Delaware | 001-41370 | 87-4407005 |
(State or other jurisdiction of incorporation)
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(Commission File Number)
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(I.R.S. Employer Identification No.)
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Common Stock, par value $0.01 per share
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FIP
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The Nasdaq Global Select Market
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a separation and distribution agreement, by and between FTAI and FTAI Infrastructure (the “Separation and Distribution Agreement”);
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an amended and restated management and advisory agreement, by and between FTAI Infrastructure and its manager, FIG LLC (the “Manager”) (the “Management Agreement”);
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a registration rights agreement, by and among the Manager and its affiliates and Fortress Transportation and Infrastructure Master GP LLC and its affiliates (collectively, the “Fortress Entities”) (the “Registration Rights
Agreement”);
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a license agreement, by and between FTAI and FTAI Infrastructure (the “License Agreement”);
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an investors' rights agreement, by and between FTAI Infrastructure and the parties listed thereto (the “Investors' Rights Agreement”); and
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a warrant agreement, by and between FTAI Infrastructure and American Stock Transfer & Trust Company, LLC, as warrant agent (the “Warrant Agreement”).
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Exhibit No.
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Description
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Separation and Distribution Agreement, dated as of August 1, 2022, between FTAI Infrastructure Inc. and Fortress Transportation and Infrastructure Investors LLC.
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Certificate of Conversion.
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Amended and Restated Certificate of Incorporation of FTAI Infrastructure Inc.
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Amended and Restated Bylaws of FTAI Infrastructure Inc.
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Certificate of Designations of Series A Preferred Stock of FTAI Infrastructure Inc.
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Second Supplemental Indenture, dated as of August 1, 2022, among FTAI Infrastructure Inc., the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and as notes collateral
agent.
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Amended and Restated Management and Advisory Agreement, dated as of July 31, 2022, between FTAI Infrastructure Inc. and FIG LLC.
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Registration Rights Agreement, dated as of August 1, 2022, between FTAI Infrastructure Inc., FIG LLC and Fortress Worldwide Transportation and Infrastructure Master GP LLC.
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Trademark License Agreement, dated as of August 1, 2022, between Fortress Transportation and Infrastructure Investors LLC and FTAI Infrastructure Inc.
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FTAI Infrastructure Inc. Nonqualified Stock Option and Incentive Award Plan.
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Warrant Agreement, dated August 1, 2022, between FTAI Infrastructure Inc. and American Stock Transfer & Trust Company, LLC, as warrant agent.
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Investor Rights Agreement, dated August 1, 2022, between FTAI Infrastructure Inc. and the parties listed thereto.
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Form of Letter sent to FTAI’s option holders describing the equitable adjustment to FTAI’s options.
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Form of Indemnification Agreement.
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Press Release, dated August 1, 2022.
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Dated: August 1, 2022
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FTAI INFRASTRUCTURE INC.
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/s/ Kenneth J. Nicholson
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Kenneth J. Nicholson
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Chief Executive Officer and President
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ARTICLE I
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DEFINITIONS
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Section 1.1
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Definitions
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5
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Section 1.2
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Interpretation
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14
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ARTICLE II
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THE RESTRUCTURING
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Section 2.1
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Transfers of Assets and Assumptions of Liabilities
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15
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Section 2.2
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Termination of Intercompany Agreements
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19
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Section 2.3
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Settlement of Intercompany Account
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19
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ARTICLE III
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CERTAIN ACTIONS PRIOR TO THE DISTRIBUTION
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Section 3.1
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SEC and Other Securities Filings
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20
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Section 3.2
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Nasdaq Listing Application
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20
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Section 3.3
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Distribution Agent Agreement
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20
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Section 3.4
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Management Agreements
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21 |
Section 3.5
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Governmental Approvals and Consents
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21
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Section 3.6
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Ancillary Agreements
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21
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Section 3.7
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Governance Matters
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21
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Section 3.8
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Internal Restructuring
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21
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Section 3.9
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Trademark Assignment
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21
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ARTICLE IV
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THE DISTRIBUTION
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Section 4.1
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Dividend to FTAI
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22
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Section 4.2
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Delivery to Distribution Agent
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22
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Section 4.3
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Mechanics of the Distribution
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22
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Section 4.4
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FTAI Equity Award Adjustment
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22
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ARTICLE V
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CONDITIONS
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Section 5.1
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Conditions Precedent to Consummation of the Distribution
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24 |
Section 5.2
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Right Not to Close
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ARTICLE VI
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NO REPRESENTATIONS OR WARRANTIES
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Section 6.1
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Disclaimer of Representations and Warranties
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25
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Section 6.2
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As Is, Where Is
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26
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ARTICLE VII
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CERTAIN COVENANTS AND ADDITIONAL AGREEMENTS
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Section 7.1
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Insurance Matters
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26
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Section 7.2
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Tax Matters
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26
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Section 7.3
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No Restrictions on Post-Closing Competitive Activities
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30
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ARTICLE VIII
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ACCESS TO INFORMATION; CONFIDENTIALITY; PRIVILEGE
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Section 8.1
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Agreement for Exchange of Information
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Section 8.2
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Ownership of Information
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32
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Section 8.3
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Compensation for Preserving, Gathering or Providing Information
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32
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Section 8.4
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Retention of Records
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32
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Section 8.5
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Limitation of Liability
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32
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Section 8.6
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Production of Witnesses
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32
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Section 8.7
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Confidentiality
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Section 8.8
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Privileged Matters
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Section 8.9
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Financial Information Certifications
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ARTICLE IX
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MUTUAL RELEASES; INDEMNIFICATION
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Section 9.1
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Release of Pre-Distribution Claims
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Section 9.2
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Indemnification by FTAI Infrastructure
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Section 9.3
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Indemnification by FTAI
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Section 9.4
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Procedures for Indemnification
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40
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Section 9.5
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Indemnification Obligations Net of Insurance Proceeds
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42
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Section 9.6
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Indemnification Obligations Net of Taxes
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43
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Section 9.7
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Contribution
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43
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Section 9.8
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Remedies Cumulative
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43
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Section 9.9
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Survival of Indemnities
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43
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Section 9.10
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Limitation of Liability
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43
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ARTICLE X
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DISPUTE RESOLUTION
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Section 10.1
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Agreement Dispute
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44
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Section 10.2
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Negotiation and Dispute Resolution
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44
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Section 10.3
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Arbitration
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44
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ARTICLE XI
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TERMINATION
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Section 11.1
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Termination
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46
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Section 11.2
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Effect of Termination
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46
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ARTICLE XII
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MISCELLANEOUS
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Section 12.1
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Further Assurances
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46
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Section 12.2
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Payment of Expenses
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Section 12.3
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Amendments and Waivers
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Section 12.4
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Entire Agreement
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47
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Section 12.5
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Survival of Agreements
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47
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Section 12.6
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Third Party Beneficiaries
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47
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Section 12.7
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Notices
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47
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Section 12.8
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Counterparts; Electronic Delivery
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48
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Section 12.9
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Severability
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48
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Section 12.10
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Assignability; Binding Effect
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48
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Section 12.11
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Governing Law
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49
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Section 12.12
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Construction
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49
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Section 12.13
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Performance
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49
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Section 12.14
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Title and Headings
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49
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Section 12.15
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Exhibits and Schedules
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49
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FORTRESS TRANSPORTATION & INFRASTRUCTURE INVESTORS LLC
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By:
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/s/ Joseph P. Adams Jr.
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Name:
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Joseph P. Adams Jr.
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Title:
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Chief Executive Officer
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FTAI INFRASTRUCTURE INC.
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By:
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/s/ Kenneth Nicholson
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Name:
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Kenneth Nicholson
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Title:
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Chief Executive Officer
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Subsidiary
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State of Formation
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1.
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FTAI Energy Holdings LLC
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Delaware
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2.
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FTAI Energy Holdings Sub II LLC
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Delaware
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3.
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FTAI Energy Holdings Sub I LLC
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Delaware
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4.
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Transtar, LLC
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Delaware
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5.
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Aleon Renewable Metals LLC and Gladieux Metals Recycling
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Delaware
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6.
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Katahdin Railcar Services LLC
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Delaware
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7.
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FYX Holdco LLC
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Delaware
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8.
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WWTAI Container Holdco Ltd.
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Bermuda
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9.
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WWTAI Container 1 Ltd.
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Bermuda
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10.
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Delaware River Partners Holdco LLC
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Delaware
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11.
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Ohio River Partners Holdco LLC
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Delaware
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Section 1.1
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Assets of FTAI Infrastructure other than Equity of Subsidiaries
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Section 1.2
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Potential Liabilities
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Section 2.2(b)
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Intercompany Agreements
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Section 2.3
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Intercompany Accounts
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FTAI INFRASTRUCTURE LLC
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By:
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/s/ Kenneth Nicholson
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Name: Kenneth Nicholson
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Title: Chief Executive Officer
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(1) |
The name of the Corporation is FTAI Infrastructure Inc. The Corporation was originally formed as a Delaware limited liability company under the name FTAI Infrastructure LLC (the “LLC”). The original
Certificate of Formation of the LLC was filed with the office of the Secretary of State of the State of Delaware on December 13, 2021, and a Certificate of Conversion, converting the LLC from a Delaware limited liability company to a Delaware
corporation, was filed with the office of the Secretary of State of the State of Delaware on July 29, 2022.
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(2) |
This Amended and Restated Certificate of Incorporation, which restates and amends the Certificate of Incorporation of the Corporation, has been duly adopted in accordance with the provisions of Sections 242 and
245 of the DGCL by the board of directors and sole stockholder of the Corporation, acting by written consent in lieu of a meeting in accordance with Section 228 of the DGCL.
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(3) |
The Certificate of Designations of Series A Senior Preferred Stock of the Corporation is attached hereto as Exhibit A and is hereby incorporated herein by this reference
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This Amended and Restated Certificate of Incorporation shall become effective at 12:01 a.m. (Eastern Time) on August 1, 2022 (the “Effective Time”).
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The Certificate of Incorporation of the Corporation is hereby amended and restated in its entirety to read as follows:
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(1) |
The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.
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Except as otherwise provided for or fixed pursuant to the terms of any Share Designation relating to the rights of holders of any series of Preferred Stock to elect Preferred Stock Directors, the number of
Directors which shall constitute the whole Board of Directors shall be determined from time to time by resolution adopted by a majority of the Board of Directors then in office, but shall be not fewer than three (3) and no more than nine
(9). The Directors (other than any Preferred Stock Directors) shall be divided into three classes, designated Class I, Class II and Class III. Each class shall consist, as nearly as may be possible, of one-third of the total number of
Directors constituting the whole Board of Directors (other than any Preferred Stock Directors). The initial division of the Board of Directors into classes shall be made by the decision of the affirmative vote of a majority of the entire
Board of Directors. At the time of the execution of this Certificate of Incorporation, the Class I Directors shall have a term expiring on the date of the 2023 annual meeting of stockholders, the Class II Directors shall have a term expiring
on the date of the 2024 annual meeting of stockholders, and the Class III Directors shall have a term expiring on the date the 2025 annual meeting of stockholders. At each succeeding annual meeting of stockholders beginning in 2023,
successors to the class of Directors whose term expires at that annual meeting shall be elected for a three (3)-year term and until their successors are duly elected or appointed and qualified. If the number of Directors is changed, any
increase or decrease shall be apportioned among the classes so as to maintain the number of Directors in each class as nearly equal as possible, and any additional Director of any class elected to fill a vacancy resulting from an increase in
such class or from the death, resignation or removal from office of a Director or other cause shall hold office for a term that shall coincide with the remaining term of the Directors of that class, but in no case shall a decrease in the
number of Directors shorten the term of any incumbent Director. Directors need not be stockholders. Each Director (other than any Preferred Stock Directors) elected shall hold office until the third succeeding meeting next after such
Director’s election and until such Director’s successor is duly elected and qualified, or until such Director’s death or until such Director resigns or is removed in the manner hereinafter provided. Directors (other than any Preferred Stock
Directors) shall be elected by a plurality of the votes of Outstanding Voting Stock present in person or represented by proxy and entitled to vote on the election of Directors at any annual or special meeting of stockholders. Except with
respect to Preferred Stock Directors, the Board of Directors shall present to the stockholders holding Outstanding Voting Stock nominations of candidates for election to the Board of Directors (or recommend the election of such candidates as
nominated by others) such that, and shall take such other corporate actions as may be reasonably required to provide that, to the best knowledge of the Board of Directors, if such candidates are elected by the stockholders holding Outstanding
Voting Stock, at least a majority of the members of the Board of Directors shall be Independent Directors. The Board of Directors shall only elect any Person to fill a vacancy on the Board of Directors (other than a vacancy in respect of a
Preferred Stock Director) if, to the best knowledge of the Board of Directors, after such person’s election at least a majority of the members of the Board of Directors (other than any Preferred Stock Directors) shall be Independent
Directors. The foregoing provisions of this paragraph shall not cause a Director who, upon commencing his or her service as a member of the Board of Directors was determined by the Board of Directors to be an Independent Director but did not
in fact qualify as such, or who by reason of any change in circumstances ceases to qualify as an Independent Director, from serving the remainder of the term as a Director for which he or she was selected. Notwithstanding the foregoing
provisions of this paragraph, no action of the Board of Directors shall be invalid solely by reason of the failure at any time for a majority of the members of the Board of Directors to be Independent Directors. Any Director or the whole
Board of Directors (other than any Preferred Stock Directors) may be removed, only for cause, by the affirmative vote of holders of at least eighty percent (80%) of the then issued and Outstanding Voting Stock, given at an annual meeting or
at a special meeting of stockholders holding Outstanding Voting Stock called for that purpose. A vacancy in the Board of Directors caused by any such removal shall be filled by the Board of Directors as provided in clause (3) of this Article
SIXTH. Any Director serving on a committee of the Board of Directors may be removed from such committee at any time by the Board of Directors.
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(3) |
Subject to the rights of holders of any one or more series of Preferred Stock then outstanding with respect to the election of Preferred Stock Directors or vacancies in respect thereof, any vacancy on the Board
of Directors that results from newly created directorships resulting from any increase in the authorized number of Directors may be filled by a majority of the Directors then in office, provided that a quorum is present, and any other
vacancies may be filled by a majority of the Directors then in office, though less than a quorum, or by a sole remaining Director or, solely in the event of the removal of the entire Board of Directors, by the affirmative vote of the holders
of at least eighty percent (80%) of the voting power of the then issued and Outstanding Voting Stock. Any Director of any class elected to fill a vacancy resulting from an increase in the number of Directors of such class pursuant to the
foregoing sentence shall hold office for a term that shall coincide with the remaining term of that class and until such Director’s successor is duly elected or appointed and qualified, or until his or her earlier death, resignation or
removal. Any Director elected to fill a vacancy not resulting from an increase in the number of Directors shall have the same remaining term as that of such Director’s predecessor and until such Director’s successor is duly elected or
appointed and qualified, or until his or her earlier death, resignation or removal.
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(4) |
No Director shall be personally liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a Director, except to the extent such exemption from liability or
limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. If the DGCL is amended hereafter to authorize the further elimination or limitation of the liability of Directors, then the liability of a
Director of the Corporation shall be eliminated or limited to the fullest extent authorized by the DGCL, as so amended. If the DGCL is amended hereafter to authorize the elimination of personal liability of any officers of the Corporation
for monetary damages for breach of fiduciary duty as an officer, then the personal liability of such officers for monetary damages for breach of fiduciary duty as an officer, shall be eliminated to the fullest extent authorized by the DGCL,
as so amended. Any repeal or modification of this Article SIXTH shall not adversely affect any right or protection of a Director or (if applicable) officer of the Corporation existing at the time of such repeal or modification with respect
to acts or omissions occurring prior to such repeal or modification.
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(5) |
In addition to the powers and authority hereinbefore or by statute expressly conferred upon them, the Directors are hereby empowered to exercise all such powers
and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the DGCL, this Certificate of Incorporation, and any by-laws of the Corporation (the “By-Laws”) adopted by the stockholders; provided, however, that no By-Laws hereafter adopted by the stockholders shall invalidate any prior act of the
Directors which would have been valid if such By-Laws had not been adopted.
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(1) |
Except as provided in clauses (2) and (3) of this Article FOURTEENTH and subject to any Share Designation, the Board of Directors may amend any of the terms of this Certificate of Incorporation or the By-Laws
but only in compliance with the terms, conditions and procedures set forth in this clause (1). If the Board of Directors desires to amend any provision of this Certificate of Incorporation or the By-Laws other than, with respect to the
By-Laws, pursuant to Article X of the By-Laws, then it shall first adopt a resolution setting forth the amendment proposed, declaring its advisability, and then, to the extent required by the DGCL, (i) call a special meeting of the
stockholders entitled to vote in respect thereof for the consideration of such amendment, (ii) direct that the amendment proposed be considered at the next annual meeting of the stockholders or (iii) in the case of any series of Preferred
Stock the holders of which are permitted to act by written consent pursuant to the Share Designation in respect thereof, seek the written consent of such stockholders. Amendments to this Certificate of Incorporation or the By-Laws may be
proposed only by or with the consent of the Board of Directors. Such special or annual meeting shall be called and held upon notice in accordance with the By-Laws. The notice shall set forth such amendment in full or a brief summary of the
changes to be effected thereby, as the Board of Directors shall deem advisable. At the meeting, a vote of stockholders entitled to vote thereon shall be taken for and against the proposed amendment. A proposed amendment (other than
amendments that do not require stockholder approval under the DGCL) shall require for its approval the affirmative vote of a Share Majority (as defined below), unless a greater percentage is required under his Certificate of Incorporation,
the By-Laws, any Share Designation, applicable law or the rules and regulations of any securities exchange or quotation system on which the Corporation Securities (as defined below) are listed or quoted for trading. An amendment to this
Certificate of Incorporation that has been duly approved in accordance with this Article FOURTEENTH, shall be effective upon the effectiveness of its filing with the office of the Secretary of State of the State of Delaware. Notwithstanding
the foregoing, except otherwise required by law, holders of Common Stock shall not be entitled to vote on any amendment to this Certificate of Incorporation (for the avoidance of doubt, including any Share Designation) that relates solely to
the terms of one or more series of Preferred Stock if the holders of such series are entitled either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation (for
the avoidance of doubt, including any Share Designation) or applicable law.
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(1) |
Certain Definitions. For purposes of this Article FIFTEENTH, the following terms shall have the following meanings:
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(2) |
Investors’ Rights Agreement. Notwithstanding anything contained in this Article FIFTEENTH, any action taken by the Corporation or the Board of Directors or any
committee thereof shall be taken in accordance with, and remain subject to in all respects, the terms and conditions of the Investors’ Rights Agreement.
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(3) |
Restrictions on Transfer. In order to preserve the Tax Benefits, subject to clause (4) of this Article FIFTEENTH, any attempted Transfer of Corporation
Securities prior to the Restriction Release Date, or any attempted Transfer of Corporation Securities pursuant to an agreement entered into prior to the Restriction Release Date, shall be prohibited and void ab initio if (a) the transferor is a Substantial Shareholder other than an Initial Substantial Shareholder or (b) to the extent that, as a result of such Transfer (or any series of Transfers of which such Transfer is a
part), either (i) any Person or group of Persons shall become a Substantial Shareholder (other than a Public Group by reason of a Transfer from an Initial Substantial Shareholder) or (ii) the Percentage Stock Ownership interest in the
Corporation of any Substantial Shareholder shall be increased (other than that of a Public Group by reason of a Transfer from an Initial Substantial Shareholder).
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(4) |
Certain Exceptions. The restrictions set forth in clause (3) of this Article FIFTEENTH shall not apply to an attempted Transfer of Corporation Securities if the
transferor or the transferee obtains the written approval of the Board of Directors of the Corporation, whether or not a request has been made to the Board of Directors, which approval may be granted or denied in the sole discretion of the
Board of Directors. As a condition to granting its approval, the Board of Directors may, in its discretion, require (at the expense of the transferor and/or transferee) an opinion of counsel selected by the Board of Directors that the
Transfer will not result in the application of any limitation on the use of the Tax Benefits under Section 382 of the Code; provided that the Board of Directors may grant such approval notwithstanding the effect of such approval on the Tax
Benefits if it determines that the approval is in the best interests of the Corporation. The Board of Directors may grant its approval in whole or in part with respect to such Transfer and may impose any conditions that it deems reasonable
and appropriate in connection with such approval, including, without limitation, restrictions on the ability of any transferee to Transfer Corporation Securities acquired through a Transfer. Approvals of the Board of Directors hereunder may
be given prospectively or retroactively. The Board of Directors, to the fullest extent permitted by law, may exercise the authority granted by this Article FIFTEENTH through duly authorized officers or agents of the Corporation. Nothing in
this Article FIFTEENTH shall be construed to limit or restrict the Board of Directors in the exercise of its fiduciary duties under applicable law.
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(5) |
Treatment of Excess Securities.
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(6) |
Board Determinations.
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(7) |
Securities Exchange Transactions. Nothing in this Article FIFTEENTH shall preclude the settlement of any transaction entered into through the facilities of a
national securities exchange or any national securities quotation system. The fact that the settlement of any transaction occurs shall not negate the effect of any other provision of this Article FIFTEENTH and any Purported Transferee in
such a transaction shall be subject to all of the provisions and limitations set forth in this Article FIFTEENTH.
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(8) |
Legal Proceedings; Prompt Enforcement. If the Purported Transferee fails to surrender the Excess Securities or the proceeds of a sale thereof to the Agent
within thirty days from the date on which the Corporation makes a written demand pursuant to clause (5)(iii) of this Article FIFTEENTH, then the Corporation shall promptly take all cost effective actions which it believes are appropriate to
enforce the provisions hereof, including the institution of legal proceedings to compel the surrender. Nothing in this clause (8) of this Article FIFTEENTH shall (a) be deemed inconsistent with any Transfer of the Excess Securities provided
in this Article FIFTEENTH being void ab initio or (b) preclude the Corporation in its discretion from immediately bringing legal proceedings without a prior demand. The Board of Directors may
authorize such additional actions as it deems advisable to give effect to the provisions of this Article FIFTEENTH.
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(9) |
Liability. To the fullest extent permitted by law, any stockholder subject to the provisions of this Article FIFTEENTH who knowingly violates the provisions of
this Article FIFTEENTH and any Persons controlling, controlled by or under common control with such stockholder shall be jointly and severally liable to the Corporation for, and shall indemnify and hold the Corporation harmless against, any
and all damages suffered as a result of such violation, including but not limited to damages resulting from a reduction in, or elimination of, the Corporation’s ability to utilize its Tax Benefits, and attorneys’ and auditors’ fees incurred
in connection with such violation.
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(10) |
Notice to Corporation. Any Person who acquires or attempts to acquire Corporation Securities in excess of the limitations set forth in this Article FIFTEENTH
shall immediately give written notice to the Corporation of such event and shall provide to the Corporation such other information as the Corporation may request in order to determine the effect, if any, of such Prohibited Transfer on the
preservation and usage of the Tax Benefits. As a condition to the registration of the Transfer of any Corporation Securities, any Person who is a beneficial, legal, or record holder of Corporation Securities, and any proposed transferee and
any Person controlling, controlled by, or under common control with the proposed transferee, shall use commercially reasonable efforts to promptly provide such information as the Corporation may request from time to time in order to
determine compliance with this Article FIFTEENTH or the status of the Tax Benefits of the Corporation.
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(11) |
By-Laws. The By-Laws of the Corporation may make appropriate provisions to effectuate the requirements of this Article FIFTEENTH.
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(12) |
Certificates. All certificates representing Corporation Securities on or after the Effective Date shall, until the Restriction Release Date, bear a conspicuous
legend in substantially the following form:
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(13) |
Reliance. To the fullest extent permitted by law, the Corporation and the members of the Board of Directors shall be fully protected in relying in good faith
upon the information, opinions, reports or statements of the chief executive officer, the chief financial officer, the chief accounting officer or the corporate controller of the Corporation or of the Corporation’s legal counsel,
independent auditors, transfer agent, investment bankers or other employees and agents in making the determinations and findings contemplated by this Article FIFTEENTH, and the members of the Board of Directors shall not be responsible for
any good faith errors made in connection therewith. For purposes of determining the existence and identity of, and the amount of any Corporation Securities owned by any stockholder, the Corporation is entitled to rely on the existence and
absence of filings of Schedule 13D or 13G under the Securities Exchange Act of 1934, as amended (or similar filings), if any, as of any date, subject to its actual knowledge of the ownership of Corporation Securities.
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(14) |
Benefits of Article FIFTEENTH. Nothing in this Article FIFTEENTH shall be construed to give to any Person other than the Corporation or the Agent any legal or
equitable right, remedy or claim under this Article FIFTEENTH. This Article FOURTEENTH shall be for the sole and exclusive benefit of the Corporation and the Agent.
|
(15) |
Severability. The purpose of this Article FIFTEENTH is to facilitate the Corporation’s ability to maintain or preserve its Tax Benefits. If any provision of
this Article FIFTEENTH or the application of any such provision to any Person or under any circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision of this Article FIFTEENTH.
|
(16) |
Waiver. With regard to any power, remedy or right provided herein or otherwise available to the Corporation or the Agent under this Article FIFTEENTH, (i) no
waiver will be effective unless expressly contained in a writing signed by the waiving party; and (ii) no alteration, modification or impairment will be implied by reason of any previous waiver, extension of time, delay or omission in
exercise, or other indulgence.
|
FTAI INFRASTRUCTURE INC.
|
||
|
||
By:
|
/s/ Kenneth Nicholson
|
|
Name: Kenneth Nicholson
|
||
Title: Chief Executive Officer
|
ARTICLE I OFFICES
|
1 | |
Section 1.1
|
Registered Office
|
1
|
Section 1.2
|
Other Offices
|
1
|
ARTICLE II MEETINGS OF STOCKHOLDERS
|
1 |
|
Section 2.1
|
Place of Meetings
|
1
|
Section 2.2
|
Stockholder Actions
|
1
|
Section 2.3
|
Annual Meetings
|
2
|
Section 2.4
|
Special Meetings
|
2
|
Section 2.5
|
Notice
|
2
|
Section 2.6
|
Adjournments
|
2
|
Section 2.7
|
Quorum
|
3
|
Section 2.8
|
Voting and Other Rights
|
3
|
Section 2.9
|
Proxies and Voting
|
4
|
Section 2.10
|
List of Stockholders Entitled to Vote
|
4
|
Section 2.11
|
Record Date
|
5
|
Section 2.12
|
Conduct of Meetings
|
5
|
Section 2.13
|
Nomination of Directors
|
6
|
Section 2.14
|
Notice of Stockholder Business and Nominations
|
6
|
|
||
ARTICLE III DIRECTORS
|
10 |
|
Section 3.1
|
Duties and Powers
|
10
|
Section 3.2
|
Meetings
|
12
|
Section 3.3
|
Chairman of Meetings
|
12
|
Section 3.4
|
Resignations of Directors
|
13
|
Section 3.5
|
Quorum
|
13
|
Section 3.6
|
Actions of the Board by Written Consent
|
13
|
Section 3.7
|
Meetings by Means of Conference Telephone
|
13
|
Section 3.8
|
Committees
|
13
|
Section 3.9
|
Subcommittees
|
14
|
Section 3.10
|
Minutes of Committees
|
14
|
Section 3.11
|
Remuneration
|
14
|
Section 3.12
|
Vacancies
|
14
|
Section 3.13
|
Interested Directors
|
14
|
ARTICLE IV OFFICERS
|
15 |
|
Section 4.1
|
General
|
15
|
Section 4.2
|
Election
|
15
|
Section 4.3
|
Resignation and Removal
|
15
|
Section 4.4
|
Voting Securities Owned by the Corporation
|
15
|
Section 4.5
|
Chief Executive Officer
|
16
|
Section 4.6
|
Chief Financial Officer
|
16
|
Section 4.7
|
Absence of the Chief Executive Officer
|
16
|
Section 4.8
|
Secretary and Assistant Secretary
|
16
|
Section 4.9
|
Other Officers
|
17
|
ARTICLE V STOCK
|
17 | |
Section 5.1
|
Authorization to Issue Capital Stock
|
17
|
Section 5.2
|
Certificates
|
17
|
Section 5.3
|
Lost or Mutilated Certificates
|
17
|
Section 5.4
|
Transfer of Capital Stock
|
18
|
Section 5.5
|
Settlement of Transactions
|
18
|
Section 5.6
|
Dividend Record Date
|
18
|
Section 5.7
|
Record Owners
|
18
|
Section 5.8
|
Preferred Stock
|
19
|
ARTICLE VI NOTICES
|
19
|
|
Section 6.1
|
Notices
|
19
|
Section 6.2
|
Waivers of Notice
|
19
|
ARTICLE VII GENERAL PROVISIONS
|
20 |
|
Section 7.1
|
Subject to Certificate of Incorporation, Share Designations and Law.
|
20
|
Section 7.2
|
Dividends
|
20
|
Section 7.3
|
Disbursements
|
20
|
Section 7.4
|
Fiscal Year
|
20
|
Section 7.5
|
Construction
|
20
|
Section 7.6
|
Records and Accounting
|
21
|
Section 7.7
|
Invalidity of Provisions
|
21
|
Section 7.8
|
Definitions
|
21
|
ARTICLE VIII INDEMNIFICATION
|
24 |
Section 8.1
|
Power to Indemnify in Actions, Suits or Proceedings Other Than Those by or in the Right of the Corporation
|
24
|
Section 8.2
|
Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation
|
24
|
Section 8.3
|
Authorization of Indemnification
|
25
|
Section 8.4
|
Good Faith Defined
|
25
|
Section 8.5
|
Indemnification by a Court
|
25
|
Section 8.6
|
Expenses Payable in Advance
|
26
|
Section 8.7
|
Nonexclusivity of Indemnification and Advancement of Expenses
|
26
|
Section 8.8
|
Insurance
|
26
|
Section 8.9
|
Certain Definitions
|
26
|
Section 8.10
|
Survival of Indemnification and Advancement of Expenses
|
27
|
Section 8.11
|
Limitation on Indemnification
|
27
|
Section 8.12
|
Indemnification of Employees and Agents
|
27
|
Section 8.13
|
Indemnification with Respect to Employee Benefit Plans
|
27
|
Section 8.14
|
Contractual Rights
|
27
|
ARTICLE IX FORUM FOR ADJUDICATION OF CERTAIN DISPUTES
|
28 |
|
Section 9.1
|
Forum for Adjudication of Certain Disputes
|
28
|
ARTICLE X AMENDMENTS
|
29 |
|
Section 10.1
|
General
|
29
|
Section 10.2
|
Amendments to be Adopted by the Board of Directors
|
30
|
Section 10.3
|
Amendment Requirements
|
31
|
(1) |
the Company or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
|
(a) |
commences proceedings to be adjudicated bankrupt or insolvent;
|
(b) |
consents to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under applicable Bankruptcy Law;
|
(c) |
consents to the appointment of a receiver, liquidator, assignee, trustee or other similar official of it or for all or substantially all of its property;
|
(d) |
makes a general assignment for the benefit of its creditors; or
|
(e) |
makes an admission in writing of its inability generally to pay its debts as they become due; or
|
(2) |
a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
|
(a) |
is for relief against the Company or any Significant Subsidiary in a proceeding in which it is to be adjudicated bankrupt or insolvent;
|
(b)
|
appoints a receiver, liquidator, assignee, trustee or other similar official of the Company or any Significant Subsidiary or for all or substantially all of the property of the Company or any Significant Subsidiary; or
|
(c) |
orders the liquidation of the Company or any Significant Subsidiary; and the order or decree remains unstayed and in effect for 60 consecutive days.
|
(1) |
United States dollars;
|
(2) |
pounds sterling;
|
(a) |
euros, or any national currency of any participating member state in the European Union;
|
(b) |
Canadian dollars;
|
(c) |
Australian dollars; or
|
(d) |
in the case of any foreign Subsidiary, such local currencies held by them from time to time in the ordinary course of business;
|
(4) |
securities issued or directly and fully and unconditionally guaranteed or insured by the United States or Canadian government or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith
and credit obligation of such government with maturities of 24 months or less from the date of acquisition;
|
(5) |
certificates of deposit, time deposits and eurodollar time deposits with maturities of 24 months or less from the date of acquisition, bankers’ acceptances with maturities not exceeding 24 months and overnight bank deposits, in each case
with any commercial bank having capital and surplus in excess of $500.0 million;
|
(6) |
repurchase obligations for underlying securities of the types described in clauses (4) and (5) above entered into with any financial institution meeting the qualifications specified in clause (5) above;
|
(7) |
commercial paper rated at least P-2 by Moody’s or at least A-2 by S&P and in each case maturing within 24 months after the date of creation thereof;
|
(8) |
investment funds investing 95% of their assets in securities of the types described in clauses (1) through (7) above;
|
(9) |
readily marketable direct obligations issued by any state of the United States of America or any political subdivision thereof or any Province of Canada having one of the two highest rating categories obtainable from either Moody’s or
S&P with maturities of 24 months or less from the date of acquisition; and
|
(10) |
Indebtedness or preferred stock issued by Persons with a rating of “A” or higher from S&P or “A2” or higher from Moody’s with maturities of 24 months or less from the date of acquisition.
|
(1) |
to purchase any such primary obligation or any property constituting direct or indirect security therefor,
|
(2) |
to advance or supply funds
|
(a) |
for the purchase or payment of any such primary obligation; or
|
(b) |
to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; or
|
(3) |
to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.
|
(a) |
failure by the Issuer to redeem all shares of Series A Preferred Stock at the time of a Mandatory Redemption Event for the Mandatory Redemption Price (including if such failure is a result of the Company being prohibited by law from
consummating a Mandatory Redemption);
|
(b) |
commencing after the second (2nd) anniversary of the Initial Issue Date, failure by the Company for any reason (including because payment of any Dividend is prohibited by law) to pay Dividends in full in cash for any twelve
(12) Dividend Periods (whether or not consecutive);
|
(c) |
any shares of Series A Preferred Stock remain issued and outstanding on the eighth (8th) anniversary of the Initial Issue Date;
|
(d) |
at any time on or after December 31, 2022, the Board of Directors is not comprised of a majority of Independent Directors;
|
(e) |
any action or purported action of the Company in violation of the Company’s obligations, covenants or agreements contained in Section 8;
|
(f) |
any breach of any material term of this Certificate of Designations (other than an event referred to in clause (a), (b) or (e) above);
|
(g) |
a Debt Acceleration Event;
|
(h) |
a Bankruptcy Event;
|
(i) |
any breach by the Company of Section 4.6 of the IRA; and
|
(j) |
failure by the Issuer to pay dividends in cash (i) prior to December 31, 2022, in an amount at least equal to (x) one sixth (1/6) of the aggregate Redemption Premium (as defined in the Subscription Agreements) with respect to all
Preferred Shares issued pursuant to the Subscription Agreements multiplied by (y) 30% divided by (z) 70% and (ii) prior to December 31, 2023 (excluding any
amount paid pursuant to clause (i)), in an amount at least equal to (x) one sixth (1/6) of the aggregate Redemption Premium with respect to all Preferred Shares issued pursuant to the Subscription Agreements multiplied by (y) 30% divided by (z) 70%.
|
(a) |
Interest Expense, and
|
(b) |
all cash dividend payments (excluding items eliminated in consolidation) on any series of preferred stock.
|
(a) |
currency exchange, interest rate, inflation or commodity swap agreements, currency exchange, interest rate, inflation or commodity cap agreements and currency exchange, interest rate, inflation or commodity collar agreements; and
|
(b) |
other agreements or arrangements designed to protect such Person against fluctuations in currency exchange, interest rates, inflation or commodity prices.
|
(1) |
any indebtedness (including principal and premium) of such Person, whether or not contingent:
|
(a) |
in respect of borrowed money;
|
(b) |
evidenced by bonds, notes, debentures or similar instruments or letters of credit or bankers’ acceptances (or, without double counting, reimbursement agreements in respect thereof);
|
(c) |
representing the balance deferred and unpaid of the purchase price of any property (including Capitalized Lease Obligations), except (i) any such balance that constitutes a trade payable or similar obligation to a trade creditor, in each
case accrued in the ordinary course of business, (ii) any earn-out obligations until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP and is no longer contingent and (iii) any purchase price
holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the seller; or
|
(d) |
representing any Hedging Obligations;
|
(2) |
to the extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise, on the Indebtedness of another Person, other than by endorsement of negotiable instruments for
collection in the ordinary course of business; provided, that the amount of Indebtedness of any Person for purposes of this clause (b) shall be deemed to be equal to the lesser of (i) the aggregate
unpaid amount of such Indebtedness and (ii) solely in the case of Non-Recourse Indebtedness, the fair market value of the property encumbered thereby as determined by such Person in good faith;
|
(3) |
to the extent not otherwise included, Indebtedness of another Person secured by a Lien on any asset owned by such Person, whether or not such Indebtedness is assumed by such Person;
|
(4) |
all monetary obligations under any receivables factoring, receivable sales or similar transactions and all monetary obligations under any synthetic lease or similar financing in which the asset is considered owned by the Company or any
Subsidiary for tax purposes; and
|
(5) |
preferred stock of the Company or any Subsidiary;
|
(a) |
interest expense of such Person for such period, to the extent such expense was deducted in computing Net Income (including (i) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (ii)
non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the mark to market valuation of or hedge ineffectiveness expenses of Hedging Obligations or other derivative instruments pursuant to
Accounting Standard Codification Topic 815, “Accounting for Derivative Instruments and Hedging Activities”), and (iii) all commissions, discounts and other fees and charges owed with respect to letters of credit; and excluding (i) non-cash
interest expense attributable to the amortization of gains or losses resulting from the termination prior to the Initial Issue Date of Hedging Obligations, (ii) amortization of deferred financing fees, debt issuance costs, commissions, fees
and expenses and any expensing of other financing fees (including any expense resulting from bridge, commitment and other financing fees), (iii) amortization of fair value debt discounts and (iv) any expense resulting from the application
of debt modification accounting or, if applicable, purchase accounting in connection with any acquisition), and
|
(b) |
capitalized interest of such Person for such period, whether paid or accrued, less
|
(c) |
interest income for such period.
|
(1) |
any Asset Sale by a Subsidiary (other than Transtar or an Intermediate Holding Company) not prohibited pursuant to the Senior Debt Agreement (subject to any requirement in the Senior Debt Agreement or any agreement evidencing any
Permitted Refinancing Indebtedness in respect thereof to apply the proceeds of such Asset Sale to offer to purchase or redeem Indebtedness or to reinvest such proceeds); and
|
(2) |
with respect to Transtar, any Asset Sale to any Subsidiary of Percy.
|
(1) |
contractual encumbrances or restrictions in effect on the Subscription Agreement Date and set forth on Schedule E to the Subscription Agreements;
|
(2) |
the Senior Debt Agreement;
|
(3) |
applicable law or any applicable rule, regulation or order;
|
(4) |
any agreement or other instrument of a Person acquired by the Company or any Subsidiary in existence at the time of such acquisition (but not created in contemplation thereof), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person so acquired and its Subsidiaries, other than the Person and its Subsidiaries, or the property or assets of the Person, so acquired;
|
(5) |
contracts for the sale of assets or the sale of a Subsidiary, including customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all the
Capital Stock or assets of such Subsidiary that impose restrictions on the assets to be sold;
|
(6) |
restrictions on cash (or Cash Equivalents) or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
|
(7) |
customary provisions in joint venture agreements and other similar agreements relating solely to such joint venture;
|
(8) |
customary provisions in any agreement entered into in connection with a Permitted Subsidiary Equity Issuance;
|
(9) |
customary provisions contained in leases and other agreements entered into in the ordinary course of business;
|
(10) |
customary provisions contained in licenses or sub-licenses of intellectual property and software or other general intangibles entered into in the ordinary course of business;
|
(11) |
restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any Subsidiary is a party entered into in the ordinary course of business;
provided, that such agreement prohibits the encumbrance solely of the property or assets of the Company or such Subsidiary that are the subject to such agreement, the payment rights arising
thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Subsidiary or the assets or property of another Subsidiary;
|
(12) |
any such encumbrance or restriction pursuant to an agreement governing Indebtedness permitted to be Incurred pursuant to this Certificate of Designations that the Company determines in good faith, at the time of such financing, will not
impair (x) the Company’s or any Subsidiary’s ability to make payments required by the agreements governing any Indebtedness of the Company or any Subsidiary or (y) the Company’s ability to make payments required by this Certificate of
Designations;
|
(13) |
restrictions created in connection with any Qualified Securitization Financing that, in the good faith determination of the Company, are necessary or advisable to effect such Qualified Securitization Financing;
|
(14) |
restrictions set forth in this Certificate of Designations; and
|
(15) |
any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1)
through (14) above; provided, that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancing are, in the good faith judgment of the
Company, no more restrictive, taken as a whole, with respect to such encumbrance and other restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
|
(a) |
EBITDA of the Company and such Subsidiaries, calculated on a Proportional Consolidated Basis; minus
|
(b) |
Fixed Charges and any scheduled and mandatory principal payments during the relevant period of the Company’s Subsidiaries, in each case, calculated on a Proportional Consolidated Basis; minus
|
(c) |
Maintenance Capital Expenditures of the Company and such Subsidiaries, calculated on a Proportional Consolidated Basis; minus
|
(d) |
to the extent not deducted in the calculation of EBITDA, general corporate operating and overhead expenses, management fees, compensation expense and legal, accounting and other professional fees and expenses of the Company and such
Subsidiaries paid during such period;
|
FTAI INFRASTRUCTURE INC.
|
|||
By
|
/s/ Kenneth Nicholson
|
||
Name:
|
Kenneth Nicholson
|
||
Title:
|
Chief Executive Officer and President
|
||
PERCY ACQUISITION LLC
|
|||
By:
|
/s/ Joseph P. Adams, Jr.
|
||
Name:
|
Joseph P. Adams, Jr.
|
||
Title:
|
President
|
||
TRANSTAR, LLC
|
|||
By:
|
/s/ Matthew Fearing
|
||
Name:
|
Matthew Fearing
|
||
Title:
|
Secretary
|
||
DELRAY CONNECTING RAILROAD COMPANY
|
|||
By:
|
/s/ Matthew Fearing
|
||
Name:
|
Matthew Fearing
|
||
Title:
|
Secretary
|
||
GARY RAILWAY COMPANY
|
|||
By:
|
/s/ Matthew Fearing
|
||
Name:
|
Matthew Fearing
|
||
Title:
|
Secretary
|
TRACKS TRAFFIC AND MANAGEMENT SERVICES, INC.
|
|||
By:
|
/s/ Matthew Fearing
|
||
Name:
|
Matthew Fearing
|
||
Title:
|
Secretary
|
||
TEXAS & NORTHERN RAILWAY COMPANY
|
|||
By:
|
/s/ Matthew Fearing
|
||
Name:
|
Matthew Fearing
|
||
Title:
|
Secretary
|
||
BIRMINGHAM SOUTHERN RAILROAD COMPANY
|
|||
By:
|
/s/ Matthew Fearing
|
||
Name:
|
Matthew Fearing
|
||
Title:
|
Secretary
|
||
FAIRFIELD SOUTHERN COMPANY, INC.
|
|||
By:
|
/s/ Matthew Fearing
|
||
Name:
|
Matthew Fearing
|
||
Title:
|
Secretary
|
||
UNION RAILROAD COMPANY, LLC
|
|||
By:
|
/s/ Matthew Fearing
|
||
Name:
|
Matthew Fearing
|
||
Title:
|
Secretary
|
THE LAKE TERMINAL RAILROAD COMPANY
|
|||
By:
|
/s/ Matthew Fearing
|
||
Name:
|
Matthew Fearing
|
||
Title:
|
Secretary
|
||
LORAIN NORTHERN COMPANY
|
|||
By:
|
/s/ Matthew Fearing
|
||
Name:
|
Matthew Fearing
|
||
Title:
|
Secretary
|
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee and as Notes Collateral Agent
|
|||
By
|
/s/ Joshua A. Hahn
|
||
Name:
|
Joshua A. Hahn
|
||
Title:
|
Vice President
|
SECTION 1.
|
DEFINITIONS.
|
1
|
SECTION 2.
|
APPOINTMENT AND DUTIES OF THE MANAGER.
|
3
|
SECTION 3.
|
DEVOTION OF TIME; ADDITIONAL ACTIVITIES.
|
7
|
SECTION 4.
|
AGENCY.
|
7
|
SECTION 5.
|
BANK ACCOUNTS.
|
8
|
SECTION 6.
|
RECORDS; CONFIDENTIALITY.
|
8
|
SECTION 7.
|
OBLIGATIONS OF MANAGER; RESTRICTIONS.
|
8
|
SECTION 8.
|
COMPENSATION.
|
9
|
SECTION 9.
|
EXPENSES OF THE COMPANY.
|
11
|
SECTION 10.
|
CALCULATIONS OF EXPENSES.
|
12
|
SECTION 11.
|
LIMITS OF MANAGER RESPONSIBILITY; INDEMNIFICATION.
|
12
|
SECTION 12.
|
NO JOINT VENTURE.
|
13
|
SECTION 13.
|
TERM; TERMINATION.
|
13
|
SECTION 14.
|
ASSIGNMENT.
|
14
|
SECTION 15.
|
TERMINATION FOR CAUSE.
|
15
|
SECTION 16.
|
ACTION UPON TERMINATION.
|
15
|
SECTION 17.
|
RELEASE OF MONEY OR OTHER PROPERTY UPON WRITTEN REQUEST.
|
16
|
SECTION 18.
|
NOTICES.
|
16
|
SECTION 19.
|
BINDING NATURE OF AGREEMENT; SUCCESSORS AND ASSIGNS.
|
17
|
SECTION 20.
|
ENTIRE AGREEMENT.
|
17
|
SECTION 21.
|
CONTROLLING LAW.
|
17
|
SECTION 22.
|
INDULGENCES, NOT WAIVERS.
|
17
|
SECTION 23.
|
TITLES NOT TO AFFECT INTERPRETATION.
|
18
|
SECTION 24.
|
EXECUTION IN COUNTERPARTS.
|
18
|
SECTION 25.
|
PROVISIONS SEPARABLE.
|
18
|
SECTION 26.
|
GENDER.
|
18
|
SECTION 1. |
DEFINITIONS.
|
SECTION 2. |
APPOINTMENT AND DUTIES OF THE MANAGER.
|
SECTION 3. |
DEVOTION OF TIME; ADDITIONAL ACTIVITIES.
|
SECTION 4. |
AGENCY.
|
SECTION 5. |
BANK ACCOUNTS.
|
SECTION 6. |
RECORDS; CONFIDENTIALITY.
|
SECTION 7. |
OBLIGATIONS OF MANAGER; RESTRICTIONS.
|
SECTION 8. |
COMPENSATION.
|
SECTION 9. |
EXPENSES OF THE COMPANY.
|
SECTION 10. |
CALCULATIONS OF EXPENSES.
|
SECTION 11. |
LIMITS OF MANAGER RESPONSIBILITY; INDEMNIFICATION.
|
SECTION 12. |
NO JOINT VENTURE.
|
SECTION 13. |
TERM; TERMINATION.
|
SECTION 14. |
ASSIGNMENT.
|
SECTION 15. |
TERMINATION FOR CAUSE.
|
SECTION 16. |
ACTION UPON TERMINATION.
|
SECTION 17. |
RELEASE OF MONEY OR OTHER PROPERTY UPON WRITTEN REQUEST.
|
SECTION 18. |
NOTICES.
|
SECTION 19. |
BINDING NATURE OF AGREEMENT; SUCCESSORS AND ASSIGNS.
|
SECTION 20. |
ENTIRE AGREEMENT.
|
SECTION 21. |
CONTROLLING LAW.
|
SECTION 22. |
INDULGENCES, NOT WAIVERS.
|
SECTION 23. |
TITLES NOT TO AFFECT INTERPRETATION.
|
SECTION 24. |
EXECUTION IN COUNTERPARTS.
|
SECTION 25. |
PROVISIONS SEPARABLE.
|
SECTION 26. |
GENDER.
|
|
COMPANY:
|
|
|
|
|
|
FTAI INFRASTRUCTURE INC.,
|
|
|
a Delaware corporation
|
|
By:
|
/s/ Kenneth Nicholson
|
|
|
Name: Kenneth Nicholson | |
|
Title: Chief Executive Officer
|
|
|
|
|
|
MANAGER:
|
|
|
|
|
|
FIG LLC,
|
|
|
a Delaware limited liability company
|
|
|
|
|
By: |
/s/ Daniel Bass
|
|
Name: Daniel Bass | ||
Title: Chief Financial Officer
|
DEFINITIONS
|
||
Section 1.1
|
DEFINITIONS
|
1
|
Section 1.2
|
RULES OF CONSTRUCTION
|
5
|
Article II
TERMINATION
|
||
Section 2.1
|
TERM
|
6
|
Section 2.2
|
SURVIVAL
|
6
|
Article III
REGISTRATION RIGHTS
|
||
Section 3.1
|
DEMAND REGISTRATION
|
6
|
Section 3.2
|
PIGGYBACK REGISTRATION
|
8
|
Section 3.3
|
SHELF REGISTRATION
|
9
|
Section 3.4
|
WITHDRAWAL RIGHTS
|
11
|
Section 3.5
|
HOLDBACK AGREEMENTS
|
11
|
Section 3.6
|
REGISTRATION PROCEDURES
|
12
|
Section 3.7
|
REGISTRATION EXPENSES
|
16
|
Section 3.8
|
REGISTRATION INDEMNIFICATION
|
17
|
Article IV
MISCELLANEOUS
|
||
Section 4.1
|
NOTICES
|
19
|
Section 4.2
|
HEADINGS
|
19
|
Section 4.3
|
SEVERABILITY
|
19
|
Section 4.4
|
COUNTERPARTS
|
20
|
Section 4.5
|
ADJUSTMENTS UPON CHANGE OF CAPITALIZATION
|
20
|
Section 4.6
|
ENTIRE AGREEMENT
|
20
|
Section 4.7
|
FURTHER ASSURANCES
|
20
|
Section 4.8
|
GOVERNING LAW; EQUITABLE REMEDIES
|
20
|
Section 4.9
|
CONSENT TO JURISDICTION
|
20
|
Section 4.10
|
AMENDMENTS; WAIVERS
|
21
|
Section 4.11
|
ASSIGNMENT
|
21
|
Section 4.12
|
THIRD PARTY BENEFICIARY
|
21
|
COMPANY:
|
||
FTAI INFRASTRUCTURE INC.
|
||
By:
|
/s/ Kenneth Nicholson
|
|
Name: Kenneth Nicholson
|
||
Title: Chief Executive Officer
|
||
INITIAL STOCKHOLDERS:
|
||
FIG LLC
|
||
By:
|
/s/ Daniel Bass
|
|
Name: Daniel Bass
|
||
Title: Chief Financial Officer
|
||
FORTRESS WORLDWIDE TRANSPORTATION AND INFRASTRUCTURE MASTER GP LLC
|
||
By:
|
/s/ Demetrios Tserpelis
|
|
Name: Demetrios Tserpelis
|
||
Title: Authorized Signatory
|
|
Section 1.
|
Definitions. As used in this Agreement, the following terms shall have the following meanings.
|
Section 2.1
|
Interpretation. In this Agreement, unless the context clearly indicates otherwise:
|
Section 3.
|
Grant and Scope of License.
|
Section 4.
|
Use of Licensed Marks.
|
Section 5.
|
Quality Control.
|
Section 6.
|
Compliance with Law. Licensee shall comply with all applicable Laws pertaining to its use of the Licensed Marks, including
all Licensed Services on or in connection with which the Licensed Marks are used.
|
Section 7.
|
Licensor’s Maintenance of Licensed Marks. Licensee agrees to cooperate with Licensor or its representatives by timely
obtaining and/or submitting to Licensor or its representatives, as requested by Licensor, documents, information, specimens, verified or sworn statements, assignments or other documents reasonably believed by Licensor to be necessary in
order to maintain such registrations or prosecute applications for registration of the Licensed Marks for the Licensed Services. Licensor shall give Licensee notice of any such registrations or applications that Licensor does not
intend to maintain or further prosecute, and Licensee shall give Licensor notice of any additional applications that Licensee believes should be filed for the Licensed Marks for the Licensed Services. It shall be Licensor’s right to
determine in the first instance whether, when and in what jurisdictions additional applications for registration of the Licensed Marks for the Licensed Services shall be filed and whether existing such applications or registrations
shall be further prosecuted or maintained; provided, however, that if Licensee and Licensor disagree regarding any such issues, Licensor shall file, prosecute or maintain such applications or registrations in Licensor’s
name if Licensee pays for all costs and expenses, including all attorneys’ fees and filing fees, associated with such applications or registrations; and provided further that the foregoing obligation on Licensor’s part
shall not be applicable if Licensor believes in good faith that such application, prosecution or maintenance will be unsuccessful, is unnecessary, or would otherwise cause damage or risk to Licensor, the Licensed Marks, or Licensee.
|
Section 8.
|
Ownership.
|
Section 10.
|
Term and Termination.
|
Section 11.
|
Miscellaneous.
|
FORTRESS TRANSPORTATION &
INFRASTRUCTURE INVESTORS LLC
|
|||
|
|
|
|
|
|
By: |
/s/ Joseph P. Adams Jr.
|
|
|
|
Name: Joseph P. Adams Jr. |
|
|
|
Title: Chief Executive Officer
|
|
|
|
|
|
|
FTAI INFRASTRUCTURE INC.
|
|
|
|
|
|
By: |
/s/ Kenneth Nicholson
|
||
Name: Kenneth Nicholson | |||
Title: Chief Executive Officer
|
SECTION 1 PURPOSE OF PLAN; DEFINITIONS
|
1 |
|
1.1
|
Purpose
|
1
|
1.2
|
Definitions
|
1
|
SECTION 2 ADMINISTRATION
|
4 |
|
2.1
|
Administration
|
4
|
2.2
|
Duties and Powers of Committee
|
5
|
2.3
|
Majority Rule
|
5
|
2.4
|
Delegation of Authority
|
5
|
2.5
|
Compensation; Professional Assistance; Good Faith Actions
|
5
|
SECTION 3 STOCK SUBJECT TO PLAN
|
6 |
|
3.1
|
Number of and Source of Shares
|
6
|
3.2
|
Unrealized and Tandem Awards
|
6
|
3.3
|
Adjustment of Awards
|
6
|
SECTION 4 ELIGIBILITY
|
7 |
|
SECTION 5 AWARDS
|
7 |
|
5.1
|
Stock Options
|
7
|
5.2
|
Stock Appreciation Rights
|
7
|
5.3
|
Restricted Stock
|
8
|
5.4
|
Performance Awards
|
8
|
5.5
|
Manager Awards and Tandem Awards
|
9
|
5.6
|
Automatic Non-Officer Director Awards
|
10
|
5.7
|
Other Awards
|
11
|
SECTION 6 AWARD AGREEMENTS
|
11 |
|
6.1
|
Terms of Award Agreements
|
12
|
SECTION 7 LOANS
|
13 |
|
SECTION 8 AMENDMENT AND TERMINATION
|
14 |
|
SECTION 9 UNFUNDED STATUS OF PLAN
|
14 |
|
SECTION 10 GENERAL PROVISIONS
|
14 |
|
10.1
|
Securities Laws Compliance
|
14
|
10.2
|
Certificate Legends
|
14
|
10.3
|
Transfer Restrictions
|
14
|
10.4
|
Company Actions; No Right to Employment or Service
|
15
|
10.5
|
Section 409A of the Code
|
15
|
10.6
|
Payment of Taxes
|
15
|
10.7
|
Governing Law
|
15
|
SECTION 11 EFFECTIVE DATE OF PLAN
|
16 |
|
SECTION 12 TERM OF PLAN
|
16 |
(i) |
any Person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Company representing thirty percent (30%) or more of the combined voting power of the then outstanding securities of
the Company, excluding (A) any Person who becomes such a Beneficial Owner in connection with a transaction described in clause (x) of paragraph (ii) below, and (B) any Person who becomes such a Beneficial Owner through the issuance of such
securities with respect to purchases made directly from the Company; or
|
(ii) |
there is consummated a merger or consolidation of the Company or any direct or indirect subsidiary of the Company with any other corporation, other than (x) a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent
thereof) fifty percent (50%) or more of the combined voting power of the securities of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation, or (y) a merger or consolidation
effected to implement a recapitalization of the Company (or similar transaction) in which no Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing thirty percent (30%) or more of the
combined voting power of the then outstanding securities of the Company; or
|
(iii) |
the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated an agreement for the sale or disposition by the Company of all or substantially all
of the assets of the Company.
|
Page
|
||
SECTION 1.
|
APPOINTMENT OF WARRANT AGENT
|
3
|
SECTION 2.
|
ISSUANCES; EXERCISE PRICE
|
3
|
SECTION 3.
|
FORM OF WARRANTS
|
4
|
SECTION 4.
|
EXECUTION OF GLOBAL WARRANT CERTIFICATES
|
4
|
SECTION 5.
|
REGISTRATION AND COUNTERSIGNATURE
|
5
|
SECTION 6.
|
REGISTRATION OF TRANSFERS AND EXCHANGES
|
6 |
SECTION 7.
|
DURATION AND EXERCISE OF WARRANTS
|
9
|
SECTION 8.
|
CANCELLATION OF WARRANTS
|
12
|
SECTION 9.
|
MUTILATED OR MISSING GLOBAL WARRANT CERTIFICATES
|
13 |
SECTION 10.
|
RESERVATION OF WARRANT SHARES
|
13
|
SECTION 11.
|
LISTING
|
13
|
SECTION 12.
|
ADJUSTMENTS AND OTHER RIGHTS OF WARRANTS
|
13
|
SECTION 13.
|
NO FRACTIONAL SHARES
|
23 |
SECTION 14.
|
REDEMPTION
|
23 |
SECTION 15.
|
REQUIRED NOTICES TO WARRANTHOLDERS
|
23 |
SECTION 16.
|
MERGER, CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT
|
23
|
SECTION 17.
|
WARRANT AGENT
|
24 |
SECTION 18.
|
CHANGE OF WARRANT AGENT
|
28 |
SECTION 19.
|
WARRANTHOLDER NOT DEEMED A STOCKHOLDER
|
29 |
SECTION 20.
|
NOTICES TO COMPANY AND WARRANT AGENT
|
29
|
SECTION 21.
|
WITHHOLDING AND REPORTING REQUIREMENTS
|
30 |
SECTION 22.
|
DISSOLUTION, LIQUIDATION OR WINDING UP
|
31
|
SECTION 23.
|
SUPPLEMENTS AND AMENDMENTS
|
31 |
SECTION 24.
|
SUCCESSORS
|
32 |
SECTION 25.
|
TERMINATION
|
32 |
SECTION 26.
|
GOVERNING LAW VENUE AND JURISDICTION; TRIAL BY JURY
|
32 |
SECTION 27.
|
BENEFITS OF THIS AGREEMENT
|
|
SECTION 28.
|
COUNTERPARTS
|
33 |
SECTION 29.
|
HEADINGS
|
33 |
SECTION 30.
|
SEVERABILITY
|
32
|
SECTION 31.
|
MEANING OF TERMS USED IN AGREEMENT
|
32
|
EXHIBITS
|
||
Exhibit A
|
=
|
Form of Global Warrant Certificate
|
Exhibit B-1
|
=
|
Form of Election to Exercise Book-Entry Warrants
|
Exhibit B-2
|
=
|
Form of Election to Exercise Warrants Represented by Global Warrant Certificates to be Completed by Direct Participant in the Depository Trust Company
|
Exhibit C
|
=
|
Form of Assignment
|
Where: |
X = the number of Warrant Shares issuable upon exercise pursuant to this subsection (d).
A = the Current Market Price of a Warrant Share on the Business Day immediately preceding the date on which the Warrantholder delivers the Warrant Exercise Notice pursuant to subsection (b) above. B = the Exercise Price. C = the number of Warrant Shares as to which a Warrant is then being exercised including the withheld Warrant Shares. |
EP0
|
=
|
the Exercise Price in effect immediately prior to the Close of Business on the Record Date for such dividend or distribution, or immediately prior to the Open of Business on the effective date for such
subdivision or combination, as the case may be;
|
EP1
|
=
|
the Exercise Price in effect immediately after the Close of Business on the Record Date for such dividend or distribution, or immediately after the Open of Business on the effective date for such
subdivision or combination, as the case may be;
|
OS0
|
=
|
the number of shares of Common Stock outstanding immediately prior to the Close of Business on the Record Date for such dividend, distribution, subdivision or combination, or immediately prior to the Open
of Business on the effective date for such subdivision or combination, as the case may be; and
|
OS1
|
=
|
the number of shares of Common Stock that would be outstanding immediately after, and solely as a result of, such dividend, distribution, subdivision or combination.
|
EP1 = EP0 x
|
SP0 - FMV
|
|
SP0
|
EP0
|
=
|
the Exercise Price in effect immediately prior to the Close of Business on the Record Date for such dividend or distribution;
|
EP1
|
=
|
the Exercise Price in effect immediately after the Close of Business on the Record Date for such dividend or distribution;
|
SP0
|
=
|
the Current Market Price of a share of Common Stock; and
|
FMV
|
=
|
the Market Price, on the Record Date for such dividend or distribution, of the shares of capital stock, evidences of indebtedness or property, rights or warrants so distributed.
|
EP1 = EP0 x
|
MP0
|
|
MP0 + FMV0
|
EP0
|
=
|
the Exercise Price in effect immediately prior to the Close of Business on the Record Date for such dividend or distribution;
|
EP1
|
=
|
the Exercise Price in effect immediately after the Close of Business on the Record Date for such dividend or distribution;
|
FMV0
|
=
|
the Market Price of the capital stock or similar equity interests distributed to holders of Common Stock applicable to one share of Common Stock calculated using the 10 consecutive Trading Days commencing
on, and including, the third Trading Day after the Ex-Date for such dividend or distribution; and
|
MP0
|
=
|
the Current Market Price of the Common Stock calculated using the 10 consecutive Trading Days commencing on, and including, the third Trading Day after the Ex-Date for such dividend or distribution.
|
EP1 = EP0 x
|
(N0 x CMP) + AC
|
|
N1 x CMP
|
EP0
|
=
|
the Exercise Price in effect immediately prior to the Close of Business on the Trading Day immediately prior to the date of announcement of such issuance of shares of Common Stock;
|
EP1
|
=
|
the Exercise Price in effect immediately after such issuance of shares of Common Stock;
|
N0
|
=
|
the number of shares of Common Stock outstanding immediately prior to such issuance of shares of Common Stock;
|
CMP
|
=
|
the Current Market Price of the Common Stock immediately prior to such issuance;
|
AC
|
=
|
the aggregate consideration received by the Company for the total amount of Common Stock so issued; and
|
N1
|
=
|
the number of shares of Common Stock outstanding immediately after such issuance of shares of Common Stock.
|
N1 = N0 x
|
OS1
|
|
OS0
|
N0
|
=
|
the number of shares of Common Stock for which a Series II Warrant is exercisable immediately prior to the Open of Business on the Record Date for such dividend or distribution, or immediately prior to the
Open of Business on the effective date for such subdivision or combination, as the case may be;
|
N1
|
=
|
the number of shares of Common Stock for which a Series II Warrant is exercisable immediately after the Close of Business on the Record Date for such dividend or distribution, or immediately after the Open
of Business on the effective date for such subdivision or combination, as the case may be;
|
OS0
|
=
|
the number of shares of Common Stock outstanding immediately prior to the Close of Business on the Ex-Date for such dividend, distribution, subdivision or combination, or immediately prior to the Open of
Business on the effective date for such subdivision or combination, as the case may be; and
|
OS1
|
=
|
the number of shares of Common Stock that would be outstanding immediately after, and solely as a result of, such dividend, distribution, subdivision or combination.
|
FTAI INFRASTRUCTURE INC.
|
|||
By:
|
/s/ Kenneth J. Nicholson | ||
Name: Kenneth J. Nicholson
|
|||
Title: Chief Executive Officer
|
|||
AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC,
|
|||
as Warrant Agent
|
|||
By:
|
/s/ Margot Jordan
|
||
Name: Margot Jordan
|
|||
Title: Head of TA Operations AST & EQ US
|
CUSIP No.
|
No.
|
WARRANT TO PURCHASE
|
|||
SHARES OF COMMON STOCK
|
FTAI INFRASTRUCTURE INC.
|
||
By:
|
||
Name:
|
||
Title:
|
||
AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC,
|
||
as Warrant Agent
|
||
By:
|
||
Name:
|
||
Title:
|
(i) |
providing written notice of such election (“Warrant Exercise Notice”) to exercise the Warrant to the Warrant Agent at the address set forth in the Warrant Agreement, “Re: Warrant Exercise”, by hand or by facsimile, no later than
the Expiration Time, which Warrant Exercise Notice shall substantially be in the form of an election to purchase Warrant Shares set forth herein, properly completed and executed by the Warrantholder;
|
(ii) |
paying the applicable Exercise Amount, together with any applicable taxes and governmental charges.
|
Name
|
||
Address:
|
||
Delivery Address (if different):
|
Name
|
||
Address:
|
Delivery Address (if different):
|
|
Social Security or Other Taxpayer Identification
Number of Warrantholder:
|
|
Signature
|
NAME OF DIRECT PARTICIPANT IN THE DEPOSITORY:
|
||
(PLEASE PRINT)
|
||
ADDRESS
|
||
CONTACT NAME:
|
||
ADDRESS:
|
||
TELEPHONE (INCLUDING INTERNATIONAL CODE):
|
||
FAX (INCLUDING INTERNATIONAL CODE):
|
||
SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER (IF APPLICABLE):
|
||
ACCOUNT FROM WHICH WARRANTS ARE BEING DELIVERED:
|
||
DEPOSITORY ACCOUNT NO.: ____________________
|
CONTACT NAME:
|
||
TELEPHONE (INCLUDING INTERNATIONAL CODE):
|
||
FAX (INCLUDING INTERNATIONAL CODE):
|
||
SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER (IF APPLICABLE):
|
||
ACCOUNT TO WHICH THE SHARES OF
COMMON STOCK ARE TO BE CREDITED:
|
||
DEPOSITORY ACCOUNT NO.: ____________________
|
NAME:
(PLEASE PRINT) ADDRESS |
||
CONTACT NAME:
|
||
TELEPHONE (INCLUDING INTERNATIONAL
CODE): |
||
FAX (INCLUDING INTERNATIONAL CODE):
|
||
SOCIAL SECURITY OR OTHER TAXPAYER
IDENTIFICATION NUMBER (IF APPLICABLE): ____________________ |
||
NUMBER OF WARRANTS BEING EXERCISED
|
Signature:
|
||
Name:
|
||
Capacity in which Signing:
|
||
Signature Guaranteed
|
||
BY:
|
Dated
|
||
Signature
|
||
Social Security or Other Taxpayer
|
||
Identification Number of Assignee
|
||
SIGNATURE GUARANTEED BY:
|
1
|
Effective at Closing, Ares directs the Company not to furnish it with any material nonpublic information until it directs otherwise.
|
COMPANY:
|
||
FTAI INFRASTRUCTURE INC.
|
||
By:
|
/s/ Kenneth J. Nicholson
|
|
Name:
|
Kenneth J. Nicholson
|
|
Title:
|
Chief Executive Officer
|
ASOF II FTAI Holdings 1 L.P.
|
||
By: ASOF Investment Management LLC, its manager
|
||
By:
|
/s/ Felix Bernshteyn
|
|
Name: Felix Bernshteyn
|
||
Title: Authorized Signatory
|
||
ASOF II FTAI Holdings 2 L.P.
|
||
By: ASOF Investment Management LLC, its manager
|
||
By:
|
/s/ Felix Bernshteyn
|
|
Name: Felix Bernshteyn
|
||
Title: Authorized Signatory
|
||
ASOF II FTAI Holdings 3 L.P.
|
||
By: ASOF Investment Management LLC, its manager
|
||
By:
|
/s/ Felix Bernshteyn
|
|
Name: Felix Bernshteyn
|
||
Title: Authorized Signatory
|
||
ASOF II FTAI Holdings 4 L.P.
|
||
By: ASOF Investment Management LLC, its manager
|
||
By:
|
/s/ Felix Bernshteyn
|
|
Name: Felix Bernshteyn
|
||
Title: Authorized Signatory
|
ASOF II FTAI Holdings 5 L.P.
|
||
By: ASOF Investment Management LLC, its manager
|
||
By:
|
/s/ Felix Bernshteyn
|
|
Name: Felix Bernshteyn
|
||
Title: Authorized Signatory
|
||
ASOF II FTAI Holdings 6 L.P.
|
||
By: ASOF Investment Management LLC, its manager
|
||
By:
|
/s/ Felix Bernshteyn
|
|
Name: Felix Bernshteyn
|
||
Title: Authorized Signatory
|
||
ASOF II FTAI Holdings 7 L.P.
|
||
By: ASOF Investment Management LLC, its manager
|
||
By:
|
/s/ Felix Bernshteyn
|
|
Name: Felix Bernshteyn
|
||
Title: Authorized Signatory
|
||
ASOF II A (DE) FTAI Holdings 1 L.P.
|
||
By: ASOF Investment Management LLC, its manager
|
||
By:
|
/s/ Felix Bernshteyn
|
|
Name: Felix Bernshteyn
|
||
Title: Authorized Signatory
|
ASOF II A (DE) FTAI Holdings 2 L.P.
|
||
By: ASOF Investment Management LLC, its manager
|
||
By:
|
/s/ Felix Bernshteyn
|
|
Name: Felix Bernshteyn
|
||
Title: Authorized Signatory
|
||
ASOF Holdings II, L.P.
|
||
By: ASOF Investment Management LLC, its manager
|
||
By:
|
/s/ Felix Bernshteyn
|
|
Name: Felix Bernshteyn
|
||
Title: Authorized Signatory
|
||
Ares Private Opportunities 2020 (C), LP
|
||
By: ACOF Investment Management LLC, its manager
|
||
By:
|
/s/ Scott Graves
|
|
Name: Scott Graves
|
||
Title: Authorized Signatory
|
||
Ares PA Opportunities Fund, L.P.
|
||
By: Ares SP Management LLC, its general partner
|
||
By:
|
/s/ Scott Graves
|
|
Name: Scott Graves
|
||
Title: Authorized Signatory
|
Ares Credit Investment Partnership I (V), L.P.
|
||
By: Ares CIP (V) Management LLC, its manager
|
||
By:
|
/s/ Matthew Jill
|
|
Name: Matthew Jill
|
||
Title: Authorized Signatory
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Ares Credit Strategies Insurance Dedicated Fund Series Interests of the SALI Multi-Series Fund, L.P.
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By: Ares Management LLC, its Subadvisor
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By:
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/s/ Matthew Jill
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Name: Matthew Jill
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Title: Authorized Signatory
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[•]
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By:
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Name:
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Title:
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Address:
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1345 AVENUE OF THE AMERICAS
45TH FLOOR
NEW YORK, NY 10105
TEL 212-798-6100
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FTAI Infrastructure Inc.
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By:
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Title:
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Acknowledged and agreed
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as of ______ __, 2022:
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HOLDER
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As of ______ __, 2022
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Original FTAI Option
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Adjusted FTAI Option
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FTAI Infrastructure Option
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Date of Grant
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Expiration Date
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Number of
Shares
Subject to
Option
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Per-Share
Exercise Price
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Per-Share Exercise Price
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Per-Share Exercise Price
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(a) |
Change in Control: shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended), other than Fortress Investment Group LLC, the Manager (as defined herein) and/or their respective affiliates and other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company
or a corporation owned directly or indirectly by the shareholders of the Company in substantially the same proportions as their ownership of shares of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under said
Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals
who at the beginning of such period constitute the Board of Directors and any new director whose election by the Board of Directors or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds
(2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii)
the shareholders of the Company approve a merger or consolidation of the Company with any other entity other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation, or the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction
or a series of transactions) all or substantially all of the Company’s assets.
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(b) |
Claim: means any threatened, asserted, pending or completed action, suit or proceeding, whether civil, criminal, administrative, investigative or other,
including any arbitration or other alternative dispute resolution mechanism, or any appeal of any kind thereof, or any inquiry or investigation, whether instituted by (or in the right of) the Company or any governmental agency or any
other person or entity, in which Indemnitee was, is, may be or will be involved as a party, witness or otherwise.
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(c) |
Delaware Court: means the Court of Chancery of the State of Delaware.
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(d) |
ERISA: means the Employee Retirement Income Security Act of 1974, as amended.
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(e) |
Expenses: include attorneys’ fees and all other direct or indirect costs, expenses and obligations, including judgments, fines, penalties, interest, appeal
bonds, amounts paid in settlement with the approval of the Company, and counsel fees and disbursements (including, without limitation, experts’ fees, court costs, retainers, appeal bond premiums, transcript fees, duplicating, printing and
binding costs, as well as telecommunications, postage and courier charges) paid or incurred in connection with investigating, prosecuting, defending, being a witness in or participating in (including on appeal), or preparing to
investigate, prosecute, defend, be a witness in or participate in, any Claim relating to any Indemnifiable Event, and shall include (without limitation) all attorneys’ fees and all other expenses incurred by or on behalf of an Indemnitee
in connection with preparing and submitting any requests or statements for indemnification, advancement or any other right provided by this Agreement (including, without limitation, such fees or expenses incurred in connection with legal
proceedings contemplated by Section 2(d) hereof).
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(f) |
Indemnifiable Amounts: means (i) any and all liabilities, Expenses, damages, judgments, fines, penalties, ERISA excise taxes and amounts paid in settlement
(including all interest, assessments and other charges paid or payable in connection with or in respect of such liabilities, Expenses, damages, judgments, fines, penalties, ERISA excise taxes or amounts paid in settlement) arising out of
or resulting from any Claim relating to an Indemnifiable Event, (ii) any liability pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any subsidiary of the Company, including, without limitation, any
indebtedness which the Company or any subsidiary of the Company has assumed or taken subject to, and (iii) any liabilities which an Indemnitee incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in
connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the United States Internal Revenue
Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise).
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(g) |
Indemnifiable Event: means any event or occurrence, whether occurring before, on or after the date of this Agreement, related to the fact that Indemnitee is
or was a director and/or officer or fiduciary of the Company, or is or was serving at the request of the Company as a director, officer, employee, manager, member, partner, tax matter partner, partnership representative, trustee, agent,
fiduciary or similar capacity, of another company, corporation, limited liability company, partnership, joint venture, employee benefit plan, trust or other entity or enterprise, or by reason of anything done or not done by Indemnitee in
any such capacity (in all cases whether or not Indemnitee is acting or serving in any such capacity or has such status at the time any Indemnifiable Amount is incurred for which indemnification, advancement or any other right can be
provided by this Agreement). The term “Company,” where the context requires when used in this Agreement, may be construed to include such other company, corporation, limited liability company, partnership, joint venture, employee benefit
plan, trust or other entity or enterprise.
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(h) |
Indemnitee-Related Entities: means any company, corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other
entity or enterprise (other than the Company or any other company, corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other entity or enterprise Indemnitee has agreed, on behalf of the
Company or at the Company’s request, to serve as a director, officer, employee or agent and which service is covered by the indemnity described in this Agreement) from whom an Indemnitee may be entitled to indemnification or advancement
of Expenses with respect to which, in whole or in part, the Company may also have an indemnification or advancement obligation.
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(i) |
Independent Legal Counsel: means an attorney or firm of attorneys (following a Change in Control, selected in accordance with the provisions of Section 3
hereof) who is experienced in matters of corporate law and who shall not have otherwise performed services for the Company or Indemnitee within the last five years (other than with respect to matters concerning the rights of Indemnitee
under this Agreement, or of other indemnitees under similar indemnity agreements).
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(j) |
Jointly Indemnifiable Claim: means any Claim for which the Indemnitee may be entitled to indemnification from both an Indemnitee-Related Entity and the
Company pursuant to applicable law, any indemnification agreement or the certificate of incorporation, by-laws, partnership agreement, operating agreement, certificate of formation, certificate of limited partnership or comparable
organizational documents of the Company and an Indemnitee-Related Entity.
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(k) |
Manager: means FIG LLC, together with its permitted assignees, under the Amended and Restated Management and Advisory Agreement, dated as of July 31, 2022,
between the Company and FIG LLC, as amended, supplemented or restated from time to time.
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(l) |
Reviewing Party: means any appropriate person or body consisting of a member or members of the Board of Directors or any other person or body appointed by the
Board of Directors who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel.
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(m) |
Voting Securities: means any securities of the Company which vote generally in the election of directors.
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(a) |
In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part
out of) an Indemnifiable Event, the Company shall indemnify Indemnitee, or cause Indemnitee to be indemnified, to the fullest extent permitted by applicable law, as such may be amended from time to time (but, in the case of any such
amendment, to the extent permitted by applicable law, only to the extent such amendment permits the Company to provide broader indemnification rights than the law permitted the Company to provide before such amendment), as soon as
practicable but in any event no later than thirty (30) days after written demand is presented to the Company, and hold Indemnitee harmless against any and all Indemnifiable Amounts.
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(b) |
If so requested by Indemnitee, the Company shall advance, or cause to be advanced (within two business days of receipt of such request), any and all Expenses incurred by Indemnitee (an “Expense Advance”).
The Company shall, in accordance with such request (but without duplication), either (i) pay, or cause to be paid, such Expenses on behalf of Indemnitee, or (ii) reimburse, or cause the reimbursement of, Indemnitee for such Expenses.
Subject to Section 2(d), Indemnitee’s right to an Expense Advance is absolute and shall not be subject to any prior determination by the Reviewing Party that the Indemnitee has satisfied any applicable standard of conduct for
indemnification.
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(c) |
Notwithstanding anything in this Agreement to the contrary, Indemnitee (or his or her heirs, executors or personal or legal representatives) shall not be entitled to indemnification or advancement of Expenses
pursuant to this Agreement in connection with any Claim (or part thereof) initiated by Indemnitee unless (i) the Company has joined in or the Board of Directors has authorized or consented to the initiation of such Claim (or part thereof)
or (ii) the Claim (or part thereof) is one to enforce Indemnitee’s rights under this Agreement (including an action pursued by Indemnitee to secure a determination that Indemnitee should be indemnified under applicable law).
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(d) |
Notwithstanding the foregoing, (i) the indemnification obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written legal
opinion, in any case in which the Independent Legal Counsel is involved as required by Section 3 hereof) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an
Expense Advance pursuant to Section 2(b) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines (in a written legal opinion, in any case in which the Independent Legal Counsel is involved as
required by Section 3 hereof) that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts
theretofore paid (it being understood and agreed that the foregoing agreement by Indemnitee shall be deemed to satisfy any requirement that Indemnitee provide the Company with an undertaking to repay any Expense Advance if it is ultimately
determined that the Indemnitee is not entitled to indemnification under applicable law); provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a
determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall
not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). Indemnitee’s undertaking to repay
such Expense Advances shall be unsecured and interest-free. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, the Reviewing Party
shall be the Independent Legal Counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party within thirty (30) days after written demand is presented to the Company or if the Reviewing Party determines
that Indemnitee would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and
in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to
service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
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(i) |
If to the Company, to:
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(ii) |
If to the Indemnitee, to the address set forth on Annex A hereto.
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FTAI INFRASTRUCTURE INC.
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Name:
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Title:
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[INDEMNITEE]
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[Indemnitee Name]
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[Address]
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Email: [●]
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