename: tm2611641d1_ex4-2.htm · Sequence: 6
Exhibit 4.2
AMENDMENT NO. 1 TO
WARRANT AGREEMENT
THIS AMENDMENT NO. 1 TO
WARRANT AGREEMENT (this “Amendment”), made as of April 8, 2026, by and between Haymaker Acquisition Corp. 4,
a Cayman Islands exempted company (the “Company”) and Continental Stock Transfer & Trust Company, a New York
corporation, as warrant agent (the “Warrant Agent”), amends that certain Warrant Agreement, dated as of July 25,
2023, and filed with the United States Securities and Exchange Commission on July 31, 2023, by and between the Company and the Warrant
Agent (the “Existing Warrant Agreement”). Capitalized terms used herein, but not otherwise defined, shall have the
meanings given to such terms in the Existing Warrant Agreement.
WHEREAS, pursuant to the
Existing Warrant Agreement, the Company issued 11,500,000 public warrants (the “Public Warrants”) and 398,800 private
placement warrants (the “Private Placement Warrants” and together with the Private Placement Warrants, the “Warrants”),
in connection with the Company’s initial public offering, with each whole Warrant representing the right to purchase one whole
Class A ordinary share, par value $0.0001 per share, of the Company;
WHEREAS, the terms of the Warrants are governed
by the Existing Warrant Agreement;
WHEREAS, effective as of
October 9, 2025, the Company, Suncrete, Inc., a Delaware corporation (“PubCo”), Haymaker Merger Sub I, Inc.
(“Merger Sub I”), a Delaware corporation, Haymaker Merger Sub II, LLC, a Delaware limited liability company (“Merger
Sub II”), and Concrete Partners Holding, LLC, a Delaware limited liability company (“Suncrete”), entered
into a Business Combination Agreement (as amended from time to time, the “Business Combination Agreement”) in connection
with the proposed business combination between the parties thereto (the “Business Combination”);
WHEREAS, pursuant to the
Business Combination Agreement, Merger Sub I will merge with and into the Company, with the Company surviving as a wholly owned subsidiary
of PubCo and immediately thereafter, Merger Sub II will merge with and into Suncrete, with Suncrete surviving as a wholly owned subsidiary
of PubCo;
WHEREAS, in connection with
the Business Combination, the Company desires to assign all of its right, title and interest in the Existing Warrant Agreement to PubCo
and PubCo wishes to accept such assignment;
WHEREAS, Section 9.9
of the Existing Warrant Agreement provides that the Existing Warrant Agreement may be amended with the vote or written consent of the
registered holders of at least 50% of the then outstanding Warrants (the “Requisite Holders”);
WHEREAS, the Company and
the Warrant Agent desire to amend the Existing Warrant Agreement to provide for an automatic redemption of the Public Warrants at a redemption
price of $2.25 and 0.075 Class A ordinary shares of the Company per Public Warrant in connection with the closing of the Business
Combination;
WHEREAS, at a meeting of
the holders of the outstanding Public Warrants held on or about the date of the Extraordinary General Meeting of shareholders of the
Company held in connection with the Business Combination, the Requisite Holders voted to approve this Amendment; and
WHEREAS, the Private Placement
Warrants will not be redeemed in connection with the Business Combination, will remain outstanding, and will continue to be governed
by the Existing Warrant Agreement, as amended by this Amendment.
NOW, THEREFORE, in consideration
of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
1.
Assignment and Assumption;
Consent.
1.1 Assignment
and Assumption. The Company hereby assigns to PubCo all of the Company’s right, title
and interest in and to the Existing Warrant Agreement (as amended hereby) as of the Acquisition Merger Effective Time (as defined in
the Business Combination Agreement). PubCo hereby assumes, and agrees to pay, perform, satisfy and discharge in full, as the same become
due, all of the Company’s liabilities and obligations under the Existing Warrant Agreement (as amended hereby) arising from and
after the Acquisition Merger Effective Time.
1.2 Consent. The
Warrant Agent hereby consents to the assignment of the Existing Warrant Agreement by the Company to PubCo pursuant to Section 1.1
hereof effective as of the Acquisition Merger Effective Time, and the assumption of the Existing Warrant Agreement by PubCo from the
Company pursuant to Section 1.1 hereof effective as of the Acquisition Merger Effective Time, and to the continuation of the Existing
Warrant Agreement in full force and effect from and after the Acquisition Merger Effective Time, subject at all times to the Existing
Warrant Agreement (as amended hereby) and to all of the provisions, covenants, agreements, terms and conditions of the Existing Warrant
Agreement and this Agreement.
2.
Amendment of Existing Warrant Agreement.
2.1 Preamble. The
preamble on page one of the Existing Warrant Agreement is hereby amended by deleting “Haymaker Acquisition Corp. 4, a Cayman
Islands exempted company” and replacing it with “Suncrete, Inc., a Delaware corporation”. As a result thereof,
all references to the “Company” in the Existing Warrant Agreement shall be references to Suncrete, Inc. rather than
Haymaker Acquisition Corp. 4.
2.2 Recitals. The
recitals on pages one and two of the Existing Warrant Agreement are hereby deleted and replaced in their entirety as follows:
“WHEREAS,
Haymaker Acquisition Corp. 4 (“Haymaker”) previously consummated its initial public offering (the “Offering”)
of units of Haymaker’s equity securities, each such unit comprised of one Class A ordinary share, par value $0.0001 per share
(“Ordinary Shares”) and one-half of one redeemable Public Warrant (as defined below) (the “Public
Units”) and, in connection therewith, issued and delivered 11,500,000 warrants to public investors in the Offering (the
“Public Warrants”);
WHEREAS, Haymaker
entered into that certain Private Placement Units Purchase Agreement with Haymaker Sponsor IV LLC, a Delaware limited liability company
(the “Sponsor”), pursuant to which the Sponsor purchased an aggregate of 797,600 units simultaneously with
the closing of the Offering (the “Private Placement Units”) at a purchase price of $10.00 per Private Placement
Unit, and, in connection therewith, 398,800 warrants comprising part of such Private Placement Units (the “Private Placement
Warrants” and together with the Public Warrants, the “Warrants”), which bear the legend set forth
in Exhibit B hereto;
WHEREAS, Haymaker
filed with the U.S. Securities and Exchange Commission (the “Commission”) a registration statement on Form S-1,
File No. 333-273117 (the “Registration Statement”), and prospectus (the “Prospectus”),
for the registration, under the Securities Act of 1933, as amended (the “Securities Act”), of the Units, the
Public Warrants, the Ordinary Shares included in the Units and the Ordinary Shares underlying the Public Warrants;
WHEREAS, effective
as of October 9, 2025, Haymaker, the Company, Haymaker Merger Sub I, Inc. (“Merger Sub I”), a Delaware
corporation, Haymaker Merger Sub II, LLC, a Delaware limited liability company (“Merger Sub II”), and Concrete
Partners Holding, LLC, a Delaware limited liability company (“Suncrete”), entered into a Business Combination
Agreement (as amended from time to time, the “Business Combination Agreement”) in connection with the proposed
business combination between the parties thereto (the “Business Combination”);
WHEREAS, pursuant
to the Business Combination Agreement, Merger Sub I will merge with and into Haymaker, with Haymaker surviving as a wholly owned subsidiary
of the Company and immediately thereafter, Merger Sub II will merge with and into Suncrete, with Suncrete surviving as a wholly owned
subsidiary of the Company;
WHEREAS, upon
the Acquisition Merger Effective Time, each then-outstanding Warrant automatically will be assumed by the Company and converted into
a warrant to acquire one share of the Company’s Class A Common Stock for $11.50 per whole share, subject to adjustment as
described herein;
WHEREAS, the Company
desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance,
registration, transfer, exchange, redemption and exercise of the Warrants;
WHEREAS, the Company
desires to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective
rights, limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts
and things have been done and performed which are necessary to make the Warrants, when executed on behalf of the Company and countersigned
by or on behalf of the Warrant Agent, as provided herein, the valid, binding and legal obligations of the Company, and to authorize the
execution and delivery of this Agreement.
NOW, THEREFORE,
in consideration of the mutual agreements herein contained, the parties hereto agree as follows:”
2.3 Detachability
of Warrants. Section 2.4 of the Existing Warrant Agreement is hereby deleted and replaced
with the following:
“[INTENTIONALLY
OMITTED]”
Except that the
defined term “Business Day” set forth therein shall be retained for all purposes of the Existing Warrant Agreement.
2.4 Duration
of Warrants. The first sentence of Section 3.2 of the Existing Warrant Agreement is hereby
deleted and replaced with the following:
“A Warrant
may be exercised only during the period (the “Exercise Period”) commencing on the date that is thirty (30)
days after the consummation of the transactions contemplated by the Business Combination Agreement (the “Business Combination”),
and terminating at 5:00 p.m., New York City time on the earlier to occur of: (x) the date that is five (5) years after the
date on which the Business Combination is completed, (y) the liquidation of the Company, or (z) other than with respect to
the Private Placement Warrants to the extent then held by the original purchasers thereof or their Permitted Transferees, the Redemption
Date (as defined below) as provided in Section 6.2 hereof (the “Expiration Date”); provided, however,
that the exercise of any Warrant shall be subject to the satisfaction of any applicable conditions, as set forth in Subsection 3.3.2
below with respect to an effective registration statement.”
2.5 Deletion
of Section 2.7. Section 2.7 of the Existing Warrant Agreement is hereby deleted
in its entirety and replaced with “[Reserved]”. All references in the Existing Warrant Agreement to “Working Capital
Warrants” are hereby deleted.
2.6 Redemption
of Public Warrants. Section 6 of the Existing Warrant Agreement is hereby amended and restated
in its entirety to read as follows:
“6. Redemption
of Public Warrants.
6.1 Qualified
Business Combination Redemption. All of the outstanding Public Warrants shall be redeemed,
automatically and without any action by the Registered Holder thereof, immediately prior to the Domestication Effective Time on the date
of the Acquisition Merger (as defined in the Business Combination Agreement) (a “Qualified Business Combination Redemption Date”),
at the office of the Warrant Agent, at a Redemption Price of $2.25 and 0.075 Class A ordinary shares of the Company per Public Warrant
(a “Qualified Business Combination Redemption”). As used in this Agreement, the “Business Combination Agreement”
means that certain Business Combination Agreement, dated as of October 9, 2025, by and among the Company, Suncrete, Inc., a
Delaware corporation, Haymaker Merger Sub I, Inc., a Delaware corporation, Haymaker Merger Sub II, LLC, a Delaware limited liability
company, and Concrete Partners Holding, LLC, a Delaware limited liability company, as it may be amended, supplemented or otherwise modified
from time to time.
6.2 Date
Fixed for, and Notice of Redemption; Redemption Price. In the event of a Qualified Business
Combination Redemption, the Company need not fix a date for such Qualified Business Combination Redemption or provide any notice thereof
to the Registered Holders of the Public Warrants to be redeemed, and such Qualified Business Combination Redemption shall be deemed to
have occurred immediately prior to the Domestication Effective Time on the Qualified Business Combination Redemption Date. As used in
this Agreement, “Redemption Date” shall mean the Qualified Business Combination Redemption Date. As used in this Agreement,
“Redemption Price” shall mean the price per Public Warrant at which any Public Warrants are redeemed pursuant to Section 6.1.
6.3 Exercise
After Notice of Redemption. On and after the Redemption Date, the record holders of the
Public Warrants shall have no further rights except to receive, upon surrender of the Public Warrants, the Redemption Price.”
3.
Miscellaneous Provisions.
3.1 Operative
Date of Amendment. Each of the parties hereto acknowledges and agrees that the amendments
to Section 6 of the Existing Warrant Agreement set forth in this Amendment shall not be operative until, and shall be expressly
subject to the occurrence of, the Domestication Effective Time and this Amendment shall automatically be terminated and shall be null
and void if the Business Combination Agreement shall be terminated for any reason.
3.2 Successors. All
the covenants and provisions of this Amendment by or for the benefit of the Company or the Warrant Agent shall bind and inure to the
benefit of their respective successors and assigns.
3.3 Applicable
Law. The validity, interpretation, and performance of this Amendment shall be governed in
all respects by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application
of the substantive laws of another jurisdiction. The Company hereby agrees that any action, proceeding or claim against it arising out
of or relating in any way to this Amendment shall be brought and enforced in the courts of the State of New York or the United States
District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive.
The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum.
3.4 Counterparts. This
Amendment may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
3.5 Effect
of Headings. The section headings herein are for convenience only and are not part of this
Amendment and shall not affect the interpretation thereof.
3.6 Severability. This
Amendment shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity
or enforceability of this Amendment or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable
term or provision, the parties hereto intend that there shall be added as a part of this Amendment a provision as similar in terms to
such invalid or unenforceable provision as may be possible and be valid and enforceable.
3.7 Entire
Agreement. The Existing Warrant Agreement, as modified by this Amendment, constitutes the
entire understanding of the parties and supersedes all prior agreements, understandings, arrangements, promises and commitments, whether
written or oral, express or implied, relating to the subject matter hereof, and all such prior agreements, understandings, arrangements,
promises and commitments are hereby canceled and terminated.
[Signature page follows]
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed as of the date first above written.
HAYMAKER ACQUISITION CORP. 4
By:
/s/
Christopher Bradley
Name: Christopher Bradley
Title: Chief Executive Officer and Chief Financial
Officer
CONTINENTAL STOCK TRANSFER &
TRUST COMPANY, as Warrant Agent
By:
/s/ Erika
Young
Name: Erika Young
Title: Vice President
SUNCRETE, INC.
By:
/s/ Christopher
Bradley
Name: Christopher Bradley
Title: Vice President
[Signature Page to Amendment No. 1
to Warrant Agreement]
EX-10.1 — EXHIBIT 10.1
EX-10.1
Filename: tm2611641d1_ex10-1.htm · Sequence: 7
Exhibit 10.1
Execution Version
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of April 8, 2026, is made and entered into by
and among Suncrete, Inc., a Delaware corporation (the “Company”), and Haymaker Sponsor IV LLC, a Delaware
limited liability company (the “Sponsor” and, collectively with any person or entity who hereafter becomes a
party to this Agreement pursuant to Section 5.2 of this Agreement, the “Holders” and each individually
a “Holder”).
RECITALS
WHEREAS,
Haymaker Acquisition Corp. 4, a Cayman Islands exempted company (“SPAC”), entered into that certain Registration
Rights Agreement, dated as of July 25, 2023 (the “Original Agreement”), with the Sponsor and certain other
parties thereto;
WHEREAS,
on the date hereof, pursuant to that certain Business Combination Agreement, dated as of October 9, 2025 (the “Business
Combination Agreement”), by and among SPAC, Haymaker Merger Sub I, Inc., a Delaware corporation, Haymaker Merger Sub
II, LLC, a Delaware limited liability company, the Company and Concrete Partners Holding, LLC, a Delaware limited liability company, SPAC
(i) domesticated from a Cayman Islands exempted company to a Delaware corporation and (ii) merged with and into a wholly owned
subsidiary of the Company, with SPAC surviving as a wholly owned subsidiary of the Company (collectively, the “Transactions”);
WHEREAS,
on the date hereof, pursuant to the Business Combination Agreement, the Company has succeeded to the rights and obligations of SPAC under
the Original Agreement;
WHEREAS,
in connection with the Transactions, the Sponsor holds shares of Class A common stock, par value $0.0001 per share, of the Company
(the “Common Stock”);
WHEREAS,
in connection with the consummation of the Transactions, the parties hereto desire to amend and restate the Original Agreement in its
entirety to provide the Sponsor with certain registration rights with respect to the Registrable Securities (as defined herein) as set
forth in this Agreement;
WHEREAS,
the Original Agreement may be amended upon the written consent of SPAC (or its successor) and the Holders (as defined in the Original
Agreement) of a majority in interest of the Registrable Securities (as defined in the Original Agreement); and
WHEREAS,
the Sponsor is the holder of all Registrable Securities (as defined in the Original Agreement).
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Article I
DEFINITIONS
1.1 Definitions. The terms defined in this
Article I shall, for all purposes of this Agreement, have the respective meanings set forth below:
“Adverse Disclosure”
shall mean any public disclosure of material non-public information, which disclosure, in the good faith judgment of the Chief Executive
Officer or Chief Financial Officer of the Company, after consultation with counsel to the Company, (i) would be required to be made
in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain any untrue
statement of a material fact or omit to state a material fact necessary to make the statements contained therein (in the case of any prospectus
and any preliminary prospectus, in the light of the circumstances under which they were made) not misleading, (ii) would not be required
to be made at such time if the Registration Statement were not being filed, and (iii) the Company has a bona fide business purpose
for not making such information public.
“Agreement”
shall have the meaning given in the Preamble.
“Board”
shall mean the Board of Directors of the Company.
“Business Combination”
shall mean any merger, share exchange, asset acquisition, share purchase, reorganization or other similar business combination with one
or more businesses, involving the Company.
“Business Combination
Agreement” shall have the meaning given in the Recitals hereto.
“Commission”
shall mean the United States Securities and Exchange Commission.
“Common Stock”
shall have the meaning given in the Recitals.
“Common Stock
Lock-up Period” shall mean the period as described in that certain Sponsor Support Agreement, dated as of October 9,
2025, by and among SPAC, the Company, the Sponsor and the other parties signatory thereto.
“Company”
shall have the meaning given in the Preamble.
“Exchange Act”
shall mean the Securities Exchange Act of 1934, as it may be amended from time to time.
“Form S-1”
means a Registration Statement on Form S-1 or any similar long-form registration statement that may be available at such time.
“Form S-3”
means a Registration Statement on Form S-3 or any similar short-form registration statement that may be available at such time.
“Holders”
shall have the meaning given in the Preamble.
“Misstatement”
shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement
or Prospectus, or necessary to make the statements in a Registration Statement or Prospectus (in the case of a Prospectus, in the light
of the circumstances under which they were made) not misleading.
“Original Agreement”
shall have the meaning given in the Recitals hereto.
“Permitted Transferees”
shall mean any person or entity to whom a Holder of Registrable Securities is permitted to transfer such Registrable Securities prior
to the expiration of the Common Stock Lock-up Period or any other lock-up period, as the case may be, under this Agreement and any other
applicable agreement between such Holder and the Company, and to any transferee thereafter.
“Prospectus”
shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended
by any and all post-effective amendments and including all material incorporated by reference in such prospectus.
“Registrable Security”
shall mean (a) any shares of Common Stock held by the Holder as of the date hereof, and (b) any other equity securities of the
Company issued or issuable with respect to any such Common Stock by way of a stock dividend or stock split or in connection with a combination
of shares, recapitalization, merger, consolidation or reorganization; provided, however, that, as to any particular Registrable Security,
such securities shall cease to be Registrable Securities when: (i) a Registration Statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in
accordance with such Registration Statement; (ii) such securities shall have been otherwise transferred, new certificates for such
securities not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution
of such securities shall not require registration under the Securities Act; (iii) such securities shall have ceased to be outstanding;
or (iv) such securities may be sold without registration pursuant to Rule 144 promulgated under the Securities Act (or any successor
rule promulgated thereafter by the Commission) without volume or other restrictions or limitations.
2
“Registration”
shall mean a registration effected by preparing and filing a registration statement or similar document in compliance with the requirements
of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming
effective.
“Registration
Expenses” shall mean the out-of-pocket expenses of a Registration, including, without limitation, the following:
(A) all registration
and filing fees (including fees with respect to filings required to be made with the Financial Industry Regulatory Authority, Inc.)
and any securities exchange on which the Common Stock is then listed;
(B) fees and expenses
of compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel for any underwriter in connection
with blue sky qualifications of Registrable Securities);
(C) printing, messenger,
telephone and delivery expenses;
(D) reasonable fees and
disbursements of counsel for the Company; and
(E) reasonable fees and
disbursements of all independent registered public accountants of the Company incurred specifically in connection with such Registration.
“Registration
Statement” shall mean any registration statement that covers the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus included in such registration statement, amendments (including post-effective amendments) and supplements
to such registration statement, and all exhibits to and all material incorporated by reference in such registration statement.
“Securities Act”
shall mean the Securities Act of 1933, as amended from time to time.
“SPAC”
shall have the meaning given in the Recitals hereto.
“Sponsor”
shall have the meaning given in the Recitals hereto.
Article II
REGISTRATIONS
2.1 Shelf Registration.
The Company agrees that, within thirty (30) calendar days after the date hereof, the Company will use its commercially reasonable efforts
to file with the Commission a Registration Statement on Form S-1 (or, if available, Form S-3) providing for the resale of all
Registrable Securities held by the Holder(s) (determined as of two (2) business days prior to such submission or filing) on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration Statement”).
2.2 Effectiveness.
The Company shall use its commercially reasonable efforts to cause the Shelf Registration Statement to become effective as soon as practicable
after filing and to remain effective until the earlier of (a) the date on which all Registrable Securities covered by such Registration
Statement have been sold, or (b) the date on which all Registrable Securities covered by such Registration Statement may be sold
without registration pursuant to Rule 144 under the Securities Act without volume or other restrictions or limitations; provided,
however, that the Company’s obligations to include such Holder’s Registrable Securities in the Registration Statement
are contingent upon such Holder furnishing in writing to the Company such information regarding such Holder, the securities of the Company
held by such Holder and the intended method of disposition of the Registrable Securities as shall be reasonably requested by the Company
to effect the registration of such Holder’s Registrable Securities, and such Holder shall execute such documents in connection with
such registration as the Company may reasonably request that are customary of a selling shareholder in similar situations.
3
2.3 Effect on Prior Rights.
For the avoidance of doubt, this Agreement supersedes and replaces the Original Agreement in its entirety, and the Holder shall have no
rights under the Original Agreement, including any underwritten demand registration rights or piggyback registration rights previously
provided thereunder.
Article III
COMPANY PROCEDURES
3.1 General Procedures.
The Company shall use its commercially reasonable efforts to effect such Registration to permit the sale of such Registrable Securities
in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible:
3.1.1 prepare and file with
the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as
may be requested by the Holders of Registrable Securities or as may be required by the rules, regulations or instructions applicable to
the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement
effective until the earlier of (a) the date on which all Registrable Securities covered by such Registration Statement have been
sold, or (b) the date on which all Registrable Securities covered by such Registration Statement may be sold without registration
pursuant to Rule 144 under the Securities Act without volume or other restrictions or limitations;
3.1.2 prior to filing a Registration
Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Holders of Registrable Securities included
in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment
and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein),
the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Holders
of Registrable Securities included in such Registration or the legal counsel for any such Holders may request in order to facilitate the
disposition of the Registrable Securities owned by such Holders;
3.1.3 prior to any public offering
of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered
by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders
of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (ii) take
such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by
such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other
acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement
to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company
shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take
any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise
so subject;
3.1.4 cause all such Registrable
Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are
then listed;
3.1.5 provide a transfer agent
and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.6 advise each seller of
such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by
the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such
purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop
order should be issued;
3.1.7 at least five (5) days
prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement furnish
a copy thereof to each seller of such Registrable Securities and its counsel, including, without limitation, providing copies promptly
upon receipt of any comment letters received with respect to any such Registration Statement or Prospectus;
4
3.1.8 notify the Holders at
any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening
of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement,
and then to correct such Misstatement as set forth in Section 3.3 hereof;
3.1.9 permit a representative
of the Holders (such representative to be selected by a majority of the participating Holders) and any attorney or accountant retained
by such Holders to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the
Company’s officers, directors and employees to supply all information reasonably requested by any such representative, attorney
or accountant in connection with the Registration; provided, however, that such representatives enter into a confidentiality
agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information; and
provided further, the Company may not include the name of any Holder or any information regarding any Holder in any Registration
Statement or Prospectus, any amendment or supplement to such Registration Statement or Prospectus, any document that is to be incorporated
by reference into such Registration Statement or Prospectus, or any response to any comment letter, without the prior written consent
of such Holder, such consent not to be unreasonably withheld, and providing each such Holder a reasonable amount of time to review and
comment on such applicable document, which comments the Company shall include unless contrary to applicable law;
3.1.10 make available to its
security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning
with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated
thereafter by the Commission), and which requirement will be deemed to be satisfied if the Company timely files complete and accurate
information on Forms 10-Q, 10-K and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act; and
3.1.11 otherwise, in good faith,
cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registration.
3.2 Registration Expenses.
The Registration Expenses of all Registrations shall be borne by the Company. It is acknowledged by the Holders that the Holders shall
bear all incremental selling expenses relating to the sale of Registrable Securities, and, other than as set forth in the definition of
“Registration Expenses,” all reasonable fees and expenses of any legal counsel representing the Holders.
3.3 Suspension of Sales;
Adverse Disclosure. Upon receipt of written notice from the Company that a Registration Statement or Prospectus contains a Misstatement,
each of the Holders shall forthwith discontinue disposition of Registrable Securities until he, she or it has received copies of a supplemented
or amended Prospectus correcting the Misstatement (it being understood that the Company hereby covenants to prepare and file such supplement
or amendment as soon as practicable after the time of such notice), or until he, she or it is advised in writing by the Company that the
use of the Prospectus may be resumed. If the filing, initial effectiveness or continued use of a Registration Statement in respect of
any Registration at any time would require the Company to make an Adverse Disclosure or would require the inclusion in such Registration
Statement of financial statements that are unavailable to the Company for reasons beyond the Company’s control, the Company may,
upon giving prompt written notice of such action to the Holders, delay the filing or initial effectiveness of, or suspend use of, such
Registration Statement for the shortest period of time, but in no event more than thirty (30) days, determined in good faith by the Company
to be necessary for such purpose. In the event the Company exercises its rights under the preceding sentence, the Holders agree to suspend,
immediately upon their receipt of the notice referred to above, their use of the Prospectus relating to any Registration in connection
with any sale or offer to sell Registrable Securities. The Company shall immediately notify the Holders of the expiration of any period
during which it exercised its rights under this Section 3.3.
3.4 Reporting Obligations.
As long as any Holder shall own Registrable Securities, the Company, at all times while it shall be a reporting company under the Exchange
Act, covenants to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required
to be filed by the Company after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act and to
promptly furnish the Holders with true and complete copies of all such filings. The Company further covenants that it shall take such
further action as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell Common
Stock held by such Holder without registration under the Securities Act within the limitation of the exemptions provided by Rule 144
promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission), including providing any legal
opinions. Upon the request of any Holder, the Company shall deliver to such Holder a written certification of a duly authorized officer
as to whether it has complied with such requirements.
5
Article IV
INDEMNIFICATION AND CONTRIBUTION
4.1 Indemnification.
4.1.1 The Company agrees to
indemnify, to the extent permitted by law, each Holder of Registrable Securities, its officers and directors and each person who controls
such Holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses (including attorneys’
fees) caused by any untrue or alleged untrue statement of material fact contained in any Registration Statement, Prospectus or preliminary
Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or contained in any information
furnished in writing to the Company by such Holder expressly for use therein.
4.1.2 In connection with any
Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish to the Company in writing
such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus
and, to the extent permitted by law, shall indemnify the Company, its directors and officers and agents and each person who controls the
Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expenses (including without limitation
reasonable attorneys’ fees) resulting from any untrue statement of material fact contained in the Registration Statement, Prospectus
or preliminary Prospectus or any amendment thereof or supplement thereto or any omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained
in any information or affidavit so furnished in writing by such Holder expressly for use therein; provided, however, that
the obligation to indemnify shall be several, not joint and several, among such Holders of Registrable Securities, and the liability of
each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received by such Holder from the
sale of Registrable Securities pursuant to such Registration Statement.
4.1.3 Any person entitled to
indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks
indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder
to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s
reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit
such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense
is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its
consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume
the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel (plus local counsel) for all parties
indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict
of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying
party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot
be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such
settlement) or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified
party of a release from all liability in respect to such claim or litigation.
4.1.4 The indemnification provided
for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified
party or any officer, director or controlling person of such indemnified party and shall survive the transfer of securities. The Company
and each Holder of Registrable Securities participating in an offering also agrees to make such provisions as are reasonably requested
by any indemnified party for contribution to such party in the event the Company’s or such Holder’s indemnification is unavailable
for any reason.
6
4.1.5 If the indemnification
provided under Section 4.1 hereof from the indemnifying party is unavailable or insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu of
indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses,
claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party
and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified
party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied
by, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge,
access to information and opportunity to correct or prevent such action; provided, however, that the liability of any Holder
under this subsection 4.1.5 shall be limited to the amount of the net proceeds received by such Holder in such offering giving
rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be
deemed to include, subject to the limitations set forth in subsections 4.1.1, 4.1.2 and 4.1.3 above, any legal or
other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto
agree that it would not be just and equitable if contribution pursuant to this subsection 4.1.5 were determined by pro rata allocation
or by any other method of allocation, which does not take account of the equitable considerations referred to in this subsection 4.1.5.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution pursuant to this subsection 4.1.5 from any person who was not guilty of such fraudulent misrepresentation.
Article V
MISCELLANEOUS
5.1 Notices. Any notice
or communication under this Agreement must be in writing and given by (i) deposit in the United States mail, addressed to the party
to be notified, postage prepaid and registered or certified with return receipt requested, (ii) delivery in person or by courier
service providing evidence of delivery, or (iii) transmission by hand delivery, electronic mail, telecopy, telegram or facsimile.
Each notice or communication that is mailed, delivered, or transmitted in the manner described above shall be deemed sufficiently given,
served, sent, and received, in the case of mailed notices, on the third business day following the date on which it is mailed and, in
the case of notices delivered by courier service, hand delivery, electronic mail, telecopy, telegram or facsimile, at such time as it
is delivered to the addressee (with the delivery receipt or the affidavit of messenger) or at such time as delivery is refused by the
addressee upon presentation. Any notice or communication under this Agreement must be addressed, if to the Company, to: Suncrete, Inc.,
817 E. 4th Street, Tulsa, OK 74120, Attention: Chief Executive Officer, with copy to: Haynes and Boone, LLP, 2801 N. Harwood Street, Suite 2300,
Dallas, Texas 75201, Attention: Matthew L. Fry and Rachel O’Donnell, and, if to any Holder, at such Holder’s address or contact
information as set forth in the Company’s books and records. Any party may change its address for notice at any time and from time
to time by written notice to the other parties hereto, and such change of address shall become effective thirty (30) days after delivery
of such notice as provided in this Section 5.1.
5.2 Assignment; No Third
Party Beneficiaries.
5.2.1 This Agreement and the
rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part.
5.2.2 Prior to the expiration
of the Common Stock Lock-up Period, the Sponsor shall not assign or delegate its rights, duties or obligations under this Agreement, in
whole or in part, except in connection with a transfer of Registrable Securities by the Sponsor to a Permitted Transferee but only if
such Permitted Transferee agrees to become bound by the transfer restrictions set forth in this Agreement by executing a joinder hereto.
After the expiration of the Common Stock Lock-up Period, the Sponsor may assign or delegate its rights, duties or obligations under this
Agreement, in whole or in part, to any transferee.
7
5.2.3 This Agreement and the
provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and its successors and the permitted assigns
of the Holders, which shall include Permitted Transferees.
5.2.4 This Agreement shall not
confer any rights or benefits on any persons that are not parties hereto, other than as expressly set forth in this Agreement and Section 5.2
hereof.
5.2.5 No assignment by any party
hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company unless and until the
Company shall have received (i) written notice of such assignment as provided in Section 5.1 hereof and (ii) the
written agreement of the assignee, in a form reasonably satisfactory to the Company, to be bound by the terms and provisions of this Agreement
(which may be accomplished by an addendum or certificate of joinder to this Agreement). Any transfer or assignment made other than as
provided in this Section 5.2 shall be null and void.
5.3 Counterparts. This
Agreement may be executed in multiple counterparts (including facsimile or PDF counterparts), each of which shall be deemed an original,
and all of which together shall constitute the same instrument, but only one of which need be produced.
5.4 Governing Law; Venue.
NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF NEW YORK AS APPLIED TO AGREEMENTS AMONG NEW YORK RESIDENTS
ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS OF SUCH JURISDICTION. ANY
LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE INSTITUTED
IN THE FEDERAL COURTS OF THE UNITED STATES OR THE COURTS OF THE STATE OF NEW YORK IN EACH CASE LOCATED IN THE CITY OF NEW YORK, AND EACH
PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING.
5.5 Amendments and Modifications.
Upon the written consent of the Company and the Holders of at least a majority in interest of the Registrable Securities at the time in
question, compliance with any of the provisions, covenants and conditions set forth in this Agreement may be waived, or any of such provisions,
covenants or conditions may be amended or modified; provided, however, that notwithstanding the foregoing, any amendment
hereto or waiver hereof that adversely affects one Holder, solely in his, her or its capacity as a holder of the capital shares of the
Company, in a manner that is materially different from the other Holders (in such capacity) shall require the consent of the Holder so
affected. No course of dealing between any Holder or the Company and any other party hereto or any failure or delay on the part of a Holder
or the Company in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies of any Holder
or the Company. No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as a waiver or preclude
the exercise of any other rights or remedies hereunder or thereunder by such party.
5.6 Term. This Agreement
shall terminate upon the earlier of (i) the tenth anniversary of the date of this Agreement or (ii) the date as of which (A) all
of the Registrable Securities have been sold pursuant to a Registration Statement (but in no event prior to the applicable period referred
to in Section 4(a)(3) of the Securities Act and Rule 174 thereunder (or any successor rule promulgated thereafter
by the Commission)) or (B) the Holders of all Registrable Securities are permitted to sell the Registrable Securities without registration
pursuant to Rule 144 (or any similar provision) under the Securities Act with no volume or other restrictions or limitations. The
provisions of Section 3.4 and Article IV shall survive any termination.
[Signature page follows]
8
IN WITNESS WHEREOF,
the undersigned have caused this Agreement to be executed as of the date first written above.
COMPANY:
SUNCRETE, INC., a Delaware corporation
By:
/s/ Randall Edgar
Name:
Randall Edgar
Title:
Chief Executive Officer
HOLDERS:
HAYMAKER SPONSOR IV LLC, a Delaware limited liability company
By:
/s/ Andrew Heyer
Name:
Andrew Heyer
Title:
Authorized Signatory
[Signature Page to Amended and Restated
Registration Rights Agreement]
EX-10.2 — EXHIBIT 10.2
EX-10.2
Filename: tm2611641d1_ex10-2.htm · Sequence: 8
Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT
(this “Agreement”), dated as of April 8, 2026, is made and entered into by and among Suncrete, Inc.,
a Delaware corporation (the “Company”), Dothan Independent GP, LP, a Texas limited partnership (“Dothan
Independent”), Dothan Concrete Investors, LLC, a Delaware limited liability company (“Dothan Concrete”),
and Eaglesnest Investments, LLC, an Oklahoma limited liability company (“Eaglesnest” and, collectively with
Dothan Independent and Dothan Concrete, and any person or entity who hereafter becomes a party to this Agreement pursuant to Section 5.2,
the “Holders” and each individually, a “Holder”).
RECITALS
WHEREAS,
on October 9, 2025, the Company, Haymaker Acquisition Corp. 4, a Cayman Islands exempted company (“SPAC”),
, Haymaker Merger Sub I, Inc., a Delaware corporation and wholly owned direct subsidiary of the Company (“Merger Sub
I”), Haymaker Merger Sub II, LLC, a Delaware limited liability company and a wholly owned subsidiary of the Company (“Merger
Sub II”), and Concrete Partners Holding, LLC, a Delaware limited liability company (the “Target”),
entered into that certain Business Combination Agreement (as amended, the “Business Combination Agreement”);
WHEREAS,
pursuant to the Business Combination Agreement, on the date hereof, among other things, (a) SPAC changed its jurisdiction of incorporation
from the Cayman Islands to the State of Delaware (the “Domestication”), (b) Merger Sub I merged with and
into SPAC (the “Initial Merger”), with SPAC surviving the Initial Merger as a wholly owned subsidiary of the
Company, and (c) immediately after the Initial Merger, Merger Sub II merged with and into the Target (the “Acquisition
Merger”), with the Target surviving the Acquisition Merger as a wholly owned subsidiary of the Company (the Acquisition
Merger, together with the Initial Merger, the “Mergers” and, collectively with the Domestication, the “Business
Combination”);
WHEREAS,
in connection with the consummation of the Business Combination, the Holders received shares of the Company’s Class A common
stock, par value $0.0001 per share (the “Class A Common Stock”), and shares of the Company’s Class B
common stock, par value $0.0001 per share (the “Class B Common Stock” and, together with the Class A
Common Stock, the “Common Stock”), as applicable; and
WHEREAS,
the Company and the Holders desire to enter into this Agreement, pursuant to which the Company shall grant the Holders certain registration
rights with respect to certain securities of the Company, as set forth in this Agreement.
NOW,
THEREFORE, in consideration of the representations, covenants and agreements contained herein, and certain other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
Article I
DEFINITIONS
1.1 Definitions. The
terms defined in this Article I shall, for all purposes of this Agreement, have the respective meanings set forth below:
“Adverse Disclosure”
shall mean any public disclosure of material non-public information, which disclosure, in the good faith judgment of the Chief Executive
Officer or Chief Financial Officer of the Company, after consultation with counsel to the Company, (a) would be required to be made
in (i) any Registration Statement in order for the applicable Registration Statement not to contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any
Prospectus in order for the applicable Prospectus not to include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (b) would
not be required to be made at such time if the Registration Statement were not being filed, declared effective or used, as the case may
be, and (c) the Company has a bona fide business purpose for not making such information public.
“Agreement”
shall have the meaning given in the Preamble.
“Block Trade”
shall have the meaning given to it in subsection 2.4.1.
“Board”
shall mean the board of directors of the Company.
“Business Combination”
shall have the meaning given in the Recitals hereto.
“Business Combination
Agreement” shall have the meaning given in the Recitals hereto.
“Class A
Common Stock” shall have the meaning given in the Recitals hereto.
“Class B
Common Stock” shall have the meaning given in the Recitals hereto.
“Commission”
shall mean the United States Securities and Exchange Commission.
“Company”
shall have the meaning given in the Preamble and includes the Company’s successors by recapitalization, merger, consolidation, spin-off,
reorganization or similar transaction.
“Demanding Holder”
shall have the meaning given in subsection 2.1.5.
“Demand Notice”
shall have the meaning given in subsection 2.1.5.
“Dothan Concrete”
shall have the meaning given in the Preamble.
“Dothan Independent”
shall have the meaning given in the Preamble.
“Eaglesnest”
shall have the meaning given in the Recitals hereto.
“Effectiveness
Period” shall have the meaning given in subsection 3.1.1.
“Exchange Act”
shall mean the Securities Exchange Act of 1934, as it may be amended from time to time.
“Financial Counterparty”
shall have the meaning given in subsection 2.4.1.
“Form S-1”
means a Registration Statement on Form S-1 or any similar long-form registration statement that may be available at such time.
“Form S-3”
means a Registration Statement on Form S-3 or any similar short-form registration statement that may be available at such time.
“Holder Indemnified
Persons” shall have the meaning given in subsection 4.1.1.
“Holder Information”
shall have the meaning given in subsection 4.1.2.
“Holders”
shall have the meaning given in the Preamble.
“Initial Merger”
shall have the meaning given in the Recitals hereto.
“Maximum Number
of Securities” shall have the meaning given in subsection 2.1.6.
“Merger Sub I”
shall have the meaning given in the Recitals hereto.
“Merger Sub II”
shall have the meaning given in the Recitals hereto.
“Mergers”
shall have the meaning given in the Recitals hereto.
2
“Minimum Underwritten
Offering Threshold” shall have the meaning given in subsection 2.1.5.
“Misstatement”
shall mean, in the case of a Registration Statement, an untrue statement of a material fact or an omission to state a material fact required
to be stated therein, or necessary to make the statements therein not misleading, and in the case of a Prospectus, an untrue statement
of a material fact or an omission to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
“Other Coordinated
Offering” shall have the meaning given to it in subsection 2.4.1.
“Permitted Transferees”
shall mean (a) the members of a Holder’s immediate family (for purposes of this Agreement, “immediate family” shall
mean with respect to any natural person, any of the following: such person’s spouse, the siblings of such person and his or her
spouse, and the direct descendants and ascendants (including adopted and step children and parents) of such person and his or her spouses
and siblings), (b) any trust for the direct or indirect benefit of a Holder or the immediate family of a Holder, (c) if a Holder
is a trust, to the trustor or beneficiary of such trust or to the estate of a beneficiary of such trust, (d) any officer, director,
general partner, limited partner, shareholder, member or owner of similar equity interests in a Holder or (e) any affiliate of a
Holder or the immediate family of such affiliate.
“Piggyback Notice”
shall have the meaning given in subsection 2.2.1.
“Piggyback Registration”
shall have the meaning given in subsection 2.2.1.
“Pro Rata”
shall have the meaning given in subsection 2.1.6.
“Prospectus”
shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended
by any and all post-effective amendments and including all material incorporated by reference in such prospectus.
“Registrable Security”
shall mean (a) any outstanding shares of Class A Common Stock (including the shares of Class A Common Stock issued or issuable
upon the exercise of any other equity security) held by a Holder immediately following the consummation of the Business Combination, (b) any
shares of Class A Common Stock issued or issuable upon conversion of shares of Class B Common Stock issued to a Holder pursuant
to the Business Combination Agreement, and (c) any other equity security of the Company issued or issuable with respect to any Registrable
Security by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation
or reorganization; provided, however, that, as to any particular Registrable Securities, such securities shall cease to be Registrable
Securities when: (i) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities
Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement; (ii) such
securities shall have been otherwise transferred to a person who is not entitled to the registration and other rights hereunder, new certificates
for such securities not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution
of such securities shall not require registration under the Securities Act; (iii) such securities shall have ceased to be outstanding;
(iv) such securities may be sold without registration pursuant to Rule 144 and Rule 145 (as applicable) promulgated under
the Securities Act (or any successor rule promulgated thereafter by the Commission) without volume or other restrictions or limitations;
or (v) such securities have been sold to, or through, a broker, dealer or underwriter in a public distribution or other public securities
transaction.
“Registration”
shall mean a registration effected by preparing and filing a registration statement or similar document in compliance with the requirements
of the Securities Act, and the applicable rules and regulations promulgated thereunder, and any such registration statement having
been declared effective by, or become effective pursuant to the rules promulgated by, the Commission.
3
“Registration
Expenses” shall mean the out-of-pocket expenses of a Registration, including, without limitation, the following:
(a) all registration and
filing fees (including fees with respect to filings required to be made with the Financial Industry Regulatory Authority, Inc. and
any national securities exchange on which the shares of Class A Common Stock are then listed);
(b) fees and expenses of
compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel for the Underwriters in connection
with blue sky qualifications of Registrable Securities);
(c) printing, messenger,
telephone and delivery expenses;
(d) reasonable fees and
disbursements of counsel for the Company;
(e) reasonable fees and
disbursements of all independent registered public accountants of the Company incurred specifically in connection with such Registration
or Underwritten Offering; and
(f) the fees and expenses
incurred by the Company in connection with any Underwritten Offerings or other offering involving an Underwriter.
“Registration
Statement” shall mean any registration statement under the Securities Act that covers the Registrable Securities pursuant
to the provisions of this Agreement, including the Prospectus included in such registration statement, amendments (including post-effective
amendments) and supplements to such registration statement and all exhibits to and all material incorporated by reference in such registration
statement.
“Requesting Holder”
shall have the meaning given in subsection 2.1.5.
“Securities Act”
shall mean the Securities Act of 1933, as amended from time to time.
“Shelf Registration”
shall have the meaning given in subsection 2.1.1.
“SPAC”
shall have the meaning given in the Recitals hereto.
“Subsequent Shelf
Registration Statement” shall have the meaning given in subsection 2.1.3.
“Suspension Period”
shall have the meaning given in Section 2.5.
“Target”
shall have the meaning given in the Recitals hereto.
“Transfer”
shall mean the (a) sale or assignment of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option
to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent
position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the
Exchange Act with respect to, any security, (b) entry into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such
securities, in cash or otherwise, or (c) public announcement of any intention to effect any transaction specified in the foregoing
clause (a) or (b).
“Underwriter”
shall mean a securities dealer who purchases any Registrable Securities as principal or as broker, placement agent or sales agent pursuant
to a Registration and not as part of such dealer’s market-making activities.
“Underwritten
Demand” shall have the meaning given in subsection 2.1.5.
“Underwritten
Offering” shall mean a Registration in which securities of the Company are sold to an Underwriter in a firm commitment underwriting
for distribution to the public.
4
Article II
REGISTRATIONS
2.1 Registration.
2.1.1 Shelf Registration.
The Company agrees that, within thirty (30) calendar days after the date hereof, the Company will use its commercially reasonable efforts
to file with the Commission (at the Company’s sole cost and expense) a Registration Statement registering the resale or other disposition
of all of the Registrable Securities (determined as of two (2) business days prior to such submission or filing) on Form S-1
(a “Shelf Registration”) on a delayed or continuous basis. Such Shelf Registration shall provide for the resale
of the Registrable Securities included therein pursuant to any method or combination of methods legally available to, and requested by,
any Holder named therein. The Company shall maintain a Shelf Registration in accordance with the terms of this Agreement, and shall prepare
and file with the Commission such amendments, including post-effective amendments, and supplements as may be necessary to keep a Shelf
Registration continuously effective, available for use to permit the Holders named therein to sell their Registrable Securities included
therein and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities.
In the event the Company files a Shelf Registration on Form S-1, the Company shall use its commercially reasonable efforts to convert
the Shelf Registration on Form S-1 (and any Subsequent Shelf Registration Statement) to a Shelf Registration on Form S-3 as
soon as practicable after the Company is eligible to use Form S-3. The Company’s obligation under this subsection 2.1.1
shall, for the avoidance of doubt, be subject to Section 3.4.
2.1.2 Effective Registration.
The Company shall use its commercially reasonable efforts to cause such Registration Statement to become effective by the Commission as
soon as reasonably practicable after the initial filing of the Registration Statement, but no later than the earlier of (a) sixty
(60) calendar days (or ninety (90) calendar days if the Commission notifies the Company that it will “review” such Shelf Registration)
following the initial filing date thereof and (b) ten (10) business days after the Company is notified (orally or in writing,
whichever is earlier) by the Commission that such Shelf Registration will not be “reviewed” or will not be subject to further
review. Subject to the limitations contained in this Agreement, the Company shall effect any Shelf Registration on such appropriate registration
form of the Commission (a) as shall be selected by the Company and (b) as shall permit the resale or other disposition of the
Registrable Securities by the Holders. If at any time a Registration Statement filed with the Commission pursuant to subsection 2.1.1
is effective and a Holder provides written notice to the Company that it intends to effect an offering of all or part of the Registrable
Securities included on such Registration Statement, the Company will use its commercially reasonable efforts to amend or supplement such
Registration Statement as may be necessary in order to enable such offering to take place in accordance with the terms of this Agreement.
2.1.3 Subsequent Shelf Registration.
If any Registration Statement ceases to be effective under the Securities Act for any reason at any time while Registrable Securities
are still outstanding, the Company shall, subject to Section 3.4, use its commercially reasonable efforts to as promptly as
is reasonably practicable cause such Registration Statement to again become effective under the Securities Act (including using its commercially
reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness of such Registration Statement), and shall
use its commercially reasonable efforts to as promptly as is reasonably practicable amend such Registration Statement in a manner reasonably
expected to result in the withdrawal of any order suspending the effectiveness of such Registration Statement or file an additional Registration
Statement as a Shelf Registration (a “Subsequent Shelf Registration Statement”) registering the resale of all
Registrable Securities (determined as of two (2) business days prior to such filing) from time to time, and pursuant to any method
or combination of methods legally available to, and requested by, any Holder named therein. If a Subsequent Shelf Registration Statement
is filed, the Company shall use its commercially reasonable efforts to (a) cause such Subsequent Shelf Registration Statement to
become effective under the Securities Act as promptly as is reasonably practicable after the filing thereof (it being agreed that the
Subsequent Shelf Registration Statement shall be an automatic shelf registration statement (as defined in Rule 405 promulgated under
the Securities Act) if the Company is a well-known seasoned issuer (as defined in Rule 405 promulgated under the Securities Act)
at the most recent applicable eligibility determination date) and (ii) keep such Subsequent Shelf Registration Statement continuously
effective, available for use to permit the Holders named therein to sell their Registrable Securities included therein and in compliance
with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. Any such Subsequent Shelf
Registration Statement shall be on Form S-3 to the extent that the Company is eligible to use such form. Otherwise, such Subsequent
Shelf Registration Statement shall be on another appropriate form. The Company’s obligation under this subsection 2.1.3,
shall, for the avoidance of doubt, be subject to Section 3.4.
5
2.1.4 Additional Registrable
Securities. Subject to Section 3.4, in the event that any Holder holds Registrable Securities that are not registered
for resale on a delayed or continuous basis, the Company, upon written request of such Holder, shall promptly use its commercially reasonable
efforts to cause the resale of such Registrable Securities to be covered, at the Company’s option, by any then available Registration
Statement (including by means of a post-effective amendment) or by filing a Subsequent Shelf Registration Statement and cause the same
to become effective as soon as practicable after such filing and such Registration Statement or Subsequent Shelf Registration Statement
shall be subject to the terms hereof; provided, however, that the Company shall only be required to cause such Registrable Securities
to be so covered twice per calendar year for each Holder.
2.1.5 Underwritten Offering.
Subject to the provisions of subsection 2.1.6, Section 2.5 and Section 3.4, any Holder or group of Holders
(any such Holder or group of Holders being in such case, a “Demanding Holder”) may make a written demand for
an Underwritten Offering pursuant to a Shelf Registration filed with the Commission in accordance with subsection 2.1.1 (an “Underwritten
Demand”); provided, that the Company shall only be obligated to effect an Underwritten Offering if such offering shall include
Registrable Securities proposed to be sold by the Demanding Holder, either individually or together with other Demanding Holders, with
a total offering price reasonably expected to exceed, in the aggregate, twenty million dollars ($20,000,000) (the “Minimum
Underwritten Offering Threshold”). The Demanding Holder shall have the responsibility to engage an underwriter(s), which
shall consist of one or more reputable, nationally recognized investment banks; provided that such selection shall be subject to the consent
of the Company, which consent shall not be unreasonably withheld, conditioned or delayed, and the Company shall have no responsibility
for engaging any underwriter(s) for an Underwritten Offering. The Company shall, within five (5) business days of the Company’s
receipt of the Underwritten Demand, notify, in writing (such notice, the “Demand Notice”), all other Holders
of such demand, and each Holder who thereafter requests to include all or a portion of such Holder’s Registrable Securities in such
Underwritten Offering pursuant to such Underwritten Demand (each such Holder, a “Requesting Holder”) shall so
notify the Company, in writing, within two (2) days (one (1) day if such offering is an overnight or bought Underwritten Offering)
after the receipt by such Holder of the notice from the Company. Upon receipt by the Company of any such written notification from a Requesting
Holder(s), such Requesting Holder(s) shall be entitled to have their Registrable Securities included in such Underwritten Offering
pursuant to such Underwritten Demand. All Holders proposing to distribute their Registrable Securities through such Underwritten Offering
under this subsection 2.1.5 shall enter into an underwriting agreement in customary form with the Underwriter(s) selected
for such Underwritten Offering by the Demanding Holders initiating such Underwritten Offering. Notwithstanding the foregoing, the Company
is not obligated to effect more than two (2) Underwritten Offerings demanded by the Holders pursuant to this subsection 2.1.5
in any twelve (12) month period and is not obligated to effect an Underwritten Offering pursuant to this subsection 2.1.5 within
ninety (90) days after the closing of an Underwritten Offering, Block Trade or Other Coordinated Offering.
2.1.6 Reduction of Underwritten
Offering. If the managing Underwriter or Underwriters in an Underwritten Offering, pursuant to an Underwritten Demand, in good faith,
advises or advise the Company, the Demanding Holders, the Requesting Holders and other persons or entities holding Registrable Securities
or other equity securities of the Company that were requested to be included in such Underwritten Offering, taken together with all other
shares of Common Stock or other securities which the Company desires to sell and the shares of Common Stock or other securities, if any,
as to which registration has been requested pursuant to written contractual piggyback registration rights held by other equity holders
of the Company who desire to sell (if any) that the dollar amount or number of Registrable Securities or other equity securities of the
Company requested to be included in such Underwritten Offering exceeds the maximum dollar amount or maximum number of equity securities
of the Company that can be sold in the Underwritten Offering without adversely affecting the proposed offering price, the timing, the
distribution method or the probability of success of such offering (such maximum dollar amount or maximum number of such securities, as
applicable, the “Maximum Number of Securities”), then the Company shall include in such Underwritten Offering,
as follows: (a) first, the Registrable Securities of the Demanding Holders (pro rata based on the respective number of Registrable
Securities then owned by each such Demanding Holder (such proportion is referred to herein as “Pro Rata”)) that
can be sold without exceeding the Maximum Number of Securities; (b) second, to the extent that the Maximum Number of Securities has
not been reached under the foregoing clause (a), the Registrable Securities of the Requesting Holders, Pro Rata, which can be sold without
exceeding the Maximum Number of Securities; (c) third, to the extent that the Maximum Number of Securities has not been reached under
the foregoing clauses (a) and (b), the shares of Common Stock or other equity securities of the Company that the Company desires
to sell and that can be sold without exceeding the Maximum Number of Securities; and (d) fourth, to the extent that the Maximum Number
of Securities has not been reached under the foregoing clauses (a), (b) and (c), the shares of Common Stock or other equity securities
of the Company held by other persons or entities that the Company is obligated to include pursuant to separate written contractual arrangements
with such persons or entities and that can be sold without exceeding the Maximum Number of Securities.
6
2.1.7 Withdrawal. Prior
to the filing of the applicable “red herring” prospectus or prospectus supplement used for marketing such Underwritten Offering,
a majority-in-interest of the Demanding Holders initiating an Underwritten Offering pursuant to subsection 2.1.5 shall have the
right to withdraw from such Underwritten Offering for any or no reason whatsoever upon written notification (a “Withdrawal
Notice”) to the Company and the Underwriter or Underwriters (if any) of their intention to withdraw from such Underwritten
Offering; provided that a Holder may elect to have the Company continue an Underwritten Offering if the Minimum Underwritten Offering
Threshold would still be satisfied by the Registrable Securities proposed to be sold in the Underwritten Offering by such Holder. If withdrawn,
a demand for an Underwritten Offering shall constitute a demand for an Underwritten Offering by the withdrawing Demanding Holder for purposes
of subsection 2.1.5, unless either (i) such Demanding Holder has not previously withdrawn any Underwritten Offering or (ii) such
Demanding Holder reimburses the Company for all Registration Expenses with respect to such Underwritten Offering (or, if there is more
than one Demanding Holder, a pro rata portion of such Registration Expenses based on the respective number of Registrable Securities that
each Demanding Holder has requested be included in such Underwritten Offering). Following the receipt of any Withdrawal Notice, the Company
shall promptly forward such Withdrawal Notice to any other Holders that had elected to participate in such Underwritten Offering. Notwithstanding
anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with
an Underwritten Demand prior to its withdrawal under this subsection 2.1.7, other than if a Demanding Holder elects to pay such
Registration Expenses pursuant to clause (ii) of the second sentence of this subsection 2.1.7.
2.2 Piggyback Registration.
2.2.1 Piggyback Rights.
Subject to the provisions of subsection 2.2.2 and Section 2.5, if, at any time on or after the date hereof, the Company
proposes to consummate an Underwritten Offering for its own account or for the account of stockholders of the Company, then the Company
shall give written notice of such proposed action as soon as practicable to all Holders (the “Piggyback Notice”),
which notice shall (a) describe the amount and type of securities to be included, the intended method(s) of distribution and
the name of the proposed managing Underwriter or Underwriters, if any, and (b) offer to all of the Holders the opportunity to include
such number of Registrable Securities as such Holders may request in writing within two (2) days (one (1) day if such offering
is an overnight or bought Underwritten Offering), in each case after receipt of such written notice (such Registration, a “Piggyback
Registration”). The Company shall, in good faith, cause such Registrable Securities to be included in such Piggyback Registration
and shall use its commercially reasonable efforts to cause the managing Underwriter or Underwriters of a proposed Underwritten Offering
to permit the Registrable Securities requested by the Holders pursuant to this subsection 2.2.1 to be included in a Piggyback Registration
on the same terms and conditions as any similar securities of the Company included in such Piggyback Registration and to permit the resale
or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. All Holders
proposing to include Registrable Securities in an Underwritten Offering under this subsection 2.2.1 shall enter into an underwriting
agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the Company.
2.2.2 Reduction of Piggyback
Registration. If the managing Underwriter or Underwriters in an Underwritten Offering that is to be a Piggyback Registration, in good
faith, advises the Company and the Holders of Registrable Securities participating in the Piggyback Registration in writing that the dollar
amount or number of shares of Class A Common Stock or other equity securities of the Company that the Company desires to sell, taken
together with (i) the shares of Class A Common Stock or other equity securities of the Company, if any, as to which the Underwritten
Offering has been demanded pursuant to separate written contractual arrangements with persons or entities other than the Holders of Registrable
Securities hereunder, (ii) the Registrable Securities as to which a Piggyback Registration has been requested pursuant to Section 2.2
and (iii) the shares of Class A Common Stock or other equity securities of the Company, if any, as to which inclusion in the
Underwritten Offering has been requested pursuant to separate written contractual piggyback registration rights of other stockholders
of the Company, exceeds the Maximum Number of Securities, then:
7
(a) If the Underwritten
Offering is undertaken for the Company’s account, the Company shall include in any such Underwritten Offering (i) first, the
shares of Class A Common Stock or other equity securities of the Company that the Company desires to sell, which can be sold without
exceeding the Maximum Number of Securities; (ii) second, to the extent that the Maximum Number of Securities has not been reached
under the foregoing clause (i), the Registrable Securities of Holders requesting a Piggyback Registration pursuant to subsection 2.2.1,
Pro Rata, which can be sold without exceeding the Maximum Number of Securities; and (iii) third, to the extent that the Maximum Number
of Securities has not been reached under the foregoing clauses (i) and (ii), the shares of Class A Common Stock or other equity
securities of the Company, if any, as to which inclusion in the Underwritten Offering has been requested pursuant to written contractual
piggyback registration rights of other stockholders of the Company, which can be sold without exceeding the Maximum Number of Securities;
(b) If the Underwritten
Offering is pursuant to a request by persons or entities other than the Holders of Registrable Securities, then the Company shall include
in any such Underwritten Offering (i) first, the shares of Class A Common Stock or other equity securities of the Company, if
any, of such requesting persons or entities, other than the Holders, which can be sold without exceeding the Maximum Number of Securities;
(ii) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), the Registrable
Securities of Holders requesting a Piggyback Registration pursuant to subsection 2.2.1, Pro Rata, which can be sold without exceeding
the Maximum Number of Securities; (iii) third, to the extent that the Maximum Number of Securities has not been reached under the
foregoing clauses (i) and (ii), the shares of Class A Common Stock or other equity securities of the Company that the Company
desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (iv) fourth, to the extent that the Maximum
Number of Securities has not been reached under the foregoing clauses (i), (ii) and (iii), the shares of Class A Common Stock
or other equity securities of the Company for the account of other persons or entities that the Company is obligated to register pursuant
to separate written contractual arrangements with such persons or entities, which can be sold without exceeding the Maximum Number of
Securities; or
(c) If the Underwritten
Offering is pursuant to a request by Holder(s) of Registrable Securities pursuant to Section 2.1, then the Company shall
include in any such Registration or registered offering securities in the priority set forth in subsection 2.1.6.
2.2.3 Piggyback Registration
Withdrawal. Any Holder of Registrable Securities (other than a Demanding Holder, whose right to withdraw from an Underwritten Offering,
and related obligations, shall be governed by subsection 2.1.7) shall have the right to withdraw from a Piggyback Registration
upon written notification to the Company and the Underwriter or Underwriters (if any) of his, her or its intention to withdraw from such
Piggyback Registration prior to the commencement of the Underwritten Offering. Notwithstanding anything to the contrary in this Agreement,
the Company shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration prior to its withdrawal
under this subsection 2.2.3. The Company (whether on its own good faith determination or as a result of a withdrawal by persons
making a demand pursuant to written contractual obligations) may withdraw an Underwritten Offering undertaken for the Company’s
account at any time prior to the effectiveness of such Registration Statement.
2.2.4 Unlimited Piggyback
Registration Rights. For purposes of clarity, subject to subsection 2.1.7, any Piggyback Registration or Underwritten Offering
effected pursuant to Section 2.2 shall not be counted as an Underwritten Offering pursuant to an Underwritten Demand effected
under Section 2.1.
2.3 Market Stand Off.
In connection with any Underwritten Offering (other than a Block Trade or Other Coordinated Offering), if requested by the managing Underwriter
or Underwriters, each Holder of Registrable Securities that participates and sells Registrable Securities in such Underwritten Offering
(and for which it is customary for such a Holder to agree to a lock-up) agrees that it shall not Transfer any shares of Class A Common
Stock or other equity securities of the Company (other than those included in such offering pursuant to this Agreement), including a Transfer
pursuant to Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission),
without the prior written consent of the managing Underwriter or Underwriters, during the period beginning on the date of pricing of such
offering and expiring on the earlier of (a) ninety (90) days thereafter and (b) the date agreed to by the directors, officers
and all one percent (1%) or greater stockholders of the Company and as set forth in such party’s lock-up agreement. Each such Holder
that participates and sells Registrable Securities in such Underwritten Offering agrees to execute a customary lock-up agreement in favor
of the Underwriters to such effect (in each case on substantially the same terms and conditions as all such Holders that execute a lock-up
agreement).
8
2.4 Block Trades; Other
Coordinated Offerings.
2.4.1 Notwithstanding any other
provision of this Article II, but subject to Section 3.4, at any time and from time to time when an effective Registration
Statement is on file with the Commission, if a Demanding Holder notifies the Company that such Demanding Holder wishes to engage in (a) an
underwritten registered offering not involving a “roadshow,” an offer commonly known as a “block trade” (a “Block
Trade”) or (b) an “at the market” or similar registered offering through a broker, sales agent or distribution
agent, whether as agent or principal (an “Other Coordinated Offering”), in each case, (x) with a total
offering price reasonably expected to exceed ten million dollars ($10,000,000) in the aggregate or (y) with respect to all remaining
Registrable Securities held by the Demanding Holder, then such Demanding Holder only needs to notify the Company of the Block Trade or
Other Coordinated Offering at least five (5) business days prior to the day such offering is to commence and, if so requested by
such Demanding Holder, the Company shall as expeditiously as possible use its commercially reasonable efforts to facilitate such Block
Trade or Other Coordinated Offering; provided that the Demanding Holders representing a majority of the Registrable Securities wishing
to engage in the Block Trade or Other Coordinated Offering shall use commercially reasonable efforts to work with the Company and any
Underwriters or brokers, sales agents or placement agents (each, a “Financial Counterparty”) prior to making
such request in order to facilitate preparation of the registration statement, prospectus and other offering documentation related to
the Block Trade or Other Coordinated Offering.
2.4.2 Prior to the filing of
the applicable “red herring” prospectus or prospectus supplement used in connection with a Block Trade or Other Coordinated
Offering, a majority-in-interest of the Demanding Holders initiating such Block Trade or Other Coordinated Offering shall have the right
to submit a written notification to the Company, the Underwriter or Underwriters (if any) and Financial Counterparty (if any) of their
intention to withdraw from such Block Trade or Other Coordinated Offering. Notwithstanding anything to the contrary in this Agreement,
the Company shall be responsible for the Registration Expenses incurred in connection with a Block Trade or Other Coordinated Offering
prior to its withdrawal under this subsection 2.4.2.
2.4.3 Notwithstanding anything
to the contrary in this Agreement, Section 2.2 shall not apply to a Block Trade or Other Coordinated Offering initiated by
a Demanding Holder pursuant to Section 2.4.
2.4.4 The Demanding Holder in
a Block Trade or Other Coordinated Offering shall have the right to select the Underwriters and Financial Counterparty (if any) for such
Block Trade or Other Coordinated Offering (in each case, which shall consist of one or more reputable nationally recognized investment
banks).
2.4.5 Notwithstanding the foregoing,
the Company is not obligated to effect more than an aggregate of two (2) Block Trades or Other Coordinated Offerings demanded by
the Holders pursuant to this Section 2.4 in any twelve (12) month period and is not obligated to effect a Block Trade or Other
Coordinated Offering pursuant to this Section 2.4 within ninety (90) days after the closing of an Underwritten Offering, Block
Trade or Other Coordinated Offering. For the avoidance of doubt, any Block Trade or Other Coordinated Offering effected pursuant to this
Section 2.4 shall not be counted as a demand for an Underwritten Offering pursuant to subsection 2.1.5.
2.5 Restrictions on Registration
Rights. If the Holders have requested an Underwritten Offering pursuant to an Underwritten Demand and in the good faith judgment of
the Board such Underwritten Offering would be seriously detrimental to the Company and the Board concludes as a result that it is essential
to defer the undertaking of such Underwritten Offering at such time, then in each case the Company shall furnish to such Holders a certificate
signed by the Chairman of the Board stating that in the good faith judgment of the Board it would be seriously detrimental to the Company
to undertake such Underwritten Offering in the near future and that it is therefore essential to defer the undertaking of such Underwritten
Offering (any such period, a “Suspension Period”). In such event, the Company shall have the right to defer
such offering for a period of not more than ninety (90) days in any twelve-month period; provided, however, that the Company shall not
defer its obligations in this manner more than once in any twelve (12) month period.
9
Article III
COMPANY PROCEDURES
3.1 General Procedures.
The Company shall use its commercially reasonable efforts to effect such Registration or Underwritten Offering to permit the resale or
other disposition of such Registrable Securities in accordance with the intended plan of distribution thereof (and including all manners
of distribution in such Registration Statement as Holders may reasonably request in connection with the filing of such Registration Statement
and as permitted by law, including distribution of Registrable Securities to a Holder’s members, securityholders or partners), and
pursuant thereto the Company shall, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file with
the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its commercially reasonable
efforts to cause such Registration Statement to become effective and remain effective in accordance with Section 2.1, including
filing a replacement Registration Statement, if necessary, until all Registrable Securities covered by such Registration Statement have
ceased to be Registrable Securities (such period, the “Effectiveness Period”);
3.1.2 prepare and file with
the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as
may be reasonably requested by any Holder that holds at least five percent (5%) of the Registrable Securities registered on such Registration
Statement (provided that such Holders of Registrable Securities may demand that the Company prepare and file with the Commission not more
than two (2) amendments and post-effective amendments to the Registration Statement and supplements to the Prospectus in any twelve
(12) month period) or any Underwriter or as may be required by the rules, regulations or instructions applicable to the registration form
used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until
all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth
in such Registration Statement or supplement to the Prospectus or have ceased to be Registrable Securities;
3.1.3 prior to filing a Registration
Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters or Financial Counterparty,
if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering or Block Trade, and such Holders’
legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement
(in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus (including each preliminary
Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or Underwritten
Offering or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities
owned by such Holders; provided that the Company will not have any obligation to provide any document pursuant to this subsection 3.1.3
that is available on the Commission’s EDGAR system;
3.1.4 prior to any Underwritten
Offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities
covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States
as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may
reasonably request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration
or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement
to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations
of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable
Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions;
provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise
be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction
where it is not then otherwise so subject;
3.1.5 use commercially reasonable
efforts to cause all such Registrable Securities to be listed on each national securities exchange or automated quotation system on which
similar securities issued by the Company are then listed;
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3.1.6 provide a transfer agent
and registrar for all such Registrable Securities no later than the effective date of such Registration Statement or Underwritten Offering;
3.1.7 advise each seller of
such Registrable Securities, promptly after it receives notice or obtains knowledge thereof, of the issuance of any stop order by the
Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose
and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop
order should be issued;
3.1.8 during the Effectiveness
Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration
Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly
after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided that the
Company will not have any obligation to provide any document pursuant to this subsection 3.1.8 that is available on the Commission’s
EDGAR system;
3.1.9 notify the Holders at
any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening
of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement,
and then to correct such Misstatement as set forth in Section 3.4;
3.1.10 in the event of an Underwritten
Offering, a Block Trade, an Other Coordinated Offering, or sale by a Financial Counterparty pursuant to such Registration, permit a representative
of the Holders (such representative to be selected by a majority of the Holders), the Underwriters or other Financial Counterparty facilitating
such Underwritten Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, if any, and any attorney,
consultant or accountant retained by such Holders or Underwriter to participate, at each such person’s or entity’s own expense,
in the preparation of the Registration Statement or the Prospectus, and cause the Company’s officers, directors and employees to
supply all information reasonably requested by any such representative, Underwriter, Financial Counterparty, attorney, consultant or accountant
in connection with the Registration; provided, however, that such representatives or Underwriters or Financial Counterparty agree to confidentiality
arrangements in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a comfort letter
from the Company’s independent registered public accountants in the event of an Underwritten Offering, a Block Trade or sale by
a Financial Counterparty pursuant to such Registration (subject to such Financial Counterparty providing such certification or representation
reasonably requested by the Company’s independent registered public accountants and the Company’s counsel), in customary form
and covering such matters of the type customarily covered by comfort letters as the managing Underwriter or Underwriters may reasonably
request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 in the event of an Underwritten
Offering, a Block Trade, an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration, on the date
the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing
the Company for the purposes of such Registration, addressed to the participating Holders, the Financial Counterparty, if any, and the
Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as
the participating Holders, Financial Counterparty or Underwriter may reasonably request and as are customarily included in such opinions
and negative assurance letters;
3.1.13 in the event of an Underwritten
Offering or a Block Trade, or an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration to which
the Company has consented, to the extent reasonably requested by such Financial Counterparty in order to engage in such offering, allow
the Financial Counterparty to conduct customary “underwriter’s due diligence” with respect to the Company;
3.1.14 in the event of any Underwritten
Offering, a Block Trade, an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration, enter into and
perform its obligations under an underwriting or other purchase or sales agreement, in usual and customary form, with the managing Underwriter
or Underwriters or the Financial Counterparty of such offering or sale;
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3.1.15 make available to its
security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning
with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated
thereafter by the Commission), and which requirement will be deemed to be satisfied if the Company timely files complete and accurate
information on Forms 10-Q, 10-K and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act;
3.1.16 with respect to an Underwritten
Offering pursuant to subsection 2.1.5, use its commercially reasonable efforts to make available senior executives of the Company
to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten
Offering; and
3.1.17 otherwise, in good faith,
cooperate reasonably with, and take such customary actions as may reasonably be requested by the participating Holders, consistent with
the terms of this Agreement, in connection with such Registration.
Notwithstanding the foregoing, the Company shall
not be required to provide any documents or information to an Underwriter or Financial Counterparty if such Underwriter or Financial Counterparty
has not then been named with respect to the applicable Underwritten Offering or other offering involving a registration as an Underwriter
or Financial Counterparty, as applicable.
3.2 Registration Expenses.
The Registration Expenses in respect of all Registrations shall be borne by the Company. It is acknowledged by the Holders that the Holders
shall bear all incremental selling expenses relating to the sale of Registrable Securities, such as Underwriters’ commissions and
discounts, brokerage fees and Underwriter marketing costs.
3.3 Requirements for Participation
in Underwritten Offerings. Notwithstanding anything in this Agreement to the contrary, if any Holder does not timely provide the Company
with its requested Holder Information, the Company may exclude such Holder’s Registrable Securities from the applicable Registration
Statement or Prospectus if the Company determines, based on the advice of counsel, that such information is necessary to effect the registration
and such Holder continues thereafter to withhold such information. No person or entity may participate in any Underwritten Offering for
equity securities of the Company pursuant to a Registration initiated by the Company hereunder unless such person or entity (a) agrees
to sell such person’s or entity’s securities on the basis provided in any underwriting arrangements approved by the Company
and (b) timely completes and executes all customary questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting
agreements and other customary documents as may be reasonably required under the terms of such underwriting arrangements. For the avoidance
of doubt, the exclusion of a Holder’s Registrable Securities as a result of this Section 3.3 shall not affect the registration
of the other Registrable Securities to be included in such Registration.
3.4 Suspension of Sales;
Adverse Disclosure. Upon receipt of written notice from the Company that a Registration Statement or Prospectus contains or includes
a Misstatement, each of the Holders shall forthwith discontinue disposition of Registrable Securities until he, she or it has received
copies of a supplemented or amended Registration Statement or Prospectus correcting the Misstatement (it being understood that the Company
hereby covenants to prepare and file such supplement or amendment as soon as reasonably practicable after the time of such notice), or
until he, she or it is advised in writing by the Company that the use of the Registration Statement or Prospectus may be resumed. If the
filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration or Underwritten Offering at
any time would (a) require the Company to make an Adverse Disclosure, (b) require the inclusion in such Registration Statement
of financial statements that are unavailable to the Company for reasons beyond the Company’s control or (c) in the good faith
judgment of the majority of the Board such Registration be seriously detrimental to the Company and the majority of the Board concludes
as a result that it is essential to defer such filing, initial effectiveness or continued use at such time, the Company may, upon giving
prompt written notice of such action to the Holders (which notice shall not specify the nature of the event giving rise to such delay
or suspension), delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of
time determined in good faith by the Company to be necessary for such purpose; provided, however, that the Company may not delay or suspend
a Registration Statement, Prospectus or Underwritten Offering on more than two (2) occasions, for more than sixty (60) consecutive
calendar days, or more than one hundred-twenty (120) total calendar days, in each case during any twelve (12)-month period. In the event
the Company exercises its rights under the preceding sentences in this Section 3.4, the Holders agree to suspend, immediately
upon their receipt of the notices referred to in this Section 3.4, their use of the Registration Statement or Prospectus in
connection with any resale or other disposition of Registrable Securities. In addition, the Company may delay or suspend continued use
of a Registration Statement or Prospectus in respect of a Registration or Underwritten Offering in order to file and make effective a
post-effective amendment to such Registration Statement in connection with the filing of the Company’s Annual Report on Form 10-K.
The Company shall immediately notify the Holders of the expiration of any period during which it exercised its rights under this Section 3.4;
provided, that each Holder hereby (i) acknowledges that such notice referred to in the immediately preceding sentence shall constitute
confidential information of the Company and (ii) agrees to maintain in strict confidence and not to disclose to any person any information
contained in such notice (including, without limitation, the fact that the Company has delivered such notice to the Holders).
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3.5 Reporting Obligations.
As long as any Holder shall own Registrable Securities, the Company, at all times while it shall be a reporting company under the Exchange
Act, covenants to use commercially reasonable efforts to file timely (or obtain extensions in respect thereof and file within the applicable
grace period) all reports required to be filed by the Company after the date hereof pursuant to Sections 13(a) or 15(d) of
the Exchange Act. The Company further covenants that it shall take such further action as any Holder may reasonably request, all to the
extent required from time to time to enable such Holder to resell or otherwise dispose of shares of Registrable Securities held by such
Holder without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated under
the Securities Act (or any successor rule promulgated thereafter by the Commission), including providing any customary legal opinions.
Upon the request of any Holder, the Company shall deliver to such Holder a written certification of a duly authorized officer as to whether
it has complied with such requirements.
Article IV
INDEMNIFICATION AND CONTRIBUTION
4.1 Indemnification.
4.1.1 The Company agrees to
indemnify, to the extent permitted by law, each Holder of Registrable Securities, its officers, directors, employees, advisors, agents,
representatives, members and each person who controls such Holder (within the meaning of the Securities Act) (collectively, the “Holder
Indemnified Persons”) against all losses, claims, damages, liabilities and expenses resulting from any Misstatement or alleged
Misstatement, except insofar as the same are caused by or contained or included in any information furnished in writing to the Company
by or on behalf of such Holder Indemnified Person specifically for use therein.
4.1.2 In connection with any
Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish (or cause to be furnished)
to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration
Statement or Prospectus (the “Holder Information”) and, to the extent permitted by law, shall, severally and
not jointly, indemnify the Company, its officers, directors, employees, advisors, agents, representatives and each person who controls
the Company (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses resulting from any
Misstatement or alleged Misstatement, but only to the extent that the same are made in reliance on and in conformity with information
relating to the Holder so furnished in writing to the Company by or on behalf of such Holder specifically for use therein. In no event
shall the liability of any selling Holder hereunder be greater in amount than the net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Registration Statement giving rise to such indemnification obligation.
4.1.3 Any person or entity entitled
to indemnification herein shall (a) give prompt written notice to the indemnifying party of any claim with respect to which it seeks
indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder
to the extent such failure has not materially prejudiced the indemnifying party) and (b) unless in such indemnified party’s
reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim or there
may be reasonable defenses available to the indemnified party that are different from or additional to those available to the indemnifying
party, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party.
If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party
without its consent (but such consent shall not be unreasonably withheld, conditioned or delayed). An indemnifying party who is not entitled
to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all
parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party
a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim.
No indemnifying party shall, without the consent of the indemnified party, not to be unreasonably withheld, conditioned or delayed, consent
to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money
is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement includes a statement or admission of
fault and culpability on the part of such indemnified party or which settlement does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.
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4.1.4 The indemnification provided
for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified
party or any officer, director, employee, advisor, agent, representative, member or controlling person or entity of such indemnified party
and shall survive the transfer of securities. The Company and each Holder of Registrable Securities participating in an offering also
agrees to make such provisions as are reasonably requested by any indemnified party for contribution to such party in the event the Company’s
or such Holder’s indemnification is unavailable for any reason.
4.1.5 If the indemnification
provided under Section 4.1 is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect
of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu of indemnifying the
indemnified party, shall to the extent permitted by law contribute to the amount paid or payable by the indemnified party as a result
of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying
party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party
and indemnified party shall be determined by a court of law by reference to, among other things, whether the Misstatement or alleged Misstatement
relates to information supplied by such indemnifying party or such indemnified party and the indemnifying party’s and indemnified
party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however,
that the liability of any Holder under this subsection 4.1.5 shall be limited to the amount of the net proceeds received by such
Holder in such offering giving rise to such liability. The parties hereto agree that it would not be just and equitable if contribution
pursuant to this subsection 4.1.5 were determined by pro rata allocation or by any other method of allocation, which does not take
account of the equitable considerations referred to in this subsection 4.1.5. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this subsection
4.1.5 from any person who was not guilty of such fraudulent misrepresentation.
Article V
MISCELLANEOUS
5.1 Notices.
Any notice or communication under this Agreement must be in writing and given by (a) deposit in the United States mail, addressed
to the party to be notified, postage prepaid and registered or certified with return receipt requested, (b) delivery in person or
by courier service or sent by overnight mail via a reputable overnight carrier, in each case providing evidence of delivery or (c) transmission
by facsimile or email. Each notice or communication that is mailed, delivered or transmitted in the manner described above shall be deemed
sufficiently given, served, sent, and received, in the case of mailed notices, on the third (3rd) business day following the date on which
it is mailed, in the case of notices delivered by courier service, hand delivery, or overnight mail at such time as it is delivered to
the addressee (with the delivery receipt or the affidavit of messenger) or at such time as delivery is refused by the addressee upon presentation,
and in the case of notices delivered by facsimile or email, at such time as it is successfully transmitted to the addressee. Any notice
or communication under this Agreement must be addressed, if to the Company, to Suncrete, Inc., 817 E. 4th Street, Tulsa, OK 74120,
Attention: Chief Executive Officer, or by email at Randall@eagleredimix.com, with copy to: Haynes and Boone, LLP, 2801 N. Harwood Street,
Suite 2300, Dallas Texas 75201, Attention: Matthew L. Fry and Rachel O’Donnell, or by email at Matt.Fry@haynesboone.com
and Rachel.ODonnell@haynesboone.com, or if to any Holder, to the address as it appears on the applicable registrar for the Registrable
Securities or such other address as may be designated in writing by such holder.
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Any party may change its address
for notice at any time and from time to time by written notice to the other parties hereto, and such change of address shall become effective
thirty (30) days after delivery of such notice as provided in this Section 5.1.
5.2 Assignment; No Third
Party Beneficiaries.
5.2.1 This Agreement and the
rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part.
5.2.2 Subject to Section 5.2.4
and Section 5.2.5, this Agreement and the rights, duties and obligations of a Holder hereunder may be transferred or assigned
in connection with a Transfer of Registrable Securities to (a) any affiliate of a Holder, (b) any subsidiary, parent, general
partner, limited partner, stockholder or member of a Holder, (c) any family member or trust for the benefit of any Holder, or (d) any
person for which the Company has provided its prior written consent. Notwithstanding the foregoing, such rights may only be transferred
or assigned if (i) such Transfer is effected in accordance with applicable securities laws; (ii) such transferee or assignee
agrees in writing to become subject to the terms of this Agreement; and (iii) the Company is given written notice by such Holder
of such Transfer, stating the name and address of the transferee or assignee and identifying the Registrable Securities with respect to
which such rights are being transferred or assigned.
5.2.3 This Agreement and the
provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and its successors, which shall include
Permitted Transferees.
5.2.4 This Agreement shall not
confer any rights or benefits on any persons that are not parties hereto, other than as expressly set forth in this Agreement.
5.2.5 No assignment by any party
hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company unless and until the
Company shall have received (a) written notice of such assignment as provided in Section 5.1 and (b) the written
agreement of the assignee, in a form reasonably satisfactory to the Company, to be bound by the terms and provisions of this Agreement
(which may be accomplished by an addendum or certificate of joinder to this Agreement). Any Transfer or assignment made other than as
provided in this Section 5.2 shall be null and void.
5.3 Counterparts. This
Agreement may be executed in multiple counterparts (including facsimile or PDF counterparts), each of which shall be deemed an original,
and all of which together shall constitute the same instrument, but only one of which need be produced.
5.4 Governing Law; Venue.
NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF DELAWARE AS APPLIED TO AGREEMENTS AMONG DELAWARE RESIDENTS
ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN DELAWARE, WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS OF SUCH JURISDICTION AND THE
VENUE FOR ANY ACTION TAKEN WITH RESPECT TO THE AGREEMENT SHALL BE ANY STATE OR FEDERAL COURT IN NEW CASTLE COUNTY IN THE STATE OF DELAWARE.
5.5 Trial by Jury.
EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED
AND DIFFICULT ISSUES, AND, THEREFORE, EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
5.6 Amendments and Modifications.
Upon the written consent of (a) the Company and (b) the Holders of at least a majority in interest of the Registrable Securities
held by the Holders at the time in question, compliance with any of the provisions, covenants and conditions set forth in this Agreement
may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided, however, that notwithstanding
the foregoing, any amendment hereto or waiver hereof that adversely affects any Holder, solely in his, her or its capacity as a holder
of the shares of capital stock of the Company, in a manner that is materially different from the other Holders (in such capacity) shall
require the consent of each such Holder so affected. No course of dealing between any Holder or the Company and any other party hereto
or any failure or delay on the part of a Holder or the Company in exercising any rights or remedies under this Agreement shall operate
as a waiver of any rights or remedies of any Holder or the Company. No single or partial exercise of any rights or remedies under this
Agreement by a party shall operate as a waiver or preclude the exercise of any other rights or remedies hereunder or thereunder by such
party.
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5.7 Other Registration
Rights. From and after the date hereof, other than pursuant to that certain Amended and Restated Registration Rights Agreement, dated
as of the date hereof, by and among the Company, Haymaker Sponsor IV LLC and the other parties thereto, the Company shall not, without
the prior written consent of a majority-in-interest of the Registrable Securities, enter into any agreement with any current or future
holder of any securities of the Company that would allow such current or future holder to require the Company to include securities in
any Registration Statement filed by the Company for such Holders on a basis other than pari passu with, or expressly subordinate to, the
piggyback rights of the Holders hereunder; provided, that in no event shall the Company enter into any agreement that would permit another
holder of securities of the Company to participate on a pari passu basis (in terms of priority of cut-back based on advice of underwriters)
with a Demanding Holder in an Underwritten Offering. For the avoidance of doubt, nothing in this Section 5.7 shall have any
affect on any registration rights granted to persons prior to the date hereof.
5.8 Term. This Agreement
shall terminate, with respect to any Holder, on the date as of which such Holder ceases to hold any Registrable Securities. The provisions
of Article IV shall survive any termination.
5.9 Holder Information.
Each Holder agrees, if requested in writing, to promptly represent to the Company the total number of Registrable Securities held by such
Holder in order for the Company to make determinations hereunder.
5.10 Severability.
It is the desire and intent of the parties that the provisions of this Agreement be enforced to the fullest extent permissible under the
laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision,
as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity
or enforceability of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. Notwithstanding
the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction,
it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting
the validity or enforceability of such provision in any other jurisdiction.
5.11 Entire Agreement.
This Agreement constitutes the full and entire agreement and understanding among the parties with respect to the subject matter hereof
and supersedes all prior agreements and understandings, both written and oral, among the parties, or any of them, relating to such subject
matter.
[Signature page follows]
16
IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
COMPANY:
SUNCRETE, INC., a
Delaware corporation
By:
/s/ Tommy Wentroth
Name:
Tommy Wentroth
Title:
Chief Financial Officer
HOLDERS:
DOTHAN INDEPENDENT GP, LP,
a Delaware limited partnership
By:
Dothan Sponsor, LLC,
its general partner
By: /s/ Ned N. Fleming, III
Name: Ned N. Fleming, III
Title: Manager
DOTHAN CONCRETE INVESTORS, LLC, a Delaware limited liability company
By:
Dothan Concrete Manager, LLC,
its managing member
By: SunTx Capital Management Corp.,
its managing member
By: /s/ Ned N. Fleming, III
Name: Ned N. Fleming, III
Title: President
EAGLESNEST INVESTMENTS, LLC, an Oklahoma limited liability company
By:
/s/ Randall Edgar
Name:
Randall Edgar
Title:
Manager
[Signature Page to Registration
Rights Agreement]
EX-10.7 — EXHIBIT 10.7
EX-10.7
Filename: tm2611641d1_ex10-7.htm · Sequence: 9
Exhibit 10.7
Execution Version
SECURITIES EXCHANGE AGREEMENT
This SECURITIES EXCHANGE
AGREEMENT (this “Agreement”) is made as of March 26, 2026, by and among Suncrete, Inc., a Delaware
corporation (the “Company”), and the undersigned holders of all of the Senior Preferred Units (the “Senior
Preferred Units”) of Concrete Partners Holding, LLC, a Delaware limited liability company (“CPH”),
identified on the signature page hereto (each, an “Exchanging Holder” and collectively, the “Exchanging
Holders”).
RECITALS
WHEREAS, CPH previously
issued 26,000,000 Senior Preferred Units to the Exchanging Holders pursuant to the Amended and Restated Limited Liability Company Agreement
of CPH, dated as of July 29, 2024 (as amended, restated, supplemented, or otherwise modified from time to time, the “Company
Agreement”), in the amounts set forth opposite such Exchanging Holder’s name on Exhibit A hereto;
WHEREAS, the Company
desires to acquire, and each Exchanging Holder desires to exchange, such Exchanging Holder’s Senior Preferred Units set forth opposite
such Exchanging Holder’s name on Exhibit A (the “Exchanged Units”) for an aggregate of 26,000
shares of Series A Convertible Perpetual Preferred Stock of the Company, par value $0.0001 per share (the “Series A
Preferred Stock”), with each Exchanging Holder entitled to receive the number of shares of Series A Preferred Stock
set forth on Exhibit A attached hereto, the designation, powers, privileges, preferences and relative participating, optional
or other rights, if any, and the qualifications, limitations or restrictions of which are set forth in the Certificate of Designation
of the Series A Convertible Perpetual Preferred Stock (the “Series A Certificate of Designation”)
substantially in the form attached hereto as Exhibit B pursuant to the terms and conditions set forth in this Agreement;
WHEREAS, each of the
investors is an accredited investor, and the Exchange (as defined below) is being undertaken in reliance on the exemption from registration
provided by Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), and
Rule 506(b) promulgated thereunder;
WHEREAS, each of the
parties agrees that for U.S. federal income tax purposes, it is intended that the Initial Merger, the Acquisition Merger, the PIPE Investment
(as each such term is defined in the Business Combination Agreement (defined below)) and the Exchange be treated as integrated transactions
constituting a single exchange as described in Section 351 of the Internal Revenue Code of 1986, as amended (the “Code”);
and
WHEREAS, the Exchange
is permitted by that certain Credit Agreement, dated as of July 29, 2024, as amended by that certain First Amendment and Commitment
Increase to Credit Agreement, dated as of October 17, 2025, as further amended by that certain Consent and Second Amendment to Credit
Agreement and First Amendment to Pledge and Security Agreement, effective as of the Second Amendment Effective Date (as defined therein)
(collectively, the “Credit Agreement”).
NOW, THEREFORE, in
consideration of the mutual covenants, agreements, representations, and warranties contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
ARTICLE I. EXCHANGE
1.01 The
Exchange. Subject to the terms and conditions of this Agreement, at the Closing (as defined below), the Company and each Exchanging
Holder shall transfer, assign, convey, and deliver to the Company, free and clear of all liens, all of such Exchanging Holder’s
right, title, and interest in the Exchanged Units, and, in exchange therefor, the Company shall issue and deliver to each Exchanging Holder
the number of shares of Series A Preferred Stock determined by dividing such Exchanging Holder’s Exchanged Units by 1,000 (collectively,
the “Exchange”) and reflected on Exhibit A attached hereto. Each Exchanging Holder hereby agrees
that in connection with the filing of the Series A Certificate of Designation and upon and subject to the Accrued Dividends payment
pursuant to Section 1.03 and the Closing, all of CPH’s and the Company’s obligations to the Exchanging Holders under
the terms and conditions of the Company Agreement shall be automatically terminated and cancelled in full without any further action required.
1.02 Filing
of Certificate of Designation. Prior to the Closing, the Company shall cause to be filed with the Secretary of State of the State
of Delaware the Series A Certificate of Designation.
1.03 Accrued
Dividend Payment. On or prior to the Closing, any and all dividends that have accrued on the Senior Preferred Units through
Closing (the “Accrued Dividends”) shall be paid by the Company to each Exchanging Holder in cash by wire
transfer of immediately available funds to an account designated by such Exchanging Holder pursuant to the Company Agreement.
1.04 Closing.
The Exchange (the “Closing”) shall occur automatically following the acceptance by the Secretary of State of
the State of Delaware of the Series A Certificate of Designation and immediately prior to the closing of the Acquisition Merger pursuant
to that certain Business Combination Agreement, dated as of October 9, 2025 (the “Business Combination Agreement”),
by and among Haymaker Acquisition Corp. 4 (“SPAC”), the Company, Haymaker Merger Sub I, Inc., Haymaker
Merger Sub II, LLC, and CPH (the Company’s business combination pursuant to the Business Combination Agreement, the “Business
Combination”).
1.05 Delivery.
In the Exchange, the Company shall, at the Closing, issue and deliver (or cause to be issued and delivered) the shares of Series A
Preferred Stock to the Exchanging Holders in book-entry form. The Securities (as defined below) shall contain any restrictive legends
required by the Securities Act. Each Exchanging Holder shall surrender and deliver (or cause to be surrendered and delivered) to the Company
certificates representing the Senior Preferred Units (including any rights associated with such Senior Preferred Units) or, if the Senior
Preferred Units are held in book-entry form, the Senior Preferred Units shall be deemed to be surrendered and delivered on the books of
the Company’s transfer agent. For the avoidance of doubt, as of the Closing, all of the Exchanging Holders’ rights under the
terms and conditions of the Company Agreement shall be extinguished.
1.06 Tax
Treatment. For U.S. federal (and applicable state and local) income tax purposes, the Company and the Exchanging Holders agree
that the Exchange is intended to be treated as a contribution by the Exchanging Holders of the Exchanged Units to the Company pursuant
to a transaction that is treated, together with the Initial Merger, the Acquisition Merger and the PIPE Investment (as each such term
is defined in the Business Combination Agreement) as a series of integrated transactions constituting a single exchange that qualifies
for tax-deferred treatment pursuant to Section 351(a) of the Code. Neither the Company nor any Exchanging Holder shall take
any position inconsistent with such tax treatment on any tax return or pursuant to any legal proceeding, except as otherwise required
by a determination within the meaning of Section 1313(a) of the Code.
1.07 Other
Documents. The Company and the Exchanging Holders shall execute and/or deliver such other documents and agreements as are reasonably
necessary to effectuate the Exchange pursuant to the terms of this Agreement.
ARTICLE II. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The Company represents and
warrants to each Exchanging Holder as of the date hereof as follows:
2.01 Organization,
Good Standing and Power. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the
State of Delaware and has the requisite corporate power to own, lease and operate its properties and assets and to conduct its business
as it is now being conducted.
2.02 Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and perform this Agreement and to issue the
Securities in accordance with the terms hereof. The execution, delivery and performance of this Agreement by the Company and the consummation
by it of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action of the Company,
and no further consent or authorization of the Company or its board of directors or stockholders is required. When executed and delivered
by the Company, this Agreement shall constitute a valid and binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, moratorium, liquidation, conservatorship,
receivership or similar laws relating to, or affecting generally the enforcement of, creditor’s rights and remedies or by other
equitable principles of general application.
2.03 No
Conflicts. The execution, delivery, and performance of this Agreement by the Company does not and will not (a) violate or conflict
with the certificate of incorporation or bylaws of the Company; (b) violate any law, rule, regulation, order, judgment, or decree
applicable to the Company; or (c) conflict with, result in a breach of, or constitute a default under any material contract, agreement,
or instrument to which the Company is a party or by which the Company is bound, except to the extent that it would not have a material
adverse effect upon the ability of the Company to consummate the Exchange.
2.04 No
General Solicitation. Neither the Company nor any person acting on behalf of the Company has offered or sold any of the Securities
by any form of general solicitation or general advertising. The Company is an “accredited investor” within the meaning of
Rule 501 under the Securities Act. The Company has offered the Securities for sale only to accredited investors.
2.05 Investment
Company. The Company is not, and is not an affiliate of, and immediately after receipt of payment for the Securities, will not be
or be an affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “Investment
Company Act”). The Company shall conduct its business in a manner so that it will not become an “investment company”
subject to registration under the Investment Company Act of 1940, as amended.
2.06 Issuance
of Securities. The shares of Series A Preferred Stock to be issued to the Exchanging Holders at the Closing have been duly authorized
and, when issued and delivered in accordance with this Agreement, will be validly issued, fully paid, and nonassessable. The Class A
Common Stock, par value $0.001 per share, of the Company underlying the Series A Preferred Stock (the “Class A Common
Stock”) has been duly authorized and, when issued upon conversion of the Series A Preferred Stock in accordance with
its terms, shall be validly issued, fully paid and nonassessable.
ARTICLE III. REPRESENTATIONS
AND WARRANTIES OF THE EXCHANGING HOLDERS
Each Exchanging Holder represents
and warrants to the Company, severally and not jointly, as of the date hereof as follows:
3.01 Organization
and Standing of the Exchanging Holder. If the Exchanging Holder is an entity, it is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization.
3.02 Authorization
and Power. Such Exchanging Holder has the requisite power and authority to enter into and perform this Agreement and to sell, assign,
transfer and deliver its Senior Preferred Units hereunder. If it is an entity, the execution, delivery and performance of this Agreement
by such Exchanging Holder and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary
action and in accordance with the laws of its jurisdiction of formation, and no further consent or authorization of such Exchanging Holder
or its board of managers or similar governing body or equity holders is required to enter into and perform this Agreement. If Exchanging
Holder is an individual, the Exchanging Holder’s signature on this Agreement is genuine, and the Exchanging Holder has legal competence
and capacity to execute the same. When executed and delivered by such Exchanging Holder, this Agreement shall constitute the valid and
binding obligations of such Exchanging Holder enforceable against such Exchanging Holder in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership
or similar laws relating to, or affecting generally the enforcement of, creditor’s rights and remedies or by other equitable principles
of general application.
3.03 No
Conflicts. The execution, delivery, and performance of this Agreement by such Exchanging Holder does not and will not (a) if
it is an entity, conflict with or result in any violation of, breach of default by such Exchanging Holder (with or without notice or lapse
of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation, under any provision of
any organizational documents of the Exchanging Holder, including, without limitation, its incorporation or formation papers, bylaws, indenture,
or trust, partnership or operation agreement, as may be applicable, (b) violate any law, rule, regulation, order, judgment, or decree
applicable to such Exchanging Holder; or (c) conflict with, result in a breach of, or constitute a default under any contract, agreement,
or instrument to which such Exchanging Holder is a party or by which such Exchanging Holder or such Exchanging Holder’s Senior Preferred
Units are bound.
3.04 Ownership.
Such Exchanging Holder is the sole owner of all right, title and interest in and to the Senior Preferred Units as set forth opposite such
Exchanging Holder’s name on Exhibit A under the column “Senior Preferred Units”, free and clear of all liens,
and such amount of Senior Preferred Units set forth opposite such Exchanging Holder’s name on Exhibit A constitutes
all of such Exchanging Holder’s Senior Preferred Units.
3.05 Accredited
Investor Status. Such Exchanging Holder is an “accredited investor” as defined in Rule 501(a) of Regulation
D promulgated under the Securities Act and has such knowledge and experience in financial and business matters as to be able to protect
its own interests in connection with an investment in the Securities. The Exchanging Holder has not been organized or reorganized (as
such terms are interpreted under the Investment Company Act) for the specific purpose of acquiring the Securities (as defined below) or
otherwise investing in the Company.
3.06 Investment
Intent. Such Exchanging Holder is acquiring the Series A Preferred Stock as principal for its own account and has no direct or
indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Series A Preferred
Stock. Such Exchanging Holder is acquiring the Series A Preferred Stock hereunder for its personal account for investment purposes
or in the ordinary course of its business.
3.07 Sophistication.
Such Exchanging Holder or, if the Exchanging Holder is a trust, such Exchanging Holder’s trustee directing the purchase of the Securities,
has such knowledge and experience in financial and business matters that such Exchanging Holder is capable of evaluating the merits and
risks of an investment in the Series A Preferred Stock. Such Exchanging Holder has been afforded the opportunity to ask questions
of, and receive answers from, the management of the Company concerning this investment and has been provided access to information about
the Company sufficient to enable such Exchanging Holder to evaluate the merits and risks of this investment. Such Exchanging Holder has
reviewed the Registration Statement on Form S-4 filed with the U.S. Securities and Exchange Commission (the “SEC”)
on November 12, 2025, as amended, and declared effective on February 12, 2026, the accompanying prospectus, all supplements
thereto and any other offering document used in connection with the Business Combination filed with the SEC and has been furnished with
all other materials that it considers relevant to an investment in the Securities.
3.08 Securities
Not Registered. The Exchanging Holder understands that (i) the sale or resale of the shares of Series A Preferred Stock
and the shares of Class A Common Stock issuable upon conversion of the Series A Preferred Stock (collectively, the “Securities”)
have not been registered under the Securities Act or any applicable state securities laws, and the Securities may not be transferred unless
(a) the Securities are sold pursuant to an effective registration statement under the Securities Act, (b) such Exchanging Holder
shall have delivered to the Company an opinion of counsel (which may be counsel to the Company) that shall be in form, substance and scope
customary for opinions of counsel in comparable transactions to the effect that the Securities to be sold or transferred may be sold or
transferred pursuant to an exemption from such registration, or (c) the Securities are sold pursuant to Rule 144 under the Securities
Act or other applicable exemption, and Rule 144 will not be available for a period of at least one year following the Company filing
current Form 10 information about the Company with the SEC reflecting its status as an entity that is no longer a shell company after
the closing of the Business Combination, and (ii) neither the Company nor any other person is under any obligation to register such
Securities under the Securities Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder
(in each case).
3.09 Acknowledgment
of Representation. Each Exchanging Holder acknowledges that Haynes and Boone, LLP is counsel to the Company and such Exchanging Holder
has obtained its own legal advice or consultation with respect to this Agreement.
ARTICLE IV. OTHER
AGREEMENTS OF THE PARTIES
4.01 Transfer
of Securities.
(a) Each
Exchanging Holder agrees that it shall not, directly or indirectly, (i) sell, assign, transfer (including by operation of law), permit
the creation of any lien, pledge, dispose of or otherwise encumber any Securities or other securities of the Company of which ownership
of record or the power to vote is now held or hereafter acquired by the Exchanging Holder prior to the termination of this Agreement,
together with any securities paid as dividends or distributions with respect to such securities or into which such securities are exchanged
or converted, including, but not limited to, pursuant to this Agreement, being referred to herein as the “Company Securities”)
or otherwise agree to do any of the foregoing (unless the transferee agrees to be bound by this Agreement pursuant to a joinder agreement
reasonably acceptable to the Company and SPAC), (ii) deposit any Company Securities into a voting trust or enter into a voting agreement
or arrangement or grant any proxy or power of attorney with respect thereto that is inconsistent with this Agreement, (iii) enter
into any contract, option or other arrangement or undertaking with respect to the direct or indirect acquisition or sale, assignment,
transfer (including by operation of law) or other disposition of any Company Securities (unless the transferee agrees to be bound by this
Agreement pursuant to a joinder agreement reasonably acceptable to the SPAC), or (iv) take any action that would have the effect
of preventing or disabling the Exchanging Holder from performing its obligations hereunder. In addition and without limiting the foregoing,
the Exchanging Holder agrees that, during the period that the Exchanging Holder and any permitted transferee owns any of the Company Securities,
the Exchanging Holder and each of its permitted transferees agrees that it shall not enter into an agreement that is effective prior to
the consummation of the Business Combination, to dispose of or otherwise transfer Company Securities.
(b) The
Exchanging Holder hereby agrees not to, during the period (the “Post-Closing Lock-Up Period”) commencing on
the date of the closing of the Business Combination and ending on the earlier of (i) the one year anniversary of the closing of the
Business Combination and (ii) the date after the closing of the Business Combination on which the Company consummates a liquidation,
merger, share exchange, reorganization or other similar transaction with an unaffiliated third party that results in all of the Company’s
stockholders having the right to exchange their equity holdings in the Company for cash, securities or other property, without the prior
written consent of the Company: (A) lend, offer, pledge, hypothecate, encumber, donate, assign, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, establish or
increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position with respect to or decrease
of a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) and the rules and regulations of the SEC promulgated thereunder, or otherwise transfer or dispose of, directly
or indirectly, any Company Securities, (B) enter into any swap or other arrangement that transfers to another, in whole or in part,
any of the economic consequences of ownership of Company Securities, whether any such transaction is to be settled by delivery of such
Company Securities, in cash or otherwise, or (C) publicly announce the intention to do any of the foregoing, whether any such transaction
described in clauses (A), (B) or (C) above is to be settled by delivery of Company Securities or other securities, in cash or
otherwise. The foregoing sentence shall not apply to the transfer of any or all of Company Securities owned by the Exchanging Holder (I) by
gift, will or intestate succession upon the death of the Exchanging Holder, (II) to any Permitted Transferee (as defined below),
(III) pursuant to a court order or settlement agreement related to the distribution of assets in connection with the dissolution
of marriage or civil union or pursuant to a domestic relations order, (IV) in accordance with the requirements of this Agreement
or the organizational documents of the Company, as amended, (V) to the Company in connection with the “net” or “cashless”
exercise of options or other rights to purchase shares of the Company’s common stock granted pursuant to an equity incentive plan,
stock purchase plan or other arrangement in satisfaction of any tax withholding obligations through cashless surrender or otherwise (provided
any shares of the Company’s common stock issued upon exercise of such option or other rights shall remain subject to the terms of
this Agreement), or (VI) in connection with the exercise or conversion of any Derivative Instruments (defined below); provided, however,
that in any of the cases of clauses (I), (II) or (III) it shall be a condition to such transfer that the transferee executes
and delivers to the Company an agreement stating that the transferee is receiving and holding Company Securities subject to the provisions
of this Agreement applicable to the Exchanging Holder, and there shall be no further transfer of such Company Securities except in accordance
with this Agreement. As used in this Agreement, the term “Permitted Transferee” shall mean: (aa) the members of the Exchanging
Holder’s immediate family (for purposes of this Agreement, “immediate family” shall mean with respect to any natural
person, any of the following: such person’s spouse, the siblings of such person and his or her spouse, and the direct descendants
and ascendants (including adopted and step children and parents) of such person and his or her spouses and siblings), (bb) any trust or
charitable organization for the direct or indirect benefit of the Exchanging Holder or the immediate family of the Exchanging Holder,
(cc) if the Exchanging Holder is a trust, the trustor or beneficiary of such trust or to the estate of a beneficiary of such trust, (dd)
if the Exchanging Holder is an entity, as a distribution to limited partners, shareholders, members of, or owners of similar equity interests
in the Exchanging Holder, or (ee) to any affiliate of the Exchanging Holder. The Exchanging Holder further agrees to execute such agreements
as may be reasonably requested by the Company that are consistent with the foregoing or that are necessary to give further effect thereto.
Notwithstanding the foregoing, the Exchanging Holder shall be permitted to establish a trading plan pursuant to Rule 10b5-1 promulgated
under the Exchange Act, provided that (y) such plan does not provide for the transfer, sale or other disposal of Securities during
the Post-Closing Lock-Up Period and (z) any public announcement or filing with the SEC under the Exchange Act made by any person
regarding the establishment of such plan during the Post-Closing Lock-Up Period shall include a statement that the undersigned is not
permitted to transfer, sell or otherwise dispose of securities under such plan during the Post-Closing Lock-Up Period in contravention
of this Agreement.
(c) Notwithstanding
anything contained herein to the contrary, (i) 33.33% of the Company Securities subject to the restrictions set forth in Section 4.01(b) held
by the Exchanging Holder as of the closing of the Business Combination will be automatically released from the restrictions contained
in Section 4.01(b) immediately prior to the opening of The Nasdaq Stock Market on the six month anniversary of the closing of
the Business Combination and (ii) 33.33% of the Securities subject to the restrictions set forth in Section 4.01(b) held
by the Exchanging Holder as of the closing of the Business Combination will be automatically released from the restrictions contained
in Section 4.01(b) immediately prior to the opening of The Nasdaq Stock Market on the nine month anniversary of the closing
of the Business Combination.
(d) Notwithstanding
anything contained herein to the contrary, if, prior to the expiration of the Post-Closing Lock-Up Period, the Company consents at its
discretion to release any shares of Series A Preferred Stock, any securities underlying the Series A Preferred Stock, shares
of the Company’s common stock or any securities convertible into, exchangeable for or that represent the right to receive shares
of the Company’s common stock (such options, warrants or other securities, collectively, “Derivative Instruments”),
held by any directors, officers, stockholders of 5.0% or more of the then outstanding shares of the Company’s common stock that
has delivered a lock-up agreement to the Company in connection with the Business Combination, other than the Exchanging Holder, from the
restrictions described herein (any such release being a “Triggering Release” and such party receiving such release
being a “Triggering Release Party”), then a number of the Exchanging Holder’s shares of the Company’s
common stock underlying the Series A Preferred Stock subject to this Agreement shall also be released from the restrictions set forth
herein on the same terms on a pro rata basis, such number of the Exchanging Holder’s shares of the Company’s common stock
underlying the Series A Preferred Stock subject to this Agreement being the total number of shares of the Company’s common
stock underlying the Series A Preferred Stock subject to this Agreement held by the Exchanging Holder on the date of the Triggering
Release that are subject to this Agreement multiplied by a fraction, the numerator of which shall be the number of shares of the Company’s
common stock underlying the Series A Preferred Stock and Derivative Instruments released pursuant to the Triggering Release and the
denominator of which shall be the total number of shares of the Company’s common stock underlying the Series A Preferred Stock
and Derivative Instruments held by the Triggering Release Party on such date that were subject to a lock-up restriction (e.g., restrictions
similar to this Section 4.01) immediately prior to such release.
(e) If
any transfer of Company Securities is made or attempted contrary to the provisions of this Agreement, such purported transfer shall be
null and void ab initio, and the Company shall refuse to recognize any such purported transferee of the Company Securities as one of its
equity holders for any purpose. In order to enforce this Section 4.01, the Company may impose stop-transfer instructions with respect
to the Company Securities of the Exchanging Holder (and Permitted Transferees and assigns thereof) until the end of the Post-Closing Lock-Up
Period.
4.02 Registration
Rights. The Company shall include the shares of Class A Common Stock issuable upon conversion of the Series A Preferred
Stock held by the Exchanging Holders on the next registration statement following the closing of the Business Combination that the Company
files with the SEC providing for the resale of securities held by stockholders of the Company on a delayed or continuous basis pursuant
to Rule 415 under the Securities Act.
4.03 Restrictive
Legends. For so long as the Securities have not been sold in accordance with an exemption from the registration requirements of the
Securities Act, any certificates or book-entries representing the Securities shall have endorsed thereon legends substantially as follows:
“THE SECURITIES REPRESENTED HEREBY
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES OR ANY
INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL
(IF THE COMPANY SO REQUESTS), IS AVAILABLE.”
ARTICLE V. CONDITIONS
TO CLOSING
5.01 Conditions
of the Exchanging Holder’s Obligations at Closing. The obligations of each Exchanging Holder to exchange their Senior Preferred
Units for Series A Preferred Stock at Closing are subject to the fulfillment, on or before the Closing, of each of the following
conditions, unless otherwise waived:
(a) the
representations and warranties of the Company contained in Article II shall be true and correct in all material respects as
of the Closing;
(b) the
Company shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions contained
in this Agreement that are required to be performed or complied with by the Company on or before the Closing, including the payment of
Accrued Dividends;
(c) the
Company shall have filed the Series A Certificate of Designation with the Secretary of State of Delaware on or prior to the Closing,
which shall continue to be in full force and effect as of the Closing; and
(d) as
of the Closing, the Available Cash (as such term is defined in the Business Combination Agreement) shall be less than $250,000,000.
5.02 Conditions
of the Company’s Obligations at Closing. The obligations of the Company to exchange the Series A Preferred Stock for Senior
Preferred Units at the Closing are subject to the fulfillment, on or before Closing, of each of the following conditions, unless otherwise
waived:
(a) this
Agreement shall have been duly executed by each of the Exchanging Holders;
(b) the
representations and warranties of the Exchanging Holders contained in Article III shall be true and correct in all material
respects as of the Closing;
(c) the
Exchanging Holders shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions
contained in this Agreement that are required to be performed or complied with by such Exchanging Holders on or before the Closing;
(d) as
of the Closing, the Available Cash (as such term is defined in the Business Combination Agreement) shall be less than $250,000,000; and
(e) a
Preferred Equity Subordination Agreement, in the form substantially similar to the existing Preferred Equity Subordination Agreement previously
entered into by the Exchanging Holders and reasonably acceptable to the Company and the Lenders (as defined in the Credit Agreement),
shall have been duly executed by each Exchanging Holder.
ARTICLE VI. MISCELLANEOUS
6.01 Amendment.
No provision of this Agreement may be waived or amended except in a written instrument signed by (i) the Company and (ii) Exchanging
Holders entitled to receive in the Exchange, in the aggregate, at least a majority of the number of shares of Series A Preferred
Stock issuable at the Closing.
6.02 Notices.
Any notice, demand, request, waiver or other communication required or permitted to be given hereunder shall be in writing and shall be
effective (a) upon hand delivery by telecopy or facsimile at the address or number designated below (if delivered on a business day
during normal business hours where such notice is to be received), or the first business day following such delivery (if delivered other
than on a business day during normal business hours where such notice is to be received) or (b) on the second business day following
the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever
shall first occur or (c) upon delivery by e-mail (if delivered on a business day during normal business hours where such notice is
to be received) upon recipient’s actual receipt and acknowledgement of such e-mail. The addresses for such communications shall
be:
If to the Company prior to the Closing:
Suncrete, Inc.
c/o Haymaker Acquisition Corp. 4
324 Royal Palm Way, Suite 300-i
Palm Beach, Florida 33480
Attention: Christopher Bradley
Email: cbradley@mistralequity.com
With a copy (for informational purposes only) to:
DLA Piper LLP (US)
1251 Avenue of the Americas, 27th Floor
New York, New York 10020
Attention: Sidney Burke, Stephen P. Alicanti
Email: sidney.burke@us.dlapiper.com, stephen.alicanti@us.dlapiper.com
If to the Company after the Closing:
Suncrete, Inc.
817 E. 4th Street
Tulsa, OK 74120
Attention: Barrett Bruce
E-Mail: BBruce@suntx.com
With a copy (for informational purposes only) to:
Haynes and Boone, LLP
2801 N. Harwood Street, Suite 2300
Dallas, Texas 75201
Attention: Matthew L. Fry; Rachel O’Donnell
E-mail: matt.fry@haynesboone.com; rachel.odonnell@haynesboone.com
If to an Exchanging Holder,
to its mailing address and e-mail address set forth on the Exchanging Holder’s respective signature page attached hereto. Any
Exchanging Holder hereto may from time to time change its address for notices by giving written notice of such changed address to the
Company.
6.03 Waivers.
No waiver by either party of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to
be a continuing waiver in the future or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission
of any party to exercise any right hereunder in any manner impair the exercise of any such right accruing to it thereafter.
6.04 Headings.
The article, section and subsection headings in this Agreement are for convenience only and shall not constitute a part of this Agreement
for any other purpose and shall not be deemed to limit or affect any of the provisions hereof.
6.05 Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and
permitted assigns. No party may assign its rights or obligations under this Agreement without the prior written consent of the other parties,
except that the Company may assign its rights and obligations hereunder to any affiliate or successor entity without consent.
6.06 Governing
Law. This Agreement shall be governed by the internal law of the State of Delaware, without regard to conflict of law principles that
would result in the application of any law other than the law of the State of Delaware.
6.07 Counterparts.
This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument
and shall become effective when counterparts have been signed by each party and delivered to the other parties hereto, it being understood
that all parties need not sign the same counterpart. Signature pages to this Agreement may be delivered by facsimile or other means
of electronic transmission.
[Remainder of Page Intentionally Left Blank;
Signature Page Follows.]
IN WITNESS WHEREOF, the parties hereto have
caused this Securities Exchange Agreement to be duly executed by their respective authorized officers as of the date first above written.
COMPANY:
SUNCRETE, INC.
By:
/s/ Christopher Bradley
Name:
Christopher Bradley
EXCHANGING HOLDERS:
BARBER PROPERTIES, L.L.C
By:
/s/ Ron B. Barber
Name:
Ron B. Barber
Title:
Manager
Address: [*****]
BARBER FAMILY, LLC
By:
/s/ Rob B. Barber
Name:
Rob B. Barber
Title:
Manager
Address: [*****]
THE JOHN M. WALKER REVOCABLE
TRUST
By:
/s/ John M. Walker
Name:
John M. Walker
Title:
Trustee
Address: [*****]
ROBERT M. AND MARY ANN SHARP TRUST
DATED DECEMBER 8, 2017
By:
/s/ Robert M. Sharp
Name:
Robert M. Sharp
Title:
Trustee
By:
/s/ Mary Ann Sharp
Name:
Mary Ann Sharp
Title:
Trustee
Address: [*****]
/s/ Mark A. Sharp
MARK A. SHARP
Address: [*****]
EAGLESNEST INVESTMENTS, LLC
By:
/s/ Randall Edgar
Name:
Randall Edgar
Title:
Manager
Address: [*****]
Exhibit A
Exchanging Holder
Senior Preferred Units
Series A Preferred Stock
Barber Properties, L.L.C
3,900,000
3,900
Barber Family, LLC
1,300,000
1,300
The John M. Walker Revocable Trust
5,200,000
5,200
Robert M. and Mary Ann Sharp Trust Dated December 8, 2017
2,600,000
2,600
Mark A. Sharp
2,600,000
2,600
Eaglesnest Investments, LLC
10,400,000
10,400
Total:
26,000,000
26,000
Exhibit B
Form of Series A Certificate of Designation
EX-10.9 — EXHIBIT 10.9
EX-10.9
Filename: tm2611641d1_ex10-9.htm · Sequence: 10
Exhibit 10.9
SUNCRETE, INC.
2026 OMNIBUS INCENTIVE PLAN
Table
of Contents
Page
1. Purpose
1
2. Definitions
1
3. Administration
6
4. Shares Subject to the Plan
8
5. Award Eligibility and Limitations
9
6. Options
9
7. Stock Appreciation Rights
12
8. Restricted Awards
13
9. Performance Awards
15
10. Other Stock-Based Awards
17
11. Treatment of Awards on Termination of Continuous Service
17
12. Covenants of the Company
18
13. Company Use of Proceeds from Awards
18
14. Adjustments for Changes in Stock
18
15. Amendment of the Plan and Awards
19
16. General Provisions
20
17. Effective Date and Term of Plan
24
18. Governing Law
25
19. Limitation on Liability
25
20. Execution
-i-
SUNCRETE, INC.
2026 Omnibus INCENTIVE PLAN
The Suncrete, Inc. 2026
Omnibus Incentive Plan (the “Plan”) was adopted by the Board of Directors of Suncrete, Inc., a Delaware
corporation (the “Company”), effective as of April 8, 2026 (the “Effective Date”),
subject to approval by the Company’s stockholders.
1. Purpose
The purpose of the Suncrete, Inc. 2026 Omnibus
Incentive Plan is to enable the Company and any Affiliate to obtain and retain the services of the types of Employees, Consultants, and
Directors who will contribute to the Company’s long range success and to provide incentives that are linked directly to increases
in share value which will inure to the benefit of all stockholders of the Company.
2. Definitions
“Administrator”
means the Board or the Committee appointed by the Board in accordance with Section 3(e).
“Affiliate”
means any parent or direct or indirect subsidiary of the Company, whether now or hereafter existing.
“Award”
means any Option, Restricted Award, Performance Award, Stock Appreciation Right or other Stock-Based Award granted under the Plan.
“Award Agreement”
means a written agreement between the Company and a Participant evidencing the terms and conditions of an individual Award. Each Award
Agreement will be subject to the terms and conditions of the Plan and need not be identical.
“Board”
means the Board of Directors of the Company.
“Cause”
means, (a) with respect to any Participant who is a party to a Service Agreement which provides for a definition of Cause, as defined
therein; and (b) with respect to all other Participants, (i) the commission of, or plea of guilty or no contest to, a felony
or a crime involving moral turpitude or the commission of any other act involving willful malfeasance or material fiduciary breach with
respect to the Company or an Affiliate; (ii) conduct tending to bring the Company into substantial public disgrace or disrepute;
(iii) gross negligence or willful misconduct with respect to the Company or an Affiliate; or (iv) material violation of state
or federal securities laws. The Administrator, in its absolute discretion, shall determine the effect of all matters and questions relating
to whether a Participant has been discharged for Cause.
“Change in Control”
means:
(a) with
respect to the Company, (i) a sale of all or substantially all of the equity or assets of the Company to an unrelated Person (a “Sale”);
or (ii) any merger or consolidation of the Company with another Person if, immediately after giving effect thereto, any Person (or
group of Persons acting in concert) other than the Persons holding greater than 50% of the outstanding Common Stock immediately prior
thereto (the “Majority Holders”) have the power to designate or approve a majority of the members of the board of directors
of the Surviving Entity; and
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(b) with
respect to any Affiliate, as applicable (including, without limitation, the sale of all or substantially all of the assets of the Company
or other Affiliate together with such company’s subsidiaries, taken as a whole), (i) a Sale of such Affiliate; or (ii) any
merger or consolidation of the Affiliate with another Person if, immediately after giving effect thereto, any Person (or group of Persons
acting in concert) other than the Affiliate Majority Holders immediately prior thereto have the power to designate or approve a majority
of the members of the board of directors of the Affiliate or the surviving entity, that also constitutes a “change in the ownership
of a corporation,” a “change in the effective control of a corporation,” or a “change in the ownership of a substantial
portion of a corporation’s assets,” in each case, within the meaning of Section 1.409A-3(i)(5) of the Treasury Regulations.
The foregoing notwithstanding,
a transaction will not constitute a Change in Control if (i) its sole purpose is to change the state of the Company’s incorporation
or to create a holding company that will be owned in substantially the same proportions by the Persons who held the Company’s securities
immediately before the transaction; (ii) it constitutes a public offering that results in any security of the Company being listed
(or approved for listing), or designated (or approved for designation) as a security on any Established Securities Market; (iii) solely
because 50% or more of the total voting power of the Company’s then outstanding securities is acquired by a trustee or other fiduciary
holding securities under one or more employee benefit plans of the Company or any Affiliate, or any company that, immediately before the
acquisition, is owned directly or indirectly by the Company’s stockholders in substantially the same proportion as their ownership
of stock in the Company immediately before the acquisition; or (iv) it results solely from a change in ownership of an existing stockholder.
“Class A Common
Stock” means the Company’s Class A common stock, $0.0001 par value per Share.
“Class B Common
Stock” means the Company’s Class B common stock, $0.0001 par value per Share. Class B Common Stock is identical
to Class A common stock other than the number of votes per Share, and there are no distribution preferences between either class
of Common Stock.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Committee”
means a committee of one or more members of the Board appointed by the Board to administer the Plan in accordance with Section 3(e).
“Common Stock”
means Class A Common Stock or Class B Common Stock, in either case, as designated in the applicable Award Agreement for the
corresponding Award granted under the Plan.
“Company”
means Suncrete, Inc., a Delaware corporation.
“Consultant”
means any natural person who provides bona fide consulting or advisory services to the Company or an Affiliate for compensation, which
services are not in connection with the offer or sale of securities in a capital raising transaction and do not directly or indirectly
promote or maintain a market for the Company’s securities.
“Continuous Service”
means the uninterrupted service of a Participant with the Company or an Affiliate as an Employee, Director, or Consultant. A Participant’s
Continuous Service will not be deemed interrupted or terminated merely because of a change in the capacity in which the Participant renders
service, such as a change in status from Employee to Consultant or Director, or a change in the entity for which the Participant renders
service, such as from the Company to an Affiliate, so long as there is no interruption or termination of the Participant’s service.
The Administrator or its delegate, in its sole discretion, may determine whether Continuous Service will be considered interrupted in
the case of any approved leave of absence, including sick leave, military leave or any other personal or family leave of absence.
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“Date of Grant”
means the first date on which all necessary corporate action has been taken by the Administrator to approve the grant of an Award to a
Participant as provided under the Plan, provided the key terms and conditions of the Award are communicated to the Participant within
a reasonable period thereafter; or such later date as is designated by the Administrator and specified in the Award Agreement. In any
situation where the terms of the Award are subject to negotiation with the Participant, the Date of Grant will not be earlier than the
date the key terms and conditions of the Award are communicated to the Participant.
“Detrimental Activity”
means any of the following: (a) disclosure of the Company’s confidential information to any Person outside the Company, without
prior written authorization from the Company or in conflict with the interests of the Company, whether the confidential information was
acquired or disclosed by the Participant during or after service with the Company; (b) failure or refusal to disclose promptly or
assign to the Company all right, title, and interest in any invention, work product or idea, patentable or not, made or conceived by the
Participant during service with the Company, relating in any manner to the interests of the Company or, the failure or refusal to do anything
reasonably necessary to enable the Company to secure a patent where appropriate in the United States and in other countries; (c) activity
that is discovered to be grounds for or results in termination of the Participant’s Continuous Service for Cause; (d) violation
or breach of a non-disclosure, confidentiality, intellectual property, privacy, exclusivity or other restrictive covenant in any Award
Agreement, Service Agreement or other agreement between the Participant and the Company; (e) any direct or indirect attempt to induce
any Employee to be employed or perform services or acts in conflict with the interests of the Company; (f) any direct or indirect
attempt, in conflict with the interests of the Company, to solicit the trade or business of any current or prospective customer, client,
supplier or partner of the Company; (g) the conviction of, or guilty plea entered by, the Participant for any felony or a crime involving
moral turpitude whether or not connected with the Company or (h) the commission of any other act involving willful malfeasance or
material fiduciary breach with respect to the Company. All references to “the Company” in this definition refer to the Company
and any Affiliate.
“Director”
means a member of the Board.
“Disability”
means (a) with respect to any Participant who is a party to a Service Agreement that provides for a definition of Disability, as
defined therein; and (b) with respect to any other Participant, the Participant’s inability to substantially perform his or
her duties to the Company or any Affiliate by reason of a medically determinable physical or mental impairment that is expected to last
for a period of six months or longer or to result in death. Notwithstanding the foregoing, for purposes of determining the term of an
Incentive Stock Option under Section 11(b)(iii), “Disability” means permanent and total disability as defined
in Code Section 22(e)(3). The Administrator will determine whether an individual has a Disability under procedures established by
the Administrator. Other than for determinations of Disability for purposes of the term of an Incentive Stock Option under Section 11(b)(iii),
the Administrator may rely on any determination that a Participant is disabled for purposes of benefits under any long-term disability
plan maintained by the Company or any Affiliate in which a Participant participates.
“Effective Date”
means April 8, 2026, the date of the Plan’s original adoption by the Board.
“Employee”
means a common law or statutory employee of the Company or an Affiliate, including, for the avoidance of doubt, an employee who is also
an officer of the Company or an Affiliate. Mere service as a Director or payment of a Director’s fee by the Company or an Affiliate
is not sufficient by itself to constitute being an Employee.
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“Established Securities
Market” means a national securities exchange that is registered under Section 6 of the Exchange Act, a foreign national
securities exchange that is officially recognized, sanctioned, or supervised by governmental authority or any over-the-counter market
that is reflected by the existence of an interdealer quotation system.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Exercise Price”
means the price per Share at which the holder of an Option may buy an underlying Share on exercise of the Option.
“Fair Market Value”
means, as of the date of any valuation event, the value per Share determined using a presumptively reasonable valuation method under Treasury
Regulation section 1.409A-1(b)(5)(iv), as follows:
(i) On
any date on which the Common Stock is admitted to trading on an Established Securities Market for which closing prices are reported on
any date, Fair Market Value may be determined based on (1) the last sale before or the first sale after the Date of Grant of an Award
or any other valuation event; (2) the closing price on the last trading day before the Date of Grant of an Award or any other valuation
event; (3) the closing price on the Date of Grant or any other valuation event or (4) an average selling price during a specified
period that is within 30 days before or 30 days after the Date of Grant of an Award, on condition that the commitment to grant an Award
based on an average selling price during a specified period must be irrevocable before the beginning of the specified period, and the
valuation method must be used consistently for grants of Awards under the Plan and substantially similar programs.
(ii) If
the Common Stock is readily tradable on an Established Securities Market but closing prices are not reported, Fair Market Value may be
determined based on (1) the average of the highest bid and lowest asked prices reported on the last trading day before the Date of
Grant of an Award or any other valuation event or on the Date of Grant or any other valuation event or (2) an average of the highest
bid and lowest asked prices during a specified period that is within 30 days before or 30 days after the Date of Grant of an Award, on
condition that the commitment to grant an Award based on an average selling price during a specified period must be irrevocable before
the beginning of the specified period, and the valuation method must be used consistently for grants of Awards under the Plan and substantially
similar programs.
(iii) At
any time the Common Stock is not readily tradable on an Established Securities Market, the Administrator will determine the Fair Market
Value through the reasonable application of a reasonable valuation method based on the facts and circumstances as of the valuation date,
including, at the election of the Administrator, by an independent appraisal that meets the requirements of Code Section 401(a)(28)(C) and
the regulations issued thereunder as of a date that is no more than 12 months before the relevant transaction to which the valuation is
applied (for example, an Option’s Date of Grant), and that determination will be final, conclusive, and binding on all Persons.
(iv) Notwithstanding
anything herein to the contrary, in the event of a Change in Control or other transaction described under Section 14(c), Fair
Market Value means the price per Share paid or payable to the Company’s stockholders in such transaction.
“Grant Price”
means the base value per Share of a Stock Appreciation Right, as determined by the Administrator and as set forth in the Award Agreement.
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“Incentive Stock
Option” means an Option intended to qualify as an incentive stock option under Section 422 of the Code and the regulations
issued thereunder.
“Non-Employee Director”
means a “non-employee director” as defined in Rule 16b-3(b)(3) under the Exchange Act.
“Nonqualified Stock
Option” means an Option not intended to qualify as an Incentive Stock Option.
“Officer”
means an individual who is an “officer” of the Company as defined in Rule 16a-1(f) issued under the Exchange Act.
“Option”
means an Incentive Stock Option or a Nonqualified Stock Option granted under the Plan.
“Participant”
means an individual to whom an Award is granted under the Plan or, if applicable, such other Person who holds an outstanding Award.
“Performance Award”
means an Award granted under Section 9.
“Performance Stock”
means Restricted Stock granted under a Performance Award.
“Performance Stock
Unit” means a Restricted Stock Unit granted under a Performance Award.
“Permitted Transferee”
means a Participant’s child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew,
mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law (including adoptive relationships), any individual
sharing the Participant’s household (other than a tenant or employee), a trust in which these individuals (or the Participant) have
more than 50% of the beneficial interest, a foundation in which these individuals (or the Participant) control the management of assets,
any other entity in which these individuals (or the Participant) own more than 50% of the voting interests, or such other transferee as
may be permitted by the Administrator in its sole discretion.
“Person”
means an individual, partnership, limited liability company, corporation, association, joint stock company, trust, joint venture, labor
organization, unincorporated organization, governmental entity or political subdivision thereof or any other entity, and includes a syndicate
or group as those terms are used in Section 13(d)(3) or 14(d)(2) of the Exchange Act.
“Plan”
means this Suncrete, Inc. 2026 Omnibus Incentive Plan, as it may be amended from time to time.
“Restricted Award”
means an Award of Restricted Stock or Restricted Stock Units granted under Section 7.
“Restricted Period”
has the meaning set forth in Section 7.
“Restricted Stock”
means Shares granted under an Award that are subject to certain restrictions and risk of forfeiture.
“Restricted Stock
Unit” means a hypothetical unit granted under an Award evidencing the right to receive one Share or an equivalent value in cash
equal to the Fair Market Value (as determined by the Administrator) in the future, which right is subject to certain restrictions and
risk of forfeiture.
“Securities Act”
means the Securities Act of 1933, as amended.
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“Service Agreement”
means a written employment agreement, consulting or other service agreement or an employment policy manual, the terms of which have been
approved by the Administrator, applicable to a Participant’s employment or service with the Company or an Affiliate.
“Share”
means one share of Class A Common Stock or Class B Common Stock, in either case, as designated in the applicable Award Agreement.
“Stock Appreciation
Right” means the right under an Award to receive an amount equal to the difference between the Fair Market Value as of the date
of exercise and the Grant Price, multiplied by the number of Shares for which the Award is exercised, as determined under Section 7.
“Surviving Entity”
means the Company if immediately following any merger, consolidation or similar transaction, the holders of outstanding voting securities
of the Company immediately before the merger or consolidation own equity securities possessing more than 50% of the voting power of the
entity existing following the merger, consolidation or similar transaction. In all other cases, the other entity to the transaction and
not the Company will be the Surviving Entity. In making the determination of ownership by the stockholders of an entity immediately after
the merger, consolidation or similar transaction, equity securities that the stockholders owned immediately before the merger, consolidation,
or similar transaction as stockholders of another party to the transaction will be disregarded. Further, outstanding voting securities
of an entity will be calculated by assuming the conversion of all equity securities convertible (immediately or at some future time whether
or not contingent on the satisfaction of performance goals) into securities entitled to vote.
3. Administration
(a) Administrator.
The Compensation Committee of the Board shall administer the Plan unless and until the Board delegates administration to a different
Committee or vests authority in the Board for the administration of the Plan, as provided in Section 3(e).
(b) Authority
of Administrator. The Administrator will have the power and authority to select Participants and grant Awards under the terms of
the Plan.
(c) Specific
Authority. In particular, the Administrator will have the authority to:
(i) construe
and interpret the Plan and apply its provisions;
(ii) promulgate,
amend, and rescind rules and regulations relating to the administration of the Plan;
(iii) authorize
any Person to execute, on behalf of the Company, any instrument required to carry out the purposes of the Plan;
(iv) delegate
its authority to one or more Officers of the Company with respect to Awards that do not involve any individual who is subject to Section 16
of the Exchange Act, which delegation shall be by a resolution that specifies the total number of Shares that may be subject to Awards
by the Officer and the Officer may not make an Award to himself or herself;
(v) determine
when Awards are to be granted under the Plan;
(vi) select,
subject to the limitations set forth in the Plan, those Participants to whom Awards will be granted;
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(vii) determine
the number and class of Shares to be made subject to each Award;
(viii) determine
whether each Option is to be an Incentive Stock Option or a Nonqualified Stock Option;
(ix) prescribe
the terms and conditions of each Award, including, without limitation, the Grant Price or Exercise Price and medium of payment, vesting
provisions, and to specify the provisions of the Award Agreement relating to the grant or sale;
(x) subject
to the restrictions applicable under Section 15(c), amend any outstanding Awards, including for the purpose of modifying the
time or manner of vesting, the purchase price, Exercise Price or Grant Price or the term of any outstanding Award;
(xi) determine
the duration and purpose of leaves of absences that may be granted to a Participant without constituting termination of their Continuous
Service for purposes of the Plan, which periods will be no shorter than the periods generally applicable to Employees under the Company’s
employment policies or as required under applicable law;
(xii) make
decisions with respect to outstanding Awards that may become necessary on a Change in Control or an event that triggers capital adjustments;
and
(xiii) exercise
discretion to make any and all other determinations that it may determine to be necessary or advisable for administration of the Plan.
(d) Decisions
Final. All decisions made by the Administrator under the provisions of the Plan will be final, binding, and conclusive on the Company,
the Participants, and all other Persons with any interests related to any Award, unless a decision is determined by a court having jurisdiction
to be arbitrary and capricious. Except as required by the Plan, Awards need not contain similar provisions. The Administrator’s
determinations under the Plan (including, without limitation, determinations of which Employees, Consultants or Directors, if any, are
to receive Awards, the form, class of shares, amount and timing of such Awards, the terms and provisions of such Awards and the agreements
evidencing same) need not be uniform and may be made by it selectively among Participants who receive, or are eligible to receive, Awards
under the Plan.
(e) The
Committee.
(i) General.
The Board may delegate administration of the Plan to a Committee or Committees of one or more members of the Board, and the term “Committee”
applies to any Person or Persons to whom that authority has been delegated. If administration is delegated to a Committee, the Committee
will have, in connection with the administration of the Plan, the powers theretofore possessed by the Board, including the power to delegate
to a subcommittee any of the administrative powers the Committee is authorized to exercise (and references in the Plan to the Administrator
will thereafter be to the Committee or subcommittee), subject, however, to such resolutions, consistent with the provisions of the Plan,
as the Board may adopt. The Board may abolish the Committee at any time and re-vest in the Board the administration of the Plan. The members
of the Committee will be appointed by and serve at the pleasure of the Board. The Board may increase or decrease the size of the Committee,
add additional members to, remove members (with or without Cause) from, appoint new members in substitution therefor, and fill vacancies,
however caused, in the Committee. The Committee shall act by a vote of the majority of its members or, in the case of a Committee comprised
of only two members, the unanimous consent of its members, whether present or not, or by the written consent of the majority of its members
and shall keep minutes of all of its meetings. Subject to the limitations prescribed by the Plan and the Board, the Committee may establish
and follow such rules and regulations for the conduct of its business as it may determine to be advisable.
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(ii) Committee
Composition when Registration is Required. Whenever any class of the Company’s common equity securities is required to be registered
under Section 12 of the Exchange Act, in the discretion of the Board, a Committee may consist solely of two or more Non-Employee
Directors. The Board has sole discretion to determine whether it intends to comply with the exemption requirements of Rule 16b-3
under the Exchange Act. However, if the Board intends to satisfy such exemption requirements, with respect to Awards to any Officer or
Director, the Committee will at all times consist solely of two or more Non-Employee Directors. Within the scope of that authority, the
Board or the Committee may delegate to a committee of one or more members of the Board who are not Non-Employee Directors the authority
to grant Awards to eligible individuals who are not Officers, Directors, “beneficial owners” (as defined in Rule 16a
1(a)(1) under the Exchange Act) of more than 10% of any class of equity securities of the Company registered under Section 12
of the Exchange Act or otherwise subject to Section 16 of the Exchange Act. Nothing in this Section 3(e)(ii) is
intended to create an inference that an Award granted other than by a committee of the Board consisting at all times solely of two or
more Non-Employee Directors is not validly granted under the Plan.
(f) Indemnification.
In addition to such other rights of indemnification as they may have as Directors or members of the Committee, and to the extent allowed
by applicable law, the Company will indemnify the Administrator against the reasonable expenses, including attorney’s fees, actually
incurred in connection with any action, suit or proceeding or in connection with any appeal thereof, to which the Administrator may be
party by reason of any action taken or failure to act under or in connection with the Plan or any Award granted under the Plan, and against
all amounts paid by the Administrator in settlement thereof (subject, however, to the Company’s approval of the settlement, which
approval the Company will not unreasonably withhold) or paid by the Administrator in satisfaction of a judgment in any such action, suit
or proceeding, except in relation to matters as to which it is adjudged in the action, suit or proceeding that the Administrator did not
act in good faith and in a manner that the Person reasonably believed to be in the best interests of the Company, and in the case of a
criminal proceeding, had no reason to believe that the conduct complained of was lawful. Notwithstanding the foregoing, it is a condition
precedent to the Company’s obligations in this Section 3(f) that within 60 days after institution of any such action,
suit or proceeding, the Administrator or Committee member offer the Company in writing the opportunity at its own expense to handle and
defend the action, suit or proceeding.
4. Shares Subject to the Plan
(a) Share
Reserve. Subject to adjustment under Section 14(a), the maximum aggregate number of Shares Class A Common Stock
that may be issued on exercise, conversion, or vesting of Awards under the Plan is 3,000,000 (three million) Shares, all of which may
be used for any type of Award, and the maximum aggregate number of Shares of Class B Common Stock that may be issued on exercise,
conversion, or vesting of Awards under the Plan is 2,000,000 (two million) Shares, all of which may be used for any type of Award. Each
Share subject to any Award granted hereunder will be counted against the applicable Share reserve on the basis of one Share for every
Share subject thereto.
(b) Return
of Shares to the Share Reserve. If any Award for any reason is forfeited, cancelled, expires or otherwise terminates, in whole or
in part, the unissued Shares under the Award will revert to and again become available for issuance under the Plan. For the avoidance
of doubt, any Share that is returned to the Plan in accordance with this Section 4(b) for future issuance as an Award
shall be of the same class of Common Stock as originally granted under the Plan. Notwithstanding the foregoing, Shares used to pay the
Exercise Price of an Option or to satisfy a Participant’s tax obligations for any Award, whether tendered to or withheld by the
Company, will not be available again for other Awards under the Plan, and all Shares underlying any Stock Appreciation Right, or any other
Award that is settled in cash and not in Shares, will not be counted against the foregoing Share reserve. Notwithstanding anything in
this Section 4 to the contrary and subject to adjustment under Section 14(a), the maximum number of Shares that
may be issued on the exercise of Incentive Stock Options will equal the aggregate number of Shares stated in subsection (a) plus,
to the extent permitted under Section 422 of the Code and the Treasury regulations thereunder, any Shares that become available for
issuance under the Plan under this Section 4(b).
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(c) Source
of Shares. Shares issued under an Award may consist of authorized and unissued Shares, Shares held by the Company as treasury shares
and Shares purchased on the open market, and may be subject to restrictions deemed appropriate by the Administrator.
5. Award Eligibility and Limitations
(a) Restricted
Awards, Performance Awards, and other Stock-Based Awards may be granted to any Employee, Director or Consultant of the Company or any
Affiliate.
(b) Nonqualified
Stock Options and Stock Appreciation Rights may be granted to any Employee, Director or Consultant of the Company or of a direct or indirect
majority-owned subsidiary of the Company with respect to which the Company, on the Date of Grant, is an “eligible issuer”
under Treasury Regulation section 1.409A-1(b)(5)(iii)(E)(1).
(c) Incentive
Stock Options may be granted only to an Employee of the Company or a corporation that, on the Date of Grant, is a “parent corporation”
or “subsidiary corporation” of the Company, as those terms are defined in Code Sections 424(e) and 424(f), respectively.
(d) Director
Awards. Each Non-Employee Director of the Company will be eligible to receive discretionary grants of Awards under the Plan. If the
Board or the compensation committee of the Board separately has adopted or in the future adopts a compensation policy covering some or
all Non-Employee Directors that provides for a predetermined formula grant that specifies the type of Award, the timing of the Date of
Grant and the number of Shares to be awarded under the terms of the Plan, that formula grant will be incorporated herein by reference
and will be administered as if provided under the terms of the Plan without any requirement that the Administrator separately take action
to determine the terms of those Awards.
6. Options
Each Option will be in such
form and will contain such terms and conditions as the Administrator deems appropriate. All Options will be separately designated Incentive
Stock Options or Nonqualified Stock Options at the time of grant, and, if certificates are issued, a separate certificate or certificates
will be issued for Shares purchased on exercise of each type of Option. Notwithstanding the foregoing, the Company will have no liability
to any Participant or any other Person if an Option designated as an Incentive Stock Option fails to qualify as an Incentive Stock Option
at any time, and in the event an Incentive Stock Option fails to meet the requirements to be an Incentive Stock Option, whether in whole
or in part, such Option or the necessary portion thereof shall instead be deemed to be a Nonqualified Stock Option. No dividends or dividend
equivalents will be paid on any Option. The provisions of separate Options need not be identical, but each Option will include (through
incorporation of provisions hereof by reference in the Option or otherwise) the substance of each of the following provisions:
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(a) Term
and Expiration. The term during which an Option is exercisable will be the period determined by the Administrator as set forth in
the applicable Award Agreement, provided that no Option may be exercisable later than 10 years after the Date of Grant.
(b) Exercise
Price. The Exercise Price for each Option will be equal to or greater than the Fair Market Value on the Date of Grant; provided that
an Option granted under an assumption or substitution for another stock option in a manner satisfying the provisions of Section 424(a) of
the Code, as if the Option was a statutory stock option, may be granted with an Exercise Price lower than the Fair Market Value on the
Date of Grant.
(c) Term
and Exercise Price of Incentive Stock Options Granted to Ten Percent Stockholders. Notwithstanding the foregoing, no Incentive Stock
Option granted to an Employee who owns (or is deemed under Section 424(d) of the Code to own) more than 10% of the total combined
voting power of all classes of stock of the Company or of any “parent corporation” or “subsidiary corporation”
of the Company, as those terms are defined in Code Sections 424(e) and 424(f), respectively, may be exercisable later than five years
after the Date of Grant or have an exercise price that is less than 110% of the Fair Market Value on the Date of Grant.
(d) Repricing
Prohibited. Except as otherwise provided in Section 14, without the prior approval of the Company’s stockholders:
(i) the Exercise Price of an Option may not be directly or indirectly reduced; (ii) no Option may be cancelled in exchange
for cash, an Option or Stock Appreciation Right with an Exercise Price or Grant Price that is less than the Exercise Price of the original
Option, any other Award or otherwise and (iii) the Company shall not purchase an Option for value from a Participant if the current
Fair Market Value of the Shares underlying the Option is lower than the Option’s Exercise Price.
(e) Payment
of Exercise Price. The Exercise Price for Shares purchased under an Option will be paid in cash or by certified or bank check at the
time the Option is exercised, or, to the extent permitted by applicable laws and regulations, in the Administrator’s sole discretion
and on such terms as the Administrator approves: (i) by tendering previously-acquired Shares (either actually or by attestation),
duly endorsed for transfer to the Company, valued at their Fair Market Value on the date of delivery, other than any such Shares acquired
within six months prior to the exercise date; (ii) by a copy of instructions directing a broker to sell Shares for which the Option
is exercised and to remit to the Company the aggregate Exercise Price due for the number of Shares being purchased; (iii) by a “net
exercise” method whereby the Company withholds from the delivery of the Shares for which the Option was exercised that number of
Shares having a Fair Market Value equal to the aggregate Exercise Price for the Shares for which the Option was exercised, upon which
the Option will be surrendered and cancelled with respect to the total number of Shares for which the Option was exercised; or (iv) in
any other form of legal consideration that may be acceptable to the Administrator, including, without limitation, by withholding such
Exercise Price from other compensation payable to the Participant by the Company or with a full-recourse promissory note, subject to any
requirements of applicable law that the par value (if any) of Shares, if newly issued, be paid in cash or cash equivalents.
(f) Terms
for Payment by Promissory Note.
(i) The
interest rate payable under the terms of a promissory note will not be less than the minimum rate (if any) required to avoid the imputation
of additional interest under the Code. Subject to the foregoing, the Administrator (in its sole discretion) will specify the term, interest
rate, amortization requirements (if any) and other provisions of the note. Unless the Administrator determines otherwise, the holder will
be required to pledge to the Company Shares having an aggregate Fair Market Value equal to or greater than the principal amount of the
loan as security for payment of the unpaid balance of the loan, which pledge must be evidenced by a pledge agreement, the terms of which
the Administrator will determine, in its discretion; except that each loan must comply with all applicable laws, regulations and rules of
the Board of Governors of the Federal Reserve System and any other governmental agency having jurisdiction. Unless the Administrator determines
otherwise, the purchase price of Shares acquired under an Option that is paid by delivery (or attestation) to the Company of other shares
acquired, directly or indirectly, from the Company, will be paid only by Shares that satisfy any requirements necessary to avoid liability
award accounting treatment.
10
(ii) Notwithstanding
the foregoing, at any time that the Company is an “issuer” as defined in Section 2 of the Sarbanes-Oxley Act of 2002,
no Director or Officer (or equivalent thereof) of the Company or an Affiliate will be permitted to pay any part of the Exercise Price
with a promissory note or in any other form that could be deemed a prohibited personal loan under Section 13(k) of the Exchange
Act. Unless otherwise provided in the terms of an Award Agreement, payment of the Exercise Price by a Participant who is an Officer, a
Director or otherwise subject to Section 16 of the Exchange Act, by delivery or attestation to the Company of other Shares acquired,
directly or indirectly, from the Company is subject to pre-approval by the Administrator, in its sole discretion. The Administrator will
document any such pre-approval in a manner that complies with the specificity requirements of Rule 16b-3 under the Exchange Act.
(g) Vesting.
The Option may, but need not, vest and thereby become exercisable in periodic installments that may, but need not, be equal. The Option
may be subject to such other terms and conditions on the time or times when it may be exercised (which may be based on performance or
other criteria) as the Administrator determines to be appropriate. The vesting provisions of individual Options may vary. The Administrator
may, but will not be required to, provide that no Option may be exercised for a fraction of a Share. The Administrator may, but will not
be required to, provide for an acceleration of vesting and exercisability in the terms of the Award Agreement for any Option upon the
occurrence of a specified event.
(h) Incentive
Stock Option $100,000 Limitation. To the extent that the aggregate Fair Market Value of Common Stock on the Date of Grant with respect
to which Incentive Stock Options are exercisable for the first time by any Participant during any calendar year (under all plans of the
Company and any “parent corporation” or “subsidiary corporation” of the Company, as those terms are defined in
Code Section 424(e) and (f), respectively) exceeds $100,000, the Options or portions thereof which exceed that limit (according
to the order in which they were granted) will be treated as Nonqualified Stock Options.
(i) Early
Exercise. The Option may, but need not, include a provision whereby the Participant may elect at any time before the Participant’s
Continuous Service terminates to exercise the Option as to any part or all of the Shares subject to the Option prior to the full vesting
of the Option. In that case, the Shares acquired on exercise will be subject to the vesting schedule that otherwise would apply to determine
the exercisability of the Option. Any unvested Shares so purchased may be subject to any other restriction the Administrator determines
to be appropriate.
(j) Employee
Transfer, Approved Leave of Absence. For purposes of Incentive Stock Options, no termination of employment by an Employee will be
deemed to result from either (i) a transfer to the employment of the Company from a “parent corporation” or “subsidiary
corporation” of the Company, as those terms are defined in Code Section 424(e) and (f), respectively, from the Company
to a parent corporation or subsidiary corporation or from one parent or subsidiary corporation to another; or (ii) an approved leave
of absence for military service or sickness or for any other purpose approved by the Company, if the period of leave does not exceed three
months or, if longer, the Employee’s right to re-employment is guaranteed either by a statute or by contract.
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(k) Disqualifying
Dispositions. Each Participant awarded an Incentive Stock Option will be required to immediately notify the Company in writing as
to the occurrence of a disqualifying disposition of any Shares acquired by exercise of the Incentive Stock Option, and the price realized
on the disqualifying disposition of those shares. A “disqualifying disposition” is any disposition (including, without
limitation, any sale or transfer) before the later of (i) two years after the Date of Grant of the Incentive Stock Option or (ii) one
year after the issuance of the shares acquired by exercise of the Incentive Stock Option. The Company may, if determined by the Administrator
and in accordance with procedures established by the Administrator, retain possession of any Shares acquired by exercise of an Incentive
Stock Option as agent for the applicable Participant until the end of the period described in the preceding sentence.
7. Stock Appreciation Rights
A Stock Appreciation Right
may be granted either alone or in tandem with all or part of an Option. A Stock Appreciation Right granted in tandem with a Nonqualified
Stock Option may be granted at or after the time of grant of the related Option, but a Stock Appreciation Right granted in tandem with
an Incentive Stock Option may be granted only at the time of the grant of the related Option.
(a) Grant
Requirements. A Stock Appreciation Right may be granted only if it does not provide for the deferral of compensation within the meaning
of Section 409A of the Code. A Stock Appreciation Right does not provide for a deferral of compensation if: (i) the Grant Price
may never be less than the Fair Market Value on the Date of Grant, (ii) the compensation payable under the Stock Appreciation Right
can never be greater than the difference between the Fair Market Value on the date of exercise and the Grant Price, (iii) the number
of Shares, as applicable, subject to the Stock Appreciation Right is fixed on the Date of Grant, and (iv) the Stock Appreciation
Right does not include any feature for the deferral of compensation other than the deferral of recognition of income until the exercise
of the right. No dividends or dividend equivalents may be paid on any outstanding Stock Appreciation Right.
(b) Grant
Price. The Administrator will determine the Grant Price of a Stock Appreciation Right, which in the case of a Stock Appreciation
Right granted independent of any Option will not be less than the Fair Market Value on the Date of Grant. The Grant Price of a Stock
Appreciation Right granted in tandem with an Option will be the Exercise Price of the related Option. A Stock Appreciation Right granted
in tandem with an Option will be exercisable only to the same extent as the related Option, provided that by its terms, such Stock Appreciation
Right will be exercisable only when the Fair Market Value exceeds the Grant Price of the Stock Appreciation Right.
(c) Repricing
Prohibited. Except as otherwise provided in Section 14, without the prior approval of the Company’s stockholders:
(i) the Grant Price of a Stock Appreciation Right may not be directly or indirectly reduced; (ii) a Stock Appreciation Right
may not be cancelled in exchange for cash, an Option or Stock Appreciation Right with an Exercise Price or Grant Price that is less than
the Grant Price of the original Stock Appreciation Right, any other Award or otherwise; and (iii) the Company may not purchase a
Stock Appreciation Right for value from a Participant if the current Fair Market Value is less than the Stock Appreciation Right’s
Grant Price.
(d) Vesting.
The Stock Appreciation Right will be subject to a Restricted Period that specifies forfeiture in accordance with a vesting schedule to
be determined by the Administrator. The Administrator in its discretion may provide for an acceleration of vesting in the terms of any
Stock Appreciation Right upon a specified event, including, without limitation, a Change in Control.
(e) Exercise
and Settlement. Upon delivery to the Administrator of a written request to exercise a Stock Appreciation Right, the holder will be
entitled to receive from the Company, an amount equal to the product of (i) the excess of the Fair Market Value on the date of exercise
over the Grant Price specified in the Award Agreement, multiplied by (ii) the number of Shares for which the Stock Appreciation
Right is being exercised. Settlement with respect to the exercise of a Stock Appreciation Right will be on the date of exercise and may
be made in the form of Shares valued at Fair Market Value on the date of exercise (with or without restrictions as to substantial risk
of forfeiture and transferability, as determined by the Administrator in its sole discretion), cash or a combination of Shares and cash,
as determined by the Administrator in its sole discretion.
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(f) Reduction
in the Underlying Option Shares. On the exercise of a Stock Appreciation Right granted in tandem with an Option, the number of Shares
for which the related Option is exercisable will be reduced by the number of such Shares for which the Stock Appreciation Right has been
exercised. The number of Shares for which a tandem Stock Appreciation Right is exercisable will be reduced on any exercise of any related
Option by the number of such Shares for which the Option has been exercised.
(g) Written
Request. Unless otherwise determined by the Administrator in its sole discretion, Stock Appreciation Rights will be settled in Shares
as specified in the Award Agreement. If permitted in the Award Agreement, a Participant may request that any exercise of a Stock Appreciation
Right be settled for cash, but a Participant will not have any right to demand a cash settlement. A request for a cash settlement may
be made only by a written request filed with the Corporate Secretary of the Company during the period beginning on the third business
day following the date of release for publication by the Company of quarterly or annual summary statements of earnings and ending on
the twelfth business day following that date. Within 30 days of the receipt by the Company of a written request to receive cash in full
or partial settlement of a Stock Appreciation Right or to exercise the Stock Appreciation Right for cash, the Administrator will, in
its sole discretion, either consent to or disapprove, in whole or in part, the written request. A written request to receive cash in
full or partial settlement of a Stock Appreciation Right or to exercise a Stock Appreciation Right for cash may provide that, if the
Administrator disapproves the written request, the written request will be treated as an exercise of the Stock Appreciation Right for
Shares.
(h) Disapproval
by Administrator. If the Administrator disapproves in whole or in part any request by a Participant to receive cash in full or partial
settlement of a Stock Appreciation Right or to exercise such Award for cash, the disapproval will not affect the Participant’s right
to exercise the Stock Appreciation Right at a later date, to the extent that it would be otherwise exercisable, or to request a cash form
of payment at a later date, in each case subject to the approval of the Administrator. Additionally, the disapproval will not affect the
Participant’s right to exercise any related Option.
8. Restricted Awards
A Restricted Award is an Award
of Restricted Stock or Restricted Stock Units, which provides that, except as otherwise provided in Section 16(d) with respect
to Permitted Transferees, the Restricted Award may not be sold, assigned, transferred or otherwise disposed of, pledged or otherwise encumbered
for the period (the “Restricted Period”) determined by the Administrator. Each Restricted Award will be in such form
and will contain such terms, conditions, and Restricted Periods as the Administrator determines to be appropriate, including the treatment
of dividends or dividend equivalents, as the case may be. The terms and conditions of the Restricted Award may change from time to time,
and the terms and conditions of separate Restricted Awards need not be identical, but each Restricted Award must include (through incorporation
of provisions hereof by reference in the Award Agreement or otherwise) the substance of each of the following provisions:
(a) Payment
for Restricted Awards. The purchase price of Shares acquired under a Restricted Award, if any, will be determined by the Administrator
and may be stated as cash, property or services rendered or to be rendered to the Company or an Affiliate for its benefit. Shares acquired
in connection with a Restricted Award may be issued for such consideration, having a value not less than the par value thereof, as may
be determined by the Administrator. Required consideration for Shares acquired in connection with a Restricted Award may be paid: (i) in
cash at the time of purchase; or (ii) in any other form of legal consideration that may be acceptable to the Administrator in its
discretion including, without limitation, a recourse promissory note, property or services that the Administrator determines have a value
at least equal to the purchase price of the Restricted Award. Notwithstanding the foregoing, at any time that the Company is an “issuer”
as defined in Section 2 of the Sarbanes-Oxley Act of 2002, no Director or Officer (or equivalent thereof) of the Company or an Affiliate
will be permitted to pay any portion of the purchase price for Shares acquired under a Restricted Award with a promissory note or in
any other form that could be deemed a prohibited personal loan under Section 13(k) of the Exchange Act.
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(b) Vesting.
The Restricted Award, and any Shares acquired thereunder, may, but need not, be subject to a Restricted Period that specifies a repurchase
right in favor of the Company, or forfeiture where the consideration was in the form of services, in accordance with a vesting schedule
to be determined by the Administrator. The Administrator in its discretion may provide for an acceleration of vesting in the terms of
any Restricted Award, at any time, including upon a Change in Control. The Administrator in its discretion may grant a Restricted Award
that is, in whole or in part, vested upon grant and not subject to a Restricted Period.
(c) Concurrent
Tax Payment. The Administrator may, in its sole discretion, provide for payment of a concurrent cash award in an amount equal to
all or part of the estimated after-tax amount required to satisfy applicable federal, state or local tax withholding obligations arising
from the receipt and deemed vesting of Restricted Stock for which an election under Code Section 83(b) may be required.
(d) Lapse
of Restrictions. Subject to the Participant’s Continuous Service, upon the expiration or termination of the Restricted Period
and the satisfaction of any other conditions prescribed by the Administrator (including, without limitation, the Participant’s
satisfaction of applicable tax withholding obligations attributable to the Award), the restrictions applicable to the Restricted Award
will lapse and the number of Shares with respect to which the restrictions have lapsed will be issued (as evidenced by the appropriate
entry on the books of the Company or of a duly authorized transfer agent of the Company, or by delivery of a stock certificate), free
of any restrictions except those that may be imposed by law, the terms of the Plan or the terms of a Restricted Award, to the Participant
or the Participant’s beneficiary or estate, as the case may be, unless the Restricted Award is subject to a deferral condition
that complies with Section 409A of the Code and the regulations thereunder as may be allowed or required by the Administrator in
its sole discretion. The Company will not be required to deliver any fractional Share but may pay, in lieu thereof, the Fair Market Value
of the fractional share in cash to the Participant or the Participant’s beneficiary or estate, as the case may be. With respect
only to Restricted Stock Units, unless otherwise subject to a deferral condition that complies with Section 409A of the Code, the
Shares (or cash, as applicable) will be issued and the Participant will be entitled to the beneficial ownership rights thereof not later
than (i) the date that is 2 1⁄2 months after the end of the Participant’s taxable year (or the end of the
Company’s taxable year, if later) for which the Restricted Period ends and the Restricted Stock Unit is no longer subject to a
substantial risk of forfeiture, or (ii) such earlier date as may be necessary to avoid application of Section 409A of the Code
to the Award.
(e) Stockholder
Rights. Unless otherwise provided by the Administrator in an Award Agreement, the holder of shares of Restricted Stock will be entitled
to vote such Shares. Dividends, if any, paid on shares of Restricted Stock will be held by the Company, without interest, until such time
as the restrictions lapse on the related shares of Restricted Stock. Dividends on shares of Restricted Stock that are forfeited will also
be forfeited to the Company.
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(f) Dividends
on Restricted Stock Units. In the case of Restricted Stock Units, the Participant will not be entitled to receive dividends or dividend
equivalents unless the Award Agreement specifically provides therefor.
(g) Delivery
of Restricted Stock. Shares of Restricted Stock will be delivered to the Participant on the Date of Grant either by book-entry registration
or by delivering to the Participant, or to a custodian or escrow agent (including, without limitation, the Company or one or more of
its Employees) designated by the Administrator, a stock certificate or certificates registered in the name of the Participant. If physical
certificates representing shares of the Restricted Stock are registered in the name of the Participant, such certificates must bear an
appropriate legend referring to the terms, conditions, and restrictions applicable to such Shares.
9. Performance Awards
The Administrator may designate
any Award as a Performance Award, which will vest only on the attainment of performance goals specified in the Award Agreement. Performance
Awards may be granted independent of or in connection with the granting of any other Award under the Plan. A Performance Award may be
granted under the Plan to any Participant, including a Participant who qualifies for awards under other performance-based plans of the
Company. The Administrator will determine in its sole discretion whether and to whom Performance Awards will be granted, the performance
goals for each Performance Award, the performance period, or periods for measuring performance, and all other limitations and conditions
applicable to Performance Awards. The Administrator, in its sole discretion, may rely on the performance goals and other standards applicable
to other performance plans of the Company in setting the standards for Performance Awards under the Plan.
(a) Performance
Goals.
(i) A
performance goal will be based on a pre-established formula or standard that specifies the manner of determining the number of Shares
under the Performance Award that will be issued or will vest if the performance goal is attained. Performance goals may be based on one
or more business criteria, which may be applied to a Participant, a business unit or the Company and its Affiliates, including without
limitation one or any combination of the following: (1) revenues; (2) earnings before all or any of interest expense, taxes,
depreciation and/or amortization (“EBIT,” “EVITA,” or “EBITDA”); (3) funds from operations; (4) funds
from operations per share; (5) operating income; (6) operating income per share; (7) pre-tax or after-tax income; (8) net
cash provided by operating activities; (9) cash available for distribution; (10) cash available for distribution per share;
(11) working capital and components thereof; (12) sales (net or gross) measured by product line, territory, customer or customers or other
category; (13) return on equity or average stockholders’ equity; (14) return on assets; (15) return on capital; (16) enterprise
value or economic value added; (17) share price performance; (18) improvements in the Company’s attainment of expense levels; (19)
implementation or completion of critical projects; (20) improvement in cash-flow (before or after tax); (21) net earnings; (22) earnings
per share; (23) earnings from continuing operations; (24) net worth; (25) credit rating; (26) levels of expense, cost or liability by
category, operating unit or any other delineation; (27) any increase or decrease of one or more of the foregoing over a specified period;
or (28) the occurrence of a Change in Control.
(ii) A
performance goal may be measured over a performance period on a periodic, annual, cumulative, or average basis and may be established
on a corporate-wide basis or with respect to one or more operating units, divisions, subsidiaries, acquired businesses, minority investments,
facilities, partnerships or joint ventures. More than one performance goal may be incorporated in a performance objective, in which case
achievement with respect to each performance goal may be assessed individually or in combination with each other. The Administrator may,
in connection with the establishment of performance goals for a performance period, establish a matrix setting forth the relationship
between performance on two or more performance goals and the amount of the Performance Award payable for that performance period. The
level or levels of performance specified with respect to a performance goal may be established in absolute terms, as objectives relative
to performance in prior periods, as an objective compared to the performance of one or more comparable companies or an index covering
multiple companies on a per share basis, against the performance of the Company as a whole or against particular entities, segments, operating
units or products of the Company, on a pre-tax or after-tax basis, in tandem with any other performance goal, or otherwise as the Administrator
may determine. The Administrator may, in connection with the establishment of performance goals for a performance period, specify one
or more adjustments to any of the business criteria specified in Section 9(a)(i).
15
(iii) Performance
goals may be objective or subjective and may differ for Performance Awards granted to any one Participant or to different Participants.
A Performance Award may provide, as determined by the Administrator, that if the Participant’s Continuous Service ceases before
the end of the performance period for any reason, the Performance Award will be payable only if the applicable performance objectives
are achieved and to the extent, if any, determined by the Administrator. Performance goals may be based on increases in a specific business
criterion, on maintaining the status quo or on limiting economic losses.
(iv) The
Administrator may provide in any Performance Award that any evaluation of performance may include or exclude the effect, if any, on reported
financial results of objectively determinable events that occur during a performance period, including, without limitation: (1) asset
write-downs; (2) litigation or claim judgments or settlements; (3) changes in tax laws, accounting principles or other laws
or provisions; (4) reorganization or restructuring programs, including share repurchasing programs; (5) acquisitions or divestitures;
(6) foreign currency exchange translations gains and losses; (7) any loss from a discontinued operation as described in the
Accounting Standards Codification Topic 360; (8) goodwill impairment charges; (9) revenue or earnings attributable to minority
ownership in another entity; (10) any amounts accrued by the Company or an Affiliate pursuant to management bonus plans or cash profit
sharing plans and related employer payroll taxes for the fiscal year; (11) any discretionary or matching contributions made to a savings
and deferred profit-sharing or deferred compensation plan for the fiscal year; (12) interest, expenses, taxes, depreciation and depletion,
or amortization and accretion charges; or (13) gains and losses that are treated as extraordinary items under Accounting Standards Codification
Topic 225.
(b) Satisfaction
of Performance Goals. A Participant will be entitled to receive Shares (as evidenced either by a stock certificate or by the appropriate
entry on the books of the Company or of a duly authorized transfer agent of the Company) under a Performance Award only upon satisfaction
of all conditions specified in the Award Agreement for the Performance Award, including, without limitation, the Participant’s satisfaction
of applicable tax withholding obligations attributable to the Performance Award. With respect only to a Performance Stock Unit Award,
Shares, or cash, as applicable, will be issued and delivered and the Participant will be entitled to the beneficial ownership rights thereof
not later than (i) the date that is 2 1⁄2 months after the end of the Participant’s taxable year (or the end
of the Company’s taxable year, if later) for which the Performance Stock Unit Award is no longer subject to a substantial risk of
forfeiture, and (ii) such earlier date as may be necessary to avoid application of Section 409A of the Code to the Performance
Stock Unit Award.
(c) Acceleration,
Waiver, Etc. At any time before the Participant’s termination of Continuous Service, the Administrator may in its sole discretion
and subject to Section 15, amend any or all of the goals, restrictions or conditions imposed under any Performance Award.
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10. Other Stock-Based Awards
The Administrator may, either
alone or in connection with the grant of other Awards, grant other stock-based Awards not otherwise described in the Plan that are payable
in, valued in whole or in part by reference to, or are otherwise based on Shares, including, without limitation, dividend equivalent rights,
as deemed by the Administrator consistent with the purpose of the Plan. The Administrator will determine the terms and conditions of any
such Award.
11. Treatment of Awards on Termination of Continuous Service
(a) Unvested
Awards Generally. Unless otherwise provided in an Award Agreement or Service Agreement, if a Participant’s Continuous Service
terminates for any reason, the Participant will forfeit the unvested portion of any Award acquired in consideration of services, all unvested
Shares held by the Participant as of the date of termination under the terms of any Award will be forfeited or, if applicable, may be
repurchased by the Company at the lesser of the purchase price paid by the Participant or the current Fair Market Value, and the Participant
will have no rights with respect to any Award or Shares so forfeited or repurchased.
(b) Options
and Stock Appreciation Rights.
(i) Other
than for Cause, death, or Disability. Unless otherwise provided in an Award Agreement or Service Agreement, if a Participant’s
Continuous Service is terminated for any reason other than due to the Participant’s death or Disability or by the Company for Cause,
the Participant may exercise his or her Option or Stock Appreciation Right (to the extent vested and exercisable as of the date of termination)
during the period ending on the earlier of (1) the date that is three months after the termination of the Participant’s Continuous
Service or (2) the expiration of the original term of the Award as set forth in the Award Agreement. Any unexercised Option or Stock
Appreciation Right held by the Participant will automatically terminate at the close of business on the last day of such period and will
thereafter not be exercisable.
(ii) For
Cause. If the Participant’s Continuous Service is terminated by the Company or an Affiliate for Cause, all outstanding Options
and Stock Appreciation Rights (whether or not vested) will be forfeited and expire as of the beginning of business on the date of termination.
(iii) Participant
Death or Disability. Unless otherwise provided in an Award Agreement or Service Agreement, if a Participant’s Continuous Service
is terminated as a result of the Participant’s death or Disability, the Participant’s Option or Stock Appreciation Right
may be exercised (to the extent the Award was vested and exercisable as of the date of termination) by the Participant or the Participant’s
estate, designated beneficiary or such other Person who acquired the right to exercise the Award by bequest or inheritance, but only
during the period ending on the earlier of (1) the date that is 12 months following the date of termination or (2) the expiration
of the original term of the Option or Stock Appreciation Right as set forth in the Award Agreement. Any unexercised Option or Stock Appreciation
Right held by the Participant or such other Person will terminate at the end of such period.
(iv) Extension
of Option or Stock Appreciation Right Termination Date. An Award Agreement may provide that if the exercise of an Option or Stock
Appreciation Right following the termination of the Participant’s Continuous Service for any reason (other than on the Participant’s
death or Disability or termination by the Company for Cause) would violate any applicable federal, state or local law, the Award will
terminate only on the earlier of (1) the expiration of the original term of the Award or (2) the date that is 30 days after
the exercise of the Award would no longer violate any applicable federal, state or local law.
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12. Covenants of the Company
(a) Availability
of Shares. During the terms of the Awards, the Company will keep available at all times the number of Shares required to satisfy
the Awards.
(b) Securities
Law Compliance. Each Award Agreement will provide that no Shares may be purchased or sold thereunder unless and until any then applicable
requirements of state, federal or applicable foreign laws and regulatory agencies have been fully complied with to the satisfaction of
the Company and its counsel. The Company will use reasonable efforts to seek to obtain from each regulatory commission or agency having
jurisdiction over the Plan such authority as may be required to grant Awards and to issue and sell Shares upon exercise of Awards; however,
this undertaking will not require the Company to register under the Securities Act the Plan, any Award or any Common Stock issued or
issuable pursuant to any Award. If, after reasonable efforts, the Company is unable to obtain from any such regulatory commission or
agency the authority that counsel for the Company determines to be necessary for the lawful issuance and sale of Common Stock under the
Plan, the Company will be relieved from any liability for failure to issue and sell Shares on exercise of any Awards unless and until
that authority is obtained.
13. Company Use of Proceeds from Awards
Proceeds from the sale of
Shares under the Plan will be general funds of the Company.
14. Adjustments for Changes in Stock
(a) Capitalization
Adjustments. If any change is made in the Common Stock without the receipt of consideration by the Company (through merger, consolidation,
reorganization, recapitalization, reincorporation, stock dividend, dividend in property other than cash, stock split, liquidating dividend,
combination of Shares, exchange of Shares, change in corporate structure or other transaction not involving the receipt of consideration
by the Company), then (i) the aggregate number of Shares or the class of securities that may be purchased pursuant to Awards granted
hereunder; (ii) the aggregate number of Shares or the class of securities that may be purchased pursuant to Incentive Stock Options
granted hereunder; (iii) the number or class of securities covered by outstanding Awards; (iv) the maximum number of Shares
with respect to which Options, Stock Appreciation Rights and Performance Awards may be granted to any single Employee during any calendar
year and (v) the Exercise Price of any Option and the Grant Price of any Stock Appreciation Right in effect before the change shall
be proportionately adjusted by the Administrator to reflect any increase or decrease in the number of issued Shares or change in the
Fair Market Value resulting from the transaction; provided that any fractional Shares resulting from the adjustment will be aggregated
until, and eliminated at, the time of exercise or settlement by rounding down. The Administrator shall make these adjustments in a manner
that will provide an appropriate adjustment that neither increases nor decreases the value of the Award as in effect immediately before
the corporate change, and its determination will be final, binding, and conclusive. The conversion of any securities of the Company that
are by their terms convertible will not be treated as a transaction “without receipt of consideration” by the Company.
(b) Dissolution
or Liquidation. In the event of a dissolution or liquidation of the Company, then, subject to Section 14(c), all outstanding
Awards will terminate immediately before the dissolution or liquidation.
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(c) Change
in Control – Asset Sale, Merger, Consolidation or Reverse Merger. Unless otherwise provided in an Award Agreement or Service
Agreement and to the extent permitted by applicable law, in the event of a Change in Control, a dissolution or liquidation of the Company,
an exchange of securities or any corporate separation or division, including, but not limited to, a split-up, a split-off or a spin-off
or a sale, in one or a series of related transactions, of all or substantially all of the assets of the Company; a merger or consolidation
in which the Company is not the Surviving Entity; or a reverse merger in which the Company is the Surviving Entity, but the Shares outstanding
immediately preceding the merger are converted by virtue of the merger into other property, whether in the form of securities, cash or
otherwise, then the Company, to the extent permitted by applicable law, but otherwise in the sole discretion of the Administrator may
provide for: (i) the continuation of outstanding Awards by the Company (if the Company is the Surviving Entity); (ii) the assumption
of the Plan and the outstanding Awards by the Surviving Entity or its parent; (iii) the substitution by the Surviving Entity or
its parent of awards with substantially the same terms (including an award to acquire the same consideration paid to the stockholders
in the transaction described in this Section 14(c)) for the outstanding Awards and, if appropriate, subject to the equitable
adjustment provisions of Section 14(a); (iv) the cancellation of the outstanding Awards in consideration for a payment
(in the form of securities, cash or such other consideration and under the same terms and conditions as is paid to the stockholders of
the Company in the transaction) equal in value to the Fair Market Value of the Shares underlying each vested Award, or in the case of
an outstanding Option or Stock Appreciation Right, the difference between the Fair Market Value and the Exercise Price or Grant Price
for all Shares subject to exercise (i.e., to the extent vested) under the Option or Stock Appreciation Right (subject in each case to
withholding as required by applicable law); or (v) the cancellation of the outstanding Awards without payment of any consideration.
If Awards would be canceled without consideration for vested Options or Stock Appreciation Rights, the Participant will be given the
right to exercise the Option or Stock Appreciation Right prior to the merger or consolidation in whole or in part without regard to any
installment exercise provisions in the applicable Award Agreement.
15. Amendment of the Plan and Awards
(a) Plan
Amendment. The Board or an authorized committee of the Board at any time may amend or terminate the Plan. However, except as provided
in Section 14(a) relating to adjustments upon changes in the Common Stock, no amendment will be effective unless approved
by the stockholders of the Company to the extent stockholder approval is necessary to satisfy any applicable law or any securities exchange
listing requirements. At the time of any amendment, the Board or its authorized committee shall determine, upon advice from counsel,
whether the amendment will be contingent on stockholder approval.
(b) Contemplated
Amendments. It is expressly contemplated that the Board or an authorized committee of the Board may amend the Plan in any respect
the Board or its authorized committee determines necessary or advisable to provide eligible Employees with the maximum benefits provided
or to be provided under the provisions of the Code and the regulations issued thereunder relating to Incentive Stock Options or to the
nonqualified deferred compensation provisions of Section 409A of the Code and to bring the Plan and Awards granted hereunder into
compliance therewith. Notwithstanding the foregoing, neither the Board nor the Company nor any Affiliate will have any liability to any
Participant or any other Person as to (a) any tax consequences expected, but not realized, by a Participant or any other Person due
to the receipt, exercise or settlement of any Award granted hereunder; or (b) the failure of any Award to comply with Section 409A
of the Code.
(c) Amendment
of Awards. Subject to Sections 15(d) and 15(e), the Administrator at any time may amend the terms of any one or
more Awards. Except as otherwise permitted under Section 14, unless stockholder approval is obtained: (i) no amendment
or modification may reduce the Exercise Price of any Option or the Grant Price of any Stock Appreciation Right; (ii) the Administrator
may not cancel any outstanding Option or Stock Appreciation Right and replace it with a new Option or Stock Appreciation Right, another
Award or cash, if doing so would be considered a “repricing” for purposes of the stockholder approval rules of the applicable
securities exchange or interdealer quotation system on which the Common Stock is listed or quoted; and (iii) the Administrator may
not take any other action that is considered a repricing for purposes of the stockholder approval rules of the applicable securities
exchange or interdealer quotation system on which the Common Stock is listed or quoted.
19
(d) No
Impairment of Rights. No amendment of the Plan or an Award may impair rights or increase a Participant’s obligations under any
Award granted before the amendment unless (i) the Company requests the consent of the Participant and (ii) the Participant consents
in writing. For the avoidance of doubt, a cancellation of an Award where the Participant receives a payment equal in value to the Fair
Market Value of the vested Award or, in the case of a vested Option or Stock Appreciation Right, the difference between the Fair Market
Value of the Shares subject to the Award and the Exercise Price or Grant Price, is not an impairment of the Participant’s rights
or increase in the Participant’s obligations that requires consent of the Participant.
(e) Acceleration
of Exercisability and Vesting. The Administrator has the power to accelerate at any time the time at which an Award may first be exercised
or the time at which an Award or any part thereof will vest and restrictions thereon will lapse in accordance with the Plan, notwithstanding
the provisions in the Award stating the time at which it may first be exercised or the time during which it will vest.
16. General Provisions
(a) Stockholder
Rights. Except as provided in Section 14(a) or as otherwise provided in an Award Agreement, no Participant will be
considered the holder of, or to have any of the rights of a holder with respect to, any Shares subject to an Award unless and until the
Participant has satisfied all requirements for exercise, payment or delivery of the Award, as applicable, pursuant to its terms, and no
adjustment will be made for dividends (ordinary or extraordinary, whether in cash, securities or other property) or distributions of other
rights for which the record date is prior to the date of issue of the Shares (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company).
(b) Participation
not a Guarantee of Service Right. Nothing in the Plan or any instrument executed or Award granted pursuant thereto will confer on
any Participant any right to continue to serve the Company or an Affiliate in the capacity in effect at the time the Award was granted
or will affect the right of the Company or an Affiliate to terminate (i) the employment of an Employee with or without notice and
with or without Cause; (ii) the service of a Consultant pursuant to the terms of the Consultant’s agreement with the Company
or an Affiliate; or (iii) the service of a Director pursuant to the Bylaws of the Company or an Affiliate, and any applicable provisions
of the corporate law of the state in which the Company or the Affiliate is incorporated, as the case may be.
(c) Effect
of Plan. Neither the adoption of the Plan nor any action of the Board or the Administrator may be deemed to give any Employee, Director
or Consultant any right to be granted an Award or any other rights, except as may be evidenced by an Award Agreement or a Service Agreement,
or any amendment thereto, duly authorized by the Administrator and executed on behalf of the Company, and then only to the extent and
on the terms and conditions expressly set forth in such Award Agreement or Service Agreement. The existence of the Plan and the Awards
granted hereunder does not affect in any way the right of the Board or the stockholders of the Company to make or authorize any adjustment,
recapitalization, reorganization or other change in the Company’s capital structure or its business, any merger or consolidation
of the Company, any issue of bonds, debentures, or shares of preferred stock ahead of or affecting the Common Stock or the rights thereof,
the dissolution or liquidation of the Company or any sale or transfer of all or any part of its assets or business, or any other corporate
act or proceeding.
20
(d) Limits
on Transfer.
(i) Each
Award will be exercisable during the Participant’s lifetime only by the Participant, or, if permissible under applicable law, by
the Participant’s legal guardian or representative. No Award may be assigned, alienated, pledged, attached, sold or otherwise transferred
or encumbered by a Participant other than by will or by the laws of descent and distribution and any such purported assignment, alienation,
pledge, attachment, sale, transfer or encumbrance will be void and unenforceable against the Company or any Affiliate; provided that the
designation of a beneficiary will not constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance.
(ii) Notwithstanding
the foregoing, the Administrator may, in its sole discretion, permit a Participant to transfer an Award (other than an Incentive Stock
Option) by gift or domestic relations order, without consideration, to a Permitted Transferee, subject to such rules as the Administrator
may adopt consistent with any applicable Award Agreement to preserve the purposes of the Plan, on condition that the Participant first
gives the Administrator advance written notice describing the terms and conditions of the proposed transfer and the Administrator notifies
the Participant in writing that the transfer would comply with the requirements of the Plan. If the Award Agreement does not provide for
transferability, then the Award will be transferable and exercisable only as provided in the preceding Section 16(d)(i).
(iii) The
terms of an Award transferred in accordance with Section 16(d)(ii) will apply to the Permitted Transferee, and any reference
to a Participant in the Plan or in the Award Agreement will refer to the Permitted Transferee, except that (1) the Permitted Transferee
will not be entitled to transfer the Award other than by will or the laws of descent and distribution; (2) the Permitted Transferee
is not entitled to exercise a transferred Option unless there is in effect a registration statement on an appropriate form covering the
Shares to be acquired by the exercise of the Option if the Administrator determines, consistent with the Award Agreement, that a registration
statement is necessary or appropriate; (3) neither the Administrator nor the Company is required to provide any notice to a Permitted
Transferee, whether or not notice is or would otherwise have been required to be given to the Participant; and (4) the consequences
of the termination of the Participant’s Continuous Service under the Plan and the Award Agreement will continue to be applied with
respect to the Participant, including, without limitation, that an Option will be exercisable by the Permitted Transferee only to the
extent, and for such period, specified in the Plan and the Award Agreement.
(e) Investment
Assurances. The Company may require a Participant, as a condition of exercising or acquiring Common Stock under any Award, (i) to
give written assurances satisfactory to the Company as to the Participant’s knowledge and experience in financial and business matters
or to employ a purchaser representative reasonably satisfactory to the Company who is knowledgeable and experienced in financial and business
matters and that he or she is capable of evaluating, alone or together with the purchaser representative, the merits and risks of exercising
the Award; and (ii) to give written assurances satisfactory to the Company stating that the Participant is acquiring Shares subject
to the Award for the Participant’s own account and not with any present intention of selling or otherwise distributing the Shares.
The foregoing requirements, and any assurances given pursuant to those requirements, will be inoperative if (x) the issuance of the
Shares on the exercise, grant or vesting of the Award has been registered under a then currently effective registration statement under
the Securities Act; or (y) as to any particular requirement, a determination is made by counsel for the Company that that requirement
need not be met in the circumstances under the then applicable securities laws. The Company may, on advice of Company counsel, place legends
on stock certificates issued under the Plan as such counsel considers necessary or appropriate in order to comply with applicable securities
laws, including, but not limited to, legends restricting the transfer of the Shares.
21
(f) Withholding
Obligations. To the extent provided by the terms of an Award Agreement and subject to the discretion of the Administrator, the Participant
may satisfy any federal, state or local tax withholding obligation relating to the exercise or acquisition of Shares under an Award by
any one or combination of the following means (in addition to the Company’s right to withhold from any compensation otherwise payable
to the Participant by the Company): (i) cash payment; (ii) authorizing the Company to withhold a number of Shares from the Shares
otherwise issuable to the Participant as a result of the exercise or acquisition of Shares under the Award, the Fair Market Value of which
does not exceed either the maximum statutory tax rates in the Participant’s applicable jurisdictions or the amount of tax required
to be withheld by law, and in which case the Award will be surrendered and cancelled with respect to the number of Shares retained by
the Company (provided that to the extent such direction would result in the Company withholding fractional Shares, the number of Shares
to be withheld will be rounded down to the nearest whole and the Participant must pay the remainder of the withholding obligation in cash
or by certified or bank check); (iii) delivering to the Company previously owned and unencumbered Shares, other than Shares the Participant
received six months prior to the applicable exercise or acquisition date, or (iv) by execution of a recourse promissory note by a
Participant. Notwithstanding the foregoing, at any time that the Company is an “issuer” as defined in Section 2 of the
Sarbanes-Oxley Act of 2002, no Director or executive officer (or equivalent thereof) of the Company or an Affiliate will be permitted
to pay any portion of the tax withholding with respect to any Award with a promissory note or in any other form that could be deemed a
prohibited personal loan under Section 13(k) of the Exchange Act. Unless otherwise provided in the terms of an Award Agreement,
payment of the tax withholding by a Participant who is an Officer or Director or is otherwise subject to Section 16 of the Exchange
Act by delivering previously owned and unencumbered Shares or in the form of share withholding is subject to pre-approval by the Administrator,
in its sole discretion. The Administrator shall document any pre-approval in the case of a Participant who is an Officer or Director in
a manner that complies with the specificity requirements of Rule 16b-3 under the Exchange Act, including the name of the Participant
involved in the transaction, the nature of the transaction, the number of shares to be acquired or disposed of by the Participant and
the material terms of the Award involved in the transaction.
(g) Other
Compensation Arrangements. Nothing contained in the Plan will prevent the Board, including any authorized committee of the Board,
from adopting other or additional compensation arrangements, subject to stockholder approval if stockholder approval is required; and
those arrangements may be either generally applicable or applicable only in specific cases.
(h) Recapitalizations.
Each Award Agreement will contain provisions required to reflect the provisions of Section 14(a).
(i) Delivery.
Upon exercise of a right granted under an Award under the Plan, the Company will issue Shares or pay any amounts due within a reasonable
period thereafter. Subject to any statutory or regulatory obligations the Company may otherwise have, for purposes of the Plan, 30 days
will be considered a reasonable period.
(j) Government
and Other Regulations.
(i) The
Company’s obligation to settle Awards in Shares or other consideration is subject to all applicable laws, rules, and regulations,
and to such approvals by governmental agencies as may be required. Notwithstanding any terms or conditions of any Award to the contrary,
the Company will be under no obligation to offer to sell or to sell, and is prohibited from offering to sell or selling, any Shares under
an Award unless the Shares have been properly registered for sale under the Securities Act or unless the Company has received an opinion
of counsel, satisfactory to the Company, that such Shares may be offered or sold without registration pursuant to an available exemption
therefrom and the terms and conditions of that exemption and of all applicable state securities laws have been fully complied with. The
Company will be under no obligation to register for sale under the Securities Act any of the Shares to be offered or sold under the Plan.
The Administrator is authorized to provide that all certificates or book entries for Common Stock or other securities of the Company or
any Affiliate delivered under the Plan will be subject to such stop transfer orders and other restrictions as the Administrator may consider
advisable under the Plan, the applicable Award Agreement, the state or federal securities laws, or the rules, regulations and other requirements
of the Securities and Exchange Commission, any securities exchange or interdealer quotation system on which the Common Stock or other
security is then listed or quoted and any other applicable federal, state, local or non-U.S. laws. Notwithstanding any provision in the
Plan to the contrary, the Administrator reserves the right to add any additional terms or provisions to any Award granted under the Plan
that it in its sole discretion considers necessary or advisable in order that the Award complies with the legal requirements of any governmental
entity to whose jurisdiction the Award is subject.
22
(ii) The
Administrator may cancel an Award or any portion thereof if it determines, in its sole discretion, that legal or contractual restrictions,
blockage or other market considerations would make the Company’s acquisition of Shares from the public markets, the Company’s
issuance of Shares to the Participant, the Participant’s acquisition of Shares from the Company or the Participant’s sale
of Shares to the public markets, illegal, impracticable or inadvisable. If the Administrator determines to cancel all or any portion of
an Award in accordance with the foregoing, the Company will pay to the Participant an amount equal to the excess of (1) the aggregate
Fair Market Value of the Shares subject to the Award or portion thereof canceled (determined as of the applicable exercise date, or the
date that the Shares would have been vested or delivered, as applicable), over (2) the aggregate Exercise Price or Grant Price (in
the case of an Option or Stock Appreciation Right, respectively) or any amount payable as a condition of delivery of Shares (in the case
of any other Award). The amount payable will be delivered to the Participant as soon as practicable following the cancellation of the
Award or portion thereof.
(k) Clawback
or Recoupment. Notwithstanding any provision in this Plan or any Award Agreement or Service Agreement to the contrary, Awards granted
hereunder will be subject, to the extent applicable, (i) to any clawback policy adopted by the Company, and (ii) to the Dodd-Frank
Wall Street Reform and Consumer Protection Act and the Sarbanes–Oxley Act of 2002, each as amended, and rules, regulations and binding,
published guidance thereunder. If the Company would not be eligible for continued listing, if applicable, under Section 10D(a) of
the Exchange Act unless it adopted policies consistent with Section 10D(b) of the Exchange Act, then, in accordance with those
policies that are so required, any incentive-based compensation payable to a Participant under this Plan will be subject to clawback in
the circumstances, to the extent, and in the manner, required by Section 10D(b)(2) of the Exchange Act, as interpreted by rules of
the Securities Exchange Commission. By accepting an Award under this Plan, the Participant consents to any clawback or recoupment described
under this Section (k).
(l) Reliance
on Reports. Each member of the Administrator and each member of the Board will be fully justified in acting or failing to act, as
the case may be, and will not be liable for having so acted or failed to act in good faith, in reliance on any report made by the independent
public accountant of the Company and its Affiliates or any other information furnished in connection with the Plan by any agent of the
Company or the Administrator or the Board, other than himself or herself.
23
(m) Foreign
Participants. Without amending the Plan, the Administrator may grant Awards to eligible individuals who are foreign nationals on
such terms and conditions different from those specified in the Plan as may, in the judgment of the Administrator, be necessary or desirable
to foster and promote achievement of the purposes of the Plan and, in furtherance of such purposes, the Administrator may make such modifications,
amendments, procedures, sub-plans and the like as may be necessary or advisable to comply with the provisions of laws and regulations
in other countries or jurisdictions in which the Company or its Affiliates operate.
(n) Other
Provisions. The Award Agreements authorized under the Plan may contain such other provisions not inconsistent with the Plan, including,
without limitation, restrictions upon the exercise of the Awards, as the Administrator may consider advisable.
(o) Cancellation
and Rescission of Awards for Detrimental Activity.
(i) On
exercise, payment or delivery under an Award, the Administrator may require a Participant to certify in a manner acceptable to the Company
that the Participant has not engaged in any Detrimental Activity.
(ii) Unless
the Award Agreement specifies otherwise, the Administrator may cancel, rescind, suspend, withhold, or otherwise limit or restrict any
unexpired, unpaid, or deferred Awards at any time if the Participant engages in any Detrimental Activity.
(iii) If
a Participant engages in Detrimental Activity after any exercise, payment, or delivery under an Award, during any period for which any
restrictive covenant prohibiting such activity is applicable to the Participant, that exercise, payment, or delivery may be rescinded
within one year thereafter. In the event of any such rescission, the Participant will be required to pay to the Company the amount of
any gain realized or payment received as a result of the exercise, payment or delivery, in such manner and on such terms and conditions
as may be required by the Company. The Company will be entitled to set-off against the amount of that gain any amount owed to the Participant
by the Company.
(p) Unfunded
Plan. The Plan is intended to constitute an “unfunded” plan for incentive compensation. With respect to any payments
not yet made to a Participant pursuant to an Award, nothing contained in the Plan or any Award Agreement gives any such Participant any
rights that are greater than those of a general creditor of the Company.
17. Effective Date and Term of Plan
(a) Effective
Date. The Plan is effective as of the Effective Date, but no Option or Stock Appreciation Right may be exercised, and no other Award
may be granted, unless and until the Plan has been approved by the stockholders of the Company.
(b) Stockholder
Approval. The Plan will become effective only if, within 12 months from the date of the Plan’s adoption by the Board or an
authorized committee of the Board, it is approved by the affirmative vote of the Company’s stockholders in accordance with the
applicable provisions of the Certificate of Incorporation and Bylaws of the Company and applicable state law. The Board may, in its sole
discretion, submit any amendment to the Plan for stockholder approval.
24
(c) Plan
Termination or Suspension. Unless otherwise terminated as provided herein, the Plan will continue in effect until, and automatically
terminate on, the day before the 10th anniversary of the Effective Date or, if the stockholders approve an amendment to the Plan that
increases the Share reserve under the Plan, the day before the 10th anniversary of the date of such stockholder approval. No Award may
be granted under the Plan after that date, but Awards theretofore granted may extend beyond that date and will continue to be governed
by the terms and conditions of the Plan. The Board or its authorized committee may suspend or terminate the Plan at any earlier date under
Section 15(a). No Awards may be granted under the Plan while the Plan is suspended or after it is terminated.
18. Governing Law
The laws of the State of Delaware
will govern all questions concerning the construction, validity, and interpretation of the Plan, without regard to that state’s
conflict of law rules.
19. Limitation on Liability
The Company and any Affiliate
that is in existence or that hereafter comes into existence will have no liability to any Participant or to any other Person as to (a) the
non-issuance or sale of Shares due to the Company’s inability to obtain from any regulatory body having jurisdiction the authority
considered by Company counsel necessary for the lawful issuance and sale of any Shares hereunder; (b) any tax consequences expected,
but not realized, by a Participant or any other Person due to the receipt, exercise or settlement of any Award granted hereunder or (c) the
failure of any Award that is determined to be “nonqualified deferred compensation” to comply with Section 409A of the
Code and the regulations thereunder.
25
IN WITNESS WHEREOF, upon authorization
of the Board, the undersigned has executed the Suncrete, Inc. 2026 Omnibus Incentive Plan, effective as of the Effective Date.
SUNCRETE, INC.
Date: April 8, 2026
By:
/s/ Christopher Bradley
Name:
Christopher Bradley
26
EX-10.10 — EXHIBIT 10.10
EX-10.10
Filename: tm2611641d1_ex10-10.htm · Sequence: 11
Exhibit 10.10
SUNCRETE, INC.
EMPLOYEE STOCK PURCHASE PLAN
1. Purpose.
This Suncrete, Inc. Employee Stock Purchase Plan (the “Plan”) is intended to provide Eligible Employees of the
Company and its Participating Subsidiaries with an opportunity to acquire a proprietary interest in the Company through the purchase of
shares of Common Stock (defined below). The Company intends that the Plan qualify as an “employee stock purchase plan” under
Section 423 of the Code (defined below) and the Plan shall be interpreted in a manner that is consistent with that intent.
2. Definitions.
“Board or
Board of Directors” means the Board of Directors of the Company, as constituted from time to time.
“Claim”
means any claim, liability, or obligation of any nature, arising out of or relating to this Plan or an alleged breach of this Plan or
any Option granted hereunder.
“Code”
means the U.S. Internal Revenue Code of 1986, as it may be amended from time to time. Any reference to a section of the Code shall be
deemed to include a reference to any regulations or other authoritative guidance promulgated thereunder.
“Committee”
means the committee appointed by the Board to administer the Plan.
“Common
Stock” means the Class A common stock of the Company, par value $0.0001 per share.
“Company”
means Suncrete, Inc., a Delaware corporation, including any successor thereto.
“Compensation”
means base salary, wages, annual bonuses and commissions paid to an Eligible Employee by the Company or a Participating Subsidiary as
compensation for services to the Company or Participating Subsidiary, before deduction for any salary deferral contributions made by the
Eligible Employee to any tax-qualified or nonqualified deferred compensation plan, and excluding expense reimbursements, imputed income
arising under any group insurance or benefit program, and income received in connection with stock options or other equity-based awards.
“Corporate
Transaction” means a merger, consolidation, acquisition of property or stock, separation, reorganization, or other corporate
event described in Section 424 of the Code.
“Designated
Broker” means the financial services firm or other agent designated by the Company to maintain ESPP Share Accounts on behalf
of Participants who have purchased shares of Common Stock under the Plan.
“Disqualifying Disposition”
shall have the meaning set forth in Section 9.3.
“Effective
Date” means the date as of which this Plan is adopted by the Board, subject to the Plan obtaining shareholder approval in accordance
with Section 19.11 hereof.
“Employee”
means any person who renders services to the Company or a Participating Subsidiary as an employee pursuant to an employment relationship
with such employer. For purposes of the Plan, the employment relationship shall be treated as continuing intact while the individual is
on military leave, sick leave or other leave of absence approved by the Company or a Participating Subsidiary that meets the requirements
of Treasury Regulation Section 1.421-1(h)(2). Where the period of leave exceeds three (3) months, or such other period of time
specified in Treasury Regulation Section 1.421-1(h)(2), and the individual’s right to re-employment is not guaranteed by statute
or contract, the employment relationship shall be deemed to have terminated on the first day immediately following such three (3) month
period, or such other period specified in Treasury Regulation Section 1.421-1(h)(2).
“Eligible
Employee” means an Employee who is employed by the Company or a Participating Subsidiary, including, for the avoidance of doubt,
an Employee who is an officer of the Company or a Participating Subsidiary, other than an Employee who: (i) immediately after an
Option is granted, owns stock possessing five percent (5%) or more of the total combined voting power or value of all classes of stock
of the Company or a Subsidiary, computed in accordance with Section 423(b)(3) of the Code, or (ii) is an Ineligible Foreign
Employee.
“Enrollment
Form” means an agreement pursuant to which an Eligible Employee may elect to enroll in the Plan, to authorize a new level of
payroll deductions, or to stop payroll deductions and withdraw from an Offering Period.
“ESPP Share
Account” means an account into which Common Stock purchased with accumulated payroll deductions at the end of an Offering Period
are held on behalf of a Participant.
“Exchange
Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Fair Market
Value” means, as of any date, the value of the shares of Common Stock as determined below. If the shares are listed on any established
stock exchange or a national market system, including, without limitation, the Nasdaq Stock Market, the Fair Market Value shall be the
closing price of a share (or if no sales were reported, the closing price on the date immediately preceding such date) as quoted on such
exchange or system on the day of determination, as reported in The Wall Street Journal. In the absence of an established market
for the shares, the Fair Market Value shall be determined in good faith by the Committee and such determination shall be conclusive and
binding on all persons.
“Ineligible
Foreign Employee” shall mean an Employee who is a citizen or resident of a jurisdiction outside of the United States (without
regard to whether the Employee is also a citizen of the United States or is a resident alien (within the meaning of Section 7701(b)(1)(A) of
the Code)) who is ineligible to participate in the Plan because (i) the grant of an Option under the Plan to such citizen or resident
of the foreign jurisdiction is prohibited under the laws of such jurisdiction, or (ii) compliance with the laws of the foreign jurisdiction
would cause the Plan to violate the requirements of Section 423 of the Code.
“Offering
Date” means the first Trading Day of each Offering Period as designated by the Committee.
“Offering
or Offering Period” means a period of three (3) months beginning each January 1st, April 1st,
July 1st and October 1st of each year; provided, that, pursuant to Section 5, the Committee may change
the duration of future Offering Periods (subject to a maximum Offering Period of twenty-seven (27) months) and/or the start and end dates
of future Offering Periods.
2
“Option”
shall mean the option to acquire shares of Common Stock granted to a Participant pursuant to Section 7 hereof.
“Participant”
means an Eligible Employee who is actively participating in the Plan.
“Participating
Subsidiaries” means the Subsidiaries that have been designated as eligible to participate in the Plan, and such other Subsidiaries
that may be designated by the Committee from time to time in its sole discretion.
“Plan”
means this Suncrete, Inc. Employee Stock Purchase Plan, as set forth herein, and as amended from time to time.
“Purchase
Date” means the last Trading Day of each Offering Period.
“Purchase
Price” means an amount equal to the lesser of (i) eight-five percent (85%) (or such greater percentage as designated by
the Committee) of the Fair Market Value of a share of Common Stock on the Offering Date or (ii) eighty-five percent (85%) (or such
greater percentage as designated by the Committee) of the Fair Market Value of a share of Common Stock on the Purchase Date; provided,
that, the Purchase Price per share of Common Stock will in no event be less than the par value of the Common Stock.
“Securities
Act” means the U.S. Securities Act of 1933, as amended.
“Subsidiary”
means any corporation, domestic or foreign, of which not less than fifty percent (50%) of the combined voting power is held by the Company
or a Subsidiary, whether or not such corporation exists now or is hereafter organized or acquired by the Company or a Subsidiary. In all
cases, the determination of whether an entity is a Subsidiary shall be made in accordance with Section 424(f) of the Code.
“Trading
Day” means any day on which the national stock exchange upon which the Common Stock is listed is open for trading or, if the
Common Stock is not listed on an established stock exchange or national market system, a business day, as determined by the Committee
in good faith.
3. Administration.
3.1 Committee.
The Plan shall be administered by the Board or such committee of the Board as is designated by the Board to administer the Plan (the “Committee”).
As of the Effective Date, the Board designates the Compensation Committee of the Board to administer the Plan. At any time that there
is no Committee to administer the Plan, any references in this Plan to the Committee shall be deemed to refer to the Board. The Committee
may delegate to officers of the Company, pursuant to a written resolution and to the extent permitted by applicable law, the authority
to perform specified functions under the Plan. Any actions taken by any officers of the Company pursuant to such written delegation of
authority shall be deemed to have been taken by the Committee.
3.2 Authority.
The Committee shall have the authority to (i) construe and interpret the Plan, provided that it shall interpret, construe, and administer
the Plan in accordance with Section 423 of the Code and the regulations issued thereunder, (ii) prescribe, amend, and rescind
rules relating to the Plan’s administration, (iii) determine eligibility and adjudicate all disputed claims filed under
the Plan, and (iv) take any other actions necessary or desirable for the administration of the Plan, including, without limitation,
adopting sub-plans applicable to particular Participating Subsidiaries or locations, which sub-plans may be designed to be outside the
scope of Section 423 of the Code. The Committee may correct any defect or supply any omission or reconcile any inconsistency or ambiguity
in the Plan. The decisions of the Committee shall be final, binding, and conclusive on all persons. All expenses of administering the
Plan shall be borne by the Company.
3
4. Eligibility.
Unless otherwise determined by the Committee in a manner that is consistent with Section 423 of the Code, any individual who is an
Eligible Employee as of the first day of the enrollment period designated by the Committee for a particular Offering Period shall be eligible
to participate in such Offering Period, subject to the requirements of Section 423 of the Code. Notwithstanding any provision of
the Plan to the contrary, no Eligible Employee shall be granted an Option to purchase shares of Common Stock under the Plan if (i) immediately
after the grant of the Option, such Eligible Employee (or any other person whose stock would be attributed to such Eligible Employee pursuant
to Section 424(d) of the Code) would own capital stock of the Company or hold outstanding options to purchase stock possessing
five percent (5%) or more of the total combined voting power or value of all classes of stock of the Company or any Subsidiary or (ii) such
Option would permit his or her rights to purchase stock under all employee stock purchase plans (described in Section 423 of the
Code) of the Company and its Subsidiaries to accrue at a rate that exceeds $25,000 of the Fair Market Value (or such other maximum as
may be prescribed from time to time by the Code) of such stock (determined at the Offering Date of the Option) for each calendar year
in which such Option is outstanding at any time, in accordance with the provisions of Section 423(b)(8) of the Code.
5. Offering
Periods. The Plan shall be implemented by a series of consecutive Offering Periods, each of which shall be three (3) months
in duration, with new Offering Periods commencing on or about January 1st, April 1st, July 1st
and October 1st of each year (or such other times as determined by the Committee). The Committee shall have the authority
to change the duration (subject to the limitations set forth in Section 423 of the Code), frequency, start and end dates of Offering
Periods. An Employee who becomes eligible to participate in the Plan after an Offering Period has commenced shall not be eligible to participate
in such Offering but may participate in any subsequent Offering, provided that such Employee is still an Eligible Employee as of the commencement
of any such subsequent Offering Period.
6. Participation.
6.1 Enrollment;
Payroll Deductions. An Eligible Employee may elect to participate in the Plan by properly completing an Enrollment Form, which may
be electronic, and submitting it to the Company before the start of the relevant Offering Period, in accordance with the enrollment procedures
established by the Committee. Participation in the Plan is entirely voluntary. By submitting an Enrollment Form, the Eligible Employee
authorizes payroll deductions from his or her paycheck in an amount equal to at least one percent (1%), but not more than fifteen percent
(15%), of his or her Compensation on each pay day occurring during an Offering Period (or such other maximum percentage as the Committee
may establish from time to time before an Offering Period begins), subject to the limitations set forth in Section 4. Payroll deductions
shall commence on the first payroll date following the Offering Date and end on the last payroll date on or before the Purchase Date.
The Company shall maintain records of all payroll deductions but shall have no obligation to pay interest on payroll deductions or to
hold such amounts in a trust or in any segregated account. Unless expressly permitted by the Committee, a Participant may not make any
separate contributions or payments to the Plan.
6.2 Election
Changes. During an Offering Period, a Participant may decrease or increase his or her rate of payroll deductions applicable to such
Offering Period only once. To make such a change, the Participant must submit a new Enrollment Form authorizing the new rate of payroll
deductions at least fifteen (15) days before the Purchase Date. A Participant may decrease or increase his or her rate of payroll deductions
for future Offering Periods by submitting a new Enrollment Form authorizing the new rate of payroll deductions at least fifteen (15)
days before the start of the next Offering Period.
4
6.3 Automatic
Re-enrollment. The deduction rate selected in the Enrollment Form shall remain in effect for subsequent Offering Periods unless
the Participant (a) submits a new Enrollment Form authorizing a new level of payroll deductions in accordance with Section 6.2,
(b) withdraws from the Plan in accordance with Section 10, or (c) terminates employment or otherwise becomes ineligible
to participate in the Plan.
7. Grant
of Option. On each Offering Date, each Participant in the applicable Offering Period shall be granted an option to purchase,
on the Purchase Date, a number of shares of Common Stock determined by dividing the Participant’s accumulated payroll deductions
by the applicable Purchase Price; provided, however, that in no event shall any Participant purchase more than two thousand (2,000) shares
of Common Stock during an Offering Period (subject to adjustment in accordance with Section 18 and the limitations set forth in Section 13
of the Plan) or the amount limited under Section 4 (an “Option”). The Company shall have the authority to take
all necessary action, including, but not limited to, suspending the payroll deductions of any Participant, in order to ensure compliance
with this Section 7.
8. Exercise
of Option/Purchase of Shares. A Participant’s Option to purchase shares of Common Stock will be exercised automatically
on the Purchase Date of each Offering Period. The Participant’s accumulated payroll deductions will be used to purchase the maximum
number of whole shares of Common Stock that can be purchased with the amounts in the Participant’s notional account. No fractional
shares of Common Stock may be purchased but notional fractional shares of Common Stock will be allocated to the Participant’s ESPP
Share Account to be aggregated with other notional fractional shares of Common Stock on future Purchase Dates, subject to earlier withdrawal
by the Participant in accordance with Section 10 or termination of employment in accordance with Section 11.
9. Transfer
of Shares; Designated Broker; Dispositions.
9.1 Delivery
of Shares. Subject to Section 9.2, as soon as reasonably practicable after each Purchase Date, the Company will arrange for the
delivery to each Participant of the shares of Common Stock purchased upon exercise of his or her Option. The Committee may permit or require
that the shares be deposited directly into an ESPP Share Account established in the name of the Participant with a Designated Broker and
may require that the shares of Common Stock be retained with such Designated Broker for a specified period of time. Participants will
not have any voting, dividend or other rights of a shareholder with respect to the shares of Common Stock subject to any Option granted
hereunder until such shares have been delivered pursuant to this Section 9.
9.2 Designated
Broker. If the Committee designates or approves a Designated Broker to hold shares of Common Stock purchased under the Plan for the
accounts of Participants, the following procedures shall apply. Promptly following each Purchase Date, the number of shares of Common
Stock purchased by each Participant shall be deposited into an ESPP Share Account established in the Participant’s name with the
Designated Broker. A Participant shall be free to undertake a disposition of the shares of Common Stock in his or her ESPP Share Account
at any time, but in the absence of such a disposition, the shares of Common Stock must remain in the Participant’s ESPP Share Account
at the Designated Broker until the holding period set forth in Section 423 of the Code (i.e., the later of one (1) year
from the Purchase Date and two (2) years from the Offering Date for such shares) has been satisfied. With respect to shares of Common
Stock for which the holding period set forth in Section 423 of the Code have been satisfied, the Participant may move those shares
of Common Stock to another brokerage account of the Participant’s choosing. A Participant who is not subject to payment of U.S.
income taxes may move his or her shares of Stock to another brokerage account of his or her choosing at any time, without regard to the
holding period set forth in Section 423 of the Code.
5
9.3 Notice
of Disposition. By entering the Plan, each Participant agrees to promptly give the Company notice of any shares of Common Stock disposed
of or transferred before the later of one (1) year from the Purchase Date and two (2) years from the Offering Date for such
shares of Common Stock (a “Disqualifying Disposition”), showing the number of such shares disposed of and the Purchase
Date and Offering Date for such shares of Common Stock. This notice shall not be required if and so long as the Company has a Designated
Broker and the provisions of Section 9.2 above apply. A Disqualifying Disposition by a Participant shall not affect the status of
any other Option granted under the Plan.
10. Withdrawal.
10.1 Withdrawal
Procedure. A Participant may withdraw from an Offering by submitting to the Company a revised Enrollment Form indicating his
or her election to withdraw at least fifteen (15) days before the Purchase Date. The accumulated payroll deductions held on behalf of
a Participant in his or her notional account (that have not been used to purchase shares of Common Stock) shall be paid to the Participant
promptly following receipt of the Participant’s Enrollment Form indicating his or her election to withdraw and the Participant’s
Option shall be automatically terminated. If a Participant withdraws from an Offering Period, no payroll deductions will be made during
any succeeding Offering Period, unless the Participant re-enrolls in accordance with Section 6.1 of the Plan.
10.2 Effect
on Succeeding Offering Periods. A Participant’s election to withdraw from an Offering Period will not have any effect upon his
or her eligibility to participate in succeeding Offering Periods that commence following the completion of the Offering Period from which
the Participant withdraws.
11. Termination
of Employment; Change in Employment Status. Upon termination of a Participant’s employment for any reason, including
death, disability or retirement, or a change in the Participant’s employment status following which the Participant is no longer
an Eligible Employee, which in either case occurs at least fifteen (15) days before the Purchase Date, the Participant will be deemed
to have withdrawn from the Plan and the payroll deductions in the Participant’s notional account (that have not been used to purchase
shares of Common Stock) shall be returned to the Participant, or in the case of the Participant’s death, to the person(s) entitled
to such amounts under Section 17, and the Participant’s Option shall be automatically terminated. If the Participant’s
termination of employment or change in status occurs within fifteen (15) days before a Purchase Date, the accumulated payroll deductions
shall be used to purchase shares on the Purchase Date.
12. Interest.
No interest shall accrue on or be payable with respect to the payroll deductions of a Participant in the Plan.
13. Shares
Reserved for Plan.
13.1 Number
of Shares. Subject to adjustment in accordance with Section 18, a total of one million (1,000,000) shares of Common Stock have
been reserved as authorized for issuance pursuant to the exercise of Options granted under the Plan. If, for any reason, any Option under
the Plan terminates in whole or in part, shares subject to such terminated Option may be again available pursuant to an Option under the
Plan. The shares of Common Stock may be newly issued shares, treasury shares or shares acquired on the open market.
6
13.2 Over-subscribed
Offerings. The number of shares of Common Stock which a Participant may purchase in an Offering under the Plan may be reduced if the
Offering is over-subscribed. No Option granted under the Plan shall permit a Participant to purchase shares of Common Stock which, if
added together with the total number of shares of Common Stock purchased by all other Participants in such Offering would exceed the total
number of shares of Common Stock remaining available under the Plan. If the Committee determines that, on a particular Purchase Date,
the number of shares of Common Stock with respect to which Options are to be exercised exceeds the number of shares of Common Stock then
available under the Plan, the Company shall make a pro rata allocation of the shares of Common Stock remaining available for purchase
in as uniform a manner as practicable and as the Committee determines to be equitable.
14. Transferability.
No payroll deductions credited to a Participant, nor any rights with respect to the exercise of an Option or any rights to receive Common
Stock hereunder may be assigned, transferred, pledged or otherwise disposed of in any way (other than by will, the laws of descent and
distribution, or as provided in Section 17 hereof) by the Participant. Any attempt to assign, transfer, pledge or otherwise dispose
of such rights or amounts shall be null and void and without effect.
15. Application
of Funds. The Company shall maintain records of all payroll deductions for a Participant in a notional bookkeeping account,
and all payroll deductions from a Participant’s Compensation shall be credited to such notional account but shall be deposited with
the general funds of the Company. All payroll deductions received or held by the Company under the Plan may be used by the Company for
any corporate purpose to the extent permitted by applicable law, and the Company shall not be required to segregate such payroll deductions
or contributions.
16. Statements.
Participants will be provided with statements at least annually which shall set forth the contributions made by the Participant to the
Plan, the Purchase Price of any shares of Common Stock purchased with accumulated funds, the number of shares of Common Stock purchased,
and any payroll deduction amounts remaining in the Participant’s notional account.
17. Designation
of Beneficiary.
17.1 Designation.
A Participant may file, on forms supplied by the Committee, a written designation of beneficiary who is to receive any shares of Common
Stock and cash in respect of any fractional shares of Common Stock, if any, from the Participant’s ESPP Share Account under the
Plan in the event of such Participant’s death. In addition, a Participant may file a written designation of beneficiary who is
to receive any cash withheld through payroll deductions and credited to the Participant’s notional account in the event of the
Participant’s death prior to the Purchase Date of an Offering Period. If a Participant is married and the designated beneficiary
is not the spouse, spousal consent shall be required for such designation to be effective. All beneficiary designations shall be in such
form and manner as the Committee may designate from time to time.
17.2 Changes;
No Beneficiary. Such designation of beneficiary may be changed by the Participant at any time by written notice; provided, however,
that in the event a Participant is married and the new designated beneficiary is not the spouse, spousal consent shall be required for
such new designation to be effective. In the event of the death of a Participant and in the absence of a beneficiary validly designated
under the Plan who is living at the time of such Participant’s death, the Company shall deliver such shares and/or cash to the Participant’s
surviving spouse, if any, or, if the Participant has no surviving spouse, the executor or administrator of the estate of the Participant.
7
18. Adjustments
Upon Certain Events.
18.1 Adjustments.
In the event that any dividend or other distribution (whether in the form of cash, Common Stock, or other property), recapitalization,
stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or exchange of Common
Stock or other securities of the Company, or other change in the Company’s structure affecting the Common Stock occurs, then in
order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, the Committee
will, in such manner as it deems equitable, adjust the number of shares and class of Common Stock that may be delivered under the Plan,
the Purchase Price per share and the number of shares of Common Stock covered by each outstanding Option under the Plan, and the numerical
limits of Section 7 and Section 13. Such adjustment shall be made by the Committee, whose determination in that respect shall
be final, binding, and conclusive, and shall be made in accordance with the rules of any securities exchange, stock market, or stock
quotation system to which the Company is subject. Except as expressly provided herein, no issuance by the Company of shares of stock of
any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made
with respect to, the number or price of shares of Common Stock subject to an Option. Notwithstanding the foregoing, no such adjustment
shall be made or authorized to the extent that such adjustment would cause the Plan or any Option to violate Section 423 or Section 424
of the Code.
18.2 Dissolution
or Liquidation. Unless otherwise determined by the Committee, in the event of a proposed dissolution or liquidation of the Company,
any Offering Period then in progress will be shortened by setting a new Purchase Date and the Offering Period will end immediately prior
to the proposed dissolution or liquidation. The new Purchase Date will be before the date of the Company’s proposed dissolution
or liquidation. Before the new Purchase Date, the Committee will provide each Participant with written notice, which may be electronic,
of the new Purchase Date and that the Participant’s Option will be exercised automatically on such date, unless before such time,
the Participant has withdrawn from the Offering in accordance with Section 10.
18.3 Corporate
Transaction. In the event of a Corporate Transaction, each outstanding Option will be assumed or an equivalent option substituted
by the successor corporation or a parent or Subsidiary of such successor corporation. If the successor corporation refuses to assume or
substitute the Option, the Offering Period with respect to which the Option relates will be shortened by setting a new Purchase Date on
which the Offering Period will end. The new Purchase Date will occur before the date of the Corporate Transaction. Prior to the new Purchase
Date, the Committee will provide each Participant with written notice, which may be electronic, of the new Purchase Date and that the
Participant’s Option will be exercised automatically on such date, unless before such time, the Participant has withdrawn from the
Offering in accordance with Section 10.
19. General
Provisions.
19.1 Equal
Rights and Privileges. Notwithstanding any provision of the Plan to the contrary and in accordance with Section 423 of the Code,
all Eligible Employees who are granted Options under the Plan shall have the same rights and privileges.
19.2 No
Right to Continued Service. Neither the Plan nor any benefits received hereunder will confer on any Participant the right to continue
as an Employee or in any other capacity or interfere in any way with the right of the Company or any Subsidiary to reduce such person’s
compensation or other benefits or to terminate the services or employment of such Participant, with or without cause. Nothing in this
Plan shall be deemed to create any fiduciary relationship between the Company and any Participant.
8
19.3 Rights
as Shareholder. A Participant will become a shareholder with respect to the shares of Common Stock that are purchased pursuant to
Options granted under the Plan when the shares are transferred to the Participant’s ESPP Share Account. A Participant will have
no rights as a shareholder with respect to shares of Common Stock for which an election to participate in an Offering Period has been
made until such Participant becomes a shareholder as provided above.
19.4 Successors
and Assigns. The Plan shall be binding on the Company and its successors and assigns.
19.5 Entire
Plan. This Plan constitutes the entire plan with respect to the subject matter hereof and supersedes all prior plans with respect
to the subject matter hereof.
19.6 Compliance
with Law. The obligations of the Company with respect to payments under the Plan are subject to compliance with all applicable laws
and regulations. Common Stock shall not be issued with respect to an Option granted under the Plan unless the exercise of such Option
and the issuance and delivery of the shares of Common Stock pursuant thereto shall comply with all applicable provisions of law, including,
without limitation, the Securities Act, the Exchange Act, and the requirements of any stock exchange upon which the shares may then be
listed.
19.7 Term
of Plan. The Plan shall become effective on the Effective Date and, unless terminated earlier pursuant to Section 19.8, shall
have a term of ten (10) years from the Effective Date.
19.8 Amendment
or Termination. Subject to the provisions of Section 423 of the Code (or any other applicable law, regulation, or stock exchange
rule), the Committee may, in its sole discretion, amend, suspend, or terminate the Plan at any time and for any reason. If the Plan is
terminated, the Committee may elect to terminate all outstanding Offering Periods either immediately or once shares of Common Stock have
been purchased on the next Purchase Date (which may, in the discretion of the Committee, be accelerated) or permit Offering Periods to
expire in accordance with their terms (and subject to any adjustment in accordance with Section 18). If any Offering Period is terminated
before its scheduled expiration, all amounts that have not been used to purchase shares of Common Stock will be returned to Participants
(without interest, except as otherwise required by law) as soon as administratively practicable. In addition, to the extent the Committee
considers it necessary to comply with Rule 16b-3 under the Exchange Act, Section 423 of the Code, or any other applicable law,
regulation or stock exchange rule, the Company shall obtain stockholder approval of any amendment in such a manner and to such a degree
as required.
19.9 Applicable
Law. The laws of the State of Delaware shall govern all questions concerning the construction, validity, and interpretation of the
Plan, without regard to such state’s conflict of law rules.
19.10 Claims.
A Participant’s sole remedy for any Claim shall be against the Company, and no Participant shall have any claim or right of any
nature against any Subsidiary or any stockholder or existing or former director, officer or Employee of the Company or any Subsidiary.
The individuals and entities described above in this Section 19.10 (other than the Company) shall be third-party beneficiaries of
this Plan for purposes of enforcing the terms of this Section 19.10.
19.11 Shareholder
Approval. The Plan shall be subject to approval by the shareholders of the Company within twelve (12) months before or after the date
the Plan is adopted by the Board.
19.12 Section 423
of the Code. The Plan is intended to qualify as an “employee stock purchase plan” under Section 423 of the Code.
Any provision of the Plan that is intended to comply with Section 423 of the Code and is inconsistent with Section 423 of the
Code or any successor provision of the Code shall without further act or amendment by the Company or the Committee be reformed to comply
with the requirements of Section 423 of the Code. This Section 19.12 shall take precedence over all other provisions in the
Plan.
9
19.13 No
Trust or Plan Funding. The Plan shall at all times be entirely unfunded and no provision shall at any time be made with respect to
segregating assets of the Company with respect to this Plan. Neither the Plan nor any Option shall create or be construed to create a
trust or separate fund of any kind or a fiduciary relationship between the Company and any Participant. No Participant, beneficiary, or
other person shall have any interest in any particular assets of the Company, any Subsidiary or any of their affiliates by reason of an
Option under the Plan. To the extent that any Participant acquires a right to receive any payment from the Company pursuant to an Option,
such right shall be no greater than the right of any general unsecured creditor of the Company.
19.14 Withholding.
To the extent required by applicable federal, state, or local law, a Participant must make arrangements satisfactory to the Company for
the payment of any withholding or similar tax obligations that arise in connection with the Plan. At any time, the Company may, but is
not obligated to, withhold from a Participant’s Compensation such amount as is necessary for the Company to meet applicable tax
withholding obligations.
19.15 Section 409A
of the Code. The Plan is intended to be exempt from the application of Section 409A of the Code, and any ambiguities herein will
be interpreted to maintain such exemption. In furtherance of the foregoing and notwithstanding any other provision in the Plan to the
contrary, if the Committee determines that an Option granted under the Plan may be subject to Section 409A of the Code or that any
provision of the Plan would cause an Option under the Plan to be subject to Section 409A of the Code, the Committee may amend the
terms of the Plan and/or of an outstanding Option granted under the Plan, or take such other action that the Committee determines is necessary
or appropriate, in each case, without the Participant’s consent, to exempt any outstanding Option or future Option that may be granted
under the Plan from or to allow any such options to comply with Section 409A of the Code. Notwithstanding the foregoing, the Company
shall have no liability to a Participant or any other party if the Option to purchase Stock under the Plan that is intended to be exempt
from or compliant with Section 409A of the Code is not so exempt or compliant or for any action taken by the Committee with respect
thereto. The Company makes no representation that any Option to purchase Stock under the Plan is exempt from or compliant with Section 409A
of the Code.
10
19.16 No
Liability; Indemnification. No member of the Board or the Committee, nor any officer or Employee of the Company acting on behalf of
the Board or the Committee, shall be personally liable for any action, determination, or interpretation taken or made in good faith with
respect to the Plan, and all members of the Board and the Committee, each officer of the Company, and each Employee of the Company acting
on behalf of the Board or the Committee shall, to the extent permitted by law, be fully indemnified and protected by the Company in respect
of any such action, determination, or interpretation to the fullest extent provided by law. Except to the extent required by any unwaivable
requirement under applicable law, no member of the Board or the Committee (and no Subsidiary) shall have any duties or liabilities, including
without limitation any fiduciary duties, to any Participant (or any person claiming by and through any Participant) as a result of this
Plan, or any Claim arising hereunder and, to the fullest extent permitted under applicable law, each Participant (as consideration for
receiving and accepting participation in the Plan) irrevocably waives and releases any right or opportunity such Participant might have
to assert (or participate or cooperate in) any Claim against any member of the Board or the Committee, any officer or Employee of the
Company or any Subsidiary, or any Subsidiary arising out of this Plan. The termination of any such civil or criminal action or proceeding
or the disposition of any such claim or demand, by judgment, settlement, conviction or upon a plea of nolo contendere, or its equivalent,
shall not in itself create a presumption that any such member of the Board or Committee did not act (i) in good faith and (ii) for
a purpose which such member reasonably believed to be in accordance with the intent of this Plan. Nothing herein shall be deemed to supersede
or conflict with any agreement between a member of the Board or the Committee and the Company regarding the Company’s obligations
to indemnify such member from and against certain liabilities arising from the performance of the member’s duties. Any such agreement
shall govern any inconsistencies with this Section 19.16.
19.17 Severability.
If any provision of the Plan shall for any reason be held to be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provision hereof, and the Plan shall be construed as if such invalid or unenforceable provision were omitted.
19.18 Headings.
The headings of sections herein are included solely for convenience and shall not affect the meaning of any of the provisions of the Plan.
[Signature page follows]
11
IN WITNESS WHEREOF, the Company
has caused this instrument to be executed as of April 8, 2026.
SUNCRETE, INC.
By:
/s/ Christopher Bradley
Name:
Christopher Bradley
Title:
Vice President
Signature Page to the
Suncrete, Inc. Employee Stock Purchase Plan
EX-10.11 — EXHIBIT 10.11
EX-10.11
Filename: tm2611641d1_ex10-11.htm · Sequence: 12
Exhibit 10.11
Restricted Stock Award (#)
SUNCRETE, INC.
2026 OMNIBUS INCENTIVE PLAN
RESTRICTED STOCK AWARD CERTIFICATE
THIS IS TO CERTIFY that Suncrete, Inc.,
a Delaware corporation (the “Company”), has granted you (the “Participant”) the right to receive
Shares of [Class A / Class B] Common Stock under its 2026 Omnibus Incentive Plan (the “Plan”), as
follows:
Name of Participant:
Address of Participant:
Number of Shares:
Purchase Price:
$
Date of Grant:
Acceptance Expiration Date:
15 days after the
Participant’s receipt of this Certificate and the accompanying Restricted Stock Award Agreement
Vesting Commencement Date:
Vesting Schedule:
Anniversary of
Vesting Commencement Date
Percentage/Number
of Shares Vested
By your signature and the signature of the Company’s
representative below, you and the Company agree to be bound by all of the terms and conditions of the accompanying Restricted Stock Award
Agreement and the Plan (each incorporated herein by this reference as if set forth in full in this document). By executing this Certificate,
you hereby irrevocably elect to accept the Restricted Stock rights granted under this Certificate and the related Restricted Stock Award
Agreement and to receive the shares of Restricted Stock designated above subject to the terms of the Plan, this Certificate, and the
Award Agreement.
PARTICIPANT
SUNCRETE, INC.
By:
Name:
,
an individual
Title:
Dated:
Dated:
Suncrete, Inc. 2026 Omnibus Incentive Plan
Restricted Stock Award Certificate
SUNCRETE, INC.
2026 OMNIBUS INCENTIVE PLAN
RESTRICTED STOCK AWARD AGREEMENT
This Restricted Stock Award
Agreement (the “Agreement”), is entered into on the Date of Grant, subject to the Participant’s acceptance of
the terms of the Agreement evidenced by the Participant’s signature on the Restricted Stock Award Certificate accompanying this
Agreement (the “Certificate”), by and between Suncrete, a Delaware corporation (the “Company”),
and the Participant named in the Certificate.
Under the Suncrete, Inc.
2026 Omnibus Incentive Plan (the “Plan”), the Administrator has authorized the grant to the Participant of the right
to receive Shares (the “Award”), under the terms and subject to the conditions set forth in this Agreement and the
Plan. Capitalized terms not otherwise defined in the Agreement have the meanings ascribed to them in the Plan.
NOW, THEREFORE, in consideration
of the premises and the benefits to be derived from the mutual observance of the covenants and promises contained in this Agreement and
other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Basis
for Award. This Award is granted under the Plan for valid consideration provided to the Company by the Participant. By the Participant’s
execution of the Certificate, the Participant agrees to accept the Restricted Stock Award rights granted under the Certificate and this
Agreement and to receive the shares of Restricted Stock of the Company designated in the Certificate subject to the terms of the Plan,
the Certificate, and this Agreement.
2. Restricted
Stock Award. The Company hereby awards and grants to the Participant, for valid consideration with a value in excess of the aggregate
par value of the Common Stock awarded to the Participant, the number of Shares set forth in the Certificate, which are subject to the
restrictions and conditions set forth in the Plan, the Certificate, and in this Agreement (the “Restricted Shares”).
If a stock certificate is issued in respect of the Restricted Shares, the stock certificate will be deposited and held in the custody
of the Company for the Participant’s account as provided in Section 4 hereof until the Restricted Shares become vested
and all restrictions thereon have lapsed. The Participant acknowledges and agrees that the Shares may be issued as a book entry with
the Company’s transfer agent and that no physical certificates need be issued.
3. Vesting.
The Restricted Shares will vest and restrictions on transfer will lapse under the Vesting Schedule set forth in the Certificate, on condition
that the Participant is still then in Continuous Service. If the Participant ceases Continuous Service for any reason the Participant
will immediately forfeit the Restricted Shares standing in the name of the Participant on the books of the Company that have not vested
and as to which restrictions have not lapsed (“Unvested Shares”), and such Unvested Shares will be cancelled as outstanding
Shares.
(a) Forfeiture
of Unvested Shares. If Unvested Shares do not become vested on or before the expiration of the period during which the applicable
vesting conditions must occur, such Unvested Shares will be automatically forfeited and cancelled as outstanding Shares immediately on
the occurrence of the event or period after which such Unvested Shares may no longer become vested.
Suncrete, Inc. 2026 Omnibus Incentive Plan
Restricted Stock Award Agreement
Page 2
(b) Restriction
on Transfer of Unvested Shares. The Participant is not permitted to transfer, assign, grant a lien or security interest in, pledge,
hypothecate, encumber, or otherwise dispose of any of the Unvested Shares, except as permitted by this Agreement.
4. Holding
of Unvested Shares. The Company will hold all of the Unvested Shares in its custody until they become vested, at which time such
vested Restricted Shares will no longer constitute Unvested Shares. If requested by the Company, the Participant shall execute and deliver
to the Company, concurrently with the execution of this Agreement (or, if requested by the Company, from time to time thereafter during
the Restricted Period) blank stock powers for use in connection with the transfer to the Company or its designee of Unvested Shares that
do not become vested. On the lapse of the forfeiture conditions and non-transferability restrictions thereon the Company will release
the Shares that become vested to the Participant.
5. Rights
as a Stockholder, Dividends. Subject to the terms of this Agreement, the Participant will have all the rights of a stockholder with
respect to the Restricted Shares, including the right to vote the Restricted Shares and to receive any dividends thereon; provided that
any dividends paid with respect to Unvested Shares will be held by the Company and will not be paid to the Participant until the Unvested
Shares with respect to which the dividends were paid become vested and are no longer subject to forfeiture and restrictions on transfer.
If the Unvested Shares to which dividends held by the Company relate are subsequently forfeited, such dividends will automatically be
forfeited by the Participant and returned to the Company.
6. Compliance
with Laws and Regulations. The issuance and transfer of Common Stock is subject to the Company’s and the Participant’s
full compliance, to the satisfaction of the Company and its counsel, with all applicable requirements of federal, state and foreign securities
laws and with all applicable requirements of any securities exchange on which the Common Stock may be listed at the time of such issuance
or transfer. The Participant understands that the Company is under no obligation to register or qualify the Shares with the Securities
and Exchange Commission, any state securities commission, foreign securities regulatory authority or any securities exchange to effect
such compliance.
7. Tax
Withholding
(a) As
a condition to the release of Shares and lapse of restrictions on transfer, no later than the first to occur of (i) the date as
of which all or any of the Restricted Shares vest and the restrictions on their transfer lapse or (ii) the date required by Section 8(b),
the Participant must pay to the Company any federal, state or local taxes required by law to be withheld with respect to the Restricted
Shares that vest. In addition to the Company’s right to withhold from any compensation otherwise payable to the Participant by
the Company, the Participant may provide for payment of withholding taxes in full by cash or check or, if the Administrator permits,
by one or more of the alternative methods of payment set forth in the Plan.
(b) The
Participant may elect, within 30 days of the Date of Grant, to include in gross income for federal income tax purposes under Section 83(b) of
the Code, an amount equal to the aggregate Fair Market Value on the Date of Grant of the Restricted Shares, less the amount paid, if
any, by the Participant (other than in the form of services) for the Restricted Shares). In connection with any such election, the Participant
must promptly provide the Company with a copy of the election as filed with the Internal Revenue Service and pay to the Company, or make
such other arrangements satisfactory to the Administrator to pay to the Company based on the Fair Market Value of the Restricted Shares
on the Date of Grant, any federal, state or local taxes required by law to be withheld with respect to the Restricted Shares at the time
of the election. If the Participant fails to make such payments, the Company will have the right to deduct from any payment of any kind
otherwise due to Participant, to the extent permitted by law, any federal, state, or local taxes required to be withheld with respect
to the Restricted Shares.
Suncrete, Inc. 2026 Omnibus Incentive Plan
Restricted Stock Award Agreement
Page 3
8. No
Right to Continued Service. Nothing in this Agreement or in the Plan imposes or may be deemed to impose, by implication or otherwise,
any limitation on any right of the Company or its Affiliates to terminate the Participant’s Continuous Service at any time and
for any reason or no reason.
9. Representations
and Warranties of the Participant. The Participant represents and warrants to the Company as follows:
(a) Acknowledgment
and Agreement to Terms of the Plan. The Participant acknowledges receipt of a copy of the Plan, the Certificate, this Agreement,
and the prospectus dated [ ], 2026 covering the Shares reserved for issuance under the Plan. The Participant has read and understands
the terms of the Plan, the Certificate, and this Agreement, and agrees to be bound by their terms and conditions. The Participant acknowledges
that there may be adverse tax consequences on the vesting of Restricted Shares or disposition of the Shares once vested and that the
Participant should consult a tax advisor before such time.
(b) Stock
Ownership. The Participant is the record and beneficial owner of the Restricted Shares with full right and power to transfer the
Unvested Shares to the Company free and clear of any liens, claims or encumbrances, and the Participant understands that if a stock certificate
is issued in respect of the Restricted Shares, the stock certificate will bear a legend referencing this Agreement.
(c) Rule 144.
The Participant understands that Rule 144 under the Securities Act (“Rule 144”) may indefinitely restrict
transfer of the Common Stock if the Participant is an “affiliate” of the Company (as defined in Rule 144), or for up
to one year if “current public information” about the Company (as defined in Rule 144) is not publicly available regardless
of whether the Participant is an affiliate of the Company.
10. Compliance
with Securities Laws. The Participant understands and acknowledges that, notwithstanding any other provision of the Agreement to
the contrary, the vesting and holding of the Restricted Shares is expressly conditioned on compliance with the Securities Act and all
applicable federal, state, and foreign securities laws. The Participant agrees to cooperate with the Company to ensure compliance with
such laws.
11. Capitalization
Adjustments. If, as a result of any capitalization adjustment under the Plan, the Participant becomes entitled to receive additional
Shares or other securities (“Additional Securities”) in respect of the Unvested Shares, the Additional Securities
will be Unvested Shares, and the total number of Unvested Shares will be equal to the sum of (i) the initial Unvested Shares and
(ii) the number of Additional Securities issued or issuable in respect of the initial Unvested Shares and any Additional Securities
previously issued to the Participant.
Suncrete, Inc. 2026 Omnibus Incentive Plan
Restricted Stock Award Agreement
Page 4
12. Restrictive
Legends and Stop-Transfer Orders
(a) Legends.
If a stock certificate is issued in respect of the Restricted Shares, the Company will place the legend set forth below or similar legends
on any such stock certificate, together with any other legends that may be required by federal, state or foreign securities laws, the
Company’s articles of incorporation or bylaws, any other agreement between the Participant and the Company or any agreement between
the Participant and any third party:
THE SHARES REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO CERTAIN RESTRICTIONS ON PUBLIC RESALE AND TRANSFER, AS SET FORTH IN A RESTRICTED STOCK AWARD AGREEMENT BETWEEN THE ISSUER
AND THE ORIGINAL HOLDER OF THESE SHARES. SUCH PUBLIC RESALE AND TRANSFER RESTRICTIONS ARE BINDING ON TRANSFEREES OF THESE SHARES.
The Company will remove the above legend at such
time as the Shares in question are no longer subject to restrictions on public resale and transfer under this Agreement. Any legends
required by applicable federal, state, or foreign securities laws will be removed at such time as such legends are no longer required.
(b) Stop-Transfer
Instructions. To ensure compliance with the restrictions imposed by this Agreement, the Company may issue appropriate “stop-transfer”
instructions to its transfer agent, if any, and if the Company transfers its own Common Stock, it may make appropriate notations to the
same effect in its own records.
(c) Refusal
to Transfer. The Company will not be required (i) to transfer on its books any Restricted Shares that have been sold or otherwise
transferred in violation of this Agreement; or (ii) to treat as owner of the Restricted Shares, or to accord the right to vote or
pay dividends to, any purchaser or other transferee to whom the Restricted Shares have been transferred.
13. General
Terms
(a) Interpretation.
Any dispute regarding the interpretation of this Agreement must be submitted by the Participant or the Company to the Administrator for
review. The Administrator’s resolution of such dispute will be final, binding, and conclusive on the Company, the Participant,
and all other Persons with any interests related to this Award.
(b) Entire
Agreement. The Plan and the Certificate are incorporated in this Agreement by reference, and the Participant hereby acknowledges
that a copy of each has been made available to the Participant. This Agreement, the Certificate, and the Plan constitute the entire agreement
of the parties and supersede all prior undertakings and agreements with respect to the subject matter hereof. In the event of a conflict
or inconsistency between the terms and conditions of this Agreement, the Certificate, and the Plan, the Plan will govern.
(c) Modification.
The Agreement may be modified only in writing signed by both parties.
(d) Notices.
Any notice required under this Agreement to be delivered to the Company must be in writing and addressed to the Corporate Secretary of
the Company at its principal corporate offices. Any notice required to be given or delivered to the Participant must be in writing and
addressed to the Participant at the address indicated on the Certificate or to such other address as the Participant designates in writing
to the Company. All notices will be deemed to have been delivered: (i) on personal delivery, (ii) five days after deposit in
the United States mail by certified or registered mail (return receipt requested), (iii) two business days after deposit with any
return receipt express courier (prepaid) or (iv) one business day after transmission by fax or email.
(e) Successors
and Assigns. The Company may assign any of its rights under this Agreement. This Agreement will be binding on and inure to the benefit
of the successors and assigns of the Company. Subject to the restrictions on transfer set forth herein and in the Plan, this Agreement
is binding on the Participant and the Participant’s heirs, executors, administrators, legal representatives, successors, and assigns.
Suncrete, Inc. 2026 Omnibus Incentive Plan
Restricted Stock Award Agreement
Page 5
(f) Governing
Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware without giving effect
to its conflict of law principles. If any provision of this Agreement is determined by a court of law to be illegal or unenforceable,
then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable
in accordance with their respective terms.
(g) Headings.
The headings that are used in this Agreement are used for reference and convenience purposes only and do not constitute substantive matters
to be considered in construing the terms and provisions of this Agreement.
(h) Gender
and Number. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular
number shall be held to include the plural, and vice versa, unless the context requires otherwise.
Suncrete, Inc. 2026 Omnibus Incentive Plan
Restricted Stock Award Agreement
Page 6
EX-10.12 — EXHIBIT 10.12
EX-10.12
Filename: tm2611641d1_ex10-12.htm · Sequence: 13
Exhibit 10.12
Restricted Stock Unit Award (#)
SUNCRETE, INC.
2026 Omnibus
INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD CERTIFICATE
THIS IS TO CERTIFY that Suncrete, Inc.,
a Delaware corporation (the “Company”), has granted you (the “Participant”) hypothetical units of
[Class A / Class B] Common Stock (“Restricted Stock Units”) under the Company’s 2026 Omnibus
Incentive Plan (the “Plan”), as follows:
Name of Participant:
Address of Participant:
Number of Restricted Stock Units:
Date of Grant:
Vesting Commencement Date:
Settlement Date:
Vesting Schedule:
Date
Percentage/Number
of Vested Shares
By your signature and the signature of the Company’s
representative below, you and the Company agree to be bound by all of the terms and conditions of the accompanying Restricted Stock Unit
Award Agreement and the Plan (both incorporated herein by this reference as if set forth in full in this document). By executing this
Certificate, you hereby irrevocably elect to accept the Restricted Stock Unit rights granted under this Certificate and the related Restricted
Stock Unit Award Agreement and to receive the Restricted Stock Units designated above subject to the terms of the Plan, this Certificate,
and the Award Agreement.
PARTICIPANT
SUNCRETE, INC.
By:
Name:
, an individual
Title:
Dated:
Dated:
Suncrete, Inc. 2026 Omnibus Incentive Plan
Restricted Stock Unit Award Certificate
SUNCRETE INC.
2026 Omnibus
INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT
This Restricted Stock Unit
Award Agreement (the “Agreement”), is entered into on the Date of Grant, subject to the Participant’s acceptance
of the terms of the Agreement evidenced by the Participant’s signature on the Restricted Stock Unit Award Certificate accompanying
this Agreement (the “Certificate”), by and between Suncrete, Inc., a Delaware corporation (the “Company”),
and the Participant named in the Certificate.
Under the Suncrete, Inc.
2026 Omnibus Incentive Plan (the “Plan”), the Administrator has authorized the grant to the Participant of the number
of Restricted Stock Units set forth in the Certificate (the “Award”), under the terms and subject to the conditions
set forth in this Agreement, the Certificate, and the Plan. Capitalized terms not otherwise defined herein have the meanings ascribed
to them in the Plan.
NOW, THEREFORE, in consideration
of the premises and the benefits to be derived from the mutual observance of the covenants and promises contained in this Agreement and
other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Basis
for Award. This Award is granted under the Plan for valid consideration provided to the Company by the Participant. By the Participant’s
execution of the Certificate, the Participant agrees to accept the Award rights granted under the Certificate and this Agreement and to
receive the Restricted Stock Units designated in the Certificate subject to the terms of the Plan, the Certificate, and this Agreement.
2. Restricted
Stock Units Awarded. The Company hereby awards and grants to the Participant the number of Restricted Stock Units set forth in the
Certificate. Each Restricted Stock Unit represents a right to receive one Share (or the cash equivalent) from the Company, and any Dividend
Equivalents (as defined below) credited to the Participant’s Restricted Stock Unit Account (as defined below) with respect to that
Share, upon vesting of the Restricted Stock Unit as provided in Section 3 below. Vested Restricted Stock Units will be settled as
provided in Section 5 below. The Company shall establish and maintain an account (the “Restricted Stock Unit Account”)
for the Participant and will credit that account for the number of Restricted Stock Units granted to the Participant and for any Dividend
Equivalents as provided in Section 4 below. The value of each Restricted Stock Unit on any given date will equal the Fair Market
Value of one Share on that date.
3. Vesting.
The Restricted Stock Units will vest in accordance with the Vesting Schedule set forth in the Certificate, on condition that the Participant
is in Continuous Service on each vesting date. If the Participant ceases Continuous Service for any reason the Participant will immediately
forfeit all unvested Restricted Stock Units and any Dividend Equivalents credited to the Restricted Stock Unit Account.
4. Dividend
Equivalents. If the Company pays any cash dividend on its outstanding Common Stock for which the record date occurs after the Date
of Grant, the Administrator will credit the Participant’s Restricted Stock Unit Account as of the dividend payment date in an amount
equal to the amount of the dividend paid by the Company on a single Share multiplied by the number of unvested Restricted Stock Units
under this Award as of that record date (“Dividend Equivalents”). Dividend Equivalents will be subject to the vesting
requirements of Section 3 of this Agreement. No Dividend Equivalent will vest or be paid to the Participant unless and until the
corresponding Restricted Stock Unit vests and is settled.
Suncrete, Inc. 2026 Omnibus Incentive Plan
Restricted Stock Unit Award Agreement
Page 2
5. Settlement.
Subject to Section 13(i), the Company will settle the Restricted Stock Units on the Settlement Date or Dates set forth in the Certificate
by issuing to the Participant one Share for each Restricted Stock Unit that has satisfied all vesting requirements on that Settlement
Date and cash in the amount of any Dividend Equivalents credited to the Restricted Stock Unit Account with respect to that Share. On settlement,
the Restricted Stock Units, and any related Dividend Equivalents, will cease to be credited to the Restricted Stock Unit Account. If the
Certificate does not specify a Settlement Date, the applicable Settlement Date will be the applicable vesting date set forth in the Vesting
Schedule. Subject to the satisfaction of the withholding provisions in Section 8 below, the Administrator will cause the Shares to
be issued to the Participant on the applicable Settlement Date either by an appropriate entry in the books of the Company or of the Company’s
transfer agent or by delivery of a stock certificate, and will cause cash to be delivered in the amount of any Dividend Equivalents credited
to the Restricted Stock Unit Account with respect to such Shares, free of all restrictions hereunder, except for applicable securities
laws restrictions, and will enter the Participant’s name as stockholder of record with respect to such Shares on the books of the
Company. The Participant acknowledges and agrees that Shares may be issued in electronic form as a book entry with the Company’s
transfer agent and no physical certificates need be issued. In no event shall a Settlement Date be later than March 15th
of the calendar year following the calendar year in which the corresponding Restricted Stock Units vested.
6. Restrictions
on Transfer. Until the applicable Settlement Date, the Restricted Stock Units and any related Dividend Equivalents credited to the
Restricted Stock Unit Account may not be pledged, hypothecated or transferred in any manner other than by will or by the applicable laws
of descent and distribution, or if approved in writing by the Administrator, by gift or domestic relations order to a Permitted Transferee,
provided that the Restricted Stock Units and any related Dividend Equivalents credited to the Restricted Stock Unit Account will remain
subject to the terms of the Plan, the Certificate, and this Agreement.
7. Compliance
with Laws and Regulations. The issuance and transfer of Common Stock on any Settlement Date is subject to the Company’s and
the Participant’s full compliance, to the satisfaction of the Company and its counsel, with all applicable requirements of federal,
state and foreign securities laws and with all applicable requirements of any securities exchange on which the Common Stock may be listed
at the time of issuance or transfer. The Participant understands that the Company is under no obligation to register or qualify the Shares
with the Securities and Exchange Commission, any state securities commission, foreign securities regulatory authority or any securities
exchange to effect such compliance.
8. Tax
Withholding. As a condition to settlement under Section 5, on or before the date on which any of the Restricted Stock Units vest
the Participant must pay to the Company any federal, state or local taxes required by law to be withheld with respect to the Restricted
Stock Units, and any Dividend Equivalents then credited to the Restricted Stock Unit Account, that vest. In addition to the Company’s
right to withhold from any compensation otherwise payable to the Participant by the Company, the Participant may provide for payment of
withholding taxes in full by cash or check or, if the Administrator permits, by one or more of the alternative methods of payment set
forth in the Plan.
9. No
Right to Continued Service. Nothing in this Agreement or the Plan is intended to impose or may be deemed to impose, by implication
or otherwise, any limitation on any right of the Company or its Affiliates to terminate the Participant’s Continuous Service at
any time and for any reason or no reason.
Suncrete, Inc. 2026 Omnibus Incentive Plan
Restricted Stock Unit Award Agreement
Page 3
10. Representations
and Warranties of the Participant. The Participant represents and warrants to the Company as follows:
(a) Acknowledgement
and Agreement to Terms of the Plan. The Participant acknowledges receipt of a copy of the Plan, the Certificate, this Agreement, and
the prospectus dated April 8, 2026 covering the Shares reserved for issuance under the Plan. The Participant has read and understands
the terms of the Plan, the Certificate, and this Agreement and agrees to be bound by their terms and conditions. The Participant acknowledges
that there may be adverse tax consequences on the vesting and settlement of the Restricted Stock Units and any Dividend Equivalents and
on disposition of any Shares received on settlement of the Restricted Stock Units, and that the Participant should consult a tax advisor
before such time. The Participant agrees to sign such additional documentation as the Company may reasonably require from time to time.
(b) Compliance
with Securities Laws. The Participant understands and acknowledges that, notwithstanding any other provision of the Agreement to the
contrary, the issuance and holding of Shares is expressly conditioned on compliance with the Securities Act and all applicable federal,
state, and foreign securities laws. The Participant agrees to cooperate with the Company to ensure compliance with such laws.
11. No
Interest in Company Assets. All amounts credited to the Participant’s Restricted Stock Unit Account under this Agreement will
continue for all purposes to be part of the general assets of the Company. The Participant’s interest in the Restricted Stock Unit
Account will make the Participant only a general, unsecured creditor of the Company.
12. No
Stockholder Rights before Issuance. The Participant will have no right, title, or interest in, nor be entitled to vote or to receive
distributions in respect of, nor otherwise be considered the owner of, any of the Shares covered by the Restricted Stock Units until the
Shares are issued in accordance with Section 5.
13. General
Terms.
(a) Interpretation.
Any dispute regarding the interpretation of this Agreement must be submitted by the Participant or the Company to the Administrator for
review. The Administrator’s resolution of such dispute will be final, binding, and conclusive on the Company, the Participant, and
all other Persons with any interests related to this Award.
(b) Entire
Agreement. This Agreement, the Certificate and the Plan constitute the entire agreement of the parties and supersede all prior undertakings
and agreements with respect to the subject matter hereof. In the event of a conflict or inconsistency between the terms and conditions
of this Agreement, the Certificate and the Plan, the Plan will govern.
(c) Modification.
This Agreement may be modified only in writing signed by both parties.
(d) Notices.
Any notice required under this Agreement to be delivered to the Company must be in writing and addressed to the Corporate Secretary of
the Company at its principal corporate offices. Any notice required to be given or delivered to the Participant must be in writing and
addressed to the Participant at the address indicated on the Certificate or to such other address as the Participant designates in writing
to the Company. All notices will be deemed to have been delivered: (i) on personal delivery, (ii) five days after deposit in
the United States mail by certified or registered mail (return receipt requested), (iii) two business days after deposit with any
return receipt express courier (prepaid) or (iv) one business day after transmission by fax or email.
Suncrete, Inc. 2026 Omnibus Incentive Plan
Restricted Stock Unit Award Agreement
Page 4
(e) Successors
and Assigns. The Company may assign any of its rights under this Agreement. This Agreement will be binding on and inure to the benefit
of the successors and assigns of the Company. Subject to the restrictions on transfer set forth herein and in the Plan, this Agreement
is binding on the Participant and the Participant’s heirs, executors, administrators, legal representatives, successors, and assigns.
(f) Governing
Law. This Agreement is governed by and to be construed in accordance with the laws of the State of Delaware without giving effect
to its conflict of law principles. If any provision of this Agreement is determined by a court of law to be illegal or unenforceable,
then that provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable
in accordance with their respective terms.
(g) Headings.
The headings that are used in this Agreement are used for reference and convenience purposes only and do not constitute substantive matters
to be considered in construing the terms and provisions of this Agreement.
(h) Gender
and Number. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular
number shall be held to include the plural, and vice versa, unless the context requires otherwise.
(i) Section 409A.
The Award is intended to be exempt from or comply with the requirements of Section 409A of the Code and the rules and regulations
issued thereunder (“Section 409A”) and shall be construed accordingly. Notwithstanding any other provision of
this Agreement, the Notice of Grant, or the Plan to the contrary, with respect to any payments and benefits to which Section 409A
applies, if the Participant is a “specified employee,” within the meaning of Section 409A, then to the extent necessary
to avoid subjecting the Participant to the imposition of any additional tax under Section 409A, amounts that would otherwise be payable
during the six-month period immediately following the Participant’s “separation from service,” within the meaning of
Section 409A(a)(2)(A)(i), shall not be paid to the Participant during such period, but shall instead be accumulated and paid to the
Participant (or, in the event of the Participant’s death, the Participant’s estate) in a lump sum on the first business day
after the earlier of the date that is six months following the Participant’s separation from service or the Participant’s
death. Each payment hereunder shall be treated for all purposes as a separate payment.
Suncrete, Inc. 2026 Omnibus Incentive Plan
Restricted Stock Unit Award Agreement
Page 5
EX-10.13 — EXHIBIT 10.13
EX-10.13
Filename: tm2611641d1_ex10-13.htm · Sequence: 14
Exhibit 10.13
Performance Stock Unit Award #___
SUNCRETE, Inc.
2026 Omnibus Incentive Plan
performance
Stock unit Award grant notice
Pursuant to this Performance
Stock Unit Award Grant Notice (this “Notice of Grant”), you (the “Participant”) are hereby granted
a Performance Stock Unit Award (the “Award”) by Suncrete, Inc., a Delaware corporation (the “Company”)
under the Suncrete, Inc. 2026 Omnibus Incentive Plan (the “Plan”), as set forth below. Each Performance Stock
Unit (a “PSU”) subject to the Award has a notional value equivalent to one share of the Company’s [Class A
/ Class B] Common Stock for purposes of determining the number of Shares subject to the Award.
The Award is subject to all
the terms and conditions set forth in this Notice, the Plan, and the Performance Stock Unit Agreement, attached hereto as Exhibit A
(the “Award Agreement”), each of which are incorporated by reference into this Notice of Grant. Capitalized terms
that are not defined in the Notice of Grant shall have the meanings given to them in the Award Agreement, and if not defined in the Award
Agreement, the meanings given to them in the Plan.
Name of
Participant:
Address of Participant:
Target Number of PSUs:
__________
(the “Target PSUs”); provided that the actual number of PSUs that are granted and eligible to vest is up to [_____]%
of the Target PSUs (or __________ PSUs).
Date of Grant:
Acceptance Expiration
Date:
15 days after the Participant’s
receipt of this Notice of Grant.
Vesting Schedule:
Except
as specifically provided in the Award Agreement and subject to the restrictions and conditions set forth in the Plan, the PSUs shall
vest on the Vesting Date (as defined on Schedule 1 to this Notice of Grant, attached hereto, which is incorporated by reference
into this Notice of Grant), based upon the achievement of the performance goals set forth on Schedule 1 (the “Performance
Vesting Conditions”).
By your signature and the signature of the Company’s
representative below, you and the Company agree to be bound by all of the terms and conditions of this Notice of Grant and the accompanying
Award Agreement and the Plan (each incorporated herein by this reference as if set forth in full in this document). By executing this
Notice of Grant, you hereby irrevocably elect to accept the Award granted under this Notice of Grant and the related Award Agreement
and to receive the PSUs designated above subject to the terms of the Plan, this Notice of Grant, and the Award Agreement.
You acknowledge and agree that this Award does
not constitute an express or implied promise of your continued engagement as an employee, officer, director, or other service provider
for the vesting period, for any period, or at all, and shall not interfere with your right or the Company’s right to terminate
your employment or service relationship with the Company or any Affiliate at any time, with or without Cause.
Suncrete, Inc. 2026 Omnibus Incentive Plan
Performance Stock Unit
Award
Notice of Grant, Page 1 of 2
You hereby agree to accept as binding, conclusive,
and final all decisions or interpretations of the Administrator upon any questions relating to the Plan and the Award.
This Notice of Grant may be executed in duplicate
counterparts, the production of either of which shall be sufficient for all purposes for the proof of the binding terms of this Award.
PARTICIPANT
SUNCRETE, INC.
By:
Name:
,
an individual
Title:
Dated:
Dated:
Suncrete, Inc. 2026 Omnibus Incentive Plan
Performance Stock Unit
Award
Notice of Grant, Page 2 of 2
Schedule
1
SUNCRETE, Inc.
2026 Omnibus Incentive Plan
Performance
vesting conditions
Suncrete, Inc. 2026 Omnibus Incentive Plan
Performance Stock Unit Award
Schedule 1, Page 1 of 5
EXHIBIT A
SUNCRETE, Inc.
2026 Omnibus Incentive Plan
PERFORMANCE
Stock UNIT Award Agreement
Suncrete,
Inc. 2026 Omnibus Incentive Plan
Performance Stock Unit Award
Award
Agreement, Page 1 of 7
EX-10.14 — EXHIBIT 10.14
EX-10.14
Filename: tm2611641d1_ex10-14.htm · Sequence: 15
Exhibit 10.14
SUNCRETE, INC.
RESTRICTED STOCK AWARD AGREEMENT
1. Grant
of Award. to the terms of this Restricted Stock Award Agreement (this “Agreement”) and in exchange for services
rendered or to be rendered to Suncrete, Inc., a Delaware corporation (the “Company”), the Company hereby
grants to
________________
(the “Grantee”)
an award of __________ Shares (defined below)
of restricted Class A common stock of the Company (the “Awarded Shares”). The “Date of Grant”
of this award is April 8, 2026.
2. Definitions.
For purposes of this Agreement, the following terms shall have the meanings set forth below:
a. “Affiliate”
shall mean (i) any entity that, directly or indirectly through one or more intermediaries, is controlled by the Company; and (ii) any
entity in which the Company has a significant equity interest.
b. “Applicable
Laws” shall mean the requirements relating to the administration of equity-based awards under U.S. state corporate laws,
U.S. federal and state securities laws, the Code, any stock exchange or quotation system on which Shares of the Company’s common
stock are listed or quoted and the Applicable Laws of any foreign country or jurisdiction where equity awards are, or will be, granted
by the Company.
c. “BCA”
shall mean that certain Business Combination Agreement by and among the Company, Haymaker Acquisition Corp. 4, Concrete Partners Holding,
LLC and the other parties thereto, dated as of October 9, 2025.
d. “Board”
shall mean the Board of Directors of the Company.
e. “Cause”
shall mean (i) if the Grantee is party to an employment agreement with the Company or the applicable subsidiaries, the conviction
of such employee of a felony or of any lesser crime involving moral turpitude, or (ii) if the Grantee is not a party to such an employment
agreement, consistent with the policies of the Company or the applicable subsidiary. The Board or its delegate, in its absolute discretion,
shall determine the effect of all matters and questions relating to whether the Grantee has been discharged for Cause.
f. “Closing
Date” shall have the meaning given to such term in the BCA.
g. “Code”
shall mean the Internal Revenue Code of 1986, as amended from time to time, and any regulations promulgated thereunder.
h. “Exchange
Act” shall mean the Securities and Exchange Act of 1934, as amended.
i. “Fair
Market Value” shall mean, as of a particular date, (a) if the Shares are listed on any established national securities
exchange, the closing sales price per Share of common stock on the consolidated transaction reporting system for the principal securities
exchange for the common stock on that date (as determined by the Board, in its discretion), or, if there shall have been no such sale
so reported on that date, on the last preceding date on which such a sale was so reported; (b) if the shares of common stock are
not so listed, but are quoted on an automated quotation system, the closing sales price per share of common stock reported on the automated
quotation system on that date, or, if there shall have been no such sale so reported on that date, on the last preceding date on which
such a sale was so reported; (c) if the common stock is not so listed or quoted, the mean between the closing bid and asked price
on that date, or, if there are no quotations available for such date, on the last preceding date on which such quotations shall be available,
as reported by the National Association of Securities Dealer, Inc.’s OTC Bulletin Board or the Pink OTC Markets, Inc.
(previously known as the National Quotation Bureau, Inc.); or (d) if none of the above is applicable, such amount as may be
determined by the Board (acting on the advice of an independent third party, should the Board elect in its sole discretion to utilize
an independent third party for this purpose), in good faith, to be the fair market value per share of Common Stock. The determination
of Fair Market Value shall, where applicable, be in compliance with Section 409A of the Code.
j. “Initial
Closing Date” shall have the meaning given to such term in the BCA.
k. “Plan”
shall mean the Suncrete, Inc. 2026 Omnibus Incentive Plan.
l. “Service
Provider” shall mean an employee, director, or consultant that provides services to the Company.
m. “Shares”
shall mean shares of Class A common stock of the Company, $0.0001 par value per share, or such other securities or property as may
become subject to this Agreement pursuant to an adjustment made under Section 10 of this Agreement.
n. “Transactions”
shall have the meaning given to such term in the BCA.
3. Vesting.
Except as specifically provided in this Agreement, the Awarded Shares shall vested as follows:
a. 33%
of the total Awarded Shares (rounded down for any fractional shares) shall vest on December 9, 2027, provided the Grantee is employed
by (or, if the Grantee is a consultant or an outside director, is providing services to) the Company or a subsidiary on that date.
b. An
additional 33% of the total Awarded Shares (rounded down for any fractional shares) shall vest on December 9, 2028, provided the
Grantee is employed by (or, if the Grantee is a consultant or an outside director, is providing services to) the Company or a subsidiary
on that date.
c. The
remaining total Awarded Shares shall vest on December 9, 2029, provided the Grantee is employed by (or, if the Grantee is a consultant
or an outside director, is providing services to) the Company or a subsidiary on that date.
Notwithstanding the foregoing, upon
the occurrence of a termination of service due to the Grantee’s death or total and permanent disability, all then unvested Awarded
Shares not previously vested shall become immediately fully vested.
4. Forfeiture
of Awarded Shares. Awarded Shares that are not vested in accordance with Section 3 shall be forfeited on the date the
Grantee ceases to be a Service Provider for any reason. In addition, in the event the Grantee’s employment with or services to the
Company or any subsidiary is terminated by the Company for Cause or if such termination of employment or service occurs at a time when
grounds exist for a termination for Cause, in each case, as determined by the Board, then all Awarded Shares, whether then vested or unvested
shall be immediately forfeited. Upon forfeiture, all of the Grantee’s rights with respect to the forfeited Awarded Shares shall
cease and terminate, without any further obligations on the part of the Company.
5. Restrictions
on Awarded Shares. Subject to the terms of this Agreement, from the Date of Grant until the date the Awarded Shares are vested in
accordance with Section 3 and are no longer subject to forfeiture in accordance with Section 4 (the “Restriction
Period”), the Grantee shall not be permitted to sell, transfer, pledge, hypothecate, margin, assign, or otherwise encumber
any of the Awarded Shares that have not vested. Except for these limitations, the Company may, in its sole discretion, remove any or all
of the restrictions on such Awarded Shares whenever it may determine that, by reason of changes in Applicable Laws or changes in circumstances
after the date of this Agreement, such action is appropriate.
6. Legend.
If certificates evidencing the Awarded Shares as issued, the following legend shall be placed on all certificates issued representing
Awarded Shares:
On the face of the certificate:
“Transfer of this stock is restricted
in accordance with conditions printed on the reverse of this certificate.”
On the reverse:
“The shares of stock evidenced
by this certificate are subject to and transferable only in accordance with the terms of a Restricted Stock Award Agreement, by and between
the Company and the Grantee, a copy of which is on file at the principal office of the Company in Tulsa, OK. No transfer or pledge of
the shares evidenced hereby may be made except in accordance with and subject to the provisions of said agreement. By acceptance of this
certificate, any holder, transferee or pledgee hereof agrees to be bound by all of the provisions of said agreement.”
The following legend shall
be inserted on a certificate evidencing Shares issued pursuant to this Agreement if the Shares were not issued in a transaction registered
under the applicable federal and state securities laws:
“Shares of stock represented by
this certificate have been acquired by the holder for investment and not for resale, transfer or distribution, have been issued pursuant
to exemptions from the registration requirements of applicable state and federal securities laws, and may not be offered for sale, sold
or transferred other than pursuant to effective registration under such laws, or in transactions otherwise in compliance with such laws,
and upon evidence satisfactory to the Company of compliance with such laws, as to which the Company may rely upon an opinion of counsel
satisfactory to the Company.”
All Awarded Shares owned by
the Grantee shall be subject to the terms of this Agreement and shall be represented by a certificate or certificates bearing the foregoing
legend if the Awarded Shares are so evidenced by certificates.
7. Delivery
of Certificates; Registration of Shares. The Company shall deliver certificates for the Awarded Shares to the Grantee or shall register
the Awarded Shares in the Grantee’s name, free of restriction pursuant to this Agreement, promptly after, and only after, the Restriction
Period has expired without forfeiture pursuant to Section 4.
8. Rights
of a Shareholder. Except as provided in Section 4 and Section 5 above, the Grantee shall have, with respect
to the Awarded Shares, all of the rights of a stockholder of the Company, including the right to vote the Shares and the right to receive
any dividends thereon.
9. Voting.
The Grantee, as record holder of the Awarded Shares, has the exclusive right to vote, or consent with respect to, such Awarded Shares
until such time as the Awarded Shares are transferred in accordance with this Agreement; provided, however, that this Section 9
shall not create any voting right where the holders of such Awarded Shares otherwise have no such right.
10. Adjustment
to Number of Awarded Shares. The number of Awarded Shares shall be subject to adjustment in accordance with Section 15 of the
Plan.
11. Specific
Performance. The parties acknowledge that remedies at law will be inadequate remedies for a breach of this Agreement and consequently
agree that this Agreement shall be enforceable by specific performance. The remedy of specific performance shall be cumulative of all
of the rights and remedies at law or in equity of the parties under this Agreement.
12. Grantee’s
Representations. Notwithstanding any of the provisions hereof, the Grantee hereby agrees that he will not acquire any Awarded Shares,
and that the Company will not be obligated to issue any Awarded Shares to the Grantee hereunder, if the issuance of such shares shall
constitute a violation by the Grantee or the Company of any provision of any law or regulation of any governmental authority. Any determination
in this connection by the Company shall be final, binding, and conclusive. The rights and obligations of the Company and the rights and
obligations of the Grantee are subject to all Applicable Laws, rules, and regulations.
13. Reserved.
14. Grantee’s
Acknowledgments. The Grantee hereby acknowledges and agrees to accept as binding, conclusive, and final all decisions or interpretations
of the Board upon any questions arising under this Agreement.
15. Lock-Up
Agreement.
a. The
Grantee hereby agrees not to, during the period (the “Post-Closing Lock-Up Period”) commencing on the date of
the Initial Closing and ending on the earlier of (i) the one year anniversary of the Initial Closing and (ii) the date after
the Initial Closing on which the Company consummates a liquidation, merger, share exchange, reorganization or other similar transaction
with an unaffiliated third party that results in all of the Company’s stockholders having the right to exchange their equity holdings
in the Company for cash, securities, or other property, without the prior written consent of the Company: (A) lend, offer, pledge,
hypothecate, encumber, donate, assign, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, establish or increase of a put equivalent position or liquidation with respect
to or decrease of a call equivalent position with respect to or decrease of a call equivalent position within the meaning of Section 16
of the Exchange Act and the rules and regulations of the Securities and Exchange Commission (the “SEC”)
promulgated thereunder, or otherwise transfer or dispose of, directly or indirectly, any Shares, (B) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Shares, whether any such
transaction is to be settled by delivery of such Shares, in cash or otherwise, or (C) publicly announce the intention to do any of
the foregoing, whether any such transaction described in clauses (A), (B) or (C) above is to be settled by delivery of Shares
or other securities, in cash or otherwise (any of the foregoing described in clauses (A), (B) or (C), a “Prohibited Transfer”).
The foregoing sentence shall not apply to the transfer of any or all of the Shares owned by the Grantee (I) by gift, will or intestate
succession upon the death of the Grantee, (II) to any Permitted Transferee (as defined below), (III) pursuant to a court order
or settlement agreement related to the distribution of assets in connection with the dissolution of marriage or civil union or pursuant
to a domestic relations order, (IV) in accordance with the requirements of the BCA or the organizational documents of the Company,
as amended, (V) to the Company in connection with the “net” or “cashless” exercise of options or other rights
to purchase Shares granted pursuant to an equity incentive plan, stock purchase plan or other arrangement in satisfaction of any tax withholding
obligations through cashless surrender or otherwise (provided any Shares issued upon exercise of such option or other rights shall remain
subject to the terms of this Agreement), or (VI) in connection with the exercise or conversion of any Derivative Instruments (defined
below); provided, however, that in any of the cases of clauses (I), (II) or (III) it shall be a condition to such transfer that
the transferee executes and delivers to the Company an agreement stating that the transferee is receiving and holding the Shares subject
to the provisions of this Agreement applicable to the Grantee, and there shall be no further transfer of such Shares except in accordance
with this Agreement. As used in this Agreement, the term “Permitted Transferee” shall mean: (aa) the members
of the Grantee’s immediate family (for purposes of this Agreement, “immediate family” shall mean with respect to any
natural person, any of the following: such person’s spouse, the siblings of such person and his or her spouse, and the direct descendants
and ascendants (including adopted and step children and parents) of such person and his or her spouses and siblings), (bb) any trust or
charitable organization for the direct or indirect benefit of the Grantee or the immediate family of the Grantee, (cc) if the Grantee
is a trust, the trustor or beneficiary of such trust or to the estate of a beneficiary of such trust, (dd) if the Grantee is an entity,
as a distribution to limited partners, shareholders, members of, or owners of similar equity interests in the Grantee, or (ee) to any
affiliate of the Grantee. The Grantee further agrees to execute such agreements as may be reasonably requested by the Company or the Company
that are consistent with the foregoing or that are necessary to give further effect thereto. Notwithstanding the foregoing, the Grantee
shall be permitted to establish a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that (y) such
plan does not provide for the transfer, sale or other disposal of Shares during the Post-Closing Lock-Up Period and (z) any public
announcement or filing with the SEC under the Exchange Act made by any person regarding the establishment of such plan during the Post-Closing
Lock-Up Period shall include a statement that the undersigned is not permitted to transfer, sell, or otherwise dispose of securities under
such plan during the Post-Closing Lock-Up Period in contravention of this Agreement.
b. Notwithstanding
anything contained herein to the contrary, (i) 33.33% of the Shares subject to the restrictions set forth in Section 15(a) held
by the Grantee as of the Closing Date will be automatically released from the restrictions contained in Section 15(a) immediately
prior to the opening of The Nasdaq Global Market on the six-month anniversary of the Closing Date and (ii) 33.33% of the Shares subject
to the restrictions set forth in Section 15(a) held by the Grantee as of the Closing Date will be automatically released
from the restrictions contained in Section 15(a) immediately prior to the opening of The Nasdaq Global Market on the
nine-month anniversary of the Closing Date.
c. Notwithstanding
anything contained herein to the contrary, if, prior to the expiration of the Post-Closing Lock-Up Period, the Company consents at its
discretion to release any of the Shares or any securities convertible into, exchangeable for or that represent the right to receive Shares
(such options, warrants or other securities, collectively, “Derivative Instruments”), held by any directors,
officers, stockholders of 5.0% or more of the then outstanding Shares that has delivered a lock-up agreement to the Company in connection
with the Transactions, other than the Grantee, from the restrictions described herein (any such release being a “Triggering
Release” and such party receiving such release being a “Triggering Release Party”), then a number
of the Grantee’s Shares subject to this Agreement shall also be released from the restrictions set forth herein on the same terms
on a pro rata basis, such number of the Grantee’s Shares being the total number of Shares held by the Grantee on the date of the
Triggering Release that are subject to this Agreement multiplied by a fraction, the numerator of which shall be the number of Shares and
Derivative Instruments released pursuant to the Triggering Release and the denominator of which shall be the total number of Shares and
Derivative Instruments held by the Triggering Release Party on such date that were subject to a lock-up restriction (e.g., restrictions
similar to this Section 15) immediately prior to such release.
d. If
any transfer of Shares is made or attempted contrary to the provisions of this Agreement, such purported transfer shall be null and void
ab initio, and the Company shall refuse to recognize any such purported transferee of the Shares as one of its equity holders for
any purpose. In order to enforce this Section 15, the Company may impose stop-transfer instructions with respect to the Shares
of the Grantee (and Permitted Transferees and assigns thereof) until the end of the Post-Closing Lock-Up Period.
16. Law
Governing. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Delaware (excluding
any conflict of laws rule or principle of Delaware law that might refer the governance, construction, or interpretation of this Agreement
to the laws of another state).
17. No
Right to Continue Service or Employment. Nothing herein shall be construed to confer upon the Grantee the right to continue in the
employ or to provide services to the Company or any Affiliate, whether as an employee, officer, consultant, independent contractor, or
director, or to interfere with or restrict in any way the right of the Company or any Affiliate to discharge the Grantee as a Service
Provider at any time.
18. Legal
Construction. In the event that any one or more of the terms, provisions, or agreements that are contained in this Agreement shall
be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect for any reason, the invalid, illegal,
or unenforceable term, provision, or agreement shall not affect any other term, provision, or agreement that is contained in this Agreement,
and this Agreement shall be construed in all respects as if the invalid, illegal, or unenforceable term, provision, or agreement had never
been contained herein.
19. Covenants
and Agreements as Independent Agreements. Each of the covenants and agreements that are set forth in this Agreement shall be construed
as a covenant and agreement independent of any other provision of this Agreement. The existence of any claim or cause of action of the
Grantee against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the
Company of the covenants and agreements that are set forth in this Agreement.
20. Entire
Agreement. This Agreement supersedes any and all other prior understandings and agreements, either oral or in writing, between the
parties with respect to the subject matter hereof and constitute the sole and only agreements between the parties with respect to the
said subject matter. All prior negotiations and agreements between the parties with respect to the subject matter hereof are merged into
this Agreement. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise,
have been made by any party or by anyone acting on behalf of any party, which are not embodied in this Agreement and that any agreement,
statement, or promise that is not contained in this Agreement shall not be valid or binding or of any force or effect.
21. Parties
Bound. The terms, provisions, and agreements that are contained in this Agreement shall apply to, be binding upon, and inure to the
benefit of the parties and their respective heirs, executors, administrators, legal representatives, and permitted successors and assigns,
subject to the limitation on assignment expressly set forth herein. No person shall be permitted to acquire any Awarded Shares without
first executing and delivering an agreement in the form satisfactory to the Company making such person or entity subject to the restrictions
on transfer contained herein.
22. Modification.
No change or modification of this Agreement shall be valid or binding upon the parties unless the change or modification is in writing
and signed by the parties hereto.
23. Headings.
The headings that are used in this Agreement are used for reference and convenience purposes only and do not constitute substantive matters
to be considered in construing the terms and provisions of this Agreement.
24. Gender
and Number. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular
number shall be held to include the plural, and vice versa, unless the context requires otherwise.
25. Notice.
Any notice required or permitted to be delivered hereunder shall be deemed to be delivered only when actually received by the Company
or by the Grantee, as the case may be, at the addresses set forth below, or at such other addresses as they have theretofore specified
by written notice delivered in accordance herewith:
a. Notice
to the Company shall be addressed and delivered as follows:
Suncrete, Inc.
817 E. 4th Street
Tulsa, OK 74120
Attention: Corporate Secretary
b. Notice
to the Grantee shall be addressed and delivered to the most recent address in the Company’s records.
26. Tax
Requirements. The Grantee is hereby advised to consult immediately with the Grantee’s own tax advisor regarding the tax consequences
of this Agreement, the method and timing for filing an election to include this Agreement in income under Section 83(b) of
the Code, and the tax consequences of such election. By execution of this Agreement, the Grantee agrees that if the Grantee makes such
an election, the Grantee shall provide the Company with written notice of such election in accordance with the regulations promulgated
under Section 83(b) of the Code. The Company and its subsidiaries (for purposes of this Section 26, the term
“Company” shall be deemed to include any applicable subsidiary of the Company) shall require the Grantee receiving
Awarded Shares issued pursuant to this Agreement to pay the Company the amount of any taxes that the Company is required to withhold in
connection with the Grantee’s income arising with respect to the Awarded Shares. Such payments shall be required to be made when
requested by the Company and may be required to be made prior to the delivery of any certificate representing Shares or the registration
of the Shares. Such payment may be made by (a) the delivery of cash to the Company in an amount that equals or exceeds (to avoid
the issuance of fractional shares under (c) below) the required tax withholding obligations of the Company; (b) with the consent
of the Company, the actual delivery by the Grantee to the Company of shares of Common Stock, which shares so delivered have an aggregate
Fair Market Value that equals or exceeds (to avoid the issuance of fractional shares under (c) below) the required tax withholding
payment; (c) with the consent of the Company, the Company’s withholding of a number of shares to be delivered upon the vesting
of this Award, which shares so withheld have an aggregate Fair Market Value that equals (but does not exceed) the required tax withholding
payment; and (d) combination of (a), (b), or (c). If the Grantee does not make appropriate arrangements for the satisfaction of such
tax withholding obligations, the Company may, in its sole discretion, withhold any such taxes from any other cash remuneration otherwise
paid by the Company to the Grantee.
[Remainder of Page Intentionally Left Blank;
Signature Page Follows.]
IN WITNESS WHEREOF, the Company
has caused this Agreement to be executed by its duly authorized officer, and the Grantee, to evidence its consent and approval of all
the terms hereof, has duly executed this Agreement, as of the date specified in Section 1 hereof.
COMPANY:
SUNCRETE, INC.
By:
Name:
Title:
GRANTEE:
By:
Name:
EX-10.15 — EXHIBIT 10.15
EX-10.15
Filename: tm2611641d1_ex10-15.htm · Sequence: 16
Exhibit 10.15
Restricted Stock Unit Award
SUNCRETE, INC.
2026 Omnibus
INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD CERTIFICATE
THIS IS TO CERTIFY that
Suncrete, Inc., a Delaware corporation (the “Company”), has granted you (the “Participant”)
hypothetical units of Class A Common Stock (“Restricted Stock Units”) under the Company’s 2026 Omnibus
Incentive Plan (the “Plan”), as follows:
Name
of Participant:
Address
of Participant:
Number of Restricted Stock Units:
Date
of Grant:
Vesting Commencement Date:
Settlement Date:
Vesting Schedule:
Date
Percentage/Number
of Vested Shares
By your signature and the signature of the Company’s
representative below, you and the Company agree to be bound by all of the terms and conditions of the accompanying Restricted Stock Unit
Award Agreement and the Plan (both incorporated herein by this reference as if set forth in full in this document). By executing this
Certificate, you hereby irrevocably elect to accept the Restricted Stock Unit rights granted under this Certificate and the related Restricted
Stock Unit Award Agreement and to receive the Restricted Stock Units designated above subject to the terms of the Plan, this Certificate,
and the Award Agreement.
PARTICIPANT
SUNCRETE, INC.
By:
Name:
Andrew Heyer, an individual
Title:
Dated:
Dated:
Suncrete, Inc. 2026 Omnibus Incentive Plan
Restricted Stock Unit Award Agreement
SUNCRETE INC.
2026 Omnibus
INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT
This Restricted Stock Unit
Award Agreement (the “Agreement”), is entered into on the Date of Grant, subject to the Participant’s acceptance
of the terms of the Agreement evidenced by the Participant’s signature on the Restricted Stock Unit Award Certificate accompanying
this Agreement (the “Certificate”), by and between Suncrete, Inc., a Delaware corporation (the “Company”),
and the Participant named in the Certificate.
Under the Suncrete, Inc.
2026 Omnibus Incentive Plan (the “Plan”), the Administrator has authorized the grant to the Participant of the number
of Restricted Stock Units set forth in the Certificate (the “Award”), under the terms and subject to the conditions
set forth in this Agreement, the Certificate, and the Plan. Capitalized terms not otherwise defined herein have the meanings ascribed
to them in the Plan.
NOW, THEREFORE, in consideration
of the premises and the benefits to be derived from the mutual observance of the covenants and promises contained in this Agreement and
other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Basis
for Award. This Award is granted under the Plan for valid consideration provided to the Company by the Participant. By the Participant’s
execution of the Certificate, the Participant agrees to accept the Award rights granted under the Certificate and this Agreement and
to receive the Restricted Stock Units designated in the Certificate subject to the terms of the Plan, the Certificate, and this Agreement.
2. Restricted
Stock Units Awarded. The Company hereby awards and grants to the Participant the number of Restricted Stock Units set forth in the
Certificate. Each Restricted Stock Unit represents a right to receive one Share (or the cash equivalent) from the Company, and any Dividend
Equivalents (as defined below) credited to the Participant’s Restricted Stock Unit Account (as defined below) with respect to that
Share, upon vesting of the Restricted Stock Unit as provided in Section 3 below. Vested Restricted Stock Units will be settled as
provided in Section 5 below. The Company shall establish and maintain an account (the “Restricted Stock Unit Account”)
for the Participant and will credit that account for the number of Restricted Stock Units granted to the Participant and for any Dividend
Equivalents as provided in Section 4 below. The value of each Restricted Stock Unit on any given date will equal the Fair Market
Value of one Share on that date.
3. Vesting.
The Restricted Stock Units will vest in accordance with the Vesting Schedule set forth in the Certificate, on condition that the Participant
is in Continuous Service on each vesting date, except as otherwise provided herein. If the Participant ceases Continuous Service by the
Company for Cause, the Participant will immediately forfeit all unvested Restricted Stock Units and any Dividend Equivalents credited
to the Restricted Stock Unit Account. If the Participant ceases Continuous Service for any other reason (including, without limitation,
due to the Participant’s death or Disability) all unvested Restricted Stock Units and any Dividend Equivalents credited to the
Restricted Stock Unit Account shall immediately become fully vested Restricted Stock Units and Dividend Equivalents. In addition, upon
the occurrence of a Change in Control, all unvested Restricted Stock Units and any Dividend Equivalents credited to the Restricted Stock
Unit Account shall immediately become fully vested Restricted Stock Units and Dividend Equivalents.
4. Dividend
Equivalents. If the Company pays any cash dividend on its outstanding Common Stock for which the record date occurs after the Date
of Grant, the Administrator will credit the Participant’s Restricted Stock Unit Account as of the dividend payment date in an amount
equal to the amount of the dividend paid by the Company on a single Share multiplied by the number of unvested Restricted Stock Units
under this Award as of that record date (“Dividend Equivalents”). Dividend Equivalents will be subject to the vesting
requirements of Section 3 of this Agreement. No Dividend Equivalent will vest or be paid to the Participant unless and until the
corresponding Restricted Stock Unit vests and is settled.
Suncrete, Inc. 2026 Omnibus Incentive Plan
Restricted Stock Unit Award Agreement
Page 2
5. Settlement.
Subject to Section 13(i), the Company will settle the Restricted Stock Units on the Settlement Date or Dates set forth in the Certificate
by issuing to the Participant one Share for each Restricted Stock Unit that has satisfied all vesting requirements on that Settlement
Date and cash in the amount of any Dividend Equivalents credited to the Restricted Stock Unit Account with respect to that Share. On
settlement, the Restricted Stock Units, and any related Dividend Equivalents, will cease to be credited to the Restricted Stock Unit
Account. If the Certificate does not specify a Settlement Date, the applicable Settlement Date will be the applicable vesting date set
forth in the Vesting Schedule. Subject to the satisfaction of the withholding provisions in Section 8 below, the Administrator will
cause the Shares to be issued to the Participant on the applicable Settlement Date either by an appropriate entry in the books of the
Company or of the Company’s transfer agent or by delivery of a stock certificate, and will cause cash to be delivered in the amount
of any Dividend Equivalents credited to the Restricted Stock Unit Account with respect to such Shares, free of all restrictions hereunder,
except for applicable securities laws restrictions, and will enter the Participant’s name as stockholder of record with respect
to such Shares on the books of the Company. The Participant acknowledges and agrees that Shares may be issued in electronic form as a
book entry with the Company’s transfer agent and no physical certificates need be issued.
6. Restrictions
on Transfer. Until the applicable Settlement Date, the Restricted Stock Units and any related Dividend Equivalents credited to the
Restricted Stock Unit Account may not be pledged, hypothecated or transferred in any manner other than by will or by the applicable laws
of descent and distribution, or if approved in writing by the Administrator, by gift or domestic relations order to a Permitted Transferee,
provided that the Restricted Stock Units and any related Dividend Equivalents credited to the Restricted Stock Unit Account will remain
subject to the terms of the Plan, the Certificate, and this Agreement.
7. Compliance
with Laws and Regulations. The issuance and transfer of Common Stock on any Settlement Date is subject to the Company’s and
the Participant’s full compliance, to the satisfaction of the Company and its counsel, with all applicable requirements of federal,
state and foreign securities laws and with all applicable requirements of any securities exchange on which the Common Stock may be listed
at the time of issuance or transfer. The Participant understands that the Company is under no obligation to register or qualify the Shares
with the Securities and Exchange Commission, any state securities commission, foreign securities regulatory authority or any securities
exchange to effect such compliance.
8. Tax
Withholding. As a condition to settlement under Section 5, on or before the date on which any of the Restricted Stock Units
vest the Participant must pay to the Company any federal, state or local taxes required by law to be withheld with respect to the Restricted
Stock Units, and any Dividend Equivalents then credited to the Restricted Stock Unit Account, that vest. In addition to the Company’s
right to withhold from any compensation otherwise payable to the Participant by the Company, the Participant may provide for payment
of withholding taxes in full by (a) cash or check; (b) requesting that the Company withhold a number of Shares from the Shares
otherwise issuable on the Settlement Date, the Fair Market Value of which does not exceed either the maximum statutory tax rates in the
Participant’s applicable jurisdictions or the amount of tax required to be withheld by law, and in which case the Award will be
surrendered and cancelled with respect to the number of Shares retained by the Company (provided that to the extent such direction would
result in the Company withholding fractional Shares, the number of Shares to be withheld will be rounded down to the nearest whole Share
and the Participant must pay the remainder of the withholding obligation in cash or by check); or (c) one or more alternative methods
permitted by applicable law.
Suncrete, Inc. 2026 Omnibus Incentive Plan
Restricted Stock Unit Award Agreement
Page 3
9. No
Right to Continued Service. Nothing in this Agreement or the Plan is intended to impose or may be deemed to impose, by implication
or otherwise, any limitation on any right of the Company or its Affiliates to terminate the Participant’s Continuous Service at
any time and for any reason or no reason.
10. Representations
and Warranties of the Participant. The Participant represents and warrants to the Company as follows:
(a) Acknowledgement
and Agreement to Terms of the Plan. The Participant acknowledges receipt of a copy of the Plan, the Certificate, this Agreement,
and the prospectus dated April 8, 2026 covering the Shares reserved for issuance under the Plan. The Participant has read and understands
the terms of the Plan, the Certificate, and this Agreement and agrees to be bound by their terms and conditions. The Participant acknowledges
that there may be adverse tax consequences on the vesting and settlement of the Restricted Stock Units and any Dividend Equivalents and
on disposition of any Shares received on settlement of the Restricted Stock Units, and that the Participant should consult a tax advisor
before such time. The Participant agrees to sign such additional documentation as the Company may reasonably require from time to time.
(b) Compliance
with Securities Laws. The Participant understands and acknowledges that, notwithstanding any other provision of the Agreement to
the contrary, the issuance and holding of Shares is expressly conditioned on compliance with the Securities Act and all applicable federal,
state, and foreign securities laws. The Participant agrees to cooperate with the Company to ensure compliance with such laws.
11. No
Interest in Company Assets. All amounts credited to the Participant’s Restricted Stock Unit Account under this Agreement will
continue for all purposes to be part of the general assets of the Company. The Participant’s interest in the Restricted Stock Unit
Account will make the Participant only a general, unsecured creditor of the Company.
12. No
Stockholder Rights before Issuance. The Participant will have no right, title, or interest in, nor be entitled to vote or to receive
distributions in respect of, nor otherwise be considered the owner of, any of the Shares covered by the Restricted Stock Units until
the Shares are issued in accordance with Section 5.
13. General
Terms.
(a) Interpretation.
Any dispute regarding the interpretation of this Agreement must be submitted by the Participant or the Company to the Administrator for
review. The Administrator’s resolution of such dispute will be final, binding, and conclusive on the Company, the Participant,
and all other Persons with any interests related to this Award.
(b) Entire
Agreement. This Agreement, the Certificate and the Plan constitute the entire agreement of the parties and supersede all prior undertakings
and agreements with respect to the subject matter hereof. In the event of a conflict or inconsistency between the terms and conditions
of this Agreement, the Certificate and the Plan, the Plan will govern.
Suncrete, Inc. 2026 Omnibus Incentive Plan
Restricted Stock Unit Award Agreement
Page 4
(c) Modification.
This Agreement may be modified only in writing signed by both parties.
(d) Notices.
Any notice required under this Agreement to be delivered to the Company must be in writing and addressed to the Corporate Secretary of
the Company at its principal corporate offices. Any notice required to be given or delivered to the Participant must be in writing and
addressed to the Participant at the address indicated on the Certificate or to such other address as the Participant designates in writing
to the Company. All notices will be deemed to have been delivered: (i) on personal delivery, (ii) five days after deposit in
the United States mail by certified or registered mail (return receipt requested), (iii) two business days after deposit with any
return receipt express courier (prepaid) or (iv) one business day after transmission by fax or email.
(e) Successors
and Assigns. The Company may assign any of its rights under this Agreement. This Agreement will be binding on and inure to the benefit
of the successors and assigns of the Company. Subject to the restrictions on transfer set forth herein and in the Plan, this Agreement
is binding on the Participant and the Participant’s heirs, executors, administrators, legal representatives, successors, and assigns.
(f) Governing
Law. This Agreement is governed by and to be construed in accordance with the laws of the State of Delaware without giving effect
to its conflict of law principles. If any provision of this Agreement is determined by a court of law to be illegal or unenforceable,
then that provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable
in accordance with their respective terms.
(g) Headings.
The headings that are used in this Agreement are used for reference and convenience purposes only and do not constitute substantive matters
to be considered in construing the terms and provisions of this Agreement.
(h) Gender
and Number. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the
singular number shall be held to include the plural, and vice versa, unless the context requires otherwise.
(i) Section 409A.
The Award is intended to be exempt from or comply with the requirements of Section 409A of the Code and the rules and regulations
issued thereunder (“Section 409A”) and shall be construed accordingly. To the extent required to comply with
Section 409A, for purposes of this Agreement, Change in Control shall be limited to a “change in control event” as defined
in Section 409A and cessation of Continuous Service shall be limited to a “separation from service” as defined in Section 409A.
Notwithstanding any other provision of this Agreement, the Certificate, or the Plan to the contrary, with respect to any payments and
benefits to which Section 409A applies, if the Participant is a “specified employee,” within the meaning of Section 409A,
then to the extent necessary to avoid subjecting the Participant to the imposition of any additional tax under Section 409A, amounts
that would otherwise be payable during the six-month period immediately following the Participant’s “separation from service,”
within the meaning of Section 409A(a)(2)(A)(i), shall not be paid to the Participant during such period, but shall instead be accumulated
and paid to the Participant (or, in the event of the Participant’s death, the Participant’s estate) in a lump sum on the
first business day after the earlier of the date that is six months following the Participant’s separation from service or the
Participant’s death. Each payment hereunder shall be treated for all purposes as a separate payment.
Suncrete, Inc. 2026 Omnibus Incentive Plan
Restricted Stock Unit Award Agreement
Page 5
EX-10.19 — EXHIBIT 10.19
EX-10.19
Filename: tm2611641d1_ex10-19.htm · Sequence: 17
Exhibit 10.19
CERTAIN
INFORMATION, MARKED IN THIS EXHIBIT WITH BRACKETS, HAS BEEN EXCLUDED FROM THIS EXHIBIT IN RELIANCE ON REGULATION S-K, ITEM 601(B)(10)(IV) BECAUSE
SUCH INFORMATION IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS CONFIDENTIAL.
Execution Version
CONSENT AND SECOND AMENDMENT TO CREDIT AGREEMENT
AND
FIRST AMENDMENT TO SECURITY AND PLEDGE AGREEMENT
THIS CONSENT AND SECOND AMENDMENT
TO CREDIT AGREEMENT AND FIRST AMENDMENT TO SECURITY AND PLEDGE AGREEMENT (this “Amendment”), dated as of March 25,
2026 (the “Second Amendment Signing Date”), by and among Concrete Partners, LLC, a Delaware limited liability company
(the “Borrower”), the Guarantors, the banks listed on the signature pages hereof, and BANK OF AMERICA, N.A.,
as Administrative Agent, Swingline Lender and L/C Issuer (in its capacity as Administrative Agent, the “Administrative Agent”).
BACKGROUND
A. The
Borrower, the Lenders, the Guarantors and the Administrative Agent are parties to that certain Credit Agreement, dated as of July 29,
2024, as amended by that certain First Amendment and Commitment Increase to Credit Agreement, dated as of October 17, 2025 (as amended,
modified or supplemented as of the Second Amendment Signing Date, prior to giving effect to the amendments set forth in Sections 2 and
3 hereof, the “Existing Credit Agreement” and as further amended, modified or supplemented as of the Second Amendment Effective
Date, the “Amended Credit Agreement”; the term “Credit Agreement” shall mean either the Existing
Credit Agreement or the Amended Credit Agreement, as applicable; and the terms defined in the Credit Agreement and not otherwise defined
herein shall be used herein as defined in the Credit Agreement).
B. The
Borrower advised the Administrative Agent that Holdings has entered into that certain Business Combination Agreement, dated as of October 9,
2025, by and among Holdings, Haymaker Acquisition Corp. 4 (“SPAC”), Haymaker Merger Sub I, Inc. (“Merger
I Sub”), Haymaker Merger Sub II, LLC (“Merger II Sub”) and Suncrete, Inc. (“Pubco”)
(as amended, restated, supplemented or otherwise modified from time to time, the “De-SPAC Combination Agreement”).
C. Upon
the terms and conditions of the De-SPAC Combination Agreement, on or about the De-SPAC Closing Date (as defined in the De-SPAC Combination
Agreement), (i) SPAC will transfer by way of continuation out of its jurisdiction of incorporation from the Cayman Islands and domesticate
into the State of Delaware (the “Domestication”); (ii) immediately following the Domestication, Merger I Sub
will merge with and into SPAC (the “Initial Merger”), with SPAC surviving the Initial Merger as a wholly owned subsidiary
of Pubco; and (iii) immediately following the Initial Merger, Merger II Sub will merge with and into Holdings (the “Acquisition
Merger” and, together with the Initial Merger, the “Mergers”, and together with the Domestication and all
other transactions contemplated by the De-SPAC Combination Agreement, and as expressly described in the Amended Credit Agreement and
this Amendment with respect to such transactions, the “De-SPAC Transaction”), with Holdings surviving the Acquisition
Merger as a wholly owned subsidiary of Pubco.
D. The
Borrower, the Grantors party thereto (as defined therein), and the Administrative Agent are parties to that certain Security and Pledge
Agreement, dated as of July 29, 2024 (as amended, modified, or supplemented, the “Security Agreement”).
E. The
Borrower has requested that the Required Lenders (i) consent to the De-SPAC Transaction and (ii) amend the Existing Credit
Agreement and Security Agreement in connection therewith, as more fully set forth herein.
NOW, THEREFORE, in consideration
of the covenants, conditions and agreements hereafter set forth, and for other good and valuable consideration, the receipt and adequacy
of which are all hereby acknowledged, the parties hereto covenant and agree as follows:
1. CONSENT.
Subject to the terms and conditions set forth herein, on the Second Amendment Signing Date, the Lenders party hereto (which constitute
Required Lenders) hereby:
(i) consent to the consummation
of the De-SPAC Transaction, including the Domestication, the Initial Merger, and the Acquisition Merger, and performance of the De-SPAC
Combination Agreement and all schedules, exhibits and ancillary agreements thereto;
(ii) consent to the amendment
of the Management Agreement in the form attached as Exhibit E to the De-SPAC Combination Agreement;
(iii) consent to the redemption
and cancellation of the Senior Preferred Equity pursuant to Section 3.01(b)(iii) of the De-SPAC Combination Agreement, so long
as any payment made in connection with such cancellation and redemption is comprised solely of proceeds and/or issuances made in connection
with the De-SPAC Transaction;
(iv) consent to the cancellation
and conversion of certain other Equity Interests of Holdings in accordance with Section 3.01 of the De-SPAC Combination Agreement;
(v) consent to the issuance of
the Dothan Independent Closing Shares, the Dothan Founder Shares (as each such term is defined in the De-SPAC Combination Agreement)
and all other issuances of Equity Interests necessary or desirable to consummate the in accordance with the De-SPAC Combination Agreement,
including, without limitation the adoption of and issuances pursuant to the Omnibus Incentive Plan and the ESPP (as each such term is
defined in the De-SPAC Combination Agreement);
(vi) consent to the PIPE Investment
(as defined in the De-SPAC Combination Agreement) and any additional shares issued on substantially similar terms as the PIPE Investment
through the De-SPAC Closing Date, pursuant to which certain investors shall subscribe for and purchase shares of Class A common
stock of Pubco, in accordance with the Subscription Agreements referenced in the De-SPAC Combination Agreement;
(viii) consent to the adoption
and filing of any amendments to the organizational documents of any Loan Party as may be required to consummate the De-SPAC Transaction,
including, without limitation, (y) the adoption of the Amended and Restated Certificate of Incorporation of Suncrete and the Amended
and Restated Bylaws of Suncrete, substantially in the forms attached as Exhibits A and B to the De-SPAC Combination Agreement, and (z) the
adoption of the Second Amended and Restated Limited Liability Company Agreement of Holdings;
Consent and Second Amendment to Credit Agreement and First Amendment to Pledge and Security Agreement – Page 2
(ix) consent to Holdings and SPAC
entering into and performing their respective obligations under one or more non-redemption agreements in connection with the De-SPAC
Transaction by and among Holdings and/or SPAC and certain shareholders wherein Holdings and/or SPAC may make payments or other exchange
of one-time cash or non-cash consideration to such shareholders in exchange for, among other things, such shareholders waiving their
redemption rights on and prior to the De-SPAC Closing Date (as defined in the De-SPAC Combination Agreement) as set forth in such agreements,
provided that such consideration shall not exceed $10,000,000 in the aggregate (or such higher figure as Administrative Agent may agree
in its sole discretion); and
(x) consent to any other actions
reasonably necessary or appropriate to consummate the De-SPAC Transaction in accordance with the terms of the De-SPAC Combination Agreement.
Notwithstanding the foregoing, the
provisions of this Section 1 shall automatically terminate and be of no further force or effect if the De-SPAC Transaction shall
not have been consummated on or before June 30, 2026.
2. AMENDMENTS
TO CREDIT AGREEMENT. Subject to the terms and conditions set forth in Section 5(b) below, as of the Second Amendment Effective
Date,
(a) the
Existing Credit Agreement (excluding the Schedules and Exhibits thereto) is hereby amended in its entirety and replaced with the document
attached hereto as Annex I.
(b) Exhibit C
to the Existing Credit Agreement is hereby amended in its entirety and replaced with the form of Exhibit C attached to Annex
II.
3. AMENDMENTS
TO SECURITY AGREEMENT. Subject to the terms and conditions set forth in Section 5(b) below, as of the Second Amendment
Effective Date, the first paragraph of the definition of “Pledged Equity” set forth in Section 1 of the Security Agreement
is hereby amended and restated to read as follows:
“Pledged
Equity” means, with respect to each Grantor, 100% of the issued and outstanding Equity Interests of each Subsidiary of Pubco
that is directly and wholly-owned by such Grantor, including the Equity Interests of the Subsidiaries owned by such Grantor as set forth
on Schedule 5.21(f) to the Credit Agreement (as updated from time to time in accordance with the Credit Agreement), in each case
together with the certificates (or other agreements or instruments), if any, representing such shares, and all options and other rights,
contractual or otherwise, with respect thereto, including, but not limited to, the following:
Consent and Second Amendment to Credit Agreement and First Amendment to Pledge and Security Agreement – Page 3
4. REPRESENTATIONS
AND WARRANTIES TRUE; NO EVENT OF DEFAULT.
By its execution and delivery hereof, each Loan
Party represents and warrants that, as of the Second Amendment Signing Date:
(a) prior
to giving effect to the amendments set forth in Sections 2 and 3 hereof, the representations and warranties of the Borrower and each
other Loan Party contained in the Existing Credit Agreement and the other Loan Documents that are subject to materiality or Material
Adverse Effect qualifications are true and correct in all respects on and as of the Second Amendment Signing Date, as made on and as
of such date, and the representations and warranties contained in the Existing Credit Agreement and the other Loan Documents that are
not subject to materiality or Material Adverse Effect qualifications are true and correct in all material respects on and as of the Second
Amendment Signing Date, as made on and as of such date, except (i) in each case to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and (ii) that the representations
and warranties contained in Sections 5.05(a) and (b) of the Existing Credit Agreement shall be deemed to
refer to the most recent financial statements furnished pursuant to Sections 6.01(a) and (b), respectively, of
the Existing Credit Agreement;
(b) no
event has occurred and is continuing which constitutes a Default or Event of Default;
(c) (i) the
Borrower and the other Loan Parties have the full power and authority to execute and deliver this Amendment; (ii) this Amendment
has been duly executed and delivered by the Borrower and the other Loan Parties and (iii) this Amendment and the Existing Credit
Agreement, constitute the legal, valid and binding obligations of the Loan Parties, enforceable in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and
subject to general principals of equity;
(d) neither
the execution, delivery and performance of this Amendment or the Existing Credit Agreement, prior to giving effect to the amendments
set forth in Sections 2 and 3 hereof, will (i) contravene the terms of any of the Loan Parties’ Organization Documents; (ii) conflict
with or result in any breach or contravention of, or the creation of (or the requirement to create) any Lien under, or require any payment
to be made under (A) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such
Person or any of its Subsidiaries, or (B) any order, injunction, writ or decree of any Governmental Authority or any arbitral award
to which such Person or its property is subject; or (iii) violate any Applicable Law; and
By its execution and delivery
hereof, each Loan Party represents and warrants that, as of the Second Amendment Effective Date:
(e) the
representations and warranties of the Borrower and each other Loan Party contained in the Credit Agreement and the other Loan Documents
that are subject to materiality or Material Adverse Effect qualifications are true and correct in all respects on and as of the Second
Amendment Effective Date, as made on and as of such date, and the representations and warranties contained in the Credit Agreement and
the other Loan Documents that are not subject to materiality or Material Adverse Effect qualifications are true and correct in all material
respects on and as of the Second Amendment Effective Date, as made on and as of such date, except (i) in each case to the extent
that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such
earlier date, and (ii) that the representations and warranties contained in Sections 5.05(a) and (b) of
the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Sections 6.01(a) and
(b), respectively, of the Credit Agreement;
Consent and Second Amendment to Credit Agreement and First Amendment to Pledge and Security Agreement – Page 4
(f) no
event has occurred and is continuing which constitutes a Default or Event of Default;
(g) (i) the
Borrower and the other Loan Parties have the full power and authority to execute and deliver this Amendment; (ii) this Amendment
has been duly executed and delivered by the Borrower and the other Loan Parties and (iii) this Amendment and the Credit Agreement,
as amended hereby constitute the legal, valid and binding obligations of the Loan Parties, enforceable in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally
and subject to general principals of equity;
(h) neither
the execution, delivery and performance of this Amendment or the Credit Agreement, as amended hereby, nor the consummation of any transactions
contemplated herein or therein, will (i) contravene the terms of any of the Loan Parties’ Organization Documents; (ii) conflict
with or result in any breach or contravention of, or the creation of (or the requirement to create) any Lien under, or require any payment
to be made under (A) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such
Person or any of its Subsidiaries, or (B) any order, injunction, writ or decree of any Governmental Authority or any arbitral award
to which such Person or its property is subject; or (iii) violate any Applicable Law; and
(i) no
approval, consent, exemption, authorization or other action by, notice to, or filing with, any Governmental Authority or other Person
not previously obtained is necessary or required in connection with (i) the execution, delivery or performance by, or enforcement
against, any Loan Party of this Amendment or (ii) the consummation of the De-SPAC Transaction.
5. CONDITIONS
OF THE SECOND AMENDMENT SIGNING DATE AND SECOND AMENDMENT EFFECTIVE DATE.
(a) The
effectiveness of this Amendment (other than the amendments set forth in Sections 2 and 3 hereof) is subject to the satisfaction of the
following conditions and this Amendment shall become effective at the time at which such conditions are satisfied (such date, the “Second
Amendment Signing Date”):
(i) the
Administrative Agent shall have received counterparts of this Amendment executed by each Loan Party and the Required Lenders;
(ii) the
representations and warranties set forth in Section 4(a) – (d) of this Amendment shall be true and correct; and
Consent and Second Amendment to Credit Agreement and First Amendment to Pledge and Security Agreement – Page 5
(iii) the
Administrative Agent shall have received (i) a certificate of the Borrower dated as of the Second Amendment Signing Date (in sufficient
copies for each Lender) signed by a Responsible Officer of the Borrower (A) certifying and attaching the resolutions adopted by
the Borrower approving the Amendment and authorizing the execution, delivery and performance of this Amendment, and (B) certifying
that, prior to giving effect to the amendments set forth in Sections 2 and 3 hereof, (x) the representations and warranties contained
in Article V of the Existing Credit Agreement and the other Loan Documents that are subject to materiality and Material Adverse
Effect qualifications are true and correct in all respects and the representations and warranties contained in Article V
of the Existing Credit Agreement and the other Loan Documents that are not subject to materiality or Material Adverse Effect qualifications
are true and correct in all material respects, on and as of the Second Amendment Signing Date, except to the extent that such representations
and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that
the representations and warranties contained in Sections 5.05(a) and (b) of the Credit Agreement shall be
deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b) of the Credit
Agreement, respectively, and (y) no Default exists and (ii) a certificate of each other Loan Party dated as of the Second Amendment
Signing Date (in sufficient copies for each Lender) signed by a Responsible Officer of each such Loan Party certifying and attaching
the resolutions adopted by each such Loan Party consenting to the Amendment and authorizing the execution, delivery and performance of
this Amendment; and
(b) The
effectiveness of the amendments set forth in Section 2 and 3 of this Amendment are subject to the satisfaction of the following
conditions and shall be effective at the time at which such conditions are satisfied (such date, the “Second Amendment Effective
Date”):
(i) the
Administrative Agent shall have received (i) a certificate of the Borrower dated as of the Second Amendment Effective Date (in sufficient
copies for each Lender) signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the amendments
set forth in Section 2 and 3 of this Amendment, (x) the representations and warranties contained in Article V of
the Credit Agreement and the other Loan Documents that are subject to materiality and Material Adverse Effect qualifications are true
and correct in all respects and the representations and warranties contained in Article V of the Credit Agreement and the
other Loan Documents that are not subject to materiality or Material Adverse Effect qualifications are true and correct in all material
respects, on and as of the Second Amendment Effective Date, except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct as of such earlier date, and except that the representations and warranties
contained in Sections 5.05(a) and (b) of the Credit Agreement shall be deemed to refer to the most recent
statements furnished pursuant to Sections 6.01(a) and (b) of the Credit Agreement, respectively, (y) no
Default exists and (z) all other representations and warranties set forth in Section 4 of this Amendment are true and correct;
(ii) the
Administrative Agent shall have received a favorable opinion of counsel to the Borrower covering the matters set forth in Sections 4(g),
4(h) (including no-conflict with the De-SPAC Combination Agreement and all documents delivered in connection therewith) and Section 4(i) hereof;
Consent and Second Amendment to Credit Agreement and First Amendment to Pledge and Security Agreement – Page 6
(iii) the
Administrative Agent shall have received the following with respect to Pubco and SPAC: (1) a Joinder Agreement executed by a Responsible
Officer; (2) an Officer’s Certificate, certifying as to (A) the Organization Documents of such entity (which, to the
extent filed with a Governmental Authority, shall be certified as of a recent date by such Governmental Authority), (B) the resolutions
of the governing body of such entity, (C) the good standing, existence or its equivalent of such entity, and (D) the incumbency
(including specimen signatures) of the Responsible Officers of such entity; (3) copies of insurance policies, declaration pages,
certificates, and endorsements of insurance or insurance binders evidencing liability, casualty, property, terrorism and business interruption
insurance with respect to such entities meeting the requirements set forth herein or in the Collateral Documents or as required by the
Administrative Agent; (4) the Administrative Agent shall have received completed UCC financing statements for each appropriate jurisdiction
as is necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative Agent’s security interest in
the Collateral of the Pubco and SPAC; and (5) updates to Schedules 5.10, 5.12, 5.20(a), 5.20(b), 5.21(b)(i),
5.21(b)(ii), 5.21(c), 5.21(d)(i), 5.21(d)(ii), 5.21(e), 5.21(f), 5.21(g) and 5.21(h) in
accordance with Section 6.14 of the Credit Agreement.
(iv) the
Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, (i) (A) searches
of UCC filings in the jurisdiction of incorporation or formation, as applicable, of Pubco and SPAC, copies of the financing statements
on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens and (B) tax lien, judgment and bankruptcy
searches on Pubco and SPAC, and (ii) searches of ownership of Intellectual Property of Pubco and SPAC in the appropriate governmental
offices and such patent/trademark/copyright filings as requested by the Administrative Agent in order to perfect the Administrative Agent’s
security interest in such Collateral;
(v) the
Administrative Agent shall have received a Solvency Certificate signed by a Responsible Officer of the Borrower as to the financial condition,
solvency and related matters of the Pubco and its Subsidiaries, after giving effect to this Amendment and the transactions contemplated
hereby;
(vi) upon
the reasonable request of any Lender made at least seven (7) days prior to the Second Amendment Effective Date, the Borrower shall
have provided to such Lender at least three (3) Business Days prior to the Second Amendment Effective Date, and such Lender shall
be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer”
and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act, and any Loan Party that qualifies
as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to each Lender that so requests,
a Beneficial Ownership Certification in relation to such Loan Party;
(vii) the
Administrative Agent shall have received evidence that all members, boards of directors, governmental, shareholder and third party consents
and approvals necessary, or, in the opinion of the Administrative Agent, desirable, in connection with (i) this Amendment or the
Credit Agreement, as amended hereby, (ii) the consummation of the De-SPAC Transactions pursuant to the De-SPAC Combination Agreement
and (iii) any transactions contemplated herein or therein, have been obtained, and all applicable waiting periods shall have expired
without any action being taken by any authority that could restrain, prevent or impose any material adverse condition on the Loan Parties
and their Subsidiaries or such transactions, or that could seek or threaten any of the foregoing, and no law or regulation shall be applicable
which, in the reasonable judgment of the Administrative Agent, could have such effect;
Consent and Second Amendment to Credit Agreement and First Amendment to Pledge and Security Agreement – Page 7
(viii) the
Administrative Agent shall have received executed copies of the De-SPAC Combination Agreement (and all schedules thereto), and all material
Ancillary Agreements (as defined in the De-SPAC Combination Agreement), which in each case shall be form and substance reasonably satisfactory
to Administrative Agent. All conditions precedent to the De-SPAC Transaction shall have been met and the transactions under the De-SPAC
Combination Agreement shall have been consummated in accordance with all applicable requirements of Law and the terms of the De-SPAC
Combination Agreement, as applicable (without any amendment, modification or waiver of any of the provisions thereof that would be materially
adverse to the Lenders or Administrative Agent without the prior written consent of Administrative Agent);
(ix) the
Administrative Agent shall have received an amended and restated Management Fee Subordination Agreement executed by the Management Entity,
Borrower and Pubco, in form and substance satisfactory to the Administrative Agent;
(x) unless
waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative
Agent directly to such counsel to the extent invoiced prior to or on the Second Amendment Effective Date;
(xi) since
December 31, 2024, there shall not have occurred any event or condition that has had or could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect;
(xii) the
Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent and its counsel, such other
documents, certificates and instruments as the Administrative Agent shall reasonably require;
(xiii) the
Second Amendment Signing Date shall have occurred; and
(xiv) the
De-SPAC Transaction shall have been consummated prior to June 30, 2026.
6. GUARANTOR’S
ACKNOWLEDGMENT. By signing below, each Guarantor (i) acknowledges, consents and agrees to the execution, delivery and performance
by the Borrower of this Amendment, (ii) ratifies and confirms all of its obligations and liabilities under the Guaranty and the
Loan Documents to which it is a party and ratifies and confirms that such obligations and liabilities extend to and continue in effect
with respect to, and continue to guarantee and secure the Secured Obligations; (iii) acknowledges and agrees that its obligations
in respect of its Guaranty are not released, diminished, waived, modified, impaired or affected in any manner by this Amendment, or any
of the provisions contemplated herein and (iv) acknowledges and agrees that as of the Second Amendment Signing Date and the Second
Amendment Effective Date, such Guarantor (a) does not have any claim or cause of action against the Administrative Agent or any
Lender (or any of their respective directors, officers, employees, agents, attorneys or other representatives) under or in connection
with its Guaranty and the other Loan Documents to which it is a party and (b) has no offsets against, or defenses or counterclaims
to, its Guaranty.
Consent and Second Amendment to Credit Agreement and First Amendment to Pledge and Security Agreement – Page 8
7. REFERENCE
TO THE CREDIT AGREEMENT.
(a) On
and after the Second Amendment Signing Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”,
or words of like import shall mean and be a reference to the Credit Agreement, as amended by this Amendment prior to giving effect to
the amendments set forth in Sections 2 and 3 hereof. On and after the Second Amendment Effective Date, each reference in the Credit Agreement
to “this Agreement”, “hereunder”, or words of like import shall mean and be a reference to the Credit Agreement,
as amended by this Amendment.
(b) Except
as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise
affect the rights or remedies of the Administrative Agent or the Lenders under the Credit Agreement or any of the other Loan Documents,
and shall not alter, modify, amend, or in any way affect the terms, conditions, obligations, covenants, or agreements contained in the
Credit Agreement or the other Loan Documents, all of which are hereby ratified and affirmed in all respects and shall continue in full
force and effect.
8. COSTS
AND EXPENSES. The Borrower shall be obligated to pay the costs and expenses of the Administrative Agent in connection with the preparation,
reproduction, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder in the manner
and subject to the limitations set forth in Section 11.04 of the Credit Agreement.
9. EXECUTION
IN COUNTERPARTS. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute
but one and the same instrument. For purposes of this Amendment, a counterpart hereof (or signature page thereto) signed and transmitted
by any Person party hereto to the Administrative Agent (or its counsel) by facsimile machine, telecopier or electronic mail is to be
treated as an original. The signature of such Person thereon, for purposes hereof, is to be considered as an original signature, and
the counterpart (or signature page thereto) so transmitted is to be considered to have the same binding effect as an original signature
on an original document.
10. GOVERNING
LAW; BINDING EFFECT. THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN)
AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING
TO THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. This Amendment
shall be binding upon the Borrower and each Lender and their respective successors and assigns.
Consent and Second Amendment to Credit Agreement and First Amendment to Pledge and Security Agreement – Page 9
11. HEADINGS.
Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
12. ENTIRE
AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AS TO THE SUBJECT MATTER THEREIN AND HEREIN AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS BETWEEN THE PARTIES.
REMAINDER
OF PAGE LEFT INTENTIONALLY BLANK
Consent and Second Amendment to Credit Agreement and First Amendment to Pledge and Security Agreement – Page 10
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
BORROWER:
CONCRETE
PARTNERS, LLC
By:
/s/
Tommy Wentroth
Name:
Tommy Wentroth
Title:
Chief Financial Officer
HOLDINGS:
CONCRETE
PARTNERS HOLDING, LLC
By:
/s/
Tommy Wentroth
Name:
Tommy Wentroth
Title:
Chief Financial Officer
[Signature Page to Consent and Second Amendment
to Credit Agreement and First Amendment to Pledge and Security Agreement (Concrete Partners)]
GUARANTORS:
EAGLE
CONCRETE HOLDINGS, LLC
By:
/s/
Tommy Wentroth
Name:
Tommy Wentroth
Title:
Chief Financial Officer
EAGLE
REDI-MIX CONCRETE, LLC
By:
/s/
Tommy Wentroth
Name:
Tommy Wentroth
Title:
Chief Financial Officer
RAM
TRANSPORTATION, LLC
By:
/s/
Tommy Wentroth
Name:
Tommy Wentroth
Title:
Chief Financial Officer
SCHWARZ
SAND, LLC
By:
/s/
Tommy Wentroth
Name:
Tommy Wentroth
Title:
Chief Financial Officer
[Signature Page to Consent and Second Amendment
to Credit Agreement and First Amendment to Pledge and Security Agreement (Concrete Partners)]
BANK
OF AMERICA, N.A.,
as
Administrative Agent
By:
/s/
Carolyn LaBatte-Leavitt
Name:
Carolyn LaBatte-Leavitt
Title:
Vice President
[Signature Page to Consent and Second Amendment
to Credit Agreement and First Amendment to Pledge and Security Agreement (Concrete Partners)]
BANK
OF AMERICA, N.A.,
as
a Lender, L/C Issuer and Swingline Lender
By:
/s/
Desaree G. Lopez
Name:
Desaree G. Lopez
Title:
Senior Vice President
[Signature Page to Consent and Second Amendment
to Credit Agreement and First Amendment to Pledge and Security Agreement (Concrete Partners)]
PNC
BANK, NATIONAL ASSOCIATION,
as
a Lender
By:
/s/
Jacob Mandel
Name:
Jacob Mandel
Title:
Vice President
[Signature Page to Consent and Second Amendment
to Credit Agreement and First Amendment to Pledge and Security Agreement (Concrete Partners)]
CAPITAL
ONE, NATIONAL ASSOCIATION,
as
a Lender
By:
/s/
Jerry Huang
Name:
Jerry Huang
Title:
Duly Authorized Signatory
[Signature Page to Consent and Second Amendment
to Credit Agreement and First Amendment to Pledge and Security Agreement (Concrete Partners)]
SUNFLOWER
BANK, N.A.,
as
a Lender
By:
/s/
Bradley Haynes
Name:
Bradley Haynes
Title:
Senior Vice President
[Signature Page to Consent and Second Amendment
to Credit Agreement and First Amendment to Pledge and Security Agreement (Concrete Partners)]
TEXAS
REGIONAL BANK,
as
a Lender
By:
/s/
Shannon Bettis
Name:
Shannon Bettis
Title:
SVP Commercial Banking
[Signature Page to Consent and Second Amendment
to Credit Agreement and First Amendment to Pledge and Security Agreement (Concrete Partners)]
UMB
BANK, N.A.
as
a Lender
By:
/s/
Nathaniel Jacks
Name:
Nathaniel Jacks
Title:
SVP
[Signature Page to Consent and Second Amendment
to Credit Agreement and First Amendment to Pledge and Security Agreement (Concrete Partners)]
Annex I
Conformed Copy of the Credit Agreement
Execution Version
Published CUSIP Numbers:
Deal: 20670EAA4
Revolver: 20670EAB2
Term: 20670EAC0
CREDIT AGREEMENT
Dated as of July 29, 2024
among
SUNCRETE,
INC, as Pubco and a Guarantor
CONCRETE PARTNERS HOLDING, LLC, as Holdings and
a Guarantor,
CONCRETE PARTNERS, LLC, as the Borrower,
THE SUBSIDIARIES OF THE BORROWER PARTY HERETO,
as Guarantors,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swingline Lender and
L/C Issuer,
and
THE LENDERS PARTY HERETO
PNC Bank,
National Association, as Syndicationa
Co-Syndication Agent,
UMB
BANK, N.A. and SUNFLOWER BANK, N.A., as Documentation AgentCo-Documentation
Agents,
BOFA SECURITIES, INC.,
as a Joint Lead Arranger and as Sole Bookrunner,
PNC CAPITAL MARKETS LLC, as a Joint Lead
Arranger
and
CAPITAL ONE, NATIONAL ASSOCIATION,
as a Joint Lead
Arranger and as Syndicationa
Co-Syndication Agent
Annex
I to Consent and Second Amendment to Credit Agreement
Execution Version
as
amended by that certain First Amendment and Commitment Increase to Credit Agreement, dated as of October 17, 2025 and that certain
Consent and Second Amendment to Credit Agreement, dated as of March 25, 2026
TABLE
OF CONTENTS
Page
Article I DEFINITIONS AND ACCOUNTING
TERMS
1
1.01
Defined Terms
1
1.02
Other Interpretive Provisions
3946
1.03
Accounting Terms
4047
1.04
Rounding
4149
1.05
Times of Day
4149
1.06
Letter of Credit Amounts
4149
1.07
Interest Rates
4149
1.08
UCC Terms
4250
1.09
Limited Condition Acquisitions
50
Article II COMMITMENTS AND CREDIT
EXTENSIONS
4251
2.01
Loans
4251
2.02
Borrowings, Conversions and Continuations of Loans
4352
2.03
Letters of Credit
4453
2.04
Swingline Loans
5363
2.05
Prepayments
5566
2.06
Termination or Reduction of Commitments
5869
2.07
Repayment of Loans
5970
2.08
Interest and Default Rate
5971
2.09
Fees
6072
2.10
Computation of Interest and Fees; Retroactive Adjustments
of Applicable Rate
6172
2.11
Evidence of Debt
6173
2.12
Payments Generally; Administrative Agent’s Clawback
6274
2.13
Sharing of Payments by Lenders
6476
2.14
Cash Collateral
6577
2.15
Defaulting Lenders
6678
2.16
Increase in Revolving
FacilityCommitments
6880
Article III TAXES, YIELD PROTECTION
AND ILLEGALITY
6985
3.01
Taxes
6985
3.02
Illegality
7389
3.03
Inability to Determine Rates
7390
3.04
Increased Costs
7592
3.05
Compensation for Losses
7793
3.06
Mitigation Obligations; Replacement of Lenders
7794
3.07
Survival
7894
i
Article IV CONDITIONS PRECEDENT TO
CREDIT EXTENSIONS
7894
4.01
Conditions of Initial Credit Extension
7894
4.02
Conditions to all Credit Extensions
8198
Article V REPRESENTATIONS AND WARRANTIES
8299
5.01
Existence, Qualification and Power
8299
5.02
Authorization; No Contravention
8299
5.03
Governmental Authorization; Other Consents
8299
5.04
Binding Effect
8299
5.05
Financial Statements; No Material Adverse Effect
83100
5.06
Litigation
83101
5.07
No Default
84101
5.08
Ownership of Property
84101
5.09
Environmental Matters
84101
5.10
Insurance
85102
5.11
Taxes
85103
5.12
ERISA Compliance
85103
5.13
Margin Regulations; Investment Company Act
86104
5.14
Disclosure
87104
5.15
Compliance with Laws
87104
5.16
Solvency
87105
5.17
Casualty, Etc.
87105
5.18
Sanctions Concerns and Anti-Corruption Laws
87105
5.19
[Intentionally Omitted]
88105
5.20
Subsidiaries; Equity Interests; Loan Parties
88105
5.21
Collateral Representations
88106
5.22
EEA Financial Institutions
90108
5.23
Covered Entities
90108
5.24
Beneficial Ownership Certification
90108
5.25
Designation as Senior Indebtedness
90108
5.27
Labor Matters
91109
5.28
Closing Date Acquisition Documents
91109
5.29
First Amendment Effective
Date Acquisition Documents
109
Article VI AFFIRMATIVE COVENANTS
92110
6.01
Financial Statements
92110
6.02
Certificates; Other Information
93114
6.03
Notices
96116
6.04
Payment of Obligations
96117
6.05
Preservation of Existence, Etc.
97117
6.06
Maintenance of Properties
97118
6.07
Maintenance of Insurance
97118
6.08
Compliance with Laws
98118
6.09
Books and Records
98119
6.10
Inspection Rights
98119
6.11
Use of Proceeds
99120
6.12
Material Contracts
99120
6.13
Covenant to Guarantee Obligations
99120
6.14
Covenant to Give Security
99121
6.15
Anti-Corruption Laws; Sanctions
100122
6.16
Further Assurances
101122
6.17
Post-Closing Obligations
101122
6.18
First Amendment Effective
Date Post-Closing Obligations
122
6.19
Second Amendment Effective
Date Post-Closing Obligations
122
ii
Article VII NEGATIVE COVENANTS
101122
7.01
Liens
101123
7.02
Indebtedness
103124
7.03
Investments
104128
7.04
Fundamental Changes
105127
7.05
Dispositions
106128
7.06
Restricted Payments
106129
7.07
Change in Nature of Business
108131
7.08
Transactions with Affiliates
108131
7.09
Burdensome Agreements
108132
7.10
Use of Proceeds
108132
7.11
Financial Covenants
108133
7.12
Amendments of Organization Documents; Fiscal Year;
Legal Name, State of Formation; Form of Entity and Accounting Changes
109134
7.13
Sale and Leaseback Transactions
110134
7.14
Subordinated Debt Payments
110135
7.15
Prepayments, Etc. of Indebtedness
110135
7.16
Amendment, Etc. of Indebtedness
110135
7.17
Sanctions
110135
7.18
Anti-Corruption Laws
111135
7.19
Holding Company Status
111136
7.20
Limitation on Disqualified
Equity Interests and Preferred Equity Interests
111137
Article VIII EVENTS OF DEFAULT AND
REMEDIES
112138
8.01
Events of Default
112138
8.02
Remedies upon Event of Default
114141
8.03
Borrower’s Right to Cure
115142
8.04
Application of Funds
116143
Article IX ADMINISTRATIVE AGENT
117144
9.01
Appointment and Authority
117144
9.02
Rights as a Lender
118145
9.03
Exculpatory Provisions
118145
9.04
Reliance by Administrative Agent
119146
9.05
Delegation of Duties
120147
9.06
Resignation of Administrative Agent
120147
9.07
Non-Reliance on Administrative Agent, the Arrangers
and the Other Lenders
121148
9.08
No Other Duties, Etc.
122149
9.09
Administrative Agent May File Proofs of Claim;
Credit Bidding
122149
9.10
Collateral and Guaranty Matters
123151
9.11
Secured Cash Management Agreements and Secured Hedge
Agreements
124151
9.12
Certain ERISA Matters
125152
9.13
Recovery of Erroneous Payments
126153
iii
Article X CONTINUING GUARANTY
126153
10.01
Guaranty
126153
10.02
Rights of Lenders
127154
10.03
Certain Waivers
127154
10.04
Obligations Independent
127154
10.05
Subrogation
127155
10.06
Termination; Reinstatement
128155
10.07
Stay of Acceleration
128155
10.08
Condition of Borrower
128155
10.09
Appointment of Borrower
128155
10.10
Right of Contribution
128156
10.11
Keepwell.
129156
Article XI MISCELLANEOUS
129156
11.01
Amendments, Etc.
129156
11.02
Notices; Effectiveness; Electronic Communications
131159
11.03
No Waiver; Cumulative Remedies; Enforcement
133161
11.04
Expenses; Indemnity; Damage Waiver
134162
11.05
Payments Set Aside
136164
11.06
Successors and Assigns
136164
11.07
Treatment of Certain Information; Confidentiality
141170
11.08
Right of Setoff
142171
11.09
Interest Rate Limitation
143172
11.10
Integration; Effectiveness
143172
11.11
Survival of Representations and Warranties
143172
11.12
Severability
143172
11.13
Replacement of Lenders
144173
11.14
Governing Law; Jurisdiction; Etc.
145174
11.15
Waiver of Jury Trial
146175
11.16
Subordination
146175
11.17
No Advisory or Fiduciary Responsibility
146176
11.18
Electronic Execution; Electronic Records; Counterparts
147176
11.19
USA Patriot Act Notice
148177
11.20
Acknowledgement and Consent to Bail-In of Affected
Financial Institutions
148178
11.21
Acknowledgement Regarding Any Supported QFCs
149178
iv
BORROWER
PREPARED SCHEDULES
Schedule
5.10
Insurance
Schedule
5.12
Pension
Plans
Schedule
5.20(a)
Subsidiaries,
Joint Ventures, Partnerships and Other Equity Investments
Schedule
5.20(b)
Loan
Parties
Schedule
5.21(b)(i)
Intellectual
Property
Schedule
5.21(b)(ii)
Internet
Domain Names
Schedule
5.21(c)
Documents, Instrument,
and Tangible Chattel Paper
Schedule
5.21(d)(i)
Deposit
Accounts & Securities Accounts
Schedule
5.21(d)(ii)
Electronic
Chattel Paper & Letter-of-Credit Rights
Schedule
5.21(e)
Commercial
Tort Claims
Schedule
5.21(f)
Pledged
Equity Interests
Schedule
5.21(g)
Properties
Schedule
5.21(h)
Material
Contracts
Schedule
6.17
Post-Closing
Obligations
Schedule
6.18
First
Amendment Effective Date Post-Closing Obligations
Schedule
6.19
Second
Amendment Effective Date Post-Closing Obligations
Schedule
7.01
Existing
Liens
Schedule
7.02
Existing
Indebtedness
Schedule
7.03
Existing
Investments
ADMINISTRATIVE
AGENT PREPARED SCHEDULES
Schedule
1.01(a)
Certain
Addresses for Notices
Schedule
1.01(b)
Initial
Commitments and Applicable Percentages
EXHIBITS
Exhibit A
Form of
Administrative Questionnaire
Exhibit B
Form of
Assignment and Assumption
Exhibit C
Form of
Compliance Certificate
Exhibit D
Form of
Joinder Agreement
Exhibit E
Form of
Loan Notice
Exhibit F
[Reserved]
Exhibit G
Form of
Revolving Note
Exhibit H
Form of
Secured Party Designation Notice
Exhibit I
Form of
Solvency Certificate
Exhibit J
Form of
Swingline Loan Notice
Exhibit K
Form of
Term Note
Exhibit L
Form of
Officer’s Certificate
Exhibit M
Forms
of U.S. Tax Compliance Certificates
Exhibit N
Form of
Funding Indemnity Letter
Exhibit O
Form of
Landlord Waiver
Exhibit P
Form of
Financial Condition Certificate
Exhibit Q
Form of
Authorization to Share Insurance Information
Exhibit R
Form of
Notice of Loan Prepayment
Exhibit S
Form of
Preferred Equity Subordination Agreement
Exhibit T
Form of
Permitted Acquisition Certificate
v
CREDIT
AGREEMENT
This CREDIT AGREEMENT
is entered into as of July 29, 2024, among Concrete Partners, LLC, a Delaware limited liability company (the “Borrower”),
the Guarantors (defined herein), the Lenders (defined herein), and BANK OF AMERICA, N.A., as Administrative Agent, Swingline Lender and
L/C Issuer.
PRELIMINARY
STATEMENTS:
WHEREAS, the Loan
Parties (as hereinafter defined) have requested that the Lenders, the Swingline Lender and the L/C Issuer make loans and other financial
accommodations to the Loan Parties in an aggregate amount of up to $145,000,000.
WHEREAS, the Lenders,
the Swingline Lender and the L/C Issuer have agreed to make such loans and other financial accommodations to the Loan Parties on the
terms and subject to the conditions set forth herein.
NOW THEREFORE, in
consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
F.
DEFINITIONS AND ACCOUNTING
TERMS
1. Defined
Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
“Acquisition”
means the acquisition, whether through a single transaction or a series of related transactions, of (a) a majority of the Voting
Stock or other controlling ownership interest in another Person (including the purchase of an option, warrant or convertible or similar
type security to acquire such a controlling interest at the time it becomes exercisable by the holder thereof), whether by purchase of
such equity or other ownership interest or upon the exercise of an option or warrant for, or conversion of securities into, such equity
or other ownership interest, or (b) assets of another Person which constitute all or substantially all of the assets of such Person
or of a division, line of business or other business unit of such Person.
“Additional Secured
Obligations” means (a) all obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements
and (b) all costs and expenses incurred in connection with enforcement and collection of the foregoing, including the fees, charges
and disbursements of counsel, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent,
due or to become due, now existing or hereafter arising and including interest, expenses and fees that accrue after the commencement
by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor
in such proceeding, regardless of whether such interest, expenses and fees are allowed claims in such proceeding; provided that
Additional Secured Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor.
“Additional
Term Loans” means the Additional Term Loans made by the First Amendment Incremental Term Lenders to the Borrower pursuant to
Section 2.01(c) on the First Amendment Effective Date.
1
“Administrative
Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor
administrative agent.
“Administrative
Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set
forth on Schedule 1.01(a), or such other address or account as the Administrative Agent may from time to time notify the Borrower
and the Lenders.
“Administrative
Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit A or any other form
approved by the Administrative Agent.
“Affected Financial
Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate”
means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or
is Controlled by or is under common Control with the Person specified.
“Aggregate Commitments”
means the Commitments of all the Lenders.
“Agreement”
means this Credit Agreement, including all schedules, exhibits and annexes hereto.
“Applicable Law”
means, as to any Person, all applicable Laws binding upon such Person or to which such a Person is subject.
“Applicable Percentage”
means (a) in respect of the Term Facility, with respect to any Term Lender at any time, the percentage (carried out to the ninth
decimal place) of the Term Facility represented by (i) on or prior to the Closing Date, such Term
Lender’s Term Commitment at such time and (ii) thereafter, the outstanding principal amount of such Term Lender’s
Term Loans at such time, and (b) in respect of the Revolving Facility, with respect to any Revolving Lender at any time, the percentage
(carried out to the ninth decimal place) of the Revolving Facility represented by such Revolving Lender’s Revolving Commitment
at such time, subject to adjustment as provided in Section 2.15. If the Commitment of all of the Revolving Lenders to make
Revolving Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02,
or if the Revolving Commitments have expired, then the Applicable Percentage of each Revolving Lender in respect of the Revolving Facility
shall be determined based on the Applicable Percentage of such Revolving Lender in respect of Revolving Facility most recently in effect,
giving effect to any subsequent assignments and to any Lender’s status as a Defaulting Lender at the time of determination. The
Applicable Percentage of each Lender in respect of each Facility is set forth opposite the name of such Lender on Schedule 1.01(b) or
in the Assignment and Assumption pursuant to which such Lender becomes a party hereto or in any documentation executed by such Lender
pursuant to Section 2.16, as applicable.
“Applicable Rate”
means, for any day, the rate per annum set forth below opposite the applicable Level then in effect (based on the Consolidated Senior
Leverage Ratio), it being understood that the Applicable Rate for (a) Loans that are Base Rate Loans shall be the percentage set
forth under the column “Loans” and “Base Rate”, (b) Loans that are Term SOFR Loans shall be the percentage
set forth under the column “Loans” and “Term SOFR & Letter of Credit Fee”, (c) the Letter of Credit
Fee shall be the percentage set forth under the column “Loans” and “Term SOFR & Letter of Credit Fee”,
and (d) the commitment fee shall be the percentage set forth under the column “Commitment Fee”:
2
Applicable
Rate
Level
Consolidated
Senior
Leverage Ratio
Term
SOFR &
Letter
of Credit Fee
Base
Rate
Commitment
Fee
1
<
2.00:1.00
2.75 %
1.75 %
0.35 %
2
> 2.00:1.00
but < 2.50:1.00
3.00 %
2.00 %
0.40 %
3
> 2.50:1.00
but < 3.00:1.00
3.25 %
2.25 %
0.45 %
4
> 3.00:1.00
3.50 %
2.50 %
0.50 %
Any increase or decrease
in the Applicable Rate resulting from a change in the Consolidated Senior Leverage Ratio shall become effective as of the first Business
Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(b); provided, however,
that if a Compliance Certificate is not delivered when due in accordance with Section 6.02(b), then, upon the request of
the Required Lenders, Level 4 shall apply, in each case as of the first Business Day after the date on which such Compliance Certificate
was required to have been delivered and in each case shall remain in effect until the first Business Day following the date on which
such Compliance Certificate is delivered whereupon the Applicable Rate shall be adjusted based upon the calculation of the Consolidated
Senior Leverage Ratio contained in such Compliance Certificate.
Notwithstanding anything
to the contrary contained in this definition, (i) the determination of the Applicable Rate for any period shall be subject to the
provisions of Section 2.10(b) and (ii) the initialfrom
and after the First Amendment Effective Date, the Applicable Rate and commitment fee shall be set at Level 4 until the first Business
Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(b) for the Fiscal
Quarter ending September 30, 20242025
to the Administrative Agent. Any adjustment in the Applicable Rate shall be applicable to all Credit Extensions then existing or subsequently
made or issued.
“Applicable Revolving
Percentage” means with respect to any Revolving Lender at any time, such Revolving Lender’s Applicable Percentage
in respect of the Revolving Facility at such time.
“Appropriate
Lender” means, at any time, (a) with respect to any Facility, a Lender that has a Commitment with respect to such
Facility or holds a Loan under such Facility at such time, (b) with respect to the Letter of Credit Sublimit, (i) the L/C Issuer
and (ii) if any Letters of Credit have been issued pursuant to Section 2.03, the Revolving Lenders,
and (c) with respect to the Swingline Sublimit, (i) the Swingline Lender and (ii) if any Swingline Loans are outstanding
pursuant to Section 2.04(a), the Revolving Lenders.
“Approved Fund”
means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate
of an entity that administers or manages a Lender.
3
“Arrangers”
means (a) BofA Securities, Inc., in its capacity as a joint lead arranger and as sole bookrunner, (b) PNC Capital Markets
LLC, in its capacity as a joint lead arranger and (c) Capital One, National Association, in its capacity as a joint lead arranger.
“Assignment and
Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any
party whose consent is required by Section 11.06(b)), and accepted by the Administrative Agent, in substantially the form
of Exhibit B or any other form (including an electronic documentation form generated by use of an electronic platform) approved
by the Administrative Agent.
“Attributable
Indebtedness” means, on any date, (a) in respect of any Capitalized Lease of any Person, the capitalized amount thereof
that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any
Synthetic Lease Obligation, the capitalized amount of the remaining lease or similar payments under the relevant lease or other applicable
agreement or instrument that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such
lease or other agreement or instrument were accounted for as a Capitalized Lease.
“Audited Financial
Statements” means, subject to Section 1.03(e),
the most recent audited Consolidated balance sheet of HoldingsPubco
and its Subsidiaries, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for
such Fiscal Year of HoldingsPubco
and its Subsidiaries, including the notes thereto delivered in accordance with the terms of Section 6.01(a).
“Authorization
to Share Insurance Information” means the authorization substantially in the form of Exhibit Q (or such other
form as required by each of the Loan Party’s insurance companies).
“Auto-Extension
Letter of Credit” has the meaning specified in Section 2.03(b).
“Availability
Period” means, in respect of the Revolving Facility, the period from and including the Closing Date to the earliest
of (i) the Maturity Date, (ii) the date of termination of the Revolving Commitments pursuant to Section 2.06, and
(iii) the date of termination of the Commitment of each Revolving Lender to make Revolving Loans and of the obligation of the L/C
Issuer to make L/C Credit Extensions pursuant to Section 8.02.
“Bail-In
Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of
any liability of an Affected Financial Institution.
“Bail-In
Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU
of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA
Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom,
Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable
in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their
affiliates (other than through liquidation, administration or other insolvency proceedings).
“BALC
Other Permitted Equipment Financing Collateral” means, with respect to any BALC Permitted Equipment Financing, (1) all
parts, attachments, accessories and accessions to, substitutions and replacements for, each item of equipment subject to such BALC Permitted
Equipment Financing; (2) all accounts, chattel paper, and general intangibles arising from or related to any sale, lease, rental
or other disposition of any equipment subject to such BALC Permitted Equipment Financing to third parties, or otherwise resulting from
the possession, use or operation of any such equipment by third parties, including instruments, investment property, deposit accounts,
letter of credit rights, and supporting obligations arising thereunder or in connection therewith; (3) all insurance, warranty and
other claims against third parties with respect to any equipment subject to such BALC Permitted Equipment Financing; (4) all software
and other intellectual property rights used in connection therewith; (5) all proceeds of all of the foregoing, including insurance
proceeds and any proceeds in the form of goods, accounts, chattel paper, documents, instruments, general intangibles, investment property,
deposit accounts, letter of credit rights and supporting obligations; and (6) all books and records regarding the foregoing, in
each case, now existing or hereafter arising.
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“BALC
Permitted Equipment Financing” means that certain Master Loan and Security Agreement, dated as of December 30, 2025, among
Banc of America Leasing & Capital, LLC, as the lender, and Eagle Redi-Mix Concrete, LLC, Ram Transportation, LLC, and Concrete
Partners, LLC as the co-borrowers, as extended and renewed from time to time.
“BANA
Permitted Airplane Financing” means that certain $2,500,000 term loan made pursuant to the Aircraft Term Loan Credit Agreement,
dated January 6, 2026, among the Borrower, Holdings, the other guarantors party thereto, and Bank of America, N.A., as lender, as
extended, renewed or replaced from time to time.
“Bank of America”
means Bank of America, N.A. and its successors.
“Base Rate”
means for any day a fluctuating rate of interest per annum equal to the highest of (a) the Federal Funds Rate plus 0.50%,
(b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate,”
and (c) the Term SOFR plus 1.00%, subject to the interest rate floors set forth therein; provided that if the Base
Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. The “prime rate” is a rate set
by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions
and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.
Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public
announcement of such change. If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.03 hereof,
then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference
to clause (c) above.
“Base Rate Loan”
means a Revolving Loan or a Term Loan that bears interest based on the Base Rate.
“Beneficial Ownership
Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
“Beneficial Ownership
Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan”
means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan”
as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42)
or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan”
or “plan”.
“BHC Act Affiliate”
of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of
such party.
“Borrower”
has the meaning specified in the introductory paragraph hereto.
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“Borrower Materials”
has the meaning specified in Section 6.02.
“Borrowing”
means a Revolving Borrowing, a Swingline Borrowing or a Term Borrowing, as the context may require.
“Business Day”
means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are
in fact closed in, the state where the Administrative Agent’s Office is located.
“Capital Expenditures”
means, with respect to any Person for any period, any expenditure in respect of the purchase or other acquisition of any fixed or capital
asset (excluding normal replacements and maintenance which are properly charged to current operations).
“Capitalized
Lease” means any lease that has been or is required to be, in accordance with GAAP, recorded, classified and accounted
for as a capitalized lease or financing lease.
“Cash Collateralize”
means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuer or Swingline
Lender (as applicable) or the Lenders, as Collateral for L/C Obligations, the Obligations in respect of Swingline Loans, or obligations
of the Revolving Lenders to fund participations in respect of L/C Obligations or Swingline Loans (as the context may require), (a) cash
or deposit account balances, (b) backstop letters of credit entered into on terms, from issuers and in amounts satisfactory to the
Administrative Agent and the L/C Issuer, and/or (c) if the Administrative Agent and the L/C Issuer or Swingline Lender shall agree,
in their sole discretion, other credit support, in each case, in Dollars and pursuant to documentation in form and substance satisfactory
to the Administrative Agent and the L/C Issuer or the Swingline Lender (as applicable). “Cash Collateral” shall
have a meaning correlative to the foregoing and shall include the proceeds of such Cash Collateral and other credit support.
“Cash Equivalents”
means any of the following types of Investments, to the extent owned by the Borrower or any of its Subsidiaries free and clear of all
Liens (other than Permitted Liens):
(a) readily
marketable obligations issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof
having maturities of not more than three hundred sixty days (360) days from the date of acquisition thereof; provided that the
full faith and credit of the United States is pledged in support thereof;
(b) time
deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) (A) is a Lender
or (B) is organized under the laws of the United States, any state thereof or the District of Columbia or is the principal banking
subsidiary of a bank holding company organized under the laws of the United States, any state thereof or the District of Columbia, and
is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as described in clause
(c) of this definition and (iii) has combined capital and surplus of at least $1,000,000,000, in each case with maturities
of not more than one hundred eighty (180) days from the date of acquisition thereof;
(c) commercial
paper issued by any Person organized under the laws of any state of the United States and rated at least “Prime-1” (or the
then equivalent grade) by Moody’s or at least “A-1” (or the then equivalent grade) by S&P, in each case with maturities
of not more than one hundred eighty (180) days from the date of acquisition thereof; and
6
(d) Investments,
classified in accordance with GAAP as current assets of the Borrower or any of its Subsidiaries, in money market investment programs
registered under the Investment Company Act of 1940, which are administered by financial institutions that have the highest rating obtainable
from either Moody’s or S&P, and the portfolios of which are limited solely to Investments of the character, quality and maturity
described in clauses (a), (b) and (c) of this definition.
“Cash Management
Agreement” means any agreement that is not prohibited by the terms hereof to provide treasury or cash management services,
including deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds
transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation
and reporting and trade finance services and other cash management services.
“Cash Management
Bank” means any Person in its capacity as a party to a Cash Management Agreement that, at the time it enters into
a Cash Management Agreement with a Loan Party or any Subsidiary, is a Lender or an Affiliate of a Lender, in its capacity as a party
to such Cash Management Agreement (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender);
provided, however, that for any of the foregoing to be included as a “Secured Cash Management Agreement” on
any date of determination by the Administrative Agent, the applicable Cash Management Bank (other than the Administrative Agent or an
Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice to the Administrative Agent prior to such
date of determination.
“CFC”
means a Person that is a controlled foreign corporation under Section 957 of the Code in which the Borrower or any Loan Party is
a United States shareholder within the meaning of Section 951(b) of the Code.
“Change in Law”
means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation
or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not
having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the
Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection
therewith or in the implementation thereof and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International
Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the
date enacted, adopted, issued or implemented.
“Change of Control”
means an event or series of events by which:
(a) Permitted
Holders shall cease to own and control, of record and beneficially, directly or indirectly, more than 56% of the aggregate ordinary voting
power represented by the issued and outstanding Equity Interests of Holdings on a fully diluted basis (which for this purpose shall exclude
all Equity Interests that have not yet vested); or
(b) Permitted
Holders shall cease to have the ability to elect (either through share ownership or contractual voting rights) a majority of the board
of directors or equivalent governing body of Holdings; or
7
(a) any
"person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity
as trustee, agent or other fiduciary or administrator of any such plan) other than the Permitted Holders becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall
be deemed to have "beneficial ownership" of all securities
that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such
right, an "option right")), directly or indirectly, of 25% or more of the equity securities of Pubco entitled to vote for members
of the board of directors or equivalent governing body of Pubco on a fully-diluted basis (and taking into account all such securities
that such "person" or "group" has the right to acquire pursuant to any option right); or
(b) during
any period of twenty-four (24) consecutive months, a majority of the members of the board of directors or other equivalent governing
body of Pubco, after giving effect to the De-SPAC Transaction, cease to be composed of individuals (i) who were members of that
board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent
governing body was nominated, appointed or approved by individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that
board or other equivalent governing body was nominated, appointed or approved by individuals referred to in clauses (i) and (ii) above
constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; or
(c) any
Person, other than a Permitted Holder, Controls Pubco; or
(d) (c) Holdings
shall ceasePubco ceases to own and control, of record
and beneficially, directly or indirectly, 100% of the Equity Interests of the Borrowerin
each Loan Party (other than Pubco); or
(d) Borrower
shall cease to own and control, of record and beneficially, directly or indirectly, 100% of the Equity Interests of each Subsidiary of
the Borrower.
(e) any
event, transaction or series of transactions resulting with no Equity Interests of Pubco being listed on the NYSE, NASDAQ or any other
U.S. stock exchange or otherwise listed on a public trading market.
For
the avoidance of doubt, the De-SPAC Transaction shall not be a Change of Control.
“Class”,
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Term Loans and, when used in reference to any Commitment, refers to whether such Commitment is a Revolving Commitment or Term Commitment.
“Closing Date”
means the date hereof.
“Closing Date
Acquisition” means the acquisition by Eagle Concrete of (i) 100% of the membership interests of Eagle Redi-Mix Concrete,
LLC and (ii) 100% of the membership interests of Ram Transportation, LLC pursuant to the Closing Date MIPA.
“Closing Date
Acquisition Documents” means (i) the Membership Interest Purchase Agreement dated as of July 29, 2024 by and
among (a) the members of Eagle Redi-Mix Concrete, LLC and Ram Transportation, LLC, (b) Eagle Redi-Mix Concrete, LLC, (c) Ram
Transportation, LLC and (d) Eagle Concrete (the “Closing Date MIPA”) and (ii) all other agreements,
documents and instruments delivered in connection therewith, including all annexes, appendices, exhibits and schedules thereto.
8
“Closing Date
Equity Contribution” means a cash capital contribution to the Borrower made by Holdings on the Closing Date in an aggregate
amount not less than $57,900,000, the proceeds of which shall be used to fund a portion of the Closing Date Acquisition.
“Closing Date
Targets” means Eagle Redi-Mix Concrete, LLC and RAM Transportation, LLC.
“CME”
means CME Group Benchmark Administration Limited.
“Co-Investors”
means (a) the Management Group, and (b)(i) any Person (other than the Sponsor or the Management Group) who is a holder of Equity
Interests in Holdings (or any of the direct or indirect parent companies of Holdings) on the Closing Date (including as a result of any
rollover equity) and (ii) an Affiliate of any such Person.
“Code”
means the Internal Revenue Code of 1986, as amended from time to time.
“Collateral”
means all of the “Collateral” referred to in the Collateral Documents and all of the other property that is or is intended
under the terms of the Collateral Documents to be subject to Liens in favor of the Administrative Agent for the benefit of the Secured
Parties.
“Collateral Account”
has the meaning specified in Section 2.03(q)(i).
“Collateral Documents”
means, collectively, the Security Agreement, the Perfection Certificate, the Qualifying Control Agreements, each Joinder Agreement, each
of the collateral assignments, security agreements, pledge agreements, account control agreements or other similar agreements delivered
to the Administrative Agent pursuant to Section 6.14, and each of the other agreements, instruments or documents that creates
or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.
“Commitment”
means a Term Commitment or,
a Revolving Commitment, or an Incremental Commitment, as the context
may require.
“Commodity Exchange
Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor
statute.
“Communication”
means this Agreement, any Loan Document and any document, any amendment, approval, consent, information, notice, certificate, request,
statement, disclosure or authorization related to any Loan Document.
“Compliance Certificate”
means a certificate substantially in the form of Exhibit C.
“Conforming Changes”
means, with respect to the use, administration of or any conventions associated with SOFR or any proposed Successor Rate or Term SOFR,
as applicable, any conforming changes to the definitions of “Base Rate”, “SOFR”, “Term SOFR” and
“Interest Period”, timing and frequency of determining rates and making payments of interest and other technical, administrative
or operational matters (including, for the avoidance of doubt, the definitions of “Business Day” and “U.S. Government
Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback
periods) as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption and implementation of such applicable
rate(s) and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice
(or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or
that no market practice for the administration of such rate exists, in such other manner of administration as the Administrative Agent
determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).
9
“Connection Income
Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise
Taxes or branch profits Taxes.
“Consolidated”
means, when used with reference to financial statements or financial statement items of the BorrowerPubco
and its Subsidiaries or any other Person, such statements or items on a consolidated basis in accordance with the consolidation principles
of GAAP.
“Consolidated
EBITDA” means, for any period, the sum of the following determined on a Consolidated basis, without duplication,
for HoldingsPubco
and its Subsidiaries in accordance with GAAP:
(a) Consolidated Net
Income for the most recently completed Measurement Period plus
(b) the following to
the extent deducted in calculating such Consolidated Net Income (without duplication):
(i) Consolidated
Interest Charges,
(ii) the provision
for taxes based on income, profits or capital of HoldingsPubco
and its Subsidiaries, including, without limitation, federal, state, franchise, excise and similar taxes paid or accrued for such period
(after giving effect to any tax credit or tax refunds for such period),
(iii) depreciation
and amortization expense,
(iv) (A) non-cash
equity based compensation expense for such period and (B) other non-cash charges, non-cash expenses or non-cash losses (including,
without limitation, non-cash compensation expenses arising from the issuances of Equity Interests, options to purchase Equity Interests
and Equity Interest appreciation rights to management but excluding (Ax)
any non-cash charge, loss or expense that is an accrual of a reserve for a cash expense or payment to be made, or anticipated to be made,
in a future period and (By)
any expenses or charges related to the write-down or write-off of accounts receivable and other current assets);,
(v) the amount
of any management fees and any expenses paid to the Management Entity pursuant to the Management Agreement for such period to the extent
not prohibited by this Agreement;,
(vi) to the
extent expensed, Transaction Costs; incurred
during such period (but excluding any non-cash charge, loss or expense that is an accrual of a reserve for a cash expense or payment to
be made, or anticipated to be made, in a future period); provided that, the aggregate amount added back pursuant to this clause (vi) for
any period shall not exceed an amount equal to twenty percent (20%) of Consolidated EBITDA for such period (determined prior to giving
effect to such add-back),
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(vii) to the
extent incurred after the Closing Date and expensed, reasonable and documented out-of-pocket costs, fees and expenses incurred by the
Borrower and its Subsidiaries in connection with (A) any amendments, consents or waivers to or under this Agreement or the other
Loan Documents or the negotiation, execution and delivery of additional Loan Documents, and
(B) any Permitted Acquisition during such period (whether or not consummated), provided
that the amount added back to Consolidated EBITDA with respect to unconsummated Permitted Acquisitions shall not exceed (x) $1,000,000
during any Fiscal Year or (y) $3,000,000 during the term of this Agreement;one
time transaction fees and expenses incurred with the closing of the First Amendment Effective Date Acquisition and the transactions contemplated
thereby, not to exceed $6,000,000 in the aggregate,
(viii) proceeds
from business interruption insurance received by the Borrower or any of its Subsidiaries in such period in an amount representing the
earnings for such period that such proceeds are intended to replace (to the extent (A) not reflected as revenue or income in Consolidated
Net Income and (B) that the related loss was deducted (and not added back) in the calculation of Consolidated Net Income);,
(ix) any non-recurring
charges, costs and expenses incurred in connection with restructuring projects, integration
of acquired business and acquired assets, the closure and/or consolidation of facilities, and termination, severance and reduction
in work force expenses; provided, that, the aggregate amount added back pursuant to this clause (ix) for any period shall
not exceed an amount equal to ten percent (10%) of Consolidated EBITDA for such period (determined prior to giving effect to such add-back);,
(x) the
Specified Ready Mix EBITDA Addbacks; and,
(xi) (A) one
time Transaction Costs incurred in connection with the De-SPAC Transaction, not to exceed $55,000,000 in the aggregate, and (B) non-cash
charges, non-cash expenses or non-cash losses, if any, resulting from the consummation of the De-SPAC Transaction arising from (1) the
issuances of Equity Interests pursuant to the Omnibus Incentive Plan and the ESPP (as each such term is defined in the De-SPAC Combination
Agreement) and (2) the Management Aggregator Distribution, the PIPE Investment, the issuance and transfer of the Dothan Independent
Closing Shares and the issuance and transfer of the Dothan Founder Shares, any redemption of the SPAC Warrants, the Company Incentive
Unit Share Consideration, the Aggregate Company Preferred Unit Share Consideration (whether such redemption or exchange in made in respect
of some or all of the Aggregate Company Preferred Units), the Aggregate Company Merger Consideration and the SPAC Consideration (as each
such term is defined in the De-SPAC Combination Agreement), to the extent a good faith estimate of such non-cash charges, non-cash expenses
or non-cash losses has been previously disclosed to the Administrative Agent prior to the Second Amendment Effective Date, (3) other
add-backs to Consolidated Net Income with respect to the De-SPAC Transaction as agreed to by the
Administrative Agent and the Borrower in a writing signed after the
De-SPAC Closing Date, and
(xixii) other
add-backs to Consolidated Net Income as agreed to by the Administrative Agent and the Borrower in a writing signed after the Closing Date
less
(c) without duplication
and to the extent reflected as a gain or otherwise included in the calculation of Consolidated Net Income for such period, non-cash gains
(excluding any such non-cash gains to the extent (i) there were cash gains with respect to such gains in past accounting periods
or (ii) there is a reasonable expectation that there will be cash gains with respect to such gains in future accounting periods).
Notwithstanding anything to the contrary in the
foregoing of this definition of “Consolidated EBITDA”, the sum of the amounts added to Consolidated EBITDA in reliance on
clauses (b)(iv), (b)(vB),
(b)(vii), (b)(viii), (b)(ix), (b)(x) and (b)(xixii),
of this definition shall not exceed, in the aggregate during any four (4) Fiscal Quarter period, 20% of Consolidated EBITDA for such
period (calculated prior to adding back any amounts in reliance on clauses (b)(iv), (b)(vB),
(b)(vii), (b)(viii), (b)(ix), (b)(x) and (b)(xixii)
of this definition).
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Notwithstanding
anything to the contrary in the foregoing of this definition of “Consolidated EBITDA”, for
purposes of calculating Consolidated EBITDA for any applicable period, Consolidated EBITDA for each of
the Fiscal Quarters identified in the following table will be deemed to be the amount set forth opposite such Fiscal Quarter in such table:
Fiscal Quarter Ending
Consolidated EBITDA
September 30, 2023
$11,494,118
December 31, 2023
$10,935,048
March 31, 2024
$10,074,100
June 30, 2024
$12,100,335
provided,
that, for the avoidance of doubt, such
amounts described in the foregoing of this sentence shall not be subject to any further
adjustment pursuant to the foregoing clauses (b) or (c) of
this definition of “Consolidated EBITDA”.
“Consolidated
Fixed Charge Coverage Ratio” means,
(A) for
all periods occurring prior to the De-SPAC Closing Date, as of any date of determination, the ratio of (a) (i) Consolidated
EBITDA less (ii) the aggregate amount of all non-financed cash Capital Expenditures (other than (x) the
Specified Capital Expenditures and,
(y) expenditures made with Net Cash Proceeds of Dispositions of other fixed assets or casualty to fixed assets, in each case,
which such Net Cash Proceeds are permitted to be reinvested by the terms of this Agreement and
(z) the Sandplant Deferred Payment) to (b) the sum of (i) Consolidated Interest Charges to the extent paid
in cash, (ii) the aggregate principal amount of all redemptions or similar acquisitions for value of outstanding debt for borrowed
money, regularly scheduled principal payments on Consolidated Funded Indebtedness (determined without giving effect to any reduction of
such scheduled principal payments resulting from the application of any voluntary or optional prepayments made during such period), but
excluding any such payments to the extent refinanced through the incurrence of additional Indebtedness otherwise expressly permitted under
Section 7.02, (iii) the aggregate amount of Restricted Payments consisting of dividends and other distributions
paid to Preferred Equity Holders, (iv) the aggregate amount of all other Restricted Payments including Permitted Tax Distributions
(as defined in this Agreement prior to giving effect to the Second Amendment),
earnouts and management fees paid in cash to the Management Entity (other
than, for the avoidance of doubt, payment of the Sandplant Deferred Amount), (v) the aggregate amount of federal, state, local
and foreign income taxes paid in cash, in each case, of or by Holdings and its Subsidiaries for the most recently completed Measurement
Period; provided that when determining the Consolidated Fixed Charge Coverage Ratio as of the
first, second and third full Fiscal Quarters after the Closing Date, each such item set forth in clauses (b)(i) –
(v) shall be determined for the period commencing with the first full Fiscal Quarter after the Closing Date
through the last day of the Fiscal Quarter then being tested, and multiplied by a factor of 4, 2 or 4/3, respectively, provided further
that, that for purposes of determining clause (a)(ii) when determining the Consolidated
Fixed Charge Coverage Ratio as of the last day of the first,
second and third full Fiscal Quarters after the Closing Date, such item shall be the lesser of (x) the
aggregate amount of all Capital Expenditures paid in cash for the Measurement Period most recently ended
on or prior to such date, and (y) the aggregate amount of all Capital
Expenditures paid in cash in the period commencing with the first full Fiscal Quarter after the Closing Date through the last day of the
Fiscal Quarter then being tested, and multiplied by a factor of 4, 2 or 4/3, respectively.,
and
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(B) for
all periods occurring after the De-SPAC Closing Date, as of any date
of determination, the ratio of (a) (i) Consolidated EBITDA
less (ii) the aggregate amount of all non-financed
cash Capital Expenditures (other than (x) the Specified Capital Expenditures, (y) expenditures made with Net Cash Proceeds of
Dispositions of other fixed assets or casualty to fixed assets, in each case, which such Net Cash Proceeds are permitted to be reinvested
by the terms of this Agreement and (z) the Sandplant Deferred Payment) to (b) the sum of (i) Consolidated Interest
Charges to the extent paid in cash, (ii) the aggregate principal amount of all redemptions or similar acquisitions for value of outstanding
debt for borrowed money, regularly scheduled principal payments on Consolidated Funded Indebtedness (determined without giving effect
to any reduction of such scheduled principal payments resulting from the application of any voluntary or optional prepayments made during
such period), but excluding any such payments to the extent refinanced through the incurrence of additional Indebtedness otherwise expressly
permitted under Section 7.02, (iii) the aggregate amount of Restricted Payments consisting of dividends and other distributions
paid to Preferred Pubco Equity Holders (including all Preferred Pubco Distributions), (iv) the
aggregate amount of all Restricted Payments paid in cash (other than
payment of the Sandplant Deferred Amount) and (v) the aggregate amount of federal, state, local and foreign income taxes paid in
cash, in each case, of or by Pubco and its Subsidiaries for the most recently completed Measurement Period.
“Consolidated
Funded Indebtedness” means, as of any date of determination, for HoldingsPubco
and its Subsidiaries on a Consolidated basis, the sum of: (a) the outstanding principal amount of all obligations, whether
current or long-term, for borrowed money (including Obligations hereunder) and all obligations evidenced by bonds, debentures, notes,
loan agreements or other similar instruments; (b) all purchase money Indebtedness; (c) the maximum amount available to be drawn
under issued and outstanding letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety
bonds and similar instruments; (d) all obligations in respect of the deferred purchase price of property or services (other than
trade accounts payable in the ordinary course of business); (e) all Attributable Indebtedness; (f) all obligations to purchase,
redeem, retire, defease or otherwise make any payment prior to the Maturity Date in respect of any Equity Interests or any warrant, right
or option to acquire such Equity Interest, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends; (g) without duplication, all Guarantees with respect
to outstanding Indebtedness of the types specified in clauses (a) through (f) above of Persons other than the
Borrower or any Subsidiary; and (h) all Indebtedness of the types referred to in clauses (a) through (g) above
of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which HoldingsPubco
or a Subsidiary is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to HoldingsPubco
or such Subsidiary. Notwithstanding the foregoing, the term “Consolidated Funded Indebtedness” shall exclude (i) obligations
with respect to the Sandplant Deferred Payment, (ii) prior to the De-SPAC
Closing Date, obligations with respect to the Preferred Equity and
Senior Preferred Equity and (iii) obligations with respect to the Preferred Pubco Equity.
“Consolidated
Interest Charges” means, for any Measurement Period, the sum of (a) all interest, premium payments, debt discount,
fees, charges and related expenses in connection with borrowed money (including capitalized interest) or in connection with the deferred
purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, (b) all interest paid or payable
with respect to discontinued operations and (c) the portion of rent expense under Capitalized Leases that is treated as interest
in accordance with GAAP, in each case, of or by HoldingsPubco
and its Subsidiaries on a Consolidated basis for the most recently completed Measurement Period.
13
“Consolidated
Net Income” means, at any date of determination, the net income (or loss) of HoldingsPubco
and its Subsidiaries on a Consolidated basis for the most recently completed Measurement Period; provided that Consolidated Net
Income shall exclude (a) extraordinary gains and extraordinary losses for such Measurement Period, (b) the net income of any
Subsidiary during such Measurement Period to the extent that the declaration or payment of dividends or similar distributions by such
Subsidiary of such income is not permitted by operation of the terms of its Organization Documents or any agreement, instrument or Law
applicable to such Subsidiary during such Measurement Period, except that Holdings’Pubco’s
equity in any net loss of any such Subsidiary for such Measurement Period shall be included in determining Consolidated Net Income, and
(c) any income (or loss) for such Measurement Period of any Person if such Person is not a Subsidiary, except that Holdings’Pubco’s
equity in the net income of any such Person for such Measurement Period shall be included in Consolidated Net Income up to the aggregate
amount of cash actually distributed by such Person during such Measurement Period to HoldingsPubco
or a Subsidiary as a dividend or other distribution (and in the case of a dividend or other distribution to a Subsidiary, such Subsidiary
is not precluded from further distributing such amount to HoldingsPubco
as described in clause (b) of this proviso).
“Consolidated
Senior Funded Indebtedness” means, as of any date of determination, the sum of (a) Consolidated Funded Indebtedness
as of such date minus (b) Subordinated Debt of HoldingsPubco
and its Subsidiaries on a Consolidated basis, as of such date.
“Consolidated
Senior Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Senior Funded Indebtedness
as of such date to (b) Consolidated EBITDA of HoldingsPubco
and its Subsidiaries for the most recently completed Measurement Period.
“Contractual Obligation”
means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which
such Person is a party or by which it or any of its property is bound.
“Control”
means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.
“Cost of Acquisition”
means, with respect to any Acquisition, as at the date of entering into any agreement therefor, the sum of the following (without duplication):
(a) the value of the Equity Interests of HoldingsPubco
or any Subsidiary to be transferred in connection with such Acquisition, (b) the amount of any cash and fair market value of other
property (excluding property described in clause (a) and the unpaid principal amount of any debt instrument) given as consideration
in connection with such Acquisition, (c) the amount (determined by using the face amount or the amount payable at maturity, whichever
is greater) of any Indebtedness incurred, assumed or acquired by HoldingsPubco
or any Subsidiary in connection with such Acquisition, (d) all additional purchase price amounts in the form of earnouts and other
contingent obligations that should be recorded on the financial statements of HoldingsPubco
and its Subsidiaries in accordance with GAAP in connection with such Acquisition, (e) all amounts paid in respect of covenants not
to compete and consulting agreements that should be recorded on the financial statements of HoldingsPubco
and its Subsidiaries in accordance with GAAP, and other affiliated contracts in connection with such Acquisition, and (f) the aggregate
fair market value of all other consideration given by HoldingsPubco
or any Subsidiary in connection with such Acquisition. For purposes of determining the Cost of Acquisition for any transaction, the Equity
Interests of HoldingsPubco
shall be valued in accordance with GAAP.
“Covered Entity”
means any of the following: (a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12
C.F.R. § 252.82(b); (b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 47.3(b); or (c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §
382.2(b).
14
“Credit Extension”
means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“Cure Expiration
Date” has the meaning specified in Section 8.03(a).
“Daily Simple
SOFR” with respect to any applicable determination date means the SOFR published on such date on the Federal Reserve Bank
of New York’s website (or any successor source).
“De-SPAC
Closing Date” means the Closing Date (as defined in the De-SPAC Combination Agreement).
“De-SPAC
Combination Agreement” means that certain Business Combination Agreement, dated as of October 9, 2025, by and among Haymaker
Acquisition Corp. 4, Haymaker Merger Sub I, Inc., Haymaker Merger Sub II, LLC and Suncrete, Inc., as amended, restated, supplemented
or otherwise modified from time to time.
“De-SPAC
Transaction” means (a) the Mergers (as defined in the De-SPAC Combination Agreement) and each other transaction contemplated
by the De-SPAC Combination Agreement, including, but not limited to, the Domestication, the Initial Closing, the Acquisition Closing (as
each such term is defined in the De-SPAC Combination Agreement) and the performance of the De-SPAC Combination Agreement and all schedules,
exhibits and ancillary agreements thereto, (b) the redemption and cancellation of senior preferred Equity Interests pursuant to Section 3.01(b)(iii) of
the De-SPAC Combination Agreement, (c) the cancellation and conversion of certain other Equity Interests of Holdings, as applicable,
in accordance with Section 3.01 of the De-SPAC Combination Agreement, (d) the issuance and transfer of the Dothan Independent
Closing Shares and Dothan Founder Shares (as defined in the De-SPAC Combination Agreement) in accordance with the De-SPAC Combination
Agreement, (e) the PIPE Investment and any additional shares issued at a price per share that equals or exceeds the price per share
pursuant to the PIPE Investment and otherwise on substantially similar terms as the PIPE Investment through the De-SPAC Closing Date,
the Omnibus Incentive Plan and the ESPP (as each such term is defined in the De-SPAC Combination Agreement), and (f) and each other
transaction reasonably necessary or appropriate to consummate the foregoing transactions in accordance with the terms of the De-SPAC Combination
Agreement.
“Debt Issuance”
means the issuance by any Loan Party or any Subsidiary of any Indebtedness other than Indebtedness permitted under clauses (a) through
(f) of Section 7.02.
“Debtor Relief
Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment
for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect.
“Default”
means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
“Default Rate”
means (a) with respect to any Obligation for which a rate is specified, a rate per annum equal to two percent (2%) in excess of the
rate otherwise applicable thereto and (b) with respect to any Obligation for which a rate is not specified or available, a rate per
annum equal to the Base Rate plus the Applicable Rate for Revolving Loans that are Base Rate Loans plus two percent (2%),
in each case, to the fullest extent permitted by Applicable Law.
15
“Default Right”
has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as
applicable.
“Defaulting Lender”
means, subject to Section 2.15(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within
two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative
Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent
to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing)
has not been satisfied, or (ii) pay to the Administrative Agent, the L/C Issuer, the Swingline Lender or any other Lender any other
amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within
two (2) Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, the L/C Issuer or the Swingline
Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect
(unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position
is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable
default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three
(3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative
Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall
cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative
Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding
under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the
benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit
Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of
a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any
Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership
interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate,
disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is
a Defaulting Lender under any one or more of clauses (a) through (d) above, and the effective date of such status,
shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(b))
as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by
the Administrative Agent to the Borrower, the L/C Issuer, the Swingline Lender and each other Lender promptly following such determination.
“Deferred
Payment Certificate” has the meaning given to such term
in the Deferred Payment Subordination Agreement.
“Deferred
Payment Subordination Agreement” means that certain Deferred Payment Subordination Agreement, dated as of the First Amendment
Effective Date, executed by the Subordinated Creditors (as defined therein), the Administrative Agent, and the Loan Parties (other than
Pubco) and pursuant to which the payment of the Sandplant Deferred Payment is subordinated in right of payment to the prior payment of
the Obligations.
“Designated Jurisdiction”
means any country or territory to the extent that such country or territory is the subject of any Sanction.
16
“Disposition”
or “Dispose” means the sale, transfer, license, lease or other disposition (including any Sale and Leaseback
Transaction) of any property by any Loan Party or Subsidiary (or the granting of any option or other right to do any of the foregoing),
including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights
and claims associated therewith. The term “Disposition” shall
not be deemed to include any Equity Issuance.
“Disqualified
Equity Interests” means, with respect to any Person, any Equity Interest of such Person which, by its terms (or by the terms
of any security or other Equity Interests into which it is convertible or for which it is exchangeable at the option of the holder thereof),
or upon the happening of any event or condition (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, (b) is redeemable or is required to be repurchased by such Person or any of its Affiliates at the option of the holder
thereof, in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible
into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case,
prior to the date that is 91 days after the Maturity Date; provided that, any such Equity Interests that would constitute Disqualified
Equity Interests solely because the holders thereof have the right to require the Borrower or an Affiliate thereof to repurchase or redeem
such Equity Interests upon the occurrence of a change of control or an asset sale shall not constitute Disqualified Equity Interests so
long as the terms of such Equity Interests provide that such repurchase or redemption is (i) not required unless permitted under
this Agreement or (ii) subject to the prior payment in full of the Obligations and the termination of the Aggregate Commitments.
“Dollar”
and “$” mean lawful money of the United States.
“Domestic Subsidiary”
means any Subsidiary that is organized under the laws of the United States, any state thereof or the District of Columbia.
“Eagle Concrete”
means Eagle Concrete Holdings, LLC, a Delaware limited liability company and wholly-owned Subsidiary of the Borrower.
“EEA Financial
Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject
to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution
described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which
is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated
supervision with its parent.
“EEA Member Country”
means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution
Authority” means any public administrative authority or any Person entrusted with public administrative authority of any
EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Electronic Record”
and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006,
as it may be amended from time to time.
“Eligible Assignee”
means any Person that meets the requirements to be an assignee under Section 11.06 (subject to such consents, if any, as may
be required under Section 11.06(b)(iii)).
“Environment”
means ambient air, indoor air, surface water, groundwater, drinking water, soil, surface and subsurface strata, and natural resources
such as wetland, flora and fauna.
17
“Environmental
Laws” means any and all federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, agreements or governmental restrictions relating to pollution and the protection of the Environment (to the extent related
to exposure to hazardous materials), including those relating to the manufacture, generation, handling, transport, storage, treatment,
Release or threat of Release of Hazardous Materials, air emissions and discharges to waste or public systems.
“Environmental
Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation,
fines, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries whether based in contract,
tort, implied or express warranty, strict liability, criminal or civil statute or common law, directly or indirectly relating to (a) any
violation of an Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) Release or threatened Release of any Hazardous Materials or (e) any
contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Environmental
Permit” means any permit, certification, registration, approval, identification number, license or other authorization required
under any Environmental Law.
“Equity Interests”
means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all
of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership
or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership
or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on
any date of determination.
“Equity
Issuance” means, any issuance by any Loan Party or any Subsidiary to any Person of its Equity Interests, other than (a) any
issuance of its Equity Interests pursuant to the exercise of options or warrants, (b) any issuance of its Equity Interests pursuant
to the conversion of any debt securities to equity or the conversion of any class of equity securities to any other class of equity securities,
(c) any issuance of options or warrants relating to its Equity Interests, (d) any issuance by Pubco of its Equity Interests
as consideration for an Acquisition or other Investment permitted by Section 7.03, (e) any issuance by Pubco of its Equity Interests
in connection with the De-SPAC Transaction, whether issued on or before the De-SPAC Closing Date or within 60 days thereafter (or 90 days
thereafter with the consent of the Administrative Agent in its sole discretion), including, without limitation, in connection with the
Management Aggregator Distribution, the PIPE Investment, the Dothan Independent Closing Shares, the Dothan Founder Shares, the Omnibus
Incentive Plan and the ESPP (as each such term is defined in the De-SPAC Combination Agreement), (f) any issuance by Pubco of Permitted
Preferred Pubco Equity, (g) any Specified Equity Contribution and (h) the issuance of Equity Interests of Pubco or equity-based
awards to any officer, director, employee or consultant of Pubco or
any of its Subsidiaries in the ordinary course of business under any
employee stock option or stock purchase plan or employee benefit plan or similar plan in existence from time to time, including, without
limitation, the Omnibus Incentive Plan and the ESPP. For the avoidance of doubt, the issuance of any Preferred Pubco Equity, other than
Permitted Preferred Pubco Equity, shall be deemed to be an “Equity Issuance” hereunder. The term “Equity Issuance”
shall not be deemed to include any Disposition or any Debt Issuance.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
18
“ERISA Affiliate”
means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Sections 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).
“ERISA Event”
means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Borrower or any ERISA Affiliate from
a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer”
as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that
a Multiemployer Plan is insolvent; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as
a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan;
(f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan
in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; (h) the
imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA,
upon the Borrower or any ERISA Affiliate or (i) a failure by the Borrower or any ERISA Affiliate to meet all applicable requirements
under the Pension Funding Rules in respect of a Pension Plan, whether or not waived, or the failure by the Borrower or any ERISA
Affiliate to make any required contribution to a Multiemployer Plan.
“EU Bail-In
Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor
person), as in effect from time to time.
“Event of Default”
has the meaning specified in Section 8.01.
“Exchange
Act” means the Securities Exchange Act of 1934, including all amendments thereto and regulations promulgated thereunder.
“Excluded Property”
means, with respect to any Loan Party, (a) any contract rights (other than rights relating to the proceeds of accounts and rights
to payments of any nature) to the extent and for so long as such contractual right, by its terms or because of applicable law, prohibits
the creation or granting of a security interest (but only to the extent any such prohibition is not rendered ineffective by, or is not
otherwise unenforceable under, the UCC or other applicable Law), (b) any owned or leased real property and any fixtures located thereon
or affixed thereto, unless requested by the Administrative Agent or the Required Lenders, provided that no such request
shall be permitted to the extent such owned or leased property has a fair market value of less than $2,000,000, (c) unless requested
by the Administrative Agent or the Required Lenders, any Intellectual Property for which a perfected Lien thereon is not effected either
by filing of a UCC financing statement or by appropriate evidence of such Lien being filed in either the United States Copyright Office
or the United States Patent and Trademark Office, (d) the Equity Interests of any Foreign Subsidiary of any Loan Party to the extent
not required to be pledged to secure the Secured Obligations pursuant to the Collateral Documents, (e) any property which, subject
to the terms of Section 7.02(c), is subject to a Lien of the type described in Section 7.01(i) pursuant to
documents that prohibit such Loan Party from granting any other Liens in such property and,
(f) any aircraft, airframe, aircraft engine or related property that
is subject to a Lien of the type described in Section 7.01(o) pursuant to documents that prohibit such Loan Party from granting
any other Liens in such property, and (g) any of the following accounts (collectively, “Excluded Accounts”)
and the amounts properly contained therein or credited thereto: (i) any payroll accounts, (ii) any pension and pension reserve
accounts, and (iii) any employee benefit accounts; provided that any amount improperly deposited in the Excluded Accounts
shall nevertheless constitute Collateral.
19
“Excluded Swap
Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the
Guaranty of such Guarantor of, or the grant by such Guarantor of a Lien to secure, such Swap Obligation (or any Guarantee thereof) is
or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the
application or official interpretation thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible
contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 10.11 and
any other “keepwell”, support or other agreement for the benefit of such Guarantor and any and all guarantees of such Guarantor’s
Swap Obligations by other Loan Parties) at the time the Guaranty of such Guarantor, or grant by such Guarantor of a Lien, becomes effective
with respect to such Swap Obligation. If a Swap Obligation arises under a Master Agreement governing more than one Swap Contract, such
exclusion shall apply only to the portion of such Swap Obligation that is attributable to Swap Contracts for which such Guaranty or Lien
is or becomes excluded in accordance with the first sentence of this definition.
“Excluded Taxes”
means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to
a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in
each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the
case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that
are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the
account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which
(i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under
Section 11.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Sections
3.01(b) or (d), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before
such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such
Recipient’s failure to comply with Section 3.01(f) and (d) any U.S. federal withholding Taxes imposed pursuant
to FATCA.
“Extraordinary
Receipt” means any cash received by or paid to or for the account of any Person not in the ordinary course of business,
including tax refunds, pension plan reversions, proceeds of insurance (other than proceeds of business interruption insurance to the extent
such proceeds constitute compensation for lost earnings and proceeds of Involuntary Dispositions), indemnity payments and any purchase
price adjustments; provided, however, that an Extraordinary Receipt shall not include cash receipts from proceeds of insurance
or indemnity payments to the extent that such proceeds, awards or payments are received by any Person in respect of any third party
claim against such Person and applied to pay (or to reimburse such Person for its prior payment of) such claim and the costs and expenses
of such Person with respect thereto.
“Facility”
means the Term Facility or the Revolving Facility, as the context may require.
“Facility Termination
Date” means the date as of which all of the following shall have occurred: (a) the Aggregate Commitments have terminated,
(b) all Obligations have been paid in full (other than contingent indemnification obligations), and (c) all Letters of Credit
have terminated or expired (other than Letters of Credit as to which other arrangements with respect thereto satisfactory to the Administrative
Agent and the L/C Issuer shall have been made).
“FASB ASC”
means the Accounting Standards Codification of the Financial Accounting Standards Board.
“FATCA”
means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof and
any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any intergovernmental agreement, treaty or convention
among Governmental Authorities (and related fiscal or regulatory legislation, or related official rules or practices) implementing
the foregoing.
20
“Federal Funds
Rate” means, for any day, the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s
federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set
forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York
as the federal funds effective rate; provided that if the Federal Funds Rate as so determined would be less than zero, such rate shall
be deemed to be zero for the purposes of this Agreement.
“Fee Letter”
means the letter agreement, dated as of July 25, 2023, between SunTx Capital III Management Corp., a Texas corporation, the Administrative
Agent and the Arranger, as amended pursuant to that certain letter agreement dated March 18, 2024.
“Financial Covenants”
means the covenants set forth in Section 7.11(a) and Section 7.11(b).
“First
Amendment” means that certain First Amendment and Increase to Credit Agreement, dated as of October 17, 2025, by and among
the Borrower, the other Loan Parties (other than Pubco) party thereto, the Administrative Agent, the First Amendment Incremental Term
Lenders, the Revolving Lenders, and the other Lenders party thereto.
“First
Amendment Effective Date” means the date that all of the conditions to effectiveness set forth in Section 6 of the First
Amendment are satisfied.
“First
Amendment Effective Date Acquisition” means the acquisition by Eagle Redi-Mix Concrete, LLC of the assets of the First Amendment
Effective Date Seller pursuant to the First Amendment Effective Date Asset Purchase Agreement.
“First
Amendment Effective Date Acquisition Documents” means (i) the Asset Purchase and Contribution Agreement dated as of October 17,
2025 by and among Eagle Redi-Mix Concrete, LLC, the First Amendment Effective Date Seller, each equity holder of the First Amendment Effective
Date Seller (each an “Owner” and collectively, the “Owners”) and certain other individuals (the
“Acquisition Transaction Beneficiaries”) (the “First Amendment Effective Date Asset Purchase Agreement”)
and (ii) all other agreements, documents and instruments delivered in connection therewith, including all annexes, appendices, exhibits
and schedules thereto.
“First
Amendment Effective Date Rollover Equity” means the Preferred Equity being issued in connection with the First Amendment Effective
Date Acquisition in an aggregate amount not less than $20,000,000.
“First
Amendment Effective Date Seller” means SRM, Inc. DBA Schwarz Ready Mix, an Oklahoma corporation (together with one or more
of its affiliates).
“First
Amendment Fee Letter” means the letter agreement, dated as of July 14, 2025, between Borrower, the Administrative Agent,
and the Arranger.
“First
Amendment Incremental Term Commitment” means, as to each First Amendment Incremental Term Lender, its Incremental Term Commitments
effective pursuant to Section 2(a) of the First Amendment. The aggregate amount of all First Amendment Incremental Term Commitments
of the First Amendment Incremental Term Lenders on the First Amendment Effective Date shall be $75,0000,000.
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“First
Amendment Incremental Term Lenders” means those Term Lenders agreeing to make Additional Term Loans on the First Amendment Effective
Date pursuant to Section 2.01(c) and the First Amendment.
“First
Pubco Reporting Quarter” has the meaning specified in Section 6.01(b)(ii).
“Fiscal Quarter”
means (a) prior to the De-SPAC Closing Date, any of the quarterly
accounting periods of Holdings and the Subsidiaries ending on March 31, June 30, September 30 and December 31 of each
Fiscal Year and (b) from and after the De-SPAC Closing Date, any of
the quarterly accounting periods of Pubco and the Subsidiaries ending on March 31, June 30, September 30 and December 31
of each Fiscal Year.
“Fiscal Year”
means (a) prior to the De-SPAC Closing Date, the fiscal year
of Holdings and the Subsidiaries, which period shall be the 12-month period ending on December 31 of each year and
(b) from and after the De-SPAC Closing Date, the fiscal year of Pubco and the Subsidiaries, which period shall be the 12-month period
ending on December 31 of each year.
“Foreign Lender”
means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person,
a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.
For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
“Foreign Subsidiary”
means any Subsidiary that is not a Domestic Subsidiary.
“FRB”
means the Board of Governors of the Federal Reserve System of the United States.
“Fronting Exposure”
means, at any time there is a Defaulting Lender that is a Revolving Lender, (a) with respect to the L/C Issuer, such Defaulting Lender’s
Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation
obligation has been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with
respect to the Swingline Lender, such Defaulting Lender’s Applicable Percentage of Swingline Loans other than Swingline Loans as
to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized
in accordance with the terms hereof.
“FSHCO”
means any Subsidiary substantially all of the assets of which constitute the Equity Interests and/or Indebtedness of one or more Subsidiaries
that are CFCs.
“Fund”
means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its activities.
“Funding Indemnity
Letter” means a funding indemnity letter, substantially in the form of Exhibit N.
“GAAP”
means generally accepted accounting principles in the United States set forth from time to time in the opinions and pronouncements of
the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the accounting profession) including,
without limitation, the FASB Accounting Standards Codification, that are applicable to the circumstances as of the date of determination,
consistently applied and subject to Section 1.03.
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“Governmental
Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including, without limitation,
any supra-national bodies such as the European Union or the European Central Bank).
“Governmental
Requirement” means any law, statute, code, ordinance, order, determination, rule, regulation, judgment, decree, injunction,
franchise, permit, certificate, license, rules of common law, authorization or other directive or requirement, whether now or hereinafter
in effect, of any Governmental Authority.
“Guarantee”
means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of the kind described in clauses (a) through (g) of the definition thereof or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly
or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services
for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness
or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or
level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation,
or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation
of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any
Lien on any assets of such Person securing any Indebtedness of the kind described in clauses (a) through (g) of
the definition thereof or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed or expressly
undertaken by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount
of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion
thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in
respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.
“Guaranteed Obligations”
has the meaning set forth in Section 10.01.
“Guarantors”
means, collectively, (a) HoldingsPubco,
(b) the Subsidiaries of HoldingsPubco
(other than the Borrower) as are or may from time to time become parties to this Agreement pursuant to Section 6.13,
and (bc)
with respect to Additional Secured Obligations owing by any Loan Party or any of its Subsidiaries and any Swap Obligation of a Specified
Loan Party (determined before giving effect to Sections 10.01 and 10.11) under the Guaranty, the Borrower.
“Guaranty”
means, collectively, the Guarantee made by the Guarantors under Article X in favor of the Secured Parties, together with each
other guaranty delivered pursuant to Section 6.13.
“Haymaker
Subsidiary” means Haymaker Acquisition Corp. 4, a Delaware corporation.
“Hazardous Materials”
means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum
or petroleum distillates, natural gas, natural gas liquids, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon
gas, toxic mold, infectious or medical wastes and all other substances, wastes, chemicals, pollutants, contaminants or compounds of any
nature in any form regulated pursuant to any Environmental Law.
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“Hedge Bank”
means any Person in its capacity as a party to a Swap Contract that, at the time it enters into a Swap Contract not prohibited under Articles
VI or VII, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Swap Contract (even if such Person ceases
to be a Lender or such Person’s Affiliate ceased to be a Lender); provided, in the case of a Secured Hedge Agreement with
a Person who is no longer a Lender (or Affiliate of a Lender), such Person shall be considered a Hedge Bank only through the stated termination
date (without extension or renewal) of such Secured Hedge Agreement and provided further that for any of the foregoing to be included
as a “Secured Hedge Agreement” on any date of determination by the Administrative Agent, the applicable Hedge Bank (other
than the Administrative Agent or an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice to the
Administrative Agent prior to such date of determination.
“Holdings”
means Concrete Partners Holding, LLC, a Delaware limited liability company.
“Holdings LLC
Agreement” means that certain Second Amended and Restated
Limited Liability Company Agreement of Holdings dated as of July 29, 2024the
De-SPAC Closing Date (as in effect on the date hereofDe-SPAC
Closing Date or as modified in accordance with Section 7.12(a) of this Agreement).
“Increase
Effective Date” has the meaning specified in Section 2.16(a).
“Increase
Joinder” has the meaning specified in Section 2.16(c).
“Incremental
Commitments” means Incremental Revolving Commitments and/or Incremental Term Commitments.
“Incremental
Revolving Commitment” has the meaning specified in Section 2.16(a).
“Incremental
Term Commitment” has the meaning specified in Section 2.16(a).
“Incremental
Term Loan Maturity Date” has the meaning specified in Section 2.16(c).
“Incremental
Term Loans” means any loans made pursuant to any Incremental Term Commitments.
“Indebtedness”
means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities
in accordance with GAAP:
(a) all
obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements
or other similar instruments;
(b) all
direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances,
bank guaranties, surety bonds and similar instruments;
(c) net
obligations of such Person under any Swap Contract;
(d) all
obligations (including, without limitation, earnout obligations which have been earned and remain unpaid) of such Person to pay the deferred
purchase price of property or services (other than trade accounts payable in the ordinary course of business and not past due for more
than ninety (90) days after the date on which such trade account was created);
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(e) indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising
under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person
or is limited in recourse;
(f) all
Attributable Indebtedness in respect of Capitalized Leases and Synthetic Lease Obligations of such Person and all Synthetic Debt of such
Person;
(g) all
obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such
Person or any other Person or any warrant, right or option to acquire such Equity Interest, valued, in the case of a redeemable preferred
interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and
(h) all
Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the
Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself
a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is
expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be
the Swap Termination Value thereof as of such date. For the avoidance of doubt, (A) prior
to the De-SPAC Closing Date, the term “Indebtedness” shall exclude obligations with respect to Preferred Equity and
Senior Preferred Equity and (B) for periods prior to and after the De-SPAC Closing Date, the term “Indebtedness” shall
exclude obligations with respect to Preferred Pubco Equity.
“Indemnified Taxes”
means all (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation
of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitee”
has the meaning specified in Section 11.04(b).
“Information”
has the meaning specified in Section 11.07(a).
“Intellectual
Property” has the meaning set forth in the Security Agreement.
“Intercompany
Debt” has the meaning specified in Section 7.02(d).
“Interest Payment
Date” means, (a) as to any Term SOFR Loan, the last day of each Interest Period applicable to such Loan and the Maturity
Date; provided, however, that if any Interest Period for a Term SOFR Loan exceeds three (3) months, the respective
dates that fall every three (3) months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as
to any Base Rate Loan or Swingline Loan, the last Business Day of each March, June, September and December and the Maturity
Date.
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“Interest Period”
means as to each Term SOFR Loan, the period commencing on the date such Term SOFR Loan is disbursed or converted to or continued as a
Term SOFR Loan and ending on the date one, three or six months thereafter, as selected by the Borrower in its Loan Notice, or such other
period that is twelve months or less requested by the Borrower and consented to by all the Appropriate Lenders and the Administrative
Agent (in the case of each requested Interest Period, subject to availability); provided that:
(a) any
Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless,
in the case of a Term SOFR Loan, such Business Day falls in another calendar month, in which case such Interest Period shall end on the
next preceding Business Day;
(b) any
Interest Period pertaining to a Term SOFR Loan that begins on the last Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar
month at the end of such Interest Period; and
(c) no
Interest Period shall extend beyond the Maturity Date.
“Investment”
means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or
other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption
of debt of, or purchase or other acquisition of any other debt or interest in, another Person (including any partnership or joint venture
interest in such other Person and any arrangement pursuant to which the investor guaranties Indebtedness of such other Person), or (c) the
purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person which constitute all or substantially
all of the assets of such Person or of a division, line of business or other business unit of such Person. For purposes of covenant compliance,
the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value
of such Investment.
“Involuntary Disposition”
means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of any Loan Party
or any Subsidiary.
“IRS”
means the United States Internal Revenue Service.
“ISP”
means the International Standby Practices, International Chamber of Commerce Publication No. 590 (or such later version thereof
as may be in effect at the applicable time).
“Issuer Documents”
means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered
into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.
“Joinder Agreement”
means a joinder agreement substantially in the form of Exhibit D executed and delivered in accordance with the provisions
of Section 6.13.
“Landlord Waiver”
means a landlord or warehouse waiver substantially in the form of Exhibit O.
“Laws”
means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances,
codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental
Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties,
requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having
the force of law.
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“L/C
Advance” means, with respect to each Revolving Lender, such Lender’s funding of its participation in any L/C Borrowing
in accordance with its Applicable Revolving Percentage.
“L/C
Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed
on the date when made or refinanced as a Revolving Borrowing.
“L/C
Commitment” means, with respect to the L/C Issuer, the commitment of the L/C Issuer to issue Letters of Credit hereunder.
The initial amount of the L/C Issuer’s L/C Commitment is set forth on Schedule 1.01(b). The L/C Commitment of the L/C Issuer
may be modified from time to time by agreement between the L/C Issuer and the Borrower and notified to the Administrative Agent.
“L/C
Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof,
or the increase of the amount thereof.
“L/C
Disbursement” means a payment made by the L/C Issuer pursuant to a Letter of Credit.
“L/C
Issuer” means Bank of America in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters
of Credit hereunder.
“L/C
Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters
of Credit plus the aggregate of all Unreimbursed Amounts (including all L/C Borrowings). For purposes of computing the amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.
For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still
be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding”
in the amount so remaining available to be drawn.
“LCA
Test” has the meaning specified in Section 1.09.
“Lender”
means each of the Persons identified as a “Lender” on the signature pages hereto, each other Person that becomes a “Lender”
in accordance with this Agreement and, their successors and assigns and, unless the context requires otherwise, includes the Swingline
Lender.
“Lender Party”
and “Lender Recipient Party” means collectively, the Lenders, the Swingline Lender and the L/C Issuer.
“Lending Office”
means, as to the Administrative Agent, the L/C Issuer or any Lender, the office or offices of such Person described as such in such Person’s
Administrative Questionnaire, or such other office or offices as such Person may from time to time notify the Borrower and the Administrative
Agent; which office may include any Affiliate of such Person or any domestic or foreign branch of such Person or such Affiliate.
“Letter of Credit”
means any standby letter of credit issued hereunder.
“Letter of Credit
Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time
to time in use by the L/C Issuer.
“Letter of Credit
Expiration Date” means the day that is seven (7) days prior to the Maturity Date (or, if such day is not a Business
Day, the next preceding Business Day).
“Letter of Credit
Fee” has the meaning specified in Section 2.03(m).
27
“Letter of Credit
Sublimit” means, as of any date of determination, an amount equal to the lesser of (a) $5,000,000 and (b) the
Revolving Facility. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Facility.
“Leverage Step-Up”
has the meaning specified in Section 7.11(a).
“Lien”
means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), charge, or preference,
priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property
and any financing lease having substantially the same economic effect as any of the foregoing).
“Limited
Condition Acquisition” means a Permitted Acquisition by Borrower or another Loan Party that is not conditioned on the availability
of, or on obtaining, third party financing.
“Loan”
means an extension of credit by a Lender to the Borrower under Article II in the form of a Term Loan, a Revolving Loan or
a Swingline Loan.
“Loan Documents”
means, collectively, (a) this Agreement, (b) the Notes, (c) the Guaranty, (d) the Collateral Documents, (e) the
Fee Letter and the First Amendment Fee Letter, (f) each Issuer
Document, (g) each Joinder Agreement, (h) the Management Fee Subordination Agreement, (i) theany
Preferred Equity Subordination Agreement, (j) any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions
of Section 2.14, and (k) all other certificates, agreements and instruments executed and delivered, in each case, by
or on behalf of any Loan Party pursuant to the foregoing (but specifically excluding any Secured Hedge Agreement or any Secured Cash Management
Agreement) and any amendments, modifications or supplements thereto or to any other Loan Document or waivers hereof or to any other Loan
Document; provided, however, that for purposes of Section 11.01, “Loan Documents” shall mean this
Agreement, the Guaranty and the Collateral Documents.
“Loan Notice”
means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Term
SOFR Loans, pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit E or such other form
as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall
be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.
“Loan Parties”
means, collectively, the Borrower and each Guarantor.
“Management Agreement”
means that certain Management and Consulting Agreement between Management Entity and Pubco
(as the assignee of the obligations of Holdings thereunder) dated
as of July 29, 2024, as amended by that certain Amendment No. 1
to Management and Consulting Agreement, in the form of Exhibit E to the De-SPAC Combination Agreement, effective as of the De-SPAC
Closing Date.
“Management Entity”
means Dothan Concrete Investments Management, LLC, a Texas limited liability company, or any Sponsor-Controlled successor entity.
“Management Fee
Subordination Agreement” means the management fee subordination agreementAmended
and Restated Management Fee Subordination Agreement, dated as of the De-SPAC
Closing Date, executed by the Management Entity, Borrower and,
Pubco (as the assignee of Holdings in favor of)
and the Administrative Agent.
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“Management Group”
shall mean the group consisting of the directors, managers, executive officers and other management personnel of the Borrower, any Subsidiary
or Holdings, as the case may be, on the Closing Date after giving effect to the Transactions.
“Master Agreement”
has the meaning set forth in the definition of “Swap Contract.”
“Material Acquisition”
means any Acquisition for which the Cost of Acquisition paid by the Loan Parties and their Subsidiaries is equal to or greater than $25,000,000.
“Material Adverse
Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties,
liabilities (actual or contingent) or financial condition of the Loan Parties and their Subsidiaries taken as a whole; or (b) a material
adverse effect on (i) the ability of any Loan Party to perform its Obligations under any Loan Document to which it is a party, (ii) the
legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party or (iii) the
rights, remedies and benefits available to, or conferred upon, the Administrative Agent or any Lender under any Loan Documents.
“Material Contract”
means, with respect to any Person, each contract or agreement (a) to which such Person is a party involving aggregate consideration
payable to or by such Person of the Threshold Amount or more or (b) otherwise material to the business, condition (financial or otherwise),
operations, performance, properties or prospects of such Person or (c) any other contract, agreement, permit or license, written
or oral, of the Borrower and its Subsidiaries as to which the breach, nonperformance, cancellation or failure to renew by any party thereto,
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
“Maturity Date”
means (a) with respect to the Revolving Facility, July 29,
2029, (b) with respect to the Term Facility (including,
for the avoidance of doubt, the Additional Term Loans), July 29,
2029, and (c) with respect to any Incremental Term Loans, the Incremental Term Loan Maturity Date; provided, however,
that, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
“Measurement Period”
means, at any date of determination, the most recently completed four (4) Fiscal Quarters (or, for purposes of determining Pro Forma
Compliance, the most recently completed four (4) Fiscal Quarters for which financial statements have been delivered pursuant to Section 6.01).
“Minimum Collateral
Amount” means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit account balances, an
amount equal to 103% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time
and (b) otherwise, an amount determined by the Administrative Agent and the L/C Issuer in their sole discretion.
“Moody’s”
means Moody’s Investors Service, Inc. and any successor thereto.
“Multiemployer
Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower
or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five (5) plan years, has made or been
obligated to make contributions.
“Multiple Employer
Plan” means a Plan which has two or more contributing sponsors (including the Borrower or any ERISA Affiliate) at least
two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
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“Net Cash Proceeds”
means the aggregate cash or Cash Equivalents proceeds received by any Loan Party or any Subsidiary in respect of any Disposition, Equity
Issuance, Debt Issuance or Involuntary Disposition, net of (a) direct costs incurred in connection therewith (including, without
limitation, legal, accounting and investment banking fees and sales commissions), (b) taxes paid or payable as a result thereof and
(c) in the case of any Disposition or any Involuntary Disposition, the amount necessary to retire any Indebtedness secured by a Permitted
Lien (ranking senior to any Lien of the Administrative Agent) on the related property; it being understood that “Net Cash Proceeds”
shall include, without limitation, any cash or Cash Equivalents received upon the sale or other disposition of any non-cash consideration
received by any Loan Party or any Subsidiary in any Disposition, Equity Issuance,
Debt Issuance or Involuntary Disposition.
“New
Revolving Lender” has the meaning specified in Section 2.16(c).
“Non-Consenting
Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all
Lenders or all affected Lenders, or all Lenders or all affected Lenders in a Facility, in accordance with the terms of Section 11.01
and (b) has been approved by the Required Lenders.
“Non-Defaulting
Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Non-Extension
Notice Date” has the meaning specified in Section 2.03(b).
“Note”
means a Term Note or a Revolving Note, as the context may require.
“Notice of Intent
to Cure” has the meaning specified in Section 8.03(a).
“Notice of Loan
Prepayment” means a notice of prepayment with respect to a Loan, which shall be substantially in the form of Exhibit R
or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission
system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.
“Obligations”
means (a) all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document
or otherwise with respect to any Loan, or Letter of Credit and (b) all costs and expenses incurred in connection with enforcement
and collection of the foregoing, including the fees, charges and disbursements of counsel, in each case whether direct or indirect (including
those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest,
expenses and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof pursuant to any proceeding
under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, expenses and fees
are allowed claims in such proceeding; provided that, without limiting the foregoing, the Obligations of a Guarantor shall exclude
any Excluded Swap Obligations with respect to such Guarantor.
“OFAC”
means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Officer’s
Certificate” means a certificate substantially the form of Exhibit L or any other form approved by the Administrative
Agent.
30
“Organization
Documents” means, (a) with respect to any corporation, the charter or certificate or articles of incorporation and
the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any
limited liability company, the certificate or articles of formation or organization and operating agreement or limited liability company
agreement (or equivalent or comparable documents with respect to any non-U.S. jurisdiction); (c) with respect to any partnership,
joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization
(or equivalent or comparable documents with respect to any non-U.S. jurisdiction) and (d) with respect to all entities, any agreement,
instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental
Authority in the jurisdiction of its formation or organization (or equivalent or comparable documents with respect to any non-U.S. jurisdiction).
“Other Connection
Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient
and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party
to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction
pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes”
means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made
under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest
under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to
an assignment (other than an assignment made pursuant to Section 11.13).
“Outstanding Amount”
means (a) with respect to Term Loans, Revolving Loans and Swingline Loans on any date, the aggregate outstanding principal amount
thereof after giving effect to any Borrowings and prepayments or repayments of Term Loans, Revolving Loans and Swingline Loans, as the
case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations
on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the
L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.
“Participant”
has the meaning specified in Section 11.06(d).
“Participant Register”
has the meaning specified in Section 11.06(d).
“Patriot Act”
has the meaning specified in Section 11.19.
“PBGC”
means the Pension Benefit Guaranty Corporation.
“Pension Funding
Rules” means the rules of the Code and ERISA regarding minimum funding standards with respect to Pension Plans and
set forth in Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
“Pension Plan”
means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed
to by the Borrower and any ERISA Affiliate or with respect to which the Borrower or any ERISA Affiliate has any liability and is either
covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.
“Perfection Certificate”
means the perfection and information certificate, executed in favor of the Administrative Agent by the Loan Parties.
31
“Permitted Acquisition”
means an Acquisition by a Loan Party (the Person or division, line of business or other business unit of the Person to be acquired in
such Acquisition shall be referred to herein as the “Target”), in each case that is a type of business (or assets used
in a type of business) permitted to be engaged in by the Borrower and its Subsidiaries pursuant to the terms of this Agreement, in each
case so long as:
(a) no
Default shall then exist or would exist after giving effect thereto;
(b) the
Loan Parties shall demonstrate to the reasonable satisfaction of the Administrative Agent that, after giving effect to the Acquisition
on a Pro Forma Basis, (i) the Loan Parties are in Pro Forma Compliance and (ii) the Consolidated Senior Leverage Ratio shall
be at least 0.25 to 1.0 less than the then applicable level set forth in Section 7.11(a) (after giving effect to any
Leverage Step-Up to the extent the Borrower elects to have a Leverage Step-Up with respect to a Material Acquisition), calculated using
the same Measurement Period used to determine Pro Forma Compliance;
(c) the
Administrative Agent, on behalf of the Secured Parties, shall have received (or shall receive in connection with the closing of such Acquisition)
a first priority perfected security interest in all property (including, without limitation, Equity Interests) acquired with respect to
the Target in accordance with the terms of Section 6.14 and the Target, if a Person, shall have executed a Joinder Agreement
in accordance with the terms of Section 6.13;
(d) the
Administrative Agent and the Lenders shall have received not less than thirty (30) days prior to the consummation of any such Acquisition
(i) a description of the material terms of such Acquisition, (ii) audited financial statements (or, if unavailable, management-prepared
financial statements) of the Target for its two most recent Fiscal Years and for any Fiscal Quarters ended within the Fiscal Year to date,
(iii) Consolidated projected income statements of the Borrower and its Subsidiaries (giving effect to such Acquisition), and (iv) not
less than five (5) Business Days prior to the consummation of any Permitted Acquisition with a purchase price in excess of $10,000,000,
a Permitted Acquisition Certificate, executed by a Responsible Officer of the Borrower certifying that such Permitted Acquisition complies
with the requirements of this Agreement;
(e) the
Target shall have earnings before interest, taxes, depreciation and amortization for the four (4) Fiscal Quarter period prior to
the acquisition date in an amount greater than $0;
(f) such
Acquisition shall not be a "hostile" Acquisition and shall have been approved by the board of directors (or equivalent) and/or
shareholders (or equivalent) of the applicable Loan Party and the Target;
(g) after
giving effect to such Acquisition and any Borrowings made in connection therewith, the aggregate principal amount of Revolving Loans available
to be borrowed under Section 2.01(b) hereof shall be at least $2,000,000; and
(h) the
Cost of Acquisition paid by the Loan Parties and their Subsidiaries (i) in connection with any single Acquisition shall not exceed
$20,000,000 and (ii) for all Acquisitions made during the term of this Agreement shall not exceed $50,000,000100,000,000;
provided, further, that any earnouts or similar deferred or contingent obligations of any Borrower in connection with such
Acquisition shall be subordinated to the Obligations in a manner and to the extent reasonably satisfactory to the Administrative Agent.
“Permitted Acquisition
Certificate” means a certificate substantially the form of Exhibit T or any other form approved by the Administrative
Agent.
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“Permitted
Airplane Financing” means Indebtedness of the Loan Parties incurred on or after the First Amendment Effective Date and all extensions,
renewals or replacements of any such Indebtedness, which Indebtedness shall finance or refinance the purchase of and any renovation to
an aircraft. For the avoidance of doubt, the BANA Permitted Airplane Financing is a “Permitted Airplane Financing.”
“Permitted Equipment
Financings” means Indebtedness of the Loan Parties to any Lender party hereto (or
any Affiliate of a Lender) incurred on or after the Closing Date and all extensions and renewals of any such Indebtedness, which
Indebtedness shall finance or refinance certain equipment purchases
of applicable Loan Parties; provided that (a) the stated maturity of such Indebtedness shall not be earlier than the date
that is six (6) months after the Maturity Date, (b) any Liens granted with respect to such equipment securing the Secured Obligations
that are required to be subordinated to the Liens granted with respect to such equipment securing such Indebtedness shall be subordinated
on terms and conditions satisfactory to the Administrative Agent, and (c) to the extent that such Lender requires a grant of a Lien
over Collateral (other than BALC Other Permitted Equipment Financing Collateral)
that is broader than such equipment financed by such Indebtedness, such Lien shall be subordinated to the Liens granted under the
Loan Documents on terms and conditions satisfactory to the Administrative Agent, including, but not limited to, by executing an intercreditor
agreement, in form and substance acceptable to the Administrative Agent. For
the avoidance of doubt, the BALC Permitted Equipment Financing is a “Permitted Equipment Financing.”
“Permitted Holders”
means (a) Sponsor, (b) Co-Investors, (c) any spouse, and any parent, child, grandparent, sibling, parent-in-law or child-in-law
of any of the foregoing Persons, (d) the estate of any of the foregoing Persons, (e) any trust or family partnership established
by any part of the foregoing Persons primarily for the benefit of any of the foregoing Persons and Controlled by any such Person, and
(f) any other Person for which Holdingswith
respect to which at least fifty-one percent (51%) of the equity and voting Equity Interests are owned and Controlled by the foregoing
Persons (or any combination thereof) and (g) any other Person for which Pubco provides Administrative Agent notice of a proposed
transfer by a holder of Equity Interests in HoldingsPubco
to such Person at least fifteen (15) days prior to such transfer and the Required Lenders have approved such transfer in their sole discretion.
“Permitted Liens”
has the meaning set forth in Section 7.01.
“Permitted
Preferred Pubco Equity” means Preferred Pubco Equity issued (a) on or about the De-SPAC Closing Date in redemption or exchange
of the Senior Preferred Equity or (b) on or after the De-SPAC Closing Date with respect to payment of the Sandplant Deferred Payment.
“Permitted
Tax Distributions” means:
(a) for
any taxable period in which the Borrower and/or any of its Subsidiaries is
a member of a consolidated, combined or similar income tax group of which a direct or indirect parent of the Borrower is the common parent
(a “Tax Group”), distributions by Borrower
to such direct or indirect parent of Borrower to pay federal, foreign, state and local income Taxes of such Tax Group that are attributable
to the taxable income of the Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments
made in respect of such taxable period in the aggregate shall not exceed the amount that the Borrower and the Subsidiaries would have
been required to pay as a stand-alone Tax Group, reduced by any portion of such income Taxes directly paid by
the Borrower or any of its Subsidiaries; or
33
(b) with
respect to any taxable year (or portion thereof) with respect to which each of the Borrower and Holdings is a partnership or disregarded
entity for U.S. federal, state and/or local income tax purposes and Holdings is a direct owner of Borrower, distributions by the Borrower
to Holdings and by Holdings to its direct members to allow the direct and indirect owners of Holdings to pay any U.S. federal, state and
local income Taxes to the extent such Taxes are attributable to the taxable income or gain of the
Borrower and its Subsidiaries (that are classified a partnership or disregarded entity for U.S. federal,
state and/or local income tax purposes); provided that the amount of such distributions by the Borrower to Holdings and/or by Holdings
to its members with respect to any Tax period shall not exceed the amount of Tax distributions payable to the direct members of Holdings
with respect to such Tax period under Section 3.4 of the Amended and Restated Limited Liability Company Agreement of Holdings, as
in effect on the Closing Date; provided further that for purposes of computing the net taxable income or gain allocated to any
direct or indirect owner of Holdings for any Tax period (or portion thereof), such income or gain shall be reduced by any cumulative net
taxable loss with respect to all prior taxable periods (or portions thereof) beginning after the date hereof (determined as if all such
periods were one period) to the extent such cumulative net taxable loss is of a character (ordinary or capital) that would permit such
loss to be deducted against the income of the taxable year in question (or portion thereof);
provided
further that, distributions made pursuant to clause (a) or (b) above shall not constitute “Permitted
Tax Distributions” if a Default shall have occurred and be continuing at the
time of any action described above or would result therefrom.
“Permitted Transfers”
means (a) Dispositions of inventory in the ordinary course of business; (b) Dispositions of property to the Borrower or any
Subsidiaryof its Subsidiaries;
provided, that if the transferor of such property is a Loan Party then the transferee thereof must be a Loan Party; (c) Dispositions
of accounts receivable in connection with the collection or compromise thereof; (d) licenses, sublicenses, leases or subleases granted
to others not interfering in any material respect with the business of the Borrower and its Subsidiaries; and (e) the sale or disposition
of Cash Equivalents for fair market value.
“Person”
means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
“Plan”
means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees
of any Loan Party or any such Plan to which any Loan Party is required to contribute on behalf of any of its employees.
“Platform”
has the meaning specified in Section 6.02.
“Pledged Equity”
has the meaning specified in the Security Agreement.
“Preferred Equity”
means the “Senior Preferred Units” and the “Preferred
Units” as eachsuch
term is defined in the Holdings LLC Agreement as of any date of determination occurring
prior to the De-SPAC Closing Date.
“Preferred
Equity Holder’s Unreturned Contributions” means the “Unreturned Senior Preferred Contributions”
and the “Unreturned Preferred Equity Contributions” with respect to each Preferred Equity Holder as each is defined in the
Holdings LLC Agreement as of the any date of determination
“Preferred Equity
Holders” means the Senior Preferred Members and the Preferred Members.
“Preferred Equity
Subordination Agreement” means (i) that certain
Preferred Equity Subordination Agreement of even date herewith, by and among Borrower, the Preferred Equity Holders and Administrative
Agent, as amended, restated, supplemented or otherwise modified from time to time. and
(ii) any other Preferred Equity Subordination Agreement or joinder thereto, in form and substance satisfactory to Administrative
Agent, executed by Borrower (or Pubco, as applicable), any Preferred Equity Holder or Preferred Pubco Equity Holder and Administrative
Agent, as such agreements are amended, restated, supplemented or otherwise modified from time to time.
34
“Preferred Members”
has the meaning ascribed to such term in the Holdings LLC Agreement as of any date of determination occurring
prior to the De-SPAC Closing Date.
“Preferred
Pubco Equity” means the Series A Convertible Perpetual Preferred Stock, par value $0.0001 per share, of Pubco which shall
be (a) in form and substance satisfactory to the Administrative
Agent (including dividend rate and any mandatory redemption date,
if applicable, that exceeds the Maturity Date by at least six (6) months) and (b)(i) issued on or about the De-SPAC Closing
Date in redemption or exchange of the Senior Preferred Equity, (ii) issued on or after the De-SPAC Closing Date with respect to payment
of the Sandplant Deferred Payment, or (iii) issued on or after the De-SPAC Closing Date and permitted pursuant to this Agreement.
“Preferred
Pubco Equity Holders” means any holders of Preferred Pubco Equity.
“Preferred
Pubco Distribution”
means a regularly scheduled dividend payment not to exceed the rate
set forth in the certificates of designation with respect to the Preferred Pubco Equity as
and when due and payable on a non-accelerated basis.
“Pro Forma Basis”
and “Pro Forma Effect” mean, with respect to compliance with any term hereunder for an applicable period of
measurement, that all Specified Transactions and the following transactions in connection therewith shall be deemed to have occurred on
and as of the first day of the relevant Measurement Period, and the following pro forma adjustments shall be made:
(a) in
the case of an actual or proposed Disposition, all income statement items (whether positive or negative) attributable to the line of business
or the Person subject to such Disposition shall be excluded from the results of the Borrower and its Subsidiaries for such Measurement
Period;
(b) in
the case of an actual or proposed Acquisition, income statement items (whether positive or negative) attributable to the property, line
of business or the Person subject to such Acquisition shall be included in the results of the Borrower and its Subsidiaries for such Measurement
Period;
(c) interest
accrued during the relevant Measurement Period on, and the principal of, any Indebtedness repaid or to be repaid or refinanced in such
transaction shall be excluded from the results of the Borrower and its Subsidiaries for such Measurement Period; and
(d) any
Indebtedness actually or proposed to be incurred or assumed in such transaction shall be deemed to have been incurred as of the first
day of the applicable Measurement Period, and interest thereon shall be deemed to have accrued from such day on such Indebtedness at the
applicable rates provided therefor (and in the case of interest that does or would accrue at a formula or floating rate, at the rate in
effect at the time of determination) and shall be included in the results of the Borrower and its Subsidiaries for such Measurement Period.
“Pro Forma Compliance”
means, with respect to any transaction, that such transaction does not cause, create or result in a Default after giving Pro Forma Effect,
based upon the results of operations for the most recently completed Measurement Period to (a) such transaction and (b) all
other transactions which are contemplated or required to be given Pro Forma Effect hereunder that have occurred on or after the first
day of the relevant Measurement Period.
35
“PTE”
means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time
to time.
“Pubco”
means Suncrete, Inc., a Delaware corporation.
“Public Lender”
has the meaning specified in Section 6.02(p).
“QFC”
has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C.
5390(c)(8)(D).
“QFC Credit Support”
has the meaning specified in Section 11.21.
“Qualified ECP
Guarantor” means, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as
an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible
contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Qualifying Control
Agreement” means an agreement, among a Loan Party, a depository institution or securities intermediary and the Administrative
Agent, which agreement is in form and substance acceptable to the Administrative Agent and which provides the Administrative Agent with
“control” (as such term is used in Article 9 of the UCC) over the deposit account(s) or securities account(s) described
therein.
“Quarterly
Senior Preferred Distribution”
means a regularly scheduled quarterly dividend payment
not to exceed the Senior Preferred Rate paid to the Senior Preferred Members as
and when due and payable on a non-accelerated basis in respect of a Senior Preferred Member’s Unreturned
Senior Preferred Contributions.
“Recipient”
means the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation
of any Loan Party hereunder.
“Register”
has the meaning specified in Section 11.06(c).
“Regulation U”
means Regulation U of the FRB, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
“Related Parties”
means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees,
administrators, managers, advisors, consultants, service providers and representatives of such Person and of such Person’s Affiliates.
“Release”
means any release, spill, emission, discharge, deposit, disposal, leaking, pumping, pouring, dumping, emptying, injection or leaching
into the Environment, or into, from or through any building, structure or facility.
“Reportable Event”
means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty (30) day notice period
has been waived.
36
“Request for Credit
Extension” means (a) with respect to a Borrowing, conversion or continuation of Term Loans or Revolving Loans, a Loan
Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swingline Loan,
a Swingline Loan Notice.
“Required Class Lenders”
means, at any time with respect to any Class of Loans or Commitments, Lenders having Total Credit Exposures with respect to such
Class representing more than 50% of the Total Credit Exposures of all Lenders of such Class. The Total Credit Exposure of any Defaulting
Lender with respect to such Class shall be disregarded in determining Required Class Lenders at any time.
“Required Lenders”
means, at any time, at least two (2) Lenders having Total Credit Exposures representing more than 50% of the Total Credit Exposures
of all Lenders. The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time; provided
that, the amount of any participation in any Swingline Loan and Unreimbursed Amounts that such Defaulting Lender has failed to fund that
have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swingline Lender or the
L/C Issuer, as the case may be, in making such determination; provided further that, this definition is subject to Section 3.03.
“Rescindable Amount”
has the meaning as defined in Section 2.12(b)(ii).
“Resignation Effective
Date” has the meaning set forth in Section 9.06(a).
“Resolution Authority”
means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer”
means the chief executive officer, president, chief financial officer, treasurer, assistant treasurer or controller of a Loan Party, solely
for purposes of the delivery of incumbency certificates pursuant to Section 4.01(b), the secretary or any assistant secretary
of a Loan Party and, solely for purposes of notices given pursuant to Article II, any other officer of the applicable Loan
Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable
Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent. Any document delivered
hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed
to have acted on behalf of such Loan Party. To the extent requested by the Administrative Agent, each Responsible Officer will provide
an incumbency certificate and to the extent requested by the Administrative Agent, appropriate authorization documentation, in form and
substance satisfactory to the Administrative Agent.
“Restricted Payment”
means (a) any dividend or other distribution, direct or indirect, on account of any shares (or equivalent) of any class of Equity
Interests of the BorrowerPubco
or any of its Subsidiaries, now or hereafter outstanding, (b) any redemption, retirement, sinking fund or similar payment, purchase
or other acquisition for value, direct or indirect, of any shares (or equivalent) of any class of Equity Interests of the
BorrowerPubco or any of its Subsidiaries, now or hereafter
outstanding, (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of Equity Interests of any Loan Party or any of its Subsidiaries, now or hereafter outstanding, and (d) any
payment with respect to any earnout obligation and (e) any payment or reimbursement by any Loan Party or any of its Subsidiaries
of any management, monitoring, advising, consulting, investment banking or similar fees, costs or expenses to any Affiliate of any Loan
Party, the Management Entity, the Sponsor or any Affiliate, director, manager, member, officer or employee of the Sponsor, whether pursuant
to a management agreement or otherwise, including any payment of management fees under the Management Agreement.
37
“Revolving Borrowing”
means a borrowing consisting of simultaneous Revolving Loans of the same Type and, in the case of Term SOFR Loans, having the same Interest
Period made by each of the Revolving Lenders pursuant to Section 2.01(b).
“Revolving Commitment”
means, as to each Revolving Lender, its obligation to (a) make Revolving Loans to the Borrower pursuant to Section 2.01(b),
(b) purchase participations in L/C Obligations, and (c) purchase participations in Swingline Loans, in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 1.01(b) under
the caption “Revolving Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The Revolving
Commitment of all of the Revolving Lenders on the ClosingFirst
Amendment Effective Date shall be $15,000,00025,000,000.
“Revolving Exposure”
means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Loans and such Lender’s
participation in L/C Obligations and Swingline Loans at such time.
“Revolving Facility”
means, at any time, the aggregate amount of the Revolving Lenders’ Revolving Commitments at such time.
“Revolving Increase
Effective Date” has the meaning specified in Section 2.16(d).
“Revolving Lender”
means, at any time, (a) so long as any Revolving Commitment is in effect, any Lender that has a Revolving Commitment at such time
or (b) if the Revolving Commitments have terminated or expired, any Lender that has a Revolving Loan or a participation in L/C Obligations
or Swingline Loans at such time.
“Revolving Loan”
has the meaning specified in Section 2.01(b).
“Revolving Note”
means a promissory note made by the Borrower in favor of a Revolving Lender evidencing Revolving Loans or Swingline Loans, as the case
may be, made by such Revolving Lender, substantially in the form of Exhibit G.
“S&P”
means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc., and any successor thereto.
“Sale and Leaseback
Transaction” means, with respect to any Loan Party or any Subsidiary, any arrangement, directly or indirectly, with any
Person whereby such Loan Party or such Subsidiary shall sell or transfer any property used or useful in its business, whether now owned
or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same
purpose or purposes as the property being sold or transferred.
“Sanction(s)”
means any sanction administered or enforced by the United States Government (including, without limitation, OFAC), the United Nations
Security Council, the European Union, Her Majesty’s Treasury (“HMT”) or other relevant sanctions authority.
“Sandplant
Deferred Payment” means an amount not to exceed $22,700,000 representing that portion of the purchase price under the First
Amendment Effective Date Acquisition Documents which will be due and payable in cash to the First Amendment Effective Date Seller on March 31,
2026 (or such later date as may be set forth in any amendment to the First Amendment Effective Date Acquisition Documents).
38
“Scheduled Unavailability
Date” has the meaning specified in Section 3.03(b).
“SEC”
means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Second
Amendment” means that certain Consent and Second Amendment to Credit Agreement, dated as of March 25, 2026, by and among
the Borrower, the other Loan Parties party thereto, the Administrative Agent, and the other Lenders party thereto.
“Second
Amendment Effective Date” means the date that all of the conditions to effectiveness set forth in Section 5 of the Second
Amendment are satisfied.
“Secured Cash
Management Agreement” means any Cash Management Agreement between the any Loan Party and any Cash Management Bank.
“Secured Hedge
Agreement” means any interest rate, currency, foreign exchange, or commodity Swap Contract required by or not prohibited
under Article VI or VII between any Loan Party and any Hedge Bank.
“Secured Obligations”
means all Obligations and all Additional Secured Obligations.
“Secured Parties”
means, collectively, the Administrative Agent, the Lenders, the L/C Issuer, the Hedge Banks, the Cash Management Banks, the Indemnitees
and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05.
“Secured Party
Designation Notice” means a notice from any Lender or an Affiliate of a Lender substantially in the form of Exhibit H.
“Securities Act”
means the Securities Act of 1933, including all amendments thereto and regulations promulgated thereunder.
“Security Agreement”
means the security and pledge agreement, dated as of the Closing Date, executed in favor of the Administrative Agent by each of the Loan
Parties as amended, restated, supplemented or otherwise modified from time to time.
“Senior Preferred
Rate” has the meaning ascribed
toEquity” means the “Senior Preferred
Units” as such term is defined in the Holdings LLC
Agreement as in effect on the date hereofof
any date of determination occurring prior to the De-SPAC Closing Date.
“Senior Preferred
Members” has the meaning ascribed to such term in the Holdings LLC Agreement as of any date of determination occurring
prior to the De-SPAC Closing Date.
“Shareholders’
Equity” means, as of any date of determination, consolidated shareholders’ equity of HoldingsPubco
and its Subsidiaries as of such date, determined in accordance with GAAP.
“SOFR”
means the Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New York (or a successor administrator).
“SOFR Adjustment”
means 0.10% (10 basis points).
“Solvency Certificate”
means a solvency certificate in substantially in the form of Exhibit I.
39
“Solvent”
and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the
fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person,
(b) the present fair saleable value of the assets of such Person is not less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe
that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such
Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s
property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent
obligations and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability.
“Specified Capital
Expenditures” means those Capital Expenditures made by Eagle Redi-Mix Concrete, LLC or RAM Transportation, LLC prior to
the Closing Date in an aggregate amount not to exceed $14,102,465.
“Specified Equity
Contribution” means, at any time, without duplication, (a) the amount of cash proceeds received by HoldingsPubco
as a cash capital contribution from one or more holders of the Equity Interests of HoldingsPubco,
or (b) the amount of cash proceeds received from the issuance of common Equity Interests (other than Disqualified Equity Interests)
issued by HoldingsPubco
to one or more of the holders of the Equity Interests of HoldingsPubco
and, in each case of (a) and (b) promptly contributed in cash to the Borrower by Holdings,
which is made for the purpose of curing a failure to comply with a Financial Covenant that would otherwise occur, pursuant to the exercise
of a cure right pursuant to Section 8.03.
“Specified
Event of Default” means any Event of Default pursuant to Section 8.01(a), Section 8.01(f) or Section 8.01(g).
“Specified Loan
Party” means any Loan Party that is not then an “eligible contract participant” under the Commodity Exchange
Act (determined prior to giving effect to Section 10.11).
“Specified Ready
Mix EBITDA Addbacks” means the amount of “run rate” cost savings, operating expense improvements, synergies,
restructurings, and cost savings initiatives (net of the amount of actual benefits realized during such period from such actions) related
to the Specified Ready Mix Plant Assets that are reasonably identifiable, factually supportable and projected by the Borrower in good
faith to result from actions that have been taken or with respect to which substantial steps have been taken or are expected to be taken
(in the good faith determination of the Borrower), in an amount equal to $1,000,000 for the fiscal quarter ending on June 30, 2024,
$500,00 for the fiscal quarter ending on September 30, 2024 and $0 for the fiscal quarter ending on December 31, 2024.
“Specified Ready
Mix Plant Assets” means the assets purchased by Eagle Concrete pursuant to that certain Asset Purchase Agreement and Real
Estate Purchase and Sale Agreement by and between Standard Materials Group, Inc., Eagle Concrete and CRH Americas Materials, Inc.,
dated as of January 5, 2024.
“Specified Transaction”
means any Permitted Acquisition, any Acquisition consented to by Administrative
Agent and the Required Lenders (including, but not limited to, the First Amendment Effective Date Acquisition), any Disposition,
any Investment, any incurrence of Indebtedness, any Restricted Payment or any other event that by the terms of the Loan Documents requires
compliance on a Pro Forma Basis with a test or covenant, calculation as to Pro Forma Effect with respect to a financial definition, test
or covenant or requires such financial definition, test or covenant to be calculated on a Pro Forma Basis.
40
“Sponsor”
means (a) Ned N. Fleming, III, (b) Mark R. Matteson, and (c) SunTx
Capital Management Corp., a Texas corporation and its Affiliates.
“Subordinated
Debt” means any Indebtedness incurred by any Loan Party (other
than Pubco or Holdings) which by its terms (a) is subordinated in right of payment to the prior payment of the Obligations
and (b) contains other terms, including, without limitation, standstill, interest rate, maturity and amortization, and insolvency-related
provisions, in all respects acceptable to the Administrative Agent in its sole discretion.
“Subordinated
Debt Documents” means any agreements (including, without limitation intercreditor agreements, instruments and other documents)
pursuant to which Subordinated Debt has been or will be issued or otherwise setting forth the terms of any Subordinated Debt.
“Subordinated
Provisions” has the meaning specified in Section 8.01(m).
“Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of
the shares of Voting Stock is at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly
through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary”
or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the HoldingsPubco.
“Successor Rate”
has the meaning specified in Section 3.03(b).
“Supported QFC”
has the meaning specified in Section 11.21.
“Swap Contract”
means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options
or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions,
cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency
options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter
into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and
all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form
of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”),
including any such obligations or liabilities under any Master Agreement.
“Swap Obligations”
means with respect to any Guarantor any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap”
within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swap Termination
Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out
and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date
referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined
based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which
may include a Lender or any Affiliate of a Lender).
41
“Swingline Borrowing”
means a borrowing of a Swingline Loan pursuant to Section 2.04.
“Swingline Commitment”
means, as to any Lender (a) the amount set forth opposite such Lender’s name on Schedule 1.01(b) hereof or (b) if
such Lender has entered into an Assignment and Assumption or has otherwise assumed a Swingline Commitment after the Closing Date, the
amount set forth for such Lender as its Swingline Commitment in the Register maintained by the Administrative Agent pursuant to Section 11.06(c).
“Swingline Lender”
means Bank of America in its capacity as provider of Swingline Loans, or any successor swingline lender hereunder.
“Swingline Loan”
has the meaning specified in Section 2.04(a).
“Swingline Loan
Notice” means a notice of a Swingline Borrowing pursuant to Section 2.04(b), which shall be substantially in
the form of Exhibit J or such other form as approved by the Administrative Agent (including any form on an electronic platform
or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible
Officer of the Borrower.
“Swingline Sublimit”
means an amount equal to the lesser of (a) $5,000,000 and (b) the Revolving Facility. The Swingline Sublimit is part of, and
not in addition to, the Revolving Facility.
“Synthetic Debt”
means, with respect to any Person as of any date of determination thereof, all obligations of such Person in respect of transactions entered
into by such Person that are intended to function primarily as a borrowing of funds (including any minority interest transactions that
function primarily as a borrowing) but are not otherwise included in the definition of “Indebtedness” or as a liability on
the Consolidated balance sheet of such Person and its Subsidiaries in accordance with GAAP.
“Synthetic Lease
Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention
lease, or (b) an agreement for the use or possession of property (including Sale and Leaseback Transactions), in each case, creating
obligations that do not appear on the balance sheet of such Person but which, upon the application of any Debtor Relief Laws to such Person,
would be characterized as the indebtedness of such Person (without regard to accounting treatment).
“Target”
has the meaning set forth in the definition of “Permitted Acquisition.”
“Target Non-GAAP
Accounting Methodology” has the meaning specified in Section 1.03(d).
“Tax
Group” has the meaning set forth in the definition of
“Permitted Tax Distributions”.
“Taxes”
means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees
or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Borrowing”
means a borrowing consisting of simultaneous Term Loans of the same Type and, in the case of Term SOFR Loans, having the same Interest
Period made by each of the Term Lenders pursuant to Section 2.01(a).
42
“Term Commitment”
means, as to each Term Lender, its obligation to make Term Loans to the Borrower pursuant to Section 2.01(a)
in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Term Lender’s name
on Schedule 1.01(b) under the caption “Term Commitment” or opposite such caption in the Assignment and Assumption
pursuant to which such Term Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance
with this Agreement. The Term Commitment of all of the Term Lenders on the Closing Date
shall bewas $130,000,000.
“Term Facility”
means, at any time, (a) on or prior to the Closing Date,First
Amendment Effective Date, the aggregate principal amount of the Term Loans of all Lenders outstanding at such time plus the aggregate
amount of the First Amendment Incremental Term Commitments at such
time, and (b) thereafter, the aggregate principal amount of the
Term Loans of all Term Lenders outstanding at such time.
“Term Lender”
means (a) at any time on or prior to the Closing Date, any Lender that has a Term Commitment at
such time and (b) at any time after the Closing Date, anyany
Lender agreeing to make Term Loans to the Borrower pursuant to Section 2.01 and any Lender that holds such
Term Loans at suchany
time thereafter.
“Term Loan”
means an advance made by any Term Lender under the Term Facility and, for
the avoidance of doubt, shall include each Additional Term Loan made by a First Amendment Incremental Term Lender on the First Amendment
Effective Date.
“Term Note”
means a promissory note made by the Borrower in favor of a Term Lender evidencing Term Loans made by such Term Lender, substantially in
the form of Exhibit K.
“Term SOFR”
means:
(a) for
any Interest Period with respect to a Term SOFR Loan, the rate per annum equal to the Term SOFR Screen Rate two U.S. Government Securities
Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period; provided that if the rate
is not published prior to 11:00 a.m. on such determination date then Term SOFR means the Term SOFR Screen Rate on the first U.S.
Government Securities Business Day immediately prior thereto, in each case, plus the SOFR Adjustment for such Interest Period; and
(b) for
any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the Term SOFR Screen Rate two U.S.
Government Securities Business Days prior to such date with a term of one month commencing that day, provided that if the rate is not
published prior to 11:00 a.m. on such determination date then Term SOFR means the Term SOFR Screen Rate on the first U.S. Government
Securities Business Day immediately prior thereto, in each case, plus the SOFR Adjustment for such term;
provided that if the Term
SOFR determined in accordance with either of the foregoing provisions (a) or (b) of this definition would otherwise be less
than zero, the Term SOFR shall be deemed zero for purposes of this Agreement.
“Term SOFR Loan”
means a Loan that bears interest at a rate based on clause (a) of the definition of Term SOFR.
“Term SOFR Replacement
Date” has the meaning specified in Section 3.03(b).
43
“Term SOFR Screen
Rate” means the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to the Administrative
Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations
as may be designated by the Administrative Agent from time to time).
“Threshold
Amount” means, at any date of determination, the greater of (a) [*****] and (b) [*****] of Consolidated
EBITDA for the four consecutive Fiscal Quarters of Holdings most recently ended as of such date of determination for which financial
statements have been delivered pursuant to Section 6.01(a) or (b), as applicable.
“Total Credit
Exposure” means, as to any Lender at any time, the unused Commitments, Revolving Exposure and Outstanding Amount of all
Term Loans of such Lender at such time.
“Total Revolving
Exposure” means, as to any Revolving Lender at any time, the unused Commitments and Revolving Exposure of such Revolving
Lender at such time.
“Total Revolving
Outstandings” means the aggregate Outstanding Amount of all Revolving Loans, Swingline Loans and L/C Obligations.
“Transaction Costs”
means (i) with respect to the period from the Closing Date until the
First Amendment Effective Date, the reasonable and documented costs, fees and expenses incurred on or before the date that is sixty
(60) days after the Closing Date in connection with the negotiation,
execution and delivery of this Agreement and the other Loan Documents and the Closing Date Acquisition in an aggregate amount not to exceed
$10,000,000. and (ii) with
respect to the period from and after the First Amendment Effective Date, the reasonable and documented costs, fees and expenses incurred
on or before the date that is six (6) months after the closing or effectiveness of the following events (or the termination or abandonment
of any such transaction) and incurred in connection therewith (A) in pursuit of any Acquisition or Permitted Acquisition (whether
or not consummated), and (B) any equity issuance, voting agreements, shareholder agreements, consolidations, restructurings, other
Investment, or any transaction (whether structured as a business combination with a special purpose acquisition company, a direct listing,
an initial public offering, a follow-on offering or any analogous transaction or series of related transactions) that is undertaken with
the bona fide intent of causing the common equity (or other applicable Equity Interest) of the Borrower or any direct or indirect parent
of the Borrower to become listed or quoted for trading on any securities exchange or quotation system, and including, in each case, any
efforts, preparations or negotiations related thereto.
“Transactions”
means the transactions contemplated by the Closing Date Acquisition Documents and this Agreement to be consummated on the Closing Date
and the Loans to be made on the Closing Date.
“Type”
means, with respect to a Loan, its character as a Base Rate Loan or a Term SOFR Loan.
“UCC”
means the Uniform Commercial Code as in effect in the State of New York; provided that, if perfection or the effect of perfection
or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in
a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect from time
to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection
or priority.
“UCP”
means the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce Publication No. 600 (or such
later version thereof as may be in effect at the applicable time).
44
“UK Financial
Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated
by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to
time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms,
and certain affiliates of such credit institutions or investment firms.
“UK Resolution
Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution
of any UK Financial Institution.
“United States”
and “U.S.” mean the United States of America.
“Unreimbursed
Amount” has the meaning specified in Section 2.03(f).
“Unreturned
Senior Preferred Contributions” has the meaning ascribed to
such term in the Holdings LLC Agreement as of any date of determination.
“U.S. Government
Securities Business Day” means any Business Day, except any Business Day on which any ofday
except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association,
the New York Stock Exchange or the Federal Reserve Bank of New York is not open for business because such day is a legal holiday under
the federal laws of the United States or the laws of the State of New York, as applicable. recommends
that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S.
Loan Party” means any Loan Party that is organized under the laws of the United States, any state thereof for the District
of Columbia.
“U.S.
Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“U.S. Special
Resolution Regimes” has the meaning specified in Section 11.21.
“U.S.
Tax Compliance Certificate” has the meaning specified in Section 3.01(f)(ii)(B)(3).
“Voting Stock”
means, with respect to any Person, Equity Interests issued by such Person the holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing similar functions) of such Person, even though the right to so vote
has been suspended by the happening of such contingency.
“Write-Down
and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers
of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down
and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers
of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any
UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into
shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect
as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In
Legislation that are related to or ancillary to any of those powers.
45
2. Other
Interpretive Provisions.
With reference to this Agreement
and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The
definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require,
any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes”
and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will”
shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document (including the Loan Documents and any Organization Document)
shall be construed as referring to such agreement, instrument or other document as from time to time amended, amended and restated, modified,
extended, restated, replaced or supplemented from time to time (subject to any restrictions on such amendments, supplements or modifications
set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s
successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,”
and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not
to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Preliminary Statements, Exhibits
and Schedules shall be construed to refer to Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the Loan
Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory rules, regulations,
orders and provisions consolidating, amending, replacing or interpreting such law and any reference to any law, rule or regulation
shall, unless otherwise specified, refer to such law, rule or regulation as amended, modified, extended, restated, replaced or supplemented
from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract
rights.
(b) In
the computation of periods of time from a specified date to a later specified date, the word “from” means “from and
including;” the words “to” and “until” each mean “to but excluding;” and the word “through”
means “to and including.”
(c) Section headings
herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this
Agreement or any other Loan Document.
(d) Any
reference herein to a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, shall
be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company
(or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, assignment, sale,
disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company
shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or
any other like term shall also constitute such a Person or entity).
46
3. Accounting
Terms.
(a) Generally.
All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity
with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the
Audited Financial Statements, except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining
compliance with any covenant (including the computation of any financial covenant) contained herein, (i) Indebtedness of the
BorrowerPubco and its Subsidiaries shall be deemed
to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 on financial liabilities shall be disregarded,
(ii) all liability amounts shall be determined excluding any liability relating to any operating lease, all asset amounts shall be
determined excluding any right-of-use assets relating to any operating lease, all amortization amounts shall be determined excluding any
amortization of a right-of-use asset relating to any operating lease, and all interest amounts shall be determined excluding any deemed
interest comprising a portion of fixed rent payable under any operating lease, in each case to the extent that such liability, asset,
amortization or interest pertains to an operating lease under which the covenantor or a member of its consolidated group is the lessee
and would not have been accounted for as such under GAAP as in effect on December 31, 2015, and (iii) all terms of an accounting
or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without
giving effect to any election under FASB ASC Topic 825 “Financial Instruments” (or any other financial accounting standard
having a similar result or effect) to value any Indebtedness of the BorrowerPubco
or any Subsidiary at “fair value”, as defined therein. For purposes of determining the amount of any outstanding Indebtedness,
no effect shall be given to any election by the BorrowerPubco
to measure an item of Indebtedness using fair value (as permitted by Financial Accounting Standards Board Accounting Standards Codification
825–10–25 (formerly known as FASB 159) or any similar accounting standard).
(b) Changes
in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan
Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject
to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to
be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent
and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth
a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
(c) Pro
Forma Treatment. Each Specified Transaction that is consummated during any Measurement Period shall, for purposes of determining compliance
with the financial covenants set forth in Section 7.11, including for
purposes of calculating Consolidated EBITDA as a component thereof (and any percentage limits on add-backs as sub-components of such calculation)
and for purposes of determining the Applicable Rate, be given Pro Forma Effect as of the first day of such Measurement Period.
47
(d) Closing
Date Acquisition. Notwithstanding anything herein to the contrary, until such time as audited financial statements are delivered for
the Fiscal Year ended December 31, 2024 pursuant to Section 6.01(a), for purposes of determining compliance with any
covenant (including the computation of any financial covenant) and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement, all accounting terms herein shall be construed in conformity with and
prepared in conformity with, acceptable accounting standards applied in a manner consistent with that used in the quality of earnings
report prepared by Grant Thornton in connection with the Closing Date Acquisition (the “Target Non-GAAP Accounting Methodology”).
Financial
Covenant Calculations for Periods Occurring Prior to the De-SPAC Closing Date and Thereafter. Notwithstanding anything herein to the contrary:
for
each Measurement Period occurring prior to the date that consolidated financial statements for Pubco and its Subsidiaries are required
to be delivered pursuant to Section 6.01, with respect to calculation of the Financial Covenants for such Measurement Periods, including
(A) for purposes of calculating Consolidated EBITDA as
a component thereof (and any percentage limits on add-backs as sub-components of such calculation), (B) for purposes of determining
Pro Forma Compliance and (C) for purposes of determining the Applicable Rate, all references to the defined term “Pubco”
in the definitions of “Audited Financial Statements,” “Consolidated,” “Consolidated EBITDA,” “Consolidated
Fixed Charge Coverage Ratio,” “Consolidated Funded Indebtedness,” “Consolidated Interest Charges,” “Consolidated
Net Income,” “Consolidated Senior Funded Indebtedness,” and “Consolidated Senior Leverage Ratio” shall instead
be deemed to refer to the defined term “Holdings”;
for
all Measurement Periods occurring thereafter, the De-SPAC Transaction shall, for purposes of determining compliance with the Financial
Covenants for such Measurement Periods, including (A) for purposes of calculating Consolidated EBITDA as a component thereof (and
any percentage limits on add-backs as sub-components of such calculation), (B) for purposes of determining Pro Forma Compliance and
(C) for purposes of determining the Applicable Rate, be given Pro Forma Effect as of the first day of the first Measurement Period
for which consolidated financial statements for Pubco and its Subsidiaries are required to be delivered pursuant to Section 6.01.
In the case of the De-SPAC Transaction, income statement items (whether positive or negative) attributable to the SPAC (as defined in
the Business Combination Agreement) shall be included in the results, but interest accrued during the relevant Measurement Period on,
and the principal of, any Indebtedness repaid or to be repaid or refinanced in such De-SPAC Transaction shall be excluded. By
way of example, if the De-SPAC Closing Date occurs during the first Fiscal Quarter of 2026, the first such Measurement Period would be
the four (4) Fiscal Quarters ending June 30, 2026 and the De-SPAC Transaction would be given Pro Forma Effect as of the first
day of such Measurement Period (i.e., July 1, 2025).
48
4. Rounding.
Any financial ratios required
to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or
down to the nearest number (with a rounding-up if there is no nearest number).
5. Times
of Day.
Unless otherwise specified,
all references herein to times of day shall be references to Central time (daylight or standard, as applicable).
6. Letter
of Credit Amounts.
Unless otherwise specified
herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such
time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document
related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall
be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum
stated amount is in effect at such time.
7. Interest
Rates.
The Administrative Agent does
not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission
or any other matter related to any reference rate referred to herein or with respect to any rate (including, for the avoidance of doubt,
the selection of such rate and any related spread or other adjustment) that is an alternative or replacement for or successor to any such
rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or the effect of any of the foregoing,
or of any Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions or other
activities that affect any reference rate referred to herein, or any alternative, successor or replacement rate (including, without limitation,
any Successor Rate) (or any component of any of the foregoing) or any related spread or other adjustments thereto, in each case, in a
manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion
to ascertain any reference rate referred to herein or any alternative, successor or replacement rate (including, without limitation, any
Successor Rate) (or any component of any of the foregoing), in each case pursuant to the terms of this Agreement, and shall have
no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special,
punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or
in equity), for any error or other action or omission related to or affecting the selection, determination, or calculation of any rate
(or component thereof) provided by any such information source or service.
49
8. UCC
Terms.
Terms defined in the UCC in
effect on the Closing Date and not otherwise defined herein shall, unless the context otherwise indicates, have the meanings provided
by those definitions. Subject to the foregoing, the term “UCC” refers, as of any date of determination, to the UCC then in
effect.
Limited
Condition Acquisitions.
Notwithstanding
anything to the contrary herein, to the extent that the terms of this Agreement require (a) compliance with any basket, financial
ratio or test (including any Consolidated Senior Leverage Ratio test or any Consolidated Fixed Charge Coverage Ratio test), (b) the
absence of a Default or an Event of Default, or (c) a determination as to whether the representations and warranties contained in
this Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith
or therewith, shall be true and correct in all material respects (and in all respects if any such representation or warranty is already
qualified by materiality or reference to Material Adverse Effect), in each case in connection with the consummation of a Limited Condition
Acquisition, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrower, (A) on
the date of the execution of the definitive agreement with respect to such Limited Condition Acquisition (such date, the “LCA
Test Date”), or (B) on the date on which such Limited Condition Acquisition is consummated, in either case, after giving
effect to the relevant Limited Condition Acquisition and any related incurrence of Indebtedness, on a Pro Forma Basis; provided, that,
notwithstanding the foregoing, in connection with any Limited Condition Acquisition: (1) the condition set forth in clause (a) of
the definition of “Permitted Acquisition” shall be satisfied if (x) no Event of Default shall have occurred and be continuing
as of the applicable LCA Test Date, and (y) no Specified Event of Default
shall have occurred and be continuing at the time of consummation
of such Limited Condition Acquisition; (2) if the proceeds of an Incremental Term Loan are being used to finance such Limited Condition
Acquisition, then (x) the conditions set forth in Section 2.16(b)(iii) and Section 4.02(a) shall be required
to be satisfied at the time of closing of the Limited Condition Acquisition and funding of such Incremental Term Loan but, if the lenders
providing such Incremental Term Loan so agree, the representations and warranties which must be accurate at the time of closing of the
Limited Condition Acquisition and funding of such Incremental Term Loan may be limited to customary “specified representations”
and such other representations and warranties as may be required by the lenders providing such Incremental Term Loan, and (y) the
conditions set forth in Section 2.16(b)(ii) shall, if and to the extent the lenders providing such Incremental Term Facility
so agree, be satisfied if (I) no Default or Event of Default shall have occurred and be continuing as of the applicable LCA Test
Date, and (II) no Specified Event of Default shall have occurred and be continuing at the time of the funding of such Incremental
Term Facility in connection with the consummation of such Limited Condition Acquisition; and (3) such Limited Condition Acquisition
and the related Indebtedness to be incurred in connection therewith and the use of proceeds thereof shall be deemed incurred and/or applied
at the LCA Test Date (until such time as the Indebtedness is actually incurred or the applicable definitive agreement is terminated without
actually consummating the applicable Limited Condition Acquisition) and outstanding thereafter for purposes of determining Pro Forma Compliance
(other than for purposes of determining Pro Forma Compliance in connection with the making of any Restricted Payment) with any financial
ratio or test (including any Consolidated Senior Leverage Ratio test or any Consolidated Fixed Charge Coverage Ratio test, or any calculation
of the financial covenants set forth in Section 7.11) (it being understood and agreed that for purposes of determining Pro Forma
Compliance in connection with the making of any Restricted Payment, the Borrower shall demonstrate compliance with the applicable test
both after giving effect to the applicable Limited Condition Acquisition and assuming that such transaction had not occurred). For the
avoidance of doubt, if any of such ratios or amounts for which compliance was determined or tested as of the LCA Test Date are thereafter
exceeded or otherwise failed to have been complied with as a result of fluctuations in such ratio or amount (including due to fluctuations
in Consolidated EBITDA), at or prior to the consummation of the relevant Limited Condition Acquisition, such ratios or amounts will not
be deemed to have been exceeded or failed to be complied with as a result of such fluctuations solely for purposes of determining whether
the relevant Limited Condition Acquisition is permitted to be consummated or taken. Except as set forth in clause (2) in the proviso
to the first sentence in this Section 1.09 in connection with the use of the proceeds of an Incremental Term Loan to finance a Limited
Condition Acquisition (and, in the case of such clause (2), only if and to the extent the lenders providing such Incremental Term Loan
so agree as provided in such clause (2)), it is understood and agreed that this Section 1.09 shall not limit the conditions set forth
in Section 4.02 with respect to any proposed Credit Extension, in connection with a Limited Condition Acquisition or otherwise.
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G.
COMMITMENTS AND CREDIT
EXTENSIONS
1. Loans.
(a) Term
Borrowing. Subject to the terms and conditions set forth herein, each Term Lender severally agrees to make a single loan to the Borrower,
in Dollars, on the Closing Date in an amount not to exceed such Term Lender’s Applicable Percentage of the Term Facility. The Term
Borrowing shall consist of Term Loans made simultaneously by the Term Lenders in accordance with their respective Applicable Percentage
of the Term Facility. Term Borrowings repaid or prepaid may not be reborrowed. Term Loans may be Base Rate Loans or Term SOFR Loans, as
further provided herein; provided, however, any Term Borrowing made on the Closing Date or any of the three (3) Business
Days following the Closing Date shall be made as Base Rate Loans unless the Borrower delivers a Funding Indemnity Letter not less than
three (3) Business Days prior to the date of such Term Borrowing.
(b) Revolving
Borrowings. Subject to the terms and conditions set forth herein, each Revolving Lender severally agrees to make loans (each such
loan, a “Revolving Loan”) to the Borrower, in Dollars, from time to time, on any Business Day during the Availability
Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Commitment; provided,
however, that after giving effect to any Revolving Borrowing, (i) the Total Revolving Outstandings shall not exceed the Revolving
Facility, and (ii) the Revolving Exposure of any Lender shall not exceed such Revolving Lender’s Revolving Commitment. Within
the limits of each Revolving Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, the Borrower may
borrow Revolving Loans, prepay under Section 2.05, and reborrow under this Section 2.01(b). Revolving Loans may
be Base Rate Loans or Term SOFR Loans, as further provided herein; provided, however, any Revolving Borrowings made on the
Closing Date or any of the three (3) Business Days following the Closing Date shall be made as Base Rate Loans unless the Borrower
delivers a Funding Indemnity Letter not less than three (3) Business Days prior to the date of such Revolving Borrowing.
Additional
Term Borrowing. Subject to the terms and conditions set forth herein and in the First Amendment, each First Amendment Incremental Term
Lender severally agrees to make a single Additional Term Loan to the Borrower, in Dollars, on the First Amendment Effective Date in an
amount not to exceed its First Amendment Incremental Term Commitment. Additional Term Loans shall constitute Term Loans for the purposes
of this Agreement. Amounts repaid or prepaid in respect of Additional Term Loans may not be reborrowed. Additional Term Loans may be Base
Rate Loans or Term SOFR Loans, as further provided herein.
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2. Borrowings,
Conversions and Continuations of Loans.
(a) Each
Borrowing, each conversion of Loans from one Type to the other, and each continuation of Term SOFR Loans shall be made upon the Borrower’s
irrevocable notice to the Administrative Agent, which may be given by (A) telephone or (B) a Loan Notice; provided that
any telephonic notice must be confirmed promptly by delivery to the Administrative Agent of a Loan Notice. Each such Loan Notice must
be received by the Administrative Agent not later than 11:00 a.m. (i) two (2) Business Days prior to the requested date
of any Borrowing of, conversion to or continuation of Term SOFR Loans or of any conversion of Term SOFR Loans to Base Rate Loans, and
(ii) on the requested date of any Borrowing of Base Rate Loans; provided, however, that if the Borrower
wishes to request Term SOFR Loans having an Interest Period other than one, three or six months in duration as provided in the definition
of “Interest Period,” the applicable notice must be received by the Administrative Agent not later than 11:00 a.m. four
Business Days prior to the requested date of such Borrowing, conversion or continuation, whereupon the Administrative Agent shall give
prompt notice to the Appropriate Lenders of such request and determine whether the requested Interest Period is acceptable to all of them.
Not later than 11:00 a.m., three Business Days before the requested date of such Borrowing, conversion or continuation, the Administrative
Agent shall notify the Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to
by all the Lenders and the Administrative Agent. Each Borrowing of, conversion to or continuation of Term SOFR Loans shall be in a principal
amount of $500,000 or a whole multiple of $100,000 in excess thereof. Except as provided in Sections 2.03(f) and 2.04(c),
each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof. Each Loan Notice shall specify (i) whether the Borrower is requesting a Borrowing, a conversion of Loans from one Type to
the other, or a continuation of Term SOFR Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case
may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the
Type of Loans to be borrowed or to which existing Loans are to be converted, and (v) if applicable, the duration of the Interest
Period with respect thereto. If the Borrower fails to specify a Type of Loan in a Loan Notice or if the Borrower fails to give a timely
notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans. Any such
automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the
applicable Term SOFR Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Term SOFR Loans in any such Loan
Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
(b) Following
receipt of a Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the
applicable Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall
notify each Lender of the details of any automatic conversion to Base Rate Loans described in the preceding subsection. In the case of
a Borrowing, each Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the
Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon satisfaction
of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01),
the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent
either by (i) crediting the account of the Borrower on the books of Bank of America with the amount of such funds or (ii) wire
transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent
by the Borrower; provided, however, that if, on the date the Loan Notice with respect to such Borrowing is
given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment
in full of any such L/C Borrowings, and second, shall be made available to the Borrower as provided above.
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(c) Except
as otherwise provided herein, a Term SOFR Loan may be continued or converted only on the last day of an Interest Period for such Term
SOFR Loan. During the existence of a Default, no Loans may be requested as, converted to or continued as Term SOFR Loans without the consent
of the Required Lenders.
(d) The
Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Term
SOFR Loans upon determination of such interest rate.
(e) After
giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type,
there shall not be more than seven (7) Interest Periods in effect with respect to Loans.
(f) Notwithstanding
anything to the contrary in this Agreement, any Lender may exchange, continue or rollover all of the portion of its Loans in connection
with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless
settlement mechanism approved by the Borrower, the Administrative Agent, and such Lender.
(g) With
respect to SOFR or Term SOFR, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding
anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective
without any further action or consent of any other party to this Agreement or any other Loan Document; provided that, with
respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to
the Borrower and the Lenders reasonably promptly after such amendment becomes effective.
3. Letters
of Credit.
(a) The
Letter of Credit Commitment. Subject to the terms and conditions set forth herein, in addition to the Loans provided for in Section 2.01,
the Borrower may request that the L/C Issuer, in reliance on the agreements of the Revolving Lenders set forth in this Section 2.03,
issue, at any time and from time to time during the Availability Period, Letters of Credit denominated in Dollars for its own account
or the account of any of its Subsidiaries in such form as is acceptable to the Administrative Agent and the L/C Issuer in its reasonable
determination. Letters of Credit issued hereunder shall constitute utilization of the Revolving Commitments.
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(b) Notice
of Issuance, Amendment, Extension, Reinstatement or Renewal.
a) To
request the issuance of a Letter of Credit (or the amendment of the terms and conditions, extension of the terms and conditions, extension
of the expiration date, or reinstatement of amounts paid, or renewal of an outstanding Letter of Credit), the Borrower shall deliver (or
transmit by electronic communication, if arrangements for doing so have been approved by the L/C Issuer) to the L/C Issuer and to the
Administrative Agent not later than 11:00 a.m. at least two (2) Business Days (or such later date and time as the Administrative
Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment,
as the case may be a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, extended,
reinstated or renewed, and specifying the date of issuance, amendment, extension, reinstatement or renewal (which shall be a Business
Day), the date on which such Letter of Credit is to expire (which shall comply with clause (d) of this Section 2.03),
the amount of such Letter of Credit, the name and address of the beneficiary thereof, the purpose and nature of the requested Letter of
Credit and such other information as shall be necessary to prepare, amend, extend, reinstate or renew such Letter of Credit. If requested
by the L/C Issuer, the Borrower also shall submit a letter of credit application and reimbursement agreement on the L/C Issuer’s
standard form in connection with any request for a Letter of Credit. In the event of any inconsistency between the terms and conditions
of this Agreement and the terms and conditions of any form of letter of credit application and reimbursement agreement or other agreement
submitted by the Borrower to, or entered into by the Borrower with, the L/C Issuer relating to any Letter of Credit, the terms and conditions
of this Agreement shall control.
b) If
the Borrower so requests in any applicable Letter of Credit Application (or the amendment of an outstanding Letter of Credit), the L/C
Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension
Letter of Credit”); provided that any such Auto-Extension Letter of Credit shall permit the L/C Issuer to prevent
any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving
prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”)
in each such twelve-month period to be agreed upon by the Borrower and the L/C Issuer at the time such Letter of Credit is issued. Unless
otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension.
Once an Auto-Extension Letter of Credit has been issued, the Revolving Lenders shall be deemed to have authorized (but may not require)
the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiration date not later than the date permitted pursuant
to Section 2.03(d); provided, that the L/C Issuer shall not (A) permit any such extension if (1) the L/C
Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its
extended form under the terms hereof (except that the expiration date may be extended to a date that is no more than one (1) year
from the then-current expiration date) or (2) it has received notice (which may be in writing or by telephone (if promptly confirmed
in writing)) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date from the Administrative Agent
that the Required Lenders have elected not to permit such extension or (B) be obligated to permit such extension if it has received
notice (which may be in writing or by telephone (if promptly confirmed in writing)) on or before the day that is seven (7) Business
Days before the Non-Extension Notice Date from the Administrative Agent, any Revolving Lender or the Borrower that one or more of the
applicable conditions set forth in Section 4.02 is not then satisfied, and in each such case directing the L/C Issuer not
to permit such extension.
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(c) Limitations
on Amounts, Issuance and Amendment. A Letter of Credit shall be issued, amended, extended, reinstated or renewed only if (and
upon issuance, amendment, extension, reinstatement or renewal of each Letter of Credit the Borrower shall be deemed to represent and warrant
that), after giving effect to such issuance, amendment, extension, reinstatement or renewal (w) the aggregate amount of the outstanding
Letters of Credit issued by the L/C Issuer shall not exceed its L/C Commitment, (x) the aggregate L/C Obligations shall not exceed
the Letter of Credit Sublimit, (y) the Revolving Exposure of any Lender shall not exceed its Revolving Commitment and (z) the
Total Revolving Exposure shall not exceed the total Revolving Commitments.
a) The
L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(1) any
order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer
from issuing the Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force
of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from,
the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the L/C Issuer with respect to
the Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder)
not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable
on the Closing Date and which the L/C Issuer in good faith deems material to it;
(2) the
issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(3) except
as otherwise agreed by the Administrative Agent and the L/C Issuer, the Letter of Credit is in an initial stated amount less than $250,000,
in the case of a standby Letter of Credit;
(4) any
Revolving Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash
Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate the L/C Issuer’s
actual or potential Fronting Exposure (after giving effect to Section 2.15(a)(iv)) with respect to the Defaulting Lender arising
from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C
Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or
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(5) the
Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
b) The
L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time
to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not
accept the proposed amendment to the Letter of Credit.
(d) Expiration
Date. Each Letter of Credit shall have a stated expiration date no later than the earlier of (x) the date twelve (12) months
after the date of the issuance of such Letter of Credit (or, in the case of any extension of the expiration date thereof, whether automatic
or by amendment, twelve months after the then-current expiration date of such Letter of Credit) and (y) the Letter of Credit Expiration
Date.
(e) Participations.
a) By
the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount or extending the expiration date thereof),
and without any further action on the part of the L/C Issuer or the Lenders, the L/C Issuer hereby grants to each Revolving Lender, and
each Revolving Lender hereby acquires from the L/C Issuer, a participation in such Letter of Credit equal to such Lender’s Applicable
Percentage of the aggregate amount available to be drawn under such Letter of Credit. Each Revolving Lender acknowledges and agrees that
its obligation to acquire participations pursuant to this clause (e) in respect of Letters of Credit is absolute, unconditional
and irrevocable and shall not be affected by any circumstance whatsoever, including any amendment, extension, reinstatement or renewal
of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Revolving Commitments.
b) In
consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely, unconditionally and irrevocably agrees to
pay to the Administrative Agent, for account of the L/C Issuer, such Lender’s Applicable Percentage of each L/C Disbursement made
by the L/C Issuer not later than 1:00 p.m. on the Business Day specified in the notice provided by the Administrative Agent to the
Revolving Lenders pursuant to Section 2.03(f) until such L/C Disbursement is reimbursed by the Borrower or at any time
after any reimbursement payment is required to be refunded to the Borrower for any reason, including after the Maturity Date. Such payment
shall be made without any offset, abatement, withholding or reduction whatsoever. Each such payment shall be made in the same manner as
provided in Section 2.02 with respect to Loans made by such Lender (and Section 2.02 shall apply, mutatis mutandis,
to the payment obligations of the Revolving Lenders pursuant to this Section 2.03), and the Administrative Agent shall promptly
pay to the L/C Issuer the amounts so received by it from the Lenders. Promptly following receipt by the Administrative Agent of any payment
from the Borrower pursuant to Section 2.03(f), the Administrative Agent shall distribute such payment to the L/C Issuer or,
to the extent that the Revolving Lenders have made payments pursuant to this clause (e) to reimburse the L/C Issuer, then
to such Lenders and the L/C Issuer as their interests may appear. Any payment made by a Lender pursuant to this clause (e) to
reimburse the L/C Issuer for any L/C Disbursement shall not constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such L/C Disbursement.
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c) Each
Revolving Lender further acknowledges and agrees that its participation in each Letter of Credit will be automatically adjusted to reflect
such Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit at each time such
Lender’s Commitment is amended pursuant to the operation of Sections 2.16 as a result of an assignment in accordance
with Section 11.06 or otherwise pursuant to this Agreement.
d) If
any Revolving Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid
by such Lender pursuant to the foregoing provisions of this Section 2.03(e), then, without limiting the other provisions of
this Agreement, the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available
to the L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the L/C Issuer in
accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily
charged by the L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the
amount so paid shall constitute such Lender’s Revolving Loan included in the relevant Revolving Borrowing or L/C Advance in respect
of the relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer submitted to any Revolving Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (e)(vi) shall be conclusive absent manifest error.
(f) Reimbursement.
If the L/C Issuer shall make any L/C Disbursement in respect of a Letter of Credit, the Borrower shall reimburse the L/C Issuer in respect
of such L/C Disbursement by paying to the Administrative Agent an amount equal to such L/C Disbursement not later than 12:00 noon on (i) the
Business Day that the Borrower receives notice of such L/C Disbursement, if such notice is received prior to 10:00 a.m. or (ii) the
Business Day immediately following the day that the Borrower receives such notice, if such notice is not received prior to such time,
provided that, if such L/C Disbursement is not less than $1,000,000, the Borrower may, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.02 or Section 2.04 that such payment be financed with a Borrowing
of Base Rate Loans or Swingline Loan in an equivalent amount and, to the extent so financed, the Borrower’s obligation to make such
payment shall be discharged and replaced by the resulting Borrowing of Base Rate Loans or Swingline Loan. If the Borrower fails to make
such payment when due, the Administrative Agent shall notify each Revolving Lender of the applicable L/C Disbursement, the payment then
due from the Borrower in respect thereof (the “Unreimbursed Amount”) and such Lender’s Applicable Percentage
thereof. Promptly upon receipt of such notice, each Revolving Lender shall pay to the Administrative Agent its Applicable Percentage of
the Unreimbursed Amount pursuant to Section 2.03(e)(ii), subject to the amount of the unutilized portion of the aggregate
Revolving Commitments. Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(f) may
be given by telephone if promptly confirmed in writing; provided that the lack of such an immediate confirmation shall not affect
the conclusiveness or binding effect of such notice.
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(g) Obligations
Absolute. The Borrower’s obligation to reimburse L/C Disbursements as provided in clause (f) of this Section 2.03
shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under
any and all circumstances whatsoever and irrespective of:
a) any
lack of validity or enforceability of this Agreement, any other Loan Document or any Letter of Credit, or any term or provision herein
or therein;
b) the
existence of any claim, counterclaim, setoff, defense or other right that the Borrower or any Subsidiary may have at any time against
any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be
acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such
Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
c) any
draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement in such draft or other document being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
d) waiver
by the L/C Issuer of any requirement that exists for the L/C Issuer’s protection and not the protection of the Borrower or any waiver
by the L/C Issuer which does not in fact materially prejudice the Borrower;
e) honor
of a demand for payment presented electronically even if such Letter of Credit required that demand be in the form of a draft;
f) any
payment made by the L/C Issuer in respect of an otherwise complying item presented after the date specified as the expiration date of,
or the date by which documents must be received under such Letter of Credit if presentation after such date is authorized by the UCC,
the ISP or the UCP, as applicable;
g) payment
by the L/C Issuer under a Letter of Credit against presentation of a draft or other document that does not comply strictly with the terms
of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor
to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor
Relief Law; or
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h) any
other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.03,
constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder.
(h) Examination.
The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event
of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will immediately notify the L/C
Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such
notice is given as aforesaid.
(i) Liability.
None of the Administrative Agent, the Lenders, the L/C Issuer, or any of their Related Parties shall have any liability or responsibility
by reason of or in connection with the issuance or transfer of any Letter of Credit by the L/C Issuer or any payment or failure to make
any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption,
loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including
any document required to make a drawing thereunder), any error in interpretation of technical terms, any error in translation or any consequence
arising from causes beyond the control of the L/C Issuer; provided that the foregoing shall not be construed to excuse the L/C
Issuer from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which
are hereby waived by the Borrower to the extent permitted by Applicable Law) suffered by the Borrower that are caused by the L/C Issuer’s
failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms
thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the L/C Issuer
(as finally determined by a court of competent jurisdiction), the L/C Issuer shall be deemed to have exercised care in each such determination,
and that:
a) the
L/C Issuer may replace a purportedly lost, stolen, or destroyed original Letter of Credit or missing amendment thereto with a certified
true copy marked as such or waive a requirement for its presentation;
b) the
L/C Issuer may accept documents that appear on their face to be in substantial compliance with the terms of a Letter of Credit without
responsibility for further investigation, regardless of any notice or information to the contrary, and may make payment upon presentation
of documents that appear on their face to be in substantial compliance with the terms of such Letter of Credit and without regard to any
non-documentary condition in such Letter of Credit;
c) the
L/C Issuer shall have the right, in its sole discretion, to decline to accept such documents and to make such payment if such documents
are not in strict compliance with the terms of such Letter of Credit; and
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d) this
sentence shall establish the standard of care to be exercised by the L/C Issuer when determining whether drafts and other documents presented
under a Letter of Credit comply with the terms thereof (and the parties hereto hereby waive, to the extent permitted by Applicable Law,
any standard of care inconsistent with the foregoing).
Without limiting the foregoing, none of
the Administrative Agent, the Lenders, the L/C Issuer, or any of their Related Parties shall have any liability or responsibility by reason
of (i) any presentation that includes forged or fraudulent documents or that is otherwise affected by the fraudulent, bad faith,
or illegal conduct of the beneficiary or other Person, (ii) the L/C Issuer declining to take-up documents and make payment, (A) against
documents that are fraudulent, forged, or for other reasons by which that it is entitled not to honor or (B) following a Borrower’s
waiver of discrepancies with respect to such documents or request for honor of such documents or (iii) the L/C Issuer retaining proceeds
of a Letter of Credit based on an apparently applicable attachment order, blocking regulation, or third-party claim notified to the L/C
Issuer.
(j) Applicability
of ISP and UCP. Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued by it, (i) the
rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the UCP shall apply to each commercial
Letter of Credit. Notwithstanding the foregoing, the L/C Issuer shall not be responsible to the Borrower for, and the L/C Issuer’s
rights and remedies against the Borrower shall not be impaired by, any action or inaction of the L/C Issuer required or permitted under
any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the Law or
any order of a jurisdiction where the L/C Issuer or the beneficiary is located, the practice stated in the ISP or UCP, as applicable,
or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for
Finance and Trade – International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law &
Practice, whether or not any Letter of Credit chooses such law or practice.
(k) Benefits.
The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith,
and the L/C Issuer shall have all of the benefits and immunities (i) provided to the Administrative Agent in Article IX
with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to
be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as
used in Article IX included the L/C Issuer with respect to such acts or omissions, and (ii) as additionally provided
herein with respect to the L/C Issuer.
(l) Letter
of Credit Fees. The Borrower shall pay to the Administrative Agent for the account of each Revolving Lender in accordance with its
Applicable Revolving Percentage a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit
equal to the Applicable Rate times the daily amount available to be drawn under such Letter of Credit. For purposes of computing
the daily amount available to be drawn under any standby Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. Letter of Credit Fees shall be (i) payable on the first Business Day following the end
of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit
and (ii) accrued through and including the last day of each calendar quarter in arrears. If there is any change in the Applicable
Rate during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable
Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary
contained herein, upon the request of the Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue
at the Default Rate.
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(m) Fronting
Fee and Documentary and Processing Charges Payable to L/C Issuer. The Borrower shall pay directly to the L/C Issuer for its own account
a fronting fee with respect to each Letter of Credit, at the rate per annum equal to the percentage separately agreed upon between the
Borrower and the L/C Issuer, computed on the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears.
Such fronting fee shall be due and payable no later than the tenth Business Day after the end of each March, June, September and
December in the most recently- ended quarterly period (or portion thereof, in the case of the first payment), commencing with
the first such date to occur after the issuance of such Letter of Credit, on the Maturity Date and thereafter on demand. For purposes
of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined
in accordance with Section 1.06. In addition, the Borrower shall pay directly to the L/C Issuer
for its own account, in Dollars, the customary issuance, presentation, amendment and other processing fees, and other standard
costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs
and charges are due and payable on demand and are nonrefundable.
(n) Disbursement
Procedures. The L/C Issuer for any Letter of Credit shall, within the time allowed by Applicable Laws or the specific terms of the
Letter of Credit following its receipt thereof, examine all documents purporting to represent a demand for payment under such Letter of
Credit. The L/C Issuer shall promptly after such examination notify the Administrative Agent and the Borrower in writing of such demand
for payment if the L/C Issuer has made or will make an L/C Disbursement thereunder; provided that any failure to give or delay
in giving such notice shall not relieve the Borrower of its obligation to reimburse the L/C Issuer and the Lenders with respect to any
such L/C Disbursement.
(a) Interim
Interest. If the L/C Issuer for any standby Letter of Credit shall make any L/C Disbursement, then, unless the Borrower shall reimburse
such L/C Disbursement in full on the date such L/C Disbursement is made, the unpaid amount thereof shall bear interest, for each day from
and including the date such L/C Disbursement is made to but excluding the date that the Borrower reimburses such L/C Disbursement, at
the rate per annum then applicable to Base Rate Loans; provided that if the Borrower fails to reimburse such L/C Disbursement when
due pursuant to clause (f) of this Section 2.03, then Section 2.08(b) shall apply. Interest
accrued pursuant to this clause (o) shall be for account of the L/C Issuer, except that interest accrued on and after the
date of payment by any Lender pursuant to clause (f) of this Section 2.03 to reimburse the L/C Issuer shall
be for account of such Lender to the extent of such payment.
(o) Replacement
of the L/C Issuer. The L/C Issuer may be replaced at any time by written agreement between the Borrower, the Administrative Agent,
the replaced L/C Issuer and the successor L/C Issuer. The Administrative Agent shall notify the Lenders of any such replacement of the
L/C Issuer. At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the account of
the replaced L/C Issuer pursuant to Section 2.03(m). From and after the effective date of any such replacement, (i) the
successor L/C Issuer shall have all the rights and obligations of an L/C Issuer under this Agreement with respect to Letters of Credit
to be issued by it thereafter and (ii) references herein to the term “L/C Issuer” shall be deemed to include such successor
or any previous L/C Issuer, or such successor and all previous L/C Issuer, as the context shall require. After the replacement of the
L/C Issuer hereunder, the replaced L/C Issuer shall remain a party hereto and shall continue to have all the rights and obligations of
an L/C Issuer under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required
to issue additional Letters of Credit.
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(p) Cash
Collateralization.
a) If
any Event of Default shall occur and be continuing, on the Business Day that the Borrower receives notice from the Administrative Agent
or the Required Lenders (or, if the maturity of the Loans has been accelerated, Revolving Lenders with L/C Obligations representing at
least 66-2/3% of the total L/C Obligations) demanding the deposit of Cash Collateral pursuant to this clause (q), the Borrower
shall promptly deposit into an account established and maintained on the books and records of the Administrative Agent (the “Collateral
Account”) an amount in cash equal to 103% of the total L/C Obligations as of such date plus any accrued and unpaid
interest thereon, provided that the obligation to deposit such Cash Collateral shall become effective immediately, and such deposit
shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in clause (f) of Section 8.01. Such deposit shall be held by the Administrative
Agent as collateral for the payment and performance of the obligations of the Borrower under this Agreement. In addition, and without
limiting the foregoing or clause (d) of this Section 2.03, if any L/C Obligations remain outstanding after
the expiration date specified in said clause (d), the Borrower shall promptly deposit into the Collateral Account an amount
in cash equal to 103% of such L/C Obligations as of such date plus any accrued and unpaid interest thereon.
b) The
Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over the Collateral Account.
Other than any interest earned on the investment of such deposits, which investments shall be made at the reasonable discretion of the
Administrative Agent and at the Borrower’s risk and expense, such deposits shall not bear interest. Interest or profits, if any,
on such investments shall accumulate in the Collateral Account. Moneys in the Collateral Account shall be applied by the Administrative
Agent to reimburse the L/C Issuer for L/C Disbursements for which it has not been reimbursed, together with related fees, costs, and customary
processing charges, and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower
for the L/C Obligations at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders with
L/C Obligations representing 66-2/3% of the total L/C Obligations), be applied to satisfy other obligations of the Borrower under this
Agreement. If the Borrower is required to provide an amount of Cash Collateral hereunder as a result of the occurrence of an Event of
Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three (3) Business Days after
all Events of Default have been cured or waived.
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(b) Letters
of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations
of, or is for the account of, a Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and all drawings
under such Letter of Credit as if such Letter of Credit had been issued solely for the account of the Borrower. The Borrower hereby acknowledges
that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s
business derives substantial benefits from the businesses of such Subsidiaries.
(q) Conflict
with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof
shall control.
4. Swingline
Loans.
(a) The
Swingline. Subject to the terms and conditions set forth herein, the Swingline Lender, in reliance upon the agreements of the other
Lenders set forth in this Section 2.04, may in its sole discretion make loans to the Borrower (each such loan, a “Swingline
Loan”). Each such Swingline Loan may be made, subject to the terms and conditions set forth herein, to the Borrower, in
Dollars, from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding
the amount of the Swingline Sublimit; provided, however, that (i) after giving effect to any Swingline Loan, (A) the
Total Revolving Outstandings shall not exceed the Revolving Facility at such time, and (B) the Revolving Exposure of any Revolving
Lender at such time shall not exceed such Lender’s Revolving Commitment, (ii) the Borrower shall not use the proceeds of any
Swingline Loan to refinance any outstanding Swingline Loan, and (iii) the Swingline Lender shall not be under any obligation to make
any Swingline Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by
such Credit Extension may have, Fronting Exposure. Within the foregoing limits, and subject to the other terms and conditions hereof,
the Borrower may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04.
Each Swingline Loan shall bear interest only at a rate based on the Base Rate plus the Applicable Rate. Immediately upon the making of
a Swingline Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline
Lender a risk participation in such Swingline Loan in an amount equal to the product of such Revolving Lender’s Applicable Revolving
Percentage times the amount of such Swingline Loan.
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(b) Borrowing
Procedures. Each Swingline Borrowing shall be made upon the Borrower’s irrevocable notice to the Swingline Lender and the Administrative
Agent, which may be given by: (i) telephone or (ii) a Swingline Loan Notice; provided that any telephonic notice must
be confirmed promptly by delivery to the Swingline Lender and the Administrative Agent of a Swingline Loan Notice. Each such Swingline
Loan Notice must be received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing
date, and shall specify (A) the amount to be borrowed, which shall be a minimum of $100,000, and (B) the requested date of the
Borrowing (which shall be a Business Day). Promptly after receipt by the Swingline Lender of any Swingline Loan Notice, the Swingline
Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline
Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof.
Unless the Swingline Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of
any Revolving Lender) prior to 2:00 p.m. on the date of the proposed Swingline Borrowing (1) directing the Swingline Lender
not to make such Swingline Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(a),
or (2) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to
the terms and conditions hereof, the Swingline Lender may make the amount of its Swingline Loan available to the Borrower at its office
by crediting the account of the Borrower on the books of the Swingline Lender in immediately available funds.
(c) Refinancing
of Swingline Loans.
a) The
Swingline Lender at any time in its sole discretion may request, on behalf of the Borrower (which hereby irrevocably authorizes the Swingline
Lender to so request on its behalf), that each Revolving Lender make a Base Rate Loan in an amount equal to such Lender’s Applicable
Revolving Percentage of the amount of Swingline Loans then outstanding. Such request shall be made in writing (which written request shall
be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard
to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the
Revolving Facility and the conditions set forth in Section 4.02. The Swingline Lender shall furnish the Borrower with a copy
of the applicable Loan Notice promptly after delivering such notice to the Administrative Agent. Each Revolving Lender shall make an amount
equal to its Applicable Revolving Percentage of the amount specified in such Loan Notice available to the Administrative Agent in immediately
available funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swingline Loan) for the
account of the Swingline Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such
Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Revolving Lender that so makes funds available shall be deemed
to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline
Lender.
b) Notwithstanding
anything to the contrary in the foregoing, if for any reason any Swingline Loan cannot be refinanced by such a Revolving Borrowing in
accordance with Section 2.04(c)(i) (including, without limitation, the failure to satisfy the conditions set forth in
Section 4.02), the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be
a request by the Swingline Lender that each of the Revolving Lenders fund its risk participation in the relevant Swingline Loan and each
Revolving Lender’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(c)(i) shall
be deemed payment in respect of such participation.
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c) If
any Revolving Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to
be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i),
the Swingline Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the
Swingline Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swingline Lender in accordance
with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged
by the Swingline Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount
so paid shall constitute such Lender’s Revolving Loan included in the relevant Revolving Borrowing or funded participation in the
relevant Swingline Loan, as the case may be. A certificate of the Swingline Lender submitted to any Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (c)(iii) shall be conclusive absent manifest error.
d) Each
Revolving Lender’s obligation to make Revolving Loans or to purchase and fund risk participations in Swingline Loans pursuant to
this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, the Borrower or any
other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided, however, that each Revolving Lender’s obligation
to make Revolving Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02
(other than delivery by the Borrower of a Loan Notice). No such funding of risk participations shall relieve or otherwise impair the obligation
of the Borrower to repay Swingline Loans, together with interest as provided herein.
(d) Repayment
of Participations.
a) At
any time after any Revolving Lender has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives
any payment on account of such Swingline Loan, the Swingline Lender will distribute to such Revolving Lender its Applicable Revolving
Percentage thereof in the same funds as those received by the Swingline Lender.
b) If
any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the
Swingline Lender under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into
by the Swingline Lender in its discretion), each Revolving Lender shall pay to the Swingline Lender its Applicable Revolving Percentage
thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned,
at a rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of the Swingline
Lender. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this
Agreement.
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(e) Interest
for Account of Swingline Lender. The Swingline Lender shall be responsible for invoicing the Borrower for interest on the Swingline
Loans. Until each Revolving Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance
such Revolving Lender’s Applicable Revolving Percentage of any Swingline Loan, interest in respect of such Applicable Revolving
Percentage shall be solely for the account of the Swingline Lender.
(f) Payments
Directly to Swingline Lender. The Borrower shall make all payments of principal and interest in respect of the Swingline Loans directly
to the Swingline Lender.
5. Prepayments.
(a) Optional.
a) The
Borrower may, upon notice to the Administrative Agent pursuant to delivery to the Administrative Agent of a Notice of Loan Prepayment,
at any time or from time to time voluntarily prepay Term Loans and Revolving Loans in whole or in part without premium or penalty subject
to Section 3.05; provided that, unless otherwise agreed by the Administrative Agent, (A) such notice must be received
by the Administrative Agent not later than 11:00 a.m. (1) two (2) Business Days prior to any date of prepayment of Term
SOFR Loans and (2) on the date of prepayment of Base Rate Loans; (B) any voluntary prepayment of Term SOFR Loans shall be in
a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof; and (C) any prepayment of Base Rate Loans shall
be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal
amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to
be prepaid and, if Term SOFR Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly
notify each Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment (based
on such Lender’s Applicable Percentage in respect of the relevant Facility). If such notice is given by the Borrower, the Borrower
shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any
prepayment of any Term SOFR Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts
required pursuant to Section 3.05. Each prepayment of the outstanding Term Loans pursuant to this Section 2.05(a) shall
be applied to the principal repayment installments thereof in inverse order of maturity. Subject to Section 2.15, such prepayments
shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of each of the relevant Facilities.
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b) The
Borrower may, upon notice to the Swingline Lender pursuant to delivery to the Swingline Lender of a Notice of Loan Prepayment (with a
copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swingline Loans in whole or in part without premium
or penalty; provided that, unless otherwise agreed by the Swingline Lender, (A) such notice must be received by the Swingline
Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (B) any such prepayment shall
be in a minimum principal amount of $100,000 or a whole multiple of $100,000 in excess hereof (or, if less, the entire principal thereof
then outstanding). Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(b) Mandatory.
a) Dispositions
and Involuntary Dispositions. The Borrower shall prepay the Loans and/or Cash Collateralize the L/C Obligations as hereinafter provided
in an aggregate amount equal to 100% of the Net Cash Proceeds received by any Loan Party or any Subsidiary from all Dispositions (other
than Permitted Transfers) and Involuntary Dispositions within five (5) Business Days of the date of such Disposition or Involuntary
Disposition; provided, however, that so long as no Default shall have occurred and be continuing, (A) the Loan Parties
may receive up to $2,000,0005,000,000
in the aggregate of such Net Cash Proceeds in any Fiscal Year without making the prepayment described in this Section 2.05(b),
and (B) such Net Cash Proceeds shall not be required to be so applied at the election of the Borrower to the extent such Loan
Party or such Subsidiary reinvests all or any portion of such Net Cash Proceeds (which reinvested amount shall not count against the $2,000,0005,000,000
in clause (i)(A) above) in assets (other than cash and cash equivalents, inventory and accounts receivable) used or useful
in the business of the Borrower or any of its Subsidiaries or to be contractually committed to be so reinvested within twelve (12) months
following such Disposition or Involuntary Disposition, provided, that such Net Cash Proceeds that have been contractually committed
to be reinvested during such twelve (12) month period shall be reinvested within 180 days after the expiration of such twelve (12) month
period; provided further that, if such Net Cash Proceeds shall have not been so reinvested, such Net Cash Proceeds shall be immediately
applied to prepay the Loans and/or Cash Collateralize the L/C Obligations.
b) Specified
Equity Contribution. ;
Equity Issuance.
Immediately upon the
receipt by any Loan Party or any Subsidiary of the Net Cash Proceeds of any Specified Equity Contribution, the Borrower shall prepay the
Loans as hereinafter provided in an aggregate amount equal to 100% of such Net Cash Proceeds.
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Immediately
upon the receipt by any Loan Party or any Subsidiary of the Net Cash Proceeds of any Equity Issuance, the Borrower shall prepay the Loans
as hereinafter provided in an aggregate amount equal to 100% of such Net Cash Proceeds.
(i) Debt
Issuance. Immediately upon the receipt by any Loan Party or any Subsidiary of the Net Cash Proceeds of any Debt Issuance, the Borrower
shall prepay the Loans and/or Cash Collateralize the L/C Obligations as hereinafter provided in an aggregate amount equal to 100% of such
Net Cash Proceeds.
c) Extraordinary
Receipts. Immediately upon receipt by any Loan Party or any Subsidiary of any Extraordinary Receipt in excess of $500,000 in the aggregate
for any Fiscal Year, received by or paid to or for the account of any Loan Party or any of its Subsidiaries, the Borrower shall prepay
the Loans and/or Cash Collateralize the L/C Obligations as hereinafter provided in an aggregate principal amount equal to 100% of all
Net Cash Proceeds received therefrom; provided that with respect to any Net Cash Proceeds of an Extraordinary Receipt, at
the election of the Borrower, and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may
(A) utilize any Net Cash Proceeds constituting proceeds of casualty insurance to promptly repair or rebuild, as applicable, any property
damaged to the comparable state of such property prior to the casualty event, or (B) reinvest all or any portion of such Net Cash
Proceeds in fixed capital or operating assets, in each case of clause (A) or (B) so long as (x) within 180 days after receipt
of such Net Cash Proceeds, such repair, rebuilding or reinvestment shall have been consummated (or a definitive agreement to so reinvest
shall have been executed), and (y) if a definitive agreement to so repair, rebuild or reinvest has been executed within such 180-day
period, then such repair, rebuilding or reinvestment shall have been consummated within 180 days after the entering into of such definitive
agreement; and provided further that any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be immediately
applied to the prepayment of the Loans as set forth in this Section 2.05(b).
d) Application
of Payments. Each prepayment of Loans pursuant to the foregoing provisions of clauses (i) through (iv) of
this Section 2.05(b) shall be applied, first, to the principal repayment installments of the Term Loan
in inverse order of maturity, including, without limitation, the final principal repayment installment on the Maturity Date and, second,
to the Revolving Facility in the manner set forth in clause (vi) of this Section 2.05(b). Subject to Section 2.15,
such prepayments shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of the relevant Facilities.
e) Revolving
Outstandings. If for any reason the Total Revolving Outstandings at any time exceed the Revolving Facility at such time, the Borrower
shall promptly prepay Revolving Loans, Swingline Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations in an aggregate
amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations
pursuant to this Section 2.05(b) unless, after the prepayment of the Revolving Loans and Swingline Loans, the Total Revolving
Outstandings exceed the Revolving Facility at such time.
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f) Application
of Other Payments. Except as otherwise provided in Section 2.15, prepayments of the Revolving Facility made pursuant to
this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swingline Loans, second,
shall be applied to the outstanding Revolving Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations
and the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swingline Loans and Revolving Loans outstanding
at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary
course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral
shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party or any Defaulting Lender that
has provided Cash Collateral) to reimburse the L/C Issuer or the Revolving Lenders, as applicable.
Within the parameters of the
applications set forth above, prepayments pursuant to this Section 2.05(b) shall be applied first to Base Rate Loans
and then to Term SOFR Loans in direct order of Interest Period maturities. All prepayments under this Section 2.05(b) shall
be subject to Section 3.05, but otherwise without premium or penalty, and shall be accompanied by interest on the principal
amount prepaid through the date of prepayment.
6. Termination
or Reduction of Commitments.
(a) Optional.
The Borrower may, upon notice to the Administrative Agent, terminate the Revolving Facility, the Letter of Credit Sublimit or the Swingline
Sublimit, or from time to time permanently reduce the Revolving Facility, the Letter of Credit Sublimit or the Swingline Sublimit; provided
that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m. five (5) Business Days
prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any
whole multiple of $1,000,000 in excess thereof and (iii) the Borrower shall not terminate or reduce (A) the Revolving Facility
if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Outstandings would exceed the Revolving
Facility, (B) the Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of L/C Obligations not fully
Cash Collateralized hereunder would exceed the Letter of Credit Sublimit, or (C) the Swingline Sublimit if, after giving effect thereto
and to any concurrent prepayments hereunder, the Outstanding Amount of Swingline Loans would exceed the Swingline Sublimit.
(b) Mandatory.
a) The
aggregate Term Commitments shall be automatically and permanently reduced to zero on the date of the Term Borrowing. The
aggregate First Amendment Incremental Term Commitments shall be automatically and permanently reduced to zero after giving effect to the
Additional Term Loans made on the First Amendment Effective Date.
b) If
after giving effect to any reduction or termination of Revolving Commitments under this Section 2.06, the Letter of Credit
Sublimit or the Swingline Sublimit exceeds the Revolving Facility at such time, the Letter of Credit Sublimit or the Swingline Sublimit,
as the case may be, shall be automatically reduced by the amount of such excess.
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(c) Application
of Commitment Reductions; Payment of Fees. The Administrative Agent will promptly notify the Lenders of any termination or reduction
of the Letter of Credit Sublimit, Swingline Sublimit or the Revolving Commitment under this Section 2.06. Upon any reduction
of the Revolving Commitments, the Revolving Commitment of each Revolving Lender shall be reduced by such Lender’s Applicable Revolving
Percentage of such reduction amount. All fees in respect of the Revolving Facility accrued until the effective date of any termination
of the Revolving Facility shall be paid on the effective date of such termination.
7. Repayment
of Loans.
(a) Term
Loans. The Borrower shall repay to the Term Lenders the aggregate principal amount of all Term Loans outstanding on last day of each
calendar quarter beginning on September 30, 2024 in the respective amounts set forth opposite such periods (which amounts shall
be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.05),
unless accelerated sooner pursuant to Section 8.02;
Payment Dates
Principal Repayment
Installments
September 30, 2024 through September 30, 20262025
$1,625,000
December 31, 2025 through June 30, 2026
$2,562,500
December 31September 30, 2026 through December 31June 30, 2027
$2,437,5003,843,750
March 31, 2028September 30, 2027 and thereafter
$3,250,0005,125,000
provided,
however, that (i) the final principal repayment installment of the Term Loans shall be repaid on the Maturity Date and in
any event shall be in an amount equal to the aggregate principal amount of all Term Loans outstanding on such date, (ii) if any principal
repayment installment to be made by the Borrower (other than principal repayment installments on Term SOFR Loans) shall come due on a
day other than a Business Day, such principal repayment installment shall be due on the next succeeding Business Day, and such extension
of time shall be reflected in computing interest or fees, as the case may be and (iii) if any principal repayment installment to
be made by the Borrower on a Term SOFR Loan shall come due on a day other than a Business Day, such principal repayment installment shall
be extended to the next succeeding Business Day unless the result of such extension would be to extend such principal repayment installment
into another calendar month, in which event such principal repayment installment shall be due on the immediately preceding Business Day.
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(b) Revolving
Loans. The Borrower shall repay to the Revolving Lenders on the Maturity Date the aggregate principal amount of all Revolving Loans
outstanding on such date.
(c) Swingline
Loans. The Borrower shall repay each Swingline Loan on the earlier to occur of (i) the date ten (10) Business Days after
such Loan is made and (ii) the Maturity Date.
8. Interest
and Default Rate.
(a) Interest.
Subject to the provisions of Section 2.08(b), (i) each Term SOFR Loan shall bear interest on the outstanding principal
amount thereof for each Interest Period from the applicable Borrowing date at a rate per annum equal to the Term SOFR for such Interest
Period plus the Applicable Rate; (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the
applicable Borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate; and (iii) each Swingline Loan
shall bear interest on the outstanding principal amount thereof from the applicable Borrowing date at a rate per annum equal to the Base
Rate plus the Applicable Rate. To the extent that any calculation of interest or any fee required to be paid under this Agreement shall
be based on (or result in) a calculation that is less than zero, such calculation shall be deemed zero for purposes of this Agreement.
(b) Default
Rate.
a) If
any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity,
by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to
the Default Rate to the fullest extent permitted by Applicable Laws.
b) If
any amount (other than principal of any Loan) payable by the Borrower under any Loan Document is not paid when due (without regard to
any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders
such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest
extent permitted by Applicable Laws.
c) Upon
the request of the Required Lenders, while any Event of Default exists (including a payment default), all outstanding Obligations (including
Letter of Credit Fees) may accrue at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent
permitted by Applicable Laws.
d) Accrued
and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
(c) Interest
Payments. Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other
times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment,
and before and after the commencement of any proceeding under any Debtor Relief Law.
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9. Fees.
In addition to certain fees
described in clauses (l) and (m) of Section 2.03:
(a) Commitment
Fee. The Borrower shall pay to the Administrative Agent for the account of each Revolving Lender in accordance with its Applicable
Revolving Percentage, a commitment fee equal to the Applicable Rate times the actual daily amount by which the Revolving Facility
exceeds the sum of (i) the Outstanding Amount of Revolving Loans and (ii) the Outstanding Amount of L/C Obligations,
subject to adjustment as provided in Section 2.15. For the avoidance of doubt, the Outstanding Amount of Swingline Loans shall
not be counted towards or considered usage of the Revolving Facility for purposes of determining the commitment fee. The commitment fee
shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV
is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period. The commitment fee
shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount
shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate
was in effect.
(b) Other
Fees.
a) The
Borrower shall pay to the Administrative Agent and BofA Securities, LLC for its own account fees in the amounts and at the times specified
in the Fee Letter and the First Amendment Fee Letter. Such fees shall
be fully earned when paid and shall not be refundable for any reason whatsoever.
b) The
Borrower shall pay to the Lenders such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified.
Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
10. Computation
of Interest and Fees; Retroactive Adjustments of Applicable Rate.
(a) Computation
of Interest and Fees. All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to the Term
SOFR) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of
fees and interest shall be made on the basis of a three hundred sixty (360) day year and actual days elapsed (which results in more fees
or interest, as applicable, being paid than if computed on the basis of a 365 day year). Interest shall accrue on each Loan for the day
on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid,
provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest
for one (1) day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding
for all purposes, absent manifest error.
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(b) Financial
Statement Adjustments or Restatements. If, as a result of any restatement of or other adjustment to the financial statements of HoldingsPubco
and its Subsidiaries or for any other reason, HoldingsBorrower,
or the Lenders determine that (i) the Consolidated Senior Leverage Ratio as calculated by HoldingsBorrower
as of any applicable date was inaccurate and (ii) a proper calculation of the Consolidated Senior Leverage Ratio would have resulted
in higher pricing for such period, the Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent for
the account of the applicable Lenders or the L/C Issuer, as the case may be, promptly on demand by the Administrative Agent (or, after
the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United
States, automatically and without further action by the Administrative Agent, any Lender or the L/C Issuer), an amount equal to the excess
of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such
period. This clause (b) shall not limit the rights of the Administrative Agent, any Lender or the L/C Issuer, as the case
may be, under any provision of this Agreement to payment of any Obligations hereunder at the Default Rate or under Article VIII.
The Borrower’s obligations under this clause (b) shall survive the termination of the Aggregate Commitments and the
repayment of all other Obligations hereunder.
11. Evidence
of Debt.
(a) Maintenance
of Accounts. The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender
in the ordinary course of business. The Administrative Agent shall maintain the Register in accordance with Section 11.06(c).
The accounts or records maintained by each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made
by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however,
limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event
of any conflict between the accounts and records maintained by any Lender and the Register, the Register shall control in the absence
of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such
Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or records.
Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and
payments with respect thereto.
(b) Maintenance
of Records. In addition to the accounts and records referred to in Section 2.11(a), each Lender and the Administrative
Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations
in Letters of Credit and Swingline Loans. In the event of any conflict between the accounts and records maintained by the Administrative
Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall
control in the absence of manifest error.
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12. Payments
Generally; Administrative Agent’s Clawback.
(a) General.
All payments to be made by the Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense,
recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative
Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars
and in immediately available funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly
distribute to each Lender its Applicable Percentage in respect of the relevant Facility (or other applicable share as provided herein)
of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative
Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue
to accrue. Subject to Section 2.07(a) and as otherwise specifically provided for in this Agreement, if any payment to
be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the Business Day, and such extension
of time shall be reflected in computing interest or fees, as the case may be.
(b) (ii) Funding
by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender prior to
the proposed date of any Borrowing of Term SOFR Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the
date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing,
the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02
(or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time
required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount.
In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in
immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower
to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the
greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in
connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base
Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period,
the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such
Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s
Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender
that shall have failed to make such payment to the Administrative Agent.
a) Payments
by Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the Borrower prior
to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the L/C Issuer, as the case may be, the amount
due. With respect to any payment that the Administrative Agent makes for the account of the Lenders or the L/C Issuer hereunder as to
which the Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies
(such payment referred to as the “Rescindable Amount”): (1) the Borrower has not in fact made such payment;
(2) the Administrative Agent has made a payment in excess of the amount so paid by the Borrower (whether or not then owed); or (3) the
Administrative agent has for any reason otherwise erroneously made such payment; then each of the Appropriate Lenders or the L/C Issuer,
as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount so distributed to
such Lender or the L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount
is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a
rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
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A notice of the
Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (b) shall be conclusive,
absent manifest error.
(c) Failure
to Satisfy Conditions Precedent. If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender
as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative
Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance
with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without
interest.
(d) Obligations
of Lenders Several. The obligations of the Lenders hereunder to make Term Loans and Revolving Loans, to fund participations in Letters
of Credit and Swingline Loans and to make payments pursuant to Section 11.04(c) are several and not joint. The failure
of any Lender to make any Loan, to fund any such participation or to make any payment under Section 11.04(c) on any date
required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible
for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 11.04(c).
(e) Funding
Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or
to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(f) Pro
Rata Treatment. Except to the extent otherwise provided herein: (i) each Borrowing (other than Swingline Borrowings) shall be
made from the Appropriate Lenders, each payment of fees under Section 2.09 and clauses (l) and (m) of
Section 2.03 shall be made for account of the Appropriate Lenders, and each termination or reduction of the amount of the
Commitments shall be applied to the respective Commitments of the Lenders, pro rata according to the amounts of their respective
Commitments; (ii) each Borrowing shall be allocated pro rata among the Lenders according to the amounts of their respective Commitments
(in the case of the making of Revolving Loans) or their respective Loans that are to be included in such Borrowing (in the case of conversions
and continuations of Loans); (iii) each payment or prepayment of principal of Loans by the Borrower shall be made for account of
the Appropriate Lenders pro rata in accordance with the respective unpaid principal amounts of the Loans held by them; and (iv) each
payment of interest on Loans by the Borrower shall be made for account of the Appropriate Lenders pro rata in accordance with the amounts
of interest on such Loans then due and payable to the respective Appropriate Lenders.
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13. Sharing
of Payments by Lenders.
If any Lender shall, by exercising
any right of setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of any of the Facilities
due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to
the proportion of (i) the amount of such Obligations due and payable to such Lender at such time to (ii) the aggregate amount
of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time)
of payments on account of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the other Loan
Documents at such time obtained by all the Lenders at such time or (b) Obligations in respect of any of the Facilities owing (but
not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according
to the proportion of (i) the amount of such Obligations owing (but not due and payable) to such Lender at such time to (ii) the
aggregate amount of the Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the
other Loan Documents at such time) of payments on account of the Obligations in respect of the Facilities owing (but not due and payable)
to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time, then, in each case
under clauses (a) and (b) above, the Lender receiving such greater proportion shall (A) notify the Administrative
Agent of such fact, and (B) purchase (for cash at face value) participations in the Loans and sub-participations in L/C Obligations
and Swingline Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount of Obligations in respect of the Facilities then due and
payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be, provided that:
a) if
any such participations or sub-participations are purchased and all or any portion of the payment giving rise thereto is recovered, such
participations or sub-participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest;
and
b) the
provisions of this Section 2.13 shall not be construed to apply to (A) any payment made by or on behalf of the Borrower
pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence
of a Defaulting Lender), (B) the application of Cash Collateral provided for in Section 2.14, or (C) any payment
obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or sub-participations in L/C
Obligations or Swingline Loans to any assignee or participant, other than an assignment to any Loan Party or any Affiliate thereof (as
to which the provisions of this Section 2.13 shall apply).
Each Loan Party consents to
the foregoing and agrees, to the extent it may effectively do so under Applicable Law, that any Lender acquiring a participation pursuant
to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.
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14. Cash
Collateral.
(a) Obligation
to Cash Collateralize. At any time there shall exist a Defaulting Lender, within one Business Day following the written request of
the Administrative Agent or the L/C Issuer (with a copy to the Administrative Agent), the Borrower shall Cash Collateralize the L/C Issuer’s
Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.15(a)(iv) and any
Cash Collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount.
(b) Grant
of Security Interest. The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to
(and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the Lenders,
and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other
property so provided as Collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which
such Cash Collateral may be applied pursuant to Section 2.14(c). If at any time the Administrative Agent determines that Cash
Collateral is subject to any right or claim of any Person other than the Administrative Agent or the L/C Issuer as herein provided, or
that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon demand by the
Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such
deficiency (determined in the case of Cash Collateral provided pursuant to Section 2.15(a)(v), after giving effect to Section 2.15(a)(v) and
any Cash Collateral provided by the Defaulting Lender). All Cash Collateral (other than credit support not constituting funds subject
to deposit) shall be maintained in blocked, non-interest bearing deposit accounts at Bank of America. The Borrower shall pay on demand
therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance
and disbursement of Cash Collateral.
(c) Application.
Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.14
or Sections 2.03, 2.05, 2.15 or 8.02 in respect of Letters of Credit shall be held and applied to the satisfaction
of the specific L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Revolving
Lender that is a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so
provided, prior to any other application of such property as may be provided for herein.
(d) Release.
Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be released
promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by
the termination of Defaulting Lender status of the applicable Revolving Lender (or, as appropriate, its assignee following compliance
with Section 11.06(b)(vi))) or (ii) the determination by the Administrative Agent and the L/C Issuer that there exists
excess Cash Collateral; provided, however, (A) any such release shall be without prejudice to, and any disbursement
or other transfer of Cash Collateral shall be and remain subject to, any other Lien conferred under the Loan Documents and the other applicable
provisions of the Loan Documents, and (B) the Person providing Cash Collateral and the L/C Issuer may agree that Cash Collateral
shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.
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15. Defaulting
Lenders.
(a) Adjustments.
Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time
as that Lender is no longer a Defaulting Lender, to the extent permitted by Applicable Law:
a) Waivers
and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this
Agreement shall be restricted as set forth in the definition of “Required Lenders” and Section 11.01.
b) Defaulting
Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of
such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by
the Administrative Agent from a Defaulting Lender pursuant to Section 11.08 shall be applied at such time or times as may
be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender
to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting
Lender to the L/C Issuer or the Swingline Lender hereunder; third, to Cash Collateralize the L/C’s Issuer Fronting
Exposure with respect to such Defaulting Lender in accordance with Section 2.14; fourth, as the Borrower may
request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has
failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so
determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (A) satisfy
such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (B) Cash Collateralize
the L/C Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued
under this Agreement, in accordance with Section 2.14; sixth, to the payment of any amounts owing to the Lenders,
the L/C Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer
or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this
Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower
as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of
such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or
as otherwise as may be required under the Loan Documents in connection with any Lien conferred thereunder or directed by a court of competent
jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect
of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of
Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be
applied solely to pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being
applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such time as all Loans and funded and
unfunded participations in L/C Obligations and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments
hereunder without giving effect to Section 2.15(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting
Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.15(a)(ii) shall
be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
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c) Certain
Fees.
(1) Fees.
No Defaulting Lender shall be entitled to receive any fee payable under Section 2.09(a) for any period during which that
Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have
been paid to that Defaulting Lender).
(2) Letter
of Credit Fees. Each Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender
is a Defaulting Lender only to the extent allocable to its Applicable Revolving Percentage of the stated amount of Letters of Credit for
which it has provided Cash Collateral pursuant to Section 2.14.
(3) Defaulting
Lender Fees. With respect to any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause (B) above,
the Borrower shall (1) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender
with respect to such Defaulting Lender’s participation in L/C Obligations or Swingline Loans that has been reallocated to such Non-Defaulting
Lender pursuant to clause (iv) below, (2) pay to the L/C Issuer and the Swingline Lender, as applicable, the amount of
any such fee otherwise payable to such Defaulting Lender to the extent allocable to such L/C Issuer’s or Swingline Lender’s
Fronting Exposure to such Defaulting Lender, and (3) not be required to pay the remaining amount of any such fee.
d) Reallocation
of Applicable Revolving Percentages to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in
L/C Obligations and Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable
Revolving Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation
does not cause the aggregate Revolving Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Commitment.
Subject to Section 11.20, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder
against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender
as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
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e) Cash
Collateral, Repayment of Swingline Loans. If the reallocation described in clause (a)(iv) above cannot, or can only partially,
be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under Applicable Law, (A) first,
prepay Swingline Loans in an amount equal to the Swingline Lender’s Fronting Exposure and (B) second, Cash Collateralize
the L/C Issuer’s Fronting Exposure in accordance with the procedures set forth in Section 2.14.
(b) Defaulting
Lender Cure. If the Borrower, the Administrative Agent, the Swingline Lender and the L/C Issuer agree in writing that a Lender is
no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified
in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that
Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions
as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit
and Swingline Loans to be held pro rata by the Lenders in accordance with their Revolving Commitments (without giving effect to Section 2.15(a)(iv)),
whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect
to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further,
that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will
constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(c) New
Swingline Loans/Letters of Credit. So long as any Revolving Lender is a Defaulting Lender, (i) the Swingline Lender shall not
be required to fund any Swingline Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline
Loan and (ii) the L/C Issuer shall not be required to issue, extend, increase, reinstate or renew any letter of Credit unless it
is satisfied that it will have no Fronting Exposure after giving effect thereto.
16. Increase
in Revolving FacilityCommitments.
Borrower
Request. The Borrower may by written notice to the Administrative Agent elect to
request (x) prior to the Maturity Date for the Revolving Facility, an increase to the existing Revolving Commitments (each, an “Incremental
Revolving Commitment”) and/or (y) the establishment of one or more new term loan commitments (each, an “Incremental
Term Commitment”), by an aggregate amount not in excess of $100,000,000. Each such notice shall specify (i) the date (each,
an “Increase Effective Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which
shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent
and (ii) the identity of each Eligible Assignee to whom the Borrower proposes any portion of such Incremental Commitments be allocated
and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the Incremental
Commitments may elect or decline, in its sole discretion, to provide such Incremental Commitment. Each Incremental Commitment shall be
in an aggregate amount of $5,000,000 or any whole multiple of $5,000,000 in excess thereof (provided that such amount may be less than
$5,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Incremental Commitments set forth
in above), and the Borrower may make a maximum of three (3) such requests pursuant to this Section 2.16.
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Conditions.
The Incremental Commitments shall become effective as of the Increase Effective Date; provided that:
each
of the conditions set forth in Section 4.02 shall be satisfied;
no
Default shall have occurred and be continuing or would result from the borrowings to be made on the Increase Effective Date;
(a) Request
for Increase. Provided there exists no Default, upon notice to the Administrative Agent (which shall promptly notify
the Revolving Lenders), the Borrower may from time to time, request an increase in the Revolving Facility by an amount (for all such requests)
not exceeding $35,000,000 (an “Incremental Facility”); provided that
(i) any such request for an Incremental Facility shall be in a minimum amount of $5,000,000 and in increments of $5,000,000 in excess
thereof, or, if less, in an amount agreed to by the Administrative Agent, and (ii) the Borrower may make a maximum of three (3) such
requests. At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period
within which each Revolving Lender is requested to respond (which shall in no event be less than ten (10) Business Days from the
date of delivery of such notice to the Revolving Lenders).
(b) Lender
Elections to Increase. Each Revolving Lender shall notify the Administrative Agent within such time period whether
or not it agrees to increase its Revolving Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable
Revolving Percentage of such requested increase. Any Revolving Lender not responding within such time period shall
be deemed to have declined to increase its Revolving Commitment.
(c) Notification
by Administrative Agent; Additional Revolving Lenders. The Administrative Agent shall notify the Borrower and each
Revolving Lender of the Revolving Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase,
and subject to the approval of the Administrative Agent, the L/C Issuer and the Swingline Lender, the Borrower may also invite additional
Eligible Assignees to become Revolving Lenders pursuant to a joinder agreement (“New Revolving Lenders”)
in form and substance satisfactory to the Administrative Agent and its counsel.
(d) Effective
Date and Allocations. If the Revolving Facility is increased in accordance with this Section 2.16,
the Administrative Agent and the Borrower shall
determine the effective date (the “Revolving Increase Effective Date”)
and the final allocation of such increase. The Administrative Agent shall promptly notify the Borrower and the Revolving Lenders and
the New Revolving Lenders of the final allocation of such increase and the Revolving Increase Effective Date.
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(e) Conditions
to Effectiveness of Increase. As a condition precedent to such increase, the Borrower shall deliver to the Administrative
Agent a certificate of each Loan Party dated as of the Revolving Increase Effective Date (in sufficient copies for each Lender) signed
by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or
consenting to such increase, and (ii) in the case of the Borrower, certifying that, before and after giving effect to such increase,
(A) the representations and warranties contained in Article V and the other Loan Documents that
are subject to materiality or Material Adverse Effect qualifications are true and correct, in
all respects on and as of the Revolving Increase Effective Date,
and except that as made on and as of such date, and the representations
and warranties contained in the Credit Agreement and the other Loan Documents that are not subject to materiality or Material Adverse
Effect qualifications are true and correct in all material respects on and as of the Increase Effective Date as made on and as of such
date, except (i) in each case to the extent that such representations and warranties specifically refer to an earlier date, in which
case they shall have been true and correct in all material respects as of such earlier date, and (ii) for purposes of this
Section 2.16(b), the representations and warranties contained
in clauses Section 5.05(a) and
Section 5.05(b) of
Section 5.05 shall be deemed to refer to the most recent financial
statements furnished pursuant to clauses Sections 6.01(a) and
(b), respectively, of Section 6.01, and (B) both
before and after giving effect to the Incremental Facility, no Default exists. The Borrower
shall deliver or cause to be delivered any other customary documents (including, without limitation, legal
opinions) as reasonably requested by the Administrative Agent in connection with any Incremental Facility. The Borrower shall prepay any
Revolving Loans outstanding on the Revolving Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05)
to the extent necessary to keep the outstanding Revolving Loans ratable with any revised Applicable Revolving Percentages arising from
any nonratable increase in the Revolving Commitments under this Section 2.16.;
on
a Pro Forma Basis (assuming, in the case of Incremental Revolving Commitments, that such Incremental Revolving Commitments are fully
drawn), the Borrower shall be in compliance with each of the covenants set forth in Section 7.11 and the Consolidated Senior
Leverage Ratio shall not be greater than a “0.25x” turn less than the Consolidated Senior Leverage Ratio permitted under
Section 7.11(a), for the most recently ended period of four (4) consecutive Fiscal Quarters for which financial statements
have been delivered (or were required to be delivered) pursuant to Section 6.01(a) or (b);
the Borrower shall make any
breakage payments in connection with any adjustment of Revolving Loans pursuant to Section 3.05;
the Borrower
shall deliver or cause to be delivered officer’s certificates and legal opinions of the type
delivered on the Closing Date to the extent reasonably requested by, and in form and substance reasonably satisfactory to, the
Administrative Agent; and
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(A) upon the reasonable request of any Lender
made at least seven (7) days prior to the Increase Effective Date, the Borrower shall have provided to such Lender, and such Lender
shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your
customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at
least three (3) Business Days prior to the Increase Effective Date and (B) at least three (3) Business Days prior to the
Increase Effective Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation
shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
Terms
of New Loans and Commitments. The terms and provisions of Loans made pursuant to Incremental Commitments shall be as follows:
terms
and provisions of Incremental Term Loans shall be, except as otherwise set forth herein or in the Increase Joinder, identical to the Term
Loans (it being understood that Incremental Term Loans may be a part of the Term Loans) and to the extent that the terms and provisions
of Incremental Term Loans are not identical to the Term Loans (except to the extent permitted by clause (iii), (iv) or (v) below),
they shall be reasonably satisfactory to the Administrative Agent; provided that in any event the Incremental Term Loans must comply
with clauses (iii), (iv) and (v) below;
the
terms and provisions of Revolving Loans made pursuant to new Commitments shall be identical to the Revolving Loans;
the
weighted average life to maturity of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity
of the then existing Term Loans;
the
maturity date of Incremental Term Loans (the “Incremental Term Loan Maturity Date”) shall not be earlier than the then
Maturity Date; and
the
Applicable Rate for Incremental Term Loans shall be determined by the Borrower and the Lenders of the Incremental Term Loans; provided
that in the event that the Applicable Rate for any Incremental Term Loan is greater than the Applicable Rate for the Term Loans, then
the Applicable Rate for the Term Loans shall be increased to the extent necessary so that the Applicable Rate for the Incremental Term
Loans is equal to the Applicable Rate for the Term Loans, and the Applicable Rate for Revolving Loans (at each point in the table set
forth in the definition of “Applicable Rate,” to the extent
applicable) shall be increased by the same number of basis points as the Applicable Rate for the Term Loan is increased; provided,
further, that in determining the Applicable Rate applicable to the Term Loans and the Incremental Term Loans, (x) original
issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to
the Lenders of the Term Loans or the Incremental Term Loans in the primary syndication thereof shall be included (with OID being equated
to interest based on an assumed four-year life to maturity); (y) customary arrangement or commitment fees payable to the Arranger
(or its respective affiliates) in connection with the Term Loans or to one (1) or more arrangers (or their affiliates) of the Incremental
Term Loans shall be excluded; and (z) if the Base Rate “floor” for the Incremental Term Loans is greater than the Base
Rate “floor” for the existing Term Loans, the difference between such floor for the Incremental Term Loans and the existing
Term Loans shall be equated to an increase in the Applicable Rate for purposes of this clause (v).
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(f) Conflicting
ProvisionsThe Incremental Commitments shall be effected
by a joinder agreement (the “Increase Joinder”) executed by the Borrower, the Administrative Agent and each Lender
making such Incremental Commitment, in form and substance reasonably satisfactory to each of them. Notwithstanding the provisions of Section 11.01,
the Increase Joinder may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents
as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.16.
In addition, unless otherwise specifically provided herein, all references in Loan Documents to Revolving Loans or Term Loans shall be
deemed, unless the context otherwise requires, to include references to Revolving Loans made pursuant to Incremental Revolving Commitments
and Incremental Term Loans that are Term Loans, respectively, made pursuant to this Agreement. This Section 2.16 shall
supersede any provisions in Section 2.13 or Section 11.01
to the contrary.
(g) Incremental
Facility. Except as otherwise specifically set forth herein, all of the other terms and conditions applicable to
such Incremental Facility shall be identical to the terms and conditions applicable to the Revolving Facility.
Adjustment
of Revolving Credit Loans. To the extent the Commitments being increased on the relevant Increase Effective Date are Incremental Revolving
Commitments, then each Revolving Lender that is acquiring an Incremental Revolving Commitment on the Increase Effective Date shall make
a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of the other Revolving Lenders immediately prior to
such Increase Effective Date, so that, after giving effect thereto, the Revolving Loans outstanding are held by the Revolving Lenders
pro rata based on their Revolving Commitments after giving effect to such Increase Effective Date. If there is a new borrowing of Revolving
Loans on such Increase Effective Date, the Revolving Lenders after giving effect to such Increase Effective Date shall make such Revolving
Loans in accordance with Section 2.01(b).
Making
of New Term Loans. On any Increase Effective Date on which new Commitments for Term Loans are effective, subject to the satisfaction of
the foregoing terms and conditions, each Lender of such new Commitment shall make a Term Loan to the Borrower in an amount equal to its
new Commitment.
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Equal
and Ratable Benefit. The Loans and Commitments established pursuant to this clause (f) shall constitute Loans and Commitments under,
and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing,
benefit equally and ratably from the Guarantees and security interests created by the Collateral Documents, except that the new Loans
may be subordinated in right of payment or the Liens securing the new Loans may be subordinated, in each case, to the extent set forth
in the Increase Joinder. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate
that the Lien and security interests granted by the Collateral Documents continue to be perfected under the UCC or otherwise after giving
effect to the establishment of any such class of Term Loans or any such new Commitments.
H.
TAXES, YIELD PROTECTION
AND ILLEGALITY
1. Taxes.
(a) Defined
Terms. For purposes of this Section 3.01, the term “Applicable Law” includes FATCA and the term “Lender”
includes any L/C Issuer.
(b) Payments
Free of Taxes; Obligation to Withhold; Payments on Account of Taxes. Any and all payments by or on account of any obligation of any
Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Laws.
If any Applicable Laws (as determined in the good faith discretion of an applicable withholding agent) require the deduction or withholding
of any Tax from any such payment by the applicable withholding agent, then the applicable withholding agent shall be entitled to make
such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance
with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary
so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable
under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding
or deduction been made.
(c) Payment
of Other Taxes by the Loan Parties. The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with Applicable
Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(d) Tax
Indemnifications.
a) Each
of the Loan Parties shall, and does hereby, jointly and severally indemnify each Recipient, and shall make payment in respect thereof
within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed
or asserted on or attributable to amounts payable under this Section 3.01) payable or paid by such Recipient or required to
be withheld or deducted from a payment to such Recipient, and any reasonable expenses arising therefrom or with respect thereto, whether
or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative
Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
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b) Each
Lender shall, and does hereby, severally indemnify and shall make payment in respect thereof within ten (10) days after demand therefor,
(A) the Administrative Agent against any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party
has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties
to do so) (B) the Administrative Agent against any Taxes attributable to such Lender’s failure to comply with the provisions
of Section 11.06(d) relating to the maintenance of a Participant Register and (C) the Administrative Agent against
any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with
any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered
to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative
Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative
Agent to the Lender from any other source against any amount due to the Administrative Agent under this clause (d)(ii).
(e) Evidence
of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority, as provided in this
Section 3.01, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued
by such Governmental Authority evidencing such payment, a copy of any return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(f) Status
of Lenders; Tax Documentation.
a) Any
Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall
deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative
Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit
such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by
the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested
by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender
is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two
sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(f)(ii)(A),
(ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion,
execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal
or commercial position of such Lender.
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b) Without
limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person,
(1) any
Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or about the date on which such Lender becomes
a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent),
executed copies of IRS Form W–9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(2) any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number
of copies as shall be requested by the recipient) on or about the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following
is applicable:
(a) in
the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect
to payments of interest under any Loan Document, executed copies of IRS Form W–8BEN–E (or W–8BEN, as applicable)
establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax
treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W–8BEN–E (or
W–8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business
profits” or “other income” article of such tax treaty;
(b) executed
copies of IRS Form W–8ECI;
(c) in
the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code,
(x) a certificate substantially in the form of Exhibit M–1 to the effect that such Foreign Lender is not a “bank”
within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning
of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of
the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W–8BEN–E (or
W–8BEN, as applicable); or
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(d) to
the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W–8IMY, accompanied by IRS Form W–8ECI, IRS
Form W–8BEN–E (or W–8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit M–2
or Exhibit M–3, IRS Form W–9, and/or other certification documents from each beneficial owner, as applicable;
provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming
the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit M–4
on behalf of each such direct and indirect partner;
(3) any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number
of copies as shall be requested by the recipient) on or about the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other
form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed,
together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower or the Administrative Agent
to determine the withholding or deduction required to be made; and
(4) if
a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were
to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of
the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law
and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by Applicable
Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested
by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations
under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount,
if any, to deduct and withhold from such payment. Solely for the purposes of this clause (f)(ii)(D), “FATCA” shall
include any amendments made to FATCA after the date of this Agreement.
c) Each
Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete
or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent
in writing of its legal inability to do so.
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(g) Treatment
of Certain Refunds. Unless required by Applicable Laws, at no time shall the Administrative Agent have any obligation to file for
or otherwise pursue on behalf of a Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from
funds paid for the account of such Lender. If any Recipient determines, in its sole discretion exercised in good faith, that it has received
a refund of any Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional
amounts pursuant to this Section 3.01, it shall pay to such Loan Party an amount equal to such refund (but only to the extent
of indemnity payments made, or additional amounts paid, by such Loan Party under this Section 3.01 with respect to the Taxes
giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, as the case may be, and without
interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that each Loan Party,
upon the request of the Recipient, agrees to repay the amount paid over to such Loan Party (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund to such Governmental
Authority. Notwithstanding anything to the contrary in this clause (g), in no event will the applicable Recipient be required to
pay any amount to such Loan Party pursuant to this clause (g) the payment of which would place the Recipient in a less favorable
net after-Tax position than such Recipient would have been in if the Tax subject to indemnification and giving rise to such refund had
not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never
been paid. This clause (g) shall not be construed to require any Recipient to make available its tax returns (or any other
information relating to its Taxes that it deems confidential) to any Loan Party or any other Person.
(h) Survival.
Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative
Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction
or discharge of all other Obligations.
2. Illegality.
If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any
Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to SOFR or Term SOFR,
or to determine or charge interest rates based upon SOFR or Term SOFR, then, upon notice thereof by such Lender to the Borrower (through
the Administrative Agent), (a) any obligation of such Lender to make or continue Term SOFR Loans or to convert Base Rate Loans to
Term SOFR Loans shall be suspended, and (b) if such notice asserts the illegality of such Lender making or maintaining Base Rate
Loans the interest rate on which is determined by reference to the Term SOFR component of the Base Rate, the interest rate on which Base
Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to
the Term SOFR component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances
giving rise to such determination no longer exist. Upon receipt of such notice, (i) the Borrower shall, upon demand from such Lender
(with a copy to the Administrative Agent), prepay or, if applicable, convert all Term SOFR Loans of such Lender to Base Rate Loans (the
interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative
Agent without reference to the Term SOFR component of the Base Rate), either on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such Term SOFR Loan to such day, or immediately, if such Lender may not lawfully continue to
maintain such Term SOFR Loan and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates
based upon SOFR, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without
reference to the Term SOFR component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer
illegal for such Lender to determine or charge interest rates based upon SOFR. Upon any such prepayment or conversion, the Borrower shall
also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 3.05.
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3. Inability
to Determine Rates.
(a) If
in connection with any request for a Term SOFR Loan or a conversion of Base Rate Loans to Term SOFR Loans or a continuation of any such
Loans, as applicable, (i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that
(A) no Successor Rate has been determined in accordance with Section 3.03(b), and the circumstances under clause (i) of
Section 3.03(b) or the Scheduled Unavailability Date has occurred (as applicable) or (B) adequate and reasonable
means do not otherwise exist for determining Term SOFR for any requested Interest Period with respect to a proposed Term SOFR Loan or
in connection with an existing or proposed Base Rate Loan, or (ii) the Administrative Agent or the Required Lenders determine that
for any reason that Term SOFR for any requested Interest Period with respect to a proposed Loan does not adequately and fairly reflect
the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter,
(x) the obligation of the Lenders to make or maintain Term SOFR Loans, or to convert Base Rate Loans to Term SOFR Loans shall be
suspended (to the extent of the affected Term SOFR Loans or Interest Periods), and (y) in the event of a determination described
in the preceding sentence with respect to the Term SOFR component in determining the Base Rate, the utilization of the Term SOFR component
in determining the Base Rate shall be suspended, in each case until the Administrative Agent (or, in the case of a determination by the
Required Lenders described in clause (ii) of this Section 3.03(a), until the Administrative Agent upon instruction
of the Required Lenders) revokes such notice. Upon receipt of such notice, (i) the Borrower may revoke any pending request for a
Borrowing of, conversion to or continuation of Term SOFR Loans (to the extent of the affected Term SOFR Loans or Interest Periods) or,
failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified
therein and (ii) any outstanding Term SOFR Loans shall be deemed to have been converted to Base Rate Loans immediately at the end
of their respective applicable Interest Period.
(b) Notwithstanding
anything to the contrary in this Agreement or any other Loan Documents, if the Administrative Agent determines (which determination shall
be conclusive absent manifest error), or the Borrower or Required Lenders notify the Administrative Agent (with, in the case of the Required
Lenders, a copy to the Borrower) that the Borrower or Required Lenders (as applicable) have determined (which determination likewise shall
be conclusive absent manifest error), that:
a) adequate
and reasonable means do not exist for ascertaining one month, three month and six month interest periods of Term SOFR including, without
limitation, because the Term SOFR Screen Rate is not available or published on a current basis and such circumstances are unlikely to
be temporary; or
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b) CME
or any successor administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent
or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement
identifying a specific date after which one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate
shall or will no longer be made available, or permitted to be used for determining the interest rate of U.S. dollar denominated syndicated
loans, or shall or will otherwise cease, provided that, at the time of such statement, there is no successor administrator
that is satisfactory to the Administrative Agent, that will continue to provide such interest periods of Term SOFR after such specific
date (the latest date on which one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate are no
longer representative or available permanently or indefinitely, the “Scheduled Unavailability Date”);
then,
on a date and time determined by the Administrative Agent (any such date, the “Term SOFR Replacement Date”),
which date shall be at the end of an Interest Period or on the relevant interest payment date, as applicable, for interest calculated
and, solely with respect to clause (ii) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced
hereunder and under any Loan Document with Daily Simple SOFR plus the SOFR Adjustment for any payment period for interest calculated
that can be determined by the Administrative Agent, in each case, without any amendment to, or further action or consent of any other
party to, this Agreement or any other Loan Document (the “Successor Rate”).
If the Successor Rate is Daily Simple
SOFR plus the SOFR Adjustment, all interest payments will be payable on a quarterly basis.
Notwithstanding anything to the contrary
herein, (i) if the Administrative Agent determines that Daily Simple SOFR is not available on or prior to the Term SOFR Replacement
Date or (ii) if the events or circumstances of the type described in Section 3.03(b)(i) or (ii) have
occurred with respect to the Successor Rate then in effect, then in each case, the Administrative Agent and the Borrower may amend this
Agreement solely for purpose of replacing Term SOFR or any then current Successor Rate in accordance with this Section 3.03
at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, with an alternate
benchmark rate giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated credit facilities
syndicated and agented in the United States for such alternative benchmark and, in each case, including any mathematical or other adjustments
to such benchmark giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated credit facilities
syndicated and agented in the United States for such benchmark. For the avoidance of doubt, any such proposed rate and adjustments shall
constitute a “Successor Rate”. Any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after
the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders
comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders object to such amendment.
The Administrative Agent will promptly
(in one or more notices) notify the Borrower and each Lender of the implementation of any Successor Rate.
Any Successor Rate shall be applied
in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible
for the Administrative Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative
Agent.
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Notwithstanding anything else herein,
if at any time any Successor Rate as so determined would otherwise be less than zero%, the Successor Rate will be deemed to be zero% for
the purposes of this Agreement and the other Loan Documents.
In connection with the implementation
of a Successor Rate, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything
to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without
any further action or consent of any other party to this Agreement; provided that, with respect to any such amendment effected,
the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrower and the Lenders reasonably
promptly after such amendment becomes effective.
4. Increased
Costs.
(a) Increased
Costs Generally. If any Change in Law shall:
a) impose,
modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits
with or for the account of, or credit extended or participated in by, any Lender or the L/C Issuer;
b) subject
any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of
the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or
other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
c) impose
on any Lender or the L/C Issuer any other condition, cost or expense affecting this Agreement or Term SOFR Loans made by such Lender or
any Letter of Credit or participation therein;
and the result of any of the foregoing
shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation
to make any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any Letter
of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received
or receivable by such Lender or the L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such
Lender or the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts
as will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.
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(b) Capital
Requirements. If any Lender or the L/C Issuer determines that any Change in Law affecting such Lender or the L/C Issuer or any Lending
Office of such Lender or such Lender’s or the L/C Issuer’s holding company, if any, regarding capital or liquidity requirements
has or would have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on the capital
of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such
Lender or the Loans made by, or participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters of Credit
issued by the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding
company could have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C Issuer’s policies
and the policies of such Lender’s or the L/C Issuer’s holding company with respect to capital adequacy), then from time to
time the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate
such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction suffered.
(c) Certificates
for Reimbursement. A certificate of a Lender or the L/C Issuer setting forth the amount or amounts necessary to compensate such Lender
or the L/C Issuer or its holding company, as the case may be, as specified in clause (a) or (b) of this Section 3.04
and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender or the L/C Issuer, as the
case may be, the amount shown as due on any such certificate within ten (10) days after receipt thereof.
(d) Delay
in Requests. Failure or delay on the part of any Lender or the L/C Issuer to demand compensation pursuant to the foregoing provisions
of this Section 3.04 shall not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such compensation,
provided that the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of this
Section 3.04 for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that
such Lender or the L/C Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving
rise to such increased costs or reductions is retroactive, then the nine (9) month period referred to above shall be extended to
include the period of retroactive effect thereof).
5. Compensation
for Losses.
Upon demand of any Lender
(with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender
harmless from any loss, cost or expense incurred by it as a result of:
(a) any
continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest
Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b) any
failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any
Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower; or
(c) any
assignment of a Term SOFR Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower
pursuant to Section 11.13;
including any loss of anticipated profits
and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable
to terminate the deposits from which such funds were obtained. The Borrower shall also pay any customary administrative fees charged by
such Lender in connection with the foregoing.
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6. Mitigation
Obligations; Replacement of Lenders.
(a) Designation
of a Different Lending Office. If any Lender requests compensation under Section 3.04, or requires the Borrower to pay
any Indemnified Taxes or additional amounts to any Lender, the L/C Issuer, or any Governmental Authority for the account of any Lender
or the L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then at
the request of the Borrower, such Lender or the L/C Issuer shall, as applicable, use reasonable efforts to designate a different Lending
Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches
or affiliates, if, in the judgment of such Lender or the L/C Issuer, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the
notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender or the L/C Issuer,
as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or the L/C Issuer, as
the case may be. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or the L/C Issuer in connection
with any such designation or assignment.
(b) Replacement
of Lenders. If any Lender requests compensation under Section 3.04, or if the Borrower is required to pay any Indemnified
Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01
and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 3.06(a),
the Borrower may replace such Lender in accordance with Section 11.13.
7. Survival.
All of the Borrower’s
obligations under this Article III shall survive termination of the Aggregate Commitments, repayment of all other Obligations
hereunder, resignation of the Administrative Agent and the Facility Termination Date.
I.
CONDITIONS PRECEDENT TO
CREDIT EXTENSIONS
1. Conditions
of Initial Credit Extension.
The obligation of the L/C
Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
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(a) Execution
of Credit Agreement; Loan Documents. The Administrative Agent shall have received (i) counterparts of this Agreement, executed
by a Responsible Officer of each Loan Party and a duly authorized officer of each Lender, (ii) for the account of each Lender requesting
a Note, a Note executed by a Responsible Officer of the Borrower, (iii) counterparts of the Security Agreement and each other Collateral
Document, executed by a Responsible Officer of the applicable Loan Parties and a duly authorized officer of each other Person party thereto,
as applicable, (iv) counterparts of the Management Fee Subordination Agreement, executed by a Responsible Officer of the applicable
Loan Parties, a duly authorized officer of the Management Entity and a duly authorized officer of each other Person party thereto, as
applicable and (v) counterparts of any other Loan Document, executed by a Responsible Officer of the applicable Loan Party and a
duly authorized officer of each other Person party thereto.
(b) Officer’s
Certificate. The Administrative Agent shall have received an Officer’s Certificate dated the Closing Date, certifying as to
the Organization Documents of each Loan Party (which, to the extent filed with a Governmental Authority, shall be certified as of a recent
date by such Governmental Authority), the resolutions of the governing body of each Loan Party, the good standing, existence or its equivalent
of each Loan Party and of the incumbency (including specimen signatures) of the Responsible Officers of each Loan Party.
(c) Legal
Opinions of Counsel. The Administrative Agent shall have received an opinion or opinions (including, if requested by the Administrative
Agent, local counsel opinions) of counsel for the Loan Parties, dated the Closing Date and addressed to the Administrative Agent and the
Lenders, in form and substance acceptable to the Administrative Agent.
(d) Financial
Statements. The Administrative Agent and the Lenders shall have received copies of (i) a quality of earnings report prepared
by Grant Thornton in connection with the Closing Date Acquisition, in form and substance satisfactory to the Administrative Agent and
updated to include the latest quarterly results of the Closing Date Targets and their subsidiaries for the quarter ending immediately
prior to the Closing Date; and (ii) pro forma consolidated financial statements as to Holdings and its Subsidiaries, giving effect
to all elements of the Transactions to be effected on, or prior to, the Closing Date, and forecasts prepared by management of Holdings,
each in form satisfactory to the Administrative Agent and the Lenders, of balance sheets, income statements, and cash flow statements
on an annual basis for the five years following the Closing Date, each in form and substance satisfactory to each of them.
(e) Personal
Property Collateral. The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:
a) (A) searches
of UCC filings in the jurisdiction of incorporation or formation, as applicable, of each Loan Party and each jurisdiction where any Collateral
is located or where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral,
copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens and (B) tax
lien, judgment and bankruptcy searches;
b) searches
of ownership of Intellectual Property in the appropriate governmental offices and such patent/trademark/copyright filings as requested
by the Administrative Agent in order to perfect the Administrative Agent’s security interest in the Intellectual Property;
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c) completed
UCC financing statements for each appropriate jurisdiction as is necessary, in the Administrative Agent’s sole discretion, to perfect
the Administrative Agent’s security interest in the Collateral;
d) stock
or membership certificates, if any, evidencing the Pledged Equity and undated stock or transfer powers duly executed in blank; in each
case to the extent such Pledged Equity is certificated;
e) subject
to Section 6.17, in the case of any personal property Collateral located at premises leased by a Loan Party and set forth
on Schedule 5.21(g), such estoppel letters, consents and waivers from the landlords of such real property to the extent required
to be delivered in connection with Section 6.14 (such letters, consents and waivers shall be in form and substance satisfactory
to the Administrative Agent, it being acknowledged and agreed that any Landlord Waiver is satisfactory to the Administrative Agent);
f) to
the extent required to be delivered, filed, registered or recorded pursuant to the terms and conditions of the Collateral Documents, all
instruments, documents and chattel paper in the possession of any of the Loan Parties, together with allonges or assignments as may be
necessary or appropriate to create and perfect the Administrative Agent’s and the Lenders’ security interest in the Collateral;
and
g) Qualifying
Control Agreements satisfactory to the Administrative Agent to the extent required to be delivered pursuant to Section 6.14.
(f) Liability,
Casualty, Property, Terrorism and Business Interruption Insurance. The Administrative Agent shall have received copies of insurance
policies, declaration pages, certificates, and endorsements of insurance or insurance binders evidencing liability, casualty, property,
terrorism and business interruption insurance meeting the requirements set forth herein or in the Collateral Documents or as required
by the Administrative Agent. The Loan Parties shall have delivered to the Administrative Agent an Authorization to Share Insurance Information.
(g) Solvency
Certificate. The Administrative Agent shall have received a Solvency Certificate signed by a Responsible Officer of the Borrower as
to the financial condition, solvency and related matters of the Borrower and its Subsidiaries, after giving effect to the initial Borrowings
under the Loan Documents and the other transactions contemplated hereby.
(h) Financial
Condition Certificate. The Administrative Agent shall have received a certificate or certificates executed by a Responsible Officer
of the Borrower as of the Closing Date, as to certain financial matters, substantially in the form of Exhibit P.
(c) Loan
Notice. The Administrative Agent shall have received a Loan Notice with respect to the Loans to be made on the Closing Date.
(i) Existing
Indebtedness of the Loan Parties. All of the existing Indebtedness for borrowed money of Holdings and its Subsidiaries (other than
Indebtedness permitted to exist pursuant to Section 7.02) shall be repaid in full and all security interests related thereto
shall be terminated on or prior to the Closing Date.
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(j) Anti-Money-Laundering;
Beneficial Ownership. Upon the reasonable request of any Lender made at least seven (7) days prior to the Closing Date, the Borrower
shall have provided to such Lender at least three (3) Business Days prior to the Closing Date, and such Lender shall be reasonably
satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and
anti-money-laundering rules and regulations, including, without limitation, the Patriot Act, and any Loan Party that qualifies as
a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to each Lender that so requests,
a Beneficial Ownership Certification in relation to such Loan Party.
(k) Consents.
The Administrative Agent shall have received evidence that all members, boards of directors, governmental, shareholder and third party
consents and approvals necessary, or, in the opinion of the Administrative Agent, desirable, in connection with the Transaction, the Loan
Documents and the other transactions contemplated hereby and thereby have been obtained, and all applicable waiting periods shall have
expired without any action being taken by any authority that could restrain, prevent or impose any material adverse condition on the Loan
Parties and their subsidiaries or such Transaction, or that could seek or threaten any of the foregoing, and no law or regulation shall
be applicable which, in the reasonable judgment of the Administrative Agent, could have such effect.
(l) Fees
and Expenses. The Administrative Agent and the Lenders shall have received all fees and expenses (including the fees and expenses
of counsel (including any local counsel) for the Administrative Agent), if any, owing pursuant to the Fee Letter and Section 2.09.
(m) Due
Diligence. The Lenders shall have completed a due diligence investigation of Holdings, the Closing Date Targets and each of their
respective Subsidiaries in scope, and with results, satisfactory to the Lenders.
(n) Closing
Date Equity Contribution. The Administrative Agent shall be satisfied that Closing Date Equity Contribution has been made.
(o) Consummation
of the Transactions under the Closing Date Acquisition Documents. Administrative Agent shall have received executed copies of Closing
Date Acquisition Documents, which in each case shall be form and substance reasonably satisfactory to Administrative Agent. All conditions
precedent to the Closing Date Acquisition Documents shall have been met and the transactions under the Closing Date Acquisition Documents
shall have been consummated in accordance with all applicable requirements of Law and the terms of the Closing Date Acquisition Documents,
as applicable (without any amendment, modification or waiver of any of the provisions thereof that would be materially adverse to the
Lenders or Administrative Agent without the prior written consent of Administrative Agent).
(p) Preferred
Equity Documents. The Preferred Equity and the Senior Preferred Equity shall be in form and substance satisfactory to the Administrative Agent (including dividend rate and any mandatory redemption date,
if applicable, that exceeds the Maturity Date by at least six (6) months). The Administrative Agent shall have received an executed
Preferred Equity Subordination Agreement.
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(q) Term
Loans. After giving effect to the Term Loans to be made on the Closing Date, the Consolidated Senior Leverage Ratio calculated on
a Pro Forma Basis shall not be greater than 3.00:1.00.
(r) Other
Documents. All other documents provided for herein or which the Administrative Agent or any other Lender may reasonably request or
require.
(s) Additional
Information. Such additional information and materials which the Administrative Agent and/or any Lender shall reasonably request or
require.
Without limiting the
generality of the provisions of Section 9.03(c), for purposes of determining compliance with the conditions specified in this
Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to
be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to
a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
2. Conditions
to all Credit Extensions.
The obligation of each Lender
and the L/C Issuer to honor any Request for Credit Extension is subject to the following conditions precedent:
(a) Representations
and Warranties. The representations and warranties of the Borrower and each other Loan Party contained in Article II,
Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection
herewith or therewith, shall be (i) with respect to representations and warranties that contain a materiality qualification, true
and correct as of the date of such Credit Extension and (ii) with respect to representations and warranties that do not contain a
materiality qualification, true and correct in all material respects on and as of the date of such Credit Extension, and except that for
purposes of this Section 4.02, the representations and warranties contained in Section 5.05(a) and (b) shall
be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b), respectively.
(b) Default.
No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(c) Request
for Credit Extension. The Administrative Agent and, if applicable, the L/C Issuer or the Swingline Lender shall have received a Request
for Credit Extension in accordance with the requirements hereof.
Each Request for Credit
Extension submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a) and (b) have
been satisfied on and as of the date of the applicable Credit Extension.
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J.
REPRESENTATIONS AND WARRANTIES
Each Loan Party represents
and warrants to the Administrative Agent and the Lenders, as of the date made or deemed made, that:
1. Existence,
Qualification and Power.
Each Loan Party and each of
its Subsidiaries (a) is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction
of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations,
consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations
under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and, as applicable, in good standing under
the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification
or license; except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so would not
reasonably be expected to have a Material Adverse Effect. The copy of the Organization Documents of each Loan Party provided to the Administrative
Agent pursuant to the terms of this Agreement is a true and correct copy of each such document, each of which is valid and in full force
and effect.
2. Authorization;
No Contravention.
The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is or is to be a party have been duly authorized by all necessary
corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization
Documents; (b) conflict with or result in any breach or contravention of, or the creation of (or the requirement to create) any Lien
under, or require any payment to be made under (i) any Contractual Obligation to which such Person is a party or affecting such Person
or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority
or any arbitral award to which such Person or its property is subject; or (c) violate any Applicable Law.
3. Governmental
Authorization; Other Consents.
No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required
in connection with (a) the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any
other Loan Document, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the
perfection or maintenance of the Liens created under the Collateral Documents (including the first priority nature thereof) or (d) the
exercise by the Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral
pursuant to the Collateral Documents, other than (i) authorizations, approvals, actions, notices and filings which have been duly
obtained and (ii) filings to perfect the Liens created by the Collateral Documents.
4. Binding
Effect.
This Agreement has been, and
each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such
Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principals of
equity.
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5. Financial
Statements; No Material Adverse Effect.
(a) Audited
Financial Statements. After the Closing Date (commencing with the Fiscal Year ended December 31, 2024), the Audited Financial
Statements most recently delivered pursuant to Section 6.01(a) (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present the financial condition
of Holdings and itsthe Loan
Parties and their Subsidiaries as of the date thereof and their results of operations, cash flows and changes in Shareholders’
Equity for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of Holdings
and itsthe Loan Parties and their Subsidiaries as
of the date thereof, including liabilities for taxes, material commitments and Indebtedness.
(b) Quarterly
Financial Statements. After the Closing Date, the unaudited Consolidated balance sheets of Holdings
and itsthe Loan Parties and their Subsidiaries most
recently delivered pursuant to Section 6.01(b), and the related Consolidated statements of income or operations, Shareholders’
Equity and cash flows for the Fiscal Quarter ended on that date (i) were prepared in accordance with GAAP consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present the financial condition of the Borrower
and itsLoan Parties and their Subsidiaries as of the
date thereof and their results of operations, cash flows and changes in Shareholders’ Equity for the period covered thereby, subject,
in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.
(c) Material
Adverse Effect. Since December 31, 20232024,
there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have
a Material Adverse Effect.
(d) Forecasted
Financials. The Consolidated forecasted balance sheets, statements of income and cash flows of the Borrower and its Subsidiaries
delivered pursuant to Section 4.01, or of
the Loan Parties and their Subsidiaries delivered pursuant to Section 6.01,
in each case, were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light
of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Borrower’s
best estimate of its future financial condition and performance.
(e) Quality
of Earnings Report. The quality of earnings report prepared by Grant Thornton LLP and dated March 31, 2024, in form and
substance reasonably satisfactory to the Administrative Agent, (i) fairly presents the financial condition of Persons described therein
as of the date thereof and their results of operations and cash flows for the period covered thereby; and (ii) shows all material
indebtedness and other liabilities, direct or contingent, of Persons described therein as of the date thereof, including liabilities for
taxes, material commitments and Indebtedness.
(f) Quality
of Earnings Report in connection with First Amendment Effective Date Acquisition. The quality of earnings report prepared by Grant Thornton
LLP and dated August 2025, in form and substance reasonably satisfactory to the Administrative Agent, (i) fairly presents the
financial condition of Persons described therein as of the date thereof and their results of operations and cash flows for the period
covered thereby; and (ii) shows all material indebtedness and other liabilities, direct or contingent, of Persons described therein
as of the date thereof, including liabilities for taxes, material commitments and Indebtedness.
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6. Litigation.
There are no actions, suits,
proceedings, claims or disputes pending or, to the knowledge of the Loan Parties after due and diligent investigation, threatened or contemplated,
at law, in equity, in arbitration or before any Governmental Authority, by or against any Loan Party or any Subsidiary or against any
of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document or any of the
transactions contemplated hereby, or (b) either individually or in the aggregate, if determined adversely, could reasonably be expected
to have a Material Adverse Effect.
7. No
Default.
Neither any Loan Party nor
any Subsidiary thereof is in default under or with respect to, or a party to, any Contractual Obligation that could, either individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred and is continuing or would result
from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
8. Ownership
of Property.
Each Loan Party and each of
its Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or
used in the ordinary conduct of its business, except for Permitted Liens and such defects in title as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
9. Environmental
Matters.
Except as could not, individually
or in the aggregate, reasonably be expected to result in any Material Adverse Effect on any of the Loan Parties or any of their respective
subsidiaries:
a) (A) None
of the properties currently or, to the knowledge of any Loan Party, formerly owned, leased or operated by any Loan Party or any of its
Subsidiaries is listed or formally proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state or local list or
is adjacent to any such property; (B) there are no, and to the knowledge of the Loan Parties and their Subsidiaries never have been
any underground or above-ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials
are being or have been treated, stored or disposed on any property currently owned, leased or operated by any Loan Party or any of its
Subsidiaries or, to the best of the knowledge of the Loan Parties, on any property formerly owned, leased or operated by any Loan Party
or any of its Subsidiaries; (C) there is no asbestos or asbestos-containing material on, at or in any property currently owned, leased
or operated by any Loan Party or any of its Subsidiaries, where, given the condition of such asbestos or asbestos-containing material,
there is a present obligation to remove such material under Environmental Law; (D) Hazardous Materials have not been released, discharged
or disposed of on, at, under or from any property currently or formerly owned, leased or operated by any Loan Party or any of its Subsidiaries
or otherwise arising from the operations, of any Loan Party or any of its Subsidiaries except in material compliance with Environmental
Law or otherwise known to applicable regulatory authorities and subject to (and in compliance with) remedial measures or the assumption
of indemnity obligations by such authorities; and (E) no Loan Party or any of its Subsidiaries has become subject to any Environmental
Liability or knows of any facts or circumstances that could reasonably be expected to give rise to any Environmental Liability;
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b) (A) Neither
any Loan Party nor any of its Subsidiaries is undertaking, and has not completed, either individually or together with other potentially
responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened Release of Hazardous
Materials at, on, under, or from any site, location or operation, either voluntarily or pursuant to the order of any Governmental Authority
or the requirements of any Environmental Law; and (B) all Hazardous Materials generated, used, treated, handled or stored at, or
transported to or from, any property currently or formerly owned, leased or operated by any Loan Party or any of its Subsidiaries have
been disposed of in a manner which could not reasonably expected to result in liability to any Loan Party or any of its Subsidiaries;
and
c) The
Loan Parties and their respective Subsidiaries: (A) are, and within the period of all applicable statutes of limitation have been,
in compliance with all applicable Environmental Laws; (B) hold all Environmental Permits (each of which is in full force and effect)
required for any of their current or intended operations or for any property owned, leased, or otherwise operated by any of them; (C) are,
and within the period of all applicable statutes of limitation have been, in compliance with all of their Environmental Permits; (D) to
the extent within the control of the Loan Parties and their respective Subsidiaries, will timely renew and comply with each of their Environmental
Permits and any additional Environmental permits that may be required of any of them without material expense, and timely comply with
any current, future or potential Environmental Law without material expense; and (E) are not aware of any requirements proposed for
adoption or implementation under any Environmental Law.
10. Insurance.
The properties of the Borrower
and itsLoan Parties and their Subsidiaries are insured
with financially sound and reputable insurance companies not Affiliates of the Borrower, in such amounts, with such deductibles and covering
such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the
applicable Loan Party or the applicable Subsidiary operates. The general liability, casualty, property, terrorism and business interruption
insurance coverage of the Loan Parties as in effect on the Closing Date, and as of the last date such Schedule was required to be updated
in accordance with Sections 6.02, 6.13 and 6.14, is outlined as to carrier, policy number, expiration date, type,
amount and deductibles on Schedule 5.10 and such insurance coverage complies with the requirements set forth in this Agreement
and the other Loan Documents.
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11. Taxes.
Each Loan Party and each of
its Subsidiaries have timely filed (taking into account automatic extensions of time to file obtained in the ordinary course of business)
all federal and state income tax returns and all other material tax returns and reports required to be filed, and have timely paid all
federal and state income and all other material Taxes (whether or not shown on a tax return), including in its capacity as a withholding
agent, levied or imposed upon it or its properties, income or assets otherwise due and payable, except those which are being contested
in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP.
No tax Lien has been filed, and there is no proposed (in writing) tax assessment against any Loan Party or any Subsidiary that would,
if made, have a Material Adverse Effect, nor is there any tax sharing agreement applicable to the Borrower or any Subsidiary.
12. ERISA
Compliance.
(a) Except
as could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, (i) each Plan is
in compliance with the applicable provisions of ERISA, the Code and other federal or state laws; (ii) each Pension Plan that is intended
to be a qualified plan under Section 401(a) of the Code is so qualified under Section 401(a) of the Code and the trust
related thereto is exempt from federal income tax under Section 501(a) of the Code, and to the knowledge of the Loan Parties,
nothing has occurred that would prevent or cause the loss of such tax-qualified status.
(b) There
are no pending or, to the knowledge of the Loan Parties, threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There has been no non-exempt prohibited
transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be
expected to result in a Material Adverse Effect.
(c) (i) No
ERISA Event has occurred, and no Loan Party nor any ERISA Affiliate is aware of any fact, event or circumstance that could reasonably
be expected to constitute or result in an ERISA Event with respect to any Pension Plan or Multiemployer Plan that, either individually
or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; (ii) as of the most recent valuation
date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or
higher and no Loan Party knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment
percentage for any such plan to drop below 60% as of the most recent valuation date; (iii) no Loan Party nor any ERISA Affiliate
has incurred any liability to the PBGC other than for the payment of premiums, and there are no premium payments which have become due
that are unpaid; (iv) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069
or Section 4212(c) of ERISA; and (v) no Pension Plan has been terminated by the plan administrator thereof nor by the PBGC,
and no event or circumstance has occurred or exists that could reasonably be expected to cause the PBGC to institute proceedings under
Title IV of ERISA to terminate any Pension Plan.
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(d) No
Loan Party maintains or contributes to, or has any unsatisfied obligation to contribute to, or liability under, any active or terminated
Pension Plan other than (i) on the Closing Date, those listed on Schedule 5.12 hereto and (ii) thereafter, Pension
Plans not otherwise prohibited by this Agreement.
(e) The
Borrower represents and warrants as of the Closing Date that the Borrower is not and will not be using “plan assets” (within
the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to the Borrower’s entrance into,
participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement.
13. Margin
Regulations; Investment Company Act.
(a) Margin
Regulations. Neither the BorrowerNo
Loan Party nor any of its Subsidiaries is engaged or will engage, principally or as one of its important activities, in the business
of purchasing or carrying margin stock (within the meaning of Regulation U), or extending credit for the purpose of purchasing or carrying
margin stock. Following the application of the proceeds of each Borrowing or drawing under each Letter of Credit, not more than twenty-five
percent (25%) of the value of the assets (either of the Borrower only or of the BorrowerPubco
and its Subsidiaries on a Consolidated basis) subject to the provisions of Section 7.01 or Section 7.05 or subject
to any restriction contained in any agreement or instrument between the Borrowera
Loan Party or any of its Subsidiaries and any Lender or any Affiliate of any Lender relating to Indebtedness and within the scope
of Section 8.01(e) will be margin stock.
(b) Investment
Company Act. None of the Borrower, any Person Controlling the Borrower, or any Subsidiary is or is required to be registered as an
“investment company” under the Investment Company Act of 1940.
14. Disclosure.
The Borrower has disclosed
to the Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to which it or any of its
Subsidiaries or any other Loan Party is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. No report, financial statement, certificate or other information furnished (whether
in writing or orally) by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case as modified
or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, each Loan Party represents only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.
15. Compliance
with Laws.
Each Loan Party and each Subsidiary
thereof is in compliance with the requirements of all Applicable Laws and all orders, writs, injunctions and decrees applicable to it
or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually
or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
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16. Solvency.
Each Loan Party is, individually
and together with its Subsidiaries on a Consolidated basis, Solvent.
17. Casualty,
Etc.
Neither the businesses nor
the properties of any Loan Party or any of its Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor
dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance)
that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
18. Sanctions
Concerns and Anti-Corruption Laws.
(a) Sanctions
Concerns. No Loan Party, nor any Subsidiary, nor, to the knowledge of the Loan Parties and their Subsidiaries, any director, officer,
employee, agent, affiliate or representative thereof, is an individual or entity that is, or is owned or controlled by one or more individuals
or entities that are (i) currently the subject or target of any Sanctions, (ii) included on OFAC’s List of Specially Designated
Nationals or HMT’s Consolidated List of Financial Sanctions Targets, or any similar list enforced by any other relevant sanctions
authority or (iii) located, organized or resident in a Designated Jurisdiction. The Borrower and its Subsidiaries have conducted
their businesses in compliance in all material respects with all applicable Sanctions and have instituted and maintained policies and
procedures designed to promote and achieve compliance with such Sanctions.
(b) Anti-Corruption
Laws. The Loan Parties and their Subsidiaries have conducted their business in compliance in all material respects with the United
States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and other applicable anti-corruption legislation in other jurisdictions,
and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.
19. [Intentionally
Omitted].
20. Subsidiaries;
Equity Interests; Loan Parties.
(a) Subsidiaries,
Joint Ventures, Partnerships and Equity Investments. Set forth on Schedule 5.20(a), is the following information which is true
and complete in all respects as of the Closing Date and as of the last date such Schedule was required to be updated in accordance with
Sections 6.02, 6.13 and 6.14: (i) a complete and accurate list of all Subsidiaries, joint ventures and
partnerships and other equity investments of the Loan Parties as of the Closing Date and as of the last date such Schedule was required
to be updated in accordance with Sections 6.02, 6.13 and 6.14, (ii) the number of shares of each class
of Equity Interests in each Subsidiary outstanding, (iii) the number and percentage of outstanding shares of each class of Equity
Interests owned by the Loan Parties and their Subsidiaries and (iv) the class or nature of such Equity Interests (i.e.,
voting, non-voting, preferred, etc.). The outstanding Equity Interests in all Subsidiaries are validly issued, fully paid and non-assessable
and are owned free and clear of all Liens. There are no outstanding subscriptions, options, warrants, calls, rights or other agreements
or commitments (other than stock options granted to employees or directors and directors’ qualifying shares) of any nature relating
to the Equity Interests of any Loan Party or any Subsidiary thereof, except as contemplated in connection with the Loan Documents.
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(b) Loan
Parties. Set forth on Schedule 5.20(b) is a complete and accurate list of all Loan Parties, showing as of the Closing
Date, or as of the last date such Schedule was required to be updated in accordance with Sections 6.02, 6.13 and 6.14,
(as to each Loan Party) (i) the exact legal name, (ii) any former legal names of such Loan Party in the four (4) months
prior to the Closing Date, (iii) the jurisdiction of its incorporation or organization, as applicable, (iv) the type of organization,
(v) the jurisdictions in which such Loan Party is qualified to do business, (vi) the address of its chief executive office,
(vii) the address of its principal place of business, (viii) its U.S. federal taxpayer identification number or, in the case
of any non-U.S. Loan Party that does not have a U.S. taxpayer identification number, its unique identification number issued to it by
the jurisdiction of its incorporation or organization, (ix) the organization identification number, (x) ownership information
(e.g., publicly held or if private or partnership, the owners and partners of each of the Loan Parties) and (xi) the
industry or nature of business of such Loan Party.
21. Collateral
Representations.
(a) Collateral
Documents. The provisions of the Collateral Documents are effective to create in favor of the Administrative Agent for the benefit
of the Secured Parties a legal, valid and enforceable first priority Lien (subject to Permitted Liens) on all right, title and interest
of the respective Loan Parties in the Collateral described therein. Except for filings completed prior to the Closing Date and as contemplated
hereby and by the Collateral Documents, no filing or other action will be necessary to perfect or protect such Liens.
(b) Intellectual
Property. (i) Set forth on Schedule 5.21(b)(i), as of the Closing Date and as of the last date such Schedule was
required to be updated in accordance with Sections 6.02, 6.13 and 6.14, is a list of all registered or issued
Intellectual Property (including all applications for registration and issuance) owned by each of the Loan Parties or that each of the
Loan Parties has the right to (including the name/title, current owner, registration or application number, and registration or application
date and such other information as reasonably requested by the Administrative Agent). (ii) Set forth on Schedule 5.21(b)(ii),
as of the Closing Date and as of the last date such Schedule was required to be updated in accordance with Sections 6.02,
6.13 and 6.14 contains a true and complete description of (A) each internet domain name registered to such Loan Party
or in which such Loan Party has ownership, operating or registration rights, (B) the name and address of the registrar for such internet
domain name, (C) the registration identification information for such internet domain name, (D) the name of each internet website
operated (whether individually or jointly with others) by such Loan Party, (E) the name and address of each internet service provider
through whom each such website is operated, (F) the name and address of each operator of each other internet site, internet search
engine, internet directory or Web browser with whom such Loan Party maintains any advertising or linking relationship which is material
to the operation of or flow of internet traffic to such Loan Party’s website and (G) each technology licensing and other agreement
that is material to the operation of such Loan Party’s website or to the advertising and linking relationship described in (H),
and the name and address of each other party to such agreement.
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(c) Documents, Instrument,
and Tangible Chattel Paper. Set forth on Schedule 5.21(c), as of the Closing Date and as of the last date such Schedule
5.21(c) was required to be updated in accordance with Sections 6.02, 6.13 and 6.14, is a description
of all Documents, Instruments, and Tangible Chattel Paper (each as defined in the UCC) of the Loan Parties (including the Loan Party
owning such Document, Instrument and Tangible Chattel Paper and such other information as reasonably requested by the Administrative
Agent).
(d) Deposit
Accounts, Electronic Chattel Paper, Letter-of-Credit Rights, and Securities Accounts.
a) Set
forth on Schedule 5.21(d)(i), as of the Closing Date and as of the last date such Schedule 5.21(d)(i) was
required to be updated in accordance with Sections 6.02 and 6.14, is a description of all deposit accounts and securities
accounts of the Loan Parties, including the name of (A) the applicable Loan Party, (B) in the case of a deposit account, the
depository institution and average amount held in such deposit account and whether such account is a zero balance account or a payroll
account, and (C) in the case of a securities account, the securities intermediary or issuer and the average aggregate market value
held in such securities account, as applicable.
b) Set
forth on Schedule 5.21(d)(ii), as of the Closing Date and as of the last date such Schedule 5.21(d)(ii) was
required to be updated in accordance with Sections 6.02, 6.13 and 6.14, is a description of all Electronic Chattel
Paper (as defined in the UCC) and Letter-of-Credit Rights (as defined in the UCC) of the Loan Parties, including the name of (A) the
applicable Loan Party, (B) in the case of Electronic Chattel Paper (as defined in the UCC), the account debtor and (C) in the
case of Letter-of-Credit Rights (as defined in the UCC), the issuer or nominated person, as applicable.
(e) Commercial
Tort Claims. Set forth on Schedule 5.21(e), as of the Closing Date and as of the last date such Schedule 5.21(e) was
required to be updated in accordance with Sections 6.02, 6.13 and 6.14, is a description of all Commercial Tort
Claims (as defined in the UCC) of the Loan Parties (detailing such Commercial Tort Claim in such detail as reasonably requested by the
Administrative Agent).
(f) Pledged
Equity Interests. Set forth on Schedule 5.21(f), as of the Closing Date and as of the last date such Schedule 5.21(f) was
required to be updated in accordance with Sections 6.02, 6.13 and 6.14, is a list of (i) all Pledged Equity
and (ii) all other Equity Interests required to be pledged to the Administrative Agent pursuant to the Collateral Documents (in each
case, detailing the Grantor (as defined in the Security Agreement), the Person whose Equity Interests are pledged, the number of shares
of each class of Equity Interests, the certificate number and percentage ownership of outstanding shares of each class of Equity Interests
and the class or nature of such Equity Interests (i.e., voting, non-voting, preferred, etc.)).
(g) Properties.
Set forth on Schedule 5.21(g), as of the Closing Date and as of the last date such Schedule 5.21(g) was required
to be updated in accordance with Sections 6.02, 6.13 and 6.14, is a list of (A) each headquarter location
of the Loan Parties, (B) each other location where any significant administrative or governmental functions are performed, (C) each
other location where the Loan Parties maintain any books or records (electronic or otherwise) and (D) each location where any personal
property Collateral is located at any premises owned or leased by a Loan Party (in each case, including (1) an indication if such
location is leased or owned, (2), if leased, the name of the lessor, and if owned, the name of the Loan Party owning such property, (3) the
address of such property (including, the city, county, state and zip code)).
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(h) Material
Contracts. Set forth on Schedule 5.21(h), as of the Closing Date and as of the last date such Schedule 5.21(h) was
required to be updated in accordance with Sections 6.02, 6.13 and 6.14, is a complete and accurate list of all
Material Contracts of the Borrower and itsLoan
Parties and their Subsidiaries.
22. EEA
Financial Institutions.
No Loan Party is an EEA Financial
Institution.
23. Covered
Entities.
No Loan Party is a Covered
Entity.
24. Beneficial
Ownership Certification.
The information included in
the Beneficial Ownership Certification, if applicable, is true and correct in all respects.
2.17 Designation
as Senior Indebtedness.
The Obligations constitute
“Designated Senior Indebtedness” or any similar designation (with respect to indebtedness that having the maximum rights as
“senior debt”) under and as defined in any agreement governing any Subordinated Debt and the subordination provisions set
forth in each such agreement are legally valid and enforceable against the parties thereto.
25. Intellectual
Property; Licenses, Etc.
Each Loan Party and each of
its Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights,
trade secrets, know-how, franchises, licenses and other intellectual property rights that are used in the operation of their respective
businesses, without conflict with the rights of any other Person. To the knowledge of the Borrower, neither the operation of the business,
nor any product, service, process, method, substance, part or other material now used, or now contemplated to be used, by any Loan Party
or any of its Subsidiaries infringes, misappropriates or otherwise violates upon any rights held by any other Person. No claim or litigation
regarding any of the foregoing is pending or, to the knowledge of the Borrower, threatened, which, either individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect. To the knowledge of the Borrower, there has been no unauthorized use,
access, interruption, modification, corruption or malfunction of any information technology assets or systems (or any information or transactions
stored or contained therein or transmitted thereby) owned or used by the any Loan Party or any of its Subsidiaries, which, either individually
or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
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26. Labor
Matters.
There are no collective bargaining
agreements or Multiemployer Plans covering the employees of the Borrower or any of its Subsidiaries as of the Closing Date and neither
the Borrower nor any Subsidiary has suffered any strikes, walkouts, work stoppages or other material labor difficulty within the
last five (5) years preceding the Closing Date.
27. Closing
Date Acquisition Documents.
(a) Delivery.
The Borrower has delivered to the Administrative Agent true, complete and correct copies of (i) each Closing Date Acquisition Document
and of all annexes, appendices, exhibits and schedules thereto as of the date hereof, any agreement required to be delivered in connection
with any Closing Date Acquisition Document at or prior to the closing of the transactions contemplated by such Closing Date Acquisition
Documents (including any side letter executed or otherwise required by any of the parties thereto), and (ii) copies of any material
amendment, restatement, supplement or other modification to or waiver under each Closing Date Acquisition Document entered into after
the date hereof (including any such modification accomplished via a side letter or any other document).
(b) Representations
and Warranties. Each of the representations and warranties given by any Loan Party in any Closing Date Acquisition Document is true
and correct in all material respects as of the Closing Date (or as of any earlier date to which such representation and warranty specifically
relates); provided that such materiality qualifier shall not apply to any representations and warranties to the extent already
qualified or modified by materiality or similar concept in the text thereof. Notwithstanding anything in the Closing Date Acquisition
Documents to the contrary, the representations and warranties of each Loan Party set forth in this Section 5.28 shall, solely
for purposes hereof, survive the Closing Date for the benefit of Administrative Agent and the Lender.
(c) Governmental
Requirements. All Governmental Requirements and all other authorizations, approvals and consents of any other Person required by the
Closing Date Acquisition Documents or necessary to consummate the Closing Date Acquisition have been obtained and are in full force and
effect.
(d) Conditions
Precedent. On the Closing Date, all of the conditions to effecting or consummating Closing Date Acquisition set forth in the Closing
Date MIPA have been duly satisfied or waived by the Administrative Agent (to the extent any such conditions could reasonably be expected
to be adverse to the Lenders or Administrative Agent), and the Closing Date Acquisition has been consummated or will be consummated substantially
concurrently herewith, in accordance with the Closing Date Acquisition Documents and all applicable laws.
First
Amendment Effective Date Acquisition Documents.
Delivery.
The Borrower has delivered to the Administrative Agent true, complete and correct copies of (i) each First Amendment Effective Date
Acquisition Document and of all annexes, appendices, exhibits and schedules thereto as of the date hereof, any agreement required to be
delivered in connection with any First Amendment Effective Date Acquisition Document at or prior to the closing of the transactions contemplated
by such First Amendment Effective Date Acquisition Documents (including any side letter executed or otherwise required by any of the parties
thereto), and (ii) copies of any material amendment, restatement, supplement or other modification to or waiver under each First
Amendment Effective Date Acquisition Document entered into after the date hereof (including any such modification accomplished via a side
letter or any other document).
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Representations
and Warranties. Each of the representations and warranties given by any Loan Party in any First Amendment Effective Date Acquisition Document
is true and correct in all material respects as of the First Amendment Effective Date (or as of any earlier date to which such representation
and warranty specifically relates); provided that such materiality qualifier shall not apply to any representations and warranties
to the extent already qualified or modified by materiality or similar concept in the text thereof. Notwithstanding anything in the First
Amendment Effective Date Acquisition Documents to the contrary, the representations and warranties of each Loan Party set forth in this
Section 5.29 shall, solely for purposes hereof, survive the First Amendment Effective Date for the benefit of Administrative Agent
and the Lender.
Governmental
Requirements. All Governmental Requirements and all other authorizations, approvals and consents of any other Person required by the First
Amendment Effective Date Acquisition Documents or necessary to consummate the First Amendment Effective Date Acquisition have been obtained
and are in full force and effect.
Conditions
Precedent. On the First Amendment Effective Date, (i) all of the conditions to effecting or consummating the First Amendment Effective
Date Acquisition set forth in the First Amendment Effective Date Asset Purchase Agreement have been duly satisfied or waived by the Administrative
Agent (to the extent any such conditions could reasonably be expected to be adverse to the Lenders or Administrative Agent), (ii) the
First Amendment Effective Date Acquisition has been consummated or will be consummated substantially concurrently herewith, in accordance
with the First Amendment Effective Date Acquisition Documents and all applicable laws, and (iii) the First Amendment Effective Date
Equity Contribution has been made.
K.
AFFIRMATIVE COVENANTS
Each of the Loan Parties hereby
covenants and agrees that on the Closing Date and thereafter until the Facility Termination Date, such Loan Party shall, and shall cause
each of its Subsidiaries to:
1. Financial
Statements.
Deliver to the Administrative
Agent (and, if requested in writing by the Administrative Agent, with copies for each Lender), in form and detail satisfactory to the
Administrative Agent:
Audited
Financial Statements.
As
soon as available, but in any event within one hundred twenty (120) days after the end of the Fiscal Year ended December 31, 2025,
a Consolidated and consolidating balance sheet of Holdings and its Subsidiaries as at the end of such Fiscal Year, and the related Consolidated
and consolidating statements of income or operations, changes in Shareholders’ Equity and cash flows for such Fiscal Year, setting
forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and prepared in accordance with
GAAP, (A) such Consolidated statements to be audited and accompanied by a report and opinion of an independent certified public accountant
of nationally or regionally recognized standing reasonably acceptable to the Administrative Agent, including Grant Thornton LLP, which
is acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards
and shall not be subject to any “going
concern” or like qualification or exception or any qualification or exception as to the scope of such audit, and (B) such consolidating
statements to be certified by the chief executive officer, chief financial officer, treasurer or controller that is a Responsible Officer
of Holdings to the effect that such statements are fairly stated in all material respects when considered in relation to the Consolidated
financial statements of Holdings and its Subsidiaries.
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(a) Audited
Financial Statements. As soon as available, but in any event within one hundred twenty (120) days
after the end of each Fiscal Year of HoldingsPubco
(or, if earlier, fifteen (15) days after the date required to be filed with the SEC (after giving effect to any extension permitted by
the SEC)) (commencing with the Fiscal Year ended December 31, 20242026),
a Consolidated and consolidating balance sheet of HoldingsPubco
and its Subsidiaries as at the end of such Fiscal Year, and the related Consolidated and consolidating statements of income or operations,
changes in Shareholders’ Equity and cash flows for such Fiscal Year, setting forth in each case in comparative form the figures
for the previous Fiscal Year, all in reasonable detail and prepared in accordance with GAAP (provided
such comparative form shall not be required until the Fiscal Year ending December 31, 2027), (iA) such
Consolidated statements to be audited and accompanied by a report and opinion of an independent certified public accountant of nationally
or regionally recognized standing reasonably acceptable to the Administrative Agent, including Grant Thornton LLP, which is acceptable
to the Administrative Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall
not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope
of such audit, and (iiB) such
consolidating statements to be certified by the chief executive officer, chief financial officer, treasurer or controller that is a Responsible
Officer of HoldingsPubco
to the effect that such statements are fairly stated in all material respects when considered in relation to the Consolidated financial
statements of HoldingsPubco
and its Subsidiaries.
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(a) Quarterly
Financial Statements.
As
soon as available, but in any event within forty-five (45) days after the end of each Fiscal Quarter
of each Fiscal Year of Holdings (commencing withof
the Fiscal Quarters until the first anniversary of the First Pubco Reporting
Quarter ended March 31, 2025), a Consolidated balance sheet of Holdings and
its Subsidiaries as at the end of each such Fiscal Quarter, and the
related Consolidated statements of income or operations, changes in Shareholders’ Equity and cash flows for such Fiscal Quarter
and for the portion of Holdings’ Fiscal Year then ended, setting forth in each case in comparative form the figures for the corresponding
Fiscal Quarter of the previous Fiscal Year and the corresponding portion of the previous Fiscal Year, all in reasonable detail and prepared
in accordance with GAAP and including management discussion and analysis of operating results inclusive of operating metrics in comparative
form, such Consolidated statements to be certified by the chief executive officer, chief financial officer, treasurer or controller who
is a Responsible Officer of Holdings as fairly presenting the financial condition, results of operations, Shareholders’ Equity and
cash flows of Holdings and its Subsidiaries, subject only to normal year-end audit adjustments and the absence of footnotes.
(c) 2024 Quarterly Financial Statements. From the
Closing Date through the Fiscal Quarter ended December 31, 2024, asAs
soon as available, but in any event within forty-five (45) days after the end of each of the
first threefull Fiscal Quarter
following the De-SPAC Closing Date (such Fiscal Quarter, the “First Pubco Reporting Quarter”) and each of Fiscal Quarters
of each Fiscal Year of Holdings (commencing with the Fiscal Quarter ended June 30, 2024Pubco
thereafter (or, if earlier, five (5) days after the date required to be filed with the SEC (after giving effect to any extension
permitted by the SEC)), a Consolidated balance sheet of HoldingsPubco
and its Subsidiaries as at the end of such Fiscal Quarter, and the related Consolidated statements of income or operations, changes in
Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of Holdings’Pubco’s
Fiscal Year then ended, setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter of the previous
Fiscal Year and the corresponding portion of the previous Fiscal Year, (provided
that, such comparative form shall not be required until the first anniversary of the First Pubco Reporting Quarter) all in reasonable
detail and prepared in accordance with the Target Non-GAAP Accounting MethodologyGAAP
and including management discussion and analysis of operating results inclusive of operating metrics in comparative form, such Consolidated
statements to be certified by the chief executive officer, chief financial officer, treasurer or controller who is a Responsible Officer
of HoldingsPubco
as fairly presenting the financial condition, results of operations, Shareholders’ Equity and cash flows of HoldingsPubco
and its Subsidiaries, subject only to normal year-end audit adjustments and the absence of footnotes.
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(a) Intentionally
Omitted.
Business
Plan and Budget.
As
soon as available, but in any event within forty-five (45) days after December 31, 2025, an annual business plan and budget of Holdings
and its Subsidiaries on a Consolidated basis, including forecasts prepared by management of Holdings, in form satisfactory to the Administrative
Agent and the Required Lenders, of Consolidated balance sheets and statements of income or operations and cash flows of Holdings and its
Subsidiaries on a yearly basis for the immediately following Fiscal Year.
(d) Business
Plan and Budget. As soon as available, but in any event within forty-five (45) days after the end
of each Fiscal Year of HoldingsPubco
(commencing with the Fiscal Year ended December 31, 20242026),
an annual business plan and budget of HoldingsPubco
and its Subsidiaries on a Consolidated basis, including forecasts prepared by management of HoldingsPubco,
in form satisfactory to the Administrative Agent and the Required Lenders, of Consolidated balance sheets and statements of income or
operations and cash flows of HoldingsPubco
and its Subsidiaries on a yearly basis for the immediately following Fiscal Year.
First
Amendment Effective Date Acquisition. As soon as available, but in any event within sixty (60) days after the First Amendment Effective
Date, a company-prepared balance sheet, and the related statements of income or operations, changes in Shareholders’ Equity and
cash flows for the First Amendment Effective Date Seller for the fiscal quarter ending September 30, 2025, all in reasonable detail
and prepared in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.
As to any information contained in materials
furnished pursuant to Section 6.02(g), Holdings and Pubco shall
not be separately required to furnish such information under Section 6.01(a) or (b) above, but the foregoing
shall not be in derogation of the obligation of Holdings and Pubco to furnish the information and materials described in Sections 6.01(a) and (b) above at the times specified therein.
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2. Certificates;
Other Information.
Deliver to the Administrative
Agent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) Intentionally
Omitted.
(b) Compliance
Certificate. Concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b) commencing
with the delivery of the financial statements for the Fiscal Quarter ended September 30, 2024, (i) a duly completed Compliance
Certificate signed by the chief executive officer, chief financial officer, treasurer or controller which is a Responsible Officer of
Pubco (or of Holdings,
as applicable). Unless the Administrative Agent or a Lender requests executed originals, delivery of the Compliance Certificate
may be by electronic communication including fax or email and shall be deemed to be an original and authentic counterpart thereof for
all purposes.
(c) Updated
Schedules. Concurrently with the delivery of the Compliance Certificate referred to in Section 6.02(b), the following
updated Schedules to this Agreement (which may be attached to the Compliance Certificate) to the extent required to make the representation
related to such Schedule true and correct as of the date of such Compliance Certificate: Schedules 1.01(c),
5.10, 5.20(a), 5.20(b), 5.21(b), 5.21(c), 5.21(d)(i), 5.21(d)(ii), 5.21(e),
5.21(f), 5.21(g) and 5.21(h).
(d) Calculations.
Concurrently with the delivery of the Compliance Certificate referred to in Section 6.02(b) required to be delivered
with the financial statements referred to in Section 6.01(a), a certificate (which may be included in such Compliance Certificate)
including (i) the amount of all Restricted Payments, Investments (including Acquisitions), Dispositions, Capital Expenditures and, Debt Issuances
and Equity Issuances that were made during the prior Fiscal Year and
(ii) amounts received in connection with any Extraordinary Receipt during the prior Fiscal Year.
(e) Changes
in Entity Structure. Within ten (10) days prior to any merger, consolidation, dissolution or other change in entity structure
of any Loan Party or any of its Subsidiaries permitted pursuant to the terms hereof, provide notice of such change in entity structure
to the Administrative Agent, along with such other information as reasonably requested by the Administrative Agent. Provide notice to
the Administrative Agent, not less than ten (10) days prior (or such extended period of time as agreed to by the Administrative Agent)
of any change in any Loan Party’s legal name, state of organization, or organizational existence.
(f) Audit
Reports; Management Letters; Recommendations. Promptly after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board
of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any of its Subsidiaries,
or any audit of any of them.
(g) Annual
Reports; Etc. Promptly after the same are available, copies of each annual report, proxy or financial statement or other report or
communication sent to the stockholders of the BorrowerPubco,
and to the extent applicable, copies of all annual, regular, periodic and special reports and registration statements which the
BorrowerPubco may file or be required to file with
the SEC under Section 13 or 15(d) of the Securities Exchange Act of
1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative
Agent pursuant hereto;.
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(h) Debt
Securities Statements and Reports. Promptly after the furnishing thereof, copies of any statement or report furnished to any holder
of debt securities of any Loan Party or of any of its Subsidiaries pursuant to the terms of any indenture, loan or credit or similar agreement
and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02.
(i) SEC
Notices. Promptly, and in any event within ten (10) Business Days after receipt thereof by any Loan Party or any Subsidiary thereof,
copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning
any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan
Party or any Subsidiary thereof.
(j) Notices.
Not later than ten (10) Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of all notices, requests
and other documents (including amendments, waivers and other modifications) so received under or pursuant to any instrument, indenture,
loan or credit or similar agreement and, from time to time upon request by the Administrative Agent, such information and reports regarding
such instruments, indentures and loan and credit and similar agreements as the Administrative Agent may reasonably request.
(k) Environmental
Notice. Not later than ten (10) Business Days after a Loan Party’s receipt of written notice thereof, notice of any action
or proceeding against or of any noncompliance by any Loan Party or any of its Subsidiaries with any Environmental Law or Environmental
Permit that could reasonably be expected to have a Material Adverse Effect.
(l) Anti-Money-Laundering;
Beneficial Ownership Regulation. Promptly following any request therefor, information and documentation reasonably requested by the
Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering
rules and regulations, including, without limitation, the Patriot Act and under the Beneficial Ownership Regulation.
(b) Additional
Information. Promptly, such additional information regarding the business, financial, legal or corporate affairs of any Loan Party
or any Subsidiary thereof, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time
to time reasonably request.
Documents required to be delivered pursuant
to Section 6.01(a) or (b) or Section 6.02(g) (to the extent any such documents are included
in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered
on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet
at the website address listed on Schedule 1.01(a); or (ii) on which such documents are posted on the Borrower’s behalf
on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party
website or whether sponsored by the Administrative Agent); provided that: (x) the Borrower shall deliver paper copies of such
documents to the Administrative Agent or any Lender upon its request to the Borrower to deliver such paper copies until a written request
to cease delivering paper copies is given by the Administrative Agent or such Lender and (y) the Borrower shall notify the Administrative
Agent and each Lender (by fax transmission or e-mail transmission) of the posting of any such documents and provide to the Administrative
Agent by e-mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation
to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility
to monitor compliance by the Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.
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The Borrower hereby
acknowledges that (i) the Administrative Agent and/or an Affiliate thereof may, but shall not be obligated to, make available to
the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower
Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar or a substantially similar electronic transmission
system (the “Platform”) and (ii) certain of the Lenders (each, a “Public Lender”)
may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective
securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’
securities. The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials
that may be distributed to the Public Lenders and that (A) all such Borrower Materials shall be clearly and conspicuously marked
“PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof;
(B) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent,
any Affiliate thereof, the Arranger, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public
information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States
federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information,
they shall be treated as set forth in Section 11.07); (C) all Borrower Materials marked “PUBLIC” are permitted
to be made available through a portion of the Platform designated “Public Side Information;” and (D) the Administrative
Agent and any Affiliate thereof and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC”
as being suitable only for posting on a portion of the Platform not designated “Public Side Information.”
3. Notices.
Promptly, but in any event
within three (3) Business Days, notify the Administrative Agent and each Lender:
(a) of
any Loan Party obtaining knowledge of the occurrence of any Default;
(b) of
any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including any of the following (to
the extent it could reasonably be expected to result in a Material Adverse Effect): (i) breach or non-performance of, or any default
under, a Contractual Obligation of the Borrower or any Subsidiary; (ii) any action, suit, dispute, litigation, investigation, proceeding
or suspension involving any Loan Party or any Subsidiary or any of their respective properties and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation or proceeding affecting the Borrower or any Subsidiary, including pursuant
to any applicable Environmental Laws;
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(c) of
the occurrence of any ERISA Event that has resulted or could reasonably be expected to result in liability of any Loan Party to the Pension
Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of $2,500,000;
(d) of
any material change in accounting policies or financial reporting practices by any Loan Party or any Subsidiary thereof, including any
determination by HoldingsPubco
or the Borrower referred to in Section 2.10(b); and
(e) of
any (i) occurrence of any Disposition of property or assets for which the Borrower is required to make a mandatory prepayment pursuant
to Section 2.05(b)(i), (ii) Equity Issuance for which the
Borrower is required to make a mandatory prepayment pursuant to Section 2.05(b)(ii), (iii) Debt issuance for which the
Borrower is required to make a mandatory prepayment pursuant to Section 2.05(b)(iii), and (iiiiv) receipt
of any Extraordinary Receipt for which the Borrower is required to make a mandatory prepayment pursuant to Section 2.05(b)(iv).
Each notice pursuant to this
Section 6.03 shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and to the extent applicable, stating what action the Borrower has taken and proposes to take with respect thereto.
Each notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement and
any other Loan Document that have been breached.
4. Payment
of Obligations.
Pay and discharge as the same
shall become due and payable, all its material tax and all other obligations and liabilities, including (a) all material tax liabilities,
assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith
by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Borrower or
such Subsidiary; (b) all material lawful claims which, if unpaid, would by law become a Lien upon its property, unless the same are
being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being
maintained by the Loan Parties; and (c) all Indebtedness, as and when due and payable, but subject to any subordination provisions
contained in any instrument or agreement evidencing such Indebtedness.
5. Preservation
of Existence, Etc.
(a) Preserve,
renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization
except in a transaction permitted by Section 7.04 or 7.05;
(b) take
all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct
of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and
(c) preserve
or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected
to have a Material Adverse Effect.
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6. Maintenance
of Properties.
(a) Maintain,
preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear and obsolescence excepted; and
(b) make
all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected
to have a Material Adverse Effect.
7. Maintenance
of Insurance.
(a) Maintenance
of Insurance. Maintain with financially sound and reputable insurance companies not Affiliates of the Borrower, insurance with respect
to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons and all such
insurance shall (i) provide for not less than thirty (30) days’ prior notice to the Administrative Agent of termination, lapse
or cancellation of such insurance, (ii) name the Administrative Agent as mortgagee (in the case of property insurance) or additional
insured on behalf of the Secured Parties (in the case of liability insurance) or loss payee (in the case of property insurance), as applicable,
(iii) if reasonably requested by the Administrative Agent, include a breach of warranty clause and (iv) be reasonably satisfactory
in all other respects to the Administrative Agent.
(b) Evidence
of Insurance. Cause the Administrative Agent to be named as lenders’ loss payable, loss payee or mortgagee, as its interest
may appear, and/or additional insured with respect of any such insurance providing liability coverage or coverage in respect of any Collateral,
and cause, unless otherwise agreed to by the Administrative Agent, each provider of any such insurance to agree, by endorsement upon the
policy or policies issued by it or by independent instruments furnished to the Administrative Agent that it will give the Administrative
Agent thirty (30) days prior written notice before any such policy or policies shall be altered or cancelled (or ten (10) days prior
notice in the case of cancellation due to the nonpayment of premiums). Annually, upon expiration of current insurance coverage, the Loan
Parties shall provide, or cause to be provided, to the Administrative Agent, such evidence of insurance as required by the Administrative
Agent, including, but not limited to: (i) certified copies of such insurance policies, (ii) evidence of such insurance policies
(including, without limitation and as applicable, ACORD Form 28 certificates (or similar form of insurance certificate), and ACORD
Form 25 certificates (or similar form of insurance certificate)), (iii) declaration pages for each insurance policy and
(iv) lender’s loss payable endorsement if the Administrative Agent for the benefit of the Secured Parties is not on the declarations
page for such policy. As requested by the Administrative Agent, the Loan Parties agree to deliver to the Administrative Agent an
Authorization to Share Insurance Information.
8. Compliance
with Laws.
Comply with the requirements
of all Applicable Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such
instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse
Effect.
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9. Books
and Records. Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters involving the assets and business of such Loan Party or such
Subsidiary, as the case may be.
10. Inspection
Rights.
(a) Permit
representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties, to
examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances
and accounts with its directors, officers, and independent public accountants, all at the expense of the Borrower and at such reasonable
times during normal business hours and as often as may be reasonably desired up to two (2) times in each Fiscal Year provided that
no Event of Default has occurred and is continuing, upon reasonable advance notice to the Borrower; provided, however, that
when an Event of Default exists the Administrative Agent or any Lender (or any of their respective representatives or independent contractors)
may do any of the foregoing at the expense of the Borrower at any time during normal business hours and without advance notice; provided
further that, so long as no Event of Default exists, the Administrative Agent shall give the Borrower at least five (5) Business
Days’ notice prior to any discussions with the Loan Parties’ independent public accountants, and, if the Borrower desires
to participate in such discussions, the Borrower shall so notify the Administrative Agent during such five-Business-Day period; provided
that the Administrative Agent shall not be required to postpone such discussions in order to permit the Borrower to participate.
(b) If
requested by the Administrative Agent in its sole discretion, permit the Administrative Agent and its representatives, upon reasonable
advance notice to the Borrower, to conduct, at the expense of the Borrower, an annual (i) personal property asset appraisal on personal
property Collateral of the Borrower and its Subsidiaries, (ii) real estate appraisal on real estate Collateral of the Borrower and
its Subsidiaries and (iii) field exam on the accounts receivable, inventory, payables, controls and systems of the Borrower and its
Subsidiaries.
(c) If
requested by the Administrative Agent in its sole discretion, permit the Administrative Agent, and its representatives, upon reasonable
advance notice to the Borrower, to conduct an annual audit of the Collateral at the expense of the Borrower.
(d) Notwithstanding
anything to the contrary in this Section 6.10, no Loan Party will be required to disclose, permit the inspection, examination
or making copies or abstracts of, or discussion of, any document, information or other matter that (a) constitutes non-financial
trade secrets or non-financial proprietary information, (b) in respect of which access or inspection by, or disclosure to, the Administrative
Agent or any Lender (or their respective representatives or contractors) is prohibited by Law (provided, such Loan Party shall make the
Administrative Agent aware that information is being withheld (to the extent permitted by applicable Law) and shall use commercially reasonable
efforts to communicate the relevant information in a way that does not violate such applicable Law), or (c) is subject to attorney-client
or similar privilege or constitutes attorney work product (provided, such Loan Party shall make the Administrative Agent aware that information
is being withheld and shall use commercially reasonable efforts to communicate the relevant information in a way that does not violate
such attorney-client or similar privilege).
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11. Use
of Proceeds.
(a) On
the Closing Date, use the proceeds of the Term Loans only to refinance certain existing Indebtedness of the Loan Parties, to partially
finance the Closing Date Acquisition, to pay transaction expenses incurred in connection with the Closing Date Acquisition and this Agreement.
(b) Use
the proceeds of the Credit Extensions for general corporate purposes not in contravention of any Law or of any Loan Document.
On
the First Amendment Effective Date, use the proceeds of the Additional Term Loans only to refinance certain existing Indebtedness of the
Loan Parties, to partially finance the First Amendment Effective Date Acquisition, to pay transaction expenses incurred in connection
with the First Amendment Effective Date Acquisition and other Transaction Costs permitted under this Agreement.
12. Material
Contracts.
Perform and observe all the
terms and provisions of each Material Contract to be performed or observed by it in all material respects, maintain each such Material
Contract in full force and effect, enforce each such Material Contract in accordance with its terms, take all such action to such end
as may be from time to time reasonably requested by the Administrative Agent and, upon reasonable request of the Administrative Agent,
make to each other party to each such Material Contract such demands and requests for information and reports or for action as any Loan
Party or any of its Subsidiaries is entitled to make under such Material Contract, and cause each of its Subsidiaries to do so.
13. Covenant
to Guarantee Obligations.
The Loan Parties will cause
each of their Subsidiaries (other than any CFC, FSHCO or Subsidiary that is held directly or indirectly by a CFC) whether newly formed,
after acquired or otherwise existing to promptly (and in any event within thirty (30) days after such Subsidiary is formed or acquired
(or such longer period of time as agreed to by the Administrative Agent in its reasonable discretion)) become a Guarantor hereunder by
way of execution of a Joinder Agreement; provided, however, no Foreign Subsidiary shall be required to become a Guarantor
to the extent such Guaranty would result in a material adverse tax consequence for any Loan Party. In connection therewith, the Loan Parties
shall give notice to the Administrative Agent not less than ten (10) days prior to creating a Subsidiary (or such shorter period
of time as agreed to by the Administrative Agent in its reasonable discretion), or acquiring the Equity Interests of any other Person.
In connection with the foregoing, the Loan Parties shall deliver to the Administrative Agent, with respect to each new Guarantor to the
extent applicable, substantially the same documentation required pursuant to Sections 4.01(b), (c), (e), (f),
(k) and 6.14 and such other documents or agreements as the Administrative Agent may reasonably request, including without
limitation, updated Schedules 1.01(c), 5.10, 5.20(a),
5.20(b), 5.21(b)(i), 5.21(c), 5.21(d)(i), 5.21(d)(ii), 5.21(e), 5.21(f), 5.21(g) and
5.21(h).
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14. Covenant
to Give Security.
Except with respect to Excluded
Property:
(a) Equity
Interests and Personal Property. Each Loan Party will cause the Pledged Equity and all of its tangible and intangible personal property
now owned or hereafter acquired by it to be subject at all times to a first priority, perfected Lien (subject to Permitted Liens to the
extent permitted by the Loan Documents) in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured
Obligations pursuant to the terms and conditions of the Collateral Documents. Each Loan Party shall provide opinions of counsel and any
filings and deliveries reasonably necessary in connection therewith to perfect the security interests therein, all in form and substance
reasonably satisfactory to the Administrative Agent (or such deliveries may be waived with respect to immaterial personal property by
Administrative Agent in its reasonable discretion).
(b) Landlord
Waivers. Subject to Section 6.17, in the case of (i) each headquarter location of the Loan Parties, each other location
where any significant administrative or governmental functions are performed and each other location where the Loan Parties maintain any
books or records (electronic or otherwise) and (ii) any other premises leased by a Loan Party containing personal property Collateral
with a value in excess of twenty percent (20%) of the total value of the Collateral, the Loan Parties will use commercially reasonable
efforts to provide the Administrative Agent with such estoppel letters, consents and waivers from the landlords on such real property
to the extent requested by the Administrative Agent (such letters, consents and waivers shall be in form and substance satisfactory
to the Administrative Agent, it being acknowledged and agreed that any Landlord Waiver is satisfactory to the Administrative Agent).
(c) Account
Control Agreements. Each of the Loan Parties shall not open, maintain or otherwise have any deposit or other accounts (including securities
accounts) at any bank or other financial institution, or any other account where money or securities are or may be deposited or maintained
with any Person, other than (i) accounts that are deposit accounts are held at Bank of America, (ii) deposit accounts that
are maintained at all times with depositary institutions as to which the Administrative Agent shall have received a Qualifying Control
Agreement within 90 days of the Closing Date or any Permitted Acquisition (or Administrative Agent shall have received a Qualifying Control
Agreement prior to or substantially contemporaneously with the opening of such deposit account), (iii) securities accounts that are
maintained at all times with financial institutions as to which the Administrative Agent shall have received a Qualifying Control Agreement,
(iv) deposit accounts established solely as payroll and other zero balance accounts.
(d) Updated
Schedules. Concurrently with the delivery of any Collateral pursuant to the terms of this Section 6.14, the Borrower shall
provide the Administrative Agent with the applicable updated Schedule(s): 5.20(a), 5.21(b)(i), 5.21(c), 5.21(d)(i),
5.21(d)(ii), 5.21(e), 5.21(f), 5.21(g) and 5.21(h).
(e) Further
Assurances. At any time upon request of the Administrative Agent, promptly execute and deliver any and all further instruments and
documents and take all such other action as the Administrative Agent may deem necessary or desirable to maintain in favor of the Administrative
Agent, for the benefit of the Secured Parties, Liens and insurance rights on the Collateral that are duly perfected in accordance with
the requirements of, or the obligations of the Loan Parties under, the Loan Documents and all Applicable Laws.
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15. Anti-Corruption
Laws; Sanctions.
Conduct its business in compliance
in all material respects with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and other applicable anti-corruption
legislation in other jurisdictions and with all applicable Sanctions, and maintain policies and procedures designed to promote and achieve
compliance with such laws and Sanctions.
16. Further
Assurances.
Promptly upon request by the
Administrative Agent, or any Lender through the Administrative Agent, (a) correct any material defect or error that may be discovered
in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge, deliver,
record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments
as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably require from time to time in order to (i) carry
out more effectively the purposes of the Loan Documents, (ii) to the fullest extent permitted by Applicable Law, subject any Loan
Party’s or any of its Subsidiaries’ properties, assets, rights or interests to the Liens now or hereafter intended to be covered
by any of the Collateral Documents, (iii) perfect and maintain the validity, effectiveness and priority of any of the Collateral
Documents and any of the Liens intended to be created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect
and confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties
under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party or any of
its Subsidiaries is or is to be a party, and cause each of its Subsidiaries to do so.
17. Post-Closing
Obligations.
Execute and deliver the documents,
and complete the tasks set forth on Schedule 6.17, within the time frames listed thereon.
First
Amendment Effective Date Post-Closing Obligations.
Execute
and deliver the documents, and complete the tasks set forth on Schedule 6.18, within the time frames listed thereon.
Second
Amendment Effective Date Post-Closing Obligations.
Execute
and deliver the documents, and complete the tasks set forth on Schedule 6.19, within the time frames listed thereon.
L.
NEGATIVE COVENANTS
Each of the Loan Parties hereby
covenants and agrees that on the Closing Date and thereafter until the Facility Termination Date, no Loan Party shall, nor shall it permit
any Subsidiary to, directly or indirectly:
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1. Liens.
Create, incur, assume or suffer
to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, except for the following (the
“Permitted Liens”):
(a) Liens
pursuant to any Loan Document (including Liens securing customary obligations
arising under Secured Hedge Agreements);
(b) Liens
existing on the Closing Date and listed on Schedule 7.01 and any renewals or extensions thereof, provided that (i) the
property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased except as contemplated by
Section 7.02(b), (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal
or extension of the obligations secured or benefited thereby is permitted by Section 7.02(b);
(c) Liens
for Taxes not yet due or Liens for Taxes which are being contested in good faith and by appropriate proceedings diligently conducted,
if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) Statutory
Liens such as carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising
in the ordinary course of business which are not overdue for a period of more than thirty (30) days or which are being contested in good
faith and by appropriate proceedings diligently conducted; provided that adequate reserves with respect thereto are maintained
on the books of the applicable Person in accordance with GAAP;
(e) pledges
or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social
security legislation, other than any Lien imposed by ERISA;
(f) deposits
to secure the performance of bids, trade contracts and leases (other than Indebtedness), licenses
or permits, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(g) (i) easements,
rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount,
and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the applicable Person; and
(ii) any obligations or duties affecting any property of the Borrower or any Loan Party to any municipality or public authority with
respect to any franchise, grant, license or permit that do not materially impair the use of such property for the purposes for which it
is held;
(h) Liens
securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments) not constituting an Event of
Default under Section 8.01(h);
(c) Liens
securing Indebtedness permitted under Section 7.02(c); provided that (i) (A) such
Liens do not at any time encumber any property other than the property financed by such Indebtedness (including,
with respect to BALC Permitted Equipment Financings, BALC Other Permitted Equipment Financing Collateral), (ii) the Indebtedness
secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being financed on the date of the financed
acquisition or lease, or the date of completion of the financed construction, repair or improvement, as applicable, and (iii) such
Liens attach to such property concurrently with or within ninety (90) days after (A) the financed acquisition thereof, or (B) the
date of commencement of the financed lease, construction, repair or improvement thereof, as applicable;
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(d) bankers’
Liens, rights of setoff and other similar Liens existing solely with respect to cash and Cash Equivalents on deposit in one or more accounts
maintained by the BorrowerPubco
or any of its Subsidiaries with any Lender, in each case in the ordinary course of business in favor of the bank or banks with which such
accounts are maintained, securing solely the customary amounts owing to such bank with respect to cash management and operating account
arrangements; provided, that in no case shall any such Liens secure (either directly or indirectly) the repayment of any Indebtedness;
(i) Liens
arising out of judgments or awards not resulting in an Event of Default; provided the applicable Loan Party or Subsidiary shall
in good faith be prosecuting an appeal or proceedings for review;
(j) any
Lien imposed as a result of a taking under the exercise of the power of eminent domain by any Governmental Authority or by any Person
acting under Governmental Authority;
(k) any
interest or title of a lessor, licensor or sublessor under any lease, license or sublease entered into by any Loan Party or any Subsidiary
thereof in the ordinary course of business and covering only the assets so leased, licensed or subleased; and
(e) Liens
of a collection bank arising under Section 4–210 of the UCC on items in the course of collection;
Liens
securing the Permitted Airplane Financing provided that such Liens do not at any time encumber any property other the aircraft,
airframe, aircraft engine or related property financed by such Indebtedness;
Liens
existing on property at the time of its acquisition or existing on the property of any Person at the time such Person becomes a Subsidiary
after the Closing Date (other than Liens on the Equity Interests of any Person that becomes a Subsidiary to the extent such Equity Interests
are owned by a Loan Party); provided that (i) such Lien was not created in contemplation of such acquisition or such Person becoming
a Subsidiary, (ii) such Lien does not extend to or cover any other assets or property (other than the proceeds, products and accessions
thereof) of such Person and not of any other Loan Party or Subsidiary, and (iii) the Indebtedness secured thereby is permitted under
Section 7.02(j);
provided
that, notwithstanding anything to the contrary in this Section, none of the foregoing provisions of this Section 7.01 shall
permit any Lien (other than any Liens pursuant to clauses (a), (c), (d), (f), (g), (l) and
(m) of this Section 7.01) to exist on any owned real property of any Loan Party or any of its Subsidiaries.
2. Indebtedness.
Create, incur, assume or suffer
to exist any Indebtedness, except:
(a) Indebtedness
under the Loan Documents;
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(b) Indebtedness
outstanding on the date hereof and listed on Schedule 7.02 and any refinancings, refundings, renewals or extensions thereof;
provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension
except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection
with such refinancing and by an amount equal to any existing commitments unutilized thereunder and the direct or any contingent obligor
with respect thereto is not changed, as a result of or in connection with such refinancing, refunding, renewal or extension;
(c) Indebtedness
in respect of Capitalized Leases, Synthetic Lease Obligations, Permitted Equipment Financings, purchase money obligations or Indebtedness
financing the construction, repair, replacement, lease or improvement of fixed or capital assets, so long as such purchase money obligation
or other Indebtedness is incurred by Borrower or the applicable Subsidiary of
the Borrower prior to or within 90 days after the acquisition, construction, repair, replacements, lease or improvement of the
applicable asset and are otherwise within the limitations set forth in Section 7.01(i); provided, however,
(x) that the aggregate amount of all such Indebtedness (other than Indebtedness under Permitted Equipment Financings) at any one
time outstanding shall not exceed the greater of (A) 7.5% of Consolidated
EBITDA for the Measurement Period and (B) $10,000,000 and (y) the
aggregate principal amount of such Indebtedness in respect of Permitted Equipment Financings at
any one time outstanding shall not exceed $20,000,000 any timethe
greater of (A) 20% of Consolidated EBITDA and (B) $30,000,000;
(d) Unsecured
Indebtedness of a Subsidiary of the Borrower owed to the Borrower or a Subsidiary of the Borrower, which Indebtedness shall (i) to
the extent required by the Administrative Agent, be evidenced by promissory notes which shall be pledged to the Administrative Agent as
Collateral for the Secured Obligations in accordance with the terms of the Security Agreement, (ii) be on terms (including subordination
terms) acceptable to the Administrative Agent and (iii) be otherwise permitted under the provisions of Section 7.03 (“Intercompany
Debt”);
(e) (i) to
the extent constituting Indebtedness, the Sandplant Deferred Payment and (ii) Indebtedness incurred by the Borrower or a Subsidiary
thereof in a Permitted Acquisition, in each case, constituting earnouts
or other similar adjustments to the purchase price in an aggregate amount not to exceed $20,000,000;
(f) Indebtedness
of Loan Parties under Cash Management Agreements and other Indebtedness in respect of netting services, automatic clearinghouse arrangements,
overdraft protections, employee credit card programs and other cash management and similar arrangements in the ordinary course of business
and any Guarantees thereof, or the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business so long as such Indebtedness is extinguished within 15 Business Days of its incurrence;
provided that such Loan Parties shall not guarantee or otherwise be responsible under such agreements, arrangements, protections
or programs for obligations of any Person that is not a Loan Party;
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(g) obligations
in respect of performance, bid, appeal and surety bonds and performance and completion guarantees and similar obligations provided by
the BorrowerPubco
or any SubsidiariesSubsidiary
thereof or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case in
the ordinary course of business or consistent with past practice;
(h) any
Swap Contract and guarantees of Swap Contracts of any other Subsidiary entered into in the ordinary course of business to hedge or mitigate
interest rate risks, commodity price risks or other risks to which Loan Parties are exposed in the conduct of their business or the management
of their liabilities, and not for speculative purposes; and
(i) Guarantees
of the Borrower or any Guarantor in respect of Indebtedness otherwise permitted hereunder of the Borrower or any other Guarantor.;
Indebtedness
in respect of any Permitted Airplane Financing in an aggregate principal amount up to $3,000,000 under this clause (j); and
other
Indebtedness of the Borrower or any Subsidiary thereof (excluding (i) Intercompany Debt and (ii) Guarantees by the Borrower
or any Guarantor of Indebtedness of any Subsidiary that is not a Loan Party) in an aggregate principal amount not exceeding the greater
of (x) $7,500,000 and (y) 10% of Consolidated EBITDA for the Measurement
Period at any time outstanding.
3. Investments.
Make or hold any Investments,
except:
(a) Investments
held by the BorrowerPubco
and its Subsidiaries in the form of cash or Cash Equivalents;
(b) advances
to officers, directors and employees of the Borrower andPubco
and its Subsidiaries in an aggregate amount not to exceed $500,000 at any time outstanding, for travel, entertainment, relocation
and analogous ordinary business purposes;
(c) employee
loans or advances that do not exceed $200,000 in the aggregate at any one time outstanding and are made in the ordinary course of business
consistent with practices existing on the Closing Date;
(d) (i) Investments
by the Borrower and its Subsidiaries in their respective Subsidiaries outstanding on the date hereof, (ii) additional Investments
by the BorrowerPubco
and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other
Subsidiaries that are not Loan Parties and (iv) so long as no Default has occurred and is continuing or would result from such Investment,
additional Investments by the Loan Parties in Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof
not to exceed $1,000,0005,000,000;
(e) Investments
consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in
the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account
debtors to the extent reasonably necessary in order to prevent or limit loss;
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(f) Investments
(including debt obligations and Equity Interests) received in connection with the bankruptcy or reorganization of suppliers and customers
or in settlement of delinquent obligations of, or other disputes with, customers and suppliers arising in the ordinary course of business
or upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment,
(g) Investments
with respect to any Swap Contract permitted under Section 7.02(h);
(h) promissory
notes, securities and other non-cash consideration received in connection with Dispositions permitted hereunder;
(i) cash
deposits required by any Governmental Authority or public utilities;
(j) Guarantees
permitted by Section 7.02;
(k) Investments
existing on the date hereof (other than those referred to in Section 7.03(c)(i)) and set forth on Schedule 7.03; and
(l) (i) Permitted
Acquisitions (other than of CFCs and Subsidiaries held directly or indirectly by a CFC which Investments are covered by Section 7.03(c)(iv));
and, (ii) the
First Amendment Effective Date Acquisition; and (iii) other Acquisitions approved by the Required Lenders in writing; and
other
Investments in any Person having an aggregate fair market value (measured on the date each such Investment was made and without giving
effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (m) in an aggregate
amount invested from the date hereof not to exceed $5,000,000;
provided,
however, that after giving effect to the making of any loans, advances or deposits permitted by clauses (c), (f),
(i) or,
(l) or (m) of this Section, no Default or Event of
Default shall have occurred and be continuing.
4. Fundamental
Changes.
Merge, dissolve, liquidate,
consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially
all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or
would result therefrom:
(a) any
Subsidiary of the Borrower may merge with (i) the Borrower; provided
that the Borrower shall be the continuing or surviving Person, or (ii) any one or more other Subsidiaries of
the Borrower, provided that when any Loan Party (other than Borrower or,
Holdings or Pubco) is merging with another Subsidiary, a Loan Party
shall be the continuing or surviving Person;
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(b) any
Loan Party (other than Borrower or,
Holdings or Pubco) may Dispose of all or substantially all of its
assets (upon voluntary liquidation or otherwise) to the Borrower or to another Loan Party (other
than Holdings or Pubco);
(c) any
Subsidiary of the Borrower that is not a Loan Party may dispose of
all or substantially all its assets (including any Disposition that is in the nature of a liquidation) to (i) another Subsidiary
that is not a Loan Party or (ii) to a Loan Party;
(f) in
connection with any Permitted Acquisition, any Subsidiary of the Borrower may merge into or consolidate with any other Person or permit
any other Person to merge into or consolidate with it; provided that (i) the Person surviving such merger shall be a wholly-owned
Subsidiary of the Borrower and (ii) in the case of any such merger to which any Loan Party (other than the Borrower,
Holdings or Pubco) is a party, such Loan Party is the surviving Person; and
(d) so
long as no Default has occurred and is continuing or would result therefrom, each of the Borrower and any of its Subsidiaries may merge
into or consolidate with any other Person or permit any other Person to merge into or consolidate with it; provided, however,
that in each case, immediately after giving effect thereto (i) in the case of any such merger to which the Borrower is a party, the
Borrower is the surviving Person and (ii) in the case of any such merger to which any Loan Party (other than the Borrower,
Holdings or Pubco) is a party, such Loan Party is the surviving Person.;
the
Loan Parties may consummate the De-SPAC Transaction;
the
Haymaker Subsidiary may (i) Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to a Loan
Party, (ii) terminate its existence, dissolve or otherwise cease to exist or (iii) merge into or consolidate with any other
Loan Party, provided that such Loan Party shall be the continuing or surviving Person; and
Holdings
may merge into or consolidate with Pubco so long as (i) Pubco shall be the continuing or surviving Person, (ii) Pubco shall,
immediately following such merger, consolidation or liquidation directly own all Equity Interests in the Borrower, (iii) the Pubco
shall expressly assume all of the obligations of Holdings under this Agreement and the other Loan Documents, (iv) the Secured Parties’
rights and obligations under the Loan Documents, taken as a whole, including their rights and remedies with respect to any Collateral
owned by Pubco, and Pubco’s obligations under the Guaranty and the Security Agreement, will not be impaired in any manner as a result
of such merger, consolidation or liquidation, and (v) the Borrower shall deliver a certificate to the Administrative Agent certifying
and demonstrating that immediately after giving effect to such merger, consolidation or liquidation on a Pro Forma Basis as
of the last day of the most recently ended Measurement Period, the
Loan Parties are in Pro Forma Compliance.
5. Dispositions.
Make any Disposition or enter
into any agreement to make any Disposition, except:
(a) Permitted
Transfers;
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(b) Dispositions
of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(c) Dispositions
of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Disposition are applied to the purchase price of such replacement property in accordance
with Section 2.05(b)(i);
(d) Dispositions
resulting from any taking or condemnation of any property of the Borrower or any Subsidiary by any Governmental Authority or any assets
subject to a casualty;
(e) Dispositions
resulting from the sale, issuance or other transfer of the Equity Interests of any
Loan Party to any other Loan Party (and provided that Holdings may issue Equity Interests
(other than Disqualified Equity Interests) so long as no Change of Control would occur);
(f) Dispositions
permitted by Section 7.04;
(g) Dispositions
of accounts receivables to a third party in connection with the compromise, settlement or collection thereof in the ordinary course of
business exclusive of factoring or similar arrangements so long as (i) the account debtor with respect thereto has instituted or
consented to the institution of any proceeding under any Debtor Relief Law and (ii) all such Dispositions do not exceed $100,000
in the aggregate in any Fiscal Year; and
(g) other
Dispositions by the Borrower or any of its Subsidiaries so long as
(i) at least 75% of the consideration paid in connection therewith shall be cash or Cash Equivalents paid contemporaneously with
consummation of the transaction and shall be in an amount not less than the fair market value of the property disposed of, (ii) such
transaction does not involve a sale or other disposition of receivables other than receivables owned by or attributable to other property
concurrently being disposed of in a transaction otherwise permitted under this Section 7.05, (iii) the aggregate net
book value of all of the assets sold or otherwise disposed of by the Loan Parties and their Subsidiaries in all such transactions in any
Fiscal Year of the Borrower shall not exceed the Threshold Amount, and (iv) the proceeds of such Disposition shall be applied as
a mandatory prepayment pursuant to Section 2.05(b)(i) to the extent required thereunder.
6. Restricted
Payments.
Declare or make, directly
or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, so long as no Default
shall have occurred and be continuing at the time of any action described below or would result therefrom:
(a) each
Subsidiary may make Restricted Payments to any Person that owns Equity Interests in such Subsidiary, ratably according to their respective
holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) the
Borrower and Holdings may make Permitted Tax Distributions;
(h) Pubco
may pay cash in lieu of fractional common Equity Interests in connection with any conversion of convertible Preferred Pubco Equity to
common Equity Interests;
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(b) the
BorrowerLoan Parties
and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the
BorrowerPubco and each Subsidiary may make Restricted
Payments, not exceeding $2,000,000 in aggregate amount during any
Fiscal Year pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the
BorrowerPubco and such Subsidiaries, including, without
limitation, to any member of the “Employee Group” as defined in the Organizational Documents of HoldingsPubco;
(d) the
BorrowerPubco and each Subsidiary may make any “net
down payments” involving the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the
BorrowerPubco or such Subsidiary held by any employee
in connection with vesting of equity awards, in order to satisfy any tax withholding obligations;
(e) the
BorrowerLoan Parties
may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the
Borrowersa Loan Party held by any future, present
or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs,
legatees or distributees of any of the foregoing) of such Loan Party or make Restricted Payments in the form of distributions to allow
the Borrowera Loan Party
to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager
or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing)
of such BorrowerLoan Party
in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests of the BorrowerLoan
Party held by such Persons; provided that the aggregate amount of Restricted Payments pursuant to this clause (f) shall
not exceed $1,000,000; and
(f) subject
to theeach Preferred
Equity Subordination Agreement, HoldingsPubco
may declare and make dividend payments or other distributions payable to the Preferred Pubco
Equity Holders with respect to Preferred Pubco Equity as
set forth in the Amended and Restated Liability Company Agreement of Holdings,
provided, that, both immediately before and immediately after giving effect to the making of such dividend payment or other distribution
(and to any Borrowing(s) or other incurrence(s) of Indebtedness made substantially concurrently or in connection therewith):
a) no
Default or Event of Default exists or would arise therefrom; and
b) solely
with respect to any such payment or distribution (or with respect to the applicable portion of a payment or distribution) other than a
Quarterly Senior Preferred Pubco
Distribution:
(1) the
Loan Parties are in compliance, on a Pro Forma Basis, with the financial covenant set forth in Section 7.11(b);
(2) the
Consolidated Senior Leverage Ratio, calculated on a Pro Forma Basis, shall be less than 2.50 to 1.00; and
subject
to each Preferred Equity Subordination Agreement, Pubco may repurchase, redeem, retire or otherwise acquire for value all or any portion
of the Preferred Pubco Equity, provided, that, both immediately before and immediately after giving effect to such repurchase, redemption,
retirement or acquisition for value (and to any Borrowing(s) or other incurrence(s) of Indebtedness made substantially concurrently
or in connection therewith):
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no
Default or Event of Default exists or would arise therefrom;
the
Loan Parties are in compliance, on a Pro Forma Basis, with the financial covenant set forth in Section 7.11(b); and
either
(1) the Consolidated Senior Leverage Ratio, calculated on a Pro Forma Basis, shall be less than 2.50 to 1.00 or (2) the Loan
Parties are otherwise in compliance, on a Pro Forma Basis, with the financial covenant set forth in Section 7.11(a) and the
Administrative Agent consents in its sole discretion to such repurchase, retirement or other acquisition or retirement for value;
(h) subject
to the Management Fee Subordination Agreement, the BorrowerPubco
may pay the management fee under the Management Agreement; provided that (i) at the time of each such payment, no Default
or Event of Default shall exist or would result upon giving pro forma effect thereto and (ii) after giving effect to the payment
of any such Restricted Payment, Borrower is in compliance with Section 7.11; provided further that during the continuance
of a Default, any such fees may continue to be accrued in favor of Management Entity and upon the waiver or rescission of any such Default,
any and all such accrued fees may immediately be paid to the Management Entity.;
and
subject
to the Deferred Payment Subordination Agreement, the Borrower may pay the Sandplant Deferred Payment; provided that (i) at the time
of such payment, no Default or Event of Default shall exist or would result upon giving pro forma effect thereto, (ii) after giving
effect to such Restricted Payment, Borrower is in compliance with Section 7.11; and (iii) prior to the making of such Restricted
Payment, the Borrower shall have delivered the Deferred Payment Certificate certifying
and demonstrating that after giving effect to the payment of the Sandplant Deferred Payment on a Pro Forma Basis (including any incurrence
of Indebtedness in connection therewith), the Loan Parties (excluding Pubco, to the extent Pubco is not included in the most recent financial
statements delivered pursuant to Section 6.01) are in Pro Forma Compliance.
7. Change
in Nature of Business.
Engage in any material line
of business substantially different from those lines of business conducted by the Borrower and its Subsidiaries on the date hereof or
any business substantially related or incidental thereto; provided, however, this provision is not intended
to restrict the ability of any Loan Party to develop and sell additional products that are complimentary to its current line of business.
8. Transactions
with Affiliates.
Enter into or permit to exist
any transaction or series of transactions with any officer, director or Affiliate of such Person other than:
transactions
among Loan Parties or between a Loan Party and an entity that becomes a Loan Party as a result of such transaction;
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Restricted
Payments permitted under Section 7.06;
transactions which
are entered into in the ordinary course of such Person’s business on fair and reasonable terms and conditions substantially as favorable
to such Person as would be obtainable by it in a comparable arm’s length transaction with a Person other than an officer, director
or Affiliate.;
the
issuance of Equity Interests or equity-based awards to any officer, director, employee of a Loan Party in the ordinary course of business
consistent with market practices;
normal
and reasonable employment or severance or benefit related arrangements between the Loan Parties and their respective officers and employees
in the ordinary course of business and consistent with past practices, and transactions pursuant to stock option and other equity award
plans and employee benefit plans and arrangements in the ordinary course of business and consistent with market practice; and
the
payment of customary fees and reasonable out of pocket costs to, and indemnities provided on behalf of, directors, officers and employees
of Loan Parties in the ordinary course of business to the extent attributable to the ownership or operation of the Loan Parties.
9. Burdensome
Agreements.
Enter into, or permit to exist,
any Contractual Obligation (except for this Agreement and the other Loan Documents) that (a) encumbers or restricts the ability
of any such Person to (i) to act as a Loan Party; (ii) make Restricted Payments to any Loan Party, (iii) pay any Indebtedness
or other obligation owed to any Loan Party, (iv) make loans or advances to any Loan Party, or (v) create any Lien
upon any of their properties or assets, whether now owned or hereafter acquired, except, in the case of clause (a)(v) only, for
any document or instrument governing Indebtedness incurred pursuant to Section 7.02(c); provided that any such restriction
contained therein relates only to the asset or assets constructed or acquired in connection therewith or (b) requires the grant of
any Lien on property for any obligation if a Lien on such property is given as security for the Secured Obligations.
10. Use
of Proceeds.
Use the proceeds of any Credit
Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within
the meaning of Regulation U) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness
originally incurred for such purpose.
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11. Financial
Covenants.
(a) Consolidated
Senior Leverage Ratio. Permit the Consolidated Senior Leverage Ratio as of the end of any Measurement Period ending as of the end
of any Fiscal Quarter of the Borrower, to be greater than the ratio set forth below opposite such period:
Measurement Period Ending
Ratio
Closing Date through September 30, 2024
3.75 to 1.00
December 31, 2024 and each Fiscal Quarter thereafter
3.50 to 1.00
provided,
that notwithstanding the foregoing, the Consolidated Senior Leverage Ratio level may, at the irrevocable election of the Borrower and
upon written notice to the Administrative Agent prior to the consummation of a Material Acquisition, be increased (i) by
0.25x0.50x for the
first fourtwo (42)
Fiscal Quarters ending after the date on which such Material Acquisition
(“is consummated and
(ii) by 0.25x for the third and fourth Fiscal Quarters ending after the date on which such Material Acquisition is consummated (such
increase, the “Leverage Step-Up”), provided, further that (A) in any event, the Consolidated Senior
Leverage Ratio for any period of four (4) Fiscal Quarters shall not be increased to be greater than 3.754.00
to 1.00, (B) from and after the First Amendment Effective Date, if the
Consolidated Senior Leverage Ratio shall have been equal to or less than 3.50 to 1.00 on the last day of at least two (2) Fiscals
Quarters following the end of the preceding Leverage Step-Up, the Consolidated Senior Leverage Ratio levels shall
notmay be increased pursuant to the foregoing proviso
on more than one (1) more
occasion during the remaining term of the Facility,
and (C) any such increase of the Consolidated Senior Leverage Ratio levels pursuant to the foregoing proviso shall apply only with
respect to the calculation of the Consolidated Senior Leverage Ratio for purposes of determining compliance with this covenant (and not,
for the avoidance of doubt, for determination of the Applicable Rate).
For
the avoidance of doubt, the Borrower and the Lenders acknowledge that (x) the Borrower has elected to increase the Consolidated Senior
Leverage Ratio pursuant to a Leverage Step-Up in connection with the consummation of the First Amendment Effective Date Acquisition and
(y) as a result, the Consolidated Senior Leverage Ratio for the Measurement Periods ending as of the end of any Fiscal Quarter of
the Borrower occurring after the First Amendment Effective Date, shall not be greater than the ratio set forth below opposite such period:
Measurement Period Ending
Ratio
December 31, 2025 and March 31, 2026
4.00 to 1.00
June 30, 2026 and September 30, 2026
3.75 to 1.00
December 31, 2026 and each Fiscal Quarter thereafter
3.50 to 1.00
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(b) Consolidated
Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge Coverage Ratio as of the end of any Measurement Period ending as
of the end of any Fiscal Quarter of the Borrower to be less than 1.25:1.00.
12. Amendments
of Organization Documents; Fiscal Year; Legal Name, State of Formation; Form of Entity and Accounting Changes.
(a) Amend
or modify any of its Organization Documents in any way which could reasonably be expected to adversely affect the interests of the Lenders
without the prior written consent of the Administrative Agent, provided
that any amendment or modification of the provisions of Holdings Organizational Documents relating to or regarding Preferred Equity
shall be subject to the Preferred Equity Subordination Agreement; (other
than such amendments and modifications made to consummate the De-SPAC Transaction);
(b) amend,
modify or waive the Management Agreement (other than such amendments and
modifications of the Management Agreement made in to consummate the De-SPAC Transaction) in a manner adverse to the rights or interests
of the Lenders, including to (A) increase the amount of the management fees payable under the terms thereof, (B) impose any
additional management, consulting, investment, banking, refinancing, transaction or other similar fees, (C) require the payment of
interest on any deferred management fees or other fees payable thereunder (other than the accrual of interest at a rate equal to nine
percent per annum on deferred management fees pursuant to Section 3(e) of the Management Agreement as in effect on the date
hereof), or (D) change the time of payment of any management fees or other fees payable thereunder;
(c) Amend,
modify or waive any of the Closing Date Acquisition Documents, to the extent any such amendment, modification or waiver would be adverse
to the interests of the Lenders without the Administrative Agent’s prior written consent;
(d) change
its Fiscal Year;
(e) without
providing ten (10) days prior written notice to the Administrative Agent (or such extended period of time as agreed to by the Administrative
Agent), change its name, state of formation, form of organization or principal place of business; or
(f) make
any change in accounting policies or reporting practices, except as required by GAAP.;
or
amend,
modify or waive any of the First Amendment Effective Date Acquisition Documents, to the extent any such amendment, modification or waiver
would be adverse to the interests of the Lenders without the Administrative Agent’s prior written consent; provided that Administrative
Agent and the Lenders consent to any extension of the Sandplant Deferred Payment to a payment date on or before December 31, 2026
and the accrual of interest on such amount as set forth in the First
Amendment Effective Date Acquisition Documents.
13. Sale
and Leaseback Transactions.
Enter into any Sale and Leaseback
Transaction.
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14. Subordinated
Debt Payments. Pay, prepay, redeem, purchase, repurchase, defease, retire or extinguish, or otherwise satisfy, or obligate
itself or any other Loan Party or Subsidiary to do any of the foregoing, in respect of any Subordinated Debt, except that so long as no
Default or Event of Default exists or would arise therefrom, the Borrower may make payments of regularly scheduled principal, interest,
accrued fees and expenses and customary indemnification obligations, and other required payments at the scheduled maturity thereof; provided,
in each case with respect to Subordinated Debt, that any such payment is in compliance with the terms of any applicable subordination
agreement entered into with the Administrative Agent on terms reasonably acceptable to the Administrative Agent.
15. Prepayments,
Etc. of Indebtedness. Prepay, redeem, purchase, defease or otherwise satisfy or obligate itself to do so prior to the scheduled
maturity thereof in any manner (including by the exercise of any right of setoff), or make any payment in violation of any subordination,
standstill or collateral sharing terms of or governing any Indebtedness, except (a) the prepayment of the Credit Extensions in accordance
with the terms of this Agreement, and (b) regularly scheduled or required repayments or redemptions of Indebtedness under the Indebtedness
set forth in Schedule 7.02 and refinancings and refundings of such Indebtedness in compliance with Section 7.02(b).
16. Amendment,
Etc. of Indebtedness.
(a) Amend,
modify or change in any manner any term or condition of any Subordinated Debt Document or give any consent, waiver or approval thereunder;
(b) take
any other action in connection with any Subordinated Debt Document that would impair the value of the interest or rights of any Loan Party
thereunder or that would impair the rights or interests of the Administrative Agent or any Lender; or
(c) amend,
modify or change in any manner any term or condition of any Indebtedness (other than Indebtedness arising under the Loan Documents) if
such amendment or modification would add or change any terms in a manner adverse to any Loan Party or any Subsidiary, or shorten the final
maturity or average life to maturity or require any payment to be made sooner than originally scheduled or increase the interest rate
applicable thereto.
17. Sanctions.
Directly or indirectly, use
any Credit Extension or the proceeds of any Credit Extension, or lend, contribute or otherwise make available such Credit Extension or
the proceeds of any Credit Extension to any Person, to fund any activities of or business with any Person, that, at the time of such funding,
is the subject of Sanctions, or in any other manner that will result in a violation by any Person (including any Person participating
in the transaction, whether as Lender, Arranger, Administrative Agent, L/C Issuer, Swingline Lender, or otherwise) of Sanctions.
18. Anti-Corruption
Laws.
Directly or indirectly, use
any Credit Extension or the proceeds of any Credit Extension for any purpose which would breach the United States Foreign Corrupt Practices
Act of 1977, the UK Bribery Act 2010 and other anti-corruption legislation in other jurisdictions.
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19. Holding
Company Status.
Notwithstanding anything to
the contrary contained herein, none of Pubco, Holdings or
Haymaker Subsidiary shall not:
(a) except
as permitted in clause (e) below, incur, directly or indirectly, any Indebtedness or any
other obligation or liability whatsoever other than the Obligations and any other obligation under any Loan Document;
(b) create
or suffer to exist any Lien upon any property or assets now owned or hereafter acquired by it (other than Liens pursuant
to any Loan Documentspermitted by clauses (a), (c), (e),
(f), (h), (j), (k), (m) or (n) of Section 7.01);
(c) create
or acquire any direct Subsidiary or make or own any direct Investment in any Person other than in the Borrower and cash and Cash Equivalents;
(c) (i) create
or acquire any direct Subsidiary (other than, with respect to Pubco, ownership of Holdings and Haymaker Subsidiary) or (ii) make
or own any direct Investment in any Person; provided that (A) Pubco, Holdings and Haymaker Subsidiary may make or own direct
Investments in the Borrower and in cash and Cash Equivalents, (B) Pubco may hold the Equity Interests in Holdings and Haymaker Subsidiary
and (C) Haymaker Subsidiary may make Investments in the Loan Parties in the form of unsecured subordinated intercompany loans so
long as such Indebtedness shall (i) to the extent required by the Administrative Agent, be evidenced by promissory notes which shall
be pledged to the Administrative Agent as Collateral for the Secured Obligations in accordance with the terms of the Security Agreement,
(ii) be on terms (including subordination terms) acceptable to the Administrative Agent and (iii) be otherwise permitted under
the provisions of Section 7.03;
(d) fail
to hold itself out to the public as a legal entity separate and distinct from all other Persons; or
(e) hold
any assets or incur any other obligations or liabilities, other than:
(i) the
performance of its obligations as a Guarantor,
(e) engage
in any business or activity, hold any assets or incur any other liabilities, other than (i) the performance of its obligations as a Guarantor, (ii)(ii) (A) as
to Pubco, the direct or indirect ownership of all outstanding Equity Interests in Holdings,
the Haymaker Subsidiary, the Borrower and its Subsidiaries and
(B) as to Holdings, the direct or indirect ownership of all outstanding Equity Interests in the Borrower and its Subsidiaries,
(iii) maintaining its corporate or other organizational existence,
(iv)
(iii) maintaining
its corporate or other organizational existence and compliance with
Laws, including, without limitation, Sarbanes-Oxley Act of 2002, as amended from time to time, the Securities Act and the Exchange Act,
registration and reporting obligations and the rules of securities exchange companies with listed equity securities,
(iv) compliance
with any order, injunction, judgment, writ or decree of any Governmental Authority,
(v) resolution
of any actions, suits, proceedings, claims, disputes or arbitral award to which Pubco or its properties or revenues is subject,
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(vi) participating
in tax, accounting and other administrative activities as a member of the consolidated group of companies including the Loan Parties,
(v)
(vii) as
to Pubco, preparing reports to Governmental Authorities and its shareholders, including the filing of registration statements, convening
shareholder meetings and other meetings, and compliance with applicable and applicable reporting obligations under its organizational
documents and federal, state or other securities laws,
(viii) executing,
delivering and performing rights and obligations under the Loan Documents and any documents and agreement to any Acquisition or Investment
permitted hereunder to which it is a party,
(viix)
making any Restricted Payment permitted by Section 7.06, (vii) making
capital contributions to the Borrower,
(x) any
fundamental change permitted by Section 7.04,
(xi) making
capital contributions to the Borrower, directly or indirectly,
(viiixii)
executing, delivering and performing rights and obligations under any employment agreements,
management agreements (including the Management Agreement), consulting agreements and any documents related thereto, (ix)
(xiii) procurement
of, and obligations related to, directors’ and officers’ insurance and other insurance necessary or desirable in the business
judgment of the Loan Parties,
(xiv) incurrence
of any Indebtedness permitted to be incurred by Pubco or Holdings
under Section 7.01, (x) activities necessary or advisable to consummate the Transactions, (xi) any issuance or sale of its Equity Interests,
(including, without limitation, any Guarantee of Indebtedness
permitted to be incurred by Borrower and its Subsidiaries under Section 7.01),
(xv) activities
necessary or advisable to consummate the Transactions and the De-SPAC
Transaction, whether consummated on the De-SPAC Closing Date or thereafter,
(xvi) as
to Pubco, any issuance or sale of Pubco’s Equity Interests,
(xii)xvii)
recruiting, compensation and providing indemnification to officers and,
directors, consultants, managers and employees in the ordinary course
of business, and (xiii) any activities incidental
or reasonably related to the foregoing clauses (i) – (xii).
(xviii) any
activities incidental or reasonably related to the foregoing clauses (i) – (xvii),
including incurrence of costs, fees and expenses (including listing fees and reasonable legal, executive, consulting, management, accounting,
and other professional fees).
20. Limitation
on Disqualified Equity Interests and Preferred Equity Interests.
Create,
incur, assume or suffer to exist any Preferred Equity, except:
(a) the
Preferred Equity outstanding on theIssue or sell or enter
into any agreement or arrangement for the issuance or sale of any Disqualified Equity Interests or preferred Equity Interests, except
Preferred Pubco Equity may be issued (A) on or about the De-SPAC Closing Date; and
137
(b)
in redemption or exchange of the Senior additional
Preferred Equity issuedor
(B) on or after the De-SPAC Closing Date so long as,
in each case:
(i) no
Default or Event of Default exists or would arise from the issuance thereof;
on
the date of the issuance thereof,
(ii) on
the date of the issuance thereof, (x) the Loan Parties are in compliance, on a Pro
Forma Basis, with the financial covenant set forth in Section 7.11(b);
and
a) (y)for
all issuances of Preferred Pubco Equity other than Permitted Preferred Pubco Equity, the Consolidated Senior Leverage Ratio, calculated
on a Pro Forma Basis, shall be less than 2.50 to 1.00;
(iii) the
terms of such Preferred Pubco Equity shall (x) be
the same as the Preferred Equity outstanding on the Closing Date or (y) be in form and substance satisfactory to
the Administrative Agent (including dividend rate and any mandatory redemption date, if applicable, that exceeds the Maturity Date by
at least six (6) months); and
(iv) the
proceeds of such additional Preferred Equity are used solely to consummate a Permitted Acquisition; and
(v) each
Preferred Pubco Equity Holder of such additional
Preferred Pubco Equity is at all times subject to
the terms of thea
Preferred Equity Subordination Agreement.
M.
EVENTS OF DEFAULT AND REMEDIES
1. Events
of Default.
Any of the following shall
constitute an event of default (each, an “Event of Default”):
(a) Non-Payment.
The Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan
or any L/C Obligation or deposit any funds as Cash Collateral in respect of L/C Obligations, or (ii) within five (5) days after
the same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or any other amount payable hereunder
or under any other Loan Document; or
(b) Specific
Covenants. Any Loan Party fails to perform or observe any term, covenant or agreement contained in any of Section 6.01,
6.02, 6.03, 6.05, 6.08, 6.10, 6.11, 6.15, Article VII or Article X;
or
(c) Other
Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in Section 8.01(a) or
(b) above) contained in this Agreement or any Loan other Document on its part to be performed or observed and such failure
continues for thirty (30) days after the earlier of (i) the first day on which any Loan Party obtains knowledge of such failure or
(ii) written notice thereof has been given to any Loan Party by the Administrative Agent or any Lender; or
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(d) Representations
and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower
or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be
incorrect or misleading in any material respect (or any such representation, warranty, certification or statement that is qualified by
materiality or Material Adverse Effect shall be incorrect or misleading in any respect) when made or deemed made; or
(e) Cross-Default.
(i) Any Loan Party or any Subsidiary thereof (A) fails to make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness
under Swap Contracts) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing
to all creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount, or (B) fails to observe
or perform any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit
the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or
to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease
or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or Cash Collateral in respect
thereof to be demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to which a Loan Party or any Subsidiary thereof is the Defaulting
Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which a Loan
Party or any Subsidiary thereof is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by such Loan
Party or such Subsidiary as a result thereof is greater than the Threshold Amount; or
(f) Insolvency
Proceedings, Etc. Any Loan Party or any Subsidiary thereof institutes or consents to the institution of any proceeding under any Debtor
Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such
Person and the appointment continues undischarged or unstayed for sixty (60) calendar days; or any proceeding under any Debtor Relief
Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues
undismissed or unstayed for sixty (60) calendar days, or an order for relief is entered in any such proceeding; or
(g) Inability
to Pay Debts; Attachment. (i) Any Loan Party or any Subsidiary thereof becomes unable or admits in writing its inability or fails
generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued
or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within thirty
(30) days after its issue or levy; or
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(h) Judgments.
There is entered against any Loan Party or any Subsidiary thereof (i) one or more final judgments or orders for the payment of money
in an aggregate amount (as to all such judgments and orders) exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer is rated at least “A” by A.M. Best Company, has been notified of the potential
claim and does not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced
by any creditor upon such judgment or order, or (B) there is a period of ten (10) consecutive days during which a stay of enforcement
of such judgment, by reason of a pending appeal or otherwise, is not in effect; or
(i) ERISA.
(i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected
to result in liability of any Loan Party to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate
amount in excess of the Threshold Amount; or
(j) Invalidity
of Loan Documents. Any payment provision, any financial covenant or any other material provision of any Loan Document, at any time
after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full
of all Obligations arising under the Loan Documents, ceases to be in full force and effect; or any Loan Party or any other Person contests
in any manner the validity or enforceability of any provision of any Loan Document; or any Loan Party denies that it has any or further
liability or obligation under any provision of any Loan Document, or purports to revoke, terminate or rescind any provision of any Loan
Document; or it is or becomes unlawful for a Loan Party to perform any of its obligations under the Loan Documents; or
(k) Collateral
Documents. Any Collateral Document after delivery thereof pursuant to the terms of the Loan Documents shall for any reason cease to
create a valid and perfected first priority Lien (subject to Permitted Liens) on the Collateral purported to be covered thereby, or any
Loan Party shall assert the invalidity of such Liens; or
(l) Change
of Control. There occurs any Change of Control; or
(i) Subordination.
(i) Any of the subordination, standstill, payover and insolvency related provisions of any of the Subordinated Debt Documents (the
“Subordinated Provisions”) shall, in whole or in part, terminate, cease to be effective or cease to be legally
valid, binding and enforceable against any holder of the applicable Subordinated Debt; or (ii) the Borrower or any other Loan Party
shall, directly or indirectly, disavow or contest in any manner (A) the effectiveness, validity or enforceability of any of the Subordinated
Provisions, (B) that the Subordinated Provisions exist for the benefit of the Administrative Agent and the Secured Parties or (C) that
all payments of principal of or premium and interest on the applicable Subordinated Debt, or realized from the liquidation of any property
of any Loan Party, shall be subject to any of the Subordinated Provisions.
140
Without limiting the provisions
of Article IX, if a Default shall have occurred under the Loan Documents, then such Default will continue to exist until it
either is cured (to the extent specifically permitted) in accordance with the Loan Documents or is otherwise expressly waived by Administrative
Agent (with the approval of requisite Appropriate Lenders (in their sole discretion)) as determined in accordance with Section 11.01;
and once an Event of Default occurs under the Loan Documents, then such Event of Default will continue to exist until it is expressly
waived by the requisite Appropriate Lenders or by the Administrative Agent with the approval of the requisite Appropriate Lenders, as
required hereunder in Section 11.01.
2. Remedies
upon Event of Default.
If any Event of Default occurs
and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all
of the following actions:
(a) declare
the Commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon
such commitments and obligation shall be terminated;
(b) declare
the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of
any kind, all of which are hereby expressly waived by the Borrower;
(c) require
that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the Minimum Collateral Amount with respect thereto); and
(d) exercise
on behalf of itself, the Lenders and the L/C Issuer all rights and remedies available to it, the Lenders and the L/C Issuer under the
Loan Documents or Applicable Law or equity;
provided,
however, that upon the occurrence of an event described in Section 8.01(f) with respect to the Borrower, the Commitment
of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid
principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable,
and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each
case without further act of the Administrative Agent or any Lender.
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3. Borrower’s
Right to Cure.
8.03
Notwithstanding anything to the contrary contained in Sections 8.01 or 8.02:
(a) Solely
for the purpose of determining whether an Event of Default has occurred as a result of the failure to comply with any Financial Covenants,
the Borrower may on one or more occasions designate a Specified Equity Contribution as a dollar-for-dollar increase to Consolidated EBITDA
for the applicable Fiscal Quarter; provided that (A) such Specified Equity Contribution (i) is actually received
by Borrower after the end of such Fiscal Quarter and on or prior to the tenth (10th) Business Day after the date on which financial statements
are required to be delivered with respect to such applicable Fiscal Quarter (the “Cure Expiration Date”) and
(ii) does not exceed the aggregate amount necessary to cure any Event of Default resulting from the failure to comply with any Financial
Covenant as of such date, (B) the Borrower shall have provided an irrevocable notice (the “Notice of Intent to Cure”)
to the Administrative Agent during such 10 Business Day period that such amounts are designated as a Specified Equity Contribution and
(C) the Borrower shall prepay the Loans with such net cash proceeds pursuant to Section 2.05(b)(ii)(A) on
or prior to the Cure Expiration Date. The Specified Equity Contribution shall be added to Consolidated EBITDA for the applicable Fiscal
Quarter and included in any Measurement Period that includes such Fiscal Quarter.
(b) The
parties hereby acknowledge that any Specified Equity Contribution pursuant this Section 8.03 may not be relied on for any
purposes of calculating any financial ratio-based covenants, tests or conditions, determining pricing and any baskets with respect to
the covenants contained in the Loan Documents (including, without limitation, any based on Consolidated EBITDA) other than for determining
actual compliance with the Financial Covenants and shall not result in any adjustment to any amounts with respect to the Fiscal Quarter
with respect to which such Specified Equity Contribution was made (or the period after such Fiscal Quarter but before delivery of the
Notice of Intent to Cure) other than the amount of and for the purposes of the Consolidated EBITDA referred to in Section 8.03(a) above.
(c) In
furtherance of Section 8.03(a) above, (i) upon actual receipt and designation of the Specified Equity Contribution
by Borrower and the prepayment of the Loans pursuant to Section 2.05(b)(ii)(A),
the Financial Covenants with respect to such Fiscal Quarter shall be deemed retroactively cured with the same effect as though there had
been no failure to comply with the Financial Covenants with respect to such Fiscal Quarter and any Event of Default or Default under Section 7.11(a) or
(b) with respect to such Fiscal Quarter shall be deemed not to have occurred for purposes of the Loan Documents, (ii) no
Lender or L/C Issuer shall be required to make any Credit Extension hereunder during the ten (10) Business Day period referred to
above unless Borrower has actually received the proceeds of the Specified Equity Contribution (and prepaid the Loans pursuant to Section 2.05(b)(ii)(A)),
(iii) no Loan Party nor any Subsidiary thereof shall be permitted to make any Restricted Payments during the ten (10) Business
Day period referred to above unless Borrower has actually received the proceeds of the Specified Equity Contribution (and prepaid the
Loans pursuant to Section 2.05(b)(ii)(A))
and no Restricted Payments shall be made with the proceeds of any Specified Equity Contribution and (iv) unless necessary to prevent
fraud, material impairment of the rights of the Administrative Agent or Lenders under this Agreement or the tolling of an applicable statute
of limitations, neither the Administrative Agent nor any Lender may exercise any rights or remedies under Section 8.02 (or
under any other Loan Document) solely on the basis of any Default or Event of Default resulting from the failure to comply with any Financial
Covenants with respect to such Fiscal Quarter following receipt of a Notice of Intent to Cure until the earlier of (i) the Cure Expiration
Date has occurred without the Specified Equity Contribution having been received (or the Loans not being prepaid pursuant to Section 2.05(b)(ii)(A))
and (ii) the Borrower provide written notice to the Administrative Agent of its intent not to further comply with its obligations
to exercise its rights under this Section 8.03.
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(d) (i) In
each period of four consecutive Fiscal Quarters, there shall be at least two Fiscal Quarters in which no cure right set forth in this
Section 8.03 is exercised, (ii) in each Fiscal Year, there shall not be more than one (1) cure right exercised pursuant
to this Section 8.03, (iii) there shall be no exercise of the cure right set forth in this Section 8.03 in
consecutive Fiscal Quarters and (iv) there shall be no pro forma reduction in Indebtedness (through either netting of cash or the
prepayment of the Loans) with the Specified Equity Contribution for determining compliance the Financial Covenants for the Fiscal Quarter
with respect to which such Specified Equity Contribution was made.
(e) There
can be no more than three (3) Fiscal Quarters in which the cure rights set forth in this Section 8.03 are exercised during
the term of this Agreement.
4. Application
of Funds.
(a) After
the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable
and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02)
or if at any time insufficient funds are received by and available to the Administrative Agent to pay fully all Secured Obligations then
due hereunder, any amounts received on account of the Secured Obligations shall, subject to the provisions of Sections 2.14 and
2.15, be applied by the Administrative Agent in the following order:
First,
to payment of that portion of the Secured Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges
and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative
Agent in its capacity as such;
Second,
to payment of that portion of the Secured Obligations constituting fees, indemnities and other amounts (other than principal, interest
and Letter of Credit Fees) payable to the Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the respective
Lenders and the L/C Issuer arising under the Loan Documents and amounts payable under Article III), ratably among them in
proportion to the respective amounts described in this Second clause payable to them;
Third,
to payment of that portion of the Secured Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans,
L/C Borrowings and other Secured Obligations arising under the Loan Documents, ratably among the Lenders and the L/C Issuer in proportion
to the respective amounts described in this Third clause payable to them;
Fourth,
to payment of that portion of the Secured Obligations constituting unpaid principal of the Loans, L/C Borrowings and Secured Obligations
then owing under Secured Hedge Agreements and Secured Cash Management Agreements and to the to the Administrative Agent for the account
of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit
to the extent not otherwise Cash Collateralized by the Borrower pursuant to Sections 2.03 and 2.14, in each case ratably
among the Administrative Agent, the Lenders, the L/C Issuer, the Hedge Banks and the Cash Management Banks in proportion to the respective
amounts described in this Fourth clause held by them; and
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Last,
the balance, if any, after all of the Secured Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required
by Law.
(b) Subject
to Sections 2.03(c) and 2.14, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit
pursuant to the Fourth clause above shall be applied to satisfy drawings under such Letters of Credit as they occur. If
any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount
shall be applied to the other Secured Obligations, if any, in the order set forth above. Excluded Swap Obligations with respect to any
Guarantor shall not be paid with amounts received from such Guarantor or its assets, but appropriate adjustments shall be made with respect
to payments from other Loan Parties to preserve the allocation to Secured Obligations otherwise set forth above in this Section 8.04.
(c) Notwithstanding
the foregoing, Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements shall be excluded from
the application described above if the Administrative Agent has not received a Secured Party Designation Notice, together with such supporting
documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. Each
Cash Management Bank or Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall,
by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX
for itself and its Affiliates as if a “Lender” party hereto.
N.
ADMINISTRATIVE AGENT
1. Appointment
and Authority.
(a) Appointment.
Each of the Lenders and the L/C Issuer hereby irrevocably appoints, designates and authorizes Bank of America to act on its behalf as
the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto. The provisions of this Article IX are solely for the benefit of the
Administrative Agent, the Lenders and the L/C Issuer, and neither the Borrower nor any other Loan Party shall have rights as a third party
beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other
Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead such term is used as a matter of market
custom, and is intended to create or reflect only an administrative relationship between contracting parties.
(b) Collateral
Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders
(including in its capacities as a potential Hedge Bank, and a potential Cash Management Bank) and the L/C Issuer hereby irrevocably appoints
and authorizes the Administrative Agent to act as the agent of such Lender and the L/C Issuer for purposes of acquiring, holding and enforcing
any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Secured Obligations, together with such powers
and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and
any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.05 for purposes
of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising
any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of
this Article IX and Article XI (including Section 11.04(c), as though such co-agents, sub-agents and
attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.
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2. Rights
as a Lender.
The Person serving as the
Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise
the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its
individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor
or in any other advisory capacity for and generally engage in any kind of banking, trust, financial, advisory, underwriting or other business
with any Loan Party or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without
any duty to account therefor to the Lenders or to provide notice to or consent of the Lenders with respect thereto.
3. Exculpatory
Provisions.
(a) The
Administrative Agent or the Arranger, as applicable, shall not have any duties or obligations except those expressly set forth herein
and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing,
the Administrative Agent or the Arranger, as applicable, and its Related Parties:
a) shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
b) shall
not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel,
may expose the Administrative Agent to liability or that is contrary to any Loan Document or Applicable Law, including for the avoidance
of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification
or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and
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c) shall
not have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, to any Lender or the L/C Issuer
any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness
of any of the Loan Parties or any of their Affiliates that is communicated to, or in the possession of, the Administrative Agent, Arrangers
or any of their Related Parties in any capacity, except for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent herein.
(b) Neither
the Administrative Agent nor any of its Related Parties shall be liable for any action taken or not taken by the Administrative Agent
under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby or thereby (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary), or as
the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 11.01
and 8.02) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction
by final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice
describing such Default is given in writing to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.
(c) Neither
the Administrative Agent nor any of its Related Parties have any duty or obligation to any Lender or participant or any other Person to
ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other
Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth
herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement,
any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported
to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered
to the Administrative Agent.
4. Reliance
by Administrative Agent.
The Administrative Agent shall
be entitled to rely upon, and shall be fully protected in relying and shall not incur any liability for relying upon, any notice, request,
certificate, communication, consent, statement, instrument, document or other writing (including any electronic message, Internet
or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to
have been made by the proper Person, and shall be fully protected in relying and shall not incur any liability for relying thereon. In
determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter
of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume
that such condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall have received notice to the
contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative
Agent may consult with legal counsel (who may be counsel for the Loan Parties), independent accountants and other experts selected by
it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or
experts. For purposes of determining compliance with the conditions specified in Section 4.01, each Lender that has signed
this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its objections.
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5. Delegation
of Duties.
The Administrative Agent may
perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one
or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article IX
shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the Facilities as well as activities as Administrative Agent. The Administrative
Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction
determines in a final and non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the
selection of such sub-agents.
6. Resignation
of Administrative Agent.
(a) Notice.
The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuer and the Borrower. Upon receipt
of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor,
which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no
such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after
the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the
“Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to) on
behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above; provided
that in no event shall any successor Administrative Agent be a Defaulting Lender. Whether or not a successor has been appointed, such
resignation shall become effective in accordance with such notice on the Resignation Effective Date.
(b) Effect
of Resignation. With effect from the Resignation Effective Date (i) the retiring Administrative Agent shall be discharged from
its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the
Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the retiring Administrative Agent shall
continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) except for any
indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations
provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and the L/C Issuer directly,
until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of
a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 3.01(g) and other
than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the Resignation Effective Date),
and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents
(if not already discharged therefrom as provided above in this Section 9.06). The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.
After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article XI
and Section 11.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be taken by any of them (A) while the retiring Administrative
Agent was acting as Administrative Agent and (B) after such resignation for as long as any of them continues to act in any capacity
hereunder or under the other Loan Documents, including, without limitation, (1) acting as collateral agent or otherwise holding any
collateral security on behalf of any of the Secured Parties and (2) in respect of any actions taken in connection with transferring
the agency to any successor Administrative Agent.
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(j) L/C
Issuer and Swingline Lender. Any resignation or removal by Bank of America as Administrative Agent pursuant to this Section 9.06
shall also constitute its resignation as L/C Issuer and Swingline Lender. If Bank of America resigns as the L/C Issuer, it shall retain
all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the
effective date of its resignation as the L/C Issuer and all L/C Obligations with respect thereto, including the right to require the Lenders
to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c). If Bank of America
resigns as Swingline Lender, it shall retain all the rights of the Swingline Lender provided for hereunder with respect to Swingline Loans
made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate
Loans or fund risk participations in outstanding Swingline Loans pursuant to Section 2.04(c). Upon the appointment by the
Borrower of a successor L/C Issuer or Swingline Lender hereunder (which successor shall in all cases be a Lender other than a Defaulting
Lender), (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring
L/C Issuer or Swingline Lender, as applicable, (ii) the retiring L/C Issuer and Swingline Lender shall be discharged from all of
their respective duties and obligations hereunder or under the other Loan Documents, and (iii) the successor L/C Issuer shall issue
Letters of Credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements
satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.
7. Non-Reliance
on Administrative Agent, the Arrangers and the Other Lenders.
Each Lender and the L/C Issuer
expressly acknowledges that none of the Administrative Agent nor any of the Arrangers has made any representation or warranty to it, and
that no act by the Administrative Agent or any of the Arrangers hereafter taken, including any consent to, and acceptance of any assignment
or review of the affairs of any Loan Party or any Affiliate thereof, shall be deemed to constitute any representation or warranty by the
Administrative Agent or any Arranger to any Lender or the L/C Issuer as to any matter, including whether the Administrative Agent or any
Arranger have disclosed material information in their (or their Related Parties’) possession. Each Lender and the L/C Issuer represents
to the Administrative Agent and the Arrangers that it has, independently and without reliance upon the Administrative Agent, any Arranger,
any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own
credit analysis of, appraisal of, and investigation into, the business, prospects, operations, property, financial and other condition
and creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower hereunder. Each Lender
and the L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Arrangers, any
other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate,
continue to make its own credit analysis, appraisals and decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished hereunder or thereunder, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness
of the Loan Parties. Each Lender and the L/C Issuer represents and warrants that (i) the Loan Documents set forth the terms of a
commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is
entering into this Agreement as a Lender or L/C Issuer for the purpose of making, acquiring or holding commercial loans and providing
other facilities set forth herein as may be applicable to such Lender or L/C Issuer, and not for the purpose of purchasing, acquiring
or holding any other type of financial instrument, and each Lender and the L/C Issuer agrees not to assert a claim in contravention of
the foregoing. Each Lender and the L/C Issuer represents and warrants that it is sophisticated with respect to decisions to make, acquire
and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such L/C Issuer,
and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide
such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities.
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8. No
Other Duties, Etc.
Anything herein to the contrary
notwithstanding, none of the titles listed on the cover page hereof shall have any powers, duties or responsibilities under this
Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, the Arranger, a Lender
or the L/C Issuer hereunder.
9. Administrative
Agent May File Proofs of Claim; Credit Bidding.
(a) In
case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative
Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration
or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered,
by intervention in such proceeding or otherwise:
a) to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and
all other Secured Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to
have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent and their respective agents and counsel and all
other amounts due the Lenders, the L/C Issuer and the Administrative Agent under Sections 2.03(h) and (i), 2.09,
2.10(b) and 11.04) allowed in such judicial proceeding; and
b) to
collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
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and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the
L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making
of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative
Agent under Sections 2.09, 2.10(b) and 11.04.
(b) Nothing
contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any
Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Secured Obligations or the rights
of any Lender or the L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or the L/C Issuer
or in any such proceeding.
(c) The
Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or
any portion of the Secured Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the Secured
Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more
acquisition vehicles) all or any portion of the Collateral (i) at any sale thereof conducted under the provisions of the Bankruptcy
Code of the United States, including under Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any similar Laws
in any other jurisdictions to which a Loan Party is subject, (ii) at any other sale or foreclosure or acceptance of collateral in
lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise)
in accordance with any Applicable Law. In connection with any such credit bid and purchase, the Secured Obligations owed to the Secured
Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with Secured Obligations with respect to contingent or unliquidated
claims receiving contingent interests in the acquired assets on a ratable basis that would vest upon the liquidation of such claims in
an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) in the asset
or assets so purchased (or in the Equity Interests or debt instruments of the acquisition vehicle or vehicles that are used to consummate
such purchase). In connection with any such bid (A) the Administrative Agent shall be authorized to form one or more acquisition
vehicles to make a bid, (B) to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided
that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets
or Equity Interests thereof shall be governed, directly or indirectly, by the vote of the Required Lenders, irrespective of the termination
of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in clauses (a)(i) through
(ix) of Section 11.01 of this Agreement), and (C) to the extent that Secured Obligations that are assigned
to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because
the amount of Secured Obligations assigned to the acquisition vehicle exceeds the amount of debt credit bid by the acquisition vehicle
or otherwise), such Secured Obligations shall automatically be reassigned to the Lenders pro rata and the Equity Interests and/or
debt instruments issued by any acquisition vehicle on account of the Secured Obligations that had been assigned to the acquisition vehicle
shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.
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10. Collateral
and Guaranty Matters.
(a) Each
of the Lenders (including in its capacities as a potential Cash Management Bank and a potential Hedge Bank) and the L/C Issuer irrevocably
authorize the Administrative Agent, at its option and in its discretion,
a) to
release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon the Facility Termination
Date, (ii) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale
or other disposition permitted hereunder or under any other Loan Document, or (iii) if approved, authorized or ratified in writing
by the Required Lenders in accordance with Section 11.01;
b) to
subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien
on such property that is permitted by Section 7.01(i); and
c) to
release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted
under the Loan Documents.
(b) Upon
request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority
to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under
the Guaranty pursuant to this Section 9.10. In each case as specified in this Section 9.10, the Administrative
Agent will, at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably
request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents
or to subordinate its interest in such item, or to release such Guarantor from its obligations under the Guaranty, in each case in accordance
with the terms of the Loan Documents and this Section 9.10.
(c) The
Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding
the existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien
thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable
to the Lenders for any failure to monitor or maintain any portion of the Collateral.
11. Secured
Cash Management Agreements and Secured Hedge Agreements.
Except as otherwise expressly
set forth herein or in the Guaranty or any Collateral Document, no Cash Management Bank or Hedge Bank that obtains the benefit of the
provisions of Section 8.04, the Guaranty or any Collateral by virtue of the provisions hereof or the Collateral Document shall
have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or
otherwise in respect of the Collateral (including the release or impairment of any Collateral) (or to notice of or to consent to any amendment,
waiver or modification of the provisions hereof or of the Guaranty or any Collateral Document) other than in its capacity as a Lender
and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article IX
to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have
been made with respect to, Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements except to
the extent expressly provided herein and unless the Administrative Agent has received a Secured Party Designation Notice of such Secured
Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management
Bank or Hedge Bank, as the case may be. The Administrative Agent shall not be required to verify the payment of, or that other satisfactory
arrangements have been made with respect to, Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements
in the case of a Facility Termination Date.
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12. Certain
ERISA Matters.
(a) Each
Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the
date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative
Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following
is and will be true:
a) such
Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit
Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters
of Credit, the Commitments, or this agreement,
b) the
transaction exemption set forth in one or more PTEs, such as PTE 84–14 (a class exemption for certain transactions determined by
independent qualified professional asset managers), PTE 95–60 (a class exemption for certain transactions involving insurance company
general accounts), PTE 90–1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE
91–38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96–23 (a class exemption
for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation
in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
c) (A) such
Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE
84–14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into,
participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into,
participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies
the requirements of sub-sections (b) through (g) of Part I of PTE 84–14 and (D) to the best knowledge of such
Lender, the requirements of subsection (a) of Part I of PTE 84–14 are satisfied with respect to such Lender’s
entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
or
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d) such
other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and
such Lender.
(b) In
addition, unless either (1) clause (i) in the immediately preceding clause (a) is true with respect to a
Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with clause (iv) in the
immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender
party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being
a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the
Borrower or any other Loan Party, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved
in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments
and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement,
any Loan Document or any documents related hereto or thereto).
13. Recovery
of Erroneous Payments.
Without limitation of any
other provision in this Agreement, if at any time the Administrative Agent makes a payment hereunder in error to any Lender Recipient
Party, whether or not in respect of an Obligation due and owing by the Borrower at such time, where such payment is a Rescindable Amount,
then in any such event, each Lender Recipient Party receiving a Rescindable Amount severally agrees to repay to the Administrative Agent
forthwith on demand the Rescindable Amount received by such Lender Recipient Party in immediately available funds in the currency so received,
with interest thereon, for each day from and including the date such Rescindable Amount is received by it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation. Each Lender Recipient Party irrevocably waives any and all defenses, including
any “discharge for value” (under which a creditor might otherwise claim a right to retain funds mistakenly paid by a third
party in respect of a debt owed by another) or similar defense to its obligation to return any Rescindable Amount. The Administrative
Agent shall inform each Lender Recipient Party promptly upon determining that any payment made to such Lender Recipient Party comprised,
in whole or in part, a Rescindable Amount.
O.
CONTINUING GUARANTY
1. Guaranty.
Each Guarantor hereby absolutely
and unconditionally, jointly and severally guarantees, as primary obligor and as a guaranty of payment and performance and not merely
as a guaranty of collection, prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or
otherwise, and at all times thereafter, of any and all Secured Obligations (for each Guarantor, subject to the proviso in this sentence,
its “Guaranteed Obligations”); provided that (a) the Guaranteed Obligations of a Guarantor shall
exclude any Excluded Swap Obligations with respect to such Guarantor and (b) the liability of each Guarantor individually with respect
to this Guaranty shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject
to avoidance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any applicable state law.
Without limiting the generality of the foregoing, the Guaranteed Obligations shall include any such indebtedness, obligations, and liabilities,
or portion thereof, which may be or hereafter become unenforceable or compromised or shall be an allowed or disallowed claim under any
proceeding or case commenced by or against any debtor under any Debtor Relief Laws. The Administrative Agent’s books and records
showing the amount of the Obligations shall be admissible in evidence in any action or proceeding, and shall be binding upon each Guarantor,
and conclusive for the purpose of establishing the amount of the Secured Obligations. This Guaranty shall not be affected by the genuineness,
validity, regularity or enforceability of the Secured Obligations or any instrument or agreement evidencing any Secured Obligations, or
by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance
relating to the Secured Obligations which might otherwise constitute a defense to the obligations of the Guarantors, or any of them, under
this Guaranty, and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to any
or all of the foregoing.
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2. Rights
of Lenders.
Each Guarantor consents and
agrees that the Secured Parties may, at any time and from time to time, without notice or demand, and without affecting the enforceability
or continuing effectiveness hereof: (a) amend, extend, renew, compromise, discharge, accelerate or otherwise change the time for
payment or the terms of the Secured Obligations or any part thereof; (b) take, hold, exchange, enforce, waive, release, fail to perfect,
sell, or otherwise dispose of any security for the payment of this Guaranty or any Secured Obligations; (c) apply such security and
direct the order or manner of sale thereof as the Administrative Agent, the L/C Issuer and the Lenders in their sole discretion may determine;
and (d) release or substitute one or more of any endorsers or other guarantors of any of the Secured Obligations. Without limiting
the generality of the foregoing, each Guarantor consents to the taking of, or failure to take, any action which might in any manner or
to any extent vary the risks of such Guarantor under this Guaranty or which, but for this provision, might operate as a discharge of such
Guarantor.
3. Certain
Waivers.
Each Guarantor waives (a) any
defense arising by reason of any disability or other defense of the Borrower or any other guarantor, or the cessation from any cause whatsoever
(including any act or omission of any Secured Party) of the liability of the Borrower or any other Loan Party; (b) any defense based
on any claim that such Guarantor’s obligations exceed or are more burdensome than those of the Borrower or any other Loan Party;
(c) the benefit of any statute of limitations affecting any Guarantor’s liability hereunder; (d) any right to proceed
against the Borrower or any other Loan Party, proceed against or exhaust any security for the Secured Obligations, or pursue any other
remedy in the power of any Secured Party whatsoever; (e) any benefit of and any right to participate in any security now or hereafter
held by any Secured Party; and (f) to the fullest extent permitted by law, any and all other defenses or benefits that may be derived
from or afforded by Applicable Law limiting the liability of or exonerating guarantors or sureties. Each Guarantor expressly waives all
setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests,
notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Secured
Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Secured Obligations.
4. Obligations
Independent.
The obligations of each Guarantor
hereunder are those of primary obligor, and not merely as surety, and are independent of the Secured Obligations and the obligations of
any other guarantor, and a separate action may be brought against each Guarantor to enforce this Guaranty whether or not the Borrower
or any other person or entity is joined as a party.
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5. Subrogation.
No Guarantor shall exercise
any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Guaranty
until all of the Secured Obligations and any amounts payable under this Guaranty have been indefeasibly paid and performed in full and
the Commitments and the Facilities are terminated. If any amounts are paid to a Guarantor in violation of the foregoing limitation, then
such amounts shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Secured Parties to reduce
the amount of the Secured Obligations, whether matured or unmatured.
6. Termination;
Reinstatement.
This Guaranty is a continuing
and irrevocable guaranty of all Secured Obligations now or hereafter existing and shall remain in full force and effect until the Facility
Termination Date. Notwithstanding the foregoing, this Guaranty shall continue in full force and effect or be revived, as the case may
be, if any payment by or on behalf of the Borrower or a Guarantor is made, or any of the Secured Parties exercises its right of setoff,
in respect of the Secured Obligations and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by any of the Secured
Parties in their discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor
Relief Laws or otherwise, all as if such payment had not been made or such setoff had not occurred and whether or not the Secured Parties
are in possession of or have released this Guaranty and regardless of any prior revocation, rescission, termination or reduction. The
obligations of each Guarantor under this Section 10.06 shall survive termination of this Guaranty.
7. Stay
of Acceleration.
If acceleration of the time
for payment of any of the Secured Obligations is stayed, in connection with any case commenced by or against a Guarantor or the Borrower
under any Debtor Relief Laws, or otherwise, all such amounts shall nonetheless be payable by each Guarantor, jointly and severally, immediately
upon demand by the Secured Parties.
8. Condition
of Borrower.
Each Guarantor acknowledges
and agrees that it has the sole responsibility for, and has adequate means of, obtaining from the Borrower and any other guarantor such
information concerning the financial condition, business and operations of the Borrower and any such other guarantor as such Guarantor
requires, and that none of the Secured Parties has any duty, and such Guarantor is not relying on the Secured Parties at any time, to
disclose to it any information relating to the business, operations or financial condition of the Borrower or any other guarantor (each
Guarantor waiving any duty on the part of the Secured Parties to disclose such information and any defense relating to the failure to
provide the same).
9. Appointment
of Borrower.
Each of the Loan Parties hereby
appoints the Borrower to act as its agent for all purposes of this Agreement, the other Loan Documents and all other documents and electronic
platforms entered into in connection herewith and agrees that (a) the Borrower may execute such documents and provide such authorizations
on behalf of such Loan Parties as the Borrower deems appropriate in its sole discretion and each Loan Party shall be obligated by all
of the terms of any such document and/or authorization executed on its behalf, (b) any notice or communication delivered by the Administrative
Agent, L/C Issuer or a Lender to the Borrower shall be deemed delivered to each Loan Party and (c) the Administrative Agent, L/C
Issuer or the Lenders may accept, and be permitted to rely on, any document, authorization, instrument or agreement executed by the Borrower
on behalf of each of the Loan Parties.
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10. Right
of Contribution.
The Guarantors agree among
themselves that, in connection with payments made hereunder, each Guarantor shall have contribution rights against the other Guarantors
as permitted under Applicable Law.
11. Keepwell.
Each Loan Party that is a
Qualified ECP Guarantor at the time the Guaranty or the grant of a Lien under the Loan Documents, in each case, by any Specified Loan
Party becomes effective with respect to any Swap Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably
undertakes to provide such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by
such Specified Loan Party from time to time to honor all of its obligations under the Loan Documents in respect of such Swap Obligation
(but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s
obligations and undertakings under this Article X voidable under Applicable Law relating to fraudulent conveyance or fraudulent
transfer, and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section 10.11
shall remain in full force and effect until the Secured Obligations have been indefeasibly paid and performed in full. Each Loan Party
intends this Section 10.11 to constitute, and this Section 10.11 shall be deemed to constitute, a guarantee of
the obligations of, and a “keepwell, support, or other agreement” for the benefit of, each Specified Loan Party for all purposes
of the Commodity Exchange Act.
P.
MISCELLANEOUS
1. Amendments,
Etc.
(a) Subject
to Section 3.03, no amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any
departure by the Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders (or by
the Administrative Agent with the consent of the Required Lenders) and the Borrower or the applicable Loan Party, as the case may be,
and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:
a) extend
or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the written
consent of such Lender (it being understood and agreed that a waiver of any condition precedent in Section 4.02 or of any
Default or a mandatory reduction in Commitments is not considered an extension or increase in Commitments of any Lender);
b) postpone
any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayments) of principal, interest,
fees or other amounts due to the Lenders (or any of them) hereunder or under such other Loan Document without the written consent of each
Lender entitled to such payment;
156
c) reduce
the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (A) of the
second proviso to this Section 11.01) any fees or other amounts payable hereunder or under any other Loan Document without
the written consent of each Lender entitled to such amount; provided, however, that only the consent of the Required Lenders
shall be necessary (i) to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest
or Letter of Credit Fees at the Default Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein)
even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable
hereunder;
d) (i) change
Section 8.04 or Section 2.13 in a manner that would have the effect of altering the ratable reduction of Commitments,
pro rata payments or pro rata sharing of payments required hereunder without the written consent of each Lender or (ii) change Section 2.12(f) in
a manner that would alter the pro rata application required thereby without the written consent of each Lender directly affected
thereby or (iii) subordinate, or have the effect of subordinating, the Obligations hereunder or the Liens on the Collateral
hereunder to any other Indebtedness or other obligation, or (iv) release, or have the effect of releasing, all or substantially all
of the value of the Guarantees of the Obligations, in each case, without the written consent of each Lender;
e) change any
provision of this Section 11.01 or the definition of “Required Lenders” or “Required Class Lenders”
or any other provision of any Loan Document specifying the number or percentage of Lenders required to amend, waive or otherwise modify
any rights hereunder or thereunder or make any determination or grant any consent hereunder, without the written consent of each Lender;
f) release
all or substantially all of the Collateral in any transaction or series of related transactions, without the written consent of each Lender;
g) release
all or substantially all of the value of the Guaranty, without the written consent of each Lender, except to the extent the release of
any Subsidiary from the Guaranty is permitted pursuant to Section 9.10 (in which case such release may be made by the Administrative
Agent acting alone);
h) release
the Borrower or permit the Borrower to assign or transfer any of its rights or obligations under this Agreement or the other Loan Documents
without the consent of each Lender; or
i) directly
and materially adversely affect the rights of Lenders holding Commitments or Loans of one Class differently from the rights of Lenders
holding Commitments or Loans of any other Class without the written consent of the applicable Required Class Lenders;
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and provided, further,
that (A) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required
above, affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued
or to be issued by it; (B) no amendment, waiver or consent shall, unless in writing and signed by the Swingline Lender in addition
to the Lenders required above, affect the rights or duties of the Swingline Lender under this Agreement; (C) no amendment, waiver
or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights
or duties of the Administrative Agent under this Agreement or any other Loan Document; and (D) the Fee Letter and
the First Amendment Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties
thereto.
(b) Notwithstanding
anything to the contrary herein, (i) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or
consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender,
or all Lenders or each affected Lender under a Facility, may be effected with the consent of the applicable Lenders other than Defaulting
Lenders), except that (A) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender
and (B) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender, or all Lenders or each
affected Lender under a Facility, that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected
Lenders shall require the consent of such Defaulting Lender; (ii) each Lender is entitled to vote as such Lender sees fit on any
bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein and (iii) the Required Lenders
shall determine whether or not to allow a Loan Party to use cash collateral in the context of a bankruptcy or insolvency proceeding and
such determination shall be binding on all of the Lenders.
(c) Notwithstanding
anything to the contrary herein, this Agreement may be amended and restated without the consent of any Lender (but with the consent of
the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a
party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated, such Lender shall have no
other commitment or other obligation hereunder and shall have been paid in full all principal, interest and other amounts owing to it
or accrued for its account under this Agreement.
(d) Notwithstanding
any provision herein to the contrary, if the Administrative Agent and the Borrower acting together identify any ambiguity, omission, mistake,
typographical error or other defect in any provision of this Agreement or any other Loan Document (including the schedules and exhibits
thereto), then the Administrative Agent and the Borrower shall be permitted to amend, modify or supplement such provision to cure such
ambiguity, omission, mistake, typographical error or other defect, and such amendment shall become effective without any further action
or consent of any other party to this Agreement.
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2. Notices;
Effectiveness; Electronic Communications.
(a) Notices
Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided
in clause (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or sent by fax transmission or e-mail transmission as follows,
and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone
number, as follows:
a) if
to HoldingsPubco,
the Borrower or any other Loan Party, the Administrative Agent, the L/C Issuer or the Swingline Lender, to the address, fax number, e-mail
address or telephone number specified for such Person on Schedule 1.01(a); and
b) if
to any other Lender, to the address, fax number, e-mail address or telephone number specified in its Administrative Questionnaire (including,
as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the
delivery of notices that may contain material non-public information relating to the Borrower).
Notices and other
communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given
when received; notices and other communications sent by fax transmission shall be deemed to have been given when sent (except that, if
not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business
Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in clause
(b) below shall be effective as provided in such clause (b).
This Agreement was prepared by:
Greenberg Traurig, LLP
2200 Ross Ave.
Suite 5200
Dallas, Texas 75201
Attention: [*****]
Phone: [*****]
E-mail: [*****]
(b) Electronic
Communications.
a) Notices
and other communications to the Administrative Agent, the Lenders, the Swingline Lender and the L/C Issuer hereunder may be delivered
or furnished by electronic communication (including e-mail, FPML messaging, and Internet or intranet websites) pursuant to an electronic
communications agreement (or such other procedures approved by the Administrative Agent in its sole discretion); provided that
the foregoing shall not apply to notices to any Lender, the Swingline Lender or the L/C Issuer pursuant to Article II if such
Lender, the Swingline Lender or the L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving
notices under such Article II by electronic communication. The Administrative Agent, the Swingline Lender, the L/C Issuer
or the Borrower may each, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.
159
b) Unless
the Administrative Agent otherwise prescribes, (A) notices and other communications sent to an e-mail address shall be deemed received
upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested”
function, as available, return e-mail or other written acknowledgement) and (B) notices and other communications posted to an Internet
or intranet website shall be deemed received by the intended recipient upon the sender’s receipt of an acknowledgement from the
intended recipient (such as by the “return receipt requested” function, as available, return e-mail address or other written
acknowledgement) indicating that such notice or communication is available and identifying the website address therefor; provided
that for both clauses (A) and (B), if such notice or other communication is not sent during the normal business hours
of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next Business
Day for the recipient.
(c) The
Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW)
DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY
FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER
CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative
Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to Holdingsany
Guarantor, the Borrower, any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of
any kind (whether in tort, contract or otherwise) arising out of the Borrower’s, any Loan Party’s or the Administrative Agent’s
transmission of Borrower Materials or notices through the Platform, any other electronic platform or electronic messaging service, or
through the Internet.
(d) Change
of Address, Etc. Each of the Holdings, BorrowerLoan
Parties, the Administrative Agent, the L/C Issuer and the Swingline Lender may change its address, fax number or telephone number
or e-mail address for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change
its address, fax number or telephone number or e-mail address for notices and other communications hereunder by notice to the Borrower,
the Administrative Agent, the L/C Issuer and the Swingline Lender. In addition, each Lender agrees to notify the Administrative Agent
from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number,
fax number and e-mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such
Lender. Furthermore, each Public Lender agrees to cause at least one (1) individual at or on behalf of such Public Lender to at
all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform
in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and Applicable
Law, including United States federal and state securities Laws, to make reference to Borrower Materials that are not made available through
the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to
the Borrower or its securities for purposes of United States federal or state securities laws.
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(e) Reliance
by Administrative Agent, L/C Issuer and Lenders. The Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including, without limitation, telephonic or electronic notices, Loan Notices, Letter of Credit Applications,
Notice of Loan Prepayment and Swingline Loan Notices) purportedly given by or on behalf of any Loan Party even if (i) such notices
were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein,
or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Loan Parties shall indemnify
the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice purportedly given by or on behalf of a Loan Party. All telephonic notices to
and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties
hereto hereby consents to such recording.
3. No
Waiver; Cumulative Remedies; Enforcement.
(a) No
failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right,
remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder or under any other Loan Document preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided
under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
(b) Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under
the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02
for the benefit of all the Lenders and the L/C Issuer; provided, however, that the foregoing shall not prohibit (a) the
Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative
Agent) hereunder and under the other Loan Documents, (b) the L/C Issuer or the Swingline Lender from exercising the rights and remedies
that inure to its benefit (solely in its capacity as L/C Issuer or Swingline Lender, as the case may be) hereunder and under the other
Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 11.08 (subject to the terms
of Section 2.13), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf
during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further,
that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the
Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in
addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to
Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and
as authorized by the Required Lenders.
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4. Expenses;
Indemnity; Damage Waiver.
(a) Costs
and Expenses. The Loan Parties shall pay within ten (10) Business Days of demand therefor (i) all reasonable and documented
out-of-pocket expenses actually incurred by the Administrative Agent and its Affiliates (including, but not limited to, (A) the
reasonable and documented fees, charges and disbursements of one primary firm of counsel for the Administrative Agent and its Affiliates
(taken as a whole) and (B) due diligence expenses), in connection with the syndication of the credit facilities provided for herein,
the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance, amendment,
extension, reinstatement or renewal of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses
incurred by the Administrative Agent, any Lender or the L/C Issuer (including the fees, charges and disbursements of (x) one primary
firm of counsel for the Administrative Agent, L/C Issuer and the Lenders, taken as a whole, (y) if reasonably necessary, of one
local firm of counsel in any relevant jurisdiction to all such Persons, taken as a whole and (z) solely in the case of an actual
or potential conflict of interest, one additional firm of counsel to all affected parties, taken as a whole), in connection with the
enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights
under this Section 11.04, or (B) in connection with Loans made or Letters of Credit issued hereunder, including all
such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
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(b) Indemnification
by the Loan Parties. The Loan Parties shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and the L/C
Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the
fees, charges and disbursements of any counsel (but limited, in the case of legal fees and expenses, to one firm of counsel to the Indemnitees,
taken as a whole, and, solely in the case of an actual or potential conflict of interest, one additional firm of counsel to all affected
Indemnitees, taken as a whole (and, if reasonably necessary, of one local firm of counsel in each relevant jurisdiction to all such Persons,
taken as a whole)) for any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Borrower
or any other Loan Party) arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby or thereby (including, without limitation, the Indemnitee’s
reliance on any Communication executed using an Electronic Signature, or in the form of an Electronic Record), the performance by the
parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or
thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of
this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.01), (ii) any
Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand
for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence or Release of Hazardous Materials on or from any property owned,
leased or operated by a Loan Party or any of its Subsidiaries, or any Environmental Liability related in any way to a Loan Party or any
of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and
regardless of whether any Indemnitee is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN
WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses
(x) are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence
or willful misconduct of such Indemnitee or,
(y) result from a claim brought by any Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations
hereunder or under any other Loan Document, if such Loan Party has obtained a final and nonappealable judgment in its favor on such claim
as determined by a court of competent jurisdiction or (z) result from
a claim not involving an act or omission of the Borrower and that is brought by an Indemnitee against another Indemnitee (other than
against any Arranger or the Administrative Agent in their capacities as such). Without limiting the provisions of Section 3.01(c),
this Section 11.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc.
arising from any non-Tax claim.
(c) Reimbursement
by Lenders. To the extent that the Loan Parties for any reason fail to indefeasibly pay any amount required under clauses (a) or (b) of
this Section 11.04 to be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer, the Swingline
Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent),
the L/C Issuer, the Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of
the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Total Credit
Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender), such payment
to be made severally among them based on such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought), provided, that the unreimbursed expense or indemnified loss, claim, damage, liability
or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent), the L/C
Issuer or the Swingline Lender in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative
Agent (or any such sub-agent), the L/C Issuer or the Swingline Lender in connection with such capacity. The obligations of the Lenders
under this clause (c) are subject to the provisions of Section 2.12(d).
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(d) Waiver
of Consequential Damages, Etc. To the fullest extent permitted by Applicable Law, no Loan Party shall assert, and each Loan Party
hereby waives, and acknowledges that no other Person shall have, any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby
or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in clause (b) above
shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such
unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection
with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages
that are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence
or willful misconduct of such Indemnitee.
(e) Payments.
All amounts due under this Section 11.04 shall be payable not later than ten (10) Business Days after demand therefor.
(f) Survival.
The agreements in this Section 11.04 and the indemnity provisions of Section 11.02(e) shall survive the
resignation of the Administrative Agent, the L/C Issuer and the Swingline Lender, the replacement of any Lender, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.
5. Payments
Set Aside.
To the extent that any payment
by or on behalf of the Borrower is made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C
Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the
Administrative Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection
with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such
setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the Administrative Agent upon demand
its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon
from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in
effect. The obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall survive the payment
in full of the Obligations and the termination of this Agreement.
6. Successors
and Assigns.
(a) Successors
and Assigns Generally. The provisions of this Agreement and the other Loan Documents shall be binding upon and inure to the benefit
of the parties hereto and thereto and their respective successors and assigns permitted hereby, except neither the Borrower nor any other
Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative
Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an
assignee in accordance with the provisions of Section 11.06(b), (ii) by way of participation in accordance with the
provisions of Section 11.06(d), or (iii) by way of pledge or assignment of a security interest subject to the restrictions
of Section 11.06(e) (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing
in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent provided in Section 11.06(d) and, to the extent
expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
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(b) Assignments
by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this
Agreement and the other Loan Documents (including all or a portion of its Commitment(s) and the Loans (including for purposes of
this clause (b), participations in L/C Obligations and in Swingline Loans) at the time owing to it); provided that
(in each case with respect to any Facility) any such assignment shall be subject to the following conditions:
a) Minimum
Amounts.
(1) in
the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment under any Facility and/or the Loans
at the time owing to it (in each case with respect to any Facility) or contemporaneous assignments to related Approved Funds (determined
after giving effect to such assignments) that equal at least the amount specified in clause (b)(i)(B) of this Section 11.06
in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be
assigned; and
(2) in
any case not described in clause (b)(i)(A) of this Section 11.06, the aggregate amount of the Commitment (which
for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption,
as of the Trade Date, shall not be less than $5,000,000, in the case of any assignment in respect of the Revolving Facility, or $1,000,000,
in the case of any assignment in respect of the Term Facility, unless each of the Administrative Agent and, so long as no Event of Default
has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed).
b) Proportionate
Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights
and obligations under this Agreement and the other Loan Documents with respect to the Loans and/or the Commitment assigned, except that
this clause (b)(ii) shall not apply to the Swingline Lender’s rights and obligations in respect of Swingline Loans.
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c) Required
Consents. No consent shall be required for any assignment except to the extent required by clause (b)(i)(B) of this Section 11.06
and, in addition:
(1) the
consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed) shall be required unless (1) an Event
of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of
a Lender or an Approved Fund; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall
object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof;
and provided, further, that the Borrower’s consent shall not be required during the primary syndication of the Facilities;
(2) the
consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed) shall be required for assignments
in respect of (1) any unfunded Term Commitment or any Revolving Commitment if such assignment is to a Person that is not a Lender
with a Commitment in respect of the applicable Facility, an Affiliate of such Lender or an Approved Fund with respect to such Lender
or (2) any Term Loan to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) the
consent of the L/C Issuer and the Swingline Lender (each such consent not to be unreasonably withheld or delayed) shall be required for
any assignment in respect of the Revolving Facility.
d) Assignment
and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent
may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is
not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
e) No
Assignment to Certain Persons. No such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates
or Subsidiaries, (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would
constitute any of the foregoing Persons described in this clause (B), (C) to a natural Person (or a holding company, investment
vehicle or trust for, or owned and operated by or for the primary benefit of one or more natural Persons) or (D) any holder of Subordinated
Debt.
f) Certain
Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment
shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall
make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate
(which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including
funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but
not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (A) pay
and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, the L/C Issuer or any Lender
hereunder (and interest accrued thereon) and (B) acquire (and fund as appropriate) its full pro rata share of all Loans and participations
in Letters of Credit and Swingline Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that
any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under Applicable Law without compliance
with the provisions of this clause (b)(vi), then the assignee of such interest shall be deemed to be a Defaulting Lender for all
purposes of this Agreement until such compliance occurs.
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g) Subject
to acceptance and recording thereof by the Administrative Agent pursuant to Section 11.06(c), from and after the effective
date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under
this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01,
3.04, 3.05 and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment);
provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will
constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with this clause (b) shall be treated for purposes
of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 11.06(d).
(c) Register.
The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for Tax
purposes), shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the
equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments
of, and principal amounts (and interest amounts) of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof
from time to time (the “Register”). The entries in the Register shall be conclusive, absent manifest error,
and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower
and any Lender (with respect to such Lender’s interest only), at any reasonable time and from time to time upon reasonable prior
notice.
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(d) Participations.
a) Any
Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person
(other than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of
one or more natural Persons, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including
all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swingline
Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower,
the Administrative Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly with such Lender in connection with
such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the
indemnity under Section 11.04(c) without regard to the existence of any participations.
b) Any
agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right
to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that
such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver
or other modification described in the first proviso to Section 11.01 that affects such Participant. The Borrower agrees
that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 (subject to the requirements
and limitations therein, including the requirements under Section 3.01(f) (it being understood that the documentation
required under Section 3.01(f) shall be delivered to the Lender who sells the participation)) to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to clause (b) of this Section 11.06;
provided that such Participant (A) shall be subject to the provisions of Sections 3.06 and 11.13 as if it were
an assignee under clause (b) of this Section 11.06 and (B) shall not be entitled to receive any greater
payment under Sections 3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the applicable
participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a
Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees,
at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of
Sections 3.06 and 11.13 with respect to any Participant. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 11.08 as though it were a Lender; provided that such Participant agrees to be
subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this
purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and
the principal amounts (and interest amounts) of each Participant’s interest in the Loans or other obligations under the Loan Documents
(the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any
portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest
in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that
such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under
Section 5f.103–1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive
absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such
participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative
Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
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(e) Certain
Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement
(including under its Note or Notes, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations
to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
(f) Resignation
as L/C Issuer or Swingline Lender after Assignment. Notwithstanding anything to the contrary contained herein, if at any time Bank
of America assigns all of its Revolving Commitment and Revolving Loans pursuant to clause (b) above, Bank of America
may, (i) upon thirty (30) days’ notice to the Administrative Agent, the Borrower and the Lenders, resign as L/C Issuer and/or
(ii) upon thirty (30) days’ notice to the Borrower, resign as Swingline Lender. In the event of any such resignation as L/C
Issuer or Swingline Lender, the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swingline Lender
hereunder; provided, however, that no failure by the Borrower to appoint any such successor shall affect the resignation
of Bank of America as L/C Issuer or Swingline Lender, as the case may be. If Bank of America resigns as L/C Issuer, it shall retain all
the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective
date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make
Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of America resigns
as Swingline Lender, it shall retain all the rights of the Swingline Lender provided for hereunder with respect to Swingline Loans made
by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans
or fund risk participations in outstanding Swingline Loans pursuant to Section 2.04(c). Upon the appointment of a successor
L/C Issuer and/or Swingline Lender, (A) such successor shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring L/C Issuer or Swingline Lender, as the case may be, and (B) the successor L/C Issuer shall issue letters
of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory
to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.
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7. Treatment
of Certain Information; Confidentiality.
(a) Treatment
of Certain Information. Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be disclosed (i) to its Affiliates, its auditors and its Related
Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information
and instructed to keep such Information confidential), (ii) to the extent required or requested by any regulatory authority purporting
to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association
of Insurance Commissioners), (iii) to the extent required by Applicable Laws or regulations or by any subpoena or similar legal
process, (iv) to any other party hereto, (v) in connection with the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (vi) subject to an agreement containing provisions substantially the same as those of this Section 11.07,
to (A) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under
this Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 2.16(c) or (B) any actual
or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference
to the Borrower and its obligations, this Agreement or payments hereunder, (vii) on a confidential basis to (A) any rating
agency in connection with rating the Borrower or its Subsidiaries or the credit facilities provided hereunder or (B) the provider
of any Platform or other electronic delivery service used by the Administrative Agent, the L/C Issuer and/or the Swingline Lender to
deliver Borrower Materials or notices to the Lenders or (viii) the CUSIP Service Bureau or any similar agency in connection with
the application, issuance, publishing and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities
provided hereunder, or (ix) with the consent of the Borrower or to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section 11.07, (xi) becomes available to the Administrative Agent, any Lender,
the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower or (xii) is
independently discovered or developed by a party hereto without utilizing any Information received from the Borrower or violating the
terms of this Section 11.07. For purposes of this Section 11.07, “Information” means
all information received from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective businesses,
other than any such information that is available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis
prior to disclosure by the Borrower or any Subsidiary, provided that, in the case of information received from the Borrower or
any Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required
to maintain the confidentiality of Information as provided in this Section 11.07 shall be considered to have complied with
its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information. In addition, the Administrative Agent and the Lenders may disclose the existence
of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and
service providers to the Administrative Agent and the Lenders in connection with the administration of this Agreement, the other Loan
Documents and the Commitments.
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(b) Non-Public
Information. Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (i) the Information may include
material non-public information concerning a Loan Party or a Subsidiary, as the case may be, (ii) it has developed compliance procedures
regarding the use of material non-public information and (iii) it will handle such material non-public information in accordance
with Applicable Law, including United States federal and state securities Laws.
(c) Press
Releases. The Loan Parties and their Affiliates agree that they will not in the future issue any press releases or other public disclosure
using the name of the Administrative Agent or any Lender or their respective Affiliates or referring to this Agreement or any of the
Loan Documents without the prior written consent of the Administrative Agent, unless (and only to the extent that) the Loan Parties or
such Affiliate is required to do so under law and then, in any event the Loan Parties or such Affiliate will consult with such Person
before issuing such press release or other public disclosure.
(d) Customary
Advertising Material. The Loan Parties consent to the publication by the Administrative Agent or any Lender of customary advertising
material relating to the transactions contemplated hereby using the name, product photographs, logo or trademark of the Loan Parties;
provided that Sponsor is given reasonable advance notice and the opportunity to consult in any such publication which contains
the name, logo or trademark of “SunTx” or reasonably related names, logos or trademarks.
8. Right
of Setoff.
If an Event of Default shall
have occurred and be continuing, each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by Applicable Law to set off and apply any and all deposits (general or special,
time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time
owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower or any other Loan Party
against any and all of the obligations of the Borrower or such Loan Party now or hereafter existing under this Agreement or any other
Loan Document to such Lender, the L/C Issuer or such Affiliates, irrespective of whether or not such Lender, the L/C Issuer or Affiliate
shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower or such Loan
Party may be contingent or unmatured, secured or unsecured, or are owed to a branch, office or Affiliate of such Lender or the L/C Issuer
different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided that in the event
that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to
the Administrative Agent for further application in accordance with the provisions of Section 2.15 and, pending such payment,
shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent,
the L/C Issuer and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing
in reasonable detail the Secured Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights
of each Lender, the L/C Issuer and their respective Affiliates under this Section 11.08 are in addition to other rights and
remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have under Applicable
Law. Each Lender and the L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application,
provided that the failure to give such notice shall not affect the validity of such setoff and application.
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9. Interest
Rate Limitation.
Notwithstanding anything
to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by Applicable Law (the “Maximum Rate”). If the Administrative
Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal
of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged,
or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by Applicable
Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount
of interest throughout the contemplated term of the Obligations hereunder.
10. Integration;
Effectiveness.
This Agreement, the other
Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent or the L/C Issuer, constitute
the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective
when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to
the benefit of the parties hereto and their respective successor and assigns.
11. Survival
of Representations and Warranties.
All representations and warranties
made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by
the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their
behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of
any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain
unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
12. Severability.
If any provision of this
Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability
of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a
provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without
limiting the foregoing provisions of this Section 11.12, if and to the extent that the enforceability of any provisions in
this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative
Agent, the L/C Issuer or the Swingline Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent
not so limited.
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13. Replacement
of Lenders.
(a) If
the Borrower is entitled to replace a Lender pursuant to the provisions of Section 3.06, or if any Lender is a Defaulting
Lender or a Non-Consenting Lender or if any other circumstance exists hereunder that gives the Borrower the right to replace a Lender
as a party hereto, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required
by, Section 11.06), all of its interests, rights (other than its existing rights to payments pursuant to Sections 3.01
and 3.04) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment), provided that:
a) the
Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 11.06(b);
b) such
Lender shall have received payment of an amount equal to 100% of the outstanding principal of its Loans and L/C Advances, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05)
from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other
amounts);
c) in
the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made
pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter;
d) such
assignment does not conflict with Applicable Laws; and
e) in
the case of an assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the
applicable amendment, waiver or consent.
(b) A
Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise,
the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
(c) Each
party hereto agrees that (i) an assignment required pursuant to this Section 11.13 may be effected pursuant to an Assignment
and Assumption executed by the Borrower, the Administrative Agent and the assignee and (ii) the Lender required to make such assignment
need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to an be bound by the
terms thereof; provided, that, following the effectiveness of any such assignment, the other parties to such assignment
agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Lender, provided
further that any such documents shall be without recourse to or warranty by the parties thereto.
(d) Notwithstanding
anything in this Section 11.13 to the contrary, (A) the Lender that acts as the L/C Issuer may not be replaced hereunder
at any time it has any Letter of Credit outstanding hereunder unless arrangements satisfactory to such Lender (including the furnishing
of a backstop standby letter of credit in form and substance, and issued by an issuer, reasonably satisfactory to the L/C Issuer or the
depositing of Cash Collateral into a Cash Collateral account in amounts and pursuant to arrangements reasonably satisfactory to the L/C
Issuer) have been made with respect to such outstanding Letter of Credit and (B) the Lender that acts as the Administrative Agent
may not be replaced hereunder except in accordance with the terms of Section 9.06.
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14. Governing
Law; Jurisdiction; Etc.
(a) GOVERNING
LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND ANY
CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION
TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION,
LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE
ADMINISTRATIVE AGENT, ANY LENDER, THE L/C ISSUER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK
SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM
ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT
ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT
IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
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(c) WAIVER
OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN CLAUSE (b) OF THIS SECTION 11.14.
THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE
OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02.
NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
15. Waiver
of Jury Trial.
EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (b) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.15.
16. Subordination.
Each Loan Party (a “Subordinating
Loan Party”) hereby subordinates the payment of all obligations and indebtedness of any other Loan Party owing to it, whether
now existing or hereafter arising, including but not limited to any obligation of any such other Loan Party to the Subordinating Loan
Party as subrogee of the Secured Parties or resulting from such Subordinating Loan Party’s performance under this Guaranty, to
the indefeasible payment in full in cash of all Obligations. If the Secured Parties so request, any such obligation or indebtedness of
any such other Loan Party to the Subordinating Loan Party shall be enforced and performance received by the Subordinating Loan Party
as trustee for the Secured Parties and the proceeds thereof shall be paid over to the Secured Parties on account of the Secured Obligations,
but without reducing or affecting in any manner the liability of the Subordinating Loan Party under this Agreement. Without limitation
of the foregoing, so long as no Default has occurred and is continuing, the Loan Parties may make and receive payments with respect to
Intercompany Debt; provided, that in the event that any Loan Party receives any payment of any Intercompany Debt at a time when
such payment is prohibited by this Section 11.16, such payment shall be held by such Loan Party, in trust for the benefit
of, and shall be paid forthwith over and delivered, upon written request, to the Administrative Agent.
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17. No
Advisory or Fiduciary Responsibility.
In connection with all aspects
of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other
Loan Document), the Borrower, Holdings and each other Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding,
that: (a) (i) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Arrangers
and the Lenders and their respective Affiliates are arm’s-length commercial transactions between the Borrower, Holdings, each other
Loan Party and their respective Affiliates, on the one hand, and the Administrative Agent, the Arrangers and the Lenders and their respective
Affiliates, on the other hand, (ii) each of the Borrower, Holdings and the other Loan Parties has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate, and (iii) the Borrower, Holdings and each other Loan Party
is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by
the other Loan Documents; (b) (i) the Administrative Agent, each Arranger and each Lender and each of their respective Affiliates
each is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is
not, and will not be acting as an advisor, agent or fiduciary, for the Borrower, Holdings, any other Loan Party or any of their respective
Affiliates, or any other Person and (ii) neither the Administrative Agent, the Arranger, nor any Lender nor any of their respective
Affiliates has any obligation to the Borrower, Holdings, any other Loan Party or any of their respective Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (c) the
Administrative Agent, the Arrangers and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Borrower, Holdings, the other Loan Parties and their respective Affiliates, and neither
the Administrative Agent, the Arranger, nor any Lender nor any of their respective Affiliates has any obligation to disclose any of such
interests to the Borrower, Holdings, any other Loan Party or any of their respective Affiliates. To the fullest extent permitted by law,
each of the Borrower, Holdings and each other Loan Party hereby waives and releases any claims that it may have against the Administrative
Agent, the Arranger, the Lenders and their respective Affiliates with respect to any breach or alleged breach of agency or fiduciary
duty in connection with any aspect of any transactions contemplated hereby.
18. Electronic
Execution; Electronic Records; Counterparts.
This
Agreement, any Loan Document and any other Communication, including Communications required to be in writing, may be in the form of an
Electronic Record and may be executed using Electronic Signatures. Each of the Loan Parties and each of the Administrative Agent, the
L/C Issuer, the Swingline Lender, and each Lender (collectively, each a “Credit Party”) agrees that any Electronic
Signature on or associated with any Communication shall be valid and binding on such Person to the same extent as a manual, original
signature, and that any Communication entered into by Electronic Signature, will constitute the legal, valid and binding obligation of
such Person enforceable against such Person in accordance with the terms thereof
to the same extent as if a manually executed original signature was delivered. Any Communication may be executed in as many
counterparts as necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one and the
same Communication. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or
acceptance of a manually signed paper Communication which has been converted into electronic form (such as scanned into PDF format),
or an electronically signed Communication converted into another format, for transmission, delivery and/or retention. The Administrative
Agent and each of the Credit Parties may, at its option, create one or more copies of any Communication in the form of an imaged Electronic
Record (“Electronic Copy”), which shall be deemed created in the ordinary course of such Person’s business,
and destroy the original paper document. All Communications in the form of an Electronic Record, including an Electronic Copy,
shall be considered an original for all purposes, and shall have the same legal effect, validity and enforceability as a paper record.
Notwithstanding anything contained herein to the contrary, neither the Administrative Agent, L/C Issuer nor Swingline Lender is under
any obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by such Person pursuant to procedures
approved by it; provided, further, without limiting the foregoing, (a) to the extent the Administrative Agent, L/C Issuer and/or
Swingline Lender has agreed to accept such Electronic Signature, the Administrative Agent and each of the Credit Parties shall be entitled
to rely on any such Electronic Signature purportedly given by or on behalf of any Loan Party and/or any Credit Party without further
verification and (b) upon the request of the Administrative Agent or any Credit Party, any Electronic Signature shall be promptly
followed by such manually executed counterpart. For purposes hereof, “Electronic Record” and “Electronic
Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time
to time.
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Neither the Administrative Agent, L/C Issuer
nor Swingline Lender shall be responsible for or have any duty to ascertain or inquire into the sufficiency, validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement, instrument or document (including, for the avoidance of doubt,
in connection with the Administrative Agent’s, L/C Issuer’s or Swingline Lender’s reliance on any Electronic Signature
transmitted by telecopy, emailed .pdf or any other electronic means). The Administrative Agent, L/C Issuer and Swingline Lender shall
be entitled to rely on, and shall incur no liability under or in respect of this Agreement or any other Loan Document by acting upon,
any Communication (which writing may be a fax, any electronic message, Internet or intranet website posting or other distribution
or signed using an Electronic Signature) or any statement made to it orally or by telephone and believed by it to be genuine and signed
or sent or otherwise authenticated (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being
the maker thereof).
Each of the Loan Parties and each Credit Party
hereby waives (i) any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement, any
other Loan Document based solely on the lack of paper original copies of this Agreement, such other Loan Document, and (ii) waives
any claim against the Administrative Agent, each Credit Party and each Related Party for any liabilities arising solely from the Administrative
Agent’s and/or any Credit Party’s reliance on or use of Electronic Signatures, including any liabilities arising as a result
of the failure of the Loan Parties to use any available security measures in connection with the execution, delivery or transmission
of any Electronic Signature.
19. USA
Patriot Act Notice.
Each Lender that is subject
to the Patriot Act and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower and the other
Loan Parties that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107–56 (signed into law October 26,
2001)) (the “Patriot Act”), it is required to obtain, verify and record information that identifies the Borrower
and each other Loan Party, which information includes the name and address of the Borrower and each other Loan Party and other information
that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower and each other Loan Party in accordance
with the Patriot Act. The Borrower and each other Loan Party shall, promptly following a request by the Administrative Agent or any Lender,
provide all such other documentation and information that the Administrative Agent or such Lender requests in order to comply with its
ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including
the Patriot Act.
177
20. Acknowledgement and Consent to Bail-In
of Affected Financial Institutions.
Solely to the extent any
Lender or L/C Issuer that is an Affected Financial Institution is a party to this Agreement and notwithstanding anything to the contrary
in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that
any liability of any Lender or L/C Issuer that is an Affected Financial Institution arising under any Loan Document, to the extent such
liability is unsecured, may be subject to the Write-Down and Conversion Powers of a Resolution Authority and agrees and consents to,
and acknowledges and agrees to be bound by:
(a) the
application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder
which may be payable to it by any Lender or L/C Issuer that is an Affected Financial Institution; and
(b) the
effects of any Bail-In Action on any such liability, including, if applicable:
a) a
reduction in full or in part or cancellation of any such liability;
b) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution,
its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other
instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any
other Loan Document; or
c) the
variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution
Authority.
21. Acknowledgement
Regarding Any Supported QFCs.
To the extent that the Loan
Documents provide support, through a guarantee or otherwise, for any Swap Contract or any other agreement or instrument that is a QFC
(such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge
and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance
Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder,
the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions
below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the
State of New York and/or of the United States or any other state of the United States): In the event a Covered Entity that is party to
a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime,
the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported
QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered
Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported
QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States
or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding
under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any
QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default
Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws
of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and
remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to
a Supported QFC or any QFC Credit Support.
2.18 Time
of the Essence.
Time is of the essence of
the Loan Documents.
2.19 ENTIRE
AGREEMENT.
THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed as of the date first above written.
BORROWER:
CONCRETE PARTNERS, LLC
By:
Name:
Title:
HOLDINGS:
CONCRETE PARTNERS HOLDING, LLC
By:
Name:
Title:
[Signature Page to Credit
Agreement (Concrete Partners)]
GUARANTORS:
EAGLE
CONCRETE HOLDINGS, LLC
By:
Name:
Title:
AFTER
GIVING EFFECT TO THE CLOSING DATE ACQUISITION:
EAGLE
REDI-MIX CONCRETE, LLC
By:
Name:
Title:
RAM
TRANSPORTATION, LLC
By:
Name:
Title:
[Signature Page to Credit
Agreement (Concrete Partners)]
BANK
OF AMERICA, N.A.,
as
Administrative Agent
By:
Name:
Carolyn LaBatte-Leavitt
Title:
Vice President
[Signature Page to Credit
Agreement (Concrete Partners)]
BANK
OF AMERICA, N.A.,
as
a Lender, L/C Issuer and Swingline Lender
By:
Name:
Title:
[Signature
Page to Credit Agreement (Concrete Partners)]
LENDERS:
PNC
BANK, NATIONAL ASSOCIATION,
as
a Lender
By:
Name:
Title:
[Signature Page to Credit
Agreement (Concrete Partners)]
LENDERS:
CAPITAL
ONE, NATIONAL ASSOCIATION,
as
a Lender
By:
Name:
Title:
[Signature Page to Credit
Agreement (Concrete Partners)]
LENDERS:
SUNFLOWER
BANK, N.A.,
as
a Lender
By:
Name:
Title:
[Signature Page to Credit
Agreement (Concrete Partners)]
LENDERS:
STIFEL
BANK & TRUST
as
a Lender
By:
Name:
Title:
[Signature Page to Credit
Agreement (Concrete Partners)]
LENDERS:
TEXAS
REGIONAL BANK,
as
a Lender
By:
Name:
Title:
Annex II
EXHIBIT C
[Form of]
Compliance
Certificate]
EX-10.20 — EXHIBIT 10.20
EX-10.20
Filename: tm2611641d1_ex10-20.htm · Sequence: 18
Exhibit 10.20
CERTAIN
INFORMATION, MARKED IN THIS EXHIBIT WITH BRACKETS, HAS BEEN EXCLUDED FROM THIS EXHIBIT IN RELIANCE ON REGULATION S-K, ITEM 601(B)(10)(IV)
BECAUSE SUCH INFORMATION IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS CONFIDENTIAL.
Execution
Version
LIMITED
CONSENT AND THIRD AMENDMENT TO CREDIT AGREEMENT
THIS
LIMITED CONSENT AND THIRD AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of April 7, 2026, by and among
Concrete Partners, LLC, a Delaware limited liability company (the “Borrower”), the Guarantors, the banks listed on
the signature pages hereof, and BANK OF AMERICA, N.A., as Administrative Agent, Swingline Lender and L/C Issuer (in its capacity as Administrative
Agent, the “Administrative Agent”).
BACKGROUND
A.
The Borrower, the Lenders, the Guarantors and the Administrative Agent are parties to that certain Credit Agreement, dated as of July
29, 2024, as amended by that certain First Amendment and Commitment Increase to Credit Agreement, dated as of October 17, 2025 and that
certain Second Amendment to Credit Agreement and First Amendment to Security and Pledge Agreement, dated as of March 25, 2026 (the “Second
Amendment”) (such Credit Agreement, as amended, modified or supplemented, the “Credit Agreement”; the terms
defined in the Credit Agreement and not otherwise defined herein shall be used herein as defined in the Credit Agreement).
(a)
On or prior to the De-SPAC Closing Date (as defined in the Second Amendment), Haymaker Acquisition Corp. 4 (“SPAC”),
may enter into one or more prepaid forward transactions to purchase up to 5,000,000 ordinary shares (the “Forward Shares”),
in the aggregate of SPAC in connection with the De-SPAC Transaction (as defined in the Second Amendment) (together with each other transaction
reasonably necessary or appropriate to consummate such transactions, the “Prepaid Forward Transaction”).
B.
The Borrower has requested that the Required Lenders (i) consent to the Prepaid Forward Transaction and (ii) amend the Credit Agreement
to make certain amendments thereto, as more fully set forth herein.
NOW,
THEREFORE, in consideration of the covenants, conditions and agreements hereafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the parties hereto covenant and agree as follows:
1.
LIMITED CONSENTS.
(a)
Subject to the terms and conditions set forth herein, on the Third Amendment Signing Date, the Lenders party hereto (which constitute
Required Lenders) hereby, consent to the Prepaid Forward Transaction and the consummation thereof, including, but not limited to (i)
payment of a cash amount equal to the product of the number of Forward Shares and a negotiated share price, which amount SPAC will pay
to the holders of the Forward Shares upon the consummation of the De-SPAC Transaction (or within 2 Business Days thereof), (ii) acceptance
of any interim settlement amount in cash for Forward Shares that have been sold, (iii) acquisition, retirement, cancellation, or other
redemption of unsold Forward Shares that are returned to Suncrete, Inc. (“Pubco”), (iv) any termination of the Prepaid
Forward Transaction with respect to some or all of the Forward Shares, and (v) execution and delivery of any documentation and performance
by any Loan Party with respect to such party’s obligations thereunder in connection with the Prepaid Forward Transaction; provided
that the Prepaid Forward Transaction shall (A) have a maturity date of no greater than six months (plus two additional three month extensions
in Pubco’s sole discretion) and (B) provide for a floor of no less than $11.50 per share. Notwithstanding anything in the Credit
Agreement to the contrary, the Prepaid Forward Transaction and any action in consummation thereof (i) shall not be included in the calculation
of the Financial Covenants or included in the calculation of Consolidated EBITDA, (ii) shall not be a Restricted Payment or an Investment,
and (iii) any Net Cash Proceeds received in connection with the Prepaid Forward Transaction shall not trigger a mandatory prepayment
under Section 2.05(b) of the Credit Agreement.
(b)
Subject to the terms and conditions set forth herein, on the Third Amendment Signing Date, the Lenders party hereto (which constitute
Required Lenders) hereby consent to the ownership by Holdings of two trademarks previously disclosed to the Administrative Agent (the
“New Suncrete Trademarks”) notwithstanding anything set forth in Section 7.19 of the Credit Agreement to the
contrary. This limited consent shall automatically terminate and be of no further force or effect if the New Suncrete Trademarks shall
not have been assigned to the Borrower within 90 days of the date hereof.
2.
AMENDMENTS TO CREDIT AGREEMENT. Subject to the terms and conditions set forth herein, as of the Third Amendment Effective Date,
(a)
Clause (B) of the definition of “Consolidated Fixed Charge Coverage Ratio” set forth in Section 1.01
of the Credit Agreement is hereby amended to read as follows:
(B)
for all periods occurring after the De-SPAC Closing Date, as of any date of determination, the ratio of (a) (i) Consolidated
EBITDA less (ii) the aggregate amount of all non-financed cash Capital Expenditures (other than (x) the Specified Capital
Expenditures, (y) expenditures made with Net Cash Proceeds of Dispositions of other fixed assets or casualty to fixed assets, in each
case, which such Net Cash Proceeds are permitted to be reinvested by the terms of this Agreement and (z) the Sandplant Deferred Payment)
to (b) the sum of (i) Consolidated Interest Charges to the extent paid in cash, (ii) the aggregate principal amount
of all redemptions or similar acquisitions for value of outstanding debt for borrowed money, regularly scheduled principal payments on
Consolidated Funded Indebtedness (determined without giving effect to any reduction of such scheduled principal payments resulting from
the application of any voluntary or optional prepayments made during such period), but excluding any such payments to the extent refinanced
through the incurrence of additional Indebtedness otherwise expressly permitted under Section 7.02, (iii) the aggregate
amount of Restricted Payments consisting of dividends and other distributions paid to Preferred Pubco Equity Holders (including all Preferred
Pubco Distributions), (iv) the aggregate amount of all Restricted Payments paid in cash (other than (A) payment of the Sandplant Deferred
Amount and (B) payments made to repurchase, redeem, retire or otherwise acquire for value of all or any portion of the Permitted Preferred
Pubco Equity so long as such payment is (1) permitted by Section 7.06(h) and (2) made within 180 days of the De-SPAC Closing Date)
and (v) the aggregate amount of federal, state, local and foreign income taxes paid in cash, in each case, of or by Pubco and its
Subsidiaries for the most recently completed Measurement Period.
Limited Consent and Third Amendment to Credit Agreement – Page 2
(b)
Exhibit C. Exhibit C to the Credit Agreement is hereby amended in its entirety and replaced with the document attached
hereto as Exhibit C.
3.
REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its execution and delivery hereof, each Loan Party represents and
warrants that, as of the Third Amendment Effective Date:
(a)
the representations and warranties of the Borrower and each other Loan Party contained in the Credit Agreement and the other Loan Documents
that are subject to materiality or Material Adverse Effect qualifications are true and correct in all respects on and as of the date
hereof as made on and as of such date, and the representations and warranties contained in the Credit Agreement and the other Loan Documents
that are not subject to materiality or Material Adverse Effect qualifications are true and correct in all material respects on and as
of the date hereof as made on and as of such date, except (i) in each case to the extent that such representations and warranties specifically
refer to an earlier date, in which case they shall be true and correct as of such earlier date, and (ii) that the representations and
warranties contained in Sections 5.05(a) and (b) of the Credit Agreement shall be deemed to refer to the most recent
financial statements furnished pursuant to Sections 6.01(a) and (b), respectively, of the Credit Agreement;
(b)
no event has occurred and is continuing which constitutes a Default or Event of Default;
(c)
(i) the Borrower and the other Loan Parties have the full power and authority to execute and deliver this Amendment; (ii) this
Amendment has been duly executed and delivered by the Borrower and the other Loan Parties; and (iii) this Amendment and the Credit
Agreement, as amended hereby, constitute the legal, valid and binding obligations of the Loan Parties, enforceable in accordance with
their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’
rights generally and subject to general principals of equity;
(d)
neither the execution, delivery and performance of this Amendment or the Credit Agreement, as amended hereby, nor the consummation of
any transactions contemplated herein or therein, will (i) contravene the terms of any of the Loan Parties’ Organization Documents;
(ii) conflict with or result in any breach or contravention of, or the creation of (or the requirement to create) any Lien under,
or require any payment to be made under (A) any Contractual Obligation to which such Person is a party or affecting such Person
or the properties of such Person or any of its Subsidiaries, or (B) any order, injunction, writ or decree of any Governmental Authority
or any arbitral award to which such Person or its property is subject; or (iii) violate any Applicable Law; and
Limited Consent and Third Amendment to Credit Agreement – Page 3
(e)
no approval, consent, exemption, authorization or other action by, notice to, or filing with, any Governmental Authority or other Person
not previously obtained is necessary or required in connection with the execution, delivery or performance by, or enforcement against,
any Loan Party of this Amendment.
4.
CONDITIONS OF EFFECTIVENESS.
(a)
The effectiveness of this Amendment (other than the amendments set forth in Section 2 of this Amendment) is subject to the satisfaction
of the following conditions and this Amendment shall become effective at the time at which such conditions are satisfied (such date,
the “Third Amendment Signing Date”):
(i) the
Administrative Agent shall have received counterparts of this Amendment executed by each Loan Party and the Required Lenders; and
(ii) the
representations and warranties set forth in Section 3 of this Amendment shall be true and correct; and
(iii) the
Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent and its counsel, such other
documents, certificates and instruments as the Administrative Agent shall reasonably require.
(b)
The effectiveness of the amendments set forth in Section 2 of this Amendment are subject to the satisfaction of the following conditions
and shall be effective at the time at which such conditions are satisfied (such date, the “Third Amendment Effective Date”):
(i) the
Second Amendment Effective Date shall have occurred; and
(iii) the
Third Amendment Signing Date shall have occurred.
5.
GUARANTOR’S ACKNOWLEDGMENT. By signing below, each Guarantor (i) acknowledges, consents and agrees to the execution,
delivery and performance by the Borrower of this Amendment, (ii) ratifies and confirms all of its obligations and liabilities under the
Guaranty and the Loan Documents to which it is a party and ratifies and confirms that such obligations and liabilities extend to and
continue in effect with respect to, and continue to guarantee and secure the Secured Obligations; (iii) acknowledges and agrees
that its obligations in respect of its Guaranty are not released, diminished, waived, modified, impaired or affected in any manner by
this Amendment, or any of the provisions contemplated herein, (iv) acknowledges and agrees that as of the date hereof, such Guarantor
(a) does not have any claim or cause of action against the Administrative Agent or any Lender (or any of their respective directors,
officers, employees, agents, attorneys or other representatives) under or in connection with its Guaranty and the other Loan Documents
to which it is a party and (b) has no offsets against, or defenses or counterclaims to, its Guaranty.
Limited Consent and Third Amendment to Credit Agreement – Page 4
6.
REFERENCE TO THE CREDIT AGREEMENT.
(a)
On and after the Third Amendment Signing Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”,
or words of like import shall mean and be a reference to the Credit Agreement, as amended by this Amendment prior to giving effect to
the amendments set forth in Section 2 hereof. On and after the Third Amendment Effective Date, each reference in the Credit Agreement
to “this Agreement”, “hereunder”, or words of like import shall mean and be a reference to the Credit Agreement,
as amended by this Amendment.
(b)
Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or
otherwise affect the rights or remedies of the Administrative Agent or the Lenders under the Credit Agreement or any of the other Loan
Documents, and shall not alter, modify, amend, or in any way affect the terms, conditions, obligations, covenants, or agreements contained
in the Credit Agreement or the other Loan Documents, all of which are hereby ratified and affirmed in all respects and shall continue
in full force and effect.
7.
COSTS AND EXPENSES. The Borrower shall be obligated to pay the costs and expenses of the Administrative Agent in connection with
the preparation, reproduction, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder
in the manner and subject to the limitations set forth in Section 11.04 of the Credit Agreement.
8.
EXECUTION IN COUNTERPARTS. This Amendment may be executed in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall
constitute but one and the same instrument. For purposes of this Amendment, a counterpart hereof (or signature page thereto) signed and
transmitted by any Person party hereto to the Administrative Agent (or its counsel) by facsimile machine, telecopier or electronic mail
is to be treated as an original. The signature of such Person thereon, for purposes hereof, is to be considered as an original signature,
and the counterpart (or signature page thereto) so transmitted is to be considered to have the same binding effect as an original signature
on an original document.
9.
GOVERNING LAW; BINDING EFFECT. THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY
SET FORTH THEREIN) AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING
OUT OF OR RELATING TO THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN)
AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK. This Amendment shall be binding upon the Borrower and each Lender and their respective successors and assigns.
10.
HEADINGS. Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose.
11.
ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS AMENDMENT, AND THE OTHER
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AS TO THE SUBJECT MATTER THEREIN AND HEREIN AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES.
REMAINDER
OF PAGE LEFT INTENTIONALLY BLANK
Limited Consent and Third Amendment to Credit Agreement – Page 5
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
BORROWER:
CONCRETE
PARTNERS, LLC
By:
/s/
Tommy Wentroth
Name:
Tommy Wentroth
Title:
Chief Financial Officer
HOLDINGS:
CONCRETE
PARTNERS HOLDING, LLC
By:
/s/
Tommy Wentroth
Name:
Tommy Wentroth
Title:
Chief Financial Officer
[Signature Page to Limited
Consent and Third Amendment to Credit Agreement (Concrete Partners)]
GUARANTORS:
EAGLE
CONCRETE HOLDINGS, LLC
By:
/s/
Tommy Wentroth
Name:
Tommy Wentroth
Title:
Chief Financial Officer
EAGLE
REDI-MIX CONCRETE, LLC
By:
/s/
Tommy Wentroth
Name:
Tommy Wentroth
Title:
Chief Financial Officer
RAM
TRANSPORTATION, LLC
By:
/s/
Tommy Wentroth
Name:
Tommy Wentroth
Title:
Chief Financial Officer
SCHWARZ
SAND, LLC
By:
/s/
Tommy Wentroth
Name:
Tommy Wentroth
Title:
Chief Financial Officer
After
giving effect to the Second Amendment Effective Date:
PUBCO:
SUNCRETE,
INC.
By:
/s/
Tommy Wentroth
Name:
Tommy Wentroth
Title:
Chief Financial Officer
HAYMAKER
ACQUISITION CORP. 4
By:
/s/
Tommy Wentroth
Name:
Tommy Wentroth
Title:
Chief Financial Officer
[Signature
Page to Limited Consent and Third Amendment to Credit Agreement (Concrete Partners)]
BANK
OF AMERICA, N.A.,
as Administrative Agent
By:
/s/
Carolyn LaBatte-Leavitt
Name:
Carolyn LaBatte-Leavitt
Title:
Vice President
[Signature
Page to Limited Consent and Third Amendment to Credit Agreement (Concrete Partners)]
BANK
OF AMERICA, N.A.,
as a Lender, L/C Issuer and Swingline Lender
By:
/s/
Desaree G. Lopez
Name:
Desaree G. Lopez
Title:
Senior Vice President
[Signature Page to Limited
Consent and Third Amendment to Credit Agreement (Concrete Partners)]
PNC
BANK, NATIONAL ASSOCIATION,
as a Lender
By:
/s/
Jacob Mandel
Name:
Jacob Mandel
Title:
Vice President
[Signature Page to Limited Consent and Third Amendment to Credit Agreement
(Concrete Partners)]
CAPITAL
ONE, NATIONAL ASSOCIATION,
as a Lender
By:
/s/
Andrew Seymour
Name:
Andrew Seymour
Title:
Duly Authorized Signatory
[Signature
Page to Limited Consent and Third Amendment to Credit Agreement (Concrete Partners)]
EXHIBIT
C
[Form
of]
Compliance
Certificate
EX-10.22 — EXHIBIT 10.22
EX-10.22
Filename: tm2611641d1_ex10-22.htm · Sequence: 19
Exhibit 10.22
AMENDMENT NO. 1
TO
MANAGEMENT AND CONSULTING AGREEMENT
This Amendment No. 1
(this “Amendment”) dated as of April 8, 2026 (the “Amendment Date”), to the Management
and Consulting Agreement, dated as of July 29, 2024 (the “Agreement”), is entered into by and among Concrete
Partners Holding, LLC, a Delaware limited liability company (“Holding”), Suncrete, Inc., a Delaware corporation
(which, prior to the Domestication (as defined in the BCA), was a Cayman Islands exempted company) (“PubCo”),
and Dothan Concrete Investments Management, LLC, a Texas limited liability company (the “Consultant”). Each
capitalized term used but not defined herein shall have the meaning ascribed to such term in the Agreement.
WHEREAS, Section 16
of the Agreement provides, in pertinent part, that the Agreement may be amended if such amendment is approved in writing by an authorized
representative of each of the parties;
WHEREAS, on October 9,
2025, Holding entered into a Business Combination Agreement (the “BCA”) with Haymaker Acquisition Corp. 4, a
Cayman Islands exempted company (“SPAC”), PubCo, and the other parties thereto;
WHEREAS, pursuant to Section 7.22
of the BCA, Holding has agreed to assign to PubCo, and PubCo has agreed to assume, and to perform and discharge all of the obligations
of the Company under, the Agreement; and
WHEREAS, pursuant to the terms
set forth in the BCA, the parties desire to amend the Agreement as set forth herein, effective as of the Closing (as defined in the BCA).
NOW, THEREFORE, in consideration
of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the undersigned, intending to be legally bound, hereby agree as follows:
Section 1. Amendments
to the Agreement.
(a) The
last sentence of the first paragraph of the Agreement is hereby amended and restated in its entirety to read as follows:
Capitalized terms used but not otherwise
defined herein shall have the meanings given to such terms in that certain Amended and Restated Limited Liability Company Agreement of
Holding, dated as of the date first written above (as the same may be amended, restated, supplemented, or waived from time to time, the
“LLC Agreement”) or, if not defined in the LLC Agreement, shall have the meanings given to such terms in that
certain Business Combination Agreement, by and among Holding, Haymaker Acquisition Corp. 4, a Cayman Islands exempted company (“SPAC”),
Suncrete, Inc., a Delaware corporation and wholly owned direct subsidiary of SPAC (“PubCo”) and the other
parties thereto (the “BCA”).
(b) Section 3(a) of
the Agreement is hereby amended and restated in its entirety to read as follows:
During the term of this Agreement, Consultant
shall receive quarterly with respect to the management of the business and operations of the Company Group a base cash fee (the “Compensation”).
(i) Compensation
Payments. The amount of the quarterly fees paid by the Company Group beginning on January 1, 2026, and continuing for the remainder
of the term of this Agreement will equal 1/4th of the Annual Compensation Amount (as defined below), adjusted each year by
the CPI Adjustment Factor (as defined below). Compensation payments with respect to each quarter shall be payable in arrears on the last
day of such quarter during the term of this Agreement. The Compensation shall accrue daily and be prorated for any partial calendar quarter
during which Consultant performs services hereunder. Any quarterly payments made during the 2026 calendar year and prior to the Amendment
Date shall be adjusted to equal 1/4th of the Annual Compensation Amount, and the amount of any such adjustment(s) shall
be applied to the next quarterly payment due following the Amendment Date. Notwithstanding the foregoing, the aggregate Compensation paid
during any calendar year shall equal the Annual Compensation Amount for such year.
(ii) Definitions.
For purposes hereof, “Annual Compensation Amount” shall mean (a) $3,500,000 in the aggregate for calendar
year 2026, and (b) for each calendar year thereafter, the Annual Compensation Amount for the prior calendar year (“Year
X”) multiplied by the CPI Adjustment Factor; “CPI Adjustment Factor” shall mean a fraction,
the numerator of which is the CPI for Year X, and the denominator of which is the CPI for the calendar year immediately preceding Year
X; and “CPI” means the All Items inflation rate according to the CPI-U for the trailing twelve months.
(c) Section 3(b) of
the Agreement is hereby deleted in its entirety.
(d) Section 3(c) of
the Agreement is hereby renumbered as Section 3(b), and amended and restated in its entirety to read as follows:
During the term of this Agreement, with
respect to each acquisition or disposition transaction (whether such acquisition or disposition is consummated via merger, stock acquisition,
asset acquisition, or otherwise) (each, an “Acquisition”) or any recapitalization, reorganization, debt or equity
financings by the Company or any of its affiliates (each, a “Financing,” and any Acquisition or Financing is
referred to as an “Add-On Acquisition”) with respect to which Consultant provides diligence and integration
services (the “Diligence and Integration Services”), in light of the significant additional time and effort
involved on the part of Consultant and Consultant’s personnel in connection with such Add-On Acquisition, the Company Group shall
compensate Consultant, or cause Consultant to be compensated, for such Diligence and Integration Services in an amount equal to (i) 2.0%
of the enterprise value of such Acquisition or (ii) 2.0% of the gross amount of cash raised in such Financing (clauses (i) and
(ii), the “Diligence and Integration Fees”); provided that no fee shall be payable pursuant to clause
(ii) for any Financing where the proceeds of such Financing are used in whole or in part in connection with an Acquisition if a fee
is payable under clause (i) with respect to such Acquisition. Diligence and Integration Fees related to an Add-On Acquisition shall
be due and payable to Consultant on the date of the closing of such Add-On Acquisition.
(e) Section 3(d) of
the Agreement is hereby renumbered as Section 3(c).
(f) A
new Section 3(d) is hereby inserted to read as follows:
Notwithstanding anything to the contrary
contained in this Agreement, at the Acquisition Closing (as defined in the BCA), PubCo shall make, or cause to be made, the cash payments
to Consultant in accordance with the terms set forth in Section 7.22 of the BCA, in full satisfaction of (i) any fees
payable pursuant to Section 3(d) of this Agreement (renumbered as Section 3(c) pursuant Amendment #1
to the Agreement) and (ii) any Diligence and Integration Fees in connection with the transactions contemplated by the BCA.
2
(g) Section 10
of the Agreement is hereby amended and restated in its entirety to read as follows:
Unless terminated earlier in accordance
with the provisions of this Agreement, the Agreement shall automatically terminate on the date that is ten years from the Closing Date
(as defined in the BCA).
(h) Section 13
of the Agreement is hereby amended by deleting the notice information for the Company Group, and replacing it with the following notice
information for PubCo:
Suncrete, Inc.
817 E. 4th Street
Tulsa, OK 74120
Attention: Chief Executive Officer
Section 2. Assignment
and Assumption. Effective as of the Amendment Date, Holding hereby grants, conveys, and transfers to PubCo all of Holding’s
right, title, and interest in and to the Agreement, and PubCo unconditionally accepts such assignment and assumes all
of Holding’s duties, liabilities, and obligations under the Agreement and agrees to pay, perform, and discharge, as and when
due, all of the obligations of Holding under the Agreement accruing on and after the Amendment Date.
Section 3. Full
Force and Effect. Except as expressly provided for in this Amendment, all of the terms and conditions of the Agreement shall continue
in full force and effect. This Amendment is limited as written and shall not be deemed to be an amendment, modification or supplement
of, or a consent to or waiver of any other term or condition of the Agreement or any other document.
Section 4. Conflict.
In the event of any conflict between the terms and conditions of this Amendment and the Agreement, this Amendment shall govern and prevail
in all respects.
Section 5. Effect
of Amendment; References. From and after the Amendment Date, (i) any reference to the Agreement shall be deemed to be a reference
to the Agreement as amended by this Amendment; and (ii) unless the context indicates otherwise, any reference in the Agreement to
Holding shall be deemed to be a reference to PubCo, and any reference to the Company Group shall be deemed to include PubCo and its direct
and indirect subsidiaries.
Section 6. Governing
Law; Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD
TO THE CONFLICTS OF LAW PRINCIPLES THEREOF. ANY ACTION OR PROCEEDING AGAINST THE PARTIES RELATING IN ANY WAY TO THIS AGREEMENT MAY BE
BROUGHT AND ENFORCED EXCLUSIVELY IN THE COURTS OF THE STATE OF DELAWARE OR (TO THE EXTENT SUBJECT MATTER JURISDICTION EXISTS THEREFOR)
THE U.S. DISTRICT COURT FOR THE DISTRICT OF DELAWARE, AND THE PARTIES IRREVOCABLY SUBMIT TO THE JURISDICTION OF BOTH SUCH COURTS IN RESPECT
OF ANY SUCH ACTION OR PROCEEDING.
Section 7. Headings
and Captions. All headings and captions contained in this Amendment are inserted for convenience only and shall not be deemed a part
of this Amendment.
3
Section 8. Counterparts.
This Amendment may be executed in counterparts, each of which shall constitute an original and all of which, when taken together, shall
constitute one and the same agreement. This Amendment may be executed and delivered via facsimile or other form of electronic delivery
by the parties, which shall be deemed for all purposes as an original.
Section 9. Effectiveness.
The effectiveness of this Amendment is expressly conditioned upon, and will become effective only upon the consummation of all of the
transactions contemplated by the BCA.
Remainder of page intentionally left blank.
4
IN WITNESS WHEREOF, the undersigned, intending
to be legally bound, have duly executed this Amendment as of the day and year first above written.
Concrete Partners Holding, LLC
By:
/s/ Ned N. Fleming, III
Name: Ned N. Fleming, III
Title: Managing Partner
Dothan Concrete Investments Management,
LLC
By: SunTX Capital Management Corp.,
its sole member
By:
/s/ Ned N. Fleming, III
Name: Ned N. Fleming, III
Title: Managing Partner
Suncrete, Inc.
By:
/s/ Randall Edgar
Name: Randall Edgar
Title: Chief Executive Officer
Signature Page – Amendment No. 1 to Dothan Management and
Consulting Agreement
EX-14.1 — EXHIBIT 14.1
EX-14.1
Filename: tm2611641d1_ex14-1.htm · Sequence: 20
Exhibit 14.1
SUNCRETE, INC.
CODE OF BUSINESS CONDUCT AND ETHICS
This Code of Business Conduct
and Ethics (the “Code”) embodies the commitment of Suncrete, Inc. (the “Company”)
to conduct their businesses in accordance with all applicable laws, rules and regulations and the highest ethical standards. All
employees, including executive officers, and members of our Board of Directors, are expected to adhere to the principles and procedures
set forth in this Code that apply to them. The Company also expects the consultants it retains generally to abide by this Code.
1. Compliance and Reporting
Employees and directors should
strive to identify and raise potential issues before they lead to problems, and should ask about the application of this Code whenever
in doubt. Any employee or director who becomes aware of any existing or potential violation of this Code has an obligation to promptly
notify the Company’s compliance officer as shall be designated from time to time (the “Compliance Officer”);
provided, however, that the Company’s initial Compliance Officer shall be the Company’s Chief Financial Officer. Such communications
will be kept confidential to the extent feasible, provided that any concern about questionable accounting or auditing matters submitted
by an employee will be kept confidential, and may be made anonymously, to the extent requested by the employee. The Company will take
such disciplinary or preventive actions as it deems appropriate to address any existing or potential violation of this Code brought to
its attention. If the employee or director is not satisfied with the Company’s response, or if there is reason to believe that notification
to the Compliance Officer is inappropriate in a particular case, the employee or director should contact the Audit Committee of the Company’s
Board of Directors.
Any questions relating to
how these policies should be interpreted or applied should be addressed to the Compliance Officer.
The Company prohibits retaliation
of any kind against an individual who has made a good faith report of a violation or potential violation of this Code.
2. Public Disclosure
It is the Company’s
policy that the information in its public communications, including all Securities and Exchange Commission (“SEC”)
filings, be full, fair, accurate, timely and understandable. All employees and directors who are involved in the disclosure process, including
the Chief Financial Officer and his or her staff, are responsible for acting in furtherance of this policy. In particular, these individuals
are required to maintain familiarity with the disclosure requirements applicable to the Company and are prohibited from knowingly misrepresenting,
omitting, or causing others to misrepresent or omit, material facts about the Company to others, whether within or outside the Company,
including the Company’s independent auditors. In addition, any employee or director who has a supervisory role in the Company’s
disclosure process has an obligation to discharge his or her responsibilities diligently.
3. Financial Statement and Other Records
All of the Company’s
books, records, accounts and financial statements must be maintained in reasonable detail, must appropriately reflect the Company’s
transactions and must conform both to applicable legal requirements and to the Company’s system of internal controls. Unrecorded
or “off the books” funds or other assets should not be maintained unless permitted by applicable laws, rules and regulations.
Employees and directors should
always retain or destroy records according to the Company’s record retention policies. In the event of litigation or governmental
investigation that could involve any particular records, however, none of such records should be destroyed and, in the event that any
such records were in the process of being destroyed in the ordinary course of business in accordance with the Company’s policies,
such destruction shall immediately cease and the Compliance Officer should be consulted immediately.
4. Compliance with Laws, Rules and Regulations
It is the Company’s
policy to comply with all applicable laws, rules and regulations. It is the personal responsibility of each employee and director
to determine which laws, rules and regulations apply to his or her position with the Company and to adhere to the standards and restrictions
imposed by those laws, rules and regulations. Generally, it is both illegal and against Company policy for any employee or director
who is aware of material non-public information relating to the Company, any of the Company’s clients or any other private or governmental
issuer of securities to buy or sell any securities of the Company or any such other issuers, or recommend that another person buy, sell
or hold the securities of the Company or those other issuers.
Additionally, more detailed
rules governing the trading of securities by the Company’s officers and directors are set forth in the Company’s insider
trading policies, as in effect from time to time.
Any employee or director who
is uncertain about the legal or other rules involving his or her purchase or sale of any Company securities or any securities of
issuers that he or she is familiar with by virtue of his or her work for the Company must consult with the Compliance Officer before making
any such purchase or sale.
5. Personal Conflicts of Interest
A “personal conflict
of interest” occurs when an individual’s private interest improperly interferes with the interests of the Company. Personal
conflicts of interest are prohibited as a matter of Company policy, unless the Company has approved them in advance. In particular, an
employee or director must never use or attempt to use his or her position at the Company to obtain any improper personal benefit for himself
or herself, for his or her family members, or for any other person, including loans or guarantees of obligations, from any person or entity.
Employees and directors must seek to avoid any activity that is a conflict of interest or has the appearance of a conflict of interest
with the Company.
Any employee or director who
is aware of a transaction or relationship that could reasonably be expected to give rise to a conflict of interest should discuss the
matter promptly with the Compliance Officer. Disclosure of any potential conflict is the key to remaining in full compliance with this
Code.
6. Corporate Opportunities
Employees and directors owe
a duty to the Company to advance the Company’s legitimate business interests when the opportunity to do so arises. Generally, subject
to the terms of the Company’s certificate of incorporation or bylaws, employees and directors are prohibited from taking for themselves
(or directing to a third party) a corporate opportunity that is discovered through the use of corporate property, information or position,
unless the Company has first been offered the opportunity and turned it down. Additionally, employees and directors are prohibited from
using corporate property, information or position for improper personal gain or competing with the Company.
2
If an employee or director
has any question about corporate opportunities or whether any use of Company property or services is improper, such person should consult
with the Compliance Officer in advance.
7. Confidentiality
In carrying out the Company’s
business, employees and directors often learn confidential or proprietary information about the Company, its customers, prospective customers
or other third parties. Employees and directors must maintain the confidentiality of all information so entrusted to them, except when
disclosure is authorized by the Company or otherwise legally mandated. Confidential or proprietary information includes, among other things,
any non-public information concerning the Company relating to its businesses, financial performance and results or prospects and any non-public
information provided by a third party (including a customer) with the expectation that the information will be kept confidential and used
solely for the business purpose for which it was conveyed.
8. Fair Dealing
The Company has a history
of succeeding through honest business competition. It does not seek competitive advantages through illegal or unethical business practices.
Each employee and director should endeavor to deal fairly with the Company’s customers, service providers, suppliers, competitors
and employees. No employee or director should take unfair advantage of anyone through manipulation, concealment, abuse of privileged information,
misrepresentation of material facts, or any unfair dealing practice.
9. Equal Employment Opportunity and Harassment
The Company’s focus
in personnel decisions is on merit and individual contribution. Concern for the personal dignity and individual worth of every person
is an indispensable element in the standard of conduct that the Company has set for itself. The Company affords equal employment opportunity
to all qualified persons. This means equal opportunity in regard to each individual’s terms and conditions of employment and in
regard to any other matter that affects in any way the working environment for the employee. The Company does not tolerate or condone
any type of discrimination prohibited by law, including sexual or other harassment.
10. Protection and Proper Use of Firm Assets
All employees and directors
should protect the Company’s assets and ensure their efficient use. All Company assets should be used for legitimate business purposes
only.
11. Waivers of This Code
From time to time, the Company
may waive certain provisions of this Code. Any employee or director who believes that a waiver may be called for should discuss the matter
in advance with the Compliance Officer. Only the Board of Directors of the Company or a committee of the Board of Directors of the Company
to which such responsibility has been delegated may grant waivers hereunder for executive officers or directors of the Company.
3
EX-16.1 — EXHIBIT 16.1
EX-16.1
Filename: tm2611641d1_ex16-1.htm · Sequence: 21
Exhibit 16.1
April 14, 2026
Office of the Chief Accountant
Securities and Exchange Commission
100 F Street, NE
Washington, D.C. 20549
Ladies and Gentlemen:
We have read the statements of Suncrete, Inc.
(successor to Haymaker Acquisition Corp 4) included under Item 4.01 of its Form 8-K dated April 14, 2026. We agree with the statements
concerning our Firm under Item 4.01 of that Form 8-K. We are not in a position to agree or disagree with other statements contained therein.
Very truly yours,
/s/ WithumSmith+Brown, PC
WithumSmith+Brown, PC
EX-21.1 — EXHIBIT 21.1
EX-21.1
Filename: tm2611641d1_ex21-1.htm · Sequence: 22
Exhibit 21.1
Subsidiaries of the Registrant
Subsidiary
Jurisdiction of Incorporation or Formation
Haymaker Acquisition Corp. 4
Delaware
Concrete Partners Holding, LLC
Delaware
Concrete Partners, LLC
Delaware
Eagle Concrete Holdings, LLC
Delaware
Eagle Redi-Mix Concrete, LLC
Oklahoma
RAM Transportation, LLC
Oklahoma
Schwarz Sand, LLC
Oklahoma
EX-99.1 — EXHIBIT 99.1
EX-99.1
Filename: tm2611641d1_ex99-1.htm · Sequence: 23
Exhibit 99.1
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
To the Stockholders and the Board of Directors
of
Suncrete Inc.:
Opinion on the Financial Statements
We have audited the accompanying consolidated
balance sheet of Suncrete Inc. as of December 31, 2025, and the related consolidated statements of operations, changes in stockholder’s
deficit, and cash flows for the period from September 30, 2025 (Inception) to December 31, 2025, and the related notes (collectively
referred to as the “consolidated financial statements”). In our opinion, the consolidated financial statements present fairly,
in all material respects, the financial position of the Company as of December 31, 2025, and the results of its operations and its
cash flows for the period from September 30, 2025 (Inception) to December 31, 2025, in conformity with accounting principles
generally accepted in the United States of America.
Going Concern
The accompanying financial statements have been
prepared assuming that the Company will continue as a going concern. As discussed in Note 1 to the financial statements, if the Parent
is unable to raise additional funds to alleviate liquidity needs and complete a business combination by July 28, 2026, then the
Company will cease all operations except for the purpose of liquidating. The liquidity condition raises substantial doubt about the Company’s
ability to continue as a going concern. Management’s plans in regard to these matters are also described in Note 1. The financial
statements do not include any adjustments that might result from the outcome of this uncertainty.
Basis for Opinion
These consolidated financial statements are the
responsibility of the Company’s management. Our responsibility is to express an opinion on the Company's consolidated financial
statements based on our audit. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United
States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities
laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the
standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated
financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were
we engaged to perform, an audit of its internal control over financial reporting. As part of our audit, we are required to obtain an
understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the
Company's internal control over financial reporting. Accordingly, we express no such opinion.
Our audit included performing procedures to assess
the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures
that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the
consolidated financial statements. Our audit also included evaluating the accounting principles used and significant estimates made by
management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audit provides
a reasonable basis for our opinion.
/s/ WithumSmith+Brown, PC
We have served as the Company's auditor since
2025.
New York, New York
April 14, 2026
SUNCRETE INC.
CONSOLIDATED BALANCE SHEET
DECEMBER 31, 2025
ASSETS
Total Current Assets
$ —
TOTAL ASSETS
$ —
LIABILITIES AND STOCKHOLDER’S DEFICIT
Accounts payable and accrued expenses
$ 31,519
TOTAL LIABILITIES
31,519
Commitments and Contingencies
STOCKHOLDER’S DEFICIT
Common stock, $0.0001 par value; 1,000 shares authorized, 100 issued and outstanding
10
Stock subscription receivable
(10 )
Additional paid-in capital
—
Accumulated deficit
(31,519 )
Total Stockholder’s Deficit
(31,519 )
TOTAL LIABILITIES AND STOCKHOLDER’S DEFICIT
$ —
The accompanying notes are an integral part
of the financial statements.
SUNCRETE INC.
CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE PERIOD FROM SEPTEMBER 30, 2025 (INCEPTION)
TO DECEMBER 31, 2025
General and administrative expenses
$ 31,519
Loss from operations
(31,519 )
Net loss
$ (31,519 )
Weighted average shares of common stock outstanding, basic and diluted
1,000
Basic and diluted net loss per share of common stock
$ (31.52 )
The accompanying notes are an integral part
of these financial statements.
SUNCRETE INC.
CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDER’S
DEFICIT
FOR THE PERIOD FROM SEPTEMBER 30, 2025 (INCEPTION)
TO DECEMBER 31, 2025
Common Stock
Share
Subscription
Additional
Paid-in
Accumulated
Total
Stockholder’s
Shares
Amount
Receivable
Capital
Deficit
Deficit
Balance — September 30, 2025 (inception)
—
$
—
—
$
—
$
—
$
—
Issuance of common stock
1,000
10
(10 )
—
—
—
Net loss
—
—
—
—
(31,519 )
(31,519 )
Balance – December 31, 2025
1,000
$ 10
$ (10 )
$ —
$ (31,519 )
$ (31,519 )
The accompanying notes are an integral part
of these financial statements.
SUNCRETE INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE PERIOD FROM SEPTEMBER 30, 2025 (INCEPTION)
TO DECEMBER 31, 2025
Cash Flows from Operating Activities:
Net loss
$ (31,519 )
Adjustments to reconcile net loss to net cash used in operations:
Changes in operating assets and liabilities:
Accounts payable and accrued expenses
31,519
Net cash used in operating activities
—
Net Change in Cash
—
Cash – Beginning of period
—
Cash – End of year
$ —
The accompanying notes are an integral part
of these financial statements.
SUNCRETE INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2025
NOTE 1. DESCRIPTION OF ORGANIZATION AND BUSINESS
OPERATIONS
Suncrete Inc. (the “Company”)
(together with its two wholly-owned subsidiaries Haymaker Merger Sub I, Inc. and Haymaker Merger Sub II, LLC) was incorporated in
Delaware on September 30, 2025. The Company was formed for the purpose of consummating the transactions contemplated in the Merger
Agreement, as defined below, to facilitate the consummation of the Business Combination.
Proposed Business Combination
On October 9, 2025, the Company, Haymaker
Acquisition Corp. 4, a Cayman Islands exempted company (“Haymaker” or “SPAC”), Haymaker Merger Sub I, Inc.,
a Delaware corporation and a direct wholly owned subsidiary of the Company (“Merger Sub I”), Haymaker Merger Sub II, LLC,
a Delaware limited liability company and direct wholly owned subsidiary of the Company (“Merger Sub II” and together with
Merger Sub I, the “Merger Subs”), and Concrete Partners Holding, LLC, a Delaware limited liability company (“Suncrete”),
entered into a Business Combination Agreement, dated as of October 9, 2025 (the “Business Combination Agreement”).
Pursuant to the Business Combination Agreement,
and subject to the terms and conditions contained therein, the Business Combination will be effected in three steps: (a) SPAC will
change its jurisdiction of incorporation from the Cayman Islands to the State of Delaware (the “Domestication” and the time
at which the Domestication becomes effective, the “Domestication Effective Time”), (b) immediately following the Domestication
Effective Time, Merger Sub I will merge with and into SPAC (the “Initial Merger”), with SPAC surviving the Initial Merger
as a wholly owned subsidiary of the Company (the time at which the Initial Merger becomes effective, the “Initial Merger Effective
Time”); and (c) immediately following the Initial Merger Effective Time, Merger Sub II will merge with and into Suncrete (the
“Acquisition Merger” and, together with the Initial Merger, the “Mergers”, and collectively with the Domestication
and all other transactions contemplated by the Business Combination Agreement, the “Business Combination”), with Suncrete
surviving the Acquisition Merger as a wholly owned subsidiary of New Suncrete..
Liquidity and Going Concern
On December 31, 2025,
the Company reported net loss of $31,519. As of December 31, 2025, the Company had an aggregate cash of $0 and a working capital
deficit of $31,519.
The accompanying consolidated
financial statements have been prepared assuming the Company will continue as a going concern. If the Business Combination is not consummated
by July 28, 2026 (or as extended by the shareholders) (the “Combination Period”), then the Company will cease all operations
except for the purpose of liquidating. The liquidity condition and potential dissolution if the Business Combination is not consummated
by the Combination Period raise substantial doubt about the Company’s ability to continue as a going concern.
As a result of the above,
in connection with the Company’s assessment of going concern considerations in accordance with Financial Accounting Standard Board’s
(“FASB”) Accounting Standards Update (“ASU”) 2014-15, “Disclosures of Uncertainties about an Entity’s
Ability to Continue as a Going Concern,” management has determined that the Company’s liquidity condition raises substantial
doubt about the Company’s ability to continue as a going concern through twelve months from the date these financial statements
are available to be issued. These consolidated financial statements do not include any adjustments relating to the recovery of the recorded
assets or the classification of the liabilities that might be necessary should the Company be unable to continue as a going concern.
SUNCRETE INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2025
NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING
POLICIES
Basis of Presentation
The accompanying consolidated
financial statements, which include the consolidated financial statements of the Company and its wholly-owned subsidiaries, have been
prepared in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”)
and pursuant to the accounting and disclosure rules and regulations of the Securities and Exchange Commission (the “SEC”).
Use of Estimates
The preparation of consolidated
financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported
amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements
and the reported amounts of revenues and expenses during the reporting periods.
Making estimates requires
management to exercise significant judgment. It is at least reasonably possible that the estimate of the effect of a condition, situation
or set of circumstances that existed at the date of the financial statements, which management considered in formulating its estimate,
could change in the near term due to one or more future events. Accordingly, the actual results could differ significantly from those
estimates.
Cash and Cash Equivalents
The Company considers all
short-term investments with an original maturity date of three months or less when purchased to be cash equivalents. The Company
did not have any cash or cash equivalents as of December 31, 2025.
Net Loss Per Share
Net loss per share is computed
by dividing net loss by the weighted average number of shares outstanding for the period. For purposes of calculating diluted loss per
share, the denominator includes both the weighted average number of shares outstanding during the period and the number of common share
equivalents if the inclusion of such common share equivalents is dilutive.
Recent Accounting Standards
Management does not believe
that any recently issued, but not yet effective, accounting standards, if currently adopted, would have a material effect on the Company’s
financial statements.
NOTE 3. RELATED PARTY TRANSACTIONS
Amounts due to related party
represent formation costs paid on behalf of the Company by its stockholder. The Company’s stockholder is expected to pay the accrued
expenses of the Company at the closing of the Business Combination.
NOTE 4. STOCKHOLDER’S DEFICIT
Common Stock
The Company is authorized
to issue 1,000 shares of common stock with a par value of $0.0001 per share. At December 31, 2025, there are 1,000 shares of common
stock issued and outstanding. Each share of common stock entitles the holder to one vote.
NOTE 5. SEGMENT REPORTING
ASC Topic 280, “Segment
Reporting,” establishes standards for companies to report in their financial statement information about operating segments, products,
services, geographic areas, and major customers. Operating segments are defined as components of an enterprise that engage in business
activities from which it may recognize revenues and incur expenses, and for which separate financial information is available that is
regularly evaluated by the chief operating decision market (“CODM”), or group, in deciding how to allocate resources and
assess performance.
The CODM has been identified
as the Chief Executive Officer, who reviews the assets, operating results, and financial metrics for the Company as a whole to make decisions
about allocating resources and assessing financial performance. Accordingly, management has determined that there is only one reportable
segment.
The CODM assesses performance
for the single segment and decides how to allocate resources based on net income or loss that also is reported on the statement of operations
as net income or loss. When evaluating the Company’s performance and making key decisions regarding resource allocation, the CODM
reviews the key metric below included in net income or loss:
December 31, 2025
General and administrative expenses
$ 31,519
Operating expenses are reviewed
and monitored by the CODM to manage and forecast cash to ensure enough capital is available to complete a business combination or similar
transaction within the business combination period. The CODM also reviews operating expenses to manage, maintain and enforce all contractual
agreements to ensure costs are aligned with all agreements and budget. Operating expenses, as reported on the statement of operations,
are the significant segment expenses provided to the CODM on a regular basis.
NOTE 6. SUBSEQUENT EVENTS
The Company evaluated subsequent
events and transactions that occurred after the consolidated balance sheet date up to the date that the financial statements were issued.
Based upon this review, the Company did not identify any subsequent events that would have required adjustment or disclosure in these
consolidated financial statements, other than as described below:
On April 8, 2026, the
Company consummated the previously announced Business Combination with Haymaker Acquisition Corp. 4.
EX-99.2 — EXHIBIT 99.2
EX-99.2
Filename: tm2611641d1_ex99-2.htm · Sequence: 24
Exhibit 99.2
INDEX TO FINANCIAL INFORMATION
Audited Consolidated Financial Statements of Concrete Partners
Holding, LLC (Successor) and Combined Financial Statements of Eagle Redi-Mix Concrete, LLC and Ram Transportation, LLC (Predecessor)
Reports of Independent Registered Public Accounting Firm
F-2
Consolidated Balance Sheets as of December 31, 2025 and 2024 (Successor)
F-3
Consolidated Statement of Operations for the Year Ended December 31,
2025 and for the Period from Inception (May 22, 2024) through December 31, 2024 (Successor) and Combined Statements of Operations
for the period from January 1, 2024 through July 29, 2024 and the Year Ended
December 31, 2023 (Predecessor)
F-4
Consolidated Statement of Changes in Mezzanine Equity and Common Unitholder
Equity for the Year Ended December 31, 2025 and for the Period from Inception (May 22, 2024) through December 31, 2024
(Successor), and Combined Statements of Changes in Common Unitholder Equity for the Period from January 1, 2024 through July 29,
2024 (Predecessor) and the Year Ended December 31, 2023 (Predecessor)
F-5
Consolidated Statement of Cash Flows for the Year Ended December 31,
2025 and for the Period from Inception (May 22, 2024) through December 31, 2024 (Successor), and Combined Statements of Cash
Flows for the Period from January 1, 2024 through July 29, 2024 and the Year Ended
December 31, 2023 (Predecessor)
F-6
Notes to Consolidated and Combined Financial Statements
F-7
F-1
REPORT OF INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
Board of Directors and Unitholders
Concrete Partners Holding, LLC
Opinion on the financial statements
We have audited the accompanying consolidated balance sheets of Concrete
Partners Holding, LLC (a Delaware corporation) (and subsidiaries) (the “Successor”) (the “Company”) as of December
31, 2025 and 2024, the related consolidated statements of operations, changes in mezzanine equity and common unitholder equity, and cash
flows for the year ended December 31, 2025 and for the period from May 22, 2024 (date of inception) to December 31, 2024, and the related
notes. We have audited the accompanying combined statements of operations, changes in common unitholder equity, and cash flows for the
period from January 1, 2024 to July 29, 2024 and the year ended December 31, 2023, and the related notes of Eagle Redi-Mix Concrete, LLC
and Ram Transportation, LLC (collectively, the “Predecessor”) (Oklahoma limited liability companies and subsidiaries of the
Company). All statements referenced are collectively referred to as the “consolidated and combined financial statements” In
our opinion, the consolidated and combined financial statements present fairly, in all material respects, the financial position of the
Company as of December 31, 2025 and 2024, and the results of its operations and its cash flows for the year ended December 31, 2025 (Successor),
the period from May 22, 2024 (date of inception) to December 31, 2024 (Successor), the period from January 1, 2024 to July 29, 2024 (Predecessor),
and the year ended December 31, 2023 (Predecessor), in conformity with accounting principles generally accepted in the United States of
America.
Basis for opinion
These consolidated and combined financial statements are the responsibility
of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated and combined financial
statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United
States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with U.S. federal securities
laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB
and in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and
perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due
to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial
reporting. As part of our audits, we are required to obtain an understanding of internal control over financial reporting but not for
the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly,
we express no such opinion.
Our audits included performing procedures to assess the risks of material
misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures
included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included
evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation
of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
/s/ GRANT THORNTON LLP
We have served as the Company’s auditor since 2024.
Tulsa, Oklahoma
April 14, 2026
F-2
CONCRETE PARTNERS HOLDING,
LLC
Consolidated Balance Sheets
as of December 31, 2025 and 2024 (Successor)
(in thousands, except
unit amounts)
December 31,
2025
December 31,
2024
Assets
Current assets:
Cash and cash equivalents
$ 6,333
$ 8,410
Accounts receivable, net
33,699
19,774
Inventory
8,723
5,007
Other current
assets
5,047
1,241
Total current assets
53,802
34,432
Property, plant and equipment:
Property, plant and equipment, at cost
168,767
70,965
Less: accumulated
depreciation
(15,930 )
(4,072 )
Property, plant and equipment, net
152,837
66,893
Goodwill
79,505
79,505
Customer relationships, net
71,373
61,636
Trade names
24,800
16,800
Other noncurrent assets, net
2,385
980
Total assets
$ 384,702
$ 260,246
Liabilities, Redeemable Mezzanine Equity and Common Unitholder
Equity (Deficit)
Current liabilities:
Accounts payable
$ 12,558
$ 5,094
Accrued liabilities
27,080
3,044
Current portion of lease liabilities
475
361
Long-term debt,
current portion
13,654
6,500
Total current liabilities
53,767
14,999
Long-term lease liability
1,727
361
Long-term debt,
net
186,625
122,485
Total liabilities
242,119
137,845
Commitments and contingencies (Note 15)
Redeemable mezzanine equity:
Redeemable senior
preferred units, 26,000,000 units issued and outstanding (at redemption value)
26,590
26,590
Redeemable preferred
units, 115,700,000 units and 95,700,000 units issued and outstanding (at redemption value) at December 31, 2025 and 2024, respectively
130,623
99,832
Common unitholder equity (deficit), 95,700,000
units issued and outstanding
(14,630 )
(4,021 )
Total
liabilities, redeemable mezzanine equity and common unitholder equity (deficit)
$ 384,702
$ 260,246
The accompanying notes are an integral part of
these financial statements.
F-3
CONCRETE PARTNERS HOLDING,
LLC (SUCCESSOR) AND COMBINED EAGLE REDI-MIX CONCRETE, LLC AND RAM TRANSPORTATION, LLC (PREDECESSOR)
Consolidated Statement of
Operations for the Year Ended December 31, 2025 and for the Period from Inception (May 22, 2024) through December 31,
2024 (Successor), and Combined Statements of Operations for the Period from January 1, 2024 through July 29, 2024 and the Year
Ended December 31, 2023 (Predecessor)
(in thousands, except
units and per units amounts)
Successor
Predecessor
Year ended
December 31,
2025
Period
from
Inception
(May 22, 2024)
through
December 31,
2024
Period
from
January 1, 2024
through
July 29, 2024
Year ended
December 31,
2023
Revenues
$ 194,871
$ 79,650
$ 103,661
$ 144,279
Cost of goods sold
127,925
49,419
65,065
93,093
Gross profit
66,946
30,231
38,596
51,186
Operating expenses:
Selling, general and administrative
expenses (1)
45,553
16,346
16,883
22,665
Acquisition-related costs (2)
6,696
7,422
—
—
(Gain) loss on
disposal of assets, net
272
(108 )
40
197
Total operating expenses
52,521
23,660
16,923
22,862
Operating income
14,425
6,571
21,673
28,324
Other income (expense):
Other expenses
(418 )
(319 )
(285 )
(471 )
Interest expense,
net
(12,032 )
(5,173 )
(924 )
(878 )
Total other income (expense)
(12,450 )
(5,492 )
(1,209 )
(1,349 )
Net income
1,975
1,079
20,464
26,975
Distributions to senior preferred unitholders
(2,340 )
(410 )
—
—
Accretion of redeemable preferred units
to redemption value
(10,791 )
(33,532 )
—
—
Net income (loss) attributable to
common unitholders
$ (11,156 )
$ (32,863 )
$ 20,464
$ 26,975
Weighted average common units outstanding
95,700,000
66,517,937
—
—
Basic and diluted income (loss)
per common units
(0.12 )
(0.49 )
—
—
(1) Includes approximately $2.8 million
of affiliated consultant compensation incurred during the 2025 Successor period, $0.9 million
during the 2024 Successor period, and $0 during the Predecessor period; see Note 19.
(2) Includes approximately $3.0 million
and $6.3 million of reimbursable third-party diligence costs and affiliated diligence and
integration fees incurred during the 2025 and 2024 Successor periods, respectively, and $0
during the Predecessor period; see Note 19.
The accompanying notes are an integral part of
these financial statements.
F-4
CONCRETE PARTNERS HOLDING,
LLC (SUCCESSOR) AND COMBINED EAGLE REDI-MIX CONCRETE, LLC AND RAM TRANSPORTATION, LLC (PREDECESSOR)
Consolidated Statement of
Changes in Mezzanine Equity and Common Unitholder Equity as of December 31, 2025 and for the Period from Inception (May 22, 2024) through
December 31, 2024 (Successor), Combined Statement of Changes in Common Unitholder Equity for the Period from January 1, 2024 through
July 29, 2024 and the Year Ended December 31, 2023 (Predecessor)
(unaudited)
(in thousands, except unit amounts)
Mezzanine
Equity
Senior
Preferred
Units
Senior
Preferred
($)
Preferred
Units
Preferred
($)
Common
Unitholder
Equity
Units
Common
Unitholder
Equity
(Deficit) ($)
Balance, January 1, 2023 (Predecessor)
$ 35,274
Net income
26,975
Distributions
(19,006 )
Balance, December 31, 2023 (Predecessor)
$ 43,243
Net income
20,464
Distributions
(13,378 )
Balance, July 29, 2024 (Predecessor)
$ 50,329
Balance, May 22, 2024 (Successor)
—
$ —
—
$ —
—
$ —
Issuance of preferred
and common units for cash
—
—
57,900,000
40,718
57,900,000
17,182
Issuance of senior
preferred units, preferred units, common units for concrete acquisition
26,000,000
26,000
37,800,000
26,582
37,800,000
11,218
Net income
—
—
—
—
—
1,079
Accretion to redemption value
—
1,000
—
32,532
—
(33,532 )
Distributions
—
(410 )
—
—
—
—
Share-based compensation
—
—
—
—
—
32
Balance, December 31, 2024 (Successor)
26,000,000
$ 26,590
95,700,000
$ 99,832
95,700,000
$ (4,021 )
Net income
—
—
—
—
—
1,975
Issuance of Preferred Units
—
—
20,000,000
20,000
—
—
Accretion to
redemption value
—
2,340
—
10,791
—
(13,131 )
Distributions
(2,340 )
—
—
—
—
Share-based compensation
—
—
—
—
—
547
Balance, December 31, 2025 (Successor)
26,000,000
$ 26,590
115,700,000
$ 130,623
95,700,000
$ (14,630 )
The accompanying notes are an integral part of
these financial statements.
F-5
CONCRETE PARTNERS HOLDING, LLC (SUCCESSOR)
AND COMBINED EAGLE REDI-MIX CONCRETE, LLC AND RAM TRANSPORTATION, LLC (PREDECESSOR)
Consolidated Statement of Cash Flows for the Year
Ended December 31, 2025 and for the Period from Inception (May 22, 2024) through December 31, 2024 (Successor), and Combined
Statements of Cash Flows for the Period from January 1, 2024 through July 29, 2024 and the Year Ended December 31, 2023
(Predecessor)
(in thousands)
Successor
Predecessor
Year ended
December 31, 2025
Period
from Inception (May 22, 2024) through December 31, 2024
Period
from January 1, 2024 through
July 29, 2024
Year ended
December 31, 2023
Cash Flows from Operating Activities:
Net income
$ 1,975
$ 1,079
$ 20,464
$ 26,975
Adjustments to
reconcile net income to net cash provided by operating activities:
Depreciation and amortization
19,035
6,740
4,827
6,087
(Gain) loss on disposal of assets, net
272
(108 )
40
197
Non-cash lease expense
177
(13 )
10
23
Non-cash share-based compensation
547
32
—
—
Non-cash debt issuance cost amortization
650
253
6
4
Changes in operating
assets and liabilities, net of effects of acquisitions:
Accounts receivable, net
(4,272 )
5,201
(8,023 )
(3,674 )
Inventory
(122 )
250
(916 )
(890 )
Other current assets
(868 )
(89 )
(300 )
(93 )
Accounts payable
1,372
(1,651 )
(1,084 )
3,492
Accrued liabilities
2,704
(896 )
2,626
105
Net cash provided by operating activities
21,470
10,798
17,650
32,226
Cash Flows from Investing Activities:
Additions to property, plant and and
equipment
(15,879 )
(3,617 )
(1,047 )
(9,194 )
Proceeds from sales of property, plant
and equipment
301
5
176
1,613
Insurance proceeds on property, plant
and equipment
—
158
—
—
Net cash paid
for acquisitions
(73,436 )
(189,215 )
(13,872 )
—
Net cash used in investing activities
(89,014 )
(192,669 )
(14,743 )
(7,581 )
Cash Flows from Financing Activities:
Borrowings of debt
86,823
136,200
11,097
—
Repayment of debt
(15,638 )
(5,250 )
(2,457 )
(4,629 )
Payment of debt issuance costs
(645 )
(2,464 )
(59 )
—
Proceeds from issuance of preferred
and common units
—
57,900
—
—
Payment of deferred financing costs
(2,733 )
—
—
—
Distributions
(2,340 )
(410 )
(14,274 )
(18,186 )
Net cash provided by (used in) financing
activities
65,467
185,976
(5,693 )
(22,815 )
Net change in cash and cash equivalents
(2,077 )
4,105
(2,786 )
1,830
Beginning cash and cash equivalents
8,410
4,305
7,091
5,261
Ending cash and cash equivalents
$ 6,333
$ 8,410
$ 4,305
$ 7,091
The accompanying notes are an integral part of
these financial statements.
F-6
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
Note 1. Organization
Concrete Partners Holding, LLC (the “Company,”
the “Successor,” or “Concrete Holdings”) was formed in May 2024 as a Delaware limited liability company
to serve as a holding company. The Company subsequently formed Concrete Partners, LLC (“Concrete Partners”) and its wholly
owned subsidiary, Eagle Concrete Holdings, LLC (“Eagle Holdings”). Through Eagle Holdings, the Company wholly owns Eagle
Redi-Mix Concrete, LLC (“Eagle”) and Ram Transportation, LLC (“Ram”) (collectively, the “Predecessor”),
which are Oklahoma limited liability companies primarily engaged in the production and delivery of ready-mix concrete and related materials.
Eagle and Ram were under common control for all
periods presented. Accordingly, the accompanying Predecessor combined financial statements reflect the combined results of Eagle and
Ram as if they had been a single reporting entity for all historical periods.
On July 29, 2024 (the “Closing Date”),
the Company acquired 100% of the membership interests in Eagle and Ram from their previous equity holders (the “Concrete Acquisition”).
Following the acquisition, the Company operates an integrated ready-mix concrete platform serving infrastructure, commercial, and residential
construction projects throughout Oklahoma and Arkansas.
As a result of the Concrete Acquisition, the
accompanying financial statements reflect the activity of both the Successor and the Predecessor. The financial statements present four
distinct reporting periods: (i) a Successor period for the year ended December 31, 2025, (ii) a Successor period from
May 22, 2024 (date of inception) through December 31, 2024, (iii) a Predecessor period from January 1, 2024 through
July 29, 2024, and (iv) a Predecessor period for the year ended December 31, 2023. The Company was determined to be the
accounting acquirer and has applied the acquisition method of accounting in accordance with ASC 805, Business Combinations. Accordingly,
a black-line division has been placed between the Successor and Predecessor periods to signify the consolidated financial statements
for the Successor period are not comparable to the combined financial statements of the Predecessor period.
Although Concrete Holdings was formed on May 22,
2024, it had no operational activities or revenues prior to the acquisition of Eagle and Ram on July 29, 2024. From formation through
the Closing Date, the Company incurred certain acquisition-related costs in connection with the Concrete Acquisition, which have been
recorded in the consolidated financial statements. Other than these acquisition-related expenses, there were no substantive operating
activities prior to the acquisition date.
Note 2. Basis of Presentation and Significant
Accounting Policies
Basis of Presentation
The accompanying consolidated financial statements
have been prepared in accordance with accounting principles generally accepted in the United States of America ("GAAP"). All
material intercompany transactions and balances have been eliminated in consolidation.
F-7
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
The Company accounts for business combinations
using the acquisition method of accounting. As described in Note 1, the financial statements distinguish between Predecessor and Successor
periods, which are not comparable.
Reclassifications
Certain prior period amounts have been reclassified
to conform to the current period financial statement presentation, including reclassifications related to property, plant and equipment.
These reclassifications had no impact on previously reported total assets, total liabilities, net income or stockholders' equity for
the periods presented.
Principles of Consolidation
The consolidated financial statements include
the accounts of the Company and its wholly owned subsidiaries. All intercompany balances and transactions have been eliminated in consolidation.
The combined financial statements for the Predecessor
period represent the combination of the accounts of Eagle Redi-Mix Concrete, LLC and Ram Transportation, LLC, which were under common
ownership and management during the periods presented but were not consolidated with the Company. All intercompany balances and transactions
between Eagle and Ram have been eliminated in combination.
Use of Estimates
The preparation of the financial statements in
conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities
and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and
expenses during the reporting period. Significant estimates made by the Company include the estimated fair value of consideration transferred,
assets acquired, and liabilities assumed in business combinations, useful lives of property, plant and equipment and intangible assets,
and the valuation of share-based compensation awards. Actual results could differ from those estimates.
Cash and Cash Equivalents
Cash and cash equivalents include cash on hand,
cash in bank accounts and highly liquid investments with original maturities of three months or less. The Company's total cash balances
are insured by the Federal Deposit Insurance Corporation ("FDIC") up to $250,000 per bank per depositor. The Company may hold
balances in excess of federally insured limits but monitors the creditworthiness of its financial institutions. As of December 31,
2025 and 2024, the Company had no restricted cash balances.
F-8
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
Accounts Receivable
Accounts receivable represent customer obligations
due under normal trade terms and are recorded at the invoiced amount, net of an allowance for expected credit losses. Accounts receivable
originating in the normal course of business are recorded at cost. Accounts receivable acquired in a business combination are recorded
at fair value at the acquisition date, which approximates their net book value due to the short-term nature of the balances.
The Company sells ready-mix concrete and concrete
products to various customers. The Company performs ongoing credit evaluations of its customers’ financial condition and generally
requires no collateral. The allowance for expected credit losses is estimated based on the length of time receivables are past due, prior
loss history, current and expected economic conditions, trends in the construction industry, and the customer’s ability to pay.
The Company also considers individual credit risk profiles and writes off specific receivables once they are deemed uncollectible. Payments
subsequently received on accounts previously written off are credited back to the allowance. Additions to the allowance are recorded
as bad debt expense.
As of December 31, 2025 and 2024, the allowance
for expected credit losses was approximately $61,400. Accounts receivable are presented on the Consolidated Balance Sheets net of this
allowance.
No single customer accounted for more than 10%
of accounts receivable as of December 31, 2025. As of December 31, 2024, one customer accounted for more than 10% of accounts
receivable. The Company monitors credit risk through ongoing credit evaluations and reviews of customer payment history, credit ratings,
financial strength, and industry position.
The opening and closing balances of accounts
receivable from contracts with customers were $19.8 million and $33.7 million as of January 1, 2025 and December 31, 2025,
respectively. For comparative purposes, balances were $17.0 million and $19.8 million as of January 1, 2024 and December 31,
2024, respectively.
Inventory
Inventories consist primarily of raw materials
such as cement, sand, gravel, admixes and other components that are readily used in the production of ready-mix concrete, as well as
supplies for maintaining the Company’s plant facilities and equipment. Inventory is valued at the lower of cost or net realizable
value, with cost determined using either the first-in, first-out or average cost method. Inventory is evaluated for obsolescence or damage,
and any items identified as unusable are written off as an expense in the period identified.
F-9
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
Property, Plant and Equipment, net
Property, plant and equipment are initially recorded
at cost or, if acquired in connection with a business combination, at fair value, and depreciated on a straight-line basis over their
estimated useful lives. Expenditures for additions and improvements that significantly add to the productive capacity or extend the useful
life of an asset are capitalized. Repair and maintenance costs that do not substantially expand productive capacity or extend the life
of property, plant and equipment are expensed as incurred. Leasehold improvements for operating leases are amortized over the lesser
of the term of the related lease or the estimated lives of the improvements.
Upon disposal of an asset, the cost and related
accumulated depreciation are removed from the Company’s accounts and any gain or loss is included in (Gain) loss on disposal of
assets, net on the Consolidated and Combined Statements of Operations.
Management periodically assesses the estimated
useful life over which assets are depreciated. If the analysis warrants a change in the estimated useful life of Property, plant and
equipment, management will reduce the estimated useful life and depreciate the carrying value prospectively over the revised remaining
useful life.
The estimated useful lives of the Company’s
property, plant and equipment is as follows:
Asset Category
Estimated Useful Life
Land
Not Depreciated
Buildings
30 years
Plant & Equipment
7-10 years
Vehicles
5 years
Office Equipment & Software
5-7 years
Intangible Assets – Customer Relationships
The Company’s intangible assets consist
of customer relationships and trade names acquired in business combinations. The Company amortizes customer relationships over their
estimated useful lives ranging from 8 to 10 years, using the straight-line method. See Note 4 for additional discussion of the Company’s
intangible assets.
Impairment of Long-Lived Assets
The Company’s long-lived assets (property,
plant and equipment and amortizable intangible assets) are tested for impairment whenever events or changes in business circumstances
indicate that the carrying amount of the asset may not be fully recoverable. A long-lived asset group is considered impaired when the
anticipated undiscounted future cash flows from the use and eventual disposition of the asset group is less than its carrying value.
If the carrying value is not recoverable, an impairment loss is measured as the excess of the asset’s carrying value over its estimated
fair value. No impairments of long-lived assets were recorded during any periods presented in the accompanying consolidated and combined
financial statements.
F-10
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
Goodwill and Indefinite-Lived Intangible Assets
Goodwill represents the excess of consideration
over the fair value of net assets acquired and liabilities assumed in business combinations. The goodwill recorded in connection with
the Company’s business combinations is primarily attributable to the assembled workforces of the acquired businesses and the synergies
expected to arise after the Company’s acquisition of those businesses.
Goodwill and indefinite-lived intangible assets,
such as trade names, are not amortized, but are evaluated for impairment at least annually, or more frequently if facts or changes in
circumstances indicate that the asset’s fair value may be less than its carrying amount. The Company performed its annual assessment
as of December 31, 2025.
For purposes of the goodwill impairment assessment,
assets are grouped into “reporting units.” A reporting unit is either an operating segment or a component of an operating
segment, depending on how similar the components of the operating segment are to each other in terms of operational and economic characteristics.
As of December 31, 2025, the Company had
one reporting unit for goodwill impairment testing purposes, which aligns with its single operating segment. The Company performs a qualitative
assessment of relevant events and circumstances to evaluate the likelihood of goodwill impairment. If it is more likely than not that
the fair value of the reporting unit is less than its carrying amount, the Company performs a quantitative analysis to determine the
fair value of the reporting unit. If the fair value is less than the carrying amount, an impairment loss is recognized in an amount equal
to the excess of the carrying value of goodwill over its implied fair value, limited to the total goodwill allocated to the reporting
unit.
The Company performed a qualitative assessment as of December 31,
2025, 2024 and 2023 to determine whether it was more likely than not that the fair value of the reporting unit was greater than the carrying
value of the reporting unit. Based on these qualitative assessments, the Company determined that the fair value of its reporting unit
was more likely than not greater than the carrying value of the reporting units. As a result, no impairment of goodwill was recorded
during any of the periods in the accompanying consolidated and combined financial statements.
The Company also annually assesses the carrying
value of its indefinite-lived intangible assets other than goodwill. The Company performed a qualitative impairment assessment of its
indefinite-lived trade name licenses. The qualitative assessment did not identify indicators of impairment, and it was determined that
more likely than not the fair value of its indefinite-lived trade name license was more than its carrying amount.
F-11
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
Revenue from Contracts with Customers
The Company earns revenue primarily from the
sale of concrete, with most revenue generated from orders under master purchase agreements or through direct sales to third-party contractors
and suppliers. Each contract typically includes a single performance obligation: the delivery of ready-mix concrete to the customer’s
job site. Control transfers and revenue is recognized at a point in time upon delivery, which is when the customer becomes obligated
to pay. The Company invoices customers at the time of delivery, and payment terms are generally 30 days.
The Company may earn additional revenue from
fuel surcharges, waiting time charges, extra stops, and other services. These items are considered variable consideration and are recognized
at the point in time the underlying performance obligation is satisfied — typically at the time of delivery — as the variability
is resolved at that time. These charges do not represent distinct performance obligations from the delivery of ready-mix concrete.
The Company does not offer rights of return or
refund to its customers. The Company had no contract assets, contract liabilities, or remaining performance obligations as of the Balance
Sheet dates presented.
Fair Value Measurements
Fair value is defined as the price that would
be received to sell an asset or paid to transfer a liability (an exit price) in an orderly transaction between market participants at
the measurement date. Fair value is based upon assumptions that market participants would use when pricing an asset or liability. The
Company uses the following fair value hierarchy, which prioritizes valuation technique inputs used to measure fair value into three broad
levels:
· Level
1: Quoted prices in active markets for identical assets and liabilities that the Company
has the ability to access at the measurement date.
· Level
2: Inputs (other than quoted prices included within Level 1) that are either directly or
indirectly observable for the asset or liability, including (i) quoted prices for similar
assets or liabilities in active markets, (ii) quoted prices for identical or similar
assets or liabilities in inactive markets, (iii) inputs other than quoted prices that
are observable for the asset or liability, and (iv) inputs that are derived from observable
market data by correlation or other means.
· Level
3: Unobservable inputs for the asset or liability including situations where there is little,
if any, market activity for the asset or liability.
The fair value hierarchy gives the highest priority
to quoted prices in active markets (Level 1) and the lowest priority to unobservable inputs (Level 3). In some cases, the inputs used
to measure fair value might fall into different levels of the fair value hierarchy. The lowest level input that is significant to a fair
value measurement determines the applicable level in the fair value hierarchy. Assessing the significance of a particular input to a
fair value measurement requires judgment, considering factors specific to the asset or liability.
F-12
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
The carrying value of the Company’s long-term
debt approximates fair value. The carrying value of the Company’s current assets and current liabilities, including accounts receivable,
inventory, accounts payable, and accrued liabilities, approximates fair value due to their short-term maturities.
Redeemable Senior Preferred and Preferred
Units (Mezzanine Equity)
The Company classifies certain equity instruments
as mezzanine equity on the Consolidated Balance Sheet when such instruments contain redemption features that are not solely within the
control of the Company or its subsidiaries. As of December 31, 2025 and 2024, the Company presented its senior preferred units and
preferred units as mezzanine equity in the Consolidated Balance Sheet.
Redeemable equity securities are initially recognized
at their fair value on the issuance date. Because both the senior preferred units and the preferred units are currently redeemable, they
are remeasured to their maximum redemption value at each reporting date.
The Company evaluates mezzanine equity instruments
at each reporting period to determine if reclassification to permanent equity or liability treatment is required.
Right of Use Assets and Lease Liabilities
At the inception of a contractual arrangement,
the Company determines whether a contract contains a lease by assessing whether the contract conveys to the Company the right to control
the use of an identified asset in exchange for consideration over a period of time. Leases are accounted for by recognizing right-of-use
assets and lease liabilities at the lease commencement date.
The Company measures and records an operating
lease liability equal to the present value of the future lease payments. The present value is calculated using the Company’s incremental
borrowing rate, unless the rate implicit in the lease is readily determinable.
The amount of the operating lease right-of-use
asset consists of: (i) the amount of the initial measurement of the operating lease liability, (ii) any lease payments made
at or before the commencement date, minus any lease incentives received, and (iii) any initial direct costs incurred. The present
value calculation may account for an option to extend or terminate the lease when it is reasonably certain that the Company will exercise
the option. A portion of the Company’s lease contracts contain the option to extend or renew. The Company assesses these options
for individual leases in determining the initial measurement of the operating lease liability.
The Company has elected not to apply the recognition
requirements of ASC 842 to short-term leases (an initial term of 12 months or less at the commencement date). The Company recognizes
lease expense in the statements of operations on a straight-line basis over the lease term.
F-13
NOTES TO CONSOLIDATED
AND COMBINED FINANCIAL STATEMENTS
Debt Issuance Costs
Costs associated with revolving loans are capitalized
and amortized over the life of the arrangement on a straight-line basis. Unamortized debt issuance costs for revolving loans are reflected
as a component of Other noncurrent assets in the Consolidated Balance Sheets. Costs associated with term loans are capitalized and amortized
over the life of the term loan using the effective interest method. Unamortized debt issuance costs for term loans are reflected as a
reduction of Long-term debt, net in the Consolidated Balance Sheets. The amortization of all debt issuance costs is reflected as a component
of Interest expense, net in the Consolidated and Combined Statements of Operations.
Business Combinations
The Company accounts for business combinations
using the acquisition method of accounting in accordance with ASC 805, Business Combinations (“ASC 805”), which requires
the Company to recognize the identifiable tangible and intangible assets acquired and liabilities assumed at their estimated fair values
as of the acquisition date, other than leases and contract assets and liabilities acquired in connection with business combinations.
The excess of the purchase consideration over the fair values of these identifiable assets and liabilities is recorded as goodwill.
Determining the fair values of assets acquired
and liabilities assumed requires judgment and often involves the use of significant estimates and assumptions. The Company engages third-party
appraisal firms when appropriate to assist in the fair value determination of assets acquired and liabilities assumed. Acquisition-related
expenses and transaction costs associated with business combinations are expensed as incurred.
Income Taxes
The Company is organized as a limited liability
company and taxed as a partnership for federal income tax purposes. As a result, income or loss are taxable or deductible to the members
rather than at the Company level. Accordingly, no provision has been made for federal income taxes in the accompanying consolidated financial
statements. In certain instances, the Company may be subject to state taxes on income arising in or derived from the state tax jurisdictions
in which it operates.
Uncertain income tax positions are evaluated
in a two-step process. The Company first determines whether it is more likely than not that a tax position will be sustained upon examination.
If a tax position meets the more likely than not threshold, the uncertain tax position is then measured to determine the amount of expense
to record in the consolidated financial statements. The tax expense recorded would be equal to the largest amount of expense related
to the outcome that is 50.0% or greater likely to occur. The Company classifies any potential accrued interest recognized on an underpayment
of income taxes as interest expense and classifies any statutory penalties recognized on a tax position taken as operating expense. As
of December 31, 2025 and 2024, the Company had no material uncertain tax positions that would require recognition or disclosure.
The Company did not incur any penalties or interest
related to its state tax returns during the year ended December 31, 2025; the Successor period of May 22, 2024 through December 31,
2024, the Predecessor period of January 1, 2024 through July 29, 2024, or the Predecessor year ended December 31, 2023.
F-14
NOTES TO CONSOLIDATED
AND COMBINED FINANCIAL STATEMENTS
Commitments and Contingencies
Liabilities for loss contingencies arising from
claims, assessments, litigation or other sources are recorded when it is probable that a liability has been incurred and the amount can
be reasonably estimated. Liabilities for environmental remediation or restoration claims resulting from allegations of improper operation
of assets are recorded when it is probable that obligations have been incurred and the amounts can be reasonably estimated.
Share-Based Compensation
The Company accounts for share-based compensation
under the fair value method of accounting. Compensation cost is measured at the grant date for equity-classified awards and is recognized
over the service period, which is generally the vesting period. The Company recognizes compensation cost on a straight-line basis over
the requisite service period for each award. To calculate fair value, the Company uses an option pricing model based on the value of
its common units on a fully diluted basis. As of December 31, 2025 and 2024, all awards outstanding were equity-classified. Share-based
compensation cost for all types of awards is included in Selling, general and administrative expenses in the Consolidated Statement of
Operations.
Note 3. Acquisitions
Thunder Acquisition
On October 17, 2025 (the “Closing
Date”), Eagle Redi-Mix Concrete, LLC, a subsidiary of the Company (“Eagle”), entered into an equity and asset purchase
and contribution agreement (the “Equity and Asset Purchase and Contribution Agreement”) with SRM, Inc., an Oklahoma
corporation (“Schwarz Ready Mix”), SRM Leasing, LLC, an Oklahoma limited liability company (“Schwarz Leasing”),
Schwarz Sand, LLC an Oklahoma limited liability company (“Schwarz Sand,” and together with Schwarz Ready Mix and Schwarz
Leasing, the “Schwarz Entities”), the equity holders of Schwarz Ready Mix and Schwarz Leasing (collectively, the “Owners”),
the equity holders of Schwarz Sand (collectively, the “Schwarz Sand Sellers”), certain other transaction beneficiaries, and
Schwarz Ready Mix, in its capacity as a representative of the selling parties.
Pursuant to the Equity and Asset Purchase and
Contribution Agreement, Eagle acquired substantially all of the assets of Schwarz Ready Mix and Schwarz Leasing and all of the issued
and outstanding equity interests of Schwarz Sand (collectively, the “Thunder Acquisition”). The aggregate purchase price
included $97.0 million in cash consideration ($74.3 million paid at closing and $22.7 million deferred until June 30,
2026) and 20,000,000 Company Preferred Units issued to the sellers as rollover equity.
The primary operations of the Schwarz Entities
consist of providing high quality concrete materials across central Oklahoma and includes 20 plants and 115 mixer trucks. The acquisition
expands the Company’s footprint in central Oklahoma, enhances its production capacity, and is expected to provide operational and
procurement synergies.
F-15
NOTES TO CONSOLIDATED
AND COMBINED FINANCIAL STATEMENTS
The Thunder Acquisition was accounted for as
a business combination. The Company, through its wholly owned subsidiary Eagle, is the accounting acquirer, as it obtained control of
the Schwarz Entities. The assets acquired and liabilities assumed are recorded at their respective fair values as of the Closing Date.
In connection with the Thunder Acquisition, the Company expensed approximately $5.1 million of transaction costs during the year ended
December 31, 2025, which is recorded within “Acquisition-related costs” in the Consolidated Statement of Operations.
In connection with the Thunder Acquisition, the
Company engaged a third-party valuation specialist to assist in determining the fair value of acquired intangible and tangible assets
as of the acquisition date. The fair value of acquired “Customer Relationships” was estimated using the income approach,
specifically the multi-period excess earnings method, which involves projecting net cash flows attributable to the asset and applying
contributory asset charges. The fair value of the “Trade Name” was determined using the income approach, specifically the
relief-from-royalty method. This method estimates the value of a trade name based on the principle of avoided costs — that
is, estimating the benefit of not having to pay a licensing fee to use the name. The valuation reflects the projected royalty savings
attributable to the continued use of the acquired trade name. The fair value of “Property, Plant and Equipment” was determined
using a combination of the cost approach and market approach, depending on the nature of the underlying assets. The cost approach was
applied to assets based on current replacement cost less depreciation, while the market approach was used for equipment types with observable
market activity.
No goodwill was recognized in connection with
the Thunder Acquisition, as the total consideration transferred approximated the fair value of the identifiable net assets acquired.
For the period from October 17, 2025 through
December 31, 2025, the Company recognized approximately $13.6 million of revenue and $0.8 million of net loss attributable to the
Schwarz Entities, which are included in the consolidated statement of operations for the year ended December 31, 2025.
Additionally, the Company recognized approximately
$0.4 million of amortization expense related to acquired customer relationships, as discussed in Note 4 — Intangible
Assets and Goodwill. This expense is included within “Selling, general and administrative expenses” in the Consolidated Statement
of Operations for the year ended December 31, 2025.
The purchase price allocation is preliminary
and may be adjusted during the measurement period in accordance with ASC 805. Preliminary amounts primarily relate to the valuation of
certain property, plant and equipment and identifiable intangible assets.
F-16
NOTES TO CONSOLIDATED
AND COMBINED FINANCIAL STATEMENTS
The consideration transferred and the fair value
of the assets acquired and liabilities assumed by the Company were as follows (in thousands):
Consideration (preliminary):
Cash paid at Closing Date
$ 74,300
Fair value of deferred payment liability
22,226
Fair value of redeemable preferred units
20,000
Closing adjustments
(1,394 )
Total consideration
$ 115,132
Preliminary fair value of assets acquired:
Cash and cash equivalents
$ 864
Accounts receivable
9,653
Prepaid expenses
206
Inventory
3,594
Property, plant and equipment
82,810
Customer relationships
16,600
Trade name
8,000
Other noncurrent
assets
490
Amount attributable
to assets acquired
$ 122,217
Preliminary fair value of liabilities assumed:
Accounts payable
$ 6,092
Current portion of lease liabilities
161
Accrued liabilities
503
Long-term lease liability
329
Amount attributable
to liabilities assumed
$ 7,085
Total identifiable
net assets acquired
$ 115,132
Unaudited Pro Forma and Supplemental Financial Information
The following unaudited pro forma consolidated
results of operations give effect to the Thunder Acquisition as if it had occurred on January 1, 2024. The pro forma results
reflect adjustments for amortization of acquired intangible assets and depreciation of property and equipment based on estimated fair
values.
F-17
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
The pro forma results exclude approximately
$5.1 million of transaction costs incurred in connection with the Thunder Acquisition during 2025, as such costs were nonrecurring,
and do not reflect any anticipated cost savings, operating synergies, or financing effects that may have resulted from the transaction.
Year
ended
December 31,
2025
Year
ended
December 31,
2024
Pro forma revenues
$ 270,302
$ 277,926
Pro forma net income (loss)
$ 12,492
$ 27,574
The unaudited pro forma financial information
is presented for informational purposes only and is not necessarily indicative of the results of operations that would have been achieved
if the acquisition had occurred on January 1, 2024, nor is it indicative of future operating results.
Fayetteville Acquisition
On May 19, 2025, Concrete Partners Holding,
LLC, through its wholly owned subsidiary Eagle Redi-Mix Concrete, LLC, acquired certain operating assets of a ready-mix facility in the
Fayetteville/Greenland, Arkansas area for $5.5 million, funded with cash on hand. The purchase included land, building/plant, and ready-mix
equipment. No liabilities were assumed, and no legal entity was acquired. The acquired assets are being depreciated under the Company’s
existing useful-life policies beginning on the acquisition date.
Concrete Acquisition
On the Closing Date, Concrete Holdings entered
into a Membership Interest Purchase Agreement (the “MIPA”) to acquire 6,000 units of membership interests in Eagle and 10,000
units of membership interests in Ram from the original equity members in those entities (the “Sellers”). Concurrently, the
Sellers and Concrete Holdings entered into a Rollover Subscription Agreement (the “Rollover Agreement”) for which certain
Sellers received equity membership interest in Concrete Holdings in exchange for 4,000 units of membership interest in Eagle (“Rollover
Transaction”). Following these transactions, Concrete Holdings owns 100.0% of the outstanding membership interests in Eagle and
Ram through wholly owned subsidiaries.
The primary operations of Eagle and Ram consist
of providing high quality concrete materials across the Oklahoma and Northwest Arkansas regions.
Total consideration paid to the Sellers was $253.0
million, after closing and post-closing adjustments, for the Concrete Acquisition. The consideration paid to the Sellers consisted of
(i) $189.2 million of cash, (ii) $26.0 million of Senior Preferred Units (“Senior Preferred Units”), (iii) $26.6
million of Preferred (“Preferred Units”), and (iv) $11.2 million of Common Units (“Common Units”), each
based on their estimated fair value. In addition, the Company assumed current liabilities of $10.3 million and lease liabilities of $0.9
million, all based upon estimated fair value at July 29, 2024.
F-18
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
The Concrete Acquisition was accounted for as
a business combination. The assets acquired and liabilities assumed are recorded at their respective fair values as of the Closing Date.
In connection with the Concrete Acquisition, the Company expensed approximately $7.4 million of transaction costs in the Successor period,
these costs were recorded within Acquisition-related costs in the Consolidated Statement of Operations.
In connection with the Concrete Acquisition,
the Company engaged a third-party valuation specialist to assist in determining the fair value of acquired intangible and tangible assets
as of the acquisition date. The fair value of acquired Customer Relationships was estimated using the income approach, specifically the
multi-period excess earnings method, which involves projecting net cash flows attributable to the asset and applying contributory asset
charges. The fair value of the Trade Name was determined using the income approach, specifically the relief-from-royalty method. This
method estimates the value of a trade name based on the principle of avoided costs — that is, estimating the benefit of not having
to pay a licensing fee to use the name. The valuation reflects the projected royalty savings attributable to the continued use of the
acquired trade name. The fair value of Property, Plant and Equipment was determined using a combination of the cost approach and market
approach, depending on the nature of the underlying assets. The cost approach was applied to assets based on current replacement cost
less depreciation, while the market approach was used for equipment types with observable market activity.
Goodwill of approximately $79.5 million was recognized
in connection with the Concrete Acquisition. The goodwill reflects the value of expected synergies from combining operations, the assembled
workforce, and opportunities for expansion in the Oklahoma and Northwest Arkansas markets. None of the goodwill is expected to be deductible
for tax purposes.
F-19
NOTES TO CONSOLIDATED
AND COMBINED FINANCIAL STATEMENTS
The consideration transferred and the fair value of the assets acquired
and liabilities assumed by the Company were as follows (in thousands):
Consideration:
Cash
$ 189,215
Common units
11,218
Preferred units
26,582
Senior preferred units
26,000
Total consideration
$ 253,015
Fair value of assets acquired:
Cash and cash equivalents
$ 4,305
Accounts receivable — trade
24,955
Accounts receivable — other
20
Prepaid expenses
1,152
Inventory
5,257
Property, plant and equipment
66,981
Customer relationships
64,300
Trade name
16,800
Goodwill
79,505
Right-of-use assets
873
Amounts attributable
to assets acquired
$ 264,148
Fair value of liabilities assumed:
Accounts payable — trade
$ 6,416
Accrued liabilities
3,844
Lease liabilities
873
Amounts attributable
to liabilities assumed
$ 11,133
Total identifiable
net assets
$ 253,015
F-20
NOTES TO CONSOLIDATED
AND COMBINED FINANCIAL STATEMENTS
Unaudited Pro Forma and Supplemental Financial Information
The following unaudited pro forma consolidated
results of operations give effect to the Concrete Acquisition as if it had occurred on January 1, 2023. The pro forma results reflect
adjustments for amortization of acquired intangible assets and depreciation of property and equipment based on estimated fair values.
The
pro forma results exclude approximately $7.4 million of transaction costs incurred in connection with the Concrete Acquisition during
2024, as such costs were nonrecurring, and do not reflect any anticipated cost savings, operating
synergies, or financing effects that may have resulted from the transaction.
Year
ended
December 31, 2024
Year
ended
December 31, 2023
Pro forma revenues
$ 183,311
$ 144,279
Pro forma net income
$ 24,423
$ 26,974
The unaudited pro forma financial information
is presented for informational purposes only and is not necessarily indicative of the results of operations that would have been achieved
if the acquisition had occurred on January 1, 2023, nor is it indicative of future operating results.
SMG Acquisition
On January 5, 2024 Eagle entered into an
Asset Purchase Agreement (the “APA”) and Real Estate Purchase Agreement (“RE Agreement”) with Standard Materials
Group, Inc. (“Standard Materials” or “SMG”) and CRH Americas Materials, Inc. (“CRH”). Collectively,
the APA and the RE Agreement are referred to as “SMG Acquisition”.
Standard Materials owned and operated a ready-mix
concrete business throughout several counties in the state of Oklahoma and Eagle acquired substantially all of its assets.
Total consideration for the SMG Acquisition was
$13.9 million, after closing and post-closing adjustments. The consideration paid consisted entirely of cash. In addition, Eagle assumed
lease liabilities of approximately $0.2 million, based upon estimated fair value on January 5, 2024.
The SMG Acquisition was accounted for as a business
combination. The assets acquired and liabilities assumed are recorded at their respective fair values as of the closing date. Transaction
costs of approximately $17,300 were expensed as incurred.
F-21
NOTES TO CONSOLIDATED
AND COMBINED FINANCIAL STATEMENTS
The consideration transferred and the fair value of the assets acquired
and liabilities assumed were as follows (in thousands):
Consideration:
Cash
$ 13,872
Total consideration
$ 13,872
Fair value of assets acquired:
Inventory
$ 475
Property, plant and equipment
13,070
Goodwill
327
Right-of-use assets
173
Amounts attributable
to assets acquired
$ 14,045
Fair value of liabilities assumed:
Lease liabilities
$ 173
Amounts attributable
to liabilities assumed
$ 173
Total identifiable
net assets
$ 13,872
F-22
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
Note 4. Intangible Assets and Goodwill
The Company’s intangible assets primarily
consist of customer relationships and trade names acquired in the Concrete Acquisition on July 29, 2024 and the Thunder Acquisition
on October 17, 2025. Customer relationships are amortized on a straight-line basis over their estimated useful lives. Trade names
are considered indefinite-lived intangible assets, are not subject to amortization, and are tested for impairment annually, or more frequently
if facts or circumstances indicate a potential impairment.
The Company’s intangible assets consist
of the following at the dates indicated (in thousands):
December 31,
2025
2024
Customer Relationships
Gross carrying amount
$ 80,900
$ 64,300
Accumulated amortization
(9,527 )
(2,664 )
Net carrying amount
$ 71,373
$ 61,636
Trade Names
Gross carrying amount
$ 24,800
$ 16,800
Amortization expense of customer relationships
for the year ended December 31, 2025 was $6.8 million and $2.7 million for the Successor period May 22, 2024 through December 31,
2024 and is included within Selling, general and administrative expenses in the Consolidated Statement of Operations. No amortization
expense of customer relationships was recorded for the Predecessor periods from January 1, 2024 through July 29, 2024 or the
year ended December 31, 2023. Customer relationships have a weighted-average remaining useful life of 8.4 years. Trade names are
not subject to amortization.
F-23
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
The following table summarizes expected amortization
of customer relationships as of December 31, 2025 (in thousands):
Year Ending December 31,
2026
$ 8,505
2027
8,505
2028
8,505
2029
8,505
2030
8,505
Thereafter
28,848
Total
$ 71,373
Goodwill
As of December 31, 2025, goodwill totaled
$79.5 million, unchanged from December 31, 2024. Goodwill reflects the value of expected synergies from combining operations, the
assembled workforce, and opportunities for expansion in the Oklahoma and Northwest Arkansas markets. Goodwill is not amortized but is
tested for impairment annually, or more frequently if events or circumstances indicate that an interim impairment test is necessary.
Note 5. Inventories
Inventories consisted of the following at the
dates indicated (in thousands):
December 31,
2025
2024
Raw materials
$ 6,260
$ 2,863
Parts and supplies
2,198
1,934
Fuel
265
210
Inventory
$ 8,723
$ 5,007
F-24
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
Note 6. Other Current Assets
Other current assets consisted of the following
at the dates indicated (in thousands):
December 31,
2025
2024
Deferred offering costs
$ 2,733
$ —
Prepaid insurance
1,477
732
Other prepaids and deposits
406
296
Other
431
213
Other current assets
$ 5,047
$ 1,241
Note 7. Property, Plant and Equipment
Property, plant and equipment consisted of the
following at the dates indicated (in thousands):
December 31,
2025
2024
Buildings
$ 6,865
$ 6,411
Land
47,242
3,204
Plant and equipment
104,816
55,913
Vehicles
4,186
2,651
Other property and equipment
5,658
2,786
Gross property, plant and equipment
168,767
70,965
Accumulated depreciation
(15,930 )
(4,072 )
Property, plant and equipment, net
$ 152,837
$ 66,893
F-25
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
Depreciation expense is included within Cost
of goods sold and Selling, general and administrative expenses in the Consolidated and Combined Statements of Operations. The following
table presents the functional allocation for each period presented (in thousands):
Successor
Predecessor
Year ended December 31, 2025
Period from Inception (May 22, 2024) through December 31, 2024
Period from January 1, 2024 through
July 29, 2024
Year ended December 31, 2023
Cost of goods sold
$ 11,024
$ 3,694
$ 4,304
$ 5,405
Selling, general,
and administrative expenses
1,149
382
523
682
Total depreciation
$ 12,173
$ 4,076
$ 4,827
$ 6,087
Note 8. Debt
Long-term debt, net
The following table presents the outstanding
debt and related expenses of the Company (in thousands):
December 31,
2025
2024
Term Loan
$ 194,313
$ 126,750
Revolving Loan
3,000
4,200
Equipment Loan
4,823
—
Total debt, including current portion, net
202,136
130,950
Less: long-term debt, current portion
(13,654 )
(6,500 )
Long-term debt
188,482
124,450
Less: debt issuance costs (1)
(1,857 )
(1,965 )
Long-term debt, net
$ 186,625
$ 122,485
(1) Unamortized debt issuance costs related
to the Revolving Loan $0.3 million and $0.2 million as of December 31, 2025 and December 31,
2024, respectively, are included in "Other noncurrent assets, net" on the Consolidated
Balance Sheets.
F-26
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
Debt maturities as of December 31, 2025, excluding debt issuance
costs, are as follows (in thousands):
2026
13,654
2027
18,837
2028
21,460
2029
147,089
2030
1,096
Total
$ 202,136
On July 29, 2024, the Company entered into
a credit agreement (the “Credit Agreement”) with a syndicate of banks, for which Bank of America, N.A. serves as administrative
agent, to provide a term loan, a revolving loan and letters of credit. The syndicated structure allows the Company to access a broader
base of lenders and provides additional liquidity and flexibility.
On October 17, 2025 the Company entered
into the First Amendment and Commitment Increase to its Credit Agreement (“First Amendment”). The First Amendment, among
other things, (i) increased the Company’s existing Revolving Loan by $10.0 million, (ii) increased the existing Term
Loan by $75.0 million, (iii) permitted the Thunder Acquisition, and (iv) added Schwarz Sand as a Guarantor under the Credit
Agreement.
Term Loan
The Company entered into a five-year $130.0 million
term loan agreement (“Term Loan”) on July 29, 2024. Proceeds from the Term Loan were used to partially fund the Concrete
Acquisitions. The Term Loan is secured by a first lien on substantially all personal property assets (“Collateral”) and the
Lenders have the right in the future to request liens on any real property with an appraised value in excess of $2.0 million (“Material
Real Property”). The Term Loan matures on July 29, 2029, at which time all advances are required to be paid in full. Interest
accrues at the Secured Overnight Financing Rate (“SOFR”) plus an applicable margin ranging from 2.75% to 3.50%, which was
7.3% and 7.7% as of December 31, 2025 and 2024.
On October 17, 2025, the Company entered
into the First Amendment to its Credit Agreement which increased the Term Loan by $75.0 million. The Company utilized the borrowings
on the Term Loan to fund the cash portion of the Thunder Acquisition. As of December 31, 2025, the Company had $194.3 million outstanding
on the Term Loan. See Note 3 for additional discussion of the Company’s acquisition activity.
Principal payments are due on the last day of
each calendar quarter, as set forth below (in thousands):
December 31, 2025 through June 30, 2026
$ 2,563
September 30, 2026 through June 30, 2027
$ 3,844
September 30, 2027 and thereafter
$ 5,125
F-27
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
Revolving Loan
The Company entered into a revolving loan agreement
(“Revolving Loan”) on July 29, 2024, with a commitment and borrowing base of $15.0 million. The Revolving Loan is secured
against a first lien on substantially all assets, including property, plant and equipment. On October 17, 2025, the Company entered
into the First Amendment to its Credit Agreement which increased the Revolving Loan by $10.0 million for a total commitment and borrowing
base of $25.0 million. Balances outstanding under the Revolving Loan bear interest at the SOFR plus an applicable margin ranging from
2.75% to 3.50%, which was 7.4% and 7.7% as of December 31, 2025 and 2024, respectively. Principal and any accrued interest is due
at maturity on July 29, 2029. At December 31, 2025, the Company had $3.0 million of borrowings outstanding under the Revolving
Loan. In addition, a letter of credit in the amount of $0.5 million was outstanding, reducing the available borrowing capacity to $21.5
million. The letter of credit supports insurance-related obligations but does not require the posting of cash collateral. Accordingly,
no restricted cash balance was recorded on the Consolidated Balance Sheet.
Covenants
The Credit Agreement includes customary affirmative
and negative covenants that restrict the Company’s ability to, among other things, incur additional indebtedness, create liens,
make certain investments, pay dividends, and enter into sale-leaseback transactions, subject to customary exceptions. In addition, the
agreement contains financial covenants, including a Consolidated Senior Leverage Ratio that must not exceed a specified threshold and
a Fixed Charge Coverage Ratio that must exceed a specified minimum threshold. Both financial covenants are tested as of the end of each
fiscal quarter. The Company was in compliance with all applicable financial and non-financial covenants as of December 31, 2025
and 2024.
Equipment Notes
On December 30, 2025, we entered into an
equipment financing facility (“Master Equipment Loan Agreement”) with Eagle Redi-Mix Concrete, LLC, Ram Transportation, LLC
and Concrete Partners, LLC as co-borrowers which will provide for equipment to be financed pursuant to terms to be agreed upon and evidenced
by promissory notes (“Equipment Notes”) to be entered into in the ordinary course of business on customary market terms.
The Equipment Notes will be secured by the financed equipment.
Equipment Loan
The Company entered into a five-year $4.8 million
equipment security note (“Equipment Loan”) on December 30, 2025. Proceeds from the Equipment Loan were used to purchase
concrete mixer equipment. The Equipment Loan is a part of the Master Equipment Loan Agreement that permits multiple equipment notes.
As of December 31, 2025, the Company had $4.8 million outstanding on the Equipment Loan. The Equipment Loan bears interest at 6.6226%
per annum and matures on December 31, 2030.
F-28
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
Predecessor Loans
On April 8, 2022, Eagle and Ram entered
into loan agreements that established a revolving credit facility with a commitment and borrowing base of $2.0 million and five term
loans totaling $31.8 million (“Predecessor Loans”). The Predecessor Loans were secured against a first lien on substantially
all assets, including property, plant and equipment. The Predecessor Loans had varying maturity dates ranging from one year to ten years,
at which time all advances were required to be paid in full. Interest accrued on the Prosperity Loans at a fixed rate of 3.7% and monthly
payments of principal and interest were required until the maturity date of each loan. The Predecessor Loans were fully repaid upon consummation
of the Concrete Acquisition on July 29, 2024.
Amortization of Debt Issuance Costs
At December 31, 2025 and 2024, the Company
had total unamortized debt issuance costs of $2.1 million and $2.2 million, respectively, consisting of $1.9 million and $2.0 million
associated with the Term Loan and $0.3 million and $0.2 million associated with the Revolving Loan. Amortization expense related to debt
issuance costs was approximately $0.6 million for the year ended December 31, 2025 (Successor) and $0.3 million for the period from
May 22, 2024 through December 31, 2024 (Successor). No amortization expense was recognized during the Predecessor periods from
January 1, 2024 through July 29, 2024 or the year ended December 31, 2023, as the related debt facilities were entered
into in connection with the Concrete Acquisition on July 29, 2024.
Future estimated amortization expense for the
remaining unamortized debt issuance costs is as follows (in thousands):
2026
660
2027
572
2028
564
2029
330
Total
$ 2,126
Note 9. Redeemable Senior Preferred and Preferred Units (Mezzanine
Equity)
Redeemable Senior Preferred Units
On the Closing Date, the Company issued membership
interests in it to the original equity members Eagle and Ram in exchange for 4,000 units of membership interest in Eagle in the form
of a capital contribution. As part of the Rollover Subscription Agreement, 26.0 million Senior Preferred Units were issued at their estimated
fair value of $26.0 million.
The key terms of the Senior Preferred Units are
outlined in the Company’s limited liability company agreement (the “Concrete LLCA”), as amended from time to time.
The Senior Preferred Units rank senior to (i) the Preferred Units, and (ii) all common units, and rank junior only to the satisfaction
of all indebtedness upon the liquidation, dissolution, or winding up of the Company. The Senior Preferred Units are entitled to voting
rights, as provided in the Concrete LLCA.
F-29
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
The Senior Preferred Units accrue distributions
on a cumulative basis, at an annual rate equal to nine percent (9.0%) of the Unreturned Senior Preferred Contributions as defined in
the Concrete LLCA, compounding quarterly. If the Unreturned Senior Preferred Contributions have not been reduced to zero before the sixth
anniversary of the Effective Date, then the annual rate shall increase by one-half percent (0.5%) each calendar quarter, up to a maximum
annual rate of fifteen percent (15.0%). After all Unreturned Senior Preferred Contributions and all accrued distributions have been paid
with respect to a Senior Preferred Unit, such Senior Preferred Unit shall automatically be cancelled. Pursuant to the consummation of
an Initial Public Offering (“IPO”) or other transaction in which the Company’s equity securities become publicly traded,
including a SPAC merger, the Board of Directors may reclassify the Senior Preferred Units into equity securities of the public entity
or other reclassified securities, provided each member has substantially similar economic interest, governance, priority, vesting and
other rights and privileges as such member had prior to the IPO as stated in the Concrete LLCA.
The Company presented and accounted for the Senior
Preferred Units as mezzanine equity at their issuance date fair value of $26.0 million. The Senior Preferred Units are classified in
mezzanine equity because the decision to redeem the Senior Preferred Units is effectively within control of the Preferred Unitholders
rather than the Company. The Preferred Unitholders control the Parent and the Board of Directors of the Company and are responsible for
approving distributions that will ultimately cancel the Senior Preferred Units.
The Senior Preferred Units are classified as
mezzanine equity in accordance with ASC 480-10-S99-3A, as redemption is effectively controlled by the holders through their control of
the Company’s Board. As of December 31, 2025, the Senior Preferred Units were carried at a redemption value of $26.6 million,
consistent with the redemption value as of December 31, 2024, after reflecting cumulative accretion of approximately $2.3 million
and paid distributions of approximately $2.3 million.
Redeemable Preferred Units
On the Closing Date, as part of the Rollover
Subscription Agreement, the Company issued 95.7 million Preferred and Common Units for a combined fair value of $95.7 million.
On October 17, 2025, as a part of the Thunder
Acquisition, the Company issued 20.0 million Preferred Units issued to the sellers as rollover equity, with the fair value of the Preferred
Units valued at $20.0 million.
F-30
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
Below is a summary of the unit issuances and
related fair values as of the Closing Date (in thousands):
Number of Units Issued
Fair Value at Closing Date
Preferred
Common
Preferred
Common
Combined
Issued for cash
57,900
57,900
$ 40,718
$ 17,182
$ 57,900
Issued in Concrete Acquisition
37,800
37,800
26,582
11,218
37,800
Issued in Thunder Acquisition
20,000
—
20,000
—
20,000
Total
115,700
95,700
$ 87,300
$ 28,400
$ 115,700
The Preferred Units rank senior to all common
units, but rank junior to the Senior Preferred Units and to the satisfaction of all indebtedness upon the liquidation, dissolution, or
winding up of the Company. The Preferred Units are entitled to voting rights, as provided in the Concrete LLCA.
The Preferred Units accrue distributions on a
cumulative basis, at an annual rate equal to ten percent (10.0%) of the Unreturned Preferred Contributions, compounding quarterly. Payment
of distributions other than those pursuant to the Concrete LLCA are not mandatory and are subject to the approval of both the Parent
and the Board of Directors. No distributions will be made on the Preferred Units until accrued distributions on the Senior Preferred
Units and the Unreturned Senior Preferred Contributions have been paid in full. After all Unreturned Preferred Contributions and all
accrued distributions have been paid with respect to a Preferred Unit, such Preferred Unit shall automatically be cancelled.
Pursuant to the consummation of an IPO, the Board
of Directors may exchange the Preferred and Common Units provided each member has substantially similar economic interest, governance,
priority, vesting and other rights and privileges as such members had prior to the IPO as stated in the Concrete LLCA.
The Company presented and accounted for the Preferred
Units as mezzanine equity at their issuance date fair value of $87.3 million. The Preferred Units are classified in mezzanine equity
because the Preferred Unitholders control the decision to redeem the Preferred Units rather than the Company. The Preferred Unitholders
control the Parent and the Board of Directors of the Company and are responsible for approving distributions that will cancel the Senior
Preferred Units and then the Preferred Units.
The Preferred Units are also classified as mezzanine
equity. As of December 31, 2025, the Preferred Units were carried at a redemption value of $130.6 million, reflecting $20.0 million
issuance of preferred units and cumulative accretion of $10.8 million during the year ended December 31, 2025, compared to a redemption
value of $99.8 million as of December 31, 2024.
Note 10. Common Units
As of December 31, 2024, the Company has
95.7 million Common Units outstanding. The Common Units were issued on July 29, 2024, for cash and in conjunction with Concrete
Acquisition, with an aggregate estimated fair value of $28.4 million at issuance.
F-31
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
The Common Units rank junior to both the Senior
Preferred Units and the Preferred Units with respect to distributions and liquidation preference. No distributions (including liquidating
distributions) may be made to Common Unit holders until the Senior Preferred and Preferred Units have been fully redeemed. Thereafter,
distributions may be made pro rata to Common Unit holders based on their percentage ownership, subject to the approval of the Board of
Directors.
There were no changes to the number of Common
Units outstanding, or to their rights and privileges, during the year ended December 31, 2025.
Note 11. Share-Based Compensation
On December 9, 2024, the Company established
an equity participation program (the "Plan") to attract, retain, and incentivize employees. Under the Plan, the Company authorized
the issuance of 16,888,235 nonvoting common units ("Incentive Units"). The Incentive Units vest over a five-year period, with
33% vesting on the third anniversary of the grant date, 33% vesting on the fourth anniversary, and the remaining 34% vesting on the fifth
anniversary. The Incentive Units are classified as equity awards under ASC 718, Stock Compensation, and are measured at fair value
on the grant date, with compensation expense recognized over the requisite service period.
During the year ended December 31, 2025,
the Company granted 1,125,882 incentive units to employees under the Plan. The total number of nonvested Incentive Units outstanding
increased to 17,451,176 as of December 31, 2025. The fair value of these grants was determined based on the Company’s most
recent independent valuation as of December 31, 2024, as there were no material changes to the Company’s operations, capital
structure, or exit strategy during the quarter. The Company applied a forfeiture rate of zero at the grant date, in line with its policy
of recognizing forfeitures as they occur.
Share-based compensation expense recognized during
the year ended December 31, 2025 and the period from May 22, 2024, through December 31, 2024 was approximately $0.5 million
and $0.1 million, respectively, and is included in Selling, general, and administrative expenses within the Consolidated Statement of
Operations. As of December 31, 2025 and 2024, the Company had approximately $2.2 million and $2.6 million, respectively, of unrecognized
compensation cost related to the outstanding Incentive Units, which will be recognized over the remaining requisite service periods through
2029 on a straight-line basis. No share-based compensation expense was recognized in the Predecessor periods as the Predecessor did not
have any share-based compensation.
F-32
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
The following table summarizes Incentive Unit
activity from May 22, 2024 (inception), through December 31, 2025:
Number of
Incentive Units
(in thousands)
Weighted Average
Grant Date
Fair
Value
Non-vested at May 22, 2024
—
$ —
Granted
16,325
0.16
Forfeited
—
—
Vested
—
—
Non-vested at December 31, 2024
16,325
0.16
Granted
1,126
0.16
Forfeited
—
—
Vested
—
—
Non-vested at December 31, 2025
17,451
$ 0.16
The grant date fair value of the Incentive Units
was determined using an option pricing model, based on the value of the Company’s common units on a fully diluted basis. Significant
assumptions used in this option pricing model include total equity value, expected term, expected volatility, expected distribution yield,
and the risk-free interest rate. The total equity value was implied by the Concrete Acquisition in July 2024. The expected volatility
was derived from a blended rate based upon implied volatility calculated on actively traded options and upon the historical volatility
of guideline public companies in an industry similar to the Company. The expected term was based upon management’s best estimate
of the number of years until the redemption of the Senior Preferred Units and the Preferred Units. The risk-free interest rate was based
on U.S. Treasury yield curve rates with maturities consistent with the measurement period. The assumptions used in the option pricing
model for the Incentive Units granted in the period from May 22, 2024 through December 31, 2024, were as follows:
Expected term (in years)
1.3
Expected volatility
70.0 %
Expected distribution yield
0.0 %
Risk-free interest rate
4.1 %
F-33
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
Note 12. Revenue
The Company generates revenue primarily through
the production and delivery of ready-mix concrete. Revenue is recognized at a point in time when control of the product is transferred
to the customer, which generally occurs upon delivery to the job site. Revenue from admixture and other ancillary services, which primarily
represent additives to enhance the performance of concrete mixes (e.g., cooling services in hot weather), is also recognized at a point
in time when the services are provided.
Management monitors revenue by type of construction
activity, which reflects differences in demand cycles and pricing dynamics. All revenue is recognized at a point in time upon delivery.
The following table presents revenue by type
of construction activity for the periods indicated (in thousands):
Successor
Predecessor
Year ended December 31, 2025
Period from Inception (May 22, 2024) through December 31, 2024
Period from January 1, 2024 through
July 29, 2024
Year ended December 31, 2023
Commercial
$ 91,981
$ 40,137
$ 51,565
$ 69,812
Residential
71,552
29,309
39,530
57,856
Infrastructure
30,718
10,204
12,566
16,611
Other (1)
620
—
—
—
Total Revenue
$ 194,871
$ 79,650
$ 103,661
$ 144,279
(1) Other
revenue includes income from various non-core activities that support our concrete revenue
streams.
No customer accounted for more than 10% of total
revenues during the successor period for the year ended December 31, 2025, the Successor period from May 22, 2024 through December 31,
2024, the Predecessor period from January 1, 2024 through July 29, 2024 or the year ended December 31, 2023.
F-34
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
Note 13. Accrued Liabilities
Accrued liabilities consisted of the following
at the dates indicated (in thousands):
December 31,
2025
2024
Deferred acquisition payments (1)
$ 22,532
$ —
Accrued payroll and benefits
661
1,384
Accrued sales tax
1,396
915
Other accruals
2,491
745
Accrued liabilities
$ 27,080
$ 3,044
(1) Amounts
represent the fair value of deferred acquisition payments at the acquisition date, adjusted
for subsequent accretion. See Note 3 for additional information on the Company’s acquisitions.
Note 14. Retirement Savings Plan
The Company has a Retirement Savings Plan (“RSP”),
which is a defined contribution plan. The Company matches a portion of employees’ contributions in cash. Participation in the RSP
is voluntary and all employees of the Company are eligible to participate. The Company matches employee contributions at $0.50 per dollar
contributed, up to six percent of an employee’s pre-tax earnings, subject to the maximum Internal Revenue Service (“IRS”)
limit.
For the year ended December 31, 2025, the
Company contributed approximately $0.4 million to the RSP. During the Successor period May 22, 2024 through December 31, 2024,
the Predecessor period January 1, 2024 through July 29, 2024, and the Predecessor year ended December 31, 2023, the Company
made aggregate contributions to the RSP of approximately $0.1 million, $0.1 million, and $0.2 million, respectively. Contributions for
all periods were recorded within Selling, general, and administrative expenses in the Consolidated and Combined Statements of Operations.
Note 15. Commitments and Contingencies
The Company is subject to legal proceedings and
claims that arise in the normal course of business, including commercial disputes and regulatory compliance matters. While the outcome
of such matters cannot be predicted with certainty, the Company does not believe that any such proceedings will have a material effect
on its financial condition, results of operations, or cash flows.
The Company’s insurer is providing defense
under its liability policy for a legal matter related to a 2021 vehicle accident involving one of its trucks. Based on advice of counsel,
management believes an unfavorable outcome is reasonably possible but not probable, and that any potential loss, net of insurance, would
not be material to the consolidated financial statements.
F-35
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
The Company is party to a long-term supply
agreement requiring the purchase of minimum annual quantities of cement, rock, and sand at market prices through December 31,
2028. The agreement includes a true-up clause for shortfalls, which may be fulfilled in future periods or settled in cash. The
Company expects to meet its future obligations in the normal course of business. There were no material changes to the agreement or
its terms during the year ended December 31, 2025. During the year ended December 31, 2025, the Company purchased
approximately $26.4 million under the agreement. During the Successor period from inception (May 22, 2024) through
December 31, 2024 and the Predecessor period from January 1, 2024 through July 29, 2024, the Company purchased
approximately $11.5 million and $14.9 million, respectively.
As of December 31, 2025, the Company cannot
reasonably estimate the aggregate future purchase commitment in dollar terms due to variable pricing and volume fluctuations. The Company
expects to fulfill its purchase obligations in the normal course of operations.
For the year ended December 31, 2025, purchases
from three vendors individually exceeded 10% of total cost of goods sold and also represented more than 10% of total accounts payable
as of that date. During the Successor period from May 22, 2024 through December 31, 2024 and the Predecessor period from January 1,
2024 through July 29, 2024, the Company made purchases from three vendors that each individually represented more than 10% of total
cost of goods sold in each period. As of each respective period-end date, these same vendors also individually accounted for more than
10% of total accounts payable. For the year ended December 31, 2023, purchases from two vendors individually exceeded 10% of total
cost of goods sold and also represented more than 10% of total accounts payable as of that date. These vendors primarily supply cement,
aggregates, and other raw materials used in the Company’s ready-mix operations. The loss of any of these key suppliers could adversely
impact near-term operations; however, alternative sources of supply are available.
Note 16. Leases
The Company leases certain buildings and equipment
under operating lease arrangements. Right-of-use (“ROU”) assets and related lease liabilities are recognized on the Balance
Sheet at the lease commencement date based on the present value of future lease payments. The Company uses its incremental borrowing
rate at the lease commencement date to calculate the present value of future lease payments, consistent with the requirements of ASC
842. The Company has also elected the short-term lease practical expedient for leases with terms of 12 months or less.
As of December 31, 2025 and 2024, the Company
recognized operating lease ROU assets of approximately $2.1 million and $0.7 million, respectively, which are included in Other noncurrent
assets on the Consolidated Balance Sheets. The corresponding lease liabilities are included in Current portion of lease liabilities and
Long-term lease liability on the Consolidated Balance Sheet.
On March 1, 2025, the Company entered into
a new operating lease agreement with a related party for corporate office space for Eagle and Ram, resulting in the recognition of approximately
$1.5 million in right-of-use assets and corresponding lease liabilities. The lease has a stated term through 2035. See Note 18 for additional
discussion of related party activity.
F-36
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
See Note 21 for additional discussion of the
Company’s lease activity subsequent to December 31, 2025.
The following table presents the Company’s total lease cost
(in thousands):
Successor
Predecessor
Year ended December 31, 2025
Period from Inception (May 22, 2024) through December 31, 2024
Period from January 1, 2024 through
July 29, 2024
Year ended December 31, 2023
Operating lease costs
$ 371
$ 138
$ 128
$ 304
Short-term lease costs
$ 381
$ 78
$ 226
$ 103
Operating lease costs and short-term lease costs
are primarily included in Selling, general and administrative expenses with an immaterial amount included in Cost of goods sold in the
Consolidated and Combined Statements of Operations.
The following table presents the Company’s
additional lease information (amounts in thousands):
Successor
Predecessor
Year ended December 31, 2025
Period from Inception (May 22, 2024) through December 31, 2024
Period from January 1, 2024 through
July 29, 2024
Year ended December 31, 2023
Cash outflows for operating lease liabilities
$ 457
$ 181
$ 139
$ 315
Weighted-average remaining lease term (years)
6.68
2.35
2.83
3.54
Weighted-average discount rate
8.00 %
8.95 %
3.65 %
3.65 %
F-37
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
The following table presents the Company’s maturity analysis
as of December 31, 2025 for leases expiring in each of the next five years and thereafter (in thousands):
2026
$ 634
2027
479
2028
362
2029
209
2030
215
Thereafter
970
Total lease payments
$ 2,869
Less: lease payments representing interest
(667 )
Present value of lease liabilities
$ 2,202
Note 17. Segment Reporting
The Company generates revenue primarily through
the production and delivery of ready-mix concrete for use in infrastructure, commercial, and residential construction projects in Oklahoma
and Northwest Arkansas.
The Company’s Chief Executive Officer has
been identified as the chief operating decision maker (“CODM”). Management has determined that the Company operates as one
reportable segment—Concrete Sales.
The CODM uses Net income as the primary measure
of profitability. In evaluating results, the CODM also regularly reviews certain significant expense categories, including cost of sales,
plant and delivery expenses, and fixed expenses (e.g., G&A, dispatch, depreciation). Cost of sales primarily reflects direct material
costs. Plant and delivery expenses reflect labor, fuel, and maintenance associated with production and delivery activities. Fixed expenses
include overhead and other indirect costs allocated to operations. Cost of sales is a subset of Cost of goods sold, while plant and delivery
expenses and fixed expenses are internal categories that include amounts classified within both Cost of goods sold and Selling, general
and administrative expenses in the Consolidated and Combined Statements of Operations. Segment assets are not regularly reviewed by the
CODM. As the Company has one reportable segment, total segment assets are equivalent to consolidated/combined total assets as presented
in the accompanying Consolidated Balance Sheets.
F-38
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
The table below presents consolidated revenue, the significant expense
categories reviewed by the CODM, and Net income (in thousands):
Successor
Predecessor
Year ended December 31, 2025
Period from Inception (May 22, 2024) through December 31, 2024
Period from January 1, 2024 through
July 29, 2024
Year ended December 31, 2023
Revenue
$ 194,871
$ 79,650
$ 103,661
$ 144,279
Less:
Cost of sales
(87,750 )
(36,755 )
(48,000 )
(68,780 )
Plant & delivery expenses
(40,270 )
(14,984 )
(19,578 )
(29,567 )
Fixed expenses
(44,564 )
(14,171 )
(15,619 )
(18,957 )
Corporate and unallocated (1)
(20,312 )
(12,661 )
—
—
Net income
$ 1,975
$ 1,079
$ 20,464
$ 26,975
(1) Corporate
and unallocated reflects holding company and financing activity. For the year ended December 31,
2025, it included approximately $12.0 million of interest expense, $0.5 million of share-based
compensation expense, approximately $6.7 million of transaction costs, and approximately
$1.8 million related to professional service fees and other general corporate and financing-related
expenses incurred during the period. For the period from inception (May 22, 2024) through
December 31, 2024, it included approximately $5.2 million of interest expense and $7.4
million of transaction costs related to acquisition activities.
F-39
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
Note 18. Supplemental Cash Flow Information
The following table provides certain supplemental
cash flow information for the periods indicated (in thousands):
Successor
Predecessor
Year ended
December 31,
2025
Period from
Inception
(May 22, 2024)
through
December 31,
2024
Period from
January 1, 2024
through
July 29, 2024
Year ended
December 31,
2023
Supplemental Disclosure of Cash Flow Information:
Interest paid
$ 10,982
$ 4,906
$ 925
$ 985
Supplemental Disclosure of Non-Cash Investing Information:
Right-of-use assets obtained in exchange for operating lease liabilities (1)
1,968
$ —
—
—
Additions to property, plant and equipment included in accounts payable and accrued liabilities
—
$ 97
342
12
Issuance of senior preferred units in business combination (2)(3)
—
$ 26,000
—
—
Issuance of preferred and common units in business combination (2)(3)
20,000
$ 37,800
—
—
(1) See
Note 16 for additional discussion of the Company’s leases.
(2) See
Note 3 for additional discussion of the Company’s acquisitions.
(3) See
Notes 3 and 9 for additional discussion of the Company’s preferred and common unit
activity.
F-40
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
Note 19. Related Party Transactions
The Company leases its Northwest Arkansas office
from an entity partially owned by one of its executive officers. The lease is classified as an operating lease and is considered to be
at market terms. During the year ended December 31, 2025, the Company recognized approximately $102,000 in lease expense related
to this arrangement. During the Successor period from May 22, 2024 through December 31, 2024, the Company recognized approximately
$38,100 in lease expense related to this arrangement, and during the Predecessor period from January 1, 2024 through July 29,
2024, the Company recognized approximately $53,400 in lease expense related to this arrangement. The related lease liability as of December 31,
2025 and 2024, was approximately $154,000 and $238,400, respectively, which are included in Current portion of lease liabilities and
Long-term lease liabilities on the Consolidated Balance Sheets. Additionally, the Company recognized revenue from transactions with the
same related party totaling approximately $110,000 during the year ended December 31, 2025, $10,700 during the Successor 2024 period,
$1,400 during the Predecessor 2024 period and $32,200 during the Predecessor 2023 period.
On March 1, 2025, the Company entered into
a new lease agreement with this related party for expanded office space. In connection with the lease commencement, the Company recognized
approximately $1.5 million in operating lease right-of-use assets and corresponding lease liabilities on the Consolidated Balance Sheet.
As of December 31, 2025, the Company had $1.4 million in operating lease right-of-use assets and corresponding lease liabilities
remaining and recorded approximately $178,000 of lease expense related to this arrangement.
During the year ended December 31, 2025,
the Company provided concrete services to an entity that is partially owned by certain investors. The entity became a related party in
connection with the Thunder Acquisition on October 17, 2025. The Company recognized approximately $721,000 of revenue from this
customer during the period from October 17, 2025 through December 31, 2025.
In connection with the Concrete Acquisition,
the Company entered into a single management and consulting agreement with an affiliate. Under the agreement, recurring compensation
is payable quarterly and equal to one-fourth of 3.0% of trailing twelve-month EBITDA for 2024 and one-fourth of 5.0% thereafter, subject
to an annual cap of $3.2 million for strategic, financial, and operational advisory services to support the Company’s board and
management team on matters such as acquisitions, financing, contract negotiations, and growth initiatives. The Company also reimburses,
at cost, any third-party diligence and advisory costs that are initially funded by the affiliate on the Company’s behalf. In addition,
for each completed add-on acquisition, the Company pays a contingent diligence and integration fee equal to 2.0 % of the acquired enterprise
value in consideration for the affiliate’s time and effort involved in transaction execution and post-closing integration activities.
F-41
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
During the Successor period from May 22,
2024 through December 31, 2024, the Company paid a $5.1 million contingent diligence and integration fee on July 29, 2024,
in connection with the closing of the Concrete Acquisition. In addition, approximately $1.3 million was reimbursed for third-party diligence
costs. Both the contingent diligence and integration fee and the reimbursed costs were recorded in Acquisition-related costs in the Consolidated
Statement of Operations. For the same period, the Company incurred $880,800 in consultant compensation, recorded in Selling, general
and administrative expenses in the Consolidated Statement of Operations. As of December 31, 2024, $481,000 of this amount remained
unpaid and was accrued within Accrued liabilities on the Consolidated Balance Sheet.
During the year ended December 31, 2025,
the Company paid a $2.3 million contingent diligence and integration fee on October 17, 2025, in connection with the closing of
the Thunder Acquisition. In addition, approximately $684,000 was paid during the year ended December 31, 2025 for the reimbursement
of various due diligence fees. Both the contingent diligence and integration fee and the reimbursed costs were recorded in Acquisition-related
costs in the Consolidated Statement of Operations. For the same period, the Company incurred approximately $2.8 million in consultant
compensation, recorded in Selling, general and administrative expenses in the Consolidated Statement of Operations.
F-42
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
Note 20. Earnings Per Unit
Basic and diluted earnings per unit (“EPU”)
is calculated for the Company’s Common Units. We determined that the presentation of EPU for the period prior to the Concrete Acquisition
would not be meaningful due to the significant change in the Company’s capital structure post-acquisition. Therefore, EPU information
has not been presented for periods prior to the Concrete Acquisition.
The Incentive Units are the only potentially
dilutive security in our current capital structure. The Incentive Units were evaluated under the treasury stock method for potentially
dilutive effects. The Incentive Units were determined to be anti-dilutive for the year ended December 31, 2025 and 2024 as the Company
had a net loss available to common unitholders for these periods. Because the Incentive Units are the only potentially dilutive security,
basic and diluted EPU will be identical.
The following table sets forth the
computation of basic and diluted EPU attributable to the Company’s Common Units for the Successor periods for the year ended
December 31, 2025 and for the Successor period from May 22, 2024 through December 31, 2024, each representing periods
subsequent to the Concrete Acquisition:
(in thousands, except for unit and per unit amounts)
Year ended
December 31,
2025
Period from
Inception
(May 22, 2024)
through
December 31,
2024
Numerator
Net income
$ 1,975
$ 1,079
Less: distributions to senior preferred unitholders
(2,340 )
(410 )
Less: accretion of redeemable preferred units to Redemption value
(10,791 )
(33,532 )
Basic and diluted net income (loss) attributable to Common Units
$ (11,156 )
$ (32,863 )
Denominator
Basic and Diluted weighted average units outstanding
95,700,000
66,517,937
Basic and Diluted net income (loss) per Common Unit
$ (0.12 )
$ (0.49 )
F-43
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL
STATEMENTS
Note 21. Subsequent Events
On October 9, 2025, the Company entered
into a Business Combination Agreement with Haymaker Acquisition Corp. IV (“Haymaker IV”). The transaction closed on April 8,
2026, following approval by Haymaker IV shareholders, resulting in the Company becoming a publicly traded company with its shares listed
on the Nasdaq Stock Market under the ticker “RMIX.”
The Business Combination generated approximately
$226.0 million in gross proceeds from funds held in trust and a concurrent PIPE financing, after giving effect to redemptions and prepaid
forward agreement payments but before warrant redemptions and transaction expenses.
The transaction will be accounted for as a reverse
recapitalization, with the Company identified as the accounting acquirer and no goodwill or other intangible assets recorded.
In connection with the Business Combination,
all outstanding Senior Preferred Units and Preferred Units converted into equity of the combined public company. No adjustments have
been reflected in the accompanying financial statements related to this transaction.
Subsequent to December 31, 2025, the Company
entered into a lease related to a new corporate office. Future undiscounted lease payments related to the corporate office, which continue
through 2033, total $6.6 million.
On January 6, 2026, the Company entered
into an Aircraft Term Loan Credit Agreement (the “Aircraft Term Loan”) providing for a $2.5 million term loan to finance
the purchase of an aircraft. Borrowings under the Aircraft Term Loan bear interest at a floating base rate, determined as the highest
of (i) the federal funds rate plus 0.50%, (ii) the lender’s prime rate, or (iii) Term SOFR plus 1.00%. The Aircraft
Term Loan matures on December 31, 2030.
On March 31, 2026, the Company entered into
the Second Amendment (the “Second Amendment”) to the Credit Agreement. The Second Amendment, among other things, (i) provides
consent to the consummation of the De-SPAC transaction and related transactions, including the redemption and conversion of certain equity
interests, (ii) permits equity issuances in connection with the transaction, including PIPE financing and other share issuances,
(iii) amends and restates the Credit Agreement, and (iv) updates certain collateral and organizational provisions in connection
with the transaction.
On April 7, 2026, the Company entered into
a Limited Consent and Third Amendment (the “Third Amendment”) to its Credit Agreement with its lenders and administrative
agent. The Third Amendment, among other things, (i) provided lender consent for the consummation of the Company’s business
combination transaction, including a prepaid forward transaction entered into in connection therewith, (ii) modified certain financial
covenant definitions and calculations, including the Consolidated Fixed Charge Coverage Ratio, and (iii) updated certain collateral
and administrative provisions of the Credit Agreement.
The Company has evaluated subsequent events through
April 14, 2026, the date these financial statements were issued, and has disclosed all material events that occurred subsequent
to December 31, 2025.
F-44
EX-99.3 — EXHIBIT 99.3
EX-99.3
Filename: tm2611641d1_ex99-3.htm · Sequence: 25
Exhibit 99.3
MANAGEMENT’S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS OF SUNCRETE
This Management’s Discussion and Analysis
of Financial Condition and Results of Operations (the “MD&A”) is intended to assist in understanding and assessing the
historical results of operations and financial condition of Concrete Partners Holding, LLC (the “Company,” “Suncrete”
or the “Successor”) and its predecessor entities. This discussion should be read in conjunction with our consolidated financial
statements and the notes thereto filed as an exhibit hereto.
On April 8, 2026, the Company consummated
its previously announced business combination pursuant to that certain Business Combination Agreement (the “Business Combination
Agreement”), dated October 9, 2025, by and among Haymaker Acquisition Corp. 4, a Cayman Islands exempted company (“Haymaker”
or “SPAC”), Suncrete, Inc., a Delaware corporation and direct wholly owned subsidiary of Haymaker (“PubCo”
or “New Suncrete”), Haymaker Merger Sub I, Inc., a Delaware corporation and a direct wholly owned subsidiary of the Company
(“Merger Sub I”), Haymaker Merger Sub II, LLC, a Delaware limited liability company and direct wholly owned subsidiary of
the Company (“Merger Sub II”). In connection with the closing of the Business Combination Agreement, on April 8, 2026,
(i) Haymaker domesticated by way of continuation out of its jurisdiction of incorporation from the Cayman Islands into the State
of Delaware (the “Domestication”), (b) Merger Sub I merged with and into Haymaker (the “Initial Merger”),
with Haymaker surviving the Initial Merger as a wholly owned subsidiary of PubCo (Haymaker, in its capacity as the surviving corporation
of the Initial Merger, is sometimes referred to herein as the “Surviving Corporation”), and (c) Merger Sub II merged
with and into Suncrete (the “Acquisition Merger” and, together with the Initial Merger, the “Mergers”, and together
with the Domestication and all other transactions contemplated by the Business Combination Agreement, the “Business Combination”),
with Suncrete surviving the Acquisition Merger as a wholly owned subsidiary of PubCo.
Unless the context otherwise requires, all
references in this section to “Suncrete,” the “Company,” “we,” “us,” or “our”
refer to the business of the Company prior to the consummation of the Business Combination, which became the business of PubCo upon the
closing of the Business Combination.
This MD&A includes forward-looking statements.
These statements involve risks and uncertainties. Our actual results may differ materially from those contemplated by these forward-looking
statements as a result of various factors, including those set forth in the section titled “Risk Factors” in the Registration
Statement on Form S-4, as originally filed by the Company and PubCo with the Securities and Exchange Commission on November 12,
2025, as amended and supplemented. Historical results are not necessarily indicative of future performance.
Overview
We are a ready-mix concrete logistics and distribution
platform operating across Oklahoma and Arkansas with plans to expand throughout the high-growth U.S. Sunbelt region through strategic
acquisitions and organic growth. We leverage operational scale, technological integration and quality control to serve a diverse base
of infrastructure, commercial and residential customers.
The Company was formed on May 22, 2024 (the
“Inception Date”). From inception through July 29, 2024, the Company had no substantive operating activities, other than
incurring acquisition-related expenses in connection with the acquisition of Eagle Redi-Mix Concrete, LLC (“Eagle”) and Ram
Transportation, LLC (“Ram”) (together, the “Predecessor”). On July 29, 2024 (the “Closing Date”),
the Company completed the acquisition of Eagle and Ram (the “Concrete Acquisition”) and began reporting on a new accounting
basis as the “Successor.”
Accordingly, the Company’s financial statements
reflect two distinct reporting periods: a “Predecessor Period” prior to the Concrete Acquisition and a “Successor Period”
subsequent to the Concrete Acquisition. The results of operations of the Successor and Predecessor are not comparable due to the application
of acquisition accounting.
This MD&A includes discussion of the following
reporting periods:
· Successor Period for the year ended December 31,
2025;
· Successor Period from inception (May 22,
2024) through December 31, 2024;
· Predecessor Period from January 1, 2024
through July 29, 2024; and
· Predecessor Period for the year ended December 31,
2023.
Recent Developments
Business Combination with Haymaker
On April 8, 2026, the Company consummated
the Business Combination Agreement with Haymaker, New Suncrete, Merger Sub I and Merger Sub II. Pursuant to the Business Combination Agreement,
the Business Combination was effected on the Closing Date in several steps: (a) the Domestication, (b) immediately following
the Domestication, the Initial Merger, with SPAC surviving the Initial Merger as a wholly owned subsidiary of PubCo; and (c) immediately
following the Initial Merger, the Acquisition Merger, with the Company surviving the Acquisition Merger as a wholly owned subsidiary of
New Suncrete. Prior to the closing of the Initial Merger, PubCo issued an aggregate of 26,000 shares of its Series A Perpetual Convertible
Preferred Stock, which is initially convertible into an aggregate of 26,000,000 shares of Class A common stock of PubCo, in exchange
for all of the outstanding Senior Preferred Units of the Company.
The Business Combination will be accounted for
as a reverse recapitalization in accordance with GAAP. Under this method of accounting, although Haymaker acquired all of the outstanding
equity interests of the Company in the Business Combination, the Company will be treated as the accounting acquirer for financial reporting
purposes. Accordingly, the Business Combination will be reflected as the equivalent of the Company issuing shares for the net assets of
Haymaker, followed by a recapitalization whereby no goodwill or other intangible assets are recorded. Operations prior to the Business
Combination will be those of the Company.
Thunder Acquisition
On October 17, 2025, Eagle entered into an
equity and asset purchase and contribution agreement (the “Equity and Asset Purchase and Contribution Agreement”) with SRM, Inc.,
an Oklahoma corporation (“Schwarz Ready Mix”), SRM Leasing, LLC, an Oklahoma limited liability company (“Schwarz Leasing”),
Schwarz Sand, LLC an Oklahoma limited liability company (“Schwarz Sand,” and together with Schwarz Leasing and Schwarz Ready
Mix, the “Schwarz Entities”), the equity holders of Schwarz Ready Mix and Schwarz Leasing (collectively, the “Owners”),
the equity holders of Schwarz Sand (collectively, the “Schwarz Sand Sellers”), certain other transaction beneficiaries, and
Schwarz Ready Mix, in its capacity as a representative of the selling parties. Pursuant to the Equity and Asset Purchase and Contribution
Agreement, Eagle acquired substantially all of the assets of Schwarz Ready Mix and Schwarz Leasing and all of the issued and outstanding
equity interests of Schwarz Sand (collectively, the “Thunder Acquisition”). The aggregate purchase price included $97.0 million
in cash consideration ($74.3 million paid at closing and $22.7 million deferred until June 30, 2026) and 20,000,000 Company Preferred
Units issued to the sellers as rollover equity.
The Loan Amendment
On October 17, 2025, in connection with the
Thunder Acquisition, we amended the Credit Agreement (defined below) to increase the Initial Term Loan (defined below) by $75.0 million
and the Revolving Loan (defined below) by $10.0 million. For additional information, see the section titled “Liquidity and Capital
Resources – Debt Agreements.”
Equipment Loan
On December 30, 2025 the Company entered
into a five-year $4.8 million equipment security note (“Equipment Loan”). The Equipment Loan is a part of a master agreement
that permits multiple equipment notes under the master agreement. For additional information, see the section titled “Liquidity
and Capital Resources – Debt Agreements.”
Components of Our Results of Operations
Revenues
We generate revenue primarily from the production
and delivery of ready-mix concrete. Revenue is recognized at a point in time when control of the product has transferred to the customer,
typically upon delivery to the job site. Our concrete is sold under short-term purchase orders or master service agreements. Revenue is
driven by the volume of cubic yards delivered, the average sales price per cubic yard and the type of concrete mix required for the job.
Our pricing strategy also incorporates value-added services, including specialized admixtures, customized mix formulations and on-site
quality control. Our sales are sensitive to fluctuations in construction activity across the public infrastructure, commercial and residential
sectors. Seasonality and weather can also impact delivery schedules and job site activity, particularly during the winter months.
Cost of Goods Sold
Cost of goods sold consists of all materials and
direct costs associated with the production and delivery of concrete. This includes cement, fly ash, aggregates, admixtures, plant labor,
equipment maintenance, truck driver wages, fuel, permits and tags, and other plant-level expenses. Cost of goods sold also includes depreciation
of production-related property. Costs may fluctuate based on raw material pricing, labor availability, and plant utilization rates.
Selling, General and Administrative Expenses
Selling, general and administrative expenses (“SG&A”)
include corporate and regional administrative costs such as salaries and benefits for administrative personnel, insurance, rent, professional
services, and IT and compliance-related expenses. SG&A also includes amortization of customer relationship intangibles and depreciation
of property and equipment not directly attributable to production, and other recurring overhead costs.
Gross Profit
Gross profit represents revenues less cost of
goods sold. Gross profit is impacted by a combination of delivered volumes, realized pricing, mix of projects, and cost structure. Our
gross margin can fluctuate based on weather conditions, seasonality, raw material costs, and our ability to effectively utilize plant
and fleet capacity. Periods with higher delivered volumes generally allow for stronger fixed cost absorption, which enhances gross margin,
while lower volumes can result in higher per-unit costs and margin compression.
Acquisition-related Costs
Acquisition-related costs primarily consist of
costs incurred in connection with acquisitions, integration activities, and other strategic or capital markets initiatives. These costs
are expensed as incurred and may fluctuate significantly between periods depending on the level and timing of acquisition and financing
activity.
Other Income (Expense)
Other income (expense) primarily consists of interest
expense and other non-operating items. Interest expense relates mainly to borrowings under the Term Loan and the Revolving Loan and includes
the amortization of debt issuance costs. Interest expense is presented net of immaterial interest income, and no material amounts of interest
were capitalized during the periods presented. Other non-operating expenses include miscellaneous non-operating items that are not directly
related to the Company’s core operating activities.
Key Performance Indicators and Non-GAAP
Financial Measures
In addition to the operating metrics discussed
above, we regularly monitor certain key performance indicators, including net income (loss), as well as certain non-GAAP financial measures
to evaluate our operating performance.
Adjusted EBITDA represents net income (loss) before
interest expense, net, depreciation and amortization, and further adjusted to exclude certain non-cash or non-operating items that management
does not consider indicative of the Company’s core operating performance. Such adjustments include share-based compensation expense,
acquisition-related costs, acquisition bonuses, public company readiness costs and acquisition-related financing costs. Management believes
excluding these costs provides investors with a clearer view of underlying operating performance. Adjusted EBITDA margin represents Adjusted
EBITDA as a percentage of revenue.
Management uses these measures as key performance
indicators to evaluate the Company’s operating performance and assess trends, and believes they are also frequently used by securities
analysts, investors, and other parties to evaluate companies in our industry. Management believes these non-GAAP measures enhance investors’
understanding of the Company’s operating performance and facilitate meaningful period-to-period comparisons. These measures have
limitations as analytical tools and should not be considered as an alternative to net income or any other performance measure derived
in accordance with GAAP as an indicator of our operating performance. Our calculation of Adjusted EBITDA and Adjusted EBITDA margin may
not be comparable to similarly named measures reported by other companies. Potential differences may include differences in capital structures,
tax positions and the age and book depreciation of intangible and tangible assets.
The following tables present a reconciliation
of net income to Adjusted EBITDA. (in thousands):
Successor
Predecessor
Year ended
December 31,
2025
Period from
Inception (May
22, 2024)
through
December 31,
2024
Period from
January 1,
2024 through
July 29, 2024
Year ended
December
31, 2023
Net income
$ 1,975
$ 1,079
$ 20,464
$ 26,975
Plus:
Interest expense, net
12,032
5,173
924
878
Depreciation & amortization expense
19,035
6,740
4,827
6,087
Share-based compensation expense
547
32
—
—
Acquisition-related costs (1)
6,696
7,422
—
—
Acquisition bonuses (2)
—
1,000
—
—
Public company readiness (3)
659
353
—
—
Financing-related costs (4)
390
—
—
—
Adjusted EBITDA
$ 41,334
$ 21,799
$ 26,215
$ 33,940
Revenues
$ 194,871
$ 79,650
$ 103,661
$ 144,279
Net income margin
1.0 %
1.4 %
19.7 %
18.7 %
Adjusted EBITDA margin
21.2 %
27.4 %
25.3 %
23.5 %
(1) Represents legal and advisory fees incurred in connection with acquisitions.
(2) Represents discretionary bonuses paid in connection with the Concrete Acquisition.
(3) Represents professional service costs incurred in connection with acquisition-related technical accounting
and advisory support, as well as incremental costs to support the Company’s preparation for becoming a public company (e.g., resources
to facilitate public company readiness).
(4) Represents costs associated with debt extinguishment and modification in connection with acquisitions.
Results of Operations
Factors Affecting Comparability of Our Results of Operations
to Our Historical Results of Operations
Our historical results of operations for the periods
presented are not comparable, either to each other or to our results of operations in future periods. As discussed in the “Overview”
section, Concrete Partners Holding, LLC was formed on May 22, 2024, and had no substantive operating activities prior to the Concrete
Acquisition on July 29, 2024. As a result of the Concrete Acquisition and the application of acquisition accounting beginning on
the date of the Closing of the Concrete Acquisition, our financial statements distinguish between Successor and Predecessor periods. Although
these periods reflect different bases of accounting and are not directly comparable, management believes that a discussion of period-over-period
changes in revenues and other key operating metrics provides meaningful information about the underlying performance of the business.
Fiscal Years Ended December 31, 2025,
2024 and 2023
The following table summarizes the Company’s
operating results for the periods indicated (in thousands):
Successor
Predecessor
Year ended
December
31, 2025
Period from
Inception
(May 22, 2024)
through
December 31,
2024
Period from
January 1, 2024
through
July 29, 2024
Year ended
December 31,
2023
Revenues
$ 194,871
$ 79,650
$ 103,661
$ 144,279
Cost of goods sold
127,925
49,419
65,065
93,093
Gross profit
66,946
30,231
38,596
51,186
Operating expenses:
Selling, general and administrative expenses
45,553
16,346
16,883
22,665
Acquisition-related costs
6,696
7,422
—
—
(Gain) loss on disposal of assets, net
272
(108 )
40
197
Total operating expenses
52,521
23,660
16,923
22,862
Operating income
14,425
6,571
21,673
28,324
Other expense:
Other expenses
(418 )
(319 )
(285 )
(471 )
Interest expense, net
(12,032 )
(5,173 )
(924 )
(878 )
Total other expense
(12,450 )
(5,492 )
(1,209 )
(1,349 )
Net income
$ 1,975
$ 1,079
$ 20,464
$ 26,975
Revenue
Successor Year Ended December 31, 2025
(the “Successor 2025 Period”)
Revenue was $194.9 million for the year ended
December 31, 2025. Results for the year were significantly impacted by unusually heavy and sustained rainfall across Oklahoma and
Arkansas during the first half of the year, which limited construction activity and reduced the number of delivery days. These weather
conditions were materially above historical averages and did not occur in the prior-year. Revenue benefited in the second half of the
year with weather patterns that were in line with historical trends, as well as increased volumes from the Thunder Acquisition, which
closed in the fourth quarter of 2025 and added approximately twenty concrete plants and one hundred fifteen mixer trucks, expanding us
into a new regional market. In addition, realized pricing increased modestly following the Thunder Acquisition, as the acquired operations
historically operated at a higher average unit price relative to legacy assets. Pricing was otherwise generally consistent with the Successor
2024 Period .
Successor Period (May 22, 2024 through
December 31, 2024) (the “Successor 2024 Period”)
Revenue was $79.7 million for the Successor 2024
Period. Performance in the period reflected contributions from our acquisition of certain assets of SMG Ready Mix (“SMG”)
in January 2024, which added eight plants to our network, expanding our delivery capacity and operational footprint. Realized pricing
remained stable during the Successor Period, supported by contractual resets, surcharges, and favorable project mix in key delivery zones.
Predecessor Period (January 1, 2024 through
July 29, 2024) (the “Predecessor 2024 Period”)
Revenue was $103.7 million for the Predecessor
2024 Period. Activity in this period reflected steady demand from customers and the initial contribution from the SMG assets acquisition
completed in January 2024. Production from the SMG assets increased throughout the period as integration progressed, supporting overall
delivery volumes and enhancing the Company’s operational footprint. Realized pricing reflected contractual price resets implemented
during the period, though overall pricing levels remained relatively consistent without significant further increases during the period.
Predecessor Year Ended December 31, 2023
(the “Predecessor 2023 Period”)
Revenue was $144.3 million for the Predecessor
2023 Period. Results primarily reflect baseline construction activity in the markets in which we operate across infrastructure, commercial,
and residential projects. The period also benefited from the first full year of operations following the acquisition of substantially
all of the ready-mix production, transportation, and real-estate assets of Shelton Ready-Mix and Shelton Transportation, expanding the
Company’s operational footprint through the addition of two plants. Pricing remained steady during the year, with modest increases
driven by market-based resets, such as contractual pricing adjustments tied to changes in underlying raw material, labor, and delivery
costs, implemented during the period.
Cost of Goods Sold
The following table presents our costs of goods sold and costs of goods
sold as a percentage of revenue for the periods indicated (in thousands):
Successor
Predecessor
Year ended
December 31,
2025
Period from
Inception (May
22, 2024) through
December 31,
2024
Period from
January 1, 2024
through
July 29, 2024
Year ended
December 31,
2023
Cost of goods sold
$ 127,925
$ 49,419
$ 65,065
$ 93,093
As a percentage of revenue
65.6 %
62.0 %
62.8 %
64.5 %
Successor Year Ended December 31, 2025
Cost of goods sold was $127.9 million, or 65.6%
of revenue, for the year ended December 31, 2025. Results reflect lower delivered volumes caused by unusually heavy and sustained
rainfall during the first half of 2025, which significantly impacted construction activity and delivery days in key markets. Per-unit
costs increased throughout the year due to the unfavorable absorption of fixed plant and delivery costs on lower volumes, as well as higher
depreciation expense associated with the fair value step-up of property, plant and equipment recognized in connection with the Concrete
Acquisition and the Thunder Acquisition.
Successor Period (May 22, 2024 through
December 31, 2024)
Cost of goods sold represented 62.0% of revenue
in the Successor 2024 Period. Results for the period reflected the continued integration of the SMG assets acquisition completed in January 2024,
which added eight plants to our network, expanding our delivery capacity and operational footprint. The increased scale enabled us to
spread fixed plant-level costs across a larger production base, improving cost absorption.
Predecessor Period (January 1, 2024 through
July 29, 2024)
Cost of goods sold represented 62.8% of revenue
in the Predecessor 2024 Period. Production from the SMG assets increased throughout the period as integration progressed, supporting overall
delivery volumes. The increased scale enabled us to spread fixed plant-level costs across a larger production base, improving cost absorption.
Predecessor Year Ended December 31, 2023
Cost of goods sold represented 64.5% of revenue
in the Predecessor 2023 Period. Results during this period primarily reflect baseline operations across the Company’s historical
plant network. The period also benefited from the first full year of operations following the Shelton acquisition, which expanded our
operational footprint through the addition of two plants.
While we experienced inflationary pressures on
certain raw materials, labor, and fuel, these cost increases were generally passed through to customers through contractual price resets
and surcharges and, therefore, did not have a material impact on gross margins for the periods presented.
Gross Profit
The following table presents our gross profit
and gross profit as a percentage of revenue for the periods indicated (in thousands):
Successor
Predecessor
Year ended
December 31,
2025
Period from
Inception (May
22, 2024) through
December 31,
2024
Period from
January 1, 2024
through
July 29, 2024
Year ended
December 31,
2023
Gross Profit
$ 66,946
$ 30,231
$ 38,596
$ 51,186
As a percentage of revenue
34.4 %
38.0 %
37.2 %
35.5 %
Successor Year Ended December 31, 2025
Gross profit totaled $66.9 million, or 34.4% of
revenue, for the year ended December 31, 2025. Results reflect the volume and cost trends discussed in the “Revenue”
and “Cost of Goods Sold” sections above, including lower delivered volumes resulting from unusually heavy rainfall and increased
per-unit costs from reduced fixed-cost absorption. Gross margins were further impacted by higher depreciation expense associated with
the fair value step-up of property, plant and equipment in connection with the Concrete Acquisition and the Thunder Acquisition.
Successor Period (May 22, 2024 through December 31, 2024)
Gross profit represented 38.0% of revenue in the
Successor 2024 Period. Results for the period benefited from the increased scale associated with the SMG assets acquisition in January 2024,
which expanded our plant network and contributed to stronger fixed cost absorption. Stable realized pricing and favorable project mix
further supported gross margin performance.
Predecessor Period (January 1, 2024 through
July 29, 2024)
Gross profit represented 37.2% of revenue in the
Predecessor 2024 Period. Activity during this period reflected the initial integration of the SMG assets and increased production volumes
as the newly acquired plants ramped up. Gross margin performance remained stable, supported by steady pricing and volume growth.
Predecessor Year Ended December 31, 2023
Gross profit represented 35.5% of revenue for
the Predecessor 2023 Period. Results during this period primarily reflect our baseline operations prior to the SMG assets acquisition,
along with contributions from the first full year of operation following the Shelton acquisition.
Operating Expenses
Selling, General and Administrative Expenses
Successor Year Ended December 31, 2025
SG&A expenses totaled $45.6 million for the
year ended December 31, 2025. Activity during the year primarily reflected amortization of customer relationship intangibles and
depreciation associated with the fair value step-up of property, plant and equipment recorded in connection with the Concrete Acquisition
and the Thunder Acquisition. In connection with the Thunder Acquisition, payroll expenses and maintenance and repair expenses increased
during the year due to an increased headcount and the expanded size of our operations fleet. SG&A also includes affiliated consultant
compensation, professional services costs, and other expenses incurred to support our transition to a public company environment.
Successor Period (May 22, 2024 through
December 31, 2024)
SG&A expenses were $16.3 million in the Successor
2024 Period. Results for the period reflect increased depreciation and amortization expense associated with the fair value step-up of
property and the recognition of customer relationship intangibles in connection with the Concrete Acquisition. SG&A expenses also
included higher professional services costs as we continued to scale our operations.
Predecessor Period (January 1, 2024 through
July 29, 2024)
SG&A expenses were $16.9 million in the Predecessor
2024 Period. Activity during the period primarily reflected personnel-related costs and overhead associated with integrating the SMG assets
acquisition, as well as increased administrative support to manage the larger operating platform.
Predecessor Year Ended December 31, 2023
SG&A expenses were $22.7 million in the Predecessor
2023 Period. Results for the period primarily reflect baseline overhead and personnel costs prior to the SMG assets acquisition, as well
as administrative support associated with the existing plant network and the Shelton acquisition.
Acquisition-related Costs
Successor Year Ended December 31, 2025
Acquisition-related costs totaled $6.7 million
for the year ended December 31, 2025. These expenses primarily consisted of due diligence and professional service costs incurred
in connection with the Thunder Acquisition, including legal, accounting, and advisory fees associated with transaction execution and integration
planning, as well as professional fees incurred in connection with the Company’s ongoing de-SPAC and public-company readiness efforts.
Successor Period (May 22, 2024 through
December 31, 2024)
Acquisition-related costs were $7.4 million in
the Successor 2024 Period. The activity during this period primarily reflects acquisition costs incurred in connection with the Concrete
Acquisition, including legal, financial advisory, accounting, and other professional service fees.
Predecessor Period (January 1, 2024 through
July 29, 2024)
We did not have acquisition-related costs during
the Predecessor 2024 Period.
Predecessor Year Ended December 31, 2023
We did not have acquisition-related costs during
the Predecessor 2023 Period.
(Gain) Loss on Disposal of Assets
Successor Year Ended December 31, 2025
We recorded a loss of $0.3 million on asset disposals
during the year ended December 31, 2025. Activity during this period primarily related to the disposition of miscellaneous ancillary
assets.
Successor Period (May 22, 2024 through
December 31, 2024)
Gain on disposal of assets was $0.1 million in
the Successor 2024 Period. Activity during the period primarily related to the sale of various ancillary assets, including older equipment
and vehicles no longer in active use.
Predecessor Period (January 1, 2024 through
July 29, 2024)
Loss on disposal of assets was $40,000 in the
Predecessor 2024 Period. Activity during the period was minimal and reflected routine asset disposals.
Predecessor Year Ended December 31, 2023
Loss on disposal of assets was $0.2 million in
the Predecessor 2023 Period. Activity during the period related to the timing and mix of asset sales, primarily involving older fleet
and support equipment.
Gains and losses on asset disposals are not indicative
of ongoing operations and may fluctuate from period to period depending on the volume and value of disposals.
Other Income (Expense)
Other Expenses
Successor Year Ended December 31, 2025
Other expenses was $0.4 million in the year ended
December 31, 2025. Activity during the year was consistent with typical non-operating charges incurred in the ordinary course.
Successor Period (May 22, 2024 through
December 31, 2024)
Other expenses was $0.3 million in the Successor
2024 Period. Activity during the period was consistent with typical non-operating charges incurred in the ordinary course.
Predecessor Period (January 1, 2024 through
July 29, 2024)
Other expenses was $0.3 million in the Predecessor
2024 Period. Activity during the period was consistent with typical non-operating charges incurred in the ordinary course.
Predecessor Year Ended December 31, 2023
Other expenses was $0.5 million in the Predecessor
2023 Period. Activity during the period was consistent with typical non-operating charges incurred in the ordinary course.
Interest Expense, Net
Successor Year Ended December 31, 2025
Interest expense, net, was $12.0 million in the
year ended December 31, 2025. This amount primarily reflects interest incurred on the Term Loan and Revolving Loan entered into in
connection with the Concrete Acquisition and Thunder Acquisition, which resulted in higher average borrowings during the period. Interest
income was immaterial, and no material amounts of interest were capitalized.
Successor Period (May 22, 2024 through
December 31, 2024)
Interest expense, net, was $5.2 million in the
Successor 2024 Period. The increase in expense during the period reflects interest incurred on the Initial Term Loan (defined below) and
Revolving Loan entered into in connection with the Concrete Acquisition. At December 31, 2024, the Initial Term Loan had a principal
balance of $126.8 million and an applicable interest rate of 7.7%, and the Revolving Loan had a principal balance of $4.2 million and
an applicable interest rate of 7.7%.
Predecessor Period (January 1, 2024 through
July 29, 2024)
Interest expense, net, was $0.9 million in the
Predecessor 2024 Period. Activity during the period primarily reflected interest incurred under existing debt arrangements prior to the
Concrete Acquisition.
Predecessor Year Ended December 31, 2023
Interest expense, net, was $0.9 million in the
Predecessor 2023 Period. Results for the period were consistent with the Company’s historical borrowing levels prior to the establishment
of the new Term Loan and Revolving Loan Credit Facility.
Net Income
Net income was $2.0 million during the year ended
December 31, 2025, $1.1 million during the Successor 2024 Period, $20.5 million during the Predecessor 2024 Period and $27.0 million
during the Predecessor 2023 Period. The change in net income between periods was primarily driven by the factors discussed above.
Adjusted EBITDA
Successor Year Ended December 31, 2025
Adjusted EBITDA was $41.3 million, representing
an Adjusted EBITDA margin of 21.2%, for the year ended December 31, 2025. Results for the period were significantly impacted by unusually
heavy and sustained rainfall across Oklahoma and Arkansas during the first half of the year, which reduced delivery volumes and delayed
customer projects. With lower volumes, we were unable to benefit from fixed-cost leverage to the same extent as in the Successor 2024
Period, resulting in reduced gross margin contribution.
Successor Period (May 22, 2024 through
December 31, 2024)
Adjusted EBITDA was $21.8 million, and Adjusted
EBITDA margin was 27.4%, for the Successor 2024 Period. Results for the period benefited from increased scale associated with the SMG
assets acquisition in January 2024, which added eight plants to our network, expanding our delivery capacity and operational footprint.
This scale expansion supported improved fixed cost leverage and margin performance.
Predecessor Period (January 1, 2024 through July 29, 2024)
Adjusted EBITDA was $26.2 million, and Adjusted
EBITDA margin was 25.3%, for the Predecessor 2024 Period. Activity during this period reflected stable demand conditions and the initial
integration of the SMG assets, which increased production capacity and supported stronger fixed cost absorption. Integration efforts throughout
the period enhanced operational efficiency and contributed to overall margin performance.
Predecessor Year Ended December 31, 2023
Adjusted EBITDA was $33.9 million, and Adjusted
EBITDA margin was 23.5%, for the Predecessor 2023 Period. Results reflect baseline operations prior to the SMG assets acquisition, with
steady volume performance supported by strong market fundamentals in Oklahoma and Arkansas. The period also benefited from the first full
year of operations following the Shelton acquisition, which expanded the Company’s operational footprint through the addition of
two plants.
LIQUIDITY AND CAPITAL RESOURCES
Overview
Our primary needs for cash are for potential acquisitions
and payment of contractual obligations, including debt and working capital obligations. Our primary sources of liquidity have historically
been cash flows generated from operating activities and borrowings under our Revolving Loan. As of December 31, 2025 and 2024, we
had a net working capital surplus of $0.1 million and $19.4 million, respectively. The decrease in working capital at December 31,
2025 was primarily driven by the classification of the $22.7 million deferred payment related to the Thunder Acquisition as a current
liability, which is expected to be funded through a combination of operating cash flows and availability under the Revolving Loan. Our
collection of receivables has historically been timely, and losses associated with uncollectible receivables have historically not been
significant. Our cash balances totaled $6.3 million and $8.4 million as of December 31, 2025 and 2024, respectively.
We budget annually for both maintenance and growth
capital expenditures. Maintenance capital expenditures are fairly predictable and represent routine reinvestments required to sustain
our current operations, including mixer and haul truck replacements, plant repairs and other recurring equipment and fleet needs typical
of the ready-mix industry. By contrast, growth capital expenditures are discretionary and can fluctuate depending on the timing and scale
of opportunities to expand within our existing footprint, such as new plant construction, capacity additions or targeted fleet expansion.
Acquisition capital expenditures, such as the purchase of new plants or other strategic assets, are not part of our recurring capital
program and require approval from our board of directors.
The ultimate amount of our future capital expenditures
will depend upon a variety of factors, including raw material and equipment pricing, construction activity levels in our markets and the
availability of attractive opportunities to support growth.
As of December 31, 2025, we had cash and
cash equivalents of $6.3 million and available capacity under the Revolving Loan of $21.5 million, net of a $0.5 million letter of credit.
Net cash provided by operating activities was approximately $21.5 million for the year ended December 31, 2025. We believe that our
operating cash flows and the aforementioned liquidity sources provide us with sufficient liquidity to fund our operations and planned
maintenance capital expenditures. However, the timing and amount of future growth or acquisition capital expenditures remain subject to
market conditions, board approval and other variables outside of our control.
Cash requirements for known contractual
and other obligations
The following table presents significant cash
requirements for known contractual and other obligations as of December 31, 2025 (in thousands):
Short-term
Long-term
Total
Term Loan (1)
$ 13,251
$ 182,452
$ 195,703
Deferred payment (2)
22,700
—
22,700
Equipment Loan (1)
1,136
4,543
5,679
Revolving Loan (3)
—
3,000
3,000
Operating lease commitments (4)
634
2,235
2,869
Total
$ 37,721
$ 192,230
$ 229,951
(1) Amounts presented include both principal and interest obligations.
(2) Amounts presented represent deferred payment as part of the Thunder Acquisition
(3) Amounts presented do not include interest expense as it is a floating rate and we cannot determine with
accuracy the future interest rates we will be charged. As of December 31, 2025, the outstanding balance under our Revolving Loan
was subject to an interest rate of 7.4%.
(4) Amounts presented include both minimum lease payments and imputed interest.
Cash Flows
Fiscal Year Ended December 31, 2025, 2024 and 2023
The following table summarizes our cash flows
for the periods indicated (in thousands):
Successor
Predecessor
Year ended
December 31,
2025
Period from
Inception
(May 22, 2024)
through
December 31,
2024
Period from
January 1,
2024 through
July 29, 2024
Year ended
December 31,
2023
Net cash provided by (used in):
Operating activities
$ 21,470
$ 10,798
$ 17,650
$ 32,226
Investing activities
(89,014 )
(192,669 )
(14,743 )
(7,581 )
Financing activities
65,467
185,976
(5,693 )
(22,815 )
Net increase (decrease) in cash and cash equivalents
$ (2,077 )
$ 4,105
$ (2,786 )
$ 1,830
Cash Flows Provided by Operating Activities
Net cash provided by operating activities was
$21.5 million, $10.8 million, $17.7 million and $32.2 million for the year ended December 31, 2025, Successor 2024 Period, Predecessor
2024 Period and Predecessor 2023 Period, respectively.
Operating cash flows for the year ended December 31,
2025 reflect the impact of historically high rainfall during the first half of 2025, which significantly reduced production days, delivered
volumes, and gross profit. Operating cash flows were further impacted by interest payments of approximately $12.0 million related to the
term debt incurred in connection with the Concrete Acquisition and the Thunder Acquisition and affiliated consultant compensation of approximately
$2.8 million. Operating cash flows were also adversely affected by higher SG&A expenses, primarily driven by increased payroll and
maintenance costs associated with expanded operations, as well as incremental costs related to preparing to operate as a public company.
Operating cash flows in the Successor 2024 Period
reflect five months of activity following the Concrete Acquisition, including interest payments of approximately $4.9 million related
to the new term debt incurred to finance Concrete Acquisition and affiliated consultant compensation of approximately $0.4 million.
Operating cash flows in the Predecessor 2024 Period
reflect seven months of operating activity prior to the Concrete Acquisition, while the Predecessor 2023 Period reflects a full year of
operations under the legacy ownership structure.
Cash Flows Used in Investing Activities
Net cash used in investing activities was $89.0
million, $192.7 million, $14.7 million and $7.6 million for the year ended December 31, 2025, Successor 2024 Period, Predecessor
2024 Period and Predecessor 2023 Period, respectively.
For the year ended December 31, 2025, cash
used in investing activities primarily consisted of $73.4 million related to the Thunder Acquisition that added approximately twenty ready-mix
plants in Oklahoma and $15.9 million of property, plant and equipment additions primarily associated with maintenance and organic growth
capital expenditures. These outflows were partially offset by approximately $0.3 million of proceeds from asset sales.
For the Successor 2024 Period, cash used in investing
activities primarily consisted of $189.2 million related to the Concrete Acquisition and $3.6 million of property, plant, and equipment
additions primarily associated with maintenance capital expenditures. These outflows were partially offset by approximately $0.2 million
of proceeds from asset sales.
For the Predecessor 2024 Period, cash used in
investing activities primarily consisted of $13.9 million related to the SMG assets acquisition and $1.0 million of property, plant, and
equipment additions primarily associated with maintenance capital expenditures. These outflows were partially offset by $0.2 million of
proceeds from an asset disposition.
For the Predecessor 2023 Period, cash used in
investing activities primarily consisted of $9.2 million of capital expenditures for maintenance and organic growth projects. These outflows
were partially offset by approximately $1.6 million in proceeds from the sale of assets.
Cash Flows Provided (Used in) Financing Activities
Net cash provided (used in) by financing activities
was $65.5 million, $186.0 million, $(5.7) million and $(22.8) million for the year ended December 31, 2025, Successor 2024 Period,
Predecessor 2024 Period and Predecessor 2023 Period, respectively.
For the year ended December 31, 2025, net
cash provided by financing activities primarily consisted of debt borrowings of $86.8 million, offset by $15.6 million of debt repayments,
$2.7 million of deferred financing costs, $2.3 million of distributions to members and $0.6 million of debt issuance costs.
Net cash provided by financing activities during
the Successor 2024 Period was primarily driven by net debt borrowings of $131.0 million and proceeds from the issuance of preferred and
common units of $57.9 million. These inflows were partially offset by $2.5 million of debt issuance costs and $0.4 million of distributions
to members.
Net cash used in financing activities during the
Predecessor 2024 Period was primarily due to distributions to members of $14.3 million offset partially by net borrowings of debt of $8.6
million.
Net cash used in financing activities during the
Predecessor 2023 Period was primarily due to distributions to members of $18.2 million and repayments of debt of $4.6 million.
Debt Agreements
Term Loan
We entered into a credit agreement with Bank of
America, N.A., as administrative agent and certain lenders party thereto (the “Lenders”) on July 29, 2024 (the “Credit
Agreement”) providing for a five-year $130.0 million term loan agreement (“Initial Term Loan”) and amended the Credit
Agreement on October 17, 2025 (“Loan Amendment”) to increase the Initial Term Loan by $75.0 million (as amended, the
“Term Loan”). Proceeds from the Initial Term Loan were used to partially fund the Concrete Acquisition. The Term Loan is secured
by a first lien on substantially all personal property assets (“Collateral”), and the Lenders have the right in the future
to request liens on any real property with an appraised value in excess of $2.0 million (“Material Real Property”). The Term
Loan matures on July 29, 2029, at which time all advances are required to be paid in full. Interest accrues at the Secured Overnight
Financing Rate (“SOFR”) plus an applicable margin ranging from 2.75% to 3.50%, resulting in an effective interest rate of
approximately 7.3% and 7.7% as of December 31, 2025 and December 31, 2024, respectively.
Principal payments are due on the last day of
each calendar quarter, as set forth below (in thousands):
December 31, 2025 through September 30, 2026
$ 2,563
September 30, 2026 through September 30, 2027
$ 3,844
September 30, 2027 and thereafter
$ 5,125
Revolving Loan
The Credit Agreement also provided for a revolving
loan (“Revolving Loan”) with a commitment and borrowing base of $15.0 million. The Loan Amendment increased the commitment
for the Revolving Loan by $10.0 million for a total commitment and borrowing base of $25.0 million. The Revolving Loan is secured by the
Collateral, and the Lenders have the right in the future to request liens on Material Real Property. Balances outstanding under the Revolving
Loan bear interest at the SOFR plus an applicable margin ranging from 2.75% to 3.50%, which was 7.4% and 7.7% as of December 31,
2025 and 2024, respectively. Principal and any accrued interest is due at maturity on July 29, 2029. At December 31, 2025, the
Company had $3.0 million of borrowings outstanding under the Revolving Loan. In addition, a letter of credit in the amount of $0.5 million
was outstanding, leaving $21.5 million available under the Revolving Loan.
Covenants
The Credit Agreement includes customary affirmative
and negative covenants that restrict our ability to, among other things, incur additional indebtedness, create liens, make certain investments,
pay dividends and enter into sale-leaseback transactions, subject to customary exceptions. In addition, the agreement contains financial
covenants, including a Consolidated Senior Leverage Ratio that must not exceed a specified threshold and a Fixed Charge Coverage Ratio
that must exceed a specified minimum threshold. Both financial covenants are tested on a quarterly basis only if availability under the
Revolving Loan falls below a defined minimum level. We were in compliance with all applicable financial and non-financial covenants as
of December 31, 2025.
Equipment Notes
On December 30, 2025, we entered into an
equipment financing facility (“Master Equipment Loan Agreement”) with Eagle Redi-Mix Concrete, LLC, Ram Transportation, LLC
and Concrete Partners, LLC as co-borrowers which will provide for equipment to be financed pursuant to terms to be agreed upon and evidenced
by promissory notes (“Equipment Notes”) to be entered into in the ordinary course of business on customary market terms. The
Equipment Notes will be secured by the financed equipment.
As part of the Master Equipment Loan Agreement,
we entered into a five-year $4.8 million equipment security note on December 30, 2025. Proceeds from the Equipment Loan were used
to purchase concrete mixer equipment. As of December 31, 2025, the Company had $4.8 million outstanding on the Equipment Loan. The
Equipment Loan bears interest at 6.6% per annum and matures on December 31, 2030.
Future Financings
We also anticipate entering into customary interest
rate hedging arrangements from time to time as appropriate with one or more of the Lenders under our Credit Agreement to address risks
of interest rate fluctuations. Our obligations under such arrangements will be secured by the Collateral.
Predecessor Loans
On April 8, 2022, we entered into loan agreements
that established a revolving credit facility with a commitment and borrowing base of $2.0 million and five term loans totaling $31.8 million
(“Eagle Predecessor Loans”). The Eagle Predecessor Loans were secured against a first lien on substantially all assets of
Eagle and Ram. The Eagle Predecessor Loans had varying maturity dates ranging from one year to ten years, at which time all advances were
required to be paid in full. Interest accrued on the Eagle Predecessor Loans at a fixed rate of 3.7% and monthly payments of principal
and interest were required until the maturity date of each loan. The Eagle Predecessor Loans were fully repaid upon consummation of the
Concrete Acquisition on July 29, 2024.
On April 13, 2018, Schwarz Ready Mix, Schwarz
Leasing and Schwarz Sand entered into a secured $4.5 million purchase money promissory note, bearing interest at a fixed rate of 4.75%
per annum and providing for monthly instalments of principal payments. The note was repaid in full on March 5, 2025, prior to the
consummation of the Thunder Acquisition, and was not assumed by the Company.
On May 30, 2018, Schwarz Ready Mix and Schwarz
Sand entered into a secured Revolving Line of Credit evidenced by a promissory note (“Revolver Note”) for $3.0 million, which
Revolver Note and Revolving Line of Credit were amended from time to time to provide for a final maturity date of June 30, 2026.
Amounts outstanding under the Revolver Note accrued interest at a variable rate of interest per annum equal to the prime rate as published
from day to day in the Wall Street Journal, but never less than 4.75% per annum. Amounts outstanding under the Revolver Note were secured
by security interests in all assets of Schwarz Ready Mix and Schwarz Sand, including mortgages on certain Texas real property. The Revolver
Note provided for repayments of principal through sweep account provisions requiring certain cash collections to be applied to repay the
outstanding loan amounts. All outstanding amounts under the Revolver Line of Credit and Revolver Note were fully repaid prior to the consummation
of the Thunder Acquisition on October 17, 2025.
On July 24, 2020, Schwarz Ready Mix and Schwarz
Sand entered into a secured $2.9 million promissory note, bearing interest at a fixed rate of 3.75% per annum and providing for monthly
instalments of principal payments. The note was repaid in full prior to the consummation of the Thunder Acquisition and was not assumed
by the Company.
On March 22, 2022, Schwarz Ready Mix, Schwarz
Leasing and Schwarz Sand entered into a secured $2.5 million purchase money promissory note, bearing interest at a fixed rate of 3.5%
per annum and providing for monthly instalments of principal payments. The note was repaid in full prior to the consummation of the Thunder
Acquisition and was not assumed by the Company.
On March 12, 2024, Schwarz Ready Mix, Schwarz
Leasing and Schwarz Sand entered into a secured $3.0 million revolving credit promissory note, bearing interest at a fixed rate of 8.0%
per annum and providing for monthly instalments of principal payments. The note was repaid in full prior to the consummation of the Thunder
Acquisition and was not assumed by the Company.
CRITICAL ACCOUNTING POLICIES AND ESTIMATES
The preparation of financial statements in conformity
with GAAP requires us to make estimates, judgments and assumptions that affect the reported amounts of assets and liabilities and disclosure
of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during
the reporting period. Actual amounts could differ from these estimates, and changes in these estimates are recorded when known. The accounting
estimates and assumptions we consider to be the most significant to the financial statements are discussed below.
Impairment of Goodwill
Goodwill represents the excess of the purchase
price over the fair value of net assets acquired and liabilities assumed in business combinations.
For purposes of the goodwill impairment assessment,
assets are grouped into “reporting units.” A reporting unit is either an operating segment or a component of an operating
segment, depending on how similar the components of the operating segment are to each other in terms of operational and economic characteristics.
As of December 31, 2025, we had one reporting
unit for goodwill impairment testing purposes, which aligns with our single operating segment. We perform a qualitative assessment of
relevant events and circumstances to evaluate the likelihood of goodwill impairment. If it is more likely than not that the fair value
of the reporting unit is less than its carrying amount, we perform a quantitative analysis to determine the fair value of the reporting
unit. If the fair value is less than the carrying amount, an impairment loss is recognized in an amount equal to the excess of the carrying
value of goodwill over its implied fair value, limited to the total goodwill allocated to the reporting unit.
We performed a qualitative assessment as of December 31,
2025, 2024 and 2023, to determine whether it was more likely than not that the fair value of the reporting unit was greater than the carrying
value of the reporting unit. Based on these qualitative assessments, we determined that the fair value of our reporting unit was more
likely than not greater than the carrying value of the reporting units. As a result, no impairment of goodwill was recorded during any
of the periods in the accompanying consolidated and combined financial statements.
Redeemable Preferred Units (Mezzanine Equity)
We have Senior Preferred and Preferred Units that
are classified as mezzanine equity because certain redemption features are not solely within the Company’s control. These instruments
are initially recorded at fair value and subsequently remeasured to their maximum redemption value at each reporting date, with accretion
recorded through equity (and reflected as a reduction to net income attributable to common, as applicable). In 2025, aggregate accretion
on the Senior Preferred and Preferred Units totaled $13.1 million. Because these instruments are deemed currently redeemable and are remeasured
to their maximum redemption value, changes in capital structure or redemption provisions could significantly affect the amount of accretion
recorded in future periods.
Impairment of Long-Lived Assets
We evaluate long-lived assets, including property,
plant and equipment and amortizable intangible assets, for impairment whenever events or changes in circumstances indicate that the carrying
amount of such assets may not be recoverable. Recoverability is assessed based on the undiscounted future cash flows expected to result
from the use and eventual disposition of the asset group. If the carrying amount exceeds the estimated undiscounted cash flows, an impairment
charge is recognized in the amount by which the carrying amount exceeds its fair value.
As of December 31, 2025, the carrying amount
of property, plant and equipment was approximately $152.8 million, customer relationship intangibles totaled $71.4 million, and indefinite-lived
trade name assets totaled $24.8 million. We evaluated our long-lived assets as of December 31, 2025 and 2024 for indicators of impairment
and concluded that no impairment existed. To the extent impairment indicators were present, the estimated undiscounted cash flows for
the applicable asset groups exceeded the carrying amounts by a substantial margin.
No impairment charges were recognized during the
Successor Periods (May 22, 2024 through December 31, 2024 and the year ended December 31, 2025) or during the Predecessor
periods presented. We will continue to monitor for potential triggering events in future periods, including changes in market conditions,
operating performance, or utilization levels.
Business Combination Accounting
We account for business combinations using the
acquisition method of accounting in accordance with ASC 805, which requires us to recognize the identifiable tangible and intangible assets
acquired and liabilities assumed at their estimated fair values as of the acquisition date, other than leases and contract assets and
liabilities acquired in connection with business combinations. The excess of the purchase consideration over the fair values of these
identifiable assets and liabilities is recorded as goodwill.
We may adjust the amounts recognized in an acquisition
during a measurement period after the acquisition date. Any such adjustments are the result of subsequently obtaining additional information
that existed at the acquisition date regarding the assets acquired or the liabilities assumed. Measurement period adjustments are generally
recorded as increases or decreases to goodwill, if any, recognized in the transaction. The cumulative impact of measurement period adjustments
on depreciation, amortization and other income statement items is recognized in the period the adjustment is determined. The measurement
period ends once we have obtained all necessary information that existed as of the acquisition date but does not extend beyond one year
from the date of acquisition. Any adjustments to assets acquired or liabilities assumed beyond the measurement period, unless as a result
of an error, are recorded through earnings.
Determining the fair values of assets acquired
and liabilities assumed requires judgment and often involves the use of significant estimates and assumptions. We engage third-party appraisal
firms when appropriate to assist in the fair value determination of assets acquired and liabilities assumed. Acquisition-related expenses
and transaction costs associated with business combinations are expensed as incurred.
As part of the Thunder Acquisition completed in
2025, total purchase consideration was approximately $115.1 million, consisting of $95.1 million in cash and $20.0 million in equity.
The allocation of purchase consideration was primarily to property, plant and equipment, customer relationship intangibles, trade name,
and working capital, with no goodwill recognized. The fair value determination involved the use of Level 3 inputs such as forecasted cash
flows and discount rates.
As part of the Concrete Acquisition completed
in 2024, total purchase consideration was approximately $253.0 million, consisting of $189.2 million in cash and $63.8 million in equity.
The allocation of purchase consideration was primarily to property, plant and equipment, customer relationship intangibles, trade name,
and working capital, with approximately $79.5 million of goodwill recognized. The fair value determination involved the use of Level 3
inputs such as forecasted cash flows and discount rates.
In addition to the Concrete Acquisition, we completed
the SMG assets acquisition in January 2024 for total purchase consideration of approximately $13.9 million, which was accounted for
as a business combination. The allocation of purchase consideration was primarily to property, plant and equipment and other working capital,
with approximately $0.3 million of goodwill recognized. The fair value determination also involved the use of Level 3 inputs such as forecasted
cash flows and discount rates.
The estimation of fair values of acquired assets
and assumed liabilities is judgmental and requires various assumptions. Additionally, the amounts assigned to depreciable and amortizable
assets compared to amounts assigned to goodwill, which is not amortized, can significantly affect our results of operations.
Fair value is defined as the price that would
be received to sell an asset or paid to transfer a liability (an exit price) in an orderly transaction between market participants at
the measurement date. Fair value is based upon assumptions that market participants would use when pricing an asset or liability. We use
the following fair value hierarchy, which prioritizes valuation technique inputs used to measure fair value into three broad levels:
· Level 1: Quoted prices in active markets for
identical assets and liabilities that the Company has the ability to access at the measurement date.
· Level 2: Inputs (other than quoted prices included
within Level 1) that are either directly or indirectly observable for the asset or liability, including (i) quoted prices for similar
assets or liabilities in active markets, (ii) quoted prices for identical or similar assets or liabilities in inactive markets, (iii) inputs
other than quoted prices that are observable for the asset or liability, and (iv) inputs that are derived from observable market
data by correlation or other means.
· Level 3: Unobservable inputs for the asset or
liability including situations where there is little, if any, market activity for the asset or liability.
The fair value hierarchy gives the highest priority
to quoted prices in active markets (Level 1) and the lowest priority to unobservable inputs (Level 3).
EFFECTS OF INFLATION AND PRICING
Given the cyclical nature of our industry, demand
for and costs of service providers, as well as inflationary pressure in the broader economy, may adversely affect the prices we pay for
various goods and services. The global economy is currently experiencing significant inflationary pressures resulting from rising commodities
costs, tightening labor markets and supply chain shortages, as well as certain ongoing geopolitical conflicts. We continue to monitor
the situation and assess its impact on our business. We expect to continue to build on our technical expertise and operational efficiencies
and synergies to mitigate inflationary and cost pressures as they may arise.
NEW ACCOUNTING PRONOUNCEMENTS
In December 2023, the FASB issued ASU 2023-09, Income
Taxes (Topic 740): Improvements to Income Tax Disclosures, which expands income tax disclosure requirements, including enhanced rate
reconciliation and income taxes paid disclosures. The standard is effective for fiscal years beginning after December 15, 2024, and
is to be applied prospectively. As a limited liability company, we currently operate as a pass-through entity and do not expect a material
impact upon adoption.
In November 2024, the FASB issued ASU 2024-03,
Disaggregation of Income Statement Expenses, which requires additional disaggregated disclosure of prescribed expense categories.
The standard is effective for fiscal years beginning after December 15, 2026, and is to be applied prospectively. We are currently
evaluating the impact of this standard on our consolidated financial statements and related disclosures.
EX-99.4 — EXHIBIT 99.4
EX-99.4
Filename: tm2611641d1_ex99-4.htm · Sequence: 26
Exhibit 99.4
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL
INFORMATION
Capitalized terms included below but not defined
in this Exhibit 99.4 have the same meaning as terms defined and included in the Current Report on Form 8-K (the “Current
Report”) filed with the Securities and Exchange Commission (the “Commission”) on April 14, 2026 and, if not defined
in the Current Report, the final prospectus and definitive proxy statement (the “Proxy Statement/Prospectus”) filed with the
Commission on February 13, 2026. Unless the context otherwise requires, the “Company,” “Post-Combination Company,”
“Suncrete,” “PubCo,” “we,” “us,” or “our” refers to Suncrete, Inc. and
its subsidiaries after giving effect to the Closing.
Introduction
The following unaudited pro forma condensed combined
financial information presents the combination of financial information of Haymaker Acquisition Corp. 4 (“Haymaker”) and Concrete
Partners Holding, LLC (“CPH”), adjusted to give effect to the Business Combination (as defined below) and related transactions,
including the acquisition of the Schwarz Entities (as defined below). The following unaudited pro forma condensed combined financial information
has been prepared in accordance with Article 11 of Regulation S-X as amended by the final rule, Release No. 33-10786 “Amendments
to Financial Disclosures and Acquired and Disposed Businesses” to depict the accounting for the transaction (“Transaction
Accounting Adjustments”) and do not present the any synergies expected to occur as a result of the Business Combination.
The unaudited pro forma condensed combined balance
sheet as of December 31, 2025, gives effect to the Business Combination and related transactions as if they had occurred on December 31,
2025. The unaudited pro forma condensed combined statements of operations for the year ended December 31, 2025 give effect to the
Business Combination and related transactions as if they had occurred on January 1, 2025, the beginning of the earliest period presented.
The pro forma combined statement
of operations does not reflect a provision for income taxes or any amounts that would have resulted had the Post-Combination Company filed
consolidated income tax returns during the period presented. The unaudited pro forma condensed combined balance sheet does not reflect
the deferred taxes of the Post-Combination Company as a result of the Business Combination. Since it is likely that the Post-Combination
Company will record a valuation allowance against the total U.S. and state deferred tax assets given the net operating losses as the recoverability
of the tax assets is uncertain, the tax provision is zero.
The unaudited pro
forma condensed combined financial information has been presented for informational purposes only and is not necessarily indicative of
what the Post- Combination Company’s financial position or results of operations actually would have been had the Business Combination
and related transactions been completed as of the dates indicated. In addition, the unaudited pro forma condensed combined financial information
does not purport to project the future financial position or operating results of the Post-Combination Company following the reverse recapitalization.
The actual financial position and results of operations of the Post-Combination Company may differ significantly
from the pro forma amounts reflected herein due to a variety of factors.
The unaudited pro forma condensed
combined financial information has been derived from, and should be read in conjunction with, the historical financial statements and
related notes of Haymaker as of and for the year ended December 31, 2025, which are incorporated by reference; the historical financial
statements and related notes of CPH, which are included as Exhibit 99.2 to the Current Report; and the historical financial statements
and related notes of the Schwarz Entities as of October 17, 2025 and for the period January 1, 2025 through October 17, 2025, which are
included as Exhibit 99.5 to the Current Report. The historical information of CPH for year ended December 31, 2025 has been adjusted to
include the estimated transaction accounting adjustments of the Thunder Acquisition (as defined below).
Description of the Business Combination
On October 9, 2025, Haymaker, with Haymaker
Merger Sub I, Inc. (“Merger Sub I”), Haymaker Merger Sub II, LLC (“Merger Sub II”), Suncrete and CPH entered
into a business combination agreement (the “Business Combination Agreement”) pursuant to which (1) at the closing of
the transactions contemplated by the Business Combination Agreement (the “Closing”) and following the Domestication (as defined
below), Haymaker merged with Merger Sub I, a wholly-owned subsidiary of PubCo (the “Initial Merger”) with Haymaker surviving
the Initial Merger as a wholly owned subsidiary of the Company (the time at which the Initial Merger became effective, the “Initial
Merger Effective Time”) and immediately after, CPH merged into Merger Sub II, a wholly-owned subsidiary of PubCo (the “Acquisition
Merger,” together with the Initial Mergers, the “Mergers,” and the time at which the Acquisition Merger became effective,
the “Acquisition Merger Effective Time”) resulting in a combined company whereby Haymaker and CPH are wholly-owned subsidiaries
of Suncrete, as more fully described in the Proxy Statement/Prospectus; (2) Haymaker domesticated (the “Domestication”)
as a Delaware corporation in accordance with the General Corporation Law of the State of Delaware, the Companies Act (As Revised) of the
Cayman Islands and the amended and restated memorandum and articles of association of Haymaker (as amended from time to time); and (3) the
other transactions contemplated by the Business Combination Agreement and documents related thereto were consummated (collectively, with
the Mergers, the Domestication and all other transactions contemplated by the Business Combination Agreement, the “Business Combination”).
On April 8, 2026, as contemplated by the
Business Combination Agreement, Haymaker filed a notice of deregistration with the Cayman Islands Registrar of Companies, together with
the necessary accompanying documents, and filed a certificate of incorporation and a certificate of corporate domestication with the Secretary
of State of the State of Delaware, pursuant to which Haymaker was domesticated and continued as a Delaware corporation.
Subject to and in accordance with the terms and
conditions of the Business Combination Agreement, Initial Merger and Acquisition Merger:
1) At the Initial Merger Effective Time:
a. PubCo filed Amended and Restated PubCo Certificate of Incorporation with the Secretary of State of Delaware,
which was adopted as the certificate of incorporation of PubCo until thereafter amended as provided by the DGCL and such certificate of
incorporation;
b. The Amended and Restated PubCo Bylaws were adopted as the bylaws of PubCo until thereafter amended as
provided by the DGCL, the Amended and Restated PubCo Charter and such bylaws;
c. The certificate of incorporation and bylaws of Merger Sub I, as in effect immediately prior to the Initial
Merger Effective Time became the certificate of incorporation and bylaws for the SPAC until thereafter amended in accordance with their
terms and applicable provisions of the DGCL;
d. Each issued and outstanding share of common stock of Merger Sub I was redeemed for par value;
e. Each issued and outstanding share of Class A common stock of Haymaker was canceled and converted
into one share of Class A common stock, par value $0.0001 per share of PubCo (“PubCo Class A Common Stock”);
f. Each issued and outstanding Class B common stock of PubCo was canceled and converted into one share
of Class B common stock, par value $0.0001 per share of PubCo (“PubCo Class B Common Stock”);
g. Each outstanding and unexercised issued and outstanding public warrant to purchase Class A ordinary
shares of Haymaker (“SPAC Warrant”), was automatically assumed and converted into a warrant to acquire one share of PubCo
Class A Common Stock, subject to the same terms and conditions (including exercisability terms) as were applicable to the corresponding
former SPAC Warrant immediately prior to the Initial Merger Effective Time;
h. Each issued and outstanding SPAC Unit was detached into one share of PubCo Class A Common Stock and
one-half of one SPAC Warrant;
2) At the Acquisition Merger Effective Time:
a. The certificate of formation and limited liability company agreement of Merger Sub II, as in effect immediately
prior to the Acquisition Merger Effective Time, in materially the same form, became the certificate of formation and limited liability
company agreement of the Surviving Subsidiary Company until thereafter amended in accordance with their terms and the applicable provision
of the DLLCA;
b. Each issued and outstanding Company Common Unit was cancelled and converted into the right to receive,
in the aggregate, that number of fully paid and non-assessable shares of PubCo Class B Common Stock and/or PubCo Class A Common
Stock equal to the Company Common Unit Exchange Ratio (as defined in the Business Combination Agreement);
c. Each issued and outstanding Preferred Unit of CPH was cancelled and converted into the right to receive,
in the aggregate, that number of fully paid and non-assessable shares of PubCo Class B Common Stock and/or PubCo Class A Common
Stock equal to the Company Preferred Unit Exchange Ratio (as defined in the Business Combination Agreement);
i. Each issued and outstanding Senior Preferred Unit (as defined below) was canceled and converted into the
right to receive Series A Preferred Stock (as defined below) in the amount equal to the Unreturned Senior Preferred Contribution
defined and calculated in accordance with the Amended and Restated Limited Liability Company Agreement of CPH;
d. Each issued and outstanding Incentive Unit of CPH was automatically cancelled and ceased to exist in exchange
for a right to receive a number of restricted shares of PubCo Class A Common Stock equal to the Company Incentive Unit Share Consideration
(as defined in the Business Combination Agreement) with respect to such Company Incentive Unit;
e. Each Unit of CPH held in treasury was cancelled without any conversion and no payment or distribution
made;
f. Each issued and outstanding PubCo Class B Common Stock was converted into and exchanged, on a one-for-one
basis, into one share of PubCo Class A Common Stock;
g. Each issued and outstanding Unit of Merger Sub II was converted into and exchanged for one validly issued,
fully paid and non-assessable Unit of CPH; and
h. Subject to receipt of necessary waivers, approvals, consents or authorizations and the satisfaction of
certain contractual requirements, PubCo issued 2,500,000 shares of PubCo Class B Common Stock to Dothan Independent GP, LP (“Dothan
Independent”).
Other Agreements
PIPE Subscription Agreements
Haymaker has entered into subscription agreements
(the “PIPE Subscription Agreements”) with certain institutional investors (collectively, the “PIPE Investors”),
pursuant to which, among other things, Haymaker has agreed to (i) issue and sell, in private placements to close immediately prior
to or substantially concurrently with the Closing, an aggregate of 17,378,676 shares of PubCo Class A Common Stock for a purchase
price of $10.00 per share and/or (ii) 2,525,094 pre-funded common stock purchase warrants, each to purchase one share of Class A
Common Stock (the “Pre-Funded Warrants”) at a per share exercise price equal to $0.0001, at a purchase price per Pre-Funded
Warrant equal to the Purchase Price less the Exercise Price. Concurrently with the Closing, Suncrete received an aggregate amount of $167.1
million from the PIPE Investors.
Exchange Agreement
The Company previously entered into a Securities
Exchange Agreement (the “Exchange Agreement”) with holders of Suncrete’s Senior Preferred Units (the “Senior Preferred
Units”), pursuant to which the Company agreed to issue an aggregate of 26,000 shares of Series A Convertible Perpetual Preferred
Stock, par value $0.0001 per share (the “Series A Preferred Stock”), to such Senior Preferred Unit holders in exchange
for their Senior Preferred Units (the “Exchange”). On April 8, 2026, the Exchange occurred immediately prior to the closing
of the Acquisition Merger, and the Company issued 26,000 shares of Series A Preferred Stock to the Senior Preferred Unit holders,
following the acceptance by the Secretary of State of the State of Delaware of the Certificate of Designation for the Series A Convertible
Perpetual Preferred Stock.
Anticipated Accounting Treatment
The Business Combination will be accounted for
as a reverse recapitalization under GAAP. Under this method of accounting, Haymaker will be treated as the “acquired” company
for accounting purposes. Accordingly, for accounting purposes, the financial statements of the post-combination company will represent
a continuation of the financial statements of CPH with the Business Combination treated as the equivalent of CPH issuing stock for the
net assets of Haymaker, accompanied by a recapitalization. The net assets of Haymaker will be stated at historical costs, with no goodwill
or other intangible assets recorded. Operations prior to the Business Combination will be presented as those of CPH in future reports
of PubCo.
CPH has been determined to be the accounting acquirer
based on evaluation of the following facts and circumstances:
· CPH members comprising a relative majority of the voting power of PubCo and having the ability to nominate
six of the eight members of the board of directors of PubCo;
· CPH’s operations prior to the acquisition comprising the only ongoing operations of PubCo; and
· CPH’s senior management comprising a majority of the senior management of PubCo.
The following unaudited pro forma condensed combined
balance sheet as of December 31, 2025 is based on the audited historical financial statements of Haymaker and CPH:
UNAUDITED PRO FORMA CONDENSED COMBINED BALANCE SHEET
AS OF DECEMBER 31, 2025
(In $000's)
CPH
Historical
Haymaker
As Reclassified
(See Note n)
Transaction
Accounting
Adjustments
Pro Forma
Combined
ASSETS
Current assets:
Cash and cash equivalents
$ 6,333
$ 4
$ 258,241
(a)
$ 168,722
(10,460
)
(b)
(12,180
)
(c)
167,120
(d)
(3,613
)
(m)
(144,119
)
(f)
(56,729
)
(l)
(25,875
)
(j)
(10,000
)
(k)
Accounts receivable, net
33,699
—
—
33,699
Inventory
8,723
—
—
8,723
Other current assets
5,047
35
—
5,082
Total current assets
53,802
39
162,385
216,226
Property, plant and equipment:
Property, plant & equipment, at cost
168,767
—
—
168,767
Less: accumulated depreciation
(15,390 )
—
—
(15,390 )
Property, plant and equipment, net
152,837
—
—
152,837
Goodwill
79,505
—
—
79,505
Customer relationships, net
71,373
—
—
71,373
Trade name
24,800
—
—
24,800
Cash and securities held in Trust Account
—
258,241
(258,241
)
(a)
—
Other noncurrent assets
2,385
—
—
2,385
Total assets
$ 384,702
$ 258,280
$ (95,856
)
$ 547,126
LIABILITIES, REDEEMABLE MEZZANINE EQUITY, AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable
$ 12,558
$ —
$ —
$ 12,558
Accrued liabilities
13,654
2,251
—
15,905
WCL Promissory Note - related party
—
1,060
(1,060
)
(b)
—
Current portion of lease liabilities
475
—
—
475
Extension promissory note
—
2,250
(2,250
)
(b)
—
Long-term debt, current portion
27,081
—
—
27,081
Total current liabilities
53,768
5,561
(3,310
)
56,019
Deferred underwriting fee payable
—
8,650
(8,650
)
(b)
—
Subscription Agreement liability
—
9,075
(9,075
)
(f)
Long-term lease liability
1,727
—
—
1,727
Long-term debt, net
186,625
—
—
186,625
Total liabilities
242,120
23,286
(21,035
)
244,371
Commitments and Contingencies
Redeemable mezzanine equity
Class A Ordinary Shares subject to possible redemption
—
258,241
(258,241
)
(f)
—
Senior Preferred Units
26,590
—
(26,590
)
(e)
—
Preferred Units
130,623
—
(130,623
)
(g)
—
Series A Preferred Stock
—
—
26,590
(e)
26,590
Shareholders' equity
PubCo Class A Common Stock
—
—
1
(f)
5
2
(d)
1
(g)
1
(h)
PubCo Class B Common Stock
—
—
1
(g)
1
Class B Ordinary Shares
—
1
(1
)
(h)
—
Members' Equity (Deficit)
(14,631 )
—
(10,000
)
(k)
(24,631 )
Additional paid-in capital
—
—
123,196
(f)
300,790
(12,180
)
(c)
167,118
(d)
130,621
(g)
(23,248
)
(i)
(3,613
)
(m)
1,500
(b)
(56,729
)
(l)
(25,875
)
(j)
Accumulated deficit
—
(23,248 )
23,248
(i)
—
Total shareholders' equity
(14,631 )
(23,247 )
314,043
276,165
Total liabilities, redeemable mezzanine equity, and shareholders' equity
$ 384,702
$ 258,280
$ (95,856
)
$ 547,126
Adjustments to Unaudited Pro Forma Condensed Combined Balance Sheet
(a) Adjustment necessary to reflect the transfer of marketable securities held in the Trust Account to cash.
(b) Adjustment necessary to reflect the settlement of the deferred underwriting fee and the extension promissory
note by cash upon the Closing of the Business Combination. The WCL Promissory Note was settled by issuing 150,000 shares of PubCo Class A
Common Stock.
(c) Adjustment necessary to reflect the transaction costs incurred by CPH of approximately $12.2 million.
The costs of CPH are accounted for as a reduction in the combined cash account with a corresponding reduction in additional paid-in capital
consistent with the treatment described in SEC Staff Accounting Bulletin Topic 5.A. These transaction costs will not recur in the combined
company income statement beyond 12 months after the transaction. The transaction costs for Haymaker are approximately $10.1 million and
are excluded from the unaudited pro forma condensed combined balance sheet.
(d) Adjustment necessary to reflect the receipt of $167.1 million in proceeds from the PIPE Investment. Pursuant
to the PIPE Subscription Agreements, Haymaker has agreed to issue and sell, in private placements to close immediately prior to or substantially
concurrently with the Closing, an aggregate of 17,378,676 shares of PubCo Class A Common Stock and/or Pre-Funded Warrants, to the
PIPE investors. The PIPE Subscription Agreements are accounted as a derivative liability initially recognized at fair value. Upon settlement
of the agreements, when the cash is received, Haymaker recorded a debit to cash and a credit to additional paid-in capital, with
a corresponding reversal of the previously recorded derivative liability.
(e) Adjustment to reflect the exchange of the Senior Preferred Units for Series A Preferred Stock of
PubCo.
(f) Adjustment necessary to reflect the redemption of 12,628,150 shares for cash by the Public Shareholders
of Haymaker upon the consummation of the Business Combination at a redemption price of $11.41 per share. The remaining marketable securities
held in the Trust Account are transferred to cash, with a corresponding credit to accumulated paid-in-capital. Additionally, the settlement
of the Subscription Agreement liability is reversed and results in a credit to accumulated paid-in-capital.
(g) Adjustment necessary to reflect the conversion of Company Preferred Units into shares of PubCo Class A
Common Stock and PubCo Class B Common Stock.
(h) Adjustment necessary to reflect the conversion of SPAC Class B Ordinary Shares into shares of PubCo
Class A Common Stock.
(i) Adjustment necessary to reflect the elimination of Haymaker historical accumulated deficit.
(j) Adjustment necessary to reflect the redemption of 11.5 million warrants at a price per warrant of (i) $2.25
in cash and (ii) 0.075 shares of PubCo Class A Common Stock.
(k) Adjustment necessary to present the $10.0 million payment to Dothan Management for diligence and integration
fees for the services provided by Dothan Management and its personnel to CPH in relation to the Business Combination.
(l) Adjustment to reflect aggregate payments made by Suncrete pursuant to pre-paid forward agreements with
holders of 4,902,989 Class A Ordinary Shares.
(m) Adjustment necessary to reflect aggregate payments made by CPH in connection with the Non-Redemption Agreements.
(n) The following reclassifications were made to conform the historical financial statements of Haymaker to
the presentation of CPH, and such amounts are reflected in the “Haymaker As Reclassified” column:
AS RECLASSIFIED BALANCE SHEET OF HAYMAKER
AS OF DECEMBER 31, 2025
Historical
Suncrete caption
Haymaker Acquisition Corp. 4 caption
Haymaker
As Reported
Reclassification
Adjustments
Haymaker
As Reclassified
ASSETS
ASSETS
Current assets:
Current assets:
Cash and cash equivalents
Cash
$ 4
$ —
$ 4
Prepaid expenses
35
(35 )
—
Accounts receivable, net
—
—
—
Inventory
—
—
—
Other current assets
—
35
35
Total current assets
Total current assets
39
—
39
Property, plant and equipment:
Property, plant & equipment, at cost
—
—
—
Less: accumulated depreciation
—
—
—
Property, plant and equipment, net
—
—
—
Prepaid insurance - non-current
—
—
—
Goodwill
—
—
—
Customer relationships, net
—
—
—
Trade name
—
—
—
Cash held in Trust Account
Cash held in Trust Account
258,241
—
258,241
Other noncurrent assets
—
—
—
Total assets
Total assets
$ 258,280
$ —
$ 258,280
LIABILITIES, REEDEMABLE MEZZANINE EQUITY, AND SHAREHOLDERS' EQUITY
LIABILITIES, CLASS A ORDINARY SHARES AND SHAREHOLDERS' EQUITY
Current liabilities:
Current liabilities:
Accrued expenses
$ 2,251
$ (2,251 )
$ —
Accrued offering costs
—
—
—
Accounts payable
—
—
—
Accrued liabilities
—
2,251
2,251
WCL Promissory Note - related party
WCL Promissory Note - related party
1,060
—
1,060
Extension promissory note
Extension promissory note
2,250
—
2,250
Long-term debt, current portion
—
—
—
Total current liabilities
Total current liabilities
5,561
—
5,561
Long-term liabilities
Long-term liabilities
Deferred underwriting fee payable
Deferred underwriting fee payable
8,650
—
8,650
Subscription Agreement liability
9,075
—
9,075
Long-term lease liability
—
—
—
Long-term debt, net
—
—
—
Total liabilities
Total liabilities
23,286
—
23,286
Commitments and Contingencies (Note 14)
Commitments and Contingencies
Redeemable mezzanine equity
Class A Ordinary Shares subject to possible redemption
Class A Ordinary Shares subject to possible redemption
258,241
—
258,241
Senior Preferred Units
—
—
Preferred Units
—
—
Shareholders' Equity (Deficit)
Shareholders' Equity (Deficit)
Preference shares
Preference shares
—
—
—
Class A Ordinary Shares
Class A Ordinary Shares
—
—
—
Class B Ordinary shares
Class B Ordinary shares
1
—
1
Common units (deficit)
—
—
—
Additional paid-in capital
Additional paid-in capital
—
—
—
Accumulated deficit
Accumulated deficit
(23,248 )
—
(23,248 )
Total shareholders’ equity
Total shareholders’ deficit
(23,247 )
—
(23,247 )
—
—
—
Total liabilities, redeemable mezzanine equity, and shareholders' equity
Total liabilities, Class A Ordinary Shares subject to possible redemption , and shareholders' equity
$ 258,280
$ —
$ 258,280
The following unaudited pro forma condensed combined
statement of operations for the year ended December 31, 2025 is based on the audited historical financial statements of Haymaker,
CPH and the Schwarz Entities:
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 2025
(In $000's)
CPH
Pro Forma
Combined
(See Note d)
Haymaker
As Reclassified
(See Note e)
Transaction
Accounting
Adjustments
Pro Forma
Combined
Revenues
$ 270,302
$ —
$ —
$ 270,302
Cost of goods sold:
181,232
—
—
181,232
Gross profit
89,070
—
—
89,070
Operating expenses:
Selling, general, and administrative expenses
60,976
2,762
10,000
(a)
73,738
Acquisition-related costs
6,696
—
—
6,696
(Gain) loss on disposal of assets, net
(508 )
—
—
(508 )
Total operating expenses
67,164
2,762
10,000
79,926
Operating income
21,906
(2,762 )
(10,000 )
9,144
Non-operating expenses (income):
Interest earned on cash held in Trust Account
—
(10,367 )
10,367
(b)
—
Initial loss on Subscription Agreement liability
—
7,178
(7,178 ) (c)
Change in fair value of Subscription Agreement liability
—
1,897
(1,897 )
(c)
Other expense
337
—
—
337
Interest expense, net
18,050
—
—
18,050
Total non-operating expense (income)
18,387
(1,292 )
1,292
18,387
Net income (loss)
$ 3,519
$ (1,470 )
$ (11,292 )
$ (9,243 )
Weighted average number of common shares outstanding, basic and diluted
95,700,000
73,119,471
Net income (loss) per common share, basic and diluted
$ (0.12 )
$ (0.13 )
Adjustments to Unaudited Pro Forma Condensed Combined Statements
of Operations
(a) Adjustment necessary to present the $10.0 million payment to Dothan Concrete Investments Management, LLC
(“Dothan Management”) for diligence and integration fees for the services provided by Dothan Management and its personnel
to CPH in relation to the Business Combination.
(b) Adjustment necessary to eliminate interest earned on marketable securities held in the Trust Account after
giving effect to the Business Combination as if it had occurred on January 1, 2025.
(c) Adjustments necessary to eliminate the initial loss and change in fair value on the Subscription Agreement
liability after giving effect to the Business Combination as if it had occurred on January 1, 2025.
(d) On October 17, 2025 Eagle Redi-Mix Concrete, LLC, a subsidiary of the Company (“Eagle”)
entered into the Equity and Asset Purchase and Contribution Agreement (the “Schwarz Purchase Agreement”) with SRM, Inc.
dba Schwarz Ready Mix, SRM Leasing, LLC, an Oklahoma limited liability company (“Schwarz Leasing”), Schwarz Sand, LLC an Oklahoma
limited liability company (“Schwarz Sand,” and together with Schwarz Ready Mix and Schwarz Leasing, the “Schwarz Entities”),
the equity holders of Schwarz Ready Mix and Schwarz Leasing (collectively, the “Owners”), the equity holders of Schwarz Sand
(collectively, the “Schwarz Sand Sellers”), certain other transaction beneficiaries, and Schwarz Ready Mix, in its capacity
as a representative of the selling parties (the transaction, the “Thunder Acquisition”).
Pursuant to the Schwarz Purchase Agreement,
Eagle acquired substantially all of the assets of Schwarz Ready Mix and Schwarz Leasing and all of the issued and outstanding equity interests
of Schwarz Sand for an aggregate purchase price of $115.6 million, consisting of (i) $72.9 million paid in cash at closing, minus
the estimated closing indebtedness, the estimated transaction expenses, the adjustment escrow amount and the indemnity escrow amount as
further described in the Schwarz Purchase Agreement, (ii) $22.7 million to be paid in cash on March 31, 2026 and (iii) 20,000,000
shares of Preferred Units of the Company issued to the Schwarz Sand Sellers in exchange for the contributed units of Schwarz Sand, with
such amount being subject to certain customary post-Closing purchase price adjustments as further described in the Schwarz Purchase Agreement.
The acquisition of the Schwarz Entities
has been assumed to be accounted for as a business combination in accordance with ASC 805. The assets acquired and liabilities assumed
would be recorded at their respective fair values as of October 17, 2025. Any transaction costs were assumed to be expensed as incurred
in accordance with ASC 805. The unaudited pro forma condensed combined financial statements of CPH presented herein have been prepared
to reflect the transaction accounting adjustments to the Schwarz Entities’ historical condensed consolidated financial information.
The unaudited pro forma condensed combined
statements of operations for the year ended December 31, 2025 assumes the acquisition of the Schwarz Entities occurred on January 1,
2025.
The unaudited pro forma condensed combined
financial information is provided for illustrative purposes only and does not purport to represent what the actual results of operations
of CPH would have been had the acquisition of the Schwarz Entities occurred on the dates noted above, nor are they necessarily indicative
of future results of operations. Future results may vary significantly from the results reflected because of various factors. In CPH’s
opinion, all adjustments that are necessary to present fairly the unaudited pro forma condensed combined financial information have been
made.
The unaudited pro forma condensed combined
statement of operations for the year ended December 31, 2025, has been prepared using, and should be read in conjunction with, the
following:
o The Schwarz Entities audited statement of operations for period January 1, 2025 through October
17, 2025 and the related notes, which are included in the Current
Report as Exhibit 99.5.
The following table provides the unaudited
pro forma condensed combined statement of operations for the year ended December 31, 2025 for CPH pursuant to the assumptions mentioned
above and included in the “CPH Pro Forma Combined” column:
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS
OF SUNCRETE FOR THE YEAR ENDED DECEMBER 31, 2025
Historical
Historical
(In $000's)
CPH
For the Year Ended
December 31, 2025
Schwarz
For the Period January 1, 2025
through October 17, 2025
Schwarz Acquisition
Transaction Accounting
Adjustments
CPH
Pro Forma Combined
Revenues
$ 194,871
$ 75,431
$ —
$ 270,302
Cost of goods sold
127,925
64,053
(12,870 )
(1)
181,232
796
(2)
1,328
(3)
Gross Profit
66,946
11,378
10,746
89,070
Operating expenses:
Selling, general, and administrative expenses
45,553
3,096
12,870
(1)
60,976
(543 )
(2)
Acquisition-related costs
6,696
—
—
6,696
Loss (gain) on disposal of assets, net
272
—
(780 )
(4)
(508 )
Total operating expenses
52,521
3,096
11,547
67,164
Operating income (loss)
14,425
8,282
(801 )
21,906
Non-operating expenses (income):
Other expense (income)
418
(81 )
—
337
Gain on sale of assets
—
(780 )
780
(4)
—
Interest expense
12,032
366
5,652
(5)
18,050
Total non-operating expense (income)
12,450
(495 )
6,432
18,387
Net income (loss) before income taxes
1,975
8,777
(7,233 )
3,519
Income tax expense
—
583
(583 )
(6)
—
Net income (loss) - consolidated
1,975
8,194
(6,650 )
3,519
Net income (loss) attributable to noncontrolling interest
—
2,878
(2,878 )
(7)
—
Net income (loss) attributable to controlling interest
$ 1,975
$ 5,316
$ (3,772 )
$ 3,519
Weighted average number of common shares outstanding, basic and diluted
95,700,000
(8)
95,700,000
Net loss per common share, basic and diluted
$ (0.12 )
(8)
$ (0.12 )
(1) Adjustment necessary to reclassify certain costs within cost of goods sold to selling, general, and administrative,
to conform with the presentation of CPH.
(2) Adjustment necessary to reflect the estimated incremental depreciation expense related to the fixed assets
acquired for period January 1, 2025 through October 17, 2025. Depreciation is calculated assuming a straight-line method of
depreciation based on the estimated fair value and useful lives of each fixed asset as of October 17, 2025.
(3) Adjustment necessary to reflect incremental amortization expense related to estimated customer relationships
acquired in the Thunder Acquisition for the period January 1, 2025 through October 17, 2025. Amortization is calculated assuming
a straight-line method of amortization based on the estimated fair value and useful life of customer relationships as of the closing of
the Thunder Acquisition. The customer relationships were estimated to have a weighted average useful life of approximately 10 years.
(4) Adjustment necessary to reclassify gain on the sale of assets to conform to the presentation of CPH.
(5) Adjustment necessary to eliminate historical interest expense incurred by the Schwarz Entities and reflect
the estimated interest expense in the period presented with respect to the incremental borrowings to finance the Thunder Acquisition.
The interest rate utilized as of December 31, 2025 was 7.4% per annum. A one-eighth point change in interest rates as of December 31,
2025 would change interest expense by $0.1 million for the year ended December 31, 2025.
(6) Adjustment necessary to remove income tax expense on the Schwarz Entities as CPH is not a tax paying entity.
(7) Adjustment necessary to remove the historical noncontrolling interest of the Schwarz Entities. As part
of the Thunder Acquisition, CPH purchased all noncontrolling interests.
(8) The following table reconciles historical and pro forma basic and diluted loss per share for the period
indicated (in thousands, except share and per share amounts):
For the Year Ended
December 31, 2025
Historical
Pro Forma
Net income
$ 1,975
$ 3,519
Less: distributions to senior preferred unitholders
(2,340 )
(2,340 )
Less: accretion of redeemable preferred units to Redemption value
(10,791 )
(12,440 )
Net Loss Attributable to Common Shareholders
(11,156 )
(11,261 )
Common shares:
Common Shares outstanding — basic
95,700,000
95,700,000
Dilutive effect of potential Common Shares
—
—
Common Shares outstanding — diluted
95,700,000
95,700,000
Net loss per share:
Basic
$ (0.12 )
$ (0.12 )
Diluted
$ (0.12 )
$ (0.12 )
(e) The following reclassifications were made to conform the historical financial statements of Haymaker to
the presentation of CPH, and such amounts are reflected in the “Haymaker As Reclassified” column:
AS RECLASSIFIED STATEMENT OF OPERATIONS OF HAYMAKER
FOR THE YEAR ENDED DECEMBER 31, 2025
Historical
Suncrete caption
Haymaker Acquisition Corp. 4 caption
Haymaker
As Reported
Reclassification Adjustments
Haymaker
As Reclassified
Revenues
$ —
$ —
$ —
Cost of goods sold
—
—
—
Gross Profit
—
—
—
Operating expenses:
General and administrative expenses
2,522
(2,522 )
—
General and administrative expenses - related party
240
(240 )
—
Selling, general, and administrative expenses
—
2,522
2,762
240
(Gain) loss on disposal of assets, net
—
—
—
Total operating expenses
2,762
—
2,762
Operating income
Loss from operations
(2,762 )
—
(2,762 )
Non-operating expenses / (income):
Other income:
Interest earned on cash held in Trust Account
Interest earned on cash held in Trust Account
10,367
—
10,367
Initial loss of Subscription Agreement liability
(7,178 )
(7,178 )
Change in fair value of Subscription Agreement liability
(1,897 )
(1,897 )
Other expense
—
—
—
Interest expense, net
—
—
—
Total non-operating expense / (income)
Total other income
1,292
—
1,292
Net income (loss)
Net income (loss)
$ (1,470 )
$ —
$ (1,470 )
Weighted average shares outstanding of Class A Ordinary Shares subject to possible redemption, basic and diluted
22,836,887
-
22,836,887
Basic and diluted net income per share, Class A Ordinary Shares subject to possible redemption
$ (0.05 )
$ (0.05 )
Weighted average shares outstanding of non-redeemable Class A and Class B Ordinary Shares, basic and diluted
6,547,600
-
6,547,600
Basic and diluted net income per share, non-redeemable Class A and Class B Ordinary Shares
$ (0.05 )
$ (0.05 )
NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION
Basis of Presentation
The Business Combination was accounted for as
a reverse recapitalization under GAAP. Under this method of accounting, Haymaker was treated as the “acquired” company for
financial reporting purposes. Accordingly, for accounting purposes, the financial statements of the post-combination company represents
a continuation of the financial statements of CPH with the Business Combination treated as the equivalent of CPH issuing stock for the
net assets of Haymaker, accompanied by a recapitalization. The net assets of Haymaker were stated at historical costs, with no goodwill
or other intangible assets recorded. Operations prior to the Business Combination are presented as those of CPH in any future reports
of PubCo. The historical information of CPH for the year ended December 31, 2025 has been adjusted to include the estimated transaction
accounting adjustments of the Thunder Acquisition.
The unaudited pro
forma condensed combined balance sheet as of December 31, 2025, assumes that the Business Combination and related transactions occurred
on December 31, 2025. The unaudited pro forma condensed combined statements of operations for year ended December 31, 2025 gives
pro forma effect to the Business Combination as if it had been completed on January 1, 2025, the beginning of the earliest period
presented.
The unaudited pro forma condensed combined balance
sheet as of December 31, 2025, has been prepared using, and should be read in conjunction with, the following:
· Haymaker’s audited consolidated balance
sheet as of December 31, 2025 and the related notes, which are incorporated into the Current Report by reference; and
· CPH’s audited consolidated balance sheet
as of December 31, 2025 and the related notes, included as Exhibit 99.2.
The unaudited pro forma condensed combined statement
of operations for the year ended December 31, 2025, has been prepared using, and should be read in conjunction with, the following:
· Haymaker’s audited consolidated statement
of operations for the year ended December 31, 2025, and the related notes, which are incorporated into the Current Report by reference;
· CPH’s audited consolidated statement of
operations for the year ended December 31, 2025, and the related notes, included as Exhibit 99.2; and
· The Schwarz Entities’ audited consolidated
statement of operations for the period January 1, 2025 through October 17, 2025, and the related notes, included as Exhibit 99.5.
The unaudited pro forma
condensed combined financial information does not give effect to any anticipated synergies, operating efficiencies, tax savings or cost
savings that may be associated with the Business Combination.
The transaction accounting adjustments reflect
the consummation of the Business Combination and are based on certain currently available information and certain assumptions and methodologies
that Haymaker believes are reasonable under the circumstances. The unaudited transaction accounting adjustments, which are described in
the accompanying notes, may be revised as additional information becomes available and is evaluated. Haymaker believes that its assumptions
and methodologies provide a reasonable basis for presenting all of the significant effects of the Business Combination based on information
available to management at this time and that the transaction accounting adjustments give appropriate effect to those assumptions and
are properly applied in the unaudited pro forma condensed combined financial information.
The pro forma combined statement of operations
does not reflect a provision for income taxes or any amounts that would have resulted had the Post-Combination Company filed consolidated
income tax returns during the period presented. The pro forma condensed combined balance sheet does not reflect the deferred taxes of
the Post-Combination Company as a result of the Business Combination. Since it is likely that the Post-Combination Company will record
a valuation allowance against the total U.S. and state deferred tax assets given the net operating losses as the recoverability of the
tax assets is uncertain, the tax provision is zero.
The unaudited pro forma
condensed combined financial information is not necessarily indicative of what the actual results of operations and financial position
of the Post-Combination Company would have been had the Business Combination taken place on the dates indicated, nor are they indicative
of the future results of operations or financial position of the Post-Combination Company. They should be read in conjunction with
the historical financial statements and notes thereto of Haymaker and CPH.
Accounting Policies
Upon consummation of
the Business Combination, management of the Post-Combination Company has performed a comprehensive review of the two entities’ accounting
policies. As a result of the review, management of the Post-Combination Company did not identify differences between the accounting policies
of the two entities. Based on its analysis, management of the Post-Combination Company did not identify any differences that would have
a material impact on the unaudited pro forma condensed combined financial information. As a result, the unaudited pro forma condensed
combined financial information does not assume any differences in accounting policies.
Adjustments to Unaudited Pro Forma Condensed Combined Financial
Information
The unaudited pro forma condensed combined financial
information has been prepared to illustrate the effect of the Business Combination and has been prepared for informational purposes only.
The unaudited pro forma condensed combined financial
information has been prepared in accordance with Article 11 of Regulation S-X as amended by the final rule, Release No. 33-10786 “Amendments
to Financial Disclosures about Acquired and Disposed Businesses” to depict the Transaction Accounting Adjustments. The historical
financial statements have been adjusted in the unaudited pro forma condensed combined financial information to include all necessary Transaction
Accounting Adjustments pursuant to Article 11 of Regulation S-X, including those that are not expected to have a continuing
impact.
The unaudited and audited historical financial
statements have been adjusted in the unaudited pro forma condensed combined financial information to give pro forma effect to Transaction
Accounting Adjustments that reflect the accounting for the transaction under GAAP. CPH and Haymaker have not had any historical relationship
prior to the Business Combination. Accordingly, no pro forma adjustments were required to eliminate activities between the companies.
The pro forma basic and diluted earnings per share
amounts presented in the unaudited pro forma condensed combined statements of operations are based upon the number of the Post-Combination Company’s
shares outstanding, assuming the Business Combination occurred on January 1, 2025.
EX-99.5 — EXHIBIT 99.5
EX-99.5
Filename: tm2611641d1_ex99-5.htm · Sequence: 27
Exhibit 99.5
SRM, Inc. dba Schwarz Ready Mix and Subsidiaries
Consolidated Financial Report with Supplementary
Information
For the Period Ended October
17, 2025, and Year Ended December 31, 2024
SRM, Inc. dba Schwarz Ready Mix and Subsidiaries
Table of Contents
Page
Independent Auditor’s
Report
1
Consolidated Balance Sheets
3
Consolidated Statements of Operations
4
Consolidated Statements of Equity
5
Consolidated Statements of Cash Flows
6
Notes to Consolidated Financial Statements
7
Consolidating Balance Sheet –
October 17, 2025
19
Consolidating Balance Sheet – December 31, 2024
20
Consolidating Statement of Operations – Period Ended
October 17, 2025
21
Consolidating Statement of Operations – Year Ended December 31, 2024
22
INDEPENDENT AUDITOR’S REPORT
To the Board of Trustees
of SRM Inc. dba
Schwarz Ready Mix and Subsidiaries
Opinion
We have audited the accompanying consolidated
financial statements of Schwarz Ready Mix and Subsidiaries (an Oklahoma corporation) (the “Companies”), which comprise the
consolidated balance sheets as of October 17, 2025, and December 31, 2024, and the related consolidated statements of operations, equity,
and cash flows for the period and year then ended, and the related notes to the financial statements.
In our opinion, the consolidated financial statements
referred to above present fairly, in all material respects, the financial position of the Companies as of October 17, 2025, and December
31, 2024, and the results of its operations and its cash flows for the period and year then ended in accordance with accounting principles
generally accepted in the United States of America.
Basis for Opinion
We conducted our audits in accordance with auditing
standards generally accepted in the United States of America. Our responsibilities under those standards are further described in the
Auditor’s Responsibilities for the Audit of the Financial Statements section of our report. We are required to be independent of
the Companies and to meet our other ethical responsibilities in accordance with the relevant ethical requirements relating to our audits.
We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our audit opinion.
Responsibilities of Management for the Financial Statements
Management is responsible for the preparation
and fair presentation of the consolidated financial statements in accordance with accounting principles generally accepted in the United
States of America, and for the design, implementation, and maintenance of internal control relevant to the preparation and fair presentation
of consolidated financial statements that are free from material misstatement, whether due to fraud or error.
In preparing the consolidated financial statements,
management is required to evaluate whether there are conditions or events, considered in the aggregate, that raise substantial doubt
about the Companies’ ability to continue as a going concern within one year after the date that the consolidated financial statements
are available to be issued.
Auditor’s Responsibilities for the Audit of the Financial
Statements
Our objectives are to obtain reasonable assurance
about whether the consolidated financial statements as a whole are free from material misstatement, whether due to fraud or error, and
to issue an auditor’s report that includes our opinion. Reasonable assurance is a high level of assurance but is not absolute assurance
and therefore is not a guarantee that an audit conducted in accordance with generally accepted auditing standards will always detect
a material misstatement when it exists. The risk of not detecting a material misstatement resulting from fraud is higher than for one
resulting from error, as fraud may involve collusion, forgery, intentional omissions, misrepresentations, or the override of internal
control. Misstatements are considered material if there is a substantial likelihood that, individually or in the aggregate, they would
influence the judgment made by a reasonable user based on the consolidated financial statements.
In performing an audit in accordance with generally accepted auditing
standards, we:
· Exercise professional
judgment and maintain professional skepticism throughout the audit.
· Identify
and assess the risks of material misstatement of the financial statements, whether due to
fraud or error, and design and perform audit procedures responsive to those risks. Such procedures
include examining, on a test basis, evidence regarding the amounts and disclosures in the
financial statements.
www.arledge.cpa
· Obtain
an understanding of internal control relevant to the audit in order to design audit procedures
that are appropriate in the circumstances, but not for the purpose of expressing an opinion
on the effectiveness of the Companies’ internal control. Accordingly, no such opinion
is expressed.
· Evaluate
the appropriateness of accounting policies used and the reasonableness of significant accounting
estimates made by management, as well as evaluate the overall presentation of the financial
statements.
· Conclude
whether, in our judgment, there are conditions or events, considered in the aggregate, that
raise substantial doubt about Companies’ ability to continue as a going concern for
a reasonable period of time.
We are required to communicate with those charged
with governance regarding, among other matters, the planned scope and timing of the audit, significant audit findings, and certain internal
control related matters that we identified during the audit.
Report on Supplementary Information
We have audited the consolidated financial statements
of the Companies as of and for the period ended October 17, 2025, and year ended December 31, 2024, and have issued our report thereon
dated March 18, 2026, which expressed an unmodified opinion on those consolidated financial statements. Our audit was conducted for the
purpose of forming an opinion on the consolidated financial statements as a whole. The consolidating schedule of balance sheets and consolidating
statements of income are presented for purposes of additional analysis and are not a required part of the consolidated financial statements.
Such information is the responsibility of management and was derived from and relates directly to the underlying accounting and other
records used to prepare the consolidated financial statements. The information has been subjected to the auditing procedures applied
in the audit of the consolidated financial statements and certain additional procedures, including comparing and reconciling such information
directly to the underlying accounting and other records used to prepare the consolidated financial statements or to the consolidated
financial statements themselves, and other additional procedures in accordance with auditing standards generally accepted in the United
States of America. In our opinion, the information is fairly stated in all material respects in relation to the consolidated financial
statements as a whole.
Oklahoma City, Oklahoma
March 18, 2026
SRM, Inc. dba Schwarz Ready Mix and Subsidiaries
Consolidated Balance Sheets
October 17,
2025, and December 31, 2024
October 17,
2025
December 31,
2024
Assets
Current assets
Cash
$ 1,010,205
$ 3,672,792
Accounts receivable, net of allowance for doubtful of $145,401,
and $81,222, respectively
10,943,046
11,125,580
Inventory
3,594,369
3,420,090
Prepaid expenses
224,298
655,686
Total current assets
15,771,918
18,874,148
Other long-term assets
20,000
20,000
Goodwill
5,453,386
5,453,386
Right-of-use assets
424,606
1,305,300
Property and equipment, net
25,355,160
27,446,470
Total long-term assets
31,253,152
34,225,156
Total assets
$ 47,025,070
$ 53,099,304
Liabilities and Stockholders’ Equity
Current liabilities
Accounts payable
$ 5,736,054
$ 5,097,486
Accrued expenses
444,906
821,401
Customer deposits
-
3,240,302
Income taxes payable
579,527
546,344
Line of credit
-
137,955
Current maturities of lease liabilities
145,818
136,225
Current maturities of long-term debt
-
2,733,501
Total current liabilities
6,906,305
12,713,214
Long-term liabilities
Asset retirement obligation
50,000
50,000
Notes payable to shareholders and members
2,147,000
8,263,000
Long-term lease liabilities, net of current maturities
278,788
1,169,075
Long-term debt, net of current maturities
-
1,454,435
Total long-term liabilities
2,475,788
10,936,510
Total liabilities
9,382,093
23,649,724
Stockholders’ Equity
Common stock - $1 par value, 100,000
authorized shares;
1,000 shares issued and outstanding
1,000
1,000
Retained earnings
23,976,034
18,660,616
Total stockholders’ equity - Schwarz
Ready Mix
23,977,034
18,661,616
Noncontrolling interests
13,665,943
10,787,964
Total equity
37,642,977
29,449,580
Total liabilities and stockholders’
equity
$ 47,025,070
$ 53,099,304
See notes to consolidated financial statements.
3
SRM, Inc. dba Schwarz Ready Mix and Subsidiaries
Consolidated Statements of Operations
Period Ended
October 17, 2025, and Year Ended December 31, 2024
October 17,
December 31,
2025
2024
Revenues earned
Cost of revenues earned
$ 75,430,502
$ 94,614,840
Gross profit
64,052,583
83,425,787
11,377,919
11,189,053
General and administrative expenses
3,095,983
5,011,600
Income from operations
8,281,936
6,177,453
Other income (expense)
Interest expense
(366,483 )
(961,477 )
Gain on sale of assets
780,437
78,083
Other income
80,691
153,720
494,645
(729,674 )
Net income before income taxes
8,776,581
5,447,779
Income tax expense
(583,184 )
(581,181 )
Net income - consolidated
8,193,397
4,866,598
Net income attributable to noncontrolling interests
2,877,979
1,054,951
Net income -
Schwarz Ready Mix
$ 5,315,418
$ 3,811,647
See notes to consolidated financial statements.
4
SRM, Inc. dba Schwarz Ready Mix and Subsidiaries
Consolidated Statements of Equity
Period Ended October 17, 2025,
and Year Ended December 31, 2024
Common
Stock
Retained
Earnings
(Deficit)
Total
Stockholder’s
Equity (Deficit)
Noncontrolling
Interest
Total
Equity
Balance, January 1, 2024
$ 1,000
$ 14,848,969
$ 14,849,969
$ 9,733,013
$ 24,582,982
Net
income (loss)
-
3,811,647
3,811,647
1,054,951
4,866,598
Balance, December 31, 2024
1,000
18,660,616
18,661,616
10,787,964
29,449,580
Net
income (loss)
-
5,315,418
5,315,418
2,877,979
8,193,397
Balance, October 17,
2025
$ 1,000
$ 23,976,034
$ 23,977,034
$ 13,665,943
$ 37,642,977
See notes to consolidated financial statements.
5
SRM, Inc. dba Schwarz Ready Mix and Subsidiaries
Consolidated Statements of Cash Flows
Period Ended October 17, 2025,
and Year Ended December 31, 2024
October 17,
2025
December 31,
2024
Reconciliation of net income (loss) to cash provided by operating activities:
Net income
$ 8,193,397
$ 4,866,598
Adjustments to reconcile net income (loss) to net cash provided
by operating activities:
Depreciation and amortization of fixed and right-of-use assets
3,822,068
5,445,495
Bad debt
(10,953 )
28,639
Gain on sale of assets
(780,437 )
(78,083 )
Change in operating assets and liabilities net:
Accounts receivable
193,487
(1,822,789 )
Inventory
(174,279 )
318,032
Prepaid expenses
431,388
(103,588 )
Income tax receivable
33,183
680,228
Accounts payable
638,568
1,558,018
Accrued expenses
(376,495 )
(598,644 )
Customer deposits
(3,240,302 )
3,240,302
Net cash provided by operating
activities
8,729,625
13,534,208
Investing activities:
Purchases of property and equipment
(1,919,481 )
(7,316,231 )
Proceeds from sale of property and equipment
1,068,646
-
Net cash used in investing
activities
(850,835 )
(7,316,231 )
Financing activities:
Proceeds from the line of credit
-
137,955
Payments on the line of credit
(137,955 )
(849,408 )
Payment on lease liabilities
(99,486 )
(124,878 )
Payments to notes to members
(6,116,000 )
(950,000 )
Proceeds from issuance of long-term debt
717,751
5,004,938
Principal payments on long-term debt
(4,905,687 )
(6,190,491 )
Net cash used in financing
activities
(10,541,377 )
(2,971,884 )
Net change in cash
(2,662,587 )
3,246,093
Cash at beginning of year
3,672,792
426,699
Cash at end of year
$ 1,010,205
$ 3,672,792
Supplemental disclosure of cash flow information and non cash investing and financing
activities
Interest paid
$ 369,497
$ 992,599
Income taxes paid
$ 550,000
$ 200,000
See notes to consolidated financial statements.
6
SRM, Inc. dba Schwarz Ready Mix and Subsidiaries
Notes to Consolidated Financial Statements
Period Ended October 17, 2025,
and Year Ended December 31, 2024
Note 1.
Nature of Operations and Significant Accounting Policies
Nature of operations: SRM, Inc. dba Schwarz
Ready Mix. (SRM) was incorporated December 30, 1976, under the laws of the State of Oklahoma. SRM is engaged in the manufacturing and
sale of ready-mixed concrete. Schwarz Sand, LLC (Sand) was organized as an Oklahoma limited liability company in February of 2000. Sand
is engaged in the sale and production of sand. SRM Leasing, LLC (Leasing) was organized as an Oklahoma limited liability company on April
5, 2013 and includes its majority owned subsidiaries, Schwarz CNG Holdings, LLC (CNG) and Schwarz BCS, LLC (BCS). Leasing was formed
to hold property and equipment which it leases to SRM and Sand. CNG was dissolved during 2019 and all balance sheet items were transferred
to SRM and Leasing. BCS was dissolved during 2024 and all balance sheet items were transferred to Leasing.
The LLC companies were formed under operating
agreements which specify that ownership in the company will be represented by the amount of capital contributed. All profits and losses
of the companies are allocated to the members based on their percentage of ownership. Members’ liability is limited to the balances
of their respective capital accounts. The companies were established in perpetuity and will only cease to exist if dissolved in accordance
with the dissolution requirements in the operating agreement.
Principles of consolidation: The consolidated
financial statements include the accounts of SRM, Inc. dba Schwarz Ready Mix, Schwarz Sand, LLC, a variable interest entity, and SRM
Leasing, LLC and its subsidiaries Schwarz CNG Holdings, LLC, a variable interest entity, and Schwarz BCS, LLC, a variable interest entity
(collectively, the Companies). All material intercompany accounts and transactions have been eliminated.
Basis of accounting: The Companies prepare
the consolidated financial statements on the accrual basis of accounting in accordance with accounting principles generally accepted
in the United States of America. Accordingly, revenues are recognized when earned, and expenses are recognized when incurred.
Use of estimates: Management uses estimates
and assumptions in preparing the consolidated financial statements in accordance with accounting principles generally accepted in the
United States of America. Those estimates and assumptions affect the reported amounts of assets and liabilities, the disclosure of contingent
assets and liabilities, and the reported revenues and expenses. On an ongoing basis, the Companies evaluate their estimates, including
those related to bad debts, inventories, deferred tax valuation allowances and asset retirement obligations. The Companies base their
estimates on historical experience and on various other assumptions that are believed to be reasonable under the circumstances, the results
of which form the basis for making judgments about the carrying values of assets and liabilities. Actual results could vary from the
estimates that were used in preparing the financial statements and could do so in the near-term.
Inventory: Inventory consists of rock,
sand, and other materials used in the production of ready-mixed concrete and are valued at the lower of cost (first-in, first-out method)
or net realizable value.
Property and equipment: Property and equipment
are stated on the basis of cost. Depreciation is provided by use of straight-line method for financial reporting purposes and the accelerated
cost recovery and modified accelerated cost recovery systems for income tax purposes.
Building and leasehold improvements
39 years
Machinery and equipment
3-10 years
Transportation equipment
3-7 years
Office equipment
3 years
7
SRM, Inc. dba Schwarz Ready Mix and Subsidiaries
Notes to Consolidated Financial Statements
Period Ended October 17, 2025,
and Year Ended December 31, 2024
Note 1.
Nature of Operations and Significant Accounting Policies
Nature of operations: SRM, Inc. dba Schwarz
Ready Mix. (SRM) was incorporated December 30, 1976, under the laws of the State of Oklahoma. SRM is engaged in the manufacturing and
sale of ready-mixed concrete. Schwarz Sand, LLC (Sand) was organized as an Oklahoma limited liability company in February of 2000. Sand
is engaged in the sale and production of sand. SRM Leasing, LLC (Leasing) was organized as an Oklahoma limited liability company on April
5, 2013 and includes its majority owned subsidiaries, Schwarz CNG Holdings, LLC (CNG) and Schwarz BCS, LLC (BCS). Leasing was formed
to hold property and equipment which it leases to SRM and Sand. CNG was dissolved during 2019 and all balance sheet items were transferred
to SRM and Leasing. BCS was dissolved during 2024 and all balance sheet items were transferred to Leasing.
The LLC companies were formed under operating
agreements which specify that ownership in the company will be represented by the amount of capital contributed. All profits and losses
of the companies are allocated to the members based on their percentage of ownership. Members’ liability is limited to the balances
of their respective capital accounts. The companies were established in perpetuity and will only cease to exist if dissolved in accordance
with the dissolution requirements in the operating agreement.
Principles of consolidation: The consolidated
financial statements include the accounts of SRM, Inc. dba Schwarz Ready Mix, Schwarz Sand, LLC, a variable interest entity, and SRM
Leasing, LLC and its subsidiaries Schwarz CNG Holdings, LLC, a variable interest entity, and Schwarz BCS, LLC, a variable interest entity
(collectively, the Companies). All material intercompany accounts and transactions have been eliminated.
Basis of accounting: The Companies prepare
the consolidated financial statements on the accrual basis of accounting in accordance with accounting principles generally accepted
in the United States of America. Accordingly, revenues are recognized when earned, and expenses are recognized when incurred.
Use of estimates: Management uses estimates
and assumptions in preparing the consolidated financial statements in accordance with accounting principles generally accepted in the
United States of America. Those estimates and assumptions affect the reported amounts of assets and liabilities, the disclosure of contingent
assets and liabilities, and the reported revenues and expenses. On an ongoing basis, the Companies evaluate their estimates, including
those related to bad debts, inventories, deferred tax valuation allowances and asset retirement obligations. The Companies base their
estimates on historical experience and on various other assumptions that are believed to be reasonable under the circumstances, the results
of which form the basis for making judgments about the carrying values of assets and liabilities. Actual results could vary from the
estimates that were used in preparing the financial statements and could do so in the near-term.
Inventory: Inventory consists of rock,
sand, and other materials used in the production of ready-mixed concrete and are valued at the lower of cost (first-in, first-out method)
or net realizable value.
Property and equipment: Property and equipment
are stated on the basis of cost. Depreciation is provided by use of straight-line method for financial reporting purposes and the accelerated
cost recovery and modified accelerated cost recovery systems for income tax purposes.
Building and leasehold improvements
39 years
Machinery and equipment
3-10 years
Transportation equipment
3-7 years
Office equipment
3 years
8
SRM, Inc. dba Schwarz Ready Mix and Subsidiaries
Notes to Consolidated Financial Statements
Period Ended October 17, 2025,
and Year Ended December 31, 2024
Note 1.
Nature of Operations and Significant Accounting Policies (Continued)
Impairment of long-lived assets:
The Companies periodically evaluate their long-lived assets to determine potential impairment by comparing the carrying value of
the assets with the estimated future undiscounted cash flows expected to result from the use of the assets, including cash flows from
disposition. Should the sum of the expected future undiscounted cash flows be less than the carrying value, the Companies would recognize
an impairment loss. An impairment loss would be measured by comparing the amount by which the carrying value exceeds the fair value of
the assets. Management has determined that no impairment of long-lived assets exists for period ended October 17, 2025, and year ended
December 31, 2024, respectively.
Receivables and credit policies:
Trade accounts receivable are uncollateralized customer obligations due under normal trade terms. Receivables are recorded based
on the amounts invoiced to customers. Payments of accounts receivable are allocated to the specific invoices identified on the customer’s
remittance advice or, if unspecified, are applied to the earliest unpaid invoices.
The carrying amount of accounts receivable
is reduced by an allowance for doubtful accounts that reflects management’s estimate of the amounts that will not be collected.
Management provides for probable uncollectible amounts through a charge to bad-debt expense and a credit to the allowance for doubtful
accounts based on historical collection trends and an assessment of the creditworthiness of current customers. The adequacy of the allowance
for doubtful accounts is evaluated periodically through an individual assessment of potential losses on customer accounts giving particular
emphasis to accounts with invoices more than 30 days past the due date. Balances which remain outstanding after management has used reasonable
collection efforts are written off through a charge to the allowance for doubtful accounts and a credit to trade accounts receivable.
Recoveries on accounts previously written off are credited back to the allowance for doubtful accounts.
Method for Estimating Expected Credit Losses for Customer Receivables
Using an Aging Schedule
SRM sells its services to a broad
range of customers, primarily general contractors and construction companies. Customers typically are provided with payment terms of
being payable upon receipt of the invoice. SRM has tracked historical loss information for its trade receivables and compiled historical
credit loss percentages for different aging categories. Management believes that the historical loss information it has compiled is a
reasonable basis on which to determine expected credit losses for trade receivables held at October 17, 2025, because the composition
of the trade receivables at that date is consistent with that used in developing the historical credit-loss percentages (i.e., the similar
risk characteristics of its customers and its lending practices have not changed significantly over time).
Management developed this estimate
based on its knowledge of past experience for which there were similar environments in the economy. As a result, management applied the
applicable credit loss rates to determine the expected credit loss estimate for each payor category. Accordingly, the allowance for expected
credit losses on October 17, 2025, and December 31, 2024, totaled $145,401 and $81,222, respectively.
Revenue recognition: The Companies
recognize revenues in accordance with ASC Topic 606, Revenue from Contracts with Customers, which provides a five-step model for recognizing
revenue from contacts with customers as follows:
· Identify
the contract with a customer
· Identify
the performance obligations in the contract
· Determine
the transaction price
· Allocate
the transaction price to the performance obligations in the contract
· Recognize
revenue when or as performance obligations are satisfied
The Companies’ revenues primarily
consist of product sales of ready-mix concrete to its customers throughout Oklahoma. Results of operations are substantially affected
by economic conditions, especially in the construction industry.
9
SRM, Inc. dba Schwarz Ready Mix and Subsidiaries
Notes to Consolidated Financial Statements
Period Ended October 17, 2025, and Year Ended December 31, 2024
Note 1.
Nature of Operations and Significant Accounting Policies (Continued)
Revenue recognition (continued): The Companies
record revenue from sales or merchandise upon delivery of the goods to the customer, which is when the performance obligation is satisfied.
These revenues are recognized at a point in time.
The transaction price is the amount of consideration
to which the Companies expect to be entitled in exchange for transferring goods to the customer. Revenue is recorded based on the transaction
price, which is considered fixed consideration. There is no variable consideration in the transactions between the Companies and their
customers.
The timing of revenue recognition is consistent
with the right to invoice and generally payment within 30 days. Payment terms and conditions for sales to customers vary based on the
Companies’ assessment of individual customers as well as industry expectations. It is not the Companies’ standard business practice to
offer extended payment terms longer than 90 days. Accordingly, the Companies have determined that a significant financing component generally
does not exist.
The Companies exclude from revenue sales taxes
and other government-assessed and imposed taxes on revenue-generating activities that are invoiced to customers.
The Companies have generally provided assurance
type warranties for their goods. The warranty only extends for a limited duration following the transfer of the goods. Historically, warranty
claims have not resulted in material costs incurred. The Companies do not consider these warranties to be performance obligations.
Income taxes: SRM accounts for income taxes
using the asset and liability approach to financial accounting and reporting for income taxes. The difference between the financial statement
and tax basis of assets and liabilities is determined as part of the financial reporting process. Deferred income tax assets and liabilities
are computed for those differences that have future tax consequences using the currently enacted tax laws and rates that apply to the
period in which they are expected to affect taxable income. Valuation allowances are established, if necessary, to reduce deferred tax
assets to the amounts that will more likely than not be realized. Income tax expense is the current tax provision for the period plus
or minus the net change in the deferred tax assets and liabilities.
No provision for United States federal, state,
or local income taxes has been provided for Sand or Leasing and its subsidiary, as members are individually liable for taxes on their
proportionate share of the income or loss.
Management has evaluated the Companies’ tax positions
and concluded that the Companies have taken no uncertain tax positions that require adjustment to the consolidated financial statements
to comply with the provisions of this guidance.
Goodwill: In 2018, the Companies adopted
Accounting Standards Update (ASU) No. 2014-02; Intangibles-Goodwill and Other (Topic 350). Accordingly, goodwill is not amortized and
is tested for impairment in accordance with the general goodwill impairment guidance under Topic 350. Goodwill is tested for impairment
at least annually, or more frequently if events or circumstances occur that indicate it is more likely than not that the fair value of
the Companies is less than their carrying amount. If such events or circumstances are present, the estimated fair value of the Companies
is compared to their carrying amount and an impairment loss is recognized for the excess of the carrying amount over fair value (if any),
not to exceed the carrying amount of goodwill. No indicators of impairment of the Companies’ goodwill were identified or recognized during
the period ended October 17, 2025, and year ended December 31, 2024.
Asset retirement obligations: The Companies
recognize the fair value of an asset retirement obligation in the period in which it is incurred if a reasonable estimate of fair value
can be made. The Companies determine the fair value of the asset retirement obligation by calculating the present value of the expected
cash flows. The fair value of the liability is added to the carrying amount of the associated asset. As of October 17, 2025, and December
31, 2024, the Companies have no net amounts included in property and equipment for asset retirement obligations, as all such amounts have
been fully depreciated in the year of recognition.
10
SRM, Inc. dba Schwarz Ready Mix and Subsidiaries
Notes to Consolidated Financial Statements
Period Ended October 17, 2025, and Year Ended December 31, 2024
Note 1.
Nature of Operations and Significant Accounting Policies (Continued)
Asset retirement obligations (continued): The
retirement obligation will increase as production continues, including an adjustment for accretion related to the passage of time, until
the obligation is settled.
The asset retirement obligation is adjusted annually
for any liabilities incurred or settled during the period, accretion expense, and any revisions in estimated cash flows.
Advertising costs: The costs of advertising
and promotion activities are expensed as they are incurred. Advertising expense was approximately $4,000 and $3,000 for the period ended
October 17, 2025, and year ended December 31, 2024, respectively.
Concentration of risk: The Companies maintain
cash deposits in financial institutions which, at times, may exceed the Federal Deposit Insurance Corporation insurance limit of $250,000.
Federal deposit insurance corporation (FDIC) limits cover all traditional type deposit accounts up to $250,000. At October 17, 2025, approximately
$771,000 exceeds the FDIC and other regulatory insured limits. The Companies have not experienced any losses in such accounts and do not
believe they are exposed to any significant risk on cash.
Subsequent events: The Companies have evaluated
subsequent events through March 18, 2026, which is the date the financial statements were available to be issued. There were no other
subsequent events requiring recognition.
On October 18, 2025, the Company entered into
an Equity and Asset Purchase and Contribution Agreement with Eagle Redi-Mix Concrete, LLC and related parties to sell substantially all
of the Company’s operating assets and equity interests in certain subsidiaries. The consideration for the transaction consists of cash,
equity interests in the purchaser’s parent entity, and the purchaser’s assumption of certain liabilities. The transaction occurred after
October 17, 2025, balance sheet date and therefore has not been reflected in the accompanying financial statements as of and for the year
then ended. Management evaluated the financial reporting effects of this transaction; however, those effects do not require adjustment
to the historical amounts presented and will be reflected prospectively in periods after closing.
Note 2.
Property and Equipment
Property and equipment are summarized as follows:
October 17,
December 31,
2025
2024
Land and land improvements
$ 7,816,428
$ 7,835,643
Buildings
3,908,621
4,171,167
Leasehold improvements
100,000
100,000
Machinery and equipment
26,752,931
29,114,220
Transportation equipment
34,160,692
35,818,074
Office equipment
30,503
220,552
Construction in-process
318,261
-
73,087,436
77,259,656
Less accumulated depreciation
(47,732,276 )
(49,813,186 )
Net property and equipment
$ 25,355,160
$ 27,446,470
The Companies’ depreciation expense
for the period ended October 17, 2025, and year ended December 31, 2024, was approximately $3,723,000 and $5,321,000, respectfully.
11
SRM, Inc. dba Schwarz Ready Mix and Subsidiaries
Notes to Consolidated Financial Statements
Period Ended October 17, 2025, and Year Ended December 31, 2024
Note 3.
Income Taxes
Net deferred tax assets and liabilities in the
financial statements consist of the following at October 17, 2025, and December 31, 2024. All current and deferred tax provisions were
a result of SRM operations. The subsidiaries’ results of operations are pass-through entities and therefore no deferred tax assets or
liabilities are required to be provided.
2025
2024
Deferred tax assets:
Intangible assets
$ 1,115,146
$ 1,213,364
State tax credits
(177,271 )
(177,271 )
Miscellaneous temporary differences
49,583
49,583
Valuation allowance
993,107
502,919
Total deferred tax asset
1,980,565
1,588,595
Deferred tax liabilities:
Property and equipment basis differences
(1,980,565 )
(1,588,595 )
Total deferred tax liabilities
(1,980,565 )
(1,588,595 )
$ -
$ -
The
provision for income taxes charged to operations for the period ended October 17, 2025, and year ended December 31, 2024, consist of the
following:
2025
2024
Current tax expense (benefit)
$ 583,184
$ 581,181
Deferred tax benefit
471,382
477,031
Valuation allowance
(471,382 )
(477,031 )
$ 583,184
$ 581,181
The income tax provision differs from the amount
of income tax determined by applying the U.S. federal income tax rate (21%) to pretax income for the period ended October 17, 2025, and
year ended December 31, 2024, due to the following:
2025
2024
Computed “expected” tax (expense) benefit
$ 1,634,637
$ 1,029,512
Decrease (increase) in income taxes resulting from:
Reverse non-controlling interest
(556,223 )
(221,540 )
Permanent difference
24,427
137,554
State income taxes, net of federal tax benefit
-
94,897
Fuel tax and other credits applied
(37,094 )
(49,458 )
Other
(11,181 )
67,247
Change in valuation allowance
(471,382 )
(477,031 )
$ 583,184
$ 581,181
12
SRM, Inc. dba Schwarz Ready Mix and Subsidiaries
Notes to Consolidated Financial Statements
Period Ended October 17, 2025, and Year Ended December 31, 2024
Note 4.
Line of Credit
SRM’s line of credit was renewed on July 16, 2024,
with an available balance of $3,000,000. The line of credit matures July 30, 2026. The line carries a variable rate of interest (Prosperity
Bank, N.A. Prime Rate) and requires a monthly interest payment based on outstanding borrowings. At October 17, 2025, and December 31,
2024, the line of credit had an outstanding balance of $0 and $137,955 and an interest rate of 7.25 percent. The line of credit is collateralized
by all inventory, equipment, and general intangibles of the Companies in addition to being guaranteed by SRM, Sand and Leasing and its
subsidiary and the individual stockholders and members.
Note 5.
Long-Term Debt
The Companies’ Long-term debt consists of the following at October
17, 2025, and December 31, 2024:
2025
2024
Note payable to
bank for $4,500,000, with interest at 4.75%, payable in monthly principal and interest installments of $63,225 beginning May
2018 and maturing April 2025. Collateralized by equipment.
$ -
$ 309,048
Note payable to Metro Ready
Mix for $6,000,000, with interest at 3.5%, payable in monthly principal and interest installments of $80,639 beginning May
2018 and maturing April 2025. Guaranteed by owners of Company.
-
320,217
Note payable to Metro Ready
Mix, LLC, for $2,500,000, with interest at 3.5%, payable in monthly principal and interest installments of $33,600 beginning
May 2018 and maturing April 2025. Guaranteed by owners of Company.
-
133,423
Note payable to bank for $2,900,000,
with interest at 3.75%, payable in monthly principal and interest installments of $53,155 beginning August 2020 and maturing
July 2025. Collateralized by equipment.
-
265,502
Note payable to bank for $669,327,
with interest at 1.90%, payable in monthly principal and interest installments of $11,703 beginning August 2020 and maturing
July 2025. Guaranteed by owners of Company.
-
81,260
Note payable to bank for $2,500,000,
with interest at 3.5%, payable in monthly principal and interest installments of $73,319 beginning March 2022 and maturing
March 2025. Collateralized by equipment.
-
219,706
13
SRM, Inc. dba Schwarz Ready Mix and Subsidiaries
Notes to Consolidated Financial Statements
Period Ended October 17, 2025, and Year Ended
December 31, 2024
Note 5.
Long-Term Debt (Continued)
2025
2024
Note payable to equipment financing company for $419,300, with interest at 3.99% payable in monthly principal and interest installments of $9,466 beginning September 2024 and maturing August 2028. Collateralized by equipment.
$ -
$ 387,025
Note payable to equipment financing company for $281,015,
with interest at 0%, payable in monthly principal and interest installments of $7,807 beginning March 2024 and maturing February
2027. Collateralized by equipment.
-
218,567
Note payable to bank for $3,000,000, with interest at 8%,
payable in monthly principal and interest installments of $94,154 beginning April 2024 and maturing March 2027. Collateralized
by equipment.
-
989,062
Note payable to equipment financing company for $766,651 with
interest at 5.99%, payable in monthly principal and interest installments of $14,818 beginning April 2024 and maturing March
2029. Collateralized by equipment.
-
742,854
Note payable to equipment financing
company for $537,971 with interest at 5.99%, payable in monthly principal and interest installments of $10,398 beginning April
2024 and maturing March 2029. Collateralized by equipment.
-
521,272
$ -
$ 4,187,936
Current maturities
-
2,733,501
Long-term maturities
-
1,454,435
Note 6.
Leases
The Companies lease the majority of their plant
locations for various terms under operating lease agreements. The leases expire at various dates through 2028. In the normal course of
business, it is expected that these leases will be renewed or replaced by leases on other properties.
14
SRM, Inc. dba Schwarz Ready Mix and Subsidiaries
Notes to Consolidated Financial Statements
Period Ended October 17, 2025, and Year Ended December 31, 2024
Note 6.
Leases (continued)
Right-of-use assets:
January 1, 2025
$ 1,305,300
Lease cancellation
(781,208 )
Amortization
(99,486 )
Total lease assets
$ 424,606
Liabilities:
January 1, 2025
$ 1,305,300
Lease payments
(102,500 )
Lease cancellation
(781,208 )
Interest accretion
3,014
Total lease liabilities
$ 424,606
Lease cost at October 17, 2025
$ 424,606
Operating cash flows for lease
$ 99,486
Reamaining lease term
4 Years
Discount rate
4.36% - 4.41%
Pursuant to the terms of the Companies’ lease agreements
in effect at January 1, 2024, the following table summarized the Companies’ maturities of lease liabilities as of October 17, 2025:
2025
35,000
2026
150,000
2027
150,000
2028
137,500
Total Lease Payments
472,500
Less: imputed interest
(47,894 )
Present value of lease liabilities
424,606
Less: current obligations under leases
(145,818 )
Total
$ 278,788
Note 7.
Asset Retirement Obligations
Asset retirement obligations for the Companies
result primarily from the acquisition, development, and/or normal use of stone and sand manufacturing plants and include the reclamation
of site damage created during production operations, as well as subsequent removal of plant equipment. Reconciliation of the asset retirement
obligation liability is as follows at October 17, 2025, and December 31, 2024:
2025
2024
Balance at beginning of year
$ 50,000
50,000
Accretion expense
-
-
Balance at end of year
$ 50,000
$ 50,000
15
SRM, Inc. dba Schwarz Ready Mix and Subsidiaries
Notes to Consolidated Financial Statements
Period Ended October 17, 2025, and Year Ended December 31, 2024
Note 8.
Related-Party Transactions
Transactions with companies under common ownership include the following
at December 31:
2025
2024
Accounts receivable
Schwarz Paving Company, Inc.
$ 212,527
$ 156,600
Revenues received from:
Schwarz Asphalt Company, Inc.
$ 284,116
$ 176
Schwarz Paving
Company, Inc.
2,886,016
2,646,070
$ 3,170,132
$ 2,646,246
The Companies have unsecured notes payable to
individual shareholders and members. These notes were renewed October 17, 2025, and mature on December 31, 2027. Interest accrues at 7%
and is payable annually with all outstanding principal and interest due at maturity. The notes’ balance was $2,147,000 and $8,263,000
at October 17, 2025, and December 31, 2024, respectively. Interest expense related to the notes was $187,446 and $599,118 for the period
ended October 17, 2025, and year ended December 31, 2024, respectively.
Note 9.
Variable Interest Entities
The Consolidations Topic of the FASB Accounting
Standards Codification establishes standards for identifying a variable interest entity and for determining under what circumstances a
variable interest entity (VIE) should be consolidated with its primary beneficiary. This topic requires a variable interest entity to
be consolidated by a company if that company has the power to direct the activities of a VIE that most significantly impact the VIE’s
economic performance and the obligation to absorb losses of, or receive benefits from the VIE that could potentially be significant to
the VIE.
SRM Leasing, LLC and subsidiary and Schwarz Sand,
LLC are considered VIEs and SRM the primary beneficiary under the requirements of Accounting Standards Codification 810, Consolidation
(ASC 810). An entity with a controlling interest in a VIE is generally deemed to be its primary beneficiary.
Leasing’s revenues are derived substantially from
SRM through leasing arrangements. SRM and Leasing are co-borrowers on Leasing’s primary long-term debt obligations totaling $265,502 and
$978,970 at October 17, 2025, and December 31, 2024, respectively. There is subordinated financial support of Leasing through loans from
common owners totaling $1,550,000 and $2,000,000 at October 17, 2025, and December 31, 2024, respectively. Furthermore, there is an implicit
agreement that SRM will provide financial support to Leasing in order for Leasing to fund debt services obligations and operations. Based
on these factors SRM has determined Leasing meets the definition of a VIE and SRM is its primary beneficiary.
Sand’s revenues are derived substantially from
SRM through the sale of its product. SRM and Sand are co-borrowers on a $3,000,000 line-of-credit facility at October 17, 2025, and December
31, 2024. There is subordinated financial support of Sand through loans from common owners totaling $3,000,000 at October 17, 2025, and
December 31, 2024, respectively. Furthermore, there is an implicit agreement that SRM will provide financial support to Sand in order
for it to fund operations. Based on these factors SRM has determined Sand meets the definition of a VIE and SRM is its primary beneficiary.
Although SRM does not hold equity interests in
Leasing or Sand, SRM is required to consolidate Leasing and Sand under ASC 810. Leasing and Sand are organized as limited liability companies.
The member’s equity in Leasing and Sand is reflected as non-controlling interests in the consolidated financial statements and the net
income of Leasing and Sand is allocated to the non-controlling interests.
16
SRM, Inc. dba Schwarz Ready Mix and Subsidiaries
Notes to Consolidated Financial Statements
Period Ended October 17, 2025, and Year Ended December 31, 2024
Note 9.
Variable Interest Entities (Continued)
Summarized financial information for Leasing and
its subsidiary and Sand before consolidating entries, as of October 17, 2025, is as follows:
Schwarz
Sand, LLC
SRM
Leasing, LLC
and Subsidiary
Cash
$ 26,960
$ 4,224
Accounts receivable, net
616,618
1,707,959
Other current assets
599,304
53,530
Property and equipment, net
7,381,452
10,887,677
$ 8,624,334
$ 12,653,390
Accounts payable
$ 7,512,235
$ -
Accrued expenses
49,546
-
Long-term debt
-
-
Asset retirement obligation
50,000
-
$ 7,611,781
$ -
Members’ equity
1,012,553
12,653,390
Total liabilities and members’ equity
$ 8,624,334
$ 12,653,390
And as of December 31, 2024, is as follows:
Schwarz
Sand, LLC
SRM
Leasing, LLC
and Subsidiary
Cash
$ -
$ 1,566,665
Accounts receivable, net
421,256
3,500
Other current assets
384,648
103,705
Property and equipment, net
8,113,846
11,946,837
$ 8,919,750
$ 13,620,707
Accounts payable
$ 4,915,628
$ 67,789
Accrued expenses
338,374
1,254,563
Long-term debt
3,576,139
1,550,000
Asset retirement obligation
50,000
-
$ 8,880,141
$ 2,872,352
Members’ equity
39,609
10,748,355
Total liabilities and members’ equity
$ 8,919,750
$ 13,620,707
17
SRM, Inc. dba Schwarz Ready Mix and Subsidiaries
Notes to Consolidated Financial Statements
Period Ended October 17, 2025, and Year Ended December 31, 2024
Note 10. Employee Benefit Plan
The Companies’ employees may participate in a
defined contribution retirement plan with features under section 401(k) of the Internal Revenue Code through the multiple employer plan
entitled Schwarz Paving Co., Inc. 401(k) Savings Plan. Employees who have completed three months of service and are 18 years of age are
eligible to participate in the plan.
The Companies may make discretionary matching
contributions as well as profit sharing contributions. Employees must complete 1,000 hours of service and be employed on the last day
of the year to receive a profit-sharing contribution. Discretionary matching contributions were approximately $400,000 and $573,000 for
the period ended October 17, 2025, and year ended December 31, 2024. No profit-sharing contributions were made for the period ended October
17, 2025, and year ended December 31, 2024.
18
SRM, Inc. dba Schwarz Ready Mix and Subsidiaries
Supplementary Information
Consolidating Balance Sheets and Statements
of Operations
For the Period Ended October 17, 2025, and Year Ended December 31,
2024
SRM, Inc. dba Schwarz Ready Mix and Subsidiaries
Consolidated Balance Sheets
October 17, 2025
Schwarz
Ready
Mix
Schwarz
Sand, LLC
SRM
Leasing
LLC and
Subsidiary
Eliminating
Total
Assets
Current assets
Cash
$ 979,021
$ 26,960
$ 4,224
$ -
$ 1,010,205
Accounts receivable, net of allowance for doubtful accounts
17,762,739
616,618
1,707,959
(9,144,270 )
10,943,046
Inventory
3,037,930
556,439
-
-
3,594,369
Prepaid expenses
127,903
42,865
53,530
-
224,298
Total current assets
21,907,593
1,242,882
1,765,713
(9,144,270 )
15,771,918
Other long-term assets
20,000
-
-
-
20,000
Goodwill
5,453,386
-
-
-
5,453,386
Right-of-use assets
424,606
-
-
-
424,606
Property and equipment, net
7,086,031
7,381,452
10,887,677
-
25,355,160
Total long-term assets
12,984,023
7,381,452
10,887,677
-
31,253,152
Total assets
$ 34,891,616
$ 8,624,334
$ 12,653,390
$ (9,144,270 )
$ 47,025,070
Liabilities and Stockholders’ Equity
Current liabilities
Accounts payable
$ 7,368,089
$ 7,512,235
$ -
$ (9,144,270 )
$ 5,736,054
Accrued expenses
395,360
49,546
-
-
444,906
Income taxes payable
579,527
-
-
-
579,527
Customer deposits
-
-
-
-
-
Line of credit
-
-
-
-
-
Current maturities of lease liabilities
145,818
-
-
-
145,818
Current
maturities of long-term debt
-
-
-
-
-
Total current liabilities
8,488,794
7,561,781
-
(9,144,270 )
6,906,305
Long-term liabilities:
Asset retirement obligation
-
50,000
-
-
50,000
Notes payable to shareholders and members
2,147,000
-
-
-
2,147,000
Long-term lease liabilities
278,788
-
-
-
278,788
Long-term debt, net of current maturities
-
-
-
-
-
Total long-term liabilities
2,425,788
50,000
-
-
2,475,788
Total liabilities
10,914,582
7,611,781
-
(9,144,270 )
9,382,093
Stockholders’ Equity
Common stock - $1 par value, 100,000
authorized shares; 1,000 shares issued and outstanding
1,000
-
-
-
1,000
Retained earnings
23,976,034
-
-
-
23,976,034
Members capital
-
1,012,553
12,653,390
(13,665,943 )
-
Total stockholders’ equity - Schwarz Ready Mix
23,977,034
1,012,553
12,653,390
(13,665,943 )
23,977,034
Noncontrolling interests
-
-
-
13,665,943
13,665,943
Total equity
23,977,034
1,012,553
12,653,390
-
37,642,977
Total liabilities and stockholders’ equity
$ 34,891,616
$ 8,624,334
$ 12,653,390
$ (9,144,270 )
$ 47,025,070
See notes to consolidated financial statements.
19
SRM, Inc. dba Schwarz Ready Mix and Subsidiaries
Consolidated Balance Sheets
December 31, 2024
Schwarz
Ready
Mix
Schwarz
Sand, LLC
SRM
Leasing
LLC and
Subsidiary
Eliminating
Total
Assets
Current assets
Cash
$ 2,106,127
$ -
$ 1,566,665
$ -
$ 3,672,792
Accounts receivable, net of allowance for doubtful accounts
15,493,116
421,256
3,500
(4,792,292 )
11,125,580
Inventory
3,036,864
383,226
-
-
3,420,090
Prepaid
expenses
550,559
1,422
103,705
-
655,686
Total current assets
21,186,666
805,904
1,673,870
(4,792,292 )
18,874,148
Other long-term assets
20,000
-
-
-
20,000
Goodwill
5,453,386
-
-
-
5,453,386
Right-of-use assets
1,305,300
-
-
-
1,305,300
Property and equipment, net
7,385,787
8,113,846
11,946,837
-
27,446,470
Total long-term assets
14,164,473
8,113,846
11,946,837
-
34,225,156
Total assets
$ 35,351,139
$ 8,919,750
$ 13,620,707
$ (4,792,292 )
$ 53,099,304
Liabilities and Stockholders’ Equity
Current liabilities
Accounts payable
$ 4,906,361
$ 4,915,628
$ 67,789
$ (4,792,292 )
$ 5,097,486
Accrued expenses
799,571
21,830
-
-
821,401
Income taxes payable
546,344
-
-
-
546,344
Customer deposits
3,240,302
-
-
-
3,240,302
Line of credit
137,955
-
-
-
137,955
Current maturities of lease liabilities
136,225
-
-
-
136,225
Current maturities of long-term debt
1,162,394
316,544
1,254,563
-
2,733,501
Total current liabilities
10,929,152
5,254,002
1,322,352
(4,792,292 )
12,713,214
Long-term liabilities:
Asset retirement obligation
-
50,000
-
-
50,000
Notes payable to shareholders and members
3,863,000
2,850,000
1,550,000
-
8,263,000
Long-term lease liabilities
1,169,075
-
-
-
1,169,075
Long-term debt, net of current maturities
728,296
726,139
-
-
1,454,435
Total long-term liabilities
5,760,371
3,626,139
1,550,000
-
10,936,510
Total liabilities
16,689,523
8,880,141
2,872,352
(4,792,292 )
23,649,724
Stockholders’ Equity
Common stock -
$1 par value, 100,000 authorized shares; 1,000 shares issued and outstanding
1,000
-
-
-
1,000
Retained earnings
18,660,616
-
-
-
18,660,616
Members capital
-
39,609
10,748,355
(10,787,964 )
-
Total stockholders’ equity - Schwarz Ready Mix
18,661,616
39,609
10,748,355
(10,787,964 )
18,661,616
Noncontrolling interests
-
-
-
10,787,964
10,787,964
Total equity
18,661,616
39,609
10,748,355
-
29,449,580
Total liabilities and stockholders’ equity
$ 35,351,139
$ 8,919,750
$ 13,620,707
$ (4,792,292 )
$ 53,099,304
See notes to consolidated financial statements.
20
SRM, Inc. dba Schwarz Ready Mix and Subsidiaries
Consolidated Statements of Operations
Period Ended October 17, 2025
Schwarz
Ready
Mix
Schwarz
Sand, LLC
SRM
Leasing
LLC and
Subsidiary
Eliminating
Total
Revenues earned
$ 73,134,853
$ 5,587,596
$ 3,089,193
$ (6,381,140 )
$ 75,430,502
Cost of revenues earned
64,564,943
4,678,438
1,125,992
(6,316,790 )
64,052,583
Gross profit
8,569,910
909,158
1,963,201
(64,350 )
11,377,919
General and administrative expenses
2,949,854
194,567
15,912
(64,350 )
3,095,983
Income from operations
5,620,056
714,591
1,947,289
-
8,281,936
Other income (expense)
Interest expense
(187,446 )
(149,441 )
(29,596 )
-
(366,483 )
Gain (loss) on sale of assets
401,994
404,458
(26,015 )
-
780,437
Other income
63,998
3,336
13,357
-
80,691
278,546
258,353
(42,254 )
-
494,645
Net income before income taxes
5,898,602
972,944
1,905,035
-
8,776,581
Income tax expense
(583,184 )
-
-
-
(583,184 )
Net income - consolidated
5,315,418
972,944
1,905,035
-
8,193,397
Net income (loss) attributable to noncontrolling interests
-
972,944
1,905,035
-
2,877,979
Net income - Schwarz Ready Mix
$ 5,315,418
$ -
$ -
$ -
$ 5,315,418
See
notes to consolidated financial statements.
21
SRM, Inc. dba Schwarz Ready Mix and Subsidiaries
Consolidated Statements of Operations
Years Ended December 31, 2024
Schwarz
Ready
Mix
Schwarz
Sand, LLC
SRM
Leasing
LLC and
Subsidiary
Eliminating
Total
Revenues earned
$ 91,904,864
$ 4,898,406
$ 4,203,458
$ (6,391,888 )
$ 94,614,840
Cost of revenues earned
82,305,363
5,436,260
1,990,252
(6,306,088 )
83,425,787
Gross profit
9,599,501
(537,854 )
2,213,206
(85,800 )
11,189,053
General and administrative expenses
4,948,167
126,777
22,456
(85,800 )
5,011,600
Income from operations
4,651,334
(664,631 )
2,190,750
-
6,177,453
Other income (expense)
Interest expense
(441,786 )
(251,345 )
(268,346 )
-
(961,477 )
Gain (loss) on sale of assets
48,500
23,583
6,000
-
78,083
Other income
134,780
1,612
17,328
-
153,720
(258,506 )
(226,150 )
(245,018 )
-
(729,674 )
Net income before income taxes
4,392,828
(890,781 )
1,945,732
-
5,447,779
Income tax expense
(581,181 )
-
-
-
(581,181 )
Net income - consolidated
3,811,647
(890,781 )
1,945,732
-
4,866,598
Net income (loss) attributable to noncontrolling interests
-
(890,781 )
1,945,732
-
1,054,951
Net income - Schwarz Ready Mix
$ 3,811,647
$ -
$ -
$ -
$ 3,811,647
See notes to consolidated financial statements.
22
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Apr. 08, 2026
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