Capstone Energy Plus, Inc 8-K, filed Nov 17, 2023
Capstone Energy Plus, Inc. (CEPL)
About this 8-K
Capstone Energy Plus, Inc filed this 8-K on November 17, 2023, reporting on events of November 9, 2023.
Items reported
- Item 1.01: Entered into a material agreement
- Item 1.03: Bankruptcy or receivership
- Item 2.03: New debt or off-balance-sheet obligation
- Item 7.01: Regulation FD disclosure
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of The Securities Exchange Act of 1934
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
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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. ☐
Item 1.01 | Entry into a Material Definitive Agreement |
On November 15, 2023, the Company entered into the First Amendment (the “First Amendment”) to Super-Priority Senior Secured Debtor-In-Possession Note Purchase Agreement (the “DIP Note Purchase Agreement”) among the Company, as a Chapter 11 Debtor and Debtor-in-Possession, Capstone Turbine International, Inc. and Capstone Turbine Financial Services, LLC, each as a Chapter 11 Debtor and Debtor-in Possession and as a Guarantor, Broad Street Credit Holdings LLC (the “Purchaser”) as Purchaser, and Goldman Sachs Specialty Lending Group, L.P. as collateral agent for the Purchaser (the “Collateral Agent”). The First Amendment provides for (i) waiver by the Purchaser and the Collateral Agent of the Company’s breach of the covenant to have achieved certain milestones with respect of the Chapter 11 Cases (as defined below) and (ii) amended certain milestones, specifically that the Bankruptcy Court shall have entered the Final Order approving the DIP Note Purchase Agreement and shall have held a confirmation hearing and entered a Confirmation Order (as defined below) by no later than November 15, 2023 and that the Plan (as defined below) shall become effective by no later than November 30, 2023.
On November 15, 2023, the Company issued, and the Purchaser funded, $3.0 million in new money debtor-in-possession notes (“New Money DIP Notes”). The proceeds of the New Money DIP Notes will be used to fund restructuring expenses, for working capital and general corporate purposes. Borrowings under the DIP Note Purchase Agreement bear interest at a rate of the SOFR Rate plus 8.75% per annum, which is payable in kind by capitalizing the amount of such interest accrued and adding such accrued amounts to the outstanding principal of the New Money DIP Notes. The New Money DIP Notes mature on the earlier of (i) forty-two (42) calendar days after the Petition Date, (ii) the date that is thirty-five (35) calendar days after the Petition Date if the Final Order has not been entered by the Bankruptcy Court on or before such date; (iii) the date of consummation of any sale of all or substantially all of the assets of any of the Debtors pursuant to section 363 of the Bankruptcy Code; (iv) the occurrence and continuation of an Event of Default not waived by Purchaser; (v) the substantial consummation or effective date of any Chapter 11 plan in the Chapter 11 Cases; (vi) the date the Bankruptcy Court enters an order for the conversion of any of the Chapter 11 Cases of any Debtors to a case under chapter 7 of the Bankruptcy Code; and (vii) dismissal of any of the Chapter 11 Cases of any Debtor. Upon the Debtors’ emergence from bankruptcy, it is expected that the DIP Note Purchase Agreement will be replaced by the Exit Facility described in the Current Report on Form 8-K filed by the Company on September 28, 2023 (the “Prior 8-K”).
The DIP Note Purchase Agreement includes protections customary for financings of this type and size, including the reaffirmation of superpriority claims and priming liens on the Debtors’ assets, liens on previously unencumbered assets, in each case subject to certain Permitted Liens, and other protections set forth in the order approving the DIP Note Purchase Agreement. The DIP Note Purchase Agreement also includes conditions precedent, representations and warranties, affirmative and negative covenants, events of default, and other customary provisions.
The foregoing description of the First Amendment does not purport to be complete and is qualified in its entirety by reference to the copy of the First Amendment filed as Exhibit 4.1 hereto and incorporated herein by reference.
Item 1.03 | Bankruptcy or Receivership |
As previously disclosed, on September 28, 2023 (the “Petition Date”), Capstone Green Energy Corporation (the “Company”) and its wholly-owned subsidiaries, Capstone Turbine International, Inc. (“Capstone Turbine International”) and Capstone Turbine Financial Services, LLC (together with Capstone Turbine International and the Company, the “Debtors”), filed voluntary petitions (the “Chapter 11 Cases”) for relief under chapter 11 of title 11 (“Chapter 11”) of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”). The Chapter 11 Cases are being jointly administered only for procedural purposes under the caption In re Capstone Green Energy Corporation, Case No. 23-11634 (LSS) (Bankr. D. Del.).
On the Petition Date, the Debtors (i) entered into a Transaction Support Agreement (the “TSA”) with Goldman Sachs Specialty Lending Group, L.P., in its capacity as collateral agent (the “Collateral Agent”) under that certain Amended and Restated Note Purchase Agreement, dated as of October 1, 2020 (as amended, the “Note Purchase Agreement”), and Broad Street Credit Holdings LLC, an affiliate of the Collateral Agent, in its capacity as purchaser (“Purchaser” and, together with the Collateral Agent, the “Pre-Petition Secured Parties”) under the Note Purchase Agreement and (ii) filed with the Bankruptcy Court a joint prepackaged chapter 11 plan of reorganization (as amended, restated, supplemented or otherwise modified from time to time, the “Plan”). Capitalized terms used but not otherwise defined in this Current Report on Form 8-K shall have the respective meanings given to them in the Plan or TSA, as applicable.
The TSA and Plan contemplate the Debtors effectuating certain transactions (collectively, the “Restructuring”), pursuant to which, among other things, the Company shall become a private company (“Reorganized PrivateCo”) that shall continue to own assets consisting of (i) all of the Company’s right, title, and interest in and to certain trademarks of the Company and (ii) all assets owned by the Company relating to distributor support services (the “Retained Assets”), and Capstone Turbine International shall be re-named Capstone Green Energy Holdings, Inc. and expects to be a successor to the Company for purposes of Securities and Exchange Commission reporting following emergence. We also expect that certain income tax attributes will remain with Reorganized PrivateCo. All liabilities and assets other than those directly related to the Retained Assets and otherwise described in the Plan will be transferred to a newly formed subsidiary of Reorganized PublicCo (“New Subsidiary”), which shall be named Capstone Green Energy LLC and shall be the primary operating entity.
On October 24, 2023, in accordance with the TSA and the Plan, the Debtors filed a supplement to the Plan (the “Plan Supplement”) with the Bankruptcy Court, which included, among other things, (i) a valuation of the Reorganized Debtors, (ii) a schedule of rejected Executory Contracts and Unexpired Leases, (iii) a schedule of Assumed Executory Contracts and Unexpired Leases, (iv) a description of Retained Causes of Action, and (v) identification of the officers and board members for New Subsidiary and Reorganized PublicCo. The foregoing description of the Plan Supplement does not purport to be complete and is qualified in its entirety by reference to the full text of the Plan Supplement previously disclosed.
On November 14, 2023, the Bankruptcy Court entered an order (the “Confirmation Order”) confirming the Plan, including the Plan Supplement and all exhibits and schedules thereto, and all other documents filed in connection with the Plan. A copy of the Confirmation Order, with a copy of the Plan as confirmed attached thereto, is attached as Exhibit 2.1 to this Current Report on Form 8-K and is incorporated herein by reference.
The Plan provides for $7.0 million of new money exit financing, an increase from the originally contemplated $5.0 million of new money exit financing.
The Plan, the Plan Supplement, and related documents are available free of charge on the restructuring website administrated by the Debtors’ claims and noticing agent, Kroll Restructuring Administration LLC (“Kroll”), at https://cases.ra.kroll.com/capstone (the “Claims Agent Website”), which contains important information about the Chapter 11 Cases. The Company does not plan to file a Current Report on Form 8-K each time information, including any Plan supplement, is filed with the Bankruptcy Court or is made available at such website.
The Claims Agent Website contains third-party content and is provided for convenience only. The documents and other information available on the Claims Agent Website are not incorporated by reference into, and do not constitute a part of, this Current Report on Form 8-K.
Cautionary Note Regarding Trading in the Company’s Securities
The Company cautions that trading in its securities during the pendency of the Chapter 11 Cases is highly speculative and poses substantial risks. Following delisting from Nasdaq, the common stock of the Company is currently traded on the “Expert Market” of the OTC Markets Group, which only provides for unsolicited customer orders, and quotations in Expert Market securities are restricted from public viewing and are only available to certain eligible investors.
Additional Information on the Chapter 11 Cases
Court filings and information about the Chapter 11 Cases can be found at the Claims Agent Website or by contacting Kroll at 1-844-642-1256 (Toll Free), +1-646-651-1164 (International) or by e-mail at capstoneinfo@ra.kroll.com. The documents and other information available via such website or elsewhere are not part of this Current Report on Form 8-K and shall not be deemed incorporated herein.
Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant |
The information set forth below under Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
Item 7.01 | Regulation FD Disclosure |
On November 9, 2023, the Debtors filed certain additional exhibits to the Plan Supplement, including (i) a description of Retained Assets and Retained Contracts, (ii) an amended list of the officers and board members for the Reorganized Debtors, (iii) certain organizational documents of the Reorganized Debtors, and (iv) a Trademark License Agreement. The foregoing description of the additional Plan Supplement materials does not purport to be complete and is qualified in its entirety by reference to the Notice of Filing of Additional Exhibits to Plan Supplement, which is filed as Exhibit 99.1 hereto and is incorporated herein by reference.
On November 14, 2023, the Company issued a press release announcing the Bankruptcy Court’s entry of the Confirmation Order. A copy of the press release is attached as Exhibit 99.2 to this Current Report on Form 8-K and is incorporated herein by reference.
The information contained in this Item 7.01, including Exhibits 99.1 and 99.2, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that Section, nor shall such information be deemed incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as otherwise expressly set forth by specific reference in such a filing.
Cautionary Statement Concerning Forward-Looking Statements
This Current Report on Form 8-K contains forward-looking statements as defined in the Private Securities Litigation Reform Act of 1995, including the statement regarding the Chapter 11 Cases and other statements regarding the Company’s expectations, beliefs, plans, intentions, and strategies. The Company has tried to identify these forward-looking statements by using words such as “expect,” “anticipate,” “believe,” “could,” “should,” “estimate,” “intend,” “may,” “will,” “plan,” “goal” and similar terms and phrases, but such words, terms and phrases are not the exclusive means of identifying such statements. Actual results, performance and achievements could differ materially from those expressed in, or implied by, these forward-looking statements due to a variety of risks, uncertainties and other factors, including, but not limited to, the following: risks attendant to the Chapter 11 bankruptcy process, including the effects of Chapter 11, including increased legal and other professional costs necessary to execute the Chapter 11 process and on the Company’s liquidity and results of operations (including the availability of operating capital during the pendency of Chapter 11); the length of time that the Company will operate under Chapter 11 protection and the continued availability of operating capital during the pendency of Chapter 11; the consummation of the transactions contemplated by the TSA and the Plan, including the ability of the parties to negotiate definitive agreements with respect to the matters covered by the term sheets included in the TSA, the Plan or otherwise, the occurrence of events that may give rise to a right of any of the parties to terminate the TSA, and the ability of the parties thereto to satisfy the other conditions of the TSA or the Plan, as applicable, including satisfying the milestones specified in the TSA and the DIP Note Purchase Agreement; the Company’s ability to meet its financial obligations during the Chapter 11 process and to maintain contracts that are critical to its operations; the Company’s ability to comply with the restrictions imposed by the terms and conditions of the DIP Note Purchase Agreement and other financing arrangements; the effects of Chapter 11 on the interests of various constituents and financial stakeholders; the effect of the Chapter 11 filings on the Company’s relationships with vendors, regulatory authorities, employees and other third parties; possible proceedings that may be brought by third parties in connection with the Chapter 11 process and risks associated with third-party motions in Chapter 11; employee attrition and the Company’s ability to retain senior management and other key personnel due to the distractions and uncertainties; the impact and timing of any cost-savings measures and related local law requirements in various jurisdictions; the impact of litigation and regulatory proceedings; risks related to the restatement previously announced by the Company (including discovery of additional information relevant to the financial statements subject to restatement; changes in the effects of the restatement on the Company’s financial statements or financial results and delay in the filing of the amended 10-K and amended 10-Q’s due to the Company’s efforts to complete the restatement; the time, costs and expenses associated with the restatement; potential inquiries from the SEC and/or Nasdaq; the potential material adverse effect on the price of the Company’s common stock and possible stockholder lawsuits); and expectations regarding financial performance, strategic and operational plans, and other related matters. For a detailed discussion of factors that could affect the Company’s future operating results, please see the Company’s filings with the Securities and Exchange Commission, including the disclosures under “Risk Factors” in those filings. Except as expressly required by the federal securities laws, the Company undertakes no obligation to update or revise any forward-looking statements, whether as a result of new information, changed circumstances or future events or for any other reason.
Item 9.01Financial Statements and Exhibits.
(d) Exhibits.
Exhibit |
| Description |
2.1 | | |
4.1 | | |
99.1 | | Notice of Filing of Additional Exhibits to Plan Supplement, dated as of November 9, 2023. |
99.2 | | |
104 | | Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101). |
SIGNATURE
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.
CAPSTONE GREEN ENERGY CORPORATION | ||
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Date: November 17, 2023 | By: | /s/ Robert C. Flexon |
| | Name: Robert C. Flexon |
| | Title: Executive Chairman, Interim President and Chief Executive Officer |
EXHIBIT 2.1
IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE | ||
In re: CAPSTONE GREEN ENERGY CORPORATION, et al., Debtors.1 | : : : : : : : | Chapter 11 Case No. 23-11634 (LSS) |
| : | Re: Docket Nos. 17, 18, 70, 71, 90, 97, 98, 113, 115 |
FINDINGS OF FACT, CONCLUSIONS OF LAW,
AND ORDER (I) APPROVING THE DISCLOSURE STATEMENT;
(II) CONFIRMING THE JOINT PREPACKAGED CHAPTER 11 PLAN OF
REORGANIZATION OF CAPSTONE GREEN ENERGY CORPORATION
AND ITS DEBTOR AFFILIATES; AND (III) GRANTING RELATED RELIEF
The above-captioned debtors and debtors in possession (collectively, the “Debtors”) having:
1 | The Debtors in these Chapter 11 Cases, along with the last four digits of each Debtor’s federal tax identification number are: Capstone Green Energy Corporation (0883); Capstone Turbine International, Inc. (4270); and Capstone Turbine Financial Services, LLC (N/A). The Debtors’ mailing address is 16640 Stagg Street, Van Nuys, California 91406. |
| b. | commenced these Chapter 11 Cases by filing voluntary petitions for relief under the chapter 11 of the Bankruptcy Code on September 28, 2023 (the “Petition Date”) in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”); |
| c. | continued to operate their businesses and manage their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code; |
| d. | filed, on the Petition Date, the Plan;2 |
| e. | filed, on the Petition Date, the Disclosure Statement; |
| f. | filed, on the Petition Date, the Transaction Support Agreement, attached to the Disclosure Statement as Exhibit B thereto; |
| g. | filed, on the Petition Date, the Motion of Debtors for Entry of an Order (I) Scheduling a Combined Disclosure Statement Approval and Plan Confirmation Hearing, (II) Approving Related Dates, Deadlines, Notices, and Procedures, (III) Approving the Solicitation Procedures and Related Dates, Deadlines, and Notices, (IV) Conditionally Waiving the Requirements that (A) the U.S. Trustee Convene a Meeting of Creditors and (B) the Debtors File Schedules of Assets and Liabilities, Statements of Financial Affairs, and Rule 2015.3 Financial Reports, and (V) Granting Related Relief [Docket No. 14] (the “Scheduling Motion”); |
| h. | filed, on the Petition Date, the notice, setting forth, among other things, the date and time set for the hearing to consider the adequacy of the Disclosure Statement and the Confirmation of the Plan (the “Combined Hearing”), and the deadlines for filing objections to the Plan and the Disclosure Statement (the “Combined Hearing Notice”) on the Claims and Noticing Agent’s public website for these Chapter 11 Cases [Docket No. 51]; |
| i. | caused the Publication Notice to be published on October 5, 2023 in The New York Times (national edition), and on October 6, 2023 in USA Today (collectively, the “Publication Notice”);3 |
| j. | filed, on October 24, 2023, a revised version of the Plan with certain non-material revisions to address informal comments made by the Office of the United States Trustee for the District of Delaware (the “U.S. Trustee”), along with other minor technical modifications [Docket No. 70], a copy of which is attached hereto as Exhibit A; |
| k. | filed, on October 24, 2023, the Plan Supplement to Joint Prepackaged Chapter 11 Plan of Reorganization of Capstone Green Energy Corporation and Its Debtor Affiliates [Docket No. 71] (the “Plan Supplement”); |
2 | Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Plan. |
3 | See Certificate of Publication [Docket No. 56]. |
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| l. | filed, on November 2, 2023, the Voting Declaration, which detailed the solicitation of holders of Class 2 Pre-Petition Secured Claims and the results of such Class’s voting to accept or reject the Plan; |
| m. | filed, on November 2, 2023, the Memorandum of Law in Support of the Joint Prepackaged Chapter 11 Plan of Capstone Green Energy Corporation and Its Debtor Affiliates [Docket No. 97] (the “Confirmation Brief”); |
| n. | filed, on November 9, 2023, the Notice of Filing of Additional Exhibits to Plan Supplement [Docket No. 113] (the “Amended Plan Supplement” and together with the Plan Supplement, the “Plan Supplements”); |
| o. | filed, on November 13, 2023, a revised version of the Plan with certain non-material revisions to address informal comments made by the U.S. Trustee and United States Securities and Exchange Commission [Docket No. 115]; and |
| p. | filed, on November 13, 2023 the Declaration of John Juric of Capstone Green Energy Corporation in Support of Approval of the Debtors’ Disclosure Statement for and Confirmation of the Joint Prepackaged Chapter 11 Plan of Capstone Green Energy Corporation and Its Debtor Affiliates [Docket No. 116] (the “Confirmation Declaration”). |
The Bankruptcy Court having:
| a. | entered, on September 29, 2023, the Order (I) Scheduling a Combined Disclosure Statement Approval and Plan Confirmation Hearing, (II) Approving Related Dates, Deadlines, Notices, and Procedures, (III) Approving the Solicitation Procedures and Related Dates, Deadlines, and Notices, (IV) Conditionally Waiving the Requirements that (A) the U.S. Trustee Convene a Meeting of Creditors, and (B) the Debtors Files Schedules of Assets and Liabilities, Statements of Financial Affairs, and Rule 2015.3 Financial Reports, and (V) Granting Related Relief [Docket No. 48] (the “Scheduling Order”), which, among other things, approved the Debtors’ prepetition solicitation and tabulation procedures (the “Solicitation Procedures”); |
| b. | set September 27, 2023, as the voting record date (the “Voting Record Date”) for Holders of Class 2 Pre-Petition Secured Claims; |
| c. | set September 27, 2023, as the date by which the Debtors must commence solicitation (the “Solicitation Commencement Date”); |
| d. | set October 2, 2023, at 4:00 p.m. (prevailing Eastern Time) as the deadline by which Ballots must be received by the Debtors’ Claims and Noticing Agent (the “Voting Deadline”); |
| e. | set October 31, 2023, at 4:00 p.m. (prevailing Eastern Time) as the deadline by which objections to the Plan and the Disclosure Statement must be filed (the “Plan Objection Deadline”); |
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| f. | set November 2, 2023, as the deadline by which the Debtors shall file the Voting Declaration; |
| g. | set November 2, 2023, as the date by which the Debtors must file a reply to objections to the Plan and the Disclosure Statement and the Confirmation Brief; |
| h. | set November 13, 2023, at 2:00 p.m. (prevailing Eastern Time) as the date and time for the Combined Hearing pursuant to Bankruptcy Rules 3017 and 3018 and sections 1126, 1128, and 1129 of the Bankruptcy Code, subject to adjournment; |
| i. | reviewed the Plan, the Confirmation Brief, the Plan Supplements, the Voting Declaration, the Confirmation Declaration, the Disclosure Statement, and all pleadings, exhibits, statements, responses, and comments regarding Confirmation, including any and all objections, statements, and reservations of rights filed by parties in interest on the docket of these Chapter 11 Cases; |
| j. | held the Combined Hearing; |
| k. | heard the statements, arguments, and objections, if any, made by counsel in respect of Confirmation of the Plan and approval of the Disclosure Statement; |
| l. | considered all oral representations, testimony, documents, filings, and other evidence regarding Confirmation of the Plan and approval of the Disclosure Statement; and |
| m. | overruled any and all objections to the Plan, Confirmation, the adequacy of the Disclosure Statement, and all statements and reservations of right not consensually resolved or withdrawn unless otherwise indicated herein. |
NOW, THEREFORE, the Bankruptcy Court having found that notice of the Combined Hearing and the opportunity for any party in interest to object to final approval of the Disclosure Statement and Confirmation have been adequate and appropriate as to all parties affected or to be affected by the Plan and the transactions contemplated thereby, and the legal and factual bases set forth in the documents filed in support of Confirmation and all evidence proffered, admitted, or adduced by counsel at the Combined Hearing establish just cause for the relief granted herein; and after due deliberation thereon and good cause appearing therefor, the Bankruptcy Court hereby makes and issues the following Findings of Fact and Conclusions of Law, and Orders:
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FINDINGS OF FACT AND CONCLUSIONS OF LAW
IT IS HEREBY DETERMINED, FOUND, ADJUDGED, DECREED, AND ORDERED THAT:
| A. | Findings and Conclusions. |
| B. | Jurisdiction, Venue, and Core Proceeding. |
| C. | Eligibility for Relief. |
| D. | Commencement and Joint Administration of These Chapter 11 Cases. |
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| E. | Pre-Petition Marketing and Good Faith. |
| F. | Notice. |
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| G. | Solicitation. |
Class 1 (Secured Tax Claims), Class 3 (Other Secured Claims), Class 4 (Other Priority Claims),
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| H. | Adequacy of the Disclosure Statement. |
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| I. | Voting. |
| J. | Plan Supplements. |
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| K. | Modifications of the Plan. |
| L. | Burden of Proof: Confirmation of the Plan. |
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| M. | Compliance with Bankruptcy Code Requirements: Section 1129(a)(1). |
| (i) | Proper Classification: Sections 1122 and 1123(a)(1). |
| (ii) | Specified Unimpaired Classes: Section 1123(a)(2). |
Class | Claim or Interest |
1 | Secured Tax Claims |
3 | Other Secured Claims |
4 | Other Priority Claims |
5 | General Unsecured Claims |
6 | Intercompany Claims4 |
7 | Intercompany Interests |
| (iii) | Specified Treatment of Impaired Classes: Section 1123(a)(3). |
4 | Holders of Class 6 Intercompany Claims are either Unimpaired and presumed to accept the Plan or Impaired and deemed to reject the Plan. |
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Class | Claim or Interest |
2 | Pre-Petition Secured Claims |
6 | Intercompany Claims |
8 | Equity Interests |
9 | Section 510(b) Claims |
| (iv) | No Discrimination: Section 1123(a)(4). |
| (v) | Adequate Means for Plan Implementation: Section 1123(a)(5). |
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| (vi) | Voting Power of Equity Securities: Section 1123(a)(6). |
| (vii) | Designation of Directors and Officers: Section 1123(a)(7). |
| (viii) | Impairment / Unimpairment of Classes: Section 1123(b)(1). |
| (ix) | Assumption and Rejection of Executory Contracts and Unexpired Leases: Section 1123(b)(2). |
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| (x) | Compromise of Pre-Petition Secured Claims, Releases, Exculpation, Injunction, and Preservation of Claims and Causes of Action: Section 1123(b)(3). |
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| (xi) | Modification of Rights: Section 1123(b)(5). |
| (xii) | Additional Plan Provisions: Section 1123(b)(6). |
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| (xiii) | Cure of Defaults: Section 1123(d). |
| N. | Debtor Compliance with the Bankruptcy Code: Section 1129(a)(2). |
| a. | is an eligible debtor under section 109 of the Bankruptcy Code, and a proper proponent of the Plan under section 1121(a) of the Bankruptcy Code; |
| b. | has complied with applicable provisions of the Bankruptcy Code, except as otherwise provided or permitted by orders of the Bankruptcy Court; and |
| c. | complied with the applicable provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, any applicable non-bankruptcy law, rule and regulation, the Scheduling Order, and all other applicable law, in transmitting the Solicitation Packages and related documents and notices, and in soliciting and tabulating the votes on the Plan. |
| O. | Plan Proposed in Good Faith: Section 1129(a)(3). |
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| P. | Payment for Services or Costs and Expenses: Section 1129(a)(4). |
| Q. | Directors, Officers, and Insiders: Section 1129(a)(5). |
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| R. | No Rate Changes: Section 1129(a)(6). |
| S. | Best Interest of Creditors: Section 1129(a)(7). |
| T. | Acceptance by Certain Classes: Section 1129(a)(8). |
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| U. | Treatment of Claims Entitled to Priority Under Section 507(a) of the Bankruptcy Code: Section 1129(a)(9). |
| V. | Acceptance by At Least One Impaired Class: Section 1129(a)(10). |
| W. | Feasibility: Section 1129(a)(11). |
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| X. | Payment of Fees: Section 1129(a)(12). |
| Y. | Continuation of Employee Benefits: Section 1129(a)(13). |
| Z. | Non-Applicability of Certain Sections: 1129(a)(14), (15), and (16). |
| AA. | “Cram Down” Requirements: Section 1129(b). |
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| BB. | Only One Plan: Section 1129(c). |
| CC. | Principal Purpose of the Plan: Section 1129(d). |
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| DD. | Not Small Business Cases: Section 1129(e). |
| EE. | Good Faith Solicitation: Section 1125(e). |
| FF. | Implementation. |
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| GG. | Authority to Pursue, Settle, or Abandon Retained Causes of Action. |
| HH. | Good Faith. |
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| II. | Retention of Jurisdiction. |
ORDER
IT IS ORDERED, ADJUDGED, DECREED, AND DETERMINED THAT:
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Wilmington, Delaware /s/ Laurie Selber Silverstein______________
Dated: November 14, 2023LAURIE SELBER SILVERSTEIN
UNITED STATES BANKRUPTCY JUDGE
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Exhibit A
Plan
| | |
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
| : | |
In re: | : | Chapter 11 |
| : | |
CAPSTONE GREEN ENERGY CORPORATION, et al., | : : | Case No. 23-11634 (LSS) |
| : | |
Debtors.1 | : | (Jointly Administered) |
| : | |
JOINT PREPACKAGED CHAPTER 11 PLAN OF REORGANIZATION OF
CAPSTONE GREEN ENERGY CORPORATION AND ITS DEBTOR AFFILIATES
THIS CHAPTER 11 PLAN IS BEING SOLICITED FOR ACCEPTANCE OR REJECTIONS IN ACCORDANCE WITH SECTION 1125 OF THE BANKRUPTCY CODE AND WITHIN THE MEANING OF SECTION 1126 OF THE BANKRUPTCY CODE. THIS CHAPTER 11 PLAN WILL BE SUBMITTED TO THE BANKRUPTCY COURT FOR APPROVAL FOLLOWING SOLICITATION AND THE DEBTORS’ FILING FOR CHAPTER 11 BANKRUPTCY. |
Matthew B. Lunn (No. 4119) Shane M. Reil (No. 6195) YOUNG CONAWAY STARGATT & TAYLOR, LLP Rodney Square 1000 North King Street Wilmington, Delaware 19801 Telephone:(302) 571-6600 Facsimile:(302) 571-1253 Email: mlunn@ycst.com sreil@ycst.com Proposed Co-Counsel for the Debtors and Debtors in Possession | Peter A. Siddiqui (admitted pro hac vice) Ethan D. Trotz (admitted pro hac vice) Kenneth N. Hebeisen (admitted pro hac vice) KATTEN MUCHIN ROSENMAN LLP 525 W. Monroe Street Chicago, IL 60661 Telephone:(312) 902-5200 Facsimile:(312) 902-1061 Email: peter.siddiqui@katten.com ethan.trotz@katten.com ken.hebeisen@katten.com Proposed Co-Counsel for the Debtors and Debtors in Possession |
1 | The Debtors in these Chapter 11 Cases, along with the last four digits of each Debtor’s federal tax identification number are: Capstone Green Energy Corporation (0883); Capstone Turbine International, Inc. (4270); and Capstone Turbine Financial Services, LLC (N/A). The Debtors’ mailing address is 16640 Stagg Street, Van Nuys, California 91406. |
Table of Contents
Page
1.5Reference to Monetary Figures15
1.6Reference to the Debtors or Reorganized Debtors15
Article II ADMINISTRATIVE AND PRIORITY CLAIMS15
2.5Payment of Fees and Expenses16
Article III CLASSIFICATION, TREATMENT, AND VOTING OF CLAIMS AND INTERESTS17
3.1Classification of Claims and Interests17
3.2Treatment of Classes of Claims and Interests17
3.3Special Provision Governing Unimpaired Claims21
Article IV PROVISIONS FOR IMPLEMENTATION OF THE PLAN22
4.2Transactions On or After the Effective Date22
4.4Offering and Issuance of Securities23
4.6Vesting of Assets in the Reorganized Debtors24
4.7Cancellation of Notes, Instruments, Certificates, and Other Documents24
4.8Issuance of New Securities; Execution of Plan Documents25
4.12Section 1146(a) Exemption26
4.13Directors, Officers, and Management26
4.14Incentive Plans and Employee and Retiree Benefits26
4.15Preservation of Rights of Action27
4.16Pre-Petition Secured Party’s Fees27
Article V TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES28
5.1Assumption of Executory Contracts and Unexpired Leases28
5.2Cure of Defaults and Objections to Assumption29
5.3Pre-existing Payment and Other Obligations30
5.4Rejection Damages Claims and Objections to Rejection30
5.5Contracts, Intercompany Contracts, and Leases Entered Into After the Petition Date30
Article VI PROVISIONS GOVERNING DISTRIBUTIONS31
6.1Distributions on Account of Claims and Interests Allowed as of the Effective Date31
6.2Special Rules for Distributions to Holders of Disputed Claims and Interests31
6.3Delivery of Distributions32
6.4Claims Paid or Payable by Third Parties34
6.6Allocation Between Principal and Accrued Interest35
Article VII PROCEDURES FOR RESOLVING DISPUTED CLAIMS AND INTERESTS35
7.2Prosecution of Objections to Claims and Interests35
7.4Disallowance of Claims and Interests36
Article VIII EFFECT OF CONFIRMATION OF THE PLAN36
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8.6Protection Against Discriminatory Treatment39
Article IX CONDITIONS PRECEDENT TO THE EFFECTIVE DATE40
9.1Conditions Precedent to the Effective Date40
9.2Waiver of Conditions Precedent41
9.3Effect of Non-Occurrence of Conditions to Consummation41
Article X MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN41
10.2Revocation or Withdrawal of Plan42
10.3Confirmation of the Plan42
Article XI RETENTION OF JURISDICTION42
Article XII MISCELLANEOUS PROVISIONS44
12.2Payment of Statutory Fees44
12.4Elimination of Vacant Classes44
12.7Term of Injunctions or Stays46
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INTRODUCTION
Capstone Green Energy Corporation (“Capstone”) and its Debtor subsidiaries in the above-captioned Chapter 11 Cases jointly propose this Plan. Although proposed jointly for administrative purposes, the Plan constitutes a separate Plan for each Debtor for the resolution of outstanding claims against and interests in each Debtor pursuant to the Bankruptcy Code. Each Debtor is a proponent of the Plan within the meaning of section 1129 of the Bankruptcy Code. The classifications of claims and interests set forth in Article III shall be deemed to apply separately with respect to each Plan proposed by each Debtor, as applicable. The Plan contemplates no substantive consolidation of any of the Debtors. Reference is made to the Disclosure Statement for a discussion of the Debtors’ history, business, properties and operations, projections, risk factors, and a summary and analysis of this Plan and certain related matters.
DEFINED TERMS, RULES OF INTERPRETATION,
COMPUTATION OF TIME, GOVERNING LAW, AND OTHER REFERENCES
| 1.1 | Defined Terms |
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| 1.2 | Rules of Interpretation |
| 1.3 | Computation of Time |
Bankruptcy Rule 9006(a) applies in computing any period of time prescribed or allowed herein.
| 1.4 | Governing Law |
Except to the extent the Bankruptcy Code or Bankruptcy Rules apply, and subject to the provisions of any contract, lease, instrument, release, indenture, or other agreement or document entered into expressly in connection herewith, the rights and obligations arising hereunder shall be
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governed by, and construed and enforced in accordance with, the laws of the State of New York, without giving effect to conflict-of-laws principles.
| 1.5 | Reference to Monetary Figures |
All references in the Plan to monetary figures refer to currency of the United States of America, unless otherwise expressly provided.
| 1.6 | Reference to the Debtors or Reorganized Debtors |
Except as otherwise specifically provided in the Plan to the contrary, references in the Plan to the Debtors or to the Reorganized Debtors mean the Debtors and the Reorganized Debtors, as applicable, to the extent the context requires.
In accordance with section 1123(a)(l) of the Bankruptcy Code, Administrative Claims, Professional Claims, and Priority Tax Claims have not been classified and thus are excluded from the Classes of Claims set forth in Article III.
| 2.1 | Administrative Claims |
Unless otherwise agreed to by the holder of an Allowed Administrative Claim and the Debtors or Reorganized Debtors, as applicable, each holder of an Allowed Administrative Claim (other than holders of Professional Claims and Claims for fees and expenses pursuant to 28 U.S.C. § 1930) will receive in full and final satisfaction of its Administrative Claim an amount of Cash equal to the amount of such Allowed Administrative Claim at one of the following times, as applicable: (a) on the Effective Date, or as soon as practicable thereafter; (b) if the Administrative Claim is not Allowed as of the Effective Date, then no later than thirty (30) days after the date on which an order Allowing such Administrative Claim becomes a Final Order, or as soon as reasonably practicable thereafter; or (c) if the Allowed Administrative Claim is based on liabilities incurred by the Debtors in the ordinary course of their business after the Petition Date, then in accordance with the terms and conditions of the particular transaction giving rise to such Allowed Administrative Claims, without any further action by the holders of such Allowed Administrative Claims.
| 2.2 | Professional Claims |
All requests for payment of Professional Claims for services rendered and reimbursement of expenses incurred prior to the Confirmation Date must be filed no later than thirty (30) days after the Effective Date, and any holder of a Professional Claim that does not file and serve such application by such date shall be forever barred from asserting such Claim against the Debtors, Reorganized Debtors, or their respective properties, and such Claims shall be deemed discharged as of the Effective Date. The Bankruptcy Court shall determine the Allowed amounts of such Professional Claims after notice and a hearing in accordance with the procedures established by the Bankruptcy Code, provided that objections to any Professional Claim must be filed and served
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on the Reorganized Debtors and counsel to the Reorganized Debtors no later than twenty-eight (28) days after the filing of such request for payment of Professional Claims (unless otherwise agreed by the party requesting compensation of a Professional Claim). Reorganized PublicCo or New Subsidiary shall pay Professional Claims in Cash in the amount the Court Allows. From and after the Confirmation Date, any requirement that Professionals comply with sections 327 through 331 and 1103 of the Bankruptcy Code in seeking retention or compensation for services rendered after such date shall terminate, and the Reorganized Debtors may employ and pay any Professional in the ordinary course of business without any further notice to, or action, order, or approval of, the Bankruptcy Court.
| 2.3 | Priority Tax Claims |
Each holder of an Allowed Priority Tax Claim due and payable on or before the Effective Date shall receive on the Effective Date, or as soon as practicable thereafter, from the respective Debtor liable for such Allowed Priority Tax Claim, payment in Cash in an amount equal to the amount of such Allowed Priority Tax Claim. To the extent any Allowed Priority Tax Claim is not due and owing on the Effective Date, such Claim shall be paid in full in Cash in accordance with the terms of any agreement between the Debtors and the holder of such Claim, or as may be due and payable under applicable non-bankruptcy law, or in the ordinary course of business.
| 2.4 | DIP Claims |
Notwithstanding anything to the contrary herein, in full and final satisfaction, settlement, release, and discharge of, and in exchange for release of all Allowed DIP Claims, on the Effective Date, each holder of an Allowed DIP Claim shall receive its Pro Rata share of: (i) the DIP Claims Equitization Percentage of Reorganized PrivateCo Equity issued on the Effective Date in full and final satisfaction, settlement, release, and discharge of $10 million of the DIP Pre-Petition Roll Up Notes (plus any accrued unpaid interest thereon); (ii) principal under the New Debt Facility in an amount equal to, and in exchange for, one hundred percent (100%) of the principal amount of the DIP New Money Notes outstanding on the Effective Date (including accrued interest in respect of the DIP New Money Notes, the DIP Pre-Petition Roll Up Notes and the DIP Pre-Funding Notes) on a dollar-for-dollar basis; (iii) principal under the New Debt Facility in an amount equal to, and in exchange for, $5 million of the principal amount of the DIP Pre-Petition Roll Up Notes (plus any accrued unpaid interest thereon) outstanding on the Effective Date on a dollar-for-dollar basis; (iv) principal under the New Debt Facility in an amount equal to, and in exchange for, $3 million of the principal amount of the DIP Pre-Funding Roll Up Notes (plus any accrued unpaid interest thereon) outstanding on the Effective Date on a dollar-for-dollar basis; (v) indirect ownership of the New Subsidiary Preferred Units issued to Reorganized PrivateCo; and/or (vi) such other treatment as agreed by the Debtors and the applicable holder of DIP Claims.
| 2.5 | Payment of Fees and Expenses |
The fees and expenses of the Pre-Petition Secured Party and the DIP Purchaser, and their respective professionals, shall be paid in connection with this Plan or any applicable orders entered by the Bankruptcy Court, on the Effective Date, or, with the consent of the Pre-Petition Secured Party and the DIP Purchaser, as applicable, as soon as reasonably practicable thereafter. Nothing herein shall require the professionals for the Pre-Petition Secured Party or the DIP Purchaser to
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file applications with, or otherwise seek approval of, the Bankruptcy Court as a condition to the payment of such fees and expenses.
| 3.1 | Classification of Claims and Interests |
Except for the Claims addressed in Article II, all Claims and Interests are classified in the Classes set forth below in accordance with section 1122 of the Bankruptcy Code. A Claim or Interest is classified in a particular Class only to the extent that the Claim or Interest qualifies within the description of that Class and is classified in other Classes to the extent that any portion of the Claim or Interest qualifies within the description of such other Classes. A Claim or Interest is also classified in a particular Class for the purpose of receiving distributions pursuant to the Plan only to the extent that such Claim or Interest is an Allowed Claim or Interest in that Class and has not been paid, released or otherwise satisfied prior to the Effective Date.
Below is a chart assigning each Class a number for purposes of identifying each separate Class.
Class | Claim or Interest | Status | Voting Rights | |
1 2 | Pre-Petition Secured Claim | Unimpaired Impaired | Presumed to Accept Entitled to Vote | |
3 4 | Unimpaired Unimpaired | Presumed to Accept Presumed to Accept | ||
5 | Unimpaired | Presumed to Accept | ||
6 | Unimpaired/Impaired | Presumed to Accept/Deemed to Reject | ||
7 | Unimpaired | Deemed to Accept | ||
8 9 | | Impaired Impaired | Deemed to Reject Deemed to Reject | |
| 3.2 | Treatment of Classes of Claims and Interests |
This Plan is a joint plan but constitutes a separate Plan for each Debtor. Except to the extent that a holder of an Allowed Claim or Interest, as applicable, agrees to a less favorable treatment, such holder shall receive under the Plan the treatment described below in full and final satisfaction, settlement, release, and discharge of and in exchange for such holder’s Allowed Claim against or Interest in the Debtors, as applicable. Unless otherwise indicated, the holder of an Allowed Claim or Interest, as applicable, shall receive such treatment on the Effective Date, or as soon as practicable thereafter.
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| (1) | Classification: Class 1 consists of any Secured Tax Claims against any Debtor. |
| (2) | Treatment: Each holder of an Allowed Secured Tax Claim shall receive, as applicable: |
| A. | If the Allowed Secured Tax Claim is due and payable on or before the Effective Date, Cash in an amount equal to such Allowed Secured Tax Claim; or |
| B. | If the Allowed Secured Tax Claim is not due and payable on or before the Effective Date, such Claim shall be paid in full in Cash in accordance with the terms of any agreement between the Debtors and the holder of such Claim or as may be due and payable under applicable non-bankruptcy law or in the ordinary course of business, provided that to the extent the Allowed Secured Tax Claim is secured by an interest in property of an Estate, the holder of such Claim shall retain such interest in such property until paid in full therefor. |
| (3) | Voting: Class 1 is Unimpaired. Holders of Allowed Secured Tax Claims are conclusively presumed to have accepted the Plan under section 1126(f) of the Bankruptcy Code. Holders of Allowed Secured Tax Claims are not entitled to vote to accept or reject the Plan. |
| (1) | Classification: Class 2 consists of any Pre-Petition Secured Claim. |
| (4) | Voting: Class 2 is Impaired. Holders of an Allowed Pre-Petition Secured Claim are entitled to vote to accept or reject the Plan. |
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| (1) | Classification: Class 3 consists of any Other Secured Claims against any Debtor. |
| (2) | Treatment: Each holder of an Allowed Other Secured Claim shall, at the sole option of the Debtors or the Reorganized Debtors, as applicable: |
| A. | Have its Allowed Other Secured Claim reinstated and rendered Unimpaired in accordance with section 1124(2) of the Bankruptcy Code; or |
| B. | To the extent the Allowed Other Secured Claim is secured by an interest in property of an Estate, receive the property securing its Allowed Other Secured Claim and any interest on such Allowed Other Secured Claim required to be paid pursuant to section 506(b) of the Bankruptcy Code: provided that the holder of such Claim shall retain such interest in such property until paid in full therefor. |
| (3) | Voting: Class 3 is Unimpaired. Holders of Allowed Other Secured Claims are conclusively presumed to have accepted the Plan under section 1126(f) of the Bankruptcy Code. Holders of Allowed Other Secured Claims are not entitled to vote to accept or reject the Plan. |
| (1) | Classification: Class 4 consists of any Other Priority Claims against the Debtors. |
| (2) | Treatment: Each holder of an Allowed Other Priority Claim shall be paid in full in Cash. |
| (3) | Voting: Class 4 is Unimpaired. Holders of Allowed Other Priority Claims are conclusively presumed to have accepted the Plan under section 1126(f) of the Bankruptcy Code. Holders of Allowed Other Priority Claims are not entitled to vote to accept or reject the Plan. |
| (1) | Classification: Class 5 consists of any General Unsecured Claims against any Debtor. |
| (2) | Treatment: Each holder of an Allowed General Unsecured Claim shall receive Cash in an amount equal to such Allowed General Unsecured Claim on the later of the Effective Date or in the ordinary course of business in accordance with the terms and conditions of the particular transaction giving rise to such Allowed General Unsecured Claim. Each General |
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| Unsecured Claim shall be deemed Allowed unless specifically objected to or disallowed by a Final Order. |
| (3) | Voting: Class 5 is Unimpaired. Holders of Allowed General Unsecured Claims are conclusively presumed to have accepted the Plan under section 1126(f) of the Bankruptcy Code. Holders of Allowed General Unsecured Claims are not entitled to vote to accept or reject the Plan. |
| (1) | Classification: Class 6 consists of all Intercompany Claims. |
| (2) | Treatment: Intercompany Claims shall be, either: (i) reinstated as of the Effective Date or (ii) in the case of any Intercompany Claim against Capstone, (x) reinstated as Claims against Reorganized PublicCo or New Subsidiary, as applicable, or (y) cancelled, and no distribution shall be made on account of such Claims. |
| (3) | Voting: Holders of Intercompany Claims are either Unimpaired, and such holders of Intercompany Claims conclusively are presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code, or Impaired, and such holders of Intercompany Interests are deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code. Therefore, each holder of an Intercompany Claim will not be entitled to vote to accept or reject the Plan. |
| (1) | Classification: Class 7 consists of any Intercompany Interests. |
| (3) | Voting: Class 7 is Unimpaired as Intercompany Interests are being consensually restructured pursuant to the Restructuring. Holders of Intercompany Interests are conclusively deemed to have accepted the Plan |
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| pursuant to section 1126(f) of the Bankruptcy Code. Therefore, such holders are not entitled to vote to accept or reject the Plan. |
| (1) | Classification: Class 8 consists of any Equity Interests in Capstone. |
| (3) | Voting: Class 8 is Impaired. Holders of Equity Interests in Capstone are conclusively presumed to have rejected the Plan and are not entitled to vote to accept or reject the Plan. |
| (1) | Classification: Class 9 consists of any Section 510(b) Claims against any Debtor. |
| (2) | Allowance: Notwithstanding anything in the Plan to the contrary, a Section 510(b) Claim (if any) may only become Allowed by Final Order of the Bankruptcy Court. |
| (3) | Treatment: On the Effective Date, all Allowed Section 510(b) Claims shall be fully extinguished and discharged without any further action. No holder of Allowed Section 510(b) Claims shall be entitled to receive or retain any property under the Plan. |
| (4) | Voting: Class 9 is Impaired. Holders (if any) of Allowed Section 510(b) Claims are conclusively presumed to have rejected the Plan and are not entitled to vote to accept or reject the Plan. |
| 3.3 | Special Provision Governing Unimpaired Claims |
Except as otherwise provided in the Plan, nothing under the Plan shall affect the Debtors’ or the Reorganized Debtors’ rights regarding any Unimpaired Claim, including all rights regarding legal and equitable defenses to or setoffs or recoupments against any such Unimpaired Claim.
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| 4.1 | [Reserved] |
| 4.2 | Transactions On or After the Effective Date |
On the Effective Date and in accordance with Section 6.3(a) hereof, the Debtors or the Reorganized Debtors, as the case may be, the Pre-Petition Secured Party, and any other Entity party to the Restructuring shall take all actions that are necessary or appropriate to effect the Restructuring, including, but not limited to:
| (1) | Capstone and the Capstone Subsidiaries will enter into an IP Assignment Agreement; |
| (3) | New Subsidiary shall issue the New Subsidiary Preferred Units and the New Subsidiary Common Units to Capstone; |
| (4) | Capstone shall contribute all New Subsidiary Common Units to Capstone Turbine International; |
| (5) | Capstone Turbine International shall contribute all assets held by Branch Office - UK to New Subsidiary; |
| (7) | Capstone shall become a private company that shall continue to own the Retained Assets and the New Subsidiary Preferred Units and have no |
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| liabilities relating to, arising under or in connection with any Claims against, or Interest in, any Debtor; |
| (10) | Reorganized PrivateCo and Reorganized PublicCo will enter into the License Agreement; and; |
| (11) | Reorganized PrivateCo and Reorganized PublicCo and/or New Subsidiary will enter into the Services Agreement. |
| 4.3 | New Debt Facility |
Confirmation of the Plan shall constitute (i) approval by the Reorganized PublicCo and/or New Subsidiary of the New Debt Facility, the New Debt Facility Term Sheet, and all transactions contemplated thereby, including the payment of all fees, indemnities, and expenses provided for therein, and (ii) authorization of Reorganized PublicCo and New Subsidiary to enter into, execute and perform under the New Debt Facility Term Sheet and use New Debt Facility Net Proceeds in accordance with the terms of the New Debt Facility Term Sheet. On the Effective Date, all of the Liens and security interests to be granted as set forth in the New Debt Facility Term Sheet (i) shall be deemed to have been approved by New Subsidiary and its applicable subsidiaries, (ii) shall be legal, binding, and enforceable Liens on, and security interests in, the collateral granted thereunder in accordance with the terms of the New Debt Facility Term Sheet, (iii) shall be deemed perfected upon New Subsidiary’s entry into the New Debt Facility, subject only to such Liens and security interests as may be permitted as set forth in the New Debt Facility Term Sheet, and (iv) shall not be subject to recharacterization or equitable subordination for any purposes whatsoever and shall not constitute preferential transfers or fraudulent conveyances under the Bankruptcy Code or any applicable non-bankruptcy law.
| 4.4 | Offering and Issuance of Securities |
The offering, issuance, distribution, and exercise (as applicable) of any Securities, including, without limitation, the Reorganized PublicCo Equity, the Reorganized PrivateCo Equity, the New Subsidiary Common Units and the New Subsidiary Preferred Units, pursuant to the Plan will be in compliance with the registration requirements of the Securities Act or exempt from the registration requirements of section 5 therein pursuant to section 1145 of the Bankruptcy Code, section 4(2) of the Securities Act, or any other available exemption from registration under the Securities Act, as applicable. In addition, under section 1145 of the Bankruptcy Code, if applicable, any Securities issued under the Plan will be freely transferable under the Securities Act
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by the recipients thereof, subject to: (1) the provisions of section 1145(b)(1) of the Bankruptcy Code relating to the definition of an underwriter in section 2(a)(11) of the Securities Act, and compliance with any applicable state or foreign securities laws, if any, and the rules and regulations of the United States Securities and Exchange Commission, if any, applicable at the time of any future transfer of such Securities or instruments; (2) the restrictions, if any, on the transferability of such Securities and instruments; and (3) any other applicable regulatory approval.
The issuance of the Reorganized PublicCo Equity, the Reorganized PrivateCo Equity, the New Subsidiary Common Units and the New Subsidiary Preferred Units and any other options and associated equity awards is authorized without the need for any further corporate action or without any further action by the Debtors or the Reorganized Debtors, as applicable. All such Reorganized PublicCo Equity, the Reorganized PrivateCo Equity, New Subsidiary Common Units and New Subsidiary Preferred Units issued and distributed pursuant to the Plan shall be duly authorized, validly issued, fully paid, and non-assessable.
| 4.5 | Subordination |
The allowance, classification, and treatment of all Claims and Interests under the Plan shall conform to and with the respective contractual, legal, and equitable subordination rights of such Claims and Interests, and the Plan shall recognize and implement any such rights. Pursuant to section 510 of the Bankruptcy Code, except where otherwise provided herein, the Reorganized Debtors reserve the right, after notice and a hearing, to re-classify any Allowed Claim or Interest in accordance with any contractual, legal, or equitable subordination relating thereto.
| 4.6 | Vesting of Assets in the Reorganized Debtors |
Except as otherwise provided herein or in any agreement, instrument or other document incorporated in the Plan, on the Effective Date, all property in each Estate, all Causes of Action, and any property acquired by the Debtors under the Plan, in each case, other than the Retained Assets or Equity Interests cancelled pursuant to the Plan, shall vest in the Reorganized PublicCo or New Subsidiary, as applicable. Except as otherwise provided herein or in any agreement, instrument or other document incorporated in the Plan, on the Effective Date, the Retained Assets and any Causes of Action related to the Retained Assets shall vest in the Reorganized PrivateCo. On and after the Effective Date, except as otherwise provided in the Plan, each Reorganized Debtor may operate its business and use, acquire, or dispose of property and compromise or settle any Claims, Interests, or Causes of Action without supervision or approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy Code or Bankruptcy Rules. Notwithstanding anything to the contrary in the Plan, Reorganized PrivateCo shall have no liability with respect to, relating to, or in connection with any Claims (including, without limitation, Secured Tax Claims, Other Secured Claims, Other Priority Claims, General Unsecured Claims, Intercompany Claims and Section 510(b) Claims) against, or Interests (including, without limitation, Intercompany Interest and Equity Interests) in, any Debtor.
| 4.7 | Cancellation of Notes, Instruments, Certificates, and Other Documents |
On the Effective Date, except to the extent otherwise provided herein, all notes, instruments, Certificates, including without limitation, all equity grants, warrants, and/or restricted
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units and any agreement with respect to the foregoing, and other documents evidencing Claims or Interests shall be cancelled and the obligations of the Debtors or Reorganized Debtors and the non-Debtors’ Affiliates thereunder or in any way related thereto shall be discharged; provided, however, that notwithstanding Confirmation or the occurrence of the Effective Date, (i) any agreement that governs the rights of the holder of a Claim or Interest shall continue in effect solely for purposes of (a) allowing holders of Claims or Interests to receive distributions under the Plan and (b) allowing and preserving the rights of Reorganized PublicCo or New Subsidiary, as applicable, to make distributions on account of Claims and Interests as provided in Article VI and (ii) the Note Documents shall continue in effect solely for the purposes of allowing the NPA Collateral Agent to (a) receive payment of its fees and expenses as provided under the Note Documents and (b) have the benefit of all the rights and protections for the NPA Collateral Agent under the Note Documents, including, but not limited to, the preservation of any indemnification rights.
| 4.8 | Issuance of New Securities; Execution of Plan Documents |
Except as otherwise provided herein, on the Effective Date, or as soon as practicable thereafter, the Reorganized Debtors shall issue all Securities, notes, instruments, Certificates, and other documents required to be issued under the Plan.
| 4.9 | Corporate Action |
Each of the matters provided for by the Plan involving the corporate structure of the Debtors or corporate or related actions to be taken by or required of the Reorganized Debtors, whether taken prior to or as of the Effective Date, shall be authorized without the need for any further corporate action or without any further action by the Debtors or the Reorganized Debtors, as applicable. Such actions may include the following: (a) the adoption and filing of charters and bylaws; (b) the appointment of directors and officers; (c) entry into and performance under the New Debt Facility; and (d) the authorization, issuance, and distribution of the Reorganized PublicCo Equity, the Reorganized PrivateCo Equity, the New Subsidiary Common Units and the New Subsidiary Preferred Units pursuant to the Plan. For the avoidance of doubt, Confirmation of the Plan shall satisfy any shareholder vote requirements in accordance with section 303 of the Delaware General Corporation Law, 8 Del. C. 1953, § 303.
| 4.10 | Charter and Bylaws |
The certificates of incorporation and bylaws of the Reorganized Debtors (and other formation documents relating to limited liability companies, as applicable) shall be amended as may be required to be consistent with the provisions of the Plan and the Bankruptcy Code. The Reorganized Debtors’ certificates of incorporation shall include, among other things (and only to the extent required by section 1123(a)(6) of the Bankruptcy Code), provisions prohibiting the issuance of non-voting Equity Securities. After the Effective Date, the Reorganized Debtors may amend and restate their certificates of incorporation and other constituent documents as permitted by the laws of their respective jurisdictions of formation and their respective charters and bylaws. The corporate governance policies of the Reorganized Debtors shall be updated to comply with the requirements of the applicable listing exchange upon the completion of the listing.
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| 4.11 | Effectuating Documents; Further Transactions |
On and after the Effective Date, the Reorganized Debtors and the officers and members of the board of directors thereof, are authorized to and may issue, execute, deliver, file, or record such contracts, Securities, instruments, releases, and other agreements or documents and take such actions as may be necessary or appropriate to effectuate, implement, and further evidence the terms and conditions of the Plan and the Securities issued pursuant to the Plan in the name of and on behalf of the Reorganized Debtors, without the need for any approvals, authorizations, or consents except for those expressly required under the Plan.
| 4.12 | Section 1146(a) Exemption |
Pursuant to section 1146(a) of the Bankruptcy Code, any transfers of property under the Plan, including any transfer of property to Reorganized PublicCo and New Subsidiary, shall not be subject to any document recording tax, stamp tax, conveyance fee, intangibles or similar tax, mortgage tax, stamp act, real estate transfer tax, mortgage recording tax, or other similar tax or governmental assessment, and upon entry of the Confirmation Order, the appropriate state or local governmental officials or agents shall forgo the collection of any such tax or governmental assessment and accept for filing and recordation any of the foregoing instruments or other documents without the payment of any such tax, recordation fee or governmental assessment.
| 4.13 | Directors, Officers, and Management |
From and after the Effective Date, each director or officer of the Reorganized Debtors shall serve pursuant to the terms of their charters and bylaws or other constituent documents, and applicable state corporation law. Additionally, in accordance with section 1129(a)(5) of the Bankruptcy Code, the identities and affiliations of the members of the board of directors of the Reorganized Debtors and any Person proposed to serve as an officer of the Reorganized Debtors shall be disclosed in the Plan Supplement.
| 4.14 | Incentive Plans and Employee and Retiree Benefits |
Except as otherwise provided herein, on and after the Effective Date, subject to any Final Order, Reorganized PublicCo and/or New Subsidiary, as applicable, shall (a) amend, adopt, assume, and/or honor in the ordinary course of business, any contracts, agreements, policies, programs, and plans, in accordance with their respective terms, for, among other things, compensation, including any incentive plan, health care benefits, disability benefits, deferred compensation benefits, savings, severance benefits, retirement benefits, welfare benefits, workers’ compensation insurance, and accidental death and dismemberment insurance for the directors, officers, and employees of the Debtors who served in such capacity from and after the Petition Date (collectively, the “Employment Obligations”), and (b) honor, in the ordinary course of business, Claims of employees employed as of the Effective Date for accrued vacation time arising prior to the Petition Date and not otherwise paid pursuant to a Bankruptcy Court order, provided that the Reorganized PublicCo and/or New Subsidiary shall not be required to provide cash payments in respect of the value of accrued vacation time due to the Restructuring. Notwithstanding the foregoing, pursuant to section 1129(a)(13) of the Bankruptcy Code, from and after the Effective Date, all retiree benefits (as that term is defined in section 1114 of the
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Bankruptcy Code), if any, shall continue to be paid in accordance with applicable law. Aside from employees that will remain at Capstone to support the Retained Assets, New Subsidiary shall be the successor to Capstone with respect to the employment of the directors, officers, and employees of the Debtors or relating to any Employment Obligations (as defined in the Plan). Reorganized PrivateCo shall have no liability with respect to, relating to, or in connection with the Employment Obligations or any Claims against any Debtor.
| 4.15 | Preservation of Rights of Action |
Unless any Causes of Action against an Entity are expressly waived, relinquished, exculpated, released, compromised, or settled in the Plan or by a Final Order, in accordance with section 1123(b) of the Bankruptcy Code, subject to Section 4.6 herein, the Reorganized Debtors shall retain and may enforce all rights to commence and pursue any and all Causes of Action, whether arising before or after the Petition Date, and the Reorganized Debtors’ rights to commence, prosecute, or settle such Causes of Action shall be preserved notwithstanding the occurrence of the Effective Date. No Entity may rely on the absence of a specific reference in the Plan or the Disclosure Statement to any Cause of Action against them as any indication that the Debtors or the Reorganized Debtors will not pursue any and all available Causes of Action against them. The Debtors and the Reorganized Debtors expressly reserve all rights to prosecute any and all Causes of Action against any Entity, except as otherwise expressly provided in the Plan. Unless any Causes of Action against an Entity are expressly waived, relinquished, exculpated, released, compromised, or settled in the Plan or Bankruptcy Court order, the Reorganized Debtors expressly reserve all Causes of Action for later adjudication and, therefore, no preclusion doctrine, including the doctrines of res judicata, collateral estoppel, issue preclusion, claim preclusion, estoppel (judicial, equitable or otherwise), or laches shall apply to such Causes of Action upon, after, or as a consequence of the Confirmation or Consummation.
The Reorganized Debtors reserve and shall retain Causes of Action notwithstanding the rejection of any Executory Contract or Unexpired Lease during the Chapter 11 Cases or pursuant to the Plan. In accordance with sections 1123(b)(3) and 1141(b) of the Bankruptcy Code, any Causes of Action that the Debtors may hold against any Entity shall vest in the Reorganized Debtors. The Reorganized Debtors, through its authorized agents or representatives, shall retain and may exclusively enforce any and all such Causes of Action. The Reorganized Debtors shall have the exclusive right, authority, and discretion to determine and to initiate, file, prosecute, enforce, abandon, settle, compromise, release, withdraw, or litigate to judgment any such Causes of Action, or to decline to do any of the foregoing, without the consent or approval of any third party or any further notice to, or action, order or approval of, the Bankruptcy Court.
| 4.16 | Pre-Petition Secured Party’s Fees |
Subject to entry of the Confirmation Order, and without in any way limiting the payment obligations under any existing engagement letter or any applicable order entered in the Chapter 11 Cases, the reasonable fees and expenses (including attorneys’ fees and financial advisors’ fees) of the Pre-Petition Secured Party in connection with the Restructuring, including, but not limited to, the reasonable fees and expenses of (i) Cleary Gottlieb Steen & Hamilton LLP, and (ii) Deloitte Transactions & Business Analytics LLP, will be paid in full in Cash by the Reorganized PublicCo,
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without further notice to, or action, order, or approval of the Bankruptcy Court, no later than thirty (30) days after the Effective Date.
| 4.17 | Intercompany Claims. |
Notwithstanding anything in this Plan to the contrary, on the Effective Date, the Intercompany Claims shall be reinstated, or discharged and satisfied by contributions, distributions or otherwise, at the option of the Reorganized Debtors; provided, all Intercompany Claims against Capstone shall be either (x) reinstated as claims against Reorganized PublicCo or New Subsidiary, as applicable, or (y) deemed discharged and satisfied on the Effective Date, in either case at the election of Reorganized PublicCo. In no event shall Reorganized PrivateCo have any liabilities relating to, arising under, or in connection with Intercompany Claims.
| 4.18 | Rejection Damages Claims. |
Holders of Unimpaired Claims shall not be required to file a Proof of Claim with the Bankruptcy Court, except for claims for damages related to the rejection of Executory Contracts and Unexpired Leases (any such Claims, “Rejection Damages Claims”). Holders of Unimpaired Claims other than those holding Rejection Damages Claims shall not be subject to any Claims resolution process in the Bankruptcy Court in connection with their Claims, and shall retain all of their rights under applicable non-bankruptcy law to pursue their Claims against the Debtors or Reorganized Debtors or other Entity in any forum with jurisdiction over the parties. The Debtors and Reorganized Debtors shall retain all defenses, counterclaims, rights to setoff, and rights to recoupment as to Unimpaired Claims. If the Debtors or the Reorganized Debtors dispute any Unimpaired Claim, such dispute shall be determined, resolved or adjudicated in the manner as if the Chapter 11 Cases had not been commenced, except with respect to Rejection Damages Claims, which shall be determined, resolved or adjudicated as set forth in Article V of the Plan.
| 5.1 | Assumption of Executory Contracts and Unexpired Leases |
No Executory Contract and Unexpired Lease shall be assumed by Reorganized PrivateCo unless such Executory Contract and Unexpired Lease is listed as “assumed” by Reorganized PrivateCo in the Plan Supplement. Except as otherwise provided herein, each Executory Contract and Unexpired Lease shall be deemed assumed by Capstone and/or the applicable Debtor counterparty (excluding, for the avoidance of doubt, Reorganized PrivateCo) and assigned to Reorganized PublicCo or New Subsidiary, as applicable, without the need for any further notice to, or action, order, or approval of, the Bankruptcy Court, as of the Effective Date under section 365 of the Bankruptcy Code, unless any such Executory Contract or Unexpired Lease: (a) is a Retained Contract; (b) is listed on the Rejection Schedule; (c) has been previously assumed or rejected by the Debtors by Final Order or has been assumed or rejected by the Debtors by order of the Bankruptcy Court as of the Effective Date, which order becomes a Final Order after the Effective Date; or (d) is the subject of a motion to assume or reject pending as of the Effective Date. The assumption of Executory Contracts and Unexpired Leases hereunder may include the
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assignment of certain of such contracts to Affiliates. The Confirmation Order will constitute an order of the Bankruptcy Court approving the above-described assumptions, assignments and rejections.
Except as otherwise provided herein or agreed to by the Debtors with the applicable counterparty, each assumed Executory Contract or Unexpired Lease shall include all modifications, amendments, supplements, restatements, or other agreements related thereto, and all rights related thereto, if any, including all easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, and any other interests, unless any of the foregoing agreements has been previously rejected or repudiated or is rejected or repudiated hereunder. Modifications, amendments, supplements and restatements to prepetition Executory Contracts and Unexpired Leases that have been executed by the Debtors during the Chapter 11 Cases shall not be deemed to alter the prepetition nature of the Executory Contract or Unexpired Lease or the validity, priority, or amount of any Claims that may arise in connection therewith.
| 5.2 | Cure of Defaults and Objections to Assumption |
Reorganized PublicCo or New Subsidiary, as applicable, shall pay Cures in the ordinary course after the Effective Date. Any dispute regarding a Cure shall be resolved in the ordinary course in an appropriate nonbankruptcy forum. Any Cure shall be deemed fully satisfied, released, and discharged upon payment by Reorganized PublicCo or New Subsidiary, as applicable, of the Cure. Reorganized PublicCo or New Subsidiary, as applicable, also may settle any Cure without any further notice to, or action, order or approval of, the Bankruptcy Court.
Any objection to the assumption of an Executory Contract or Unexpired Lease pursuant to the Plan on grounds other than Cure must be filed with the Bankruptcy Court by the deadline established for filing objections to the Plan. Any such objection will be scheduled to be heard by the Bankruptcy Court. Any counterparty to an Executory Contract or Unexpired Lease that fails to timely object to the proposed assumption of any Executory Contract or Unexpired Lease will be deemed to have consented to such assumption.
If there is a dispute regarding the ability of Reorganized PublicCo or New Subsidiary, as applicable, or any assignee to provide “adequate assurance of future performance” within the meaning of section 365 of the Bankruptcy Code, or any other matter pertaining to assumption, then payment of Cure shall occur as soon as practicable after entry of a Final Order resolving such dispute, approving such assumption (and, if applicable, assignment), or as may be agreed upon by Reorganized PublicCo or New Subsidiary, as applicable, and the counterparty to the Executory Contract or Unexpired Lease. Reorganized PublicCo or New Subsidiary, as applicable, reserves the right either to reject or nullify the assumption of any Executory Contract or Unexpired Lease within forty-five (45) days after entry of a Final Order resolving an objection to assumption or determining the Cure or any request for adequate assurance of future performance required to assume such Executory Contract or Unexpired Lease.
Assumption of any Executory Contract or Unexpired Lease pursuant to the Plan or otherwise shall result in the full release and satisfaction of any Cures, Claims, or defaults, whether monetary or nonmonetary, including defaults of provisions restricting the change in control or ownership interest composition or other bankruptcy-related defaults, arising under any assumed
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Executory Contract or Unexpired Lease at any time prior to the effective date of assumption. Any and all Claims based upon Executory Contracts or Unexpired Leases that have been assumed in the Chapter 11 Cases, including pursuant to the Confirmation Order, shall be deemed disallowed and expunged as of the Effective Date without the need for any objection thereto or any further notice to, or action, order or approval of, the Bankruptcy Court; provided, however, any Claim relating to a Cure shall be deemed disallowed and expunged as of the Effective Date only upon payment of the Cure or as otherwise agreed by the Reorganized Debtors and the applicable claimant.
| 5.3 | Pre-existing Payment and Other Obligations |
Rejection of any Executory Contract or Unexpired Lease pursuant to the Plan or otherwise shall not constitute a termination of pre-existing obligations owed to the Debtors or Reorganized Debtors, as applicable, under such contract or lease. In particular, to the extent permissible under applicable non-bankruptcy law, the Reorganized Debtors expressly reserve and do not waive any right to receive, or any continuing obligation of a counterparty to provide (a) payment to the contracting Debtors or Reorganized Debtors, as applicable, of outstanding and future amounts owing thereto under or in connection with rejected Executory Contracts or Unexpired Leases or (b) maintenance of, or to repair or replace, goods previously purchased by the contracting Debtors or Reorganized Debtors, as applicable.
| 5.4 | Rejection Damages Claims and Objections to Rejection |
Pursuant to section 502(g) of the Bankruptcy Code, counterparties to Executory Contracts or Unexpired Leases that are rejected shall have the right to assert Claims, if any, on account of the rejection of such contracts and leases. All Allowed Claims (excluding the Pre-Petition Secured Claim) arising from the rejection of Executory Contracts and Unexpired Leases shall be classified as Class 5 — General Unsecured Claims against the Debtor(s) counterparty thereto.
| 5.5 | Contracts, Intercompany Contracts, and Leases Entered Into After the Petition Date |
Contracts, Intercompany Contracts and leases entered into after the Petition Date by the Debtors and any Executory Contracts and Unexpired Leases assumed by the Debtors may be performed by Reorganized PublicCo and/or New Subsidiary, as applicable, in the ordinary course of business.
| 5.6 | Reservation of Rights |
Neither the exclusion nor inclusion of any contract or lease in the Plan Supplement, nor anything contained in the Plan, shall constitute an admission by the Debtors that any such contract or lease is in fact an Executory Contract or Unexpired Lease or that the Reorganized Debtors have any liability thereunder. If there is a dispute regarding whether a contract or lease is or was executory or unexpired at the time of assumption or rejection, the Debtors or Reorganized Debtors, as applicable, shall have forty-five (45) days following entry of a Final Order resolving such dispute to alter their treatment of such contract or lease.
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| 6.1 | Distributions on Account of Claims and Interests Allowed as of the Effective Date |
Except as otherwise provided in the Plan, a Final Order, or as otherwise agreed to by the Debtors or the Reorganized Debtors (as the case may be) and the holder of the applicable Claim or Interest, on the Effective Date or as soon as practicable thereafter, Reorganized PublicCo or New Subsidiary, as applicable, shall make initial distributions under the Plan on account of Claims and Interests Allowed on or before the Effective Date, subject to the Reorganized Debtors’ right to object to Claims and Interests; provided, however, that (a) Allowed Administrative Claims with respect to liabilities incurred by the Debtors in the ordinary course of business during the Chapter 11 Cases or assumed by the Debtors prior to the Effective Date shall be paid or performed in the ordinary course of business in accordance with the terms and conditions of any controlling agreements, course of dealing, course of business, or industry practice, (b) Allowed Priority Tax Claims and Allowed Secured Tax Claims shall be paid in accordance with Sections 2.3 and 3.2(a) hereof, respectively. To the extent any Allowed Priority Tax Claim or Allowed Secured Tax Claim is not due and owing on the Effective Date, such Claim shall be paid in full in Cash in accordance with the terms of any agreement between the Debtors and the holder of such Claim or as may be due and payable under applicable non-bankruptcy law or in the ordinary course of business. For the avoidance of doubt, distributions to holders of an Allowed Pre-Petition Secured Claim will be made on the Effective Date.
| 6.2 | Special Rules for Distributions to Holders of Disputed Claims and Interests |
Notwithstanding any provision otherwise in the Plan and except as otherwise agreed by the relevant parties, (a) no partial payments and no partial distributions shall be made with respect to a Disputed Claim or Interest until all such disputes in connection with such Disputed Claim or Interest have been resolved by settlement or Final Order, and (b) any Entity that holds both an Allowed Claim or Interest and a Disputed Claim or Interest shall not receive any distribution on the Allowed Claim or Interest unless and until all objections to the Disputed Claim or Interest have been resolved by settlement or Final Order or the Claims or Interests have been Allowed or expunged. Until a prepetition Unimpaired Claim has been (1) paid in full in accordance with applicable law, or on terms agreed to between the holder of such Claim and the applicable Reorganized Debtor(s), or in accordance with the terms and conditions of the particular transaction giving rise to such Claim, or (2) otherwise satisfied or disposed of as determined by a court of competent jurisdiction (the occurrence of (1) or (2), an “Unimpaired Claim Resolution”), (a) the provisions of Article VIII.1–VIII.5 of the Plan shall not apply or take effect with respect to such Claim; (b) such Claim shall not be deemed settled, satisfied, resolved, released, discharged, barred, or enjoined; (c) the property of the applicable Debtor’s or Debtors’ Estates that vests in the applicable Reorganized Debtor(s) pursuant to the Plan shall not be free and clear of such Claim; and (d) any Liens of securing such Claim shall not be deemed released (subclauses (a) through (d), collectively, the “Unimpaired Claim Carve Out”). Upon the occurrence of an Unimpaired Claim Resolution with respect to a prepetition Unimpaired Claim, the Unimpaired Claim Carve Out shall
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cease to apply to such Claim. Any dividends or other distributions arising from property distributed to holders of Allowed Claims or Interests, as applicable, in a Class and paid to such holders under the Plan shall be paid also, in the applicable amounts, to any holder of a Disputed Claim or Interest, as applicable, in such Class that becomes an Allowed Claim or Interest after the date or dates that such dividends or other distributions were earlier paid to holders of Allowed Claims or Interests in such Class.
| 6.3 | Delivery of Distributions |
On the Effective Date, distributions under the Plan shall be delivered by the Distribution Agent to each holder of such Interests. The Debtors, the Reorganized Debtors, the Pre-Petition Secured Party, the NPA Collateral Agent, and the Distribution Agent, as applicable, shall not incur any liability whatsoever on account of any distributions under the Plan except for gross negligence or willful misconduct.
For purposes of determining the accrual of dividends or other rights after the Effective Date, Reorganized PublicCo Equity, Reorganized PrivateCo Equity, New Subsidiary Common Units and New Subsidiary Preferred Units issued under the Plan shall be deemed distributed as of the Effective Date regardless of the date on which it is actually issued, dated, authenticated, or distributed.
In connection with the Plan, to the extent applicable, the Reorganized Debtors and the Distribution Agent shall comply with all tax withholding and reporting requirements imposed on them by any Governmental Unit, and all distributions pursuant to the Plan shall be subject to such withholding and reporting requirements. Notwithstanding any provision in the Plan to the contrary, the Reorganized Debtors and the Distribution Agent shall be authorized to take all actions necessary or appropriate to comply with such withholding and reporting requirements, including liquidating a portion of the distribution to be made under the Plan to generate sufficient funds to pay applicable withholding taxes, withholding distributions pending receipt of information necessary to facilitate such distributions, or establishing any other mechanisms they believe are reasonable and appropriate. The Reorganized Debtors reserve the right to allocate all distributions made under the Plan in compliance with all applicable wage garnishments, alimony, child support, and other spousal awards, liens, and encumbrances. All Persons holding Claims shall be required to provide any information necessary to effect information reporting and the withholding of such taxes. Notwithstanding any other provision of this Plan to the contrary, (a) each holder of an Allowed Claim shall have the sole and exclusive responsibility for the satisfaction and payment of any tax obligations imposed by any Governmental Unit, including income, withholding and other tax obligations, on account of such distribution, and (b) no distribution shall be made to or on behalf of such holder pursuant to the Plan unless and until such holder has made arrangements satisfactory to the Reorganized Debtors for the payment and satisfaction of such tax obligations.
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Except as otherwise provided in a Bankruptcy Court order, as of the Effective Date, any Claim asserted in currency other than U.S. dollars shall be automatically deemed converted to the equivalent U.S. dollar value using the exchange rate for the applicable currency as published in The Wall Street Journal, National Edition, on the Effective Date.
| (1) | No Fractional Distributions. The Distribution Agent may not make distributions of fractions of shares of Reorganized PublicCo Equity, Reorganized PrivateCo Equity, New Subsidiary Common Units or New Subsidiary Preferred Units, as applicable. Whenever fractional distributions would otherwise be called for, the actual distributions may reflect a rounding down of such fractions. |
| (2) | Undeliverable Distributions. If any distribution to a holder of an Allowed Claim or Interest is returned to a Distribution Agent as undeliverable, no further distributions shall be made to such holder unless and until such Distribution Agent is notified in writing of such holder’s then-current address or other necessary information for delivery, at which time all currently due missed distributions shall be made to such holder as soon as practicable. Undeliverable distributions shall remain in the possession of Reorganized PublicCo or New Subsidiary, as applicable, until such time as a distribution becomes deliverable, or such distribution reverts to Reorganized PublicCo or New Subsidiary or is cancelled pursuant to Section 6.3(e)(3) hereof, and shall not be supplemented with any interest, dividends, or other accruals of any kind. |
| (3) | Reversion. The Debtors shall use commercially reasonable efforts and cooperate as needed with those holding Allowed Claims to ensure distributions are received. Any distribution under the Plan that is an Unclaimed Distribution for a period of six months after distribution shall be deemed unclaimed property under section 347(b) of the Bankruptcy Code and such Unclaimed Distribution shall revest in the Reorganized Debtors and, to the extent such Unclaimed Distribution is a New Subsidiary Common Unit or a New Subsidiary Preferred Unit, shall be deemed cancelled. Upon such revesting, the Claim or Interest of any holder or its successors with respect to such property shall be cancelled, discharged, and forever barred notwithstanding any applicable federal or state escheat, abandoned or unclaimed property laws, or any provisions in any document governing the distribution that is an Unclaimed Distribution, to the contrary. |
On the Effective Date or as soon as practicable thereafter, each holder of a Certificate shall surrender such Certificate to the Distribution Agent. Such Certificate shall be cancelled solely
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with respect to the Debtors, and such cancellation shall not alter the obligations or rights of any non-Debtors third parties vis-a-vis one another with respect to such Certificate. No distribution of property pursuant to the Plan shall be made to or on behalf of any such holder unless and until such Certificate is received by the Distribution Agent or the unavailability of such Certificate is reasonably established to the satisfaction of the Distribution Agent pursuant to the provisions of Section 6.3(f) hereof. Any holder who fails to surrender or cause to be surrendered such Certificate or fails to execute and deliver an affidavit of loss and indemnity acceptable to the Distribution Agent prior to the first anniversary of the Effective Date shall have its Claim or Interest discharged with no further action, be forever barred from asserting any such Claim or Interest against the relevant Entity in the Reorganized Debtors or its property, be deemed to have forfeited all rights and Claims and Interests with respect to such Certificate, and not participate in any distribution under the Plan; furthermore, all property with respect to such forfeited distributions, including any dividends or interest attributable thereto, shall revert to the Reorganized Debtors notwithstanding any federal or state escheat, abandoned or unclaimed property law to the contrary. Notwithstanding the foregoing paragraph, this Section 6.3(e) shall not apply to any Claims and Interests reinstated pursuant to the terms of the Plan.
Any holder of Allowed Claims or Interests evidenced by a Certificate that has been lost, stolen, mutilated, or destroyed shall, in lieu of surrendering such Certificate, deliver to the Distribution Agent an affidavit of loss acceptable to the Distribution Agent setting forth the unavailability of the Certificate and such additional indemnity as may be required reasonably by the Distribution Agent to hold the Distribution Agent harmless from any damages, liabilities, or costs incurred in treating such holder as a holder of an Allowed Claim or Interest. Upon compliance with this procedure by a holder of an Allowed Claim or Interest evidenced by such a lost, stolen, mutilated, or destroyed Certificate, such holder shall, for all purposes pursuant to the Plan, be deemed to have surrendered such Certificate.
| 6.4 | Claims Paid or Payable by Third Parties |
A Claim shall be reduced in full and such Claim shall be disallowed without a Claims objection having to be filed and without any further notice to, or action, order or approval of, the Bankruptcy Court, to the extent that the holder of such Claim receives payment in full on account of such Claim from a party that is not the Debtors or the Reorganized Debtors. To the extent a holder of a Claim receives a distribution on account of such Claim and receives payment from a party that is not the Debtors or the Reorganized Debtors on account of such Claim, such holder shall repay, return, or deliver any distribution held by or transferred to the holder to the Reorganized Debtors to the extent the holder’s total recovery on account of such Claim from the third party and under the Plan exceeds the amount of such Claim as of the date of any such distribution under the Plan.
| 6.5 | Setoffs |
Except as otherwise expressly provided for herein (including with respect to any Pre-Petition Secured Claim with respect to letters of credit as provided in the definition of Other Secured Claims), the Reorganized Debtors, pursuant to the Bankruptcy Code (including section
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553 of the Bankruptcy Code), applicable nonbankruptcy law, or as may be agreed to by the holder of a Claim, may set off against any Allowed Claim and the distributions to be made pursuant to the Plan on account of such Allowed Claim (before any distribution is made on account of such Allowed Claim), any Claims, rights, and Causes of Action of any nature that the Debtors or Reorganized Debtors, as applicable, may hold against the holder of such Allowed Claim, to the extent such Claims, rights, or Causes of Action against such holder have not been otherwise compromised or settled on or prior to the Effective Date (whether pursuant to the Plan or otherwise): provided, however, that neither the failure to effect such a setoff nor the allowance of any Claim pursuant to the Plan shall constitute a waiver or release by such Reorganized Debtors of any such Claims, rights, and Causes of Action that such Reorganized Debtors may possess against such holder.
| 6.6 | Allocation Between Principal and Accrued Interest |
Except as otherwise provided in the Plan, the aggregate consideration paid to holders with respect to their Allowed Claims shall be treated pursuant to the Plan as allocated first to the principal amount of such Allowed Claims (to the extent thereof) and, thereafter, to the interest, if any, accrued through the Effective Date.
| 7.1 | Disputed Claims Process |
All Allowed Claims against the Debtors shall be paid in the ordinary course by Reorganized PublicCo or New Subsidiary. All Claims shall be asserted against Reorganized PublicCo and/or New Subsidiary, and Claims asserted against Reorganized PrivateCo shall be deemed Claims against Reorganized PublicCo and/or New Subsidiary. Parties are not required to file Proofs of Claim. In the event that one or more parties files a Proof of Claim, the Debtors or Reorganized Debtors, as applicable, reserve all rights to contest any such Proof of Claim. Except as otherwise provided herein, if a party files a Proof of Claim and the Debtors or Reorganized Debtors, as applicable, do not determine in their discretion, and without the need for notice to, or action, order or approval of, the Bankruptcy Court, that the Claim subject to such Proof of Claim is Allowed, such Claim shall be Disputed unless Allowed or disallowed by a Final Order or as otherwise set forth in this Article VII. For the avoidance of doubt, on and after the Effective Date, the Reorganized Debtors may negotiate and settle any Claims, including Claims for which a Proof of Claim has been filed, without further notice to or approval of the Bankruptcy Court, the Claims and Noticing Agent or any other party.
| 7.2 | Prosecution of Objections to Claims and Interests |
Except insofar as a Claim or Interest is Allowed under the Plan, the Debtors, the Reorganized Debtors, or any other party in interest shall be entitled to object to the Claim or Interest. Any objections to Claims and Interests shall be served and filed on or before the 120th day after the Effective Date or by such later date as ordered by the Bankruptcy Court. Notwithstanding anything to the contrary herein, the Reorganized Debtors may prosecute, adjudicate or otherwise resolve Claims and Interests in non-bankruptcy forums after the expiration
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of such 120-day period. For the avoidance of doubt, except as otherwise provided in the Plan, from and after the Effective Date, the Reorganized Debtors shall have and retain any and all rights and defenses such Debtors had immediately prior to the Effective Date with respect to any Disputed Claim or Interest, including the Causes of Action retained pursuant to Section 4.15 hereof.
| 7.3 | No Interest |
Unless otherwise specifically provided for in the Plan or by order of the Bankruptcy Court, post-petition interest shall not accrue or be paid on Claims, and no holder of a Claim shall be entitled to interest accruing on or after the Petition Date on any Claim or right. Additionally, and without limiting the foregoing, interest shall not accrue or be paid on any Disputed Claim with respect to the period from the Effective Date to the date a final distribution is made on account of such Disputed Claim, if and when such Disputed Claim becomes an Allowed Claim.
| 7.4 | Disallowance of Claims and Interests |
All Claims and Interests of any Entity from which property is sought by the Debtors under section 542, 543, 550, or 553 of the Bankruptcy Code or that the Debtors or the Reorganized Debtors allege is a transferee of a transfer that is avoidable under section 522(t), 522(h), 544, 545, 547, 548, 549, or 724(a) of the Bankruptcy Code shall be disallowed if (a) the Entity, on the one hand, and the Debtors or the Reorganized Debtors, on the other hand, agree, or the Bankruptcy Court has determined by Final Order, that such Entity or transferee is liable to turn over any property or monies under any of the aforementioned sections of the Bankruptcy Code and (b) such Entity or transferee has failed to turn over such property by the date set forth in such agreement or Final Order.
| 8.1 | Discharge of Claims and Termination of Interests |
Except as otherwise provided for herein and effective as of the Effective Date: (a) the rights afforded in the Plan and the treatment of all Claims and Interests shall be in exchange for and in complete satisfaction, discharge, and release of all Claims and Interests of any nature whatsoever against the Debtors or any of their assets, property, or Estates; (b) the Plan shall bind all holders of Claims and Interests, notwithstanding whether any such holders failed to vote to accept or reject the Plan or voted to reject the Plan; (c) all Claims and Interests shall be satisfied, discharged, and released in full, and the Debtors’ liability with respect thereto shall be extinguished completely, including any liability of the kind specified under section 502(g) of the Bankruptcy Code; and (d) all Entities shall be precluded from asserting against the Debtors, the Debtors’ Estates, the Reorganized Debtors, their successors and assigns, and their assets and properties any other Claims or Interests based upon any documents, instruments, or any act or omission, transaction, or other activity of any kind or nature that occurred prior to the Effective Date.
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| 8.2 | Releases by the Debtors |
Pursuant to section 1123(b) of the Bankruptcy Code, and except as otherwise specifically provided for herein, for good and valuable consideration, on and after the Effective Date, the Released Parties are deemed released and discharged by the Debtors, the Reorganized Debtors, and the Estates from any and all Claims, obligations, rights, and liabilities whatsoever, whether for tort, contract, violations of federal or state securities laws, including, but not limited to, any Claims asserted or arising from that certain class action complaint for alleged violations of federal securities laws filed in the United States District Court Central District of California (Case No. 2:23-cv-08659) and any and all allegations contained therein, Avoidance Actions, including any derivative Claims, asserted or that could possibly have been asserted directly or indirectly on behalf of the Debtors, whether known or unknown, foreseen or unforeseen, existing or hereafter arising, in law, equity, or otherwise, and any and all Causes of Action asserted or that could possibly have been asserted on behalf of the Debtors, that the Debtors, the Reorganized Debtors, the Estates, or Affiliates would have been legally entitled to assert in their own right (whether individually or collectively) or on behalf of the holder of any Claim or Interest or other Entity, based on or relating to, or in any manner arising from, in whole or in part, the Debtors or its Affiliates, the Chapter 11 Cases, the New Debt Facility, the Restructuring, the distribution, issuance, purchase, sale, or rescission of any Security of the Debtors or the Reorganized Debtors, the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the business or contractual arrangements between the Debtors and any Released Party, prepetition contracts and agreements with the Debtors (including the NPA), the Transaction Support Agreement, the restructuring of Claims and Interests prior to or in the Chapter 11 Cases, the negotiation, formulation, solicitation, or preparation of the Plan and Disclosure Statement or related agreements, instruments, or other documents, or any other act or omission, transaction, agreement, event, or other occurrence taking place before the Effective Date, other than Claims or liabilities arising out of or related to any contractual or fixed monetary obligation owed to the Debtors or the Reorganized Debtors, provided that Claims and Causes of Action for fraud, gross negligence, or willful misconduct shall not be so released.
Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval, pursuant to Bankruptcy Rule 9019, of the release set forth in this Section 8.2, which includes by reference each of the related provisions and definitions contained herein, and further, shall constitute the Bankruptcy Court’s finding that such release is: (a) in exchange for the good and valuable consideration provided by the Released Parties; (b) a good faith settlement and compromise of the Claims released by this Section 8.2; (c) in the best interests of the Debtors and all holders of Claims and Interests; (d) fair, equitable, and reasonable; (e) given and made after due notice and opportunity for hearing; and (f) a bar to the Debtors asserting any Claim or Cause of Action released by this Section 8.2.
| 8.3 | Releases by Certain Holders of Claims |
As of the Effective Date, the Releasing Parties shall be deemed to have conclusively, absolutely, unconditionally, irrevocably, and forever, released and discharged the Released Parties from any and all Claims, Interests, obligations, rights, liabilities, actions, causes of
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action, choses in action, suits, debts, damages, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, remedies, rights of set-off, third-party claims, subrogation claims, contribution claims, reimbursement claims, indemnity claims, counterclaims, and crossclaims (including all claims and actions against any Entities under the Bankruptcy Code) whatsoever, whether for tort, contract, violations of federal or state securities laws, Avoidance Actions, including any derivative Claims, asserted or that could be asserted on behalf of the Debtors, whether known or unknown, foreseen or unforeseen, existing or hereafter arising, in law, equity, or otherwise, that such Entity would have been legally entitled to assert (whether individually or collectively), based on or in any way relating to, or in any manner arising from, in whole or in part, the Debtors, the Debtors’ restructuring, the Chapter 11 Cases, the New Debt Facility, the Restructuring, the distribution, issuance, purchase, sale, or rescission of any Security of the Debtors or the Reorganized Debtors, the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the business or contractual arrangements between the Debtors and any Released Party, prepetition contracts and agreements with the Debtors (including the NPA), the Transaction Support Agreement, the restructuring of Claims and Interests prior to or in the Chapter 11 Cases, the negotiation, formulation, solicitation, or preparation of the Plan, the Disclosure Statement, or related agreements, instruments, or other documents, or any other act or omission, transaction, agreement, event, or other occurrence taking place before the Effective Date of the Plan; provided that Claims and Causes of Action for fraud, gross negligence, or willful misconduct shall not be so released. Notwithstanding anything to the contrary in the foregoing, the release set forth above does not release any obligations arising on or after the Effective Date of any party under the Plan, or any document, instrument, or agreement executed to implement the Plan.
Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval, pursuant to Bankruptcy Rule 9019, of the release set forth in this Section 8.3, which includes by reference each of the related provisions and definitions contained herein, and further, shall constitute the Bankruptcy Court’s finding that such release is: (a) in exchange for the good and valuable consideration provided by the Debtors, the Reorganized Debtors, the Estate, and the Released Parties; (b) a good faith settlement and compromise of the Claims released by this Section 8.3; (c) in the best interests of the Debtors and all holders of Claims and Interests; (d) fair, equitable, and reasonable; (e) given and made after due notice and opportunity for hearing; and (f) a bar to any Entity granting a release under this Section 8.3 from asserting any Claim or Cause of Action released by this Section 8.3.
| 8.4 | Exculpation |
No Exculpated Party shall have or incur, and each Exculpated Party is hereby released and exculpated from any Exculpated Claim or any obligation, Cause of Action, or liability for any Exculpated Claim; provided, however, that the foregoing “exculpation” shall have no effect on the liability of any Entity that results from any act or omission that is determined in a Final Order to have constituted fraud, gross negligence, or willful misconduct. The Exculpated Parties have, and upon Confirmation shall be deemed to have, participated in good faith and in compliance with the applicable provisions of the Bankruptcy Code with regard to the solicitation of acceptances and rejections of the Plan
38
and the making of distributions pursuant to the Plan and, therefore, are not and shall not be liable at any time for the violation of any applicable, law, rule, or regulation governing the solicitation of acceptances or rejections of the Plan or such distributions made pursuant to the Plan.
| 8.5 | Injunction |
Except as otherwise provided herein or for obligations issued pursuant hereto, all Entities that have held, hold, or may hold Claims or Interests that have been released pursuant to Section 8.2 or Section 8.3 hereof, discharged pursuant to Section 8.1 hereof, or are subject to exculpation pursuant to Section 8.4 hereof, are permanently enjoined, from and after the Effective Date, from taking any of the following actions against, as applicable, the Debtors, the Reorganized Debtors, the Released Parties, or the Exculpated Parties: (a) commencing or continuing in any manner any action or other proceeding of any kind on account of or in connection with or with respect to any such Claims or Interests; (b) enforcing, attaching, collecting, or recovering by any manner or means any judgment, award, decree, or order against such Entities on account of or in connection with or with respect to any such Claims or Interests; (c) creating, perfecting, or enforcing any encumbrance of any kind against such Entities or the property or Estates of such Entities on account of or in connection with or with respect to any such Claims or Interests; (d) asserting any right of setoff, subrogation, or recoupment of any kind against any obligation due from such Entities or against the property or Estates of such Entities on account of or in connection with or with respect to any such Claims or Interests unless such holder has filed a motion requesting the right to perform such setoff on or before the Confirmation Date; and (e) commencing or continuing in any manner any action or other proceeding of any kind on account of or in connection with or with respect to any such Claims or Interests released, exculpated, or settled pursuant to the Plan.
| 8.6 | Protection Against Discriminatory Treatment |
In accordance with section 525 of the Bankruptcy Code, and consistent with paragraph 2 of Article VI of the United States Constitution, no Governmental Unit shall discriminate against the Reorganized Debtors or any Entity with which the Reorganized Debtors has been or is associated, solely because the Reorganized Debtors were Debtors under chapter 11, may have been insolvent before the commencement of the Chapter 11 Cases (or during the Chapter 11 Cases but before the Debtors were granted a discharge), or has not paid a debt that is dischargeable in the Chapter 11 Cases.
| 8.7 | Indemnification |
On and from the Effective Date, and except as prohibited by applicable law, Reorganized PublicCo shall assume or reinstate, as applicable, all indemnification obligations in place as of the Effective Date (whether in bylaws, certificates of incorporation, board resolutions, contracts, or otherwise) for the current and former directors, officers, managers, employees, attorneys, other professionals, and agents of the Debtors and the respective Affiliates of such current and former directors, officers, managers, and employees. In no event shall Reorganized PrivateCo have any
39
liabilities relating to, arising under, or in connection with the foregoing indemnification obligations.
Reorganized PublicCo agrees to indemnify Reorganized PrivateCo, its affiliates and its respective officers, partners, directors, trustees, employees and agents (each, an “Indemnitee Agent Party”) for and against any and all liabilities, obligations, losses, damages, penalties, fees, fines, actions, judgments, suits, costs, reasonable and documented expenses (including attorneys’ fees and disbursements) or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against such Indemnitee Agent Party in any way relating to or arising out of events occurring prior to the Effective Date, including any governmental or regulatory agency fees, fines or penalties or any Claims, including any Section 510(b) Claims, in all cases, whether or not caused by or arising, in whole or in part, out of the comparative, contributory, or sole negligence of such Indemnitee Agent Party; provided, Reorganized PublicCo shall not be liable for any portion of such liabilities, obligations, losses, damages, penalties, fees, fines, actions, judgments, suits, costs, expenses or disbursements resulting from such Indemnitee Agent Party’s gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final, non-appealable order. The foregoing notwithstanding, (i) any and all taxes resulting from the Restructuring due and owing by Reorganized PrivateCo shall be the sole and exclusive responsibility of Reorganized PrivateCo and shall not be the responsibility of New Subsidiary and/or Reorganized PublicCo or covered by any indemnification provision in this Section 8.7 or otherwise, and (ii) any and all taxes resulting from the Restructuring due and owing by Reorganized PublicCo and New Subsidiary shall be the sole and exclusive responsibility of Reorganized PublicCo and New Subsidiary, as applicable.
| 8.8 | Release of Liens |
Except (a) with respect to the Liens securing the Secured Tax Claims or Other Secured Claims (depending on the treatment of such Claims), or (b) as otherwise provided herein or in any contract, instrument, release, or other agreement or document created pursuant to the Plan, on the Effective Date, all mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estate shall be fully released and discharged, and all of the right, title, and interest of any holder of such mortgages, deeds of trust, Liens, pledges, or other security interests shall revert to the Reorganized Debtors and its successors and assigns.
| 9.1 | Conditions Precedent to the Effective Date |
It shall be a condition to the Effective Date that the following conditions shall have been satisfied or waived pursuant to Section 9.2 hereof:
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| 9.2 | Waiver of Conditions Precedent |
The Debtors may, with the written consent of the Pre-Petition Secured Party and in consultation with the NPA Collateral Agent, waive any of the conditions to the Effective Date set forth in Section 9.1 hereof without any notice to any other parties in interest and without any further notice to, or action, order or approval of, the Bankruptcy Court, and without any formal action other than proceeding to confirm or consummate the Plan.
| 9.3 | Effect of Non-Occurrence of Conditions to Consummation |
If prior to Consummation, the Confirmation Order is vacated pursuant to a Final Order, then except as provided in any order of the Bankruptcy Court vacating the Confirmation Order, the Plan will be null and void in all respects, and nothing contained in the Plan or Disclosure Statement shall: (a) constitute a waiver or release of any Claims, Interests or Causes of Action; (b) prejudice in any manner the rights of the Debtors or any other Entity; or (c) constitute an admission, acknowledgment, offer, or undertaking of any sort by the Debtors or any other Entity.
| 10.1 | Modification of Plan |
Effective as of the date hereof, (a) the Debtors reserve the right, in accordance with the Bankruptcy Code and the Bankruptcy Rules, to amend or modify the Plan before the entry of the Confirmation Order, subject to the limitations set forth herein and the Transaction Support Agreement; and (b) after the entry of the Confirmation Order, the Debtors or the Reorganized Debtors, as applicable, may amend or modify the Plan, in accordance with section l127(b) of the Bankruptcy Code, remedy any defect or omission, or reconcile any inconsistency in the Plan in such manner as may be necessary to carry out the purpose and intent of the Plan, this clause (b) being subject in all cases to the limitations set forth herein and in the Transaction Support Agreement.
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| 10.2 | Revocation or Withdrawal of Plan |
Subject to the terms of the Transaction Support Agreement, the Debtors reserve the right to revoke or withdraw the Plan before the Confirmation Date and to file subsequent chapter 11 plans. If the Debtors revoke or withdraw the Plan, or if Confirmation or the Effective Date does not occur, then (a) the Plan will be null and void in all respects; (b) any settlement or compromise embodied in the Plan, assumption or rejection of Executory Contracts or Unexpired Leases effected by the Plan, and any document or agreement executed pursuant hereto will be null and void in all respects; and (c) nothing contained in the Plan shall (1) constitute a waiver or release of any Claims, Interests, or Causes of Action, (2) prejudice in any manner the rights of the Debtors or any other Entity, or (3) constitute an admission, acknowledgement, offer, or undertaking of any sort by the Debtors or any other Entity.
| 10.3 | Confirmation of the Plan |
The Debtors request Confirmation of the Plan under section 1129(b) of the Bankruptcy Code with respect to any Impaired Class that does not accept the Plan pursuant to section 1126 of the Bankruptcy Code. Subject to the terms of the Transaction Support Agreement, the Debtors reserve the right to amend the Plan to the extent, if any, that Confirmation pursuant to section 1129(b) of the Bankruptcy Code requires modification.
Pursuant to sections 105(c) and 1142 of the Bankruptcy Code and notwithstanding the entry of the Confirmation Order and the occurrence of the Effective Date, the Bankruptcy Court shall retain jurisdiction over all matters arising under the Bankruptcy Code or arising in, or related to, the Chapter 11 Cases, to the fullest extent permitted by law, including, among other things, jurisdiction to:
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| 12.1 | Additional Documents |
On or before the Effective Date, the Debtors may file with the Bankruptcy Court such agreements and other documents as may be necessary or appropriate to effectuate and further evidence the terms and conditions of the Plan. The Debtors or the Reorganized Debtors, as applicable, and all holders of Claims and Interests receiving distributions pursuant to the Plan and all other parties in interest shall, from time to time, prepare, execute, and deliver any agreements or documents and take any other actions as may be necessary or advisable to effectuate the provisions and intent of the Plan.
| 12.2 | Payment of Statutory Fees |
All fees payable pursuant to 28 U.S.C. § 1930(a) shall be paid for each quarter (including any fraction thereof) until the Chapter 11 Cases is converted, dismissed, or a Final Decree is issued, whichever occurs first.
| 12.3 | Reservation of Rights |
Except as expressly set forth herein, the Plan shall have no force or effect unless the Bankruptcy Court shall enter the Confirmation Order. None of the filing of the Plan, any statement or provision contained in the Plan, or the taking of any action by the Debtors with respect to the Plan or the Disclosure Statement shall be or shall be deemed to be an admission or waiver of any rights of the Debtors with respect to the holders of Claims or Interests prior to the Effective Date.
| 12.4 | Elimination of Vacant Classes |
Any Class of Claims that does not have a holder of an Allowed Claim or a Claim temporarily Allowed by the Bankruptcy Court as of the date of the Confirmation Hearing shall be deemed eliminated from the Plan for purposes of determining acceptance or rejection of the Plan by such Class pursuant to section l129(a)(8) of the Bankruptcy Code.
| 12.5 | Successors and Assigns |
The rights, benefits, and obligations of any Entity named or referred to in the Plan shall be binding on, and shall inure to the benefit of any heir, executor, administrator, successor or assign,
44
affiliate, officer, director, agent, representative, attorney, beneficiaries, or guardian, if any, of each Entity.
| 12.6 | Service of Documents |
After the Effective Date, any pleading, notice, or other document required by the Plan to be served on or delivered to the Reorganized Debtors shall be served on:
Debtors and Reorganized Debtors: |
16640 Stagg Street
Van Nuys, California 91406
Attention: John Juric, Chief Financial Officer
Telephone: (818) 734-5300
with a copy to:YOUNG CONAWAY STARGATT
& TAYLOR, LLP
Matthew B. Lunn
Shane M. Reil
Rodney Square
1000 North King Street
Wilmington, Delaware 19801
Telephone: (302) 571-6600
Facsimile: (302) 571-1253
mlunn@ycst.com
sreil@ycst.com
KATTEN MUCHIN ROSENMAN LLP
Peter A. Siddiqui
Ethan D. Trotz
Kenneth N. Hebeisen
525 West Monroe Street
Chicago, Illinois 60661
Telephone: (312) 902-5200
Facsimile: (312) 902-1061
peter.siddiqui@katten.com
ethan.trotz@katten.com
ken.hebeisen@katten.com
Pre-Petition Secured Party: | BROAD STREET CREDIT HOLDINGS LLC, a Delaware Limited Liability Company |
with a copy to:CLEARY GOTTLIEB STEEN &
HAMILTON LLP
Sean A. O’Neal
John Veraja
45
One Liberty Plaza
New York, NY 10006
Telephone: (212) 225-2000
soneal@cgsh.com
jveraja@cgsh.com
| 12.7 | Term of Injunctions or Stays |
Unless otherwise provided in the Plan or in the Confirmation Order, all injunctions or stays in effect in the Chapter 11 Cases (pursuant to sections 105 or 362 of the Bankruptcy Code or any order of the Bankruptcy Court) and existing on the Confirmation Date (excluding any injunctions or stays contained in the Plan or the Confirmation Order) shall remain in full force and effect until the Effective Date. All injunctions or stays contained in the Plan or the Confirmation Order shall remain in full force and effect in accordance with their terms.
| 12.8 | Entire Agreement |
Except as otherwise indicated, the Plan supersedes all previous and contemporaneous negotiations, promises, covenants, agreements, understandings, and representations on such subjects, all of which have become merged and integrated into the Plan.
| 12.9 | Non-Severability |
If, prior to Confirmation, any term or provision of the Plan is held by the Bankruptcy Court to be invalid, void, or unenforceable, the Bankruptcy Court shall have the power to alter and interpret such term or provision to make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of the term or provision held to be invalid, void, or unenforceable, and such term or provision shall then be applicable as altered or interpreted. Notwithstanding any such holding, alteration, or interpretation, the remainder of the terms and provisions of the Plan will remain in full force and effect and will in no way be affected, impaired, or invalidated by such holding, alteration, or interpretation. The Confirmation Order shall constitute a judicial determination and shall provide that each term and provision of the Plan, as it may have been altered or interpreted in accordance with the foregoing, is (a) valid and enforceable pursuant to its terms; (b) integral to the Plan and may not be deleted or modified without the Debtors’ consent; and (c) nonseverable and mutually dependent.
Dated: November 13, 2023 Capstone Green Energy Corporation
on behalf of itself and the other Debtors
_/s/ John Juric______________________
Name: John Juric
Title: Chief Financial Officer
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Exhibit B
Proposed Confirmation Order Notice
IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE | ||
In re: CAPSTONE GREEN ENERGY CORPORATION, et al., Debtors.1 | : : : : : : : | Chapter 11 Case No. 23-11634 (LSS) |
| : | Re: Docket Nos. 17, 18, 70, 71, 90, 97, 98, 113, 115 |
NOTICE OF ENTRY OF ORDER (I) APPROVING THE DISCLOSURE
STATEMENT; (II) CONFIRMING THE JOINT PREPACKAGED CHAPTER 11
PLAN OF REORGANIZATION OF CAPSTONE GREEN ENERGY CORPORATION
AND ITS DEBTOR AFFILIATES; AND (III) GRANTING RELATED RELIEF
PLEASE TAKE NOTICE that on [●], the Honorable Laurie Selber Silverstein, United States Bankruptcy Judge for the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”), entered the order [Docket No. [●]] (the “Confirmation Order”) confirming the Joint Prepackaged Chapter 11 Plan of Reorganization of Capstone Green Energy Corporation and its Debtor Affiliates [Docket No. 70] (as amended, modified, or supplemented, the “Plan”).2
PLEASE TAKE FURTHER NOTICE that copies of the Confirmation Order and the Plan, as well as other documents filed in these Chapter 11 Cases can be found on the docket of these Chapter 11 Cases and can also be downloaded free of charge from the website of the Debtors’ Claims and Noticing Agent, Kroll Restructuring Administration LLC, at https://cases.ra.kroll.com/capstone.
PLEASE TAKE FURTHER NOTICE that the Bankruptcy Court has approved certain release, exculpation, injunction, and related provisions in Article VIII of the Plan.
PLEASE TAKE FURTHER NOTICE that the Plan and Confirmation Order, and the provisions thereof, are binding on the Debtors, the Reorganized Debtors, any holder of a Claim against or Interest in the Debtors and such holder’s respective successors, assigns, and designees, whether or not the Claim or Interest of such holder is Impaired under the Plan and whether or not such holder or entity voted to accept the Plan.
1 | The Debtors in these Chapter 11 Cases, along with the last four digits of each Debtor’s federal tax identification number are: Capstone Green Energy Corporation (0883); Capstone Turbine International, Inc. (4270); and Capstone Turbine Financial Services, LLC (N/A). The Debtors’ mailing address is 16640 Stagg Street, Van Nuys, California 91406. |
2 | Unless otherwise defined in this notice, capitalized terms used in this notice shall have the meanings ascribed to them in the Plan or the Confirmation Order, as applicable. |
PLEASE TAKE FURTHER NOTICE that, pursuant to the Plan and the Confirmation Order, the deadline for filing requests for payment of Professional Claims shall be [●].3
PLEASE TAKE FURTHER NOTICE that holders of Unimpaired Claims shall not be required to file a Proof of Claim with the Bankruptcy Court, except for Claims for damages related to the rejection of Executory Contracts and Unexpired Leases (“Rejection Damages Claims”). Holders of Unimpaired Claims other than those holding Rejection Damages Claims shall not be subject to any Claims resolution process in the Bankruptcy Court in connection with their Claims, and shall retain all of their rights under applicable non-bankruptcy law to pursue their Claims against the Debtors or Reorganized Debtors or other Entity in any forum with jurisdiction over the parties. The Debtors and Reorganized Debtors shall retain all defenses, counterclaims, rights to setoff, and rights to recoupment as to Unimpaired Claims. If the Debtors or the Reorganized Debtors dispute any Unimpaired Claim, such dispute shall be determined, resolved or adjudicated in the manner as if the Chapter 11 Cases had not been commenced, except with respect to Rejection Damages Claims, which shall be determined, resolved or adjudicated as set forth in Article V of the Plan
PLEASE TAKE FURTHER NOTICE that from and after this date, if you wish to receive notice of filings in this case, you must request such notice with the clerk of the Bankruptcy Court and serve a copy of such request for notice on counsel to the Reorganized Debtors. You must do this even if you filed such a notice prior to the Effective Date.
PLEASE TAKE FURTHER NOTICE that the Plan and the Confirmation Order contain other provisions that may affect your rights. You are encouraged to review the Plan and the Confirmation Order in their entirety.
3 | The deadline for filing requests for payment of Professional Claims shall be 30 days after the Effective Date. |
| 2 | |
Dated: [●] ________________
Wilmington, DE
/s/ DRAFT
Shane M. Reil (No. 6195)
YOUNG CONAWAY STARGATT & TAYLOR, LLP
Rodney Square
1000 North King Street
Wilmington, Delaware 19801
Telephone: (302) 571-6600
Facsimile: (302) 571-1253
Email:mlunn@ycst.com
sreil@ycst.com
- and -
Peter A. Siddiqui (admitted pro hac vice)
Ethan D. Trotz (admitted pro hac vice)
Kenneth N. Hebeisen (admitted pro hac vice)
KATTEN MUCHIN ROSENMAN LLP
525 W. Monroe Street
Chicago, IL 60661
Telephone: (312) 902-5200
Facsimile: (312) 902-1061
Email:peter.siddiqui@katten.com
ethan.trotz@katten.com
ken.hebeisen@katten.com
PROPOSED COUNSEL FOR THE DEBTORS
AND DEBTORS IN POSSESSION
| 3 | |
EXHIBIT 4.1
FIRST AMENDMENT TO SUPER-PRIORITY SENIOR SECURED DEBTOR-IN-POSSESSION NOTE PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO SUPER-PRIORITY SENIOR SECURED DEBTOR-IN-POSSESSION NOTE PURCHASE AGREEMENT (this “First Amendment”) is entered into as of November [ ], 2023 by and among CAPSTONE GREEN ENERGY CORPORATION, a Delaware corporation (the “Company”), the Guarantors signatory hereto, the Purchaser signatory hereto and GOLDMAN SACHS SPECIALTY LENDING GROUP, L.P., as collateral agent for the Purchaser (in such capacity, the “Collateral Agent”).
RECITALS
A. The Company, certain subsidiaries of the Company, the Purchaser and the Collateral Agent are parties to a certain Super-Priority Senior Secured Debtor-in-Possession Note Purchase Agreement, dated as of October 2, 2023 (as amended, restated, supplemented or otherwise modified from time to time, the “DIP Note Purchase Agreement”; capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the DIP Note Purchase Agreement), pursuant to which the Purchaser has agreed to purchase the DIP Notes issued by Company;
B. The Company has informed the Collateral Agent and the Purchaser that an Event of Default has occurred and is continuing pursuant to Section 8.1 of the DIP Note Purchase Agreement as a result of its failure to satisfy (i) the requirement that the Bankruptcy Court shall have entered the Final Order approving the DIP Note Documents, which order shall be in form and substance acceptable to Purchaser, no later than thirty-five (35) calendar days after the Petition Date, as set forth in Section 5.18 and (ii) the requirement that the Bankruptcy Court shall have held a hearing (the “Confirmation Hearing”) and entered an order confirming the Plan and approving the Disclosure Statement (the “Confirmation Order”), which Confirmation Order shall be in form and substance acceptable to Purchaser, no later than thirty-five (35) calendar days after the Petition Date as set forth in Section 5.18 (collectively, the “Designated Events of Default”);
A. AMENDMENTS
“5.18Milestones. Company shall achieve the following milestones by the dates indicated
below:
1. The Debtors shall file (i) the Plan (as defined in the TSA), (ii) the Disclosure Statement (as defined in the TSA), (iii) a motion seeking approval of the DIP Note Documents (to be requested to be heard on shortened time), and (iv) any “first day” motions, each of which shall be in form and substance acceptable to Purchaser. | No later than the Petition Date |
2. The Bankruptcy Court shall have entered the Interim Order approving the DIP Note Documents, which order shall be in form and substance acceptable to Purchaser. | No later than three (3) calendar days after the Petition Date |
3. The Bankruptcy Court shall have entered the Final Order approving the DIP Note Documents, which order shall be in form and substance acceptable to Purchaser. | No later than November 15, 2023 |
4. The Bankruptcy Court shall have held a hearing (the “Confirmation Hearing”) and entered an order confirming the Plan and approving the Disclosure Statement (the “Confirmation Order”), which Confirmation Order shall be in form and substance acceptable to Purchaser. | No later than November 15, 2023 |
5. The Plan shall become effective (the “Plan Effective Date”). | No later than November 30, 2023 |
6. Company shall have delivered the Approved Budget to Collateral Agent. | On the Closing Date and on each Friday of every other calendar week thereafter |
7. Company shall have delivered a Variance Report to Collateral Agent. | On each Variance Report Date |
B. WAIVER OF DESIGNATED EVENTS OF DEFAULT
Subject to the terms and conditions of this First Amendment and in reliance upon the representations of the DIP Note Parties set forth in Section D below, Collateral Agent and the Purchaser hereby permanently waive the Designated Events of Default and their right to take any action under the DIP Note Purchase Agreement or the other DIP Note Documents that they may otherwise have or have had as a result of the occurrence of the Designated Events of Default, including the right to charge interest at the default rate due to the occurrence of the Designated Events of Default. This is a limited, one-time waiver and, except as expressly set forth herein, shall not be deemed to: (a) constitute a waiver of any other Event of Default or any other breach of the DIP Note Purchase Agreement or any of the other DIP Note Documents, whether now existing or hereafter arising, (b) constitute a waiver of any right or remedy of Collateral Agent or the Purchaser under the DIP Note Documents which does not arise as a result of the Designated Events of Default, or (c) establish a custom or course of dealing or conduct between Collateral Agent and
the Purchaser, on the one hand, and the DIP Note Parties on the other hand.
C. CONDITIONS TO EFFECTIVENESS
Notwithstanding any other provision of this First Amendment and without affecting in any manner the rights of the Purchaser hereunder, it is understood and agreed that this First Amendment shall not become effective, and the DIP Note Parties shall have no rights under this First Amendment, until:
| 1. | The Purchaser shall have received the following documents, in form and substance satisfactory to the Purchaser: executed counterparts to this First Amendment from the Company, each other DIP Note Party and the Purchaser. |
D. REPRESENTATIONS
Each DIP Note Party hereby represents and warrants to the Purchaser and the Collateral Agent that:
1.Each of the DIP Note Parties and its Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, (b) has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as proposed to be conducted, to enter into the DIP Note Documents to which it is a party and to carry out the transactions contemplated thereby, and (c) is qualified to do business and in good standing in every jurisdiction where its assets are located and wherever necessary to carry out its business and operations, except in jurisdictions where the failure to be so qualified or in good standing has not had, and could not be reasonably expected to have, a Material Adverse Effect; and
2.The execution, delivery and performance of this First Amendment has been duly authorized by all necessary action on the part of each DIP Note Party that is a party hereto.
E. OTHER AGREEMENTS
1.Continuing Effectiveness of DIP Note Documents. As amended hereby, all terms of the DIP Note Purchase Agreement and the other DIP Note Documents shall be and remain in full force and effect and shall constitute the legal, valid, binding and enforceable obligations of the DIP Note Parties party thereto. To the extent any terms and conditions in any of the other DIP Note Documents shall contradict or be in conflict with any terms or conditions of the DIP Note Purchase Agreement, after giving effect to this First Amendment, such terms and conditions are hereby deemed modified and amended accordingly to reflect the terms and conditions of the DIP Note Purchase Agreement as modified and amended hereby. Upon the effectiveness of this First Amendment such terms and conditions are hereby deemed modified and amended accordingly to reflect the terms and conditions of the DIP Note Purchase Agreement as modified and amended hereby.
2.Reaffirmation of Guaranty. Each Guarantor consents to the execution and delivery by the DIP Note Parties of this Amendment and the consummation of the transactions described herein, and ratifies and confirms the terms of the Guaranty to which such Guarantor is a
party with respect to the indebtedness now or hereafter outstanding under the DIP Note Purchase Agreement as amended hereby and all promissory notes issued thereunder. Each Guarantor acknowledges that, notwithstanding anything to the contrary contained herein or in any other document evidencing any indebtedness of the DIP Note Parties to the Purchaser or any other obligation of the DIP Note Parties, or any actions now or hereafter taken by the Purchaser with respect to any obligation of the DIP Note Parties, the Guaranty to which such Guarantor is a party (i) is and shall continue to be a primary obligation of such Guarantor, (ii) is and shall continue to be an absolute, unconditional, continuing and irrevocable guaranty of payment, and (iii) is and shall continue to be in full force and effect in accordance with its terms. Nothing contained herein to the contrary shall release, discharge, modify, change or affect the original liability of any Guarantor under the Guaranty to which such Guarantor is a party.
3.Acknowledgment of Perfection of Security Interest. Each DIP Note Party hereby acknowledges that, as of the date hereof, the security interests and liens granted to Collateral Agent and the Purchaser under the DIP Note Purchase Agreement and the other DIP Note Documents are in full force and effect, are properly perfected and are enforceable in accordance with the terms of the DIP Note Purchase Agreement and the other DIP Note Documents.
4.Effect of Agreement. Except as set forth expressly herein, all terms of the DIP Note Purchase Agreement, as amended hereby, and the other DIP Note Documents shall be and remain in full force and effect and shall constitute the legal, valid, binding and enforceable obligations of the DIP Note Parties to the Purchaser and Collateral Agent. The execution, delivery and effectiveness of this First Amendment shall not operate as a waiver of any right, power or remedy of the Purchaser under the DIP Note Purchase Agreement, nor constitute a waiver of any provision of the DIP Note Purchase Agreement, in each case, except as expressly provided herein. This First Amendment shall constitute a DIP Note Document for all purposes of the DIP Note Purchase Agreement.
5.Governing Law. This First Amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York and all applicable federal laws of the United States of America.
6.No Novation.This First Amendment is not intended by the parties to be, and shall not be construed to be, a novation of the DIP Note Purchase Agreement and the other DIP Note Documents or an accord and satisfaction in regard thereto.
7. Costs and Expenses. The DIP Note Parties agrees to pay on demand all costs and expenses of Purchaser and Collateral Agent in connection with the preparation, execution and delivery of this Amendment, including, without limitation, the reasonable fees and out-of-pocket expenses of outside counsel for Purchaser and Collateral Agent with respect thereto.
8.Counterparts. This First Amendment may be executed by one or more of the parties hereto in any number of separate counterparts, each of which shall be deemed an original and all of which, taken together, shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of this First Amendment by facsimile transmission, electronic transmission (including delivery of an executed counterpart in .pdf format) shall be as effective as delivery of a manually executed counterpart hereof.
9.Binding Nature. This First Amendment shall be binding upon and inure to the benefit of the parties hereto, their respective successors, successors-in-titles, and assigns. No third party beneficiaries are intended in connection with this First Amendment.
10.Entire Understanding. This First Amendment sets forth the entire understanding of the parties with respect to the matters set forth herein, and shall supersede any prior negotiations or agreements, whether written or oral, with respect thereto.
11.Release. (a) Each DIP Note Party hereby releases, acquits, and forever discharges Collateral Agent and the Purchaser, and each and every past and present subsidiary, affiliate, stockholder, officer, director, agent, servant, employee, representative, and attorney of Collateral Agent and the Purchaser (each a “Releasee”), from any and all claims, causes of action, suits, debts, liens, obligations, liabilities, demands, losses, costs and expenses (including attorneys' fees) of any kind, character, or nature whatsoever, known or unknown, fixed or contingent, which such DIP Note Party may have or claim to have now or which may hereafter arise out of or connected with any act of commission or omission of Releasee existing or occurring on or prior to the date of this First Amendment or any instrument executed on or prior to the date of this First Amendment including, without limitation, any claims, liabilities or obligations arising with respect to the DIP Note Purchase Agreement or the other of the DIP Note Documents. The provisions of this paragraph shall be binding upon each DIP Note Party and shall inure to the benefit of Releasees, and their respective heirs, executors, administrators, successors and assigns, and the other released parties set forth herein. No DIP Note Party is aware of any claim or offset against, or defense or counterclaim to, any DIP Note Party’s obligations or liabilities under the DIP Note Purchase Agreement or any other DIP Note Document. The provisions of this Section shall survive payment in full of the Obligations, full performance of the terms of this First Amendment and the DIP Note Documents, and/or Collateral Agent’s or Purchaser’s actions to exercise any remedy available under the DIP Note Documents or otherwise. Each DIP Note Party warrants and represents that such DIP Note Party is the sole and lawful owner of all right, title and interest in and to all of the claims released hereby and each DIP Note Party has not heretofore voluntarily, by operation of law or otherwise, assigned or transferred or purported to assign or transfer to any person any such claim or any portion thereof.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, this First Amendment has been duly executed as of the date first written above.
CAPSTONE GREEN ENERGY CORPORATION, as the Company and as a DIP Note Party
By: ____/s/ John Juric_____________________________
Name: John Juric
Title: Chief Financial Officer
Guarantors:
CAPSTONE TURBINE INTERNATIONAL, INC.
By: ____/s/ John Juric_____________________________
Name: John Juric
Title: Chief Financial Officer
CAPSTONE TURBINE FINANCIAL SERVICES, LLC
By: ____/s/ John Juric_____________________________
Name: John Juric
Title: Chief Financial Officer
[Signature Page to First Amendment to DIP Note Purchase Agreement]
BROAD STREET CREDIT HOLDINGS LLC as Purchaser
By: /s/ Gregg Watts
Name: Gregg Watts
Title: Authorized Signatory
GOLDMAN SACHS SPECIALTY LENDING GROUP, L.P. as Collateral Agent
By: /s/ Gregg Watts
Name: Greg Watts
Title: Authorized Signatory
EXHIBIT 99.1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
Notice of FILING OF ADDITIONAL EXHIBITS TO PLAN SUPPLEMENT
PLEASE TAKE NOTICE that, on September 28, 2023, the above-captioned debtors and debtors in possession (collectively, the “Debtors”) filed the Joint Prepackaged Chapter 11 Plan of Reorganization of Capstone Green Energy Corporation and Its Debtor Affiliates [Docket No. 17, revised at Docket No. 70] (as may be amended, supplemented, or modified from time to time, the “Plan”) and the related Disclosure Statement for the Joint Prepackaged Chapter 11 Plan of Reorganization of Capstone Green Energy Corporation and Its Debtor Affiliates (as may be amended, supplemented, or modified from time to time, the “Disclosure Statement”) [Docket No. 18].
PLEASE TAKE FURTHER NOTICE that, on October 24, 2023, the Debtors filed the Notice of Filing of Plan Supplement to Joint Prepackaged Chapter 11 Plan of Reorganization of Capstone Green Energy Corporation and Its Debtor Affiliates [Docket No. 71] (the “Plan Supplement Notice”).
PLEASE TAKE FURTHER NOTICE that, as indicated in the Plan Supplement Notice, the Debtors reserved their rights to amend, revise, or supplement the Plan Supplement and any of the documents and designations contained therein. Also as indicated in the Plan Supplement Notice, certain materials were omitted therefrom and were to be filed as soon as practicable prior to the Confirmation Hearing. Accordingly, the Debtors hereby file the following exhibits, (collectively, the “Additional Exhibits”), which, along with the exhibits attached to the original Plan Supplement Notice, comprise the Plan Supplement:
Exhibit | Plan Supplement Document |
E | Description of Retained Assets and Retained Contracts |
F | Directors and Officers of the Reorganized Debtors (Amended) |
F-1 | Redline to Exhibit F, filed October 24, 2023 |
G | Organizational Documents of the Reorganized Debtors |
I | Trademark License Agreement |
PLEASE TAKE FURTHER NOTICE that the Plan Supplement, the Plan, the Disclosure Statement, and related materials can be obtained free of charge at the Debtors’ public restructuring website maintained by Kroll Restructuring Administration LLC (the “Claims and Noticing Agent”) at https://cases.ra.kroll.com/capstone or by contacting the Claims and Noticing Agent at (844) 642-1256 (Toll-free from US / Canada) or +1 (646) 651-1164 (International). In addition, such documents are available for inspection for a fee on the Court’s website at www.deb.uscourts.gov and are on file with the Clerk of the Court, 824 North Market Street, 3rd Floor, Wilmington, Delaware 19801, where they are available for review between the hours of 8:00 a.m. to 4:00 p.m., prevailing Eastern Time.
PLEASE TAKE FURTHER NOTICE that, subject to the terms and conditions of the Plan, the Debtors reserve all rights to amend, supplement or modify the Plan Supplement and any of the documents and designations contained therein, including the Additional Exhibits, none of which shall be deemed final or binding on the Debtors prior to the Effective Date of the Plan.
Dated:November 9, 2023 | | /s/ Shane Reil | |
Wilmington, Delaware | | YOUNG CONAWAY STARGATT & TAYLOR, LLP Matthew B. Lunn (No. 4119) Shane M. Reil (No. 6195) Rodney Square 1000 North King Street Wilmington, DE 19801 Telephone: (302) 571-6600 Facsimile: (302) 571-1253 Email: mlunn@ycst.com sreil@ycst.com -and- KATTEN MUCHIN ROSENMAN LLP Peter A. Siddiqui (admitted pro hac vice) Ethan D. Trotz (admitted pro hac vice) Kenneth N. Hebeisen (admitted pro hac vice) 525 W. Monroe Street Chicago, IL 60661 Telephone: (312) 902-5200 Facsimile: (312) 902-1061 Email: peter.siddiqui@katten.com ethan.trotz@katten.com ken.hebeisen@katten.com Proposed Attorneys for the Debtors and Debtors in Possession | |
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Exhibit E
Description of Retained Assets and List of Retained Contracts
“Retained Assets” means (i) all of Capstone’s right, title, and interest in and to the Capstone Trademarks (including those that are assigned to Capstone pursuant to the IP Assignment Agreement); and (ii) all assets, including cash, accounts receivable, tangible assets and intangible assets, owned by Capstone as of the Petition Date, that relate solely to Distributor Support Services, which include certain computer equipment, software, trade show displays and contracts for the provision of Distributor Support Services to be entered into with certain distributors on or following the Effective Date; provided, however, that notwithstanding the foregoing, no Executory Contracts or Unexpired Leases existing prior to the Effective Date, other than Retained Contracts, shall be Retained Assets.
List of Retained Contracts: None.
Exhibit F
Directors and Officers of the Reorganized Debtors (Amended)
As of the Effective Date, the Reorganized PublicCo Board shall be appointed in accordance with the organizational documents of Reorganized PublicCo, the other constituent documents of the Reorganized Debtors, and the Plan. On the Effective Date, the Reorganized PublicCo Board shall consist of the following five members, all of whom served on the board of directors of Capstone Green Energy Corporation as of the Petition Date:
| ● | Robert C. Flexon: Mr. Flexon has decades of experience in the energy industry. He currently serves as Chair of the Board of PG&E Corporation and sits on the ERCOT Board of Directors, among other public company directorships. Prior to joining Capstone, Mr. Flexon served as: President and Chief Executive Officer of Dynegy Inc., an independent power producer and electricity marketer; Chief Financial Officer of UGI Corporation, a distributor and marketer of energy products and services; Chief Financial Officer and Chief Operating Officer of NRG Energy, Inc., a power generation and electricity marketer; and Chief Executive Officer of Foster Wheeler, a Swiss global engineering conglomerate. |
| ● | Ping Fu: Ms. Fu is the co-founder of Geomagic and served as its Chief Executive Officer until 2013. The 3D imaging and 3D printing technologies she created fundamentally changed the way products are designed and manufactured around the world. She also served as part of the team in creating the NCSA Mosaic software and HTTP server software that led to the exponential growth of the internet. She was the Chief Strategy and Chief Entrepreneur Officer at 3D Systems from 2013 to 2016, and has served on the boards of other public companies including Live Nation Entertainment, the Long Now Foundation, and the Burning Man Project. |
| ● | Yon Y. Jorden: Ms. Jorden is a seasoned board and audit committee member who has historically held strategic senior management and board positions in the energy, automation, and healthcare sectors. Today, Ms. Jorden serves as a director for public companies including Cohu, Inc. and Alignment Healthcare, Inc., as well as Methodist Health System, a not-for-profit Texas-based hospital system. Ms. Jorden previously was an independent director for Maxwell Technologies, Magnetek Incorporated, Bioscrip Incorporated, and U.S. Oncology Corporation. She also served as Chief Financial Officer of four publicly traded companies and non-profit organizations, including AdvancePCS, Informix Corporation, Oxford Health Plans, Inc., and WellPoint, Inc. |
| ● | Robert F. Powelson: Mr. Powelson is a highly respected leader in the power and energy regulatory industry. He has served as President and Chief Executive Officer of the National Association of Water Companies since 2018. Previously, Mr. Powelson served as Commissioner for the Federal Energy Regulatory Commission from 2017 to 2018, and President of the National Association of Regulatory Utility Commissioners in 2017. He also served on the Pennsylvania Public Utility Commission from 2008 to 2017, which he led as Chairman from 2011 to 2015. |
| ● | Denise Wilson: From 2011 to 2016, Ms. Wilson served as Executive Vice President and President of New Business for NRG Energy, Inc., an independent power company with generation, energy retail business and cleantech ventures. Ms. Wilson also served as Executive Vice President and Chief Administrative Officer of NRG from 2008 to 2011, among various other roles at NRG from 2000 to 2007. Further, Ms. Wilson has served in executive leadership roles in human resources for Nash-Finch Company, Metris Companies Inc., and General Electric ITS. |
Further, as of the Effective Date, the officers of the Reorganized Debtors shall be appointed in accordance with the organizational documents of the Reorganized Debtors and the Plan. On the Effective Date, the officers of both Reorganized PublicCo and New Subsidiary shall be as follows:
| ● | Interim President and Chief Executive Officer1 – Robert C. Flexon: Mr. Flexon brings years of industry experience to his interim role, including serving as Interim President and CEO of Capstone Green Energy Corporation since August 2023. As discussed above, Mr. Flexon brings both directorship and executive leadership in finance and accounting in the energy, chemicals and oil and gas sectors, plus safety, workforce organization, and turnarounds. |
| ● | Chief Financial Officer – John J. Juric: Mr. Juric, a Certified Public Accountant, has more than 25 years of experience in finance and business management, including serving as Capstone Green Energy Corporation’s CFO since March 2023. Before joining Capstone, Mr. Juric held several senior finance positions in prominent industries including: USALCO, LLC; Fiberweb, PLC; CIBA Specialty Chemicals; and Arco Chemical Company. |
Finally, on the Effective Date, the directors and officers of Reorganized PrivateCo shall be as follows:
| ● | Executive Director and Marketing Manager – Maria Silva: Ms. Silva is the former Marketing Manager of Capstone Green Energy Corporation and has been at Capstone for nearly 12 years. |
| ● | Director – Matt Carter: Mr. Carter is a Vice President at Goldman Sachs and a senior member of the private credit investing team within Goldman Sachs Asset and Wealth Management. Prior to joining Goldman Sachs in 2014, Mr. Carter worked at Barclays Capital and began his career at Lehman Brothers. Mr. Carter earned a B.S. in Economics from the Spears School of Business at Oklahoma State University. |
1 | An executive search for a permanent President and Chief Executive Officer of the Reorganized Debtors is currently underway but has not yet been completed. The Debtors expect the search to be completed following the Effective Date. |
2
Exhibit F-1
Redline to Exhibit F, filed October 24, 2023
Exhibit F
Directors and Officers of the Reorganized Debtors (Amended)
As of the Effective Date, the Reorganized PublicCo Board shall be appointed in accordance with the organizational documents of Reorganized PublicCo, the other constituent documents of the Reorganized Debtors, and the Plan. On the Effective Date, the Reorganized PublicCo Board shall consist of the following five members, all of whom served on the board of directors of Capstone Green Energy Corporation as of the Petition Date:
| ● | Robert C. Flexon: Mr. Flexon has decades of experience in the energy industry. He currently serves as Chair of the Board of PG&E Corporation and sits on the ERCOT Board of Directors, among other public company directorships. Prior to joining Capstone, Mr. Flexon served as: President and Chief Executive Officer of Dynegy Inc., an independent power producer and electricity marketer; Chief Financial Officer of UGI Corporation, a distributor and marketer of energy products and services; Chief Financial Officer and Chief Operating Officer of NRG Energy, Inc., a power generation and electricity marketer; and Chief Executive Officer of Foster Wheeler, a Swiss global engineering conglomerate. |
| ● | Ping Fu: Ms. Fu is the co-founder of Geomagic and served as its Chief Executive Officer until 2013. The 3D imaging and 3D printing technologies she created fundamentally changed the way products are designed and manufactured around the world. She also served as part of the team in creating the NCSA Mosaic software and HTTP server software that led to the exponential growth of the internet. She was the Chief Strategy and Chief Entrepreneur Officer at 3D Systems from 2013 to 2016, and has served on the boards of other public companies including Live Nation Entertainment, the Long Now Foundation, and the Burning Man Project. |
| ● | Yon Y. Jorden: Ms. Jorden is a seasoned board and audit committee member who has historically held strategic senior management and board positions in the energy, automation, and healthcare sectors. Today, Ms. Jorden serves as a director for public companies including Cohu, Inc. and Alignment Healthcare, Inc., as well as Methodist Health System, a not-for-profit Texas-based hospital system. Ms. Jorden previously was an independent director for Maxwell Technologies, Magnetek Incorporated, Bioscrip Incorporated, and U.S. Oncology Corporation. She also served as Chief Financial Officer of four publicly traded companies and non-profit organizations, including AdvancePCS, Informix Corporation, Oxford Health Plans, Inc., and WellPoint, Inc. |
| ● | Robert F. Powelson: Mr. Powelson is a highly respected leader in the power and energy regulatory industry. He has served as President and Chief Executive Officer of the National Association of Water Companies since 2018. Previously, Mr. Powelson served as Commissioner for the Federal Energy Regulatory Commission from 2017 to 2018, and President of the National Association of Regulatory Utility Commissioners in 2017. He |
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also served on the Pennsylvania Public Utility Commission from 2008 to 2017, which he led as Chairman from 2011 to 2015.
| ● | Denise Wilson: From 2011 to 2016, Ms. Wilson served as Executive Vice President and President of New Business for NRG Energy, Inc., an independent power company with generation, energy retail business and cleantech ventures. Ms. Wilson also served as Executive Vice President and Chief Administrative Officer of NRG from 2008 to 2011, among various other roles at NRG from 2000 to 2007. Further, Ms. Wilson has served in executive leadership roles in human resources for Nash-Finch Company, Metris Companies Inc., and General Electric ITS. |
Further, as of the Effective Date, the officers of the Reorganized Debtors shall be appointed in accordance with the organizational documents of the Reorganized Debtors and the Plan.1 On the Effective Date, the officers of both Reorganized PublicCo and New Subsidiary shall be as follows:
| ● | Interim President and Chief Executive Officer2Officer1 – Robert C. Flexon: Mr. Flexon brings years of industry experience to his interim role, including serving as Interim President and CEO of Capstone Green Energy Corporation since August 2023. As discussed above, Mr. Flexon brings both directorship and executive leadership in finance and accounting in the energy, chemicals and oil and gas sectors, plus safety, workforce organization, and turnarounds. |
| ● | Chief Financial Officer – John J. Juric: Mr. Juric, a Certified Public Accountant, has more than 25 years of experience in finance and business management, including serving as Capstone Green Energy Corporation’s CFO since March 2023. Before joining Capstone, Mr. Juric held several senior finance positions in prominent industries including: USALCO, LLC; Fiberweb, PLC; CIBA Specialty Chemicals; and Arco Chemical Company. |
1TheFinally, on the Effective Date, the directors and officers of Reorganized PrivateCo will be filed as soon as reasonably practicable prior to the Confirmation Hearing.shall be as follows:
| ● | Executive Director and Marketing Manager – Maria Silva: Ms. Silva is the former Marketing Manager of Capstone Green Energy Corporation and has been at Capstone for nearly 12 years. |
| ● | Director – Matt Carter: Mr. Carter is a Vice President at Goldman Sachs and a senior member of the private credit investing team within Goldman Sachs Asset and Wealth Management. Prior to joining Goldman Sachs in 2014, Mr. Carter worked at Barclays Capital and began his career at Lehman Brothers. Mr. Carter earned a B.S. in Economics from the Spears School of Business at Oklahoma State University. |
21An executive search for a permanent President and Chief Executive Officer of the Reorganized Debtors is
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currently underway but has not yet been completed. The Debtors expect the search to be completed following the Effective Date.
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Exhibit G
Organizational Documents of the Reorganized Debtors
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
among
CAPSTONE GREEN ENERGY LLC
and
THE MEMBERS NAMED HEREIN
dated as of
[●], 2023
TABLE OF CONTENTS
Section 1.01 Definitions.6
Section 1.02 Interpretation.21
ARTICLE II ORGANIZATION21
Section 2.01 Formation.21
Section 2.02 Name.22
Section 2.03 Principal Office.22
Section 2.04 Registered Office; Registered Agent.22
Section 2.05 Purpose; Powers.22
Section 2.06 Term.22
Section 2.07 No State-Law Partnership.22
ARTICLE III UNITS23
Section 3.01 Units Generally.23
Section 3.02 Authorization and Issuance of Preferred Units.23
Section 3.03 Authorization and Issuance of Common Units.23
Section 3.04 Other Issuances.23
Section 3.05 No Unit Certificates.24
Section 3.06 Conversion of Preferred Units.24
Section 3.07 Redemption of Preferred Units.25
Section 3.08 Breaches; Failure to Effect Redemption.26
ARTICLE IV MEMBERS27
Section 4.01 Admission of New Members.27
Section 4.02 Representations and Warranties of Members.27
Section 4.03 No Personal Liability.29
Section 4.04 No Withdrawal.29
Section 4.05 Voting.29
Section 4.06 Matters Requiring Approval of Preferred Requisite Members.29
Section 4.07 Meetings of Members.32
Section 4.08 Quorum; Required Vote.33
Section 4.09 Action Without Meeting.33
Section 4.10 Power of Members.33
Section 4.11 Other Activities of Members; Business Opportunities.34
Section 4.12 No Interest in Company Property.34
ARTICLE V CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS34
Section 5.01 Initial Capital Contributions.34
Section 5.02 Additional Capital Contributions.34
Section 5.03 Maintenance of Capital Accounts.34
Section 5.04 Succession Upon Transfer.35
Section 5.05 Negative Capital Accounts.35
Section 5.06 No Withdrawal.35
Section 5.07 Treatment of Loans from Members.35
Section 5.08 Modifications.36
ARTICLE VI ALLOCATIONS36
Section 6.01 Allocation of Net Income and Net Loss.36
Section 6.02 Regulatory and Special Allocations.36
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Section 6.03 Tax Allocations.37
Section 6.04 Allocations in Respect of Transferred Units.38
Section 6.05 Curative Allocations.38
ARTICLE VII DISTRIBUTIONS39
Section 7.01 General.39
Section 7.02 Distributions.39
Section 7.03 Tax Advances.39
Section 7.04 Distributions in Kind.40
ARTICLE VIII MANAGEMENT40
Section 8.01 Establishment and Authority of the Board.40
Section 8.02 Board Composition.41
Section 8.03 Board Observer Right.41
Section 8.04 Removal; Resignation.41
Section 8.05 Meetings of the Board.42
Section 8.06 Quorum; Manner of Acting.42
Section 8.07 Action By Written Consent.43
Section 8.08 Officers.43
Section 8.09 Compensation and Reimbursement of Managers; No Employment.43
Section 8.10 Other Activities of Managers; Business Opportunities.44
Section 8.11 No Personal Liability.44
ARTICLE IX PREEMPTIVE RIGHTS44
Section 9.01 Preemptive Right.44
ARTICLE X TRANSFER47
Section 10.01 General Restrictions on Transfer.47
Section 10.02 Permitted Transfers.49
Section 10.03 Right of First Refusal.49
Section 10.04 Change of Control Repurchase Right.51
Section 10.05 Tag-Along Rights.51
Section 10.06 Right of First Offer.54
ARTICLE XI ACCOUNTING; REPORTING; TAX MATTERS54
Section 11.01 Financial Statements.54
Section 11.02 Inspection Rights.55
Section 11.03 Budget.55
Section 11.04 Partnership Representative.55
Section 11.05 Tax Returns.57
Section 11.06 Company Funds.57
ARTICLE XII DISSOLUTION AND LIQUIDATION57
Section 12.01 Events of Dissolution.57
Section 12.02 Effectiveness of Dissolution.58
Section 12.03 Liquidation.58
Section 12.04 Liquidation Preference.59
Section 12.05 Cancellation of Certificate.59
Section 12.06 Survival of Rights, Duties, and Obligations.60
Section 12.07 Recourse for Claims.60
ARTICLE XIII EXCULPATION AND INDEMNIFICATION60
Section 13.01 Standard of Care; Duties; Reliance On Information.60
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Section 13.02 Indemnification.61
Section 13.03 Survival.64
ARTICLE XIV MISCELLANEOUS64
Section 14.01 Confidentiality.64
Section 14.02 Expenses.65
Section 14.03 Further Assurances.65
Section 14.04 Notices.65
Section 14.05 Headings.66
Section 14.06 Severability.66
Section 14.07 Entire Agreement.66
Section 14.08 Successors and Assigns.66
Section 14.09 No Third-Party Beneficiaries.66
Section 14.10 Amendment.66
Section 14.11 Waiver.67
Section 14.12 Governing Law.67
Section 14.13 Submission to Jurisdiction.67
Section 14.14 Waiver of Jury Trial.67
Section 14.15 Equitable Remedies.68
Section 14.16 No Impairment of Rights.68
Section 14.17 Attorneys’ Fees.68
Section 14.18 Remedies Cumulative.68
Section 14.19 Counterparts.68
Section 14.20 Independent Counsel.68
Section 14.21 Representations and Warranties of the Company.69
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AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
This Amended and Restated Limited Liability Company Agreement of Capstone Green Energy LLC, a Delaware limited liability company (the “Company”), is entered into as of [●], 2023, by and among the Company, the Members executing this Agreement as of the date hereof (collectively, the “Initial Members”), and each other Person who after the date hereof becomes a Member of the Company and becomes a party to this Agreement by executing a Joinder Agreement.
RECITALS
WHEREAS, the Company was formed under the laws of the State of Delaware by the filing of a Certificate of Formation with the Secretary of State of the State of Delaware (the “Secretary of State”) on October 16, 2023 (the “Certificate of Formation”);
WHEREAS, Capstone Green Energy Corporation (“Capstone”) entered into a Limited Liability Company Agreement of the Company on October 16, 2023 (the “Original Agreement”);
WHEREAS, Capstone desires to amend and restate the Original Agreement in its entirety as set forth herein for the purposes of, and on the terms and conditions set forth in, this Agreement;
WHEREAS, pursuant to the steps described in the Plan (as defined below), (i) all liabilities and assets of Capstone (other than (x) the stock of Capstone Turbine International, Inc., (y) those liabilities and assets directly related to the Retained Assets (as defined in the Plan) and described in the Plan and (z) obligations under the DIP Financing Agreement (as defined below) and Pre-Petition Secured Debt (as defined in the Plan)) were transferred to the Company, and (ii) the Common Units (defined below) and Preferred Units (as defined below) were issued to Capstone.
WHEREAS, pursuant to the steps described in the Plan, Capstone contributed 100% of the Common Units to Capstone Turbine International, Inc., which was re-named Capstone Green Energy Holdings, Inc., and Capstone retained 100% of the Preferred Units.
WHEREAS, the Members wish to enter into this Agreement setting forth the terms and conditions governing the operation and management of the Company.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
“Acceptance Notice” has the meaning set forth in Section 9.01(c).
6
“Adjusted Capital Account Deficit” means, with respect to any Member, the deficit balance, if any, in such Member’s Capital Account as of the end of the relevant Fiscal Year, after giving effect to the following adjustments:
“Adjusted Taxable Income” of a Member for a Fiscal Year (or portion thereof) with respect to Units held by such Member means the federal taxable income allocated by the Company to the Member with respect to such Units (as adjusted by any final determination in connection with any tax audit or other proceeding) for such Fiscal Year (or portion thereof); provided, that such taxable income shall be computed (a) minus any excess taxable loss or excess taxable credits of the Company for any prior period allocable to such Member with respect to such Units that were not previously taken into account for purposes of determining such Member’s Adjusted Taxable Income in a prior Fiscal Year to the extent such loss or credit would be available under the Code to offset income of the Member (or, as appropriate, the direct or indirect members of the Member) determined as if the income, loss, and credits from the Company were the only income, loss, and credits of the Member (or, as appropriate, the direct or indirect members of the Member) in such Fiscal Year and all prior Fiscal Years; and (b) taking into account any special basis adjustment with respect to such Member resulting from an election by the Company under Code Section 754.
“Affiliate” means, with respect to any Person, any other Person who, directly or indirectly (including through one or more intermediaries), controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control,” when used with respect to any specified Person, shall mean the power, direct or indirect, to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities or partnership or other ownership interests, by contract, or otherwise. Notwithstanding the foregoing, the term “Affiliate,” (a) when used with respect to the Preferred Members and their Affiliates, shall not, for purposes of this Agreement, include the other Members, Reorganized PublicCo and its Subsidiaries, and their respective Affiliates and (b) when used with respect to Reorganized PublicCo and its Affiliates, shall not, for purposes of this Agreement, include the Preferred Members and the Preferred Members’ Subsidiaries and respective Affiliates. Whenever a Subsidiary or controlled Affiliate of a Person agrees to take any action or omit to take any action hereunder, such Person shall cause such Subsidiary or controlled Affiliate to take such action or omit to take such action.
“Aggregate Purchase Price” means $10,449,863.
“Agreement” means this Amended and Restated Limited Liability Company Agreement, as executed and as it may be amended, modified, supplemented, or restated from time to time, as provided herein.
“Anti-Corruption and Anti-Bribery Laws” means any and all applicable requirements of law related to anti-corruption or anti-bribery matters, including the United States Foreign Corrupt Practices Act of 1977.
“AML Laws” means any and all applicable requirements of law related to engaging in, financing, or facilitating terrorism or money laundering, including the PATRIOT Act, The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act”, 31 U.S.C. §§5311-5330 and 12 U.S.C. §§1818(s), 1820(b) and 1951-1959), Trading With the Enemy Act (50 U.S.C. §1 et seq.), Executive Order 13224 (effective September 24, 2001) and each of the laws, regulations, and executive orders administered by OFAC (31 C.F.R., Subtitle B, Chapter V).
“Applicable Law” means all applicable provisions of (a) constitutions, treaties, statutes, laws (including the common law), rules, regulations, decrees, ordinances, codes, proclamations, declarations, or orders of any Governmental Authority; (b) any consents or approvals of any Governmental Authority; and (c) any orders, decisions, advisory, or interpretative opinions, injunctions, judgments, awards, decrees of, or agreements with, any Governmental Authority.
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“Appraiser” means an independent nationally recognized third-party appraisal firm, mutually acceptable and designated by the Board and Preferred Requisite Members promptly following the date on which an appraisal or valuation by an Appraiser is required under this Agreement. The selected firm shall have the authority and responsibility to conduct an independent appraisal or valuation as required under this Agreement.
“Bankruptcy” means, with respect to a Member, the occurrence of any of the following: (a) the filing of an application by such Member for, or a consent to, the appointment of a trustee of such Member’s assets; (b) the filing by such Member of a voluntary petition in bankruptcy or the filing of a pleading in any court of record admitting in writing such Member’s inability to pay their debts as they come due; (c) the making by such Member of a general assignment for the benefit of such Member’s creditors; (d) the filing by such Member of an answer admitting the material allegations of, or such Member’s consenting to, or defaulting in answering a bankruptcy petition filed against such Member in any bankruptcy proceeding; or (e) upon the entry of an order, judgment, or decree by any court of competent jurisdiction adjudicating such Member a bankrupt or appointing a trustee of such Member’s assets.
“BBA” means the Bipartisan Budget Act of 2015.
“Board” has the meaning set forth in Section 8.01.
“Book Depreciation” means, with respect to any Company asset for each Fiscal Year, the Company’s depreciation, amortization, or other cost recovery deductions determined for federal income tax purposes, except that if the Book Value of an asset differs from its adjusted tax basis at the beginning of such Fiscal Year, Book Depreciation shall be an amount which bears the same ratio to such beginning Book Value as the federal income tax depreciation, amortization, or other cost recovery deduction for such Fiscal Year bears to such beginning adjusted tax basis; provided, that if the adjusted basis for federal income tax purposes of an asset at the beginning of such Fiscal Year is zero and the Book Value of the asset is positive, Book Depreciation shall be determined with reference to such beginning Book Value using any permitted method selected by the Board in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(g)(3).
“Book Value” means, with respect to any Company asset, the adjusted basis of such asset for federal income tax purposes, except as follows:
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provided, that an adjustment pursuant to clauses (i), (ii), (iii), (iv) or (v) above need not be made if the Board reasonably determines that such adjustment is not necessary or appropriate to reflect the relative economic interests of the Members and that the absence of such adjustment does not adversely and disproportionately affect any Member;
“Breach” means a breach of any provision of the Governing Documents or the Registration Rights Agreement, the result of which is that the Preferred Members or the rights and preferences of the Preferred Units are materially and adversely affected.
“Budget” has the meaning set forth in Section 11.03.
“Business” has the meaning set forth in Section 2.05(a).
“Business Day” means a day other than a Saturday, Sunday, or other day on which commercial banks in the City of New York are authorized or required to close.
“Business Opportunity” has the meaning set forth in Section 8.10(b).
“Capital Account” has the meaning set forth in Section 5.03.
“Capital Contribution” means, for any Member, the total amount of cash and cash equivalents and the Book Value of any property contributed to the Company by such Member.
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“Certificate of Formation” has the meaning set forth in the Recitals.
“Change of Control” has the meaning set forth in Section 12.04(b).
“Code” means the Internal Revenue Code of 1986.
“Common Member” means a Member that holds Common Units.
“Common Requisite Members” means the holders of a majority of the Common Units held by the Common Members.
“Common Unit Equivalents” means any security or obligation that is by its terms, directly or indirectly, convertible into, exchangeable, or exercisable for Common Units, and any option, warrant, or other right to subscribe for, purchase, or acquire Common Units.
“Common Units” means the Units having the privileges, preference, duties, liabilities, obligations, and rights specified with respect to “Common Units” in this Agreement.
“Common Units Deemed Outstanding” means at any given time, the sum of (a) the number of Common Units actually outstanding at such time, plus (b) the number of Common Units reserved for issuance at such time under option or other equity or equity-linked incentive plans, regardless of whether the Common Units are actually subject to outstanding options at such time or whether any outstanding options are actually exercisable at such time, plus (c) the number of Common Units issuable upon exercise of any other options (other than options described in clause (b) above) actually outstanding at such time, plus (d) the number of Common Units issuable upon conversion or exchange of convertible securities actually outstanding at such time (treating as actually outstanding any convertible securities issuable upon exercise of options actually outstanding at such time), in each case, regardless of whether the options or convertible securities are actually exercisable, convertible or exchangeable at such time.
“Company” has the meaning set forth in the Preamble.
“Company Minimum Gain” means “partnership minimum gain” as defined in Treasury Regulations Section 1.704-2(b)(2), substituting the term “Company” for the term “partnership” as the context requires.
“Company Subsidiary” means a Subsidiary of the Company.
“Competitor” means any Person engaged, directly or indirectly, in whole or in part (including through any Subsidiary, joint venture or other similar arrangement, or other Person), in any material aspect of the Business; provided, however, that any financial investment firm, fund, or collective investment vehicle that, together with its Affiliates, holds less than 15.0000% of the outstanding equity interests of any Competitor and that does not, nor does any of its Affiliates, designate or have a right to designate, any members of its board of directors, board of managers, or similar governing body shall not constitute a Competitor.
“Confidential Information” has the meaning set forth in Section 14.01.
“Court of Chancery” means the Court of Chancery of the State of Delaware.
“Covered Person” means each (a) Member, (b) officer, director, equity holder, direct and indirect partner (including partners of partners and equity holders and members of partners), member, manager, officer, Affiliate, employee, agent, or representative of a Member, and each of their controlling Affiliates and anyone who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, (c) Manager, Officer, employee, agent, or representative of the Company, (d) Partnership Representative and (e) Designated Individual.
“Delaware Act” means the Delaware Limited Liability Company Act, Title 6, Chapter 18, §§ 18-101, et seq.
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“Designated Individual” has the meaning set forth in Section 11.04(a).
“DIP Financing Agreement” means the Super-Priority Senior Secured Debtor-in-Possession Note Purchase Agreement, as in effect on October 2, 2023, by and among Reorganized PublicCo, the other debtor parties thereto, Broad Street Credit Holdings LLC and Goldman Sachs Specialty Lending Group, L.P. (and not including amendments, supplements or modifications from time to time).
“Distribution” means a distribution made by the Company to a Member, whether in cash, property, or securities of the Company and whether by liquidating distribution or otherwise; provided, that none of the following shall be a Distribution: (a) any redemption or repurchase by the Company or any Member of any Units or Unit Equivalents (including pursuant to Section 3.07); (b) any recapitalization or exchange of securities of the Company; or (c) any subdivision (by a split of Units or otherwise) or any combination (by a reverse split of Units or otherwise) of any outstanding Units. “Distribute” when used as a verb shall have a correlative meaning.
“Electronic Transmission” means any form of communication not directly involving the physical transmission of paper, including the use of, or participation in, one or more electronic networks or databases (including one or more distributed electronic networks or databases), 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.
“Estimated Tax Amount” of a Member for a Fiscal Year means the Member’s Tax Amount for such Fiscal Year as estimated in good faith from time to time by the Board. In making such estimate, the Board shall take into account amounts shown on Internal Revenue Service Form 1065 filed by the Company and similar state or local forms filed by the Company for the preceding taxable year and such other adjustments as in the reasonable business judgment of the Board are necessary or appropriate to reflect the estimated operations of the Company for the Fiscal Year.
“Excess Amount” has the meaning set forth in Section 7.03(c).
“Exchange Act” means the Securities Exchange Act of 1934.
“Exercise Period” has the meaning set forth in Section 9.01(c).
“Exercising Member” has the meaning set forth in Section 9.01(d).
“Existing Business” means the Business as modified by the Company’s engagement in any new business opportunities, investments or transactions since the date of this Agreement in accordance with the terms and conditions hereof, including Section 4.06(b).
“Exit Facility” means the New Debt Facility (as such term is defined in the Plan), as it may be amended from time to time, and any refinancings thereof.
“Fair Market Value” of any asset as of any date means the purchase price that a willing buyer having all relevant knowledge would pay a willing seller for such asset in an arm’s-length transaction, as determined in good faith by the Board based on such factors as the Board, in the exercise of its reasonable business judgment, considers relevant; provided, however, with respect to the Preferred Units, “Fair Market Value” means the value on an as-converted to Common Units basis, as agreed upon by the Company and the Preferred Requisite Members, or, if no such agreement is reached, the value established by an Appraiser. If there is a trading market for the equity of Reorganized PublicCo at the time of any Fair Market Value determination of the Preferred Units, such fair market value determination shall be determined by reference to the trading price of such Reorganized PublicCo equity, with appropriate adjustments for customary and appropriate factors.
“Fiscal Year” means each twelve (12) month period ended March 31, which shall also be the Company’s taxable year.
“GAAP” means United States generally accepted accounting principles in effect from time to time.
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“Governing Documents” means this Agreement and the Certificate of Formation.
“Governmental Authority” means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations, or orders of such organization or authority have the force of law), or any arbitrator, court, or tribunal of competent jurisdiction.
“Initial Members” has the meaning set forth in the Preamble.
“Interested Transaction” means any transaction, or series of similar transactions, to which the Company or any of its Affiliates is a party, if such transaction would have required disclosure by a reporting company in accordance with the provisions of Item 404 of Regulation S-K promulgated under the Securities Act, and in which the Restricted Entities will have a direct or indirect material interest.
“Insolvent” means (a) the present fair saleable value of the Company’s and its Subsidiaries’ assets is less than the amount required to pay the Company’s and its Subsidiaries’ total indebtedness or (b) the Company and its Subsidiaries are unable to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become due.
“Investment Company Act” means the Investment Company Act of 1940.
“Issuance Notice” has the meaning set forth in Section 9.01(b).
“Joinder Agreement” means the joinder agreement in form and substance attached hereto as Exhibit A.
“Lien” means any mortgage, pledge, security interest, option, right of first offer, encumbrance, or other restriction or limitation of any nature, in each case except for restrictions under Applicable Law.
“Liquidation Event” has the meaning set forth in Section 12.04(b).
“Liquidation Preference” has the meaning set forth in Section 12.04(a).
“Liquidator” has the meaning set forth in Section 12.03(a).
“Losses” has the meaning set forth in Section 13.02(a).
“Manager” has the meaning set forth in Section 8.01.
“Managers Schedule” has the meaning set forth in Section 8.04(d).
“Material Terms” has the meaning set forth in Section 10.06(b).
“Member” means (a) each Initial Member, and (b) each Person who is hereafter admitted as a Member in accordance with the terms of this Agreement and the Delaware Act, in each case so long as such Person is shown on the Company’s books and records as the owner of one or more Units. The Members shall constitute the “members” (as that term is defined in the Delaware Act) of the Company.
“Member Indemnitors” has the meaning set forth in Section 13.02(f).
“Member Nonrecourse Debt” means “partner nonrecourse debt” as defined in Treasury Regulations Section 1.704-2(b)(4), substituting the term “Company” for the term “partnership” and the term “Member” for the term “partner” as the context requires.
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“Member Nonrecourse Debt Minimum Gain” means an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if the Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Treasury Regulations Section 1.704-2(i)(3).
“Member Nonrecourse Deduction” means “partner nonrecourse deduction” as defined in Treasury Regulations Section 1.704-2(i), substituting the term “Member” for the term “partner” as the context requires.
“Members Schedule” has the meaning set forth in Section 3.01.
“Membership Interest” means an interest in the Company owned by a Member, including such Member’s right (based on the type, class, or series of Unit or Units held by such Member), as applicable, to (a) such Member’s distributive share of Net Income, Net Losses, and other items of income, gain, loss, and deduction of the Company, (b) such Member’s distributive share of the assets of the Company, (c) vote on, consent to, or otherwise participate in any decision of the Members as provided in this Agreement and (d) any and all other benefits to which such Member may be entitled as provided in this Agreement or the Delaware Act.
“Misallocated Item” has the meaning set forth in Section 6.05.
“Net Income” and “Net Loss” mean, for each Fiscal Year or other period specified in this Agreement, an amount equal to the Company’s taxable income or taxable loss, or particular items thereof, determined in accordance with Code Section 703(a) (where, for this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or taxable loss), but with the following adjustments:
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“New Interests” has the meaning set forth in Section 3.04.
“New Securities” has the meaning set forth in Section 9.01(a).
“Non-Exercising Member” has the meaning set forth in Section 9.01(d).
“Nonrecourse Liability” has the meaning set forth in Treasury Regulations Section 1.704-2(b)(3).
“OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury.
“Offer Notice” has the meaning set forth in Section 10.06(b).
“Offered Units” has the meaning set forth in Section 10.03(a).
“Offering Member” has the meaning set forth in Section 10.03(a).
“Offering Member Notice” has the meaning set forth in Section 10.03(b)(i).
“Officers” has the meaning set forth in Section 8.08.
“Original Agreement” has the meaning set forth in the Recitals.
“Over-Allotment Exercise Period” has the meaning set forth in Section 9.01(d).
“Over-Allotment Notice” has the meaning set forth in Section 9.01(d).
“Participation Units” has the meaning set forth in Section 10.05(c)(i).
“Partnership Representative” has the meaning set forth in Section 11.04(a).
“Percentage Interest” means, for any Member (treating the Preferred Units and Common Units as one class of Units, on an as-converted basis), the number of Common Units Deemed Outstanding held by such Member (treating the Preferred Units as Common Units, on an as-converted basis) divided by the total number of Common Units Deemed Outstanding (treating the Preferred Units as Common Units, on an as-converted basis), expressed as a percentage.
“Permitted Transfer” means a Transfer of Preferred Units or Common Units carried out pursuant to Section 10.02.
“Permitted Transferee” means a recipient of a Permitted Transfer.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated organization, trust, association, or other entity.
“Plan” means the Joint Prepackaged Chapter 11 Plan of Reorganization of Capstone Green Energy Corporation and Its Debtor Affiliates (as may be amended, supplemented, or otherwise modified from time to time in
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accordance with its terms and the terms of the Transaction Support Agreement, and including all exhibits and supplements thereto).
“Preferred Member” means a Member holding Preferred Units.
“Preferred Requisite Members” means the holders of a majority of the Preferred Units held by the Preferred Members.
“Preferred Units” means the Units having the privileges, preference, duties, liabilities, obligations, and rights specified with respect to “Preferred Units” in this Agreement.
“Preferred Units Redemption Period” means the six (6) months following the sixth (6th) anniversary of the effective date of this Agreement.
“Pro Rata Portion” means, with respect to any Member, on any issuance date for New Securities, the number of New Securities equal to the product of (a) the total number of New Securities to be issued by the Company on such date and (b) such Member’s Percentage Interest on such date immediately prior to such issuance.
“Proposed Transferee” has the meaning set forth in Section 10.05(a).
“Prospective Purchaser” has the meaning set forth in Section 9.01(b).
“Public Official” means any person holding an elected or appointed office and any other officer or employee of a government or a department, agency, instrumentality or part thereof (including a state-owned or -controlled enterprise or a joint venture / partnership with a government entity), any officer or employee of a public international organization or a political party, and any candidate for political office; or any person exercising a public function or acting in an official capacity for or on behalf of any of the foregoing.
“Purchasing Member” has the meaning set forth in Section 10.03(c)(i).
“Qualified Public Offering” means the Company’s (or its successor’s) first underwritten offering to the public pursuant to an effective registration statement under the Securities Act; provided that (a) such registration statement covers the offer and sale of Common Units the aggregate gross proceeds of which attributable to sales for the account of the Company (after payment of underwriters’ discounts and commissions) exceed $100,000,000.00, and (b) the Common Units are listed for trading on the New York Stock Exchange or the Nasdaq Stock Market (or, in each case, any successor market thereto).
“Quarterly Estimated Tax Amount” of a Member for any calendar quarter of a Fiscal Year means the excess, if any of (a) the product of (i) a quarter (¼) in the case of the first calendar quarter of the Fiscal Year, half (½) in the case of the second calendar quarter of the Fiscal Year, three-quarters (¾) in the case of the third calendar quarter of the Fiscal Year, and one (1) in the case of the fourth calendar quarter of the Fiscal Year and (ii) the Member’s Estimated Tax Amount for such Fiscal Year over (b) all Tax Advances previously made during such Fiscal Year to such Member.
“Redemption Breach” has the meaning set forth in Section 3.08(b).
“Redemption Date” means the date on which the Redemption Price is paid pursuant to a Redemption Request.
“Redemption Deadline” means the date one hundred and eighty (180) days following a redemption election.
“Redemption Exceptions” means any event in which the Company is not permitted to make payment of the Redemption Price to any Preferred Member because (a) such payment is prohibited by Section 18-607 of the Delaware Act or (b) the Company is, or by payment of the Redemption Price would be, Insolvent.
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“Redemption Notice” has the meaning set forth in Section 3.07(a).
“Redemption Price” has the meaning set forth in Section 3.07(a).
“Registration Rights Agreement” means the registration rights agreement, dated as of the date of this Agreement, by and between the Company and the Preferred Members.
“Regulatory Allocations” has the meaning set forth in Section 6.02(e).
“Regulatory Requirement” has the meaning set forth in Section 13 of Annex A.
“Reorganized PrivateCo” means Capstone as of the consummation of the Plan.
“Reorganized PrivateCo Entities” means Reorganized PrivateCo and Reorganized PrivateCo’s Affiliates other than, for the avoidance of doubt, the Company, the Company Subsidiaries, Reorganized PublicCo and any other Subsidiaries of Reorganized PublicCo.
“Reorganized PrivateCo Services Agreement” means [●].
“Reorganized PublicCo” means Capstone Turbine International, Inc. as of the consummation of the Plan.
“Reorganized PublicCo Approved Sale” has the meaning set forth in Section 10.04.
“Reorganized PublicCo Services Agreement” means [●].
“Representative” means, with respect to any Person, any and all directors, managers, officers, employees, consultants, financial advisors, counsel, accountants, and other agents of such Person.
“Restricted Entities” means the Company, its Subsidiaries and controlled Affiliates.
“Restricted Transaction” has the meaning set forth in Section 10.06(b).
“Revised Partnership Audit Rules” has the meaning set forth in Section 11.04(a).
“ROFO Exercise Period” has the meaning set forth in Section 10.06(c).
“ROFO Offer” has the meaning set forth in Section 10.06(b).
“ROFO Offeror” has the meaning set forth in Section 10.06(b).
“ROFR Notice Period” has the meaning set forth in Section 10.03(b)(i).
“ROFR Offer Notice” has the meaning set forth in Section 10.03(b)(i).
“ROFR Rightholders” has the meaning set forth in Section 10.03(a).
“Sale Notice” has the meaning set forth in Section 10.05(c).
“Sanctioned Person” has the meaning set forth in Section 1(b) of Annex A.
“Sanctioned Territory” has the meaning set forth in Section 1(b) of Annex A.
“Sanctions” means sanctions or trade embargoes enacted, imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC, U.S. Department of State, or U.S.
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Department of Commerce, or (b) the United Nations Security Council, the European Union (“EU”) or any EU member state, His Majesty’s Treasury of the United Kingdom.
“Secretary of State” has the meaning set forth in the Recitals.
“Section 13(r)” means Section 13(r) of the Exchange Act.
“Securities Act” means the Securities Act of 1933.
“Selling Member” has the meaning set forth in Section 10.05(a).
“SEF” means a swap execution facility as defined in CFTC Regulation 40.1(f).
“Shared Representative” has the meaning set forth in Section 14.01.
“Shortfall Amount” has the meaning set forth in Section 7.03(b).
“Specified Indemnified Persons” has the meaning set forth in Section 13.02(f).
“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association or business entity of which (a) if a corporation, a majority of the total voting power of shares of capital stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof or (b) if a limited liability company, partnership, association or other business entity (other than a corporation), a majority of partnership or other ownership interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity (other than a corporation) if such Person or Persons shall be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or shall be or control a managing member, manager or managing director (or a board comprised of any of the foregoing) or general partner of such limited liability company, partnership, association or other business entity.
“Tag-Along Member” has the meaning set forth in Section 10.05(a).
“Tag-Along Notice” has the meaning set forth in Section 10.05(d)(ii).
“Tag-Along Period” has the meaning set forth in Section 10.05(d)(ii).
“Tag-Along Portion” has the meaning set forth in Section 10.05(d)(i).
“Tag-Along Sale” has the meaning set forth in Section 10.05(a).
“Tax Advance” has the meaning set forth in Section 7.03(a).
“Tax Amount” of a Member for a Fiscal Year means the product of (a) the Tax Rate for such Fiscal Year and (b) the Adjusted Taxable Income of the Member for such Fiscal Year with respect to such Member’s Units.
“Tax Contest” has the meaning in Section 11.04(b).
“Tax Rate” of a Member, for any period, means the highest marginal blended federal, state, and local tax rate applicable to ordinary income, qualified dividend income, or capital gains, as appropriate, for such period for a corporation in New York, New York or Los Angeles, California, whichever is higher.
“Third-Party Purchaser” means any Person who is not the Company or a wholly owned Company Subsidiary.
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“Transaction Support Agreement” means the transaction support agreement, dated September 27, 2023, by and among Reorganized PublicCo and Broad Street Credit Holdings LLC.
“Transfer” means to, directly or indirectly, sell, transfer, assign, pledge, encumber, hypothecate, or similarly dispose of, either voluntarily or involuntarily, by operation of law or otherwise, or to enter into any contract, option, or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation, or similar disposition of, any Units owned by a Person or any interest (including a beneficial interest) in any Units or Unit Equivalents owned by a Person. “Transfer” when used as a noun shall have a correlative meaning. “Transferor” and “Transferee” mean a Person who makes or receives a Transfer, respectively.
“Treasury Regulations” means the final or temporary regulations issued by the United States Department of Treasury pursuant to its authority under the Code, and any successor regulations.
“Unallocated Item” has the meaning set forth in Section 6.05.
“Unit” means a unit representing a fractional part of the Membership Interests of the Members and shall include all types, classes, and series of Units, including the Preferred Units and the Common Units; provided, that any type, class, or series of Unit shall have the privileges, preference, duties, liabilities, obligations, and rights set forth in this Agreement with respect to such type, class, or series of Unit and the Membership Interests represented by such type, class, or series of Unit shall be determined in accordance with such privileges, preference, duties, liabilities, obligations, and rights.
“Unit Equivalents” means any security or obligation that is by its terms, directly or indirectly, convertible into, exchangeable, or exercisable for Units, including any option, warrant, or other right to subscribe for, purchase, or acquire Units.
“Unrestricted Entities” means Reorganized PublicCo, its Subsidiaries and controlled Affiliates, other than any of the Restricted Entities.
“Voting Members” has the meaning set forth in Section 4.07(b).
“Voting Units” has the meaning set forth in Section 4.07(a).
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The Issuance Notice shall also be accompanied by a current copy of the Members Schedule indicating the Members’ holdings of Units in a manner that enables each Member to calculate such Member’s Pro Rata Portion of any New Securities.
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Notwithstanding the foregoing, a Preferred Member may Transfer less than all of the Preferred Units held by such Preferred Member in one transaction or a series of related transactions to Affiliates of such Preferred Member.
No Transfer of Units or Unit Equivalents to a Person not already a Member of the Company shall be deemed completed until the prospective Transferee is admitted as a Member of the Company in accordance with Section 4.01(b).
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provided, that such Covered Person’s conduct did not constitute fraud, gross negligence or willful misconduct, in each case as determined by a final, non-appealable order of a court of competent jurisdiction. In connection with the foregoing, the termination of any action, suit, or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Covered Person’s conduct constituted fraud, gross negligence or willful misconduct.
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If to the Company: | Capstone Green Energy LLC Van Nuys, CA 91406 Email: JJuric@cgrnenergy.com |
with a copy to: | Katten Muchin Rosenman LLP 525 W. Monroe Street Chicago, IL 60661-3693 Attention: Mark D. Wood Email: mark.wood@katten.com |
If to a Member, to such Member’s respective mailing address or email address, as set forth on the Members Schedule.
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[signature pageS follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| The Company: CAPSTONE GREEN ENERGY LLC |
| By:____________________________ |
| The Members: |
| CAPSTONE GREEN ENERGY HOLDINGS, INC. (f/k/a Capstone Turbine International, Inc.) By:___________________________ |
| CAPSTONE GREEN ENERGY CORPORATION By:_____________________________ |
[Signature Page to Amended and Restated Limited Liability Company Agreement]
Member Representations Regarding Compliance with Anti-Corruption and Anti-Bribery Laws and Sanctions.
ANNEX B
| (d) | there have not, in the last five years, been any known or written allegations of violations, enforcement actions, penalties; written threats of penalty, whistleblower |
| 6. | Regulatory Disclosure. |
Schedule A
MEMBERS SCHEDULE
[DATE]
Common Members
Member Name, Address and Email | Common Units |
Capstone Green Energy Holdings, Inc. (f/k/a Capstone Turbine International, Inc.) 16640 Stagg Street Van Nuys, CA 91406 Attention: John Juric, Chief Financial Officer Email: JJuric@cgrnenergy.com | [ ] |
Total: | [ ] |
Preferred Members
Member Name, Address and Email | Preferred Units |
[Reorganized PrivateCo] Dallas, TX 85201 [EMAIL] | [ ] |
Total: | [ ] |
MANAGERS SCHEDULE
[DATE]
[Manager Names]
Exhibit I
Trademark License Agreement
Draft November 9, 2023
Trademark License Agreement
This Trademark License Agreement, dated as of [●], 2023 (such date, the “Effective Date”, and such agreement, this “Agreement”), is entered into by and between [Reorganized PrivateCo], a Delaware corporation, formerly known as Capstone Green Energy Corporation (“Licensor”) and Capstone Green Energy LLC, a Delaware limited liability company (“Licensee”). Licensor and Licensee are referred to herein individually as a “Party” and collectively as the “Parties”.
WHEREAS, Licensor, Capstone Turbine Financial Services, LLC, and Capstone Turbine International, Inc. have jointly proposed that certain Joint Prepackaged Chapter 11 Plan of Reorganization of Capstone Green Energy Corporation and Its Debtor Affiliates, filed on September 28, 2023, which contemplates the reorganization and restructuring of the aforementioned parties (the “Plan”); unless otherwise defined in this Agreement, capitalized terms used in this Agreement have the meanings set forth in the Plan;
WHEREAS, prior to the implementation of the Plan, Licensor has been operating the business of providing customized microgrid solutions and on-site energy technology systems, including microturbine energy systems and distributor support services, and, following the implementation of the Plan, as of the Effective Date, Licensee and its Affiliates (other than Licensor) will operate such business (other than the [distributor support services business], which will be operated by Licensor) (such business to be operated by Licensee and its Affiliates (other than Licensor), the “Business”);
WHEREAS, Licensor owns all right, title, and interest in and to the Capstone Trademarks (as defined herein);
WHEREAS, Licensee wishes to use the Capstone Trademarks in connection with the Business; and
WHEREAS, pursuant to the Plan, Licensor is required to enter into the License Agreement, and this Agreement satisfies such requirement.
NOW, THEREFORE, in consideration of the foregoing and the mutual warranties, covenants and agreements set forth herein and in the Plan, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
2
3
4
5
if to Licensor:
[●]
if to Licensee:
[●]
6
or such other address as may be specified by a Party pursuant to notice given to the other Party in accordance with the provisions of this paragraph.
7
IN WITNESS WHEREOF, the Parties have entered into this Agreement or have caused this Agreement to be executed as of the Effective Date by their respective officers thereunto duly authorized.
CAPSTONE GREEN ENERGY LLC
9
to the License Agreement
Trademarks
Trademark | Application No. | Filing Date | Registration No. | Registration Date | Record Owner (and with Legal Owner, if Different) | Jurisdiction |
|---|---|---|---|---|---|---|
| App 90721315 | App 19-MAY-2021 | Reg 6731274 | Reg 24-MAY-2022 | CAPSTONE GREEN ENERGY CORPORATION | United States |
| App 90721331 | App 19-MAY-2021 | Reg 6731275 | Reg 24-MAY-2022 | CAPSTONE GREEN ENERGY CORPORATION | United States |
| App 90721347 | App 19-MAY-2021 | Reg 6731276 | Reg 24-MAY-2022 | CAPSTONE GREEN ENERGY CORPORATION | United States |
CAPSTONE | App 90716194 | App 17-MAY-2021 | Reg 6730899 | Reg 24-MAY-2022 | CAPSTONE GREEN ENERGY CORPORATION | United States |
CAPSTONE | App 90716203 | App 17-MAY-2021 | Reg 6730901 | Reg 24-MAY-2022 | CAPSTONE GREEN ENERGY CORPORATION | United States |
 | App 86722457 | App 12-AUG-2015 | Reg 5219152 | Reg 06-JUN-2017 | CAPSTONE GREEN ENERGY CORPORATION | United States |
 | App 78975666 | App 20-SEP-2002 | Reg 2940243 | Reg 12-APR-2005 | CAPSTONE GREEN ENERGY CORPORATION | United States |
| App 75357665 | App 16-SEP-1997 | Reg 2487869 | Reg 11-SEP-2001 | CAPSTONE GREEN ENERGY CORPORATION | United States |
CAPSTONE | App 75351980 | App 04-SEP-1997 | Reg 2201317 | Reg 03-NOV-1998 | CAPSTONE GREEN ENERGY CORPORATION | United States |
10
Trademark | Application No. | Filing Date | Registration No. | Registration Date | Record Owner (and with Legal Owner, if Different) | Jurisdiction |
|---|---|---|---|---|---|---|
CAPSTONE | App 75306958 | App 11-JUN-1997 | Reg 2248687 | Reg 01-JUN-1999 | CAPSTONE GREEN ENERGY CORPORATION | United States |
 | App 75191384 | App 01-NOV-1996 | Reg 2144240 | Reg 17-MAR-1998 | CAPSTONE GREEN ENERGY CORPORATION | United States |
CAPSTONE | App 74732798 | App 22-SEP-1995 | Reg 2058307 | Reg 29-APR-1997 | CAPSTONE GREEN ENERGY CORPORATION | United States |
| App 78166520 | App 20-SEP-2002 | Reg 2993044 | Reg 06-SEP-2005 | CAPSTONE GREEN ENERGY CORPORATION | United States |
CAPSTONE MICROTURBINE | App 78166522 | App 20-SEP-2002 | Reg 2956871 | Reg 31-MAY-2005 | CAPSTONE GREEN ENERGY CORPORATION | United States |
CAPSTONE | App 870563 | App 26-FEB-1998 | Reg TMA563894 | Reg 21-JUN-2002 | CAPSTONE GREEN ENERGY CORPORATION A CALIFORNIA CORPORATION | Canada |
 | App 870564 | App 26-FEB-1998 | Reg TMA504764 | Reg 30-NOV-1998 | CAPSTONE GREEN ENERGY CORPORATION A CALIFORNIA CORPORATION | Canada |
CAPSTONE | App 324506 (324506T) | App 04-MAR-1998 | Reg 576585 | Reg 18-MAY-1998 | CAPSTONE TURBINE CORPORATION (United States of America)2 | Mexico |
2 Information regarding Mexican marks based on publicly available information as of 10/30/23.
11
Trademark | Application No. | Filing Date | Registration No. | Registration Date | Record Owner (and with Legal Owner, if Different) | Jurisdiction |
|---|---|---|---|---|---|---|
CAPSTONE | App 324509 (324509T) | App 04-MAR-1998 | Reg 582024 | Reg 28-JUL-1998 | CAPSTONE TURBINE CORPORATION (United States of America) | Mexico |
CAPSTONE | App 324508 (324508T) | App 04-MAR-1998 | Reg 577332 | Reg 25-MAY-1998 | CAPSTONE TURBINE, CORPORATION (United States of America) | Mexico |
 | App 324510 (324510T) | App 04-MAR-1998 | Reg 578232 | Reg 29-MAY-1998 | CAPSTONE TURBINE CORPORATION (United States of America) | Mexico |
CAPSTONE | App 324507 (324507T) | App 04-MAR-1998 | Reg 579612 | Reg 29-JUN-1998 | CAPSTONE TURBINE CORPORATION (United States of America) | Mexico |
 | App 324512 (324512T) | App 04-MAR-1998 | Reg 582025 | Reg 28-JUL-1998 | CAPSTONE TURBINE CORPORATION (United States of America) | Mexico |
CAPSTONE | App 824638859 | App 04-JUN-2002 | Reg 824638859 | Reg 20-NOV-2007 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Brazil |
 | App 98042776N | App 28-JUL-1998 | Reg 34968 | Reg 12-FEB-1999 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Bulgaria |
CAPSTONE | App 98042777N | App 28-JUL-1998 | Reg 7397Y | Reg 26-MAR-1999 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Bulgaria |
 | App 98042775N | App 28-JUL-1998 | Reg 34967 | Reg 12-FEB-1999 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Bulgaria |
 | App 130446 | App 25-FEB-1998 | Reg 228042 | Reg 20-NOV-2000 | Capstone Green Energy Corporation (United States of America) | Czech Republic |
12
Trademark | Application No. | Filing Date | Registration No. | Registration Date | Record Owner (and with Legal Owner, if Different) | Jurisdiction |
|---|---|---|---|---|---|---|
 | App 130447 | App 25-FEB-1998 | Reg 228043 | Reg 20-NOV-2000 | Capstone Green Energy Corporation (United States of America) | Czech Republic |
CAPSTONE | App 128352 | App 11-DEC-1997 | Reg 218818 | Reg 26-JUL-1999 | Capstone Green Energy Corporation (United States of America) | Czech Republic |
CAPSTONE | App 128353 | App 11-DEC-1997 | Reg 218819 | Reg 26-JUL-1999 | Capstone Green Energy Corporation (United States of America) | Czech Republic |
CAPSTONE | App 128183 | App 05-DEC-1997 | Reg 212315 | Reg 25-AUG-1998 | Capstone Green Energy Corporation (United States of America) | Czech Republic |
 | App 9800434 | App 04-MAR-1998 | Reg 29394 | Reg 03-SEP-1999 | Capstone Green Energy Corporation (United States of America) | Estonia |
CAPSTONE | App 9800433 | App 04-MAR-1998 | Reg 29393 | Reg 03-SEP-1999 | Capstone Green Energy Corporation (United States of America) | Estonia |
CAPSTONE | App 9702761 | App 05-DEC-1997 | Reg 28852 | Reg 26-MAY-1999 | Capstone Green Energy Corporation (United States of America) | Estonia |
CAPSTONE | App 9702762 | App 05-DEC-1997 | Reg 28853 | Reg 26-MAY-1999 | Capstone Green Energy Corporation (United States of America) | Estonia |
 | App M9800529 | App 16-FEB-1998 | Reg 155107 | Reg 22-DEC-1998 | Capstone Green Energy Corporation (California államban bejegyzett cég) (United States of America) | Hungary |
CAPSTONE | App M9800530 | App 16-FEB-1998 | Reg 155108 | Reg 22-DEC-1998 | Capstone Green Energy Corporation (California államban bejegyzett cég) (United States of America) | Hungary |
CAPSTONE | App M9704089 | App 06-NOV-1997 | Reg 157005 | Reg 06-JUL-1999 | Capstone Green Energy Corporation (California államban bejegyzett cég) (United States of America) | Hungary |
13
Trademark | Application No. | Filing Date | Registration No. | Registration Date | Record Owner (and with Legal Owner, if Different) | Jurisdiction |
|---|---|---|---|---|---|---|
CAPSTONE | App 184099 | App 02-MAR-1998 | Reg 128663 | Reg 03-APR-2001 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Poland |
 | App 183816 | App 24-FEB-1998 | Reg 130098 | Reg 15-JUN-2001 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Poland |
CAPSTONE | App 180350 | App 20-NOV-1997 | Reg 125456 | Reg 03-NOV-2000 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Poland |
CAPSTONE | App 50051 | App 16-MAR-1998 | Reg 35291 | Reg 15-DEC-1999 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Romania |
 | App 50052 | App 16-MAR-1998 | Reg 35292 | Reg 15-DEC-1999 | CAPSTONE TURBINE CORPORATION (United States of America)3 | Romania |
CAPSTONE | App 47388 | App 09-DEC-1997 | Reg 34319 | Reg 04-NOV-1999 | CAPSTONE TURBINE CORPORATION (United States of America) | Romania |
CAPSTONE | App 97718654 | App 05-DEC-1997 | Reg 174403 | Reg 20-APR-1999 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Russian Federation |
CAPSTONE | App 97718655 | App 05-DEC-1997 | Reg 173434 | Reg 24-MAR-1999 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Russian Federation |
CAPSTONE | App 97718656 | App 05-DEC-1997 | Reg 173435 | Reg 24-MAR-1999 | CAPSTONE GREEN ENERGY CORPORATION (United States of | Russian Federation |
3 Information regarding Romanian marks based on publicly available information as of 10/30/23.
14
Trademark | Application No. | Filing Date | Registration No. | Registration Date | Record Owner (and with Legal Owner, if Different) | Jurisdiction |
|---|---|---|---|---|---|---|
America) | ||||||
CAPSTONE | App 98702564 | App 18-FEB-1998 | Reg 176654 | Reg 25-JUN-1999 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Russian Federation |
| App 98702573 | App 18-FEB-1998 | Reg 176655 | Reg 25-JUN-1999 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Russian Federation |
| App 98020714 | App 98020714 | Reg 20655 | Reg 17-SEP-2001 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Ukraine |
CAPSTONE | App 98020713 | App 23-FEB-1998 | Reg 20994 | Reg 15-OCT-2001 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Ukraine |
 | App 500-1998 | App 27-FEB-1998 | Reg 191068 | Reg 19-JUN-2000 | Capstone Green Energy Corporation (United States of America) | Slovak Republic |
 | App 499-1998 | App 27-FEB-1998 | Reg 191841 | Reg 23-AUG-2000 | Capstone Green Energy Corporation (United States of America) | Slovak Republic |
CAPSTONE | App 3643-1997 | App 11-DEC-1997 | Reg 189134 | Reg 20-JAN-2000 | Capstone Green Energy Corporation (United States of America) | Slovak Republic |
CAPSTONE | App 3655-1997 | App 11-DEC-1997 | Reg 188650 | Reg 15-DEC-1999 | Capstone Green Energy Corporation (United States of America) | Slovak Republic |
15
Trademark | Application No. | Filing Date | Registration No. | Registration Date | Record Owner (and with Legal Owner, if Different) | Jurisdiction |
|---|---|---|---|---|---|---|
CAPSTONE | App 3656-1997 | App 11-DEC-1997 | Reg 188651 | Reg 15-DEC-1999 | Capstone Green Energy Corporation (United States of America) | Slovak Republic |
 | App 9870249 | App 26-FEB-1998 | Reg 9870249 | Reg 18-NOV-1998 | Capstone Green Energy Corporation (United States of America) | Slovenia |
CAPSTONE | App 9870250 | App 26-FEB-1998 | Reg 9870250 | Reg 21-JAN-1999 | Capstone Green Energy Corporation (United States of America) | Slovenia |
CAPSTONE | App 9771850 | App 11-DEC-1997 | Reg 9771850 | Reg 11-FEB-1999 | Capstone Green Energy Corporation (United States of America) | Slovenia |
CAPSTONE | App 4728/2002 | App 27-MAY-2002 | Reg P-502265 | Reg 21-AUG-2002 | Capstone Green Energy Corporation (United States of America) | Switzerland |
CAPSTONE | App 745109 | App 13-FEB-1998 | Reg 745109 | Reg 28-JAN-2000 | Capstone Green Energy Corporation (United States of America) | EU trade marks |
CAPSTONE | App 637082 | App 23-SEP-1997 | Reg 637082 | Reg 16-MAR-1999 | Capstone Green Energy Corporation (United States of America) | EU trade marks |
 | App 524306 | App 29-APR-1997 | Reg 524306 | Reg 28-MAY-1999 | Capstone Green Energy Corporation (United States of America) | EU trade marks |
CAPSTONE | App 117832 | App 15-FEB-1998 | Reg 1178324 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Israel | |
CAPSTONE | App 115027 | App 23-SEP-1997 | Reg 115027 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Israel | |
CAPSTONE | App 115028 | App 23-SEP-1997 | Reg 115028 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Israel |
4 Information as to all Israeli filings based on publicly available information as of 10/30/23.
16
Trademark | Application No. | Filing Date | Registration No. | Registration Date | Record Owner (and with Legal Owner, if Different) | Jurisdiction |
|---|---|---|---|---|---|---|
CAPSTONE | App 115029 | App 23-SEP-1997 | Reg 115029 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Israel | |
 | App 112062 | App 30-APR-1997 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Israel | ||
 | App 112063 | App 30-APR-1997 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Israel | ||
 | App TP84670/04 | App 04-FEB-2004 | CAPSTONE TURBINE CORPORATION (United States of America)5 | Nigeria | ||
 | App TP84671/2004 | App 04-FEB-2004 | CAPSTONE TURBINE CORPORATION (United States of America) | Nigeria | ||
CAPSTONE | App TP84672/04 | App 04-FEB-2004 | CAPSTONE TURBINE CORPORATION (United States of America) | Nigeria | ||
CAPSTONE | App TP84673/2004 | App 04-FEB-2004 | CAPSTONE TURBINE CORPORATION (United States of America) | Nigeria | ||
CASTONE | App 98/02524 | App 20-FEB-1998 | Reg 1998/02524 | Reg 03-OCT-2001 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | South Africa |
5 Information as to all Nigerian filings based on publicly available information as of 10/30/23.
17
Trademark | Application No. | Filing Date | Registration No. | Registration Date | Record Owner (and with Legal Owner, if Different) | Jurisdiction |
|---|---|---|---|---|---|---|
CAPSTONE | App 98/02522 | App 20-FEB-1998 | Reg 1998/02522 | Reg 03-OCT-2001 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | South Africa |
CAPSTONE | App 98/02525 | App 20-FEB-1998 | Reg 1998/02525 | Reg 03-OCT-2001 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | South Africa |
 | App 1301274 | App 03-MAR-1998 | Reg 1301274 | Reg 07-AUG-1999 | CAPSTONE TURBINE CORPORATION (United States of America)6 | China |
 | App 1299981 | App 03-MAR-1998 | Reg 1299981 | Reg 28-JUL-1999 | CAPSTONE TURBINE CORPORATION (United States of America) | China |
 | App 1291874 | App 03-MAR-1998 | Reg 1291874 | Reg 07-JUL-1999 | CAPSTONE TURBINE CORPORATION (United States of America) | China |
 | App 1284495 | App 03-MAR-1998 | Reg 1284495 | Reg 14-JUN-1999 | CAPSTONE TURBINE CORPORATION (United States of America) | China |
 | App 1284494 | App 03-MAR-1998 | Reg 1284494 | Reg 14-JUN-1999 | CAPSTONE TURBINE CORPORATION (United States of America) | China |
 | App 769311 | App 23-SEP-1997 | Reg 769311 | Rnw 23-SEP-2007 | CAPSTONE TURBINE CORPORATION (United States of America)7 | India |
 | App 769314 | App 23-SEP-1997 | Reg 769314 | Rnw 23-SEP-2007 | CAPSTONE TURBINE CORPORATION (United States of America) | India |
6 Information as to all Chinese filings based on publicly available information as of 10/30/23.
7 Information as to all Indian filings based on publicly available information as of 10/30/23.
18
Trademark | Application No. | Filing Date | Registration No. | Registration Date | Record Owner (and with Legal Owner, if Different) | Jurisdiction |
|---|---|---|---|---|---|---|
 | App R002012010153 | App 05-JUL-2012 | Reg IDM000376969 | Reg 28-NOV-2012 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Indonesia |
CAPSTONE | App H10-017382 | App 03-MAR-1998 | Reg 4414046 | Reg 01-SEP-2000 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) キャプストン グリーン エナジー コーポレイション | Japan |
CAPSTONE | App H09-174425 | App 06-NOV-1997 | Reg 4413826 | Reg 01-SEP-2000 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) キャプストン グリーン エナジー コーポレイション | Japan |
 | App H09-112736 | App 01-MAY-1997 | Reg 4378971 | Reg 21-APR-2000 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) キャプストン グリーン エナジー コーポレイション | Japan |
CAPSTONE | App H05-077077 | App 22-JUL-1993 | Reg 3179900 | Reg 31-JUL-1996 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) キャプストン グリーン エナジー コーポレイション | Japan |
CAPSTONE | App 98002655 | App 04-MAR-1998 | Reg 98002655 | Reg 29-OCT-2002 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Malaysia |
 | App 98002656 | App 04-MAR-1998 | Reg 98002656 | Reg 19-JUN-2002 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Malaysia |
19
Trademark | Application No. | Filing Date | Registration No. | Registration Date | Record Owner (and with Legal Owner, if Different) | Jurisdiction |
|---|---|---|---|---|---|---|
 | App 98002657 | App 04-MAR-1998 | Reg 98002657 | Reg 02-SEP-2003 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Malaysia |
CAPSTONE | App 98002658 | App 04-MAR-1998 | Reg 98002658 | Reg 19-OCT-2002 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Malaysia |
CAPSTONE | App 98002659 | App 04-MAR-1998 | Reg 98002659 | Reg 16-OCT-2001 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Malaysia |
CAPSTONE | App 98002660 | App 04-MAR-1998 | Reg 98002660 | Reg 03-SEP-2002 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | Malaysia |
CAPSTONE | App 755739 | App 23-FEB-1998 | Reg 755739 | Reg 23-FEB-1998 | Capstone Green Energy Corporation a California corporation (United States of America) | Australia |
CAPSTONE | App 289011 (00289011) | App 26-FEB-1998 | Reg 289011 | Reg 27-AUG-1998 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | New Zealand |
CAPSTONE | App 289012 (00289012) | App 26-FEB-1998 | Reg 289012 | Reg 27-AUG-1998 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | New Zealand |
CAPSTONE | App 289013 (00289013) | App 26-FEB-1998 | Reg 289013 | Reg 27-AUG-1998 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | New Zealand |
CAPSTONE | App 289014 (00289014) | App 26-FEB-1998 | Reg 289014 | Reg 12-JAN-2000 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | New Zealand |
20
Trademark | Application No. | Filing Date | Registration No. | Registration Date | Record Owner (and with Legal Owner, if Different) | Jurisdiction |
|---|---|---|---|---|---|---|
 | App 289015 (00289015) | App 26-FEB-1998 | Reg 289015 | Reg 01-SEP-1998 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | New Zealand |
| App 289016 (00289016) | App 26-FEB-1998 | Reg 289016 | Reg 01-SEP-1998 | CAPSTONE GREEN ENERGY CORPORATION (United States of America) | New Zealand |
CAPSTONE | App 51-2009-0000891 | App 17-FEB-2009 | Reg 41005957300008 | Reg 17-JUN-2009 | CAPSTONE GREEN ENERGY CORPORATION 캡스톤 그린 에너지 코포레이션 | South Korea |
CAPSTONE | App 41-1998-0009567 | App 20-NOV-1998 | Reg 4100595730000 | Reg 15-FEB-2000 | CAPSTONE GREEN ENERGY CORPORATION 캡스톤 그린 에너지 코포레이션 | South Korea |
CAPSTONE | App 51-2009-0000892 | App 17-FEB-2009 | Reg 4100549950000 | Reg 27-JUL-2009 | CAPSTONE GREEN ENERGY CORPORATION 캡스톤 그린 에너지 코포레이션 | South Korea |
CAPSTONE | App 40-1997-0052390 | App 11-NOV-1997 | Reg 4004389250000 | Reg 22-JAN-1999 | CAPSTONE GREEN ENERGY CORPORATION 캡스톤 그린 에너지 코포레이션 | South Korea |
CAPSTONE | App 56-2008-0026545 | App 04-DEC-2008 | Reg 4004389250000 | Reg 06-APR-2009 | CAPSTONE GREEN ENERGY CORPORATION 캡스톤 그린 에너지 코포레이션 | South Korea |
8 Information as to all South Korean filings based on publicly available information as of 10/30/23.
21
Trademark | Application No. | Filing Date | Registration No. | Registration Date | Record Owner (and with Legal Owner, if Different) | Jurisdiction |
|---|---|---|---|---|---|---|
CAPSTONE | App 50-2008-0024797 | App 04-DEC-2008 | Reg 4004389250000 | Reg 25-MAR-2009 | CAPSTONE GREEN ENERGY CORPORATION 캡스톤 그린 에너지 코포레이션 | South Korea |
CAPSTONE | App 56-2008-0013176 | App 11-JUN-2008 | Reg 4004309900000 | Reg 21-JAN-2009 | CAPSTONE GREEN ENERGY CORPORATION 캡스톤 그린 에너지 코포레이션 | South Korea |
CAPSTONE | App 50-2008-0011907 | App 11-JUN-2008 | Reg 4004309900000 | Reg 26-AUG-2008 | CAPSTONE GREEN ENERGY CORPORATION 캡스톤 그린 에너지 코포레이션 | South Korea |
CAPSTONE | App 40-1997-0052389 | App 11-NOV-1997 | Reg 4004309900000 | Reg 25-NOV-1998 | CAPSTONE GREEN ENERGY CORPORATION 캡스톤 그린 에너지 코포레이션 | South Korea |
| App 56-2008-0013174 | App 11-JUN-2008 | Reg 4004274010000 | Reg 01-DEC-2008 | CAPSTONE GREEN ENERGY CORPORATION 캡스톤 그린 에너지 코포레이션 | South Korea |
| App 50-2008-0011905 | App 11-JUN-2008 | Reg 4004274010000 | Reg 07-OCT-2008 | CAPSTONE GREEN ENERGY CORPORATION 캡스톤 그린 에너지 코포레이션 | South Korea |
| App 50-2008-0011906 | App 11-JUN-2008 | Reg 4004309620000 | Reg 26-AUG-2008 | CAPSTONE GREEN ENERGY CORPORATION 캡스톤 그린 에너지 코포레이션 | South Korea |
22
Trademark | Application No. | Filing Date | Registration No. | Registration Date | Record Owner (and with Legal Owner, if Different) | Jurisdiction |
|---|---|---|---|---|---|---|
| App 56-2008-0013175 | App 11-JUN-2008 | Reg 4004309620000 | Reg 21-JAN-2009 | CAPSTONE GREEN ENERGY CORPORATION 캡스톤 그린 에너지 코포레이션 | South Korea |
App 40-1997-0045931 | App 30-SEP-1997 | Reg 4004309620000 | Reg 25-NOV-1998 | CAPSTONE GREEN ENERGY CORPORATION 캡스톤 그린 에너지 코포레이션 | South Korea | |
| App 40-1997-0045930 | App 30-SEP-1997 | Reg 4004274010000 | Reg 28-OCT-1998 | CAPSTONE GREEN ENERGY CORPORATION 캡스톤 그린 에너지 코포레이션 | South Korea |
23
C
Schedule 2
to the License Agreement
Capstone Green Energy Corporation
Capstone Turbine Financial Services, LLC
Capstone Energy Finance LLC
Capstone Green Energy LLC
[●]
Schedule 3
to the License Agreement
Domain Names1
Domain Name | Expiration Date |
capstoneenergysales.com | 4/10/2024 |
capstonefinance.com | 5/11/2025 |
capstonefinance.net | 11/7/2025 |
capstonegreenenergy.com | 2/19/2024 |
capstonegreenenergy.net | 2/19/2024 |
capstonegreenenergy.org | 2/19/2024 |
capstonegreenenergycorporation.com | 2/19/2024 |
capstonegreenenergycorporation.net | 2/19/2024 |
capstonegreenenergycorporation.org | 2/19/2024 |
capstonegrn.com | 3/11/2024 |
capstonegrn.net | 3/11/2024 |
capstonegrn.org | 3/11/2024 |
capstonerental.com | 10/29/2026 |
capstonerentalpower.com | 10/29/2026 |
capstoneturbine.com | 5/17/2028 |
cgrnenergy.com | 3/24/2024 |
microturbine.com | 1/1/2027 |
microturbine.online | 11/17/2024 |
shifttogreen.com | 9/25/2026 |
1 All domains are scheduled for autorenewal. Licensor is in the process of securing the domain name cge.com.
2
Active Social Media Accounts2
Instagram: @CGRNenergy
Threads: @CGRNenergy
YouTube: youtube.com/c/CapstoneGreenEnergy (@Capstone Green Energy)
LinkedIn: linkedin.com/company/capstone-green-energy
X: @CGRNenergy
Facebook: @Capstone Green Energy
2 Account handles subject to change.
3
EXHIBIT 99.1
CAPSTONE GREEN ENERGY CORPORATION
RECEIVES COURT APPROVAL OF JOINT PREPACKAGED PLAN OF REORGANIZATION - PAVING THE WAY FOR EMERGENCE
LOS ANGELES, CA / BUSINESS WIRE / NOVEMBER 14, 2023 / Capstone Green Energy Corporation (OTC: CGRNQ) (the “Company” or “Capstone”) announced today that the U.S. Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”) has confirmed the Joint Prepackaged Chapter 11 Plan of Capstone Green Energy Corporation and its Debtor Affiliates (the “Plan”), paving the way for the Company’s business to emerge from chapter 11 on stronger financial footing.
Under the Plan, the Capstone business will emerge from bankruptcy within the next several weeks with a substantially strengthened capital structure and improved liquidity, helping to ensure it is best equipped to continue to execute its strategy and further enhance its market leadership as a microgrid solutions and on-site energy technology systems provider. The Plan contemplates $7.0 million of new money exit financing, an increase from the originally contemplated $5.0 million of new money exit financing.
“Today’s Plan confirmation by the Bankruptcy Court represents an important milestone for the Company. We are one step closer to achieving our goal of long-term financial stability. Notably, the Plan provides that the Company’s public stockholders will receive their pro rata share of one hundred percent (100%) of the equity in Capstone Green Energy Holdings, Inc., which will hold a majority interest in a new entity that will operate the Company’s business, subject to dilution from equity incentive compensation pursuant to equity incentive plans. We thank our investors, distributors, suppliers and employees for their support throughout this process, and we are excited to continue building energy-saving and cost-efficient products for our customers,” stated Robert Flexon, Executive Chairman and Interim President and CEO. Mr. Flexon continued, “Capstone will emerge better positioned to advance our strategic priorities, continue to innovate and pursue new growth opportunities.”
Additional Information
All Bankruptcy Court filings and related information about the chapter 11 cases can be found at a website maintained by the Debtors’ claims and noticing agent, Kroll Restructuring Administration LLC (“Kroll”), at https://cases.ra.kroll.com/capstone or by contacting Kroll at 1-844-642-1256 (Toll-Free), +1-646-651-1164 (International) or by e-mail at capstoneinfo@ra.kroll.com. Additional details regarding the chapter 11 cases are included in, and the description above is qualified in its entirety by, the Company’s Current Reports on Form 8-K filed with the SEC on September 28, 2023, October 3, 2023 and October 25, 2023.
About Capstone Green Energy
Capstone Green Energy (OTC: CGRNQ) is a leading provider of customized microgrid solutions, and on-site energy technology systems focused on helping customers around the globe meet their environmental, energy savings, and resiliency goals. Capstone Green Energy focuses on four key business lines. Through its Energy as a Service (EaaS) business, it offers rental solutions
utilizing its microturbine energy systems and battery storage systems, comprehensive Factory Protection Plan (FPP) service contracts that guarantee life-cycle costs, as well as aftermarket parts. Energy Generation Technologies (EGT) are driven by the Company’s industry-leading, highly efficient, low-emission, resilient microturbine energy systems offering scalable solutions in addition to a broad range of customer-tailored solutions, including hybrid energy systems and larger frame industrial turbines. The Energy Storage Solutions (ESS) business line designs and installs microgrid storage systems, creating customized solutions using a combination of battery technologies and monitoring software. Through Hydrogen & Sustainable Products (H2S), Capstone Green Energy offers customers a variety of hydrogen products, including the Company’s microturbine energy systems.
To date, Capstone has shipped over 10,000 units to 83 countries and estimates that in FY23, it saved customers over $169 million in annual energy costs and approximately 362,000 tons of carbon. Total savings over the last five years are estimated to be approximately $1.08 billion in energy savings and approximately 1.9 million tons of carbon savings.
For customers with limited capital or short-term needs, Capstone offers rental systems; for more information, contact: rentals@CGRNenergy.com.
For more information about the Company, please visit www.CapstoneGreenEnergy.com. Follow Capstone Green Energy on Twitter, LinkedIn, Instagram, Facebook, and YouTube.
Cautionary Note Regarding Forward-Looking Statements
This release contains forward-looking statements as defined in the Private Securities Litigation Reform Act of 1995, including statements regarding the restructuring and the other statements regarding the Company’s expectations, beliefs, plans, intentions, and strategies. The Company has tried to identify these forward-looking statements by using words such as “expect,” “anticipate,” “believe,” “could,” “should,” “estimate,” “intend,” “may,” “will,” “plan,” “goal” and similar terms and phrases, but such words, terms and phrases are not the exclusive means of identifying such statements. Actual results, performance and achievements could differ materially from those expressed in, or implied by, these forward-looking statements due to a variety of risks, uncertainties and other factors, including, but not limited to, the following: risks attendant to the chapter 11 bankruptcy process, including the effects of chapter 11, including increased legal and other professional costs necessary to execute the chapter 11 process and on the Company’s liquidity and results of operations (including the availability of operating capital during the pendency of chapter 11); the length of time that the Company will operate under chapter 11 protection and the continued availability of operating capital during the pendency of chapter 11; the consummation of the transactions contemplated by the Transaction Support Agreement (the “TSA”) and the Plan, including the ability of the parties to negotiate definitive agreements with respect to the matters covered by the term sheets included in the TSA, the Plan or otherwise, the occurrence of events that may give rise to a right of any of the parties to terminate the TSA, and the ability of the parties thereto to satisfy the other conditions of the TSA or the Plan, as applicable, including satisfying the milestones specified in the TSA and the DIP Note Purchase Agreement; the Company’s ability to meet its financial obligations during the chapter 11 process and to maintain contracts that are critical to its operations; the Company’s ability to comply with the
restrictions imposed by the terms and conditions of the DIP Facility and other financing arrangements; the effects of chapter 11 on the interests of various constituents and financial stakeholders; the effect of the chapter 11 filings on the Company’s relationships with vendors, regulatory authorities, employees and other third parties; possible proceedings that may be brought by third parties in connection with the chapter 11 process and risks associated with third-party motions in chapter 11; employee attrition and the Company’s ability to retain senior management and other key personnel due to the distractions and uncertainties; the impact and timing of any cost-savings measures and related local law requirements in various jurisdictions; the impact of litigation and regulatory proceedings; risks related to the restatement previously announced by the Company (including discovery of additional information relevant to the financial statements subject to restatement; changes in the effects of the restatement on the Company’s financial statements or financial results and delay in the filing of the amended 10-K and amended 10-Q’s due to the Company’s efforts to complete the restatement; the time, costs and expenses associated with the restatement; potential inquiries from the SEC and/or Nasdaq; the potential material adverse effect on the price of the Company’s common stock and possible stockholder lawsuits); and expectations regarding financial performance, strategic and operational plans, and other related matters. For a detailed discussion of factors that could affect the Company’s future operating results, please see the Company’s filings with the Securities and Exchange Commission, including the disclosures under “Risk Factors” in those filings. Except as expressly required by the federal securities laws, the Company undertakes no obligation to update or revise any forward-looking statements, whether as a result of new information, changed circumstances or future events or for any other reason.
CONTACT:
Capstone Green Energy
Investor and investment media inquiries:
818-407-3628
ir@CGRNenergy.com
