UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
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Introductory Note
As previously disclosed in the Current Report on Form 8-K filed by Infrastructure and Energy Alternatives, Inc.(the “Company” or “IEA”) with the Securities and Exchange Commission (the “SEC”) on July 25, 2022, the Company entered into an Agreement and Plan of Merger (the “Merger Agreement”), dated as of July 24, 2022, by and among the Company, MasTec, Inc., a Florida corporation (“Parent” or “MasTec”) and Indigo Acquisition I Corp., a Delaware corporation and a wholly-owned subsidiary of MasTec (“Merger Sub”), which provides for Merger Sub to be merged with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly-owned subsidiary of MasTec. On October 7, 2022 (the “Closing Date”), the Merger became effective and the Company and MasTec took various other actions, as discussed further below.
| Item 1.02. | Termination of a Material Definitive Agreement. |
The information set forth in the Introductory Note and under Item 2.01 of this Current Report on Form 8-K is incorporated herein by reference.
As previously disclosed, the Company entered into a Credit Agreement, dated as of August 17, 2021 (as amended, restated, modified, or supplemented from time to time, the “Credit Agreement”), among IEA Energy Services LLC (the “Borrower”), the guarantors party thereto from time to time, the lenders party thereto from time to time and CIBC Bank USA, as administrative agent and collateral agent. A copy of the Credit Agreement was filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the SEC on August 17, 2021.
In connection with the consummation of the Merger, the Borrower repaid all outstanding obligations in respect of principal, interest and fees and, effective as of the Closing Date, terminated all applicable commitments under the Credit Agreement.
| Item 2.01 | Completion of Acquisition or Disposition of Assets. |
On October 7, 2022, pursuant to the terms of the Merger Agreement, the Merger was effected, with Merger Sub being merged with and into the Company, and the Company surviving the Merger as a wholly-owned subsidiary of MasTec.
A description of the consideration payable to holders of the Company’s common stock, par value $0.0001 per share (the “IEA Common Stock”) is set forth under the heading “The Agreements—Description of the Merger Agreement—Consideration in the Merger,” in the Proxy Statement/Prospectus filed by MasTec with the SEC on September 8, 2022 (the “Proxy Statement/Prospectus”), and such descriptions are incorporated herein by reference.
A description of the consideration payable to holders of IEA stock options, restricted stock units and performance stock units is set forth under the heading “The Agreements—Description of the Merger Agreement—Treatment of Stock Options, Warrants and Other Equity-Based Award,” in the Proxy Statement/Prospectus and such descriptions are incorporated herein by reference.
A description of the consideration payable to holders of IEA anti-dilution warrants, pre-funded warrants, series B warrants and SPAC warrants is set forth under the heading “The Agreements—Description of the Merger Agreement—Treatment of Stock Options, Warrants and Other Equity-Based Award,” in the Proxy Statement/Prospectus and such descriptions are incorporated herein by reference.
The foregoing description of the Merger and the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, which was filed as Exhibit 2.1 to the Current Report on Form 8-K filed by the Company with the SEC on July 25 2022, and is incorporated by reference into this Item 2.01.
| Item 3.01. | Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
The information set forth in the Introduction and under Item 2.01 of this Current Report on Form 8-K is incorporated herein by reference.
In connection with the closing of the Merger, the Company notified the NASDAQ Global Select Market (“NASDAQ”) on the Closing Date that the Certificate of Merger had been filed with the State of Delaware and that, at the Effective Time (as defined in the Merger Agreement), each outstanding share of IEA Common Stock, was cancelled and converted into the right to receive the Merger Consideration subject to the terms of the Merger Agreement. The Company requested that NASDAQ suspend the IEA Common Stock and SPAC Warrants (as defined in the Merger Agreement) on the Closing Date, and as a result, trading of the shares of IEA Common Stock and SPAC Warrants on NASDAQ will be suspended following the closing of trading on the Closing Date. The Company also requested that NASDAQ file a notification of removal from listing and registration on Form 25 with the SEC to effect the delisting of the IEA Common Stock and SPAC Warrants from NASDAQ and the deregistration of the IEA Common Stock under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Company intends to file with the SEC a Form 15 requesting the termination of registration of the IEA Common Stock and SPAC Warrants under Section 12(g) of the Exchange Act and the suspension of reporting obligations under Sections 13 and 15(d) of the Exchange Act.
| Item 3.03. | Material Modification to Rights of Security Holders. |
The information set forth in the Introduction and under Item 2.01 of this Current Report on Form 8-K is incorporated herein by reference.
| Item 5.01 | Changes in Control of Registrant. |
Pursuant to the terms of the Merger Agreement, at the Effective Time, the Company became a wholly-owned subsidiary of MasTec and, accordingly, a change in control of the Company occurred.
The information set forth in Item 2.01, Item 3.01, Item 5.02 and Item 5.03 is incorporated herein by reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Pursuant to the terms of the Merger Agreement, the directors of IEA immediately prior to the Effective Time on October 7, ceased serving as members of the Company’s board of directors and each committee thereof, and Robert Apple, the director of Merger Sub immediately prior to the Effective Time on October 7, 2022, became the sole director of IEA following the consummation of the Merger until the earlier of their death, resignation or removal or until their respective successors are duly elected and qualified.
On October 6, 2022, in connection with the Merger, the IEA Group Savings Plan was terminated.
| Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On the Closing Date, the Company filed with the Secretary of State of the State of Delaware the certificate of merger relating to the Merger. At the Effective Time, the Company’s certificate of incorporation as in effect immediately prior to the Merger was amended and restated in its entirety (as described in the Proxy Statement/Prospectus) (the “Amended and Restated Certificate of Incorporation”). A copy of the Amended and Restated Certificate of Incorporation is filed as Exhibit 3.1 and is incorporated herein by reference. In addition, at the Effective Time, Merger Sub’s bylaws as in effect immediately prior to the Merger became the bylaws of the Company (the “Bylaws”). A copy of the Bylaws is filed as Exhibit 3.2 and is incorporated herein by reference.
| Item 5.07 | Submission of Matters to a Vote of Security Holders. |
On October 7, 2022, IEA held a special meeting (the “Special Meeting”) of stockholders via live webcast in connection with the proposed Merger. As of the record date of the Special Meeting, there were a total of 48,644,324 shares of IEA Common Stock outstanding and entitled to vote at the Special Meeting. At the Special Meeting, 39,875,796 shares of Common Stock were represented virtually or by proxy at the Special Meeting; therefore, a quorum was present.
Set forth below are the matters acted upon by the Company’s stockholders at the Special Meeting, each of which was approved, as well as the final voting results of each such matter.
The consummation of the Merger remains subject to certain closing conditions.
| 1. | The proposal to adopt and approve the Agreement and Plan of Merger, dated as of July 24, 2022, by and among the Company, MasTec and Merger Sub pursuant to which Merger Sub will be merged with and into the Company, with the Company surviving the merger as a wholly-owned subsidiary of Parent (the “Merger Agreement Proposal”): |
| Votes For | Votes Against | Votes Abstaining | ||
| 39,811,072 | 47,801 | 16,923 |
| 2. | The proposal to approve, on a non-binding, advisory basis, a resolution approving the compensation that may be paid or become payable to certain named executive officers of the Company that is based on or otherwise relates to the Merger: |
| Votes For | Votes Against | Votes Abstaining | ||
| 35,122,626 | 3,769,309 | 983,861 |
| 3. | The proposal to approve the adjournment of the Special Meeting to a later date or time, if necessary or appropriate, to solicit additional proxies in the event that there are not sufficient votes at the time of the Special Meeting to approve the Merger Agreement Proposal was rendered moot in light of the approval of the Merger Agreement Proposal. |
| Item 8.01. | Other Events. |
On October 7, 2022, the Company delivered a notice to the holders of the Company’s outstanding SPAC Warrants containing an explanation of the adjustments to the exercise price of the SPAC Warrants and other information related thereto. The notice is attached hereto as Exhibit 99.1 and is incorporated by reference herein.
| Item 9.01 | Financial Statements and Exhibits |
(d) Exhibits
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC. | ||
| By: | /s/ Erin J. Roth | |
| Name: Erin J. Roth Title: Executive VP, General Counsel and Corporate Secretary | ||
Date: October 7, 2022
Exhibit 3.1
FOURTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC.
FIRST: The name of the corporation is Infrastructure and Energy Alternatives, Inc. (the “Corporation”).
SECOND: The address of the Corporation’s registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street in the City of Wilmington, County of New Castle, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act for which corporations may be organized under the Delaware General Corporation Law (“DGCL”).
FOURTH: The total number of shares which the Corporation shall have the authority to issue is one thousand (1,000) shares of common stock, par value $0.01 per share.
FIFTH: The Board of Directors is expressly authorized to adopt, amend, or repeal the bylaws of the Corporation.
SIXTH: Elections of directors need not be by written ballot unless the by-laws of the Corporation shall otherwise provide.
SEVENTH: A director of the Corporation shall not be liable to the Corporation or 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. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.
EIGHTH:
Section 1. To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the Corporation shall indemnify and hold harmless each person (an “Indemnitee”) who is or was made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”) by reason of the fact that he or she is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee or agent, against all liability and loss suffered and expenses (including, without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred by such Indemnitee in connection with such proceeding. The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by an Indemnitee in defending or otherwise participating in any proceeding in advance of its final disposition; provided, however, that, to the extent required by applicable law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking, by or on behalf of the Indemnitee, to repay all amounts so advanced if it shall ultimately be determined that the Indemnitee is not entitled to be indemnified under this Article EIGHT or otherwise. The rights to indemnification and advancement of expenses conferred by this Article EIGHT shall be contract rights and such rights shall continue as to an Indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of such Indemnitee’s heirs, executors and administrators. Notwithstanding the foregoing provisions of this Section, except for proceedings to enforce rights to indemnification and advancement of expenses, the Corporation shall indemnify and advance expenses to an Indemnitee in connection with a proceeding (or part thereof) initiated by such Indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors.
Section 2. The rights to indemnification and advancement of expenses conferred on any Indemnitee by this Article EIGHT shall not be exclusive of any other rights that any Indemnitee may have or hereafter acquire under law, this Fourth Amended and Restated Certificate, the bylaws of the Corporation, an agreement, vote of stockholders or disinterested directors, or otherwise.
Section 3. Any repeal or amendment of this Article EIGHT by the stockholders of the Corporation or by changes in law, or the adoption of any other provision of this Fourth Amended and Restated Certificate inconsistent with this Article EIGHT, shall, unless otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the Corporation to provide broader indemnification rights on a retroactive basis than permitted prior thereto), and shall not in any way diminish or adversely affect any right or protection existing at the time of such repeal or amendment or adoption of such inconsistent provision in respect of any proceeding (regardless of when such proceeding is first threatened, commenced or completed) arising out of, or related to, any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision.
Section 4. This Article EIGHT shall not limit the right of the Corporation, to the extent and in the manner authorized or permitted by law, to indemnify and to advance expenses to persons other than Indemnitees.
NINTH: The Corporation reserves the right to amend, alter, change, or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
Exhibit 3.2
AMENDED
AND RESTATED BYLAWS
OF
INFRASTRUCTURE
AND ENERGY ALTERNATIVES, Inc.
(a Delaware corporation)
ARTICLE I
Offices
SECTION 1. Registered Office. The registered office of the Corporation within the State of Delaware shall be The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.
SECTION 2. Other Offices. The Corporation may also have an office or offices other than said registered office at such place or places, either within or without the State of Delaware, as the Board of Directors shall from time to time determine or the business of the Corporation may require.
ARTICLE II
Stockholders
SECTION 1. Annual Meeting. An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall be held at such place, on such date, and at such time as the Board of Directors shall each year fix, which date shall be within thirteen (13) months of the last annual meeting of stockholders or, if no such meeting has been held, the date of incorporation.
SECTION 2. Special Meetings. Special meetings of the stockholders, for any purpose or purposes prescribed in the notice of the meeting, may be called by the Board of Directors or the chief executive officer and shall be held at such place, on such date, and at such time as they or he or she shall fix.
SECTION 3. Notice of Meetings. Notice of the place, if any, date, and time of all meetings of the stockholders and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, shall be given, not less than ten (10) nor more than sixty (60) days before the date on which the meeting is to be held, to each stockholder entitled to vote at such meeting, except as otherwise provided herein or required by law (meaning, here and hereinafter, as required from time to time by the Delaware General Corporation Law or the Certificate of Incorporation of the Corporation).
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When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken; provided, however, that if the date of any adjourned meeting is more than thirty (30) days after the date for which the meeting was originally noticed, or if a new record date is fixed for the adjourned meeting, notice of the place, if any, date, and time of the adjourned meeting and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting, shall be given in conformity herewith. At any adjourned meeting, any business may be transacted which might have been transacted at the original meeting.
SECTION 4. Quorum. At any meeting of the stockholders, the holders of a majority of all of the shares of the stock entitled to vote at the meeting, present in person or by proxy, shall constitute a quorum for all purposes, unless or except to the extent that the presence of a larger number may be required by law. Where a separate vote by a class or classes or series is required, a majority of the shares of such class or classes or series present in person or represented by proxy shall constitute a quorum entitled to take action with respect to that vote on that matter.
If a quorum shall fail to attend any meeting, the chairman of the meeting or the holders of a majority of the shares of stock entitled to vote who are present, in person or by proxy, may adjourn the meeting to another place, if any, date, or time.
SECTION 5. Organization. Such person as the Board of Directors may have designated or, in the absence of such a person, the President of the Corporation or, in his or her absence, such person as may be chosen by the holders of a majority of the shares entitled to vote who are present, in person or by proxy, shall call to order any meeting of the stockholders and act as chairman of the meeting. In the absence of the Secretary of the Corporation, the secretary of the meeting shall be such person as the chairman of the meeting appoints.
SECTION 6. Conduct of Business. The chairman of any meeting of stockholders shall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and the conduct of discussion as seem to him or her in order. The date and time of the opening and closing of the polls for each matter upon which the stockholders will vote at the meeting shall be announced at the meeting.
SECTION 7. Proxies and Voting. At any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument in writing or by a transmission permitted by law filed in accordance with the procedure established for the meeting. Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission created pursuant to this paragraph may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used, provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission.
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The Corporation may, and to the extent required by law, shall, in advance of any meeting of stockholders, appoint one or more inspectors to act at the meeting and make a written report thereof. The Corporation may designate one or more alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the person presiding at the meeting may, and to the extent required by law, shall, appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. Every vote taken by ballots shall be counted by an inspector or inspectors appointed by the chairman of the meeting.
All elections shall be determined by a plurality of the votes cast, and except as otherwise required by law, all other matters shall be determined by a majority of the votes cast affirmatively or negatively.
SECTION 8. Stock List. A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order for each class of stock and showing the address of each such stockholder and the number of shares registered in his or her name, shall be open to the examination of any such stockholder for a period of at least ten (10) days prior to the meeting in the manner provided by law.
The stock list shall also be open to the examination of any stockholder during the whole time of the meeting as provided by law. This list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them.
SECTION 9. Consent of Stockholders in Lieu of Meeting. Any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of the stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be made by hand or by certified or registered mail, return receipt requested.
Every written consent shall bear the date of signature of each stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless, within sixty (60) days of the date the earliest dated consent is delivered to the Corporation, a written consent or consents signed by a sufficient number of holders to take action are delivered to the Corporation in the manner prescribed in the first paragraph of this Section. A telegram, cablegram or other electronic transmission consenting to an action to be taken and transmitted by a stockholder or proxyholder, or by a person or persons authorized to act for a stockholder or proxyholder, shall be deemed to be written, signed and dated for the purposes of this Section to the extent permitted by law. Any such consent shall be delivered in accordance with Section 228(d)(1) of the Delaware General Corporation Law.
Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used, provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing.
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ARTICLE III
Board of Directors
SECTION 1. Number and Term of Office. The number of directors constituting the initial Board of Directors shall be one (1). Thereafter, the number of directors may be fixed, from time to time, by the affirmative vote of a majority of the entire Board of Directors or by action of the stockholders of the Corporation. Any decrease in the number of directors shall be effective at the time of the next succeeding annual meeting of stockholders unless there shall be vacancies in the Board of Directors, in which case such decrease may become effective at any time prior to the next succeeding annual meeting to the extent of the number of such vacancies. Directors need not be stockholders. Except as otherwise provided by statute or these Bylaws, the directors (other than members of the initial Board of Directors) shall be elected at the annual meeting of stockholders. Each director shall hold office until his successor shall have been elected and qualified, or until his death, or until he shall have resigned, or have been removed, as hereinafter provided in these Bylaws.
SECTION 2. Removal. Any director may be removed, either with or without cause, at any time, by the holders of a majority of the voting power of the issued and outstanding capital stock of the Corporation entitled to vote at an election of directors.
SECTION 3. Resignation. Any director of the Corporation may resign at any time by giving written notice of his resignation to the Corporation. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, immediately upon its receipt. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
SECTION 4. Vacancies. Any vacancy in the Board of Directors, whether arising from death, resignation, removal (with or without cause), an increase in the number of directors or any other cause, may be filled by the vote of a majority of the directors then in office, though less than a quorum, or by the sole remaining director or by the stockholders at the next annual meeting thereof or at a special meeting thereof. Each director so elected shall hold office until his successor shall have been elected and qualified.
SECTION 5. Regular Meetings. Regular meetings of the Board of Directors shall be held at such place or places, on such date or dates, and at such time or times as shall have been established by the Board of Directors and publicized among all directors. A notice of each regular meeting shall not be required.
SECTION 6. Special Meetings. Special meetings of the Board of Directors may be called by one-third (1/3) of the directors then in office (rounded up to the nearest whole number) or by the President and shall be held at such place, on such date, and at such time as they or he or she shall fix. Notice of the place, date, and time of each such special meeting shall be given to each director by whom it is not waived by mailing written notice not less than five (5) days before the meeting or by telegraphing or telexing or by facsimile or electronic transmission of the same not less than twenty-four (24) hours before the meeting. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting.
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SECTION 7. Quorum. At any meeting of the Board of Directors, a majority of the total number of the whole Board of Directors shall constitute a quorum for all purposes. If a quorum shall fail to attend any meeting, a majority of those present may adjourn the meeting to another place, date, or time, without further notice or waiver thereof.
SECTION 8. Participation in Meetings By Conference Telephone. Members of the Board of Directors, or of any committee thereof, may participate in a meeting of such Board of Directors or committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
SECTION 9. Conduct of Business. At any meeting of the Board of Directors, business shall be transacted in such order and manner as the Board of Directors may from time to time determine, and all matters shall be determined by the vote of a majority of the directors present, except as otherwise provided herein or required by law. Action may be taken by the Board of Directors without a meeting if all members thereof consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
SECTION 10. Compensation of Directors. Directors, as such, may receive, pursuant to resolution of the Board of Directors, fixed fees and other compensation for their services as directors, including, without limitation, their services as members of committees of the Board of Directors.
ARTICLE IV
Committees
SECTION 1. Committees of the Board of Directors. The Board of Directors may from time to time designate committees of the Board of Directors, with such lawfully delegable powers and duties as it thereby confers, to serve at the pleasure of the Board of Directors and shall, for those committees and any others provided for herein, elect a director or directors to serve as the member or members, designating, if it desires, other directors as alternate members who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of any member of any committee and any alternate member in his or her place, the member or members of the committee present at the meeting and not disqualified from voting, whether or not he or she or they constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at the meeting in the place of the absent or disqualified member.
SECTION 2. Conduct of Business. Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as otherwise provided herein or required by law. Adequate provision shall be made for notice to members of all meetings; one-third (1/3) of the members shall constitute a quorum unless the committee shall consist of one (1) or two (2) members, in which event one (1) member shall constitute a quorum; and all matters shall be determined by a majority vote of the members present. Action may be taken by any committee without a meeting if all members thereof consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of the proceedings of such committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
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ARTICLE V
Officers
SECTION 1. Generally. The officer of the Corporation shall consist of a President and a Vice President and such other officers as may from time to time be appointed by the Board of Directors. Officers shall be elected by the Board of Directors, which shall consider that subject at its first meeting after every annual meeting of stockholders. Each officer shall hold office until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any number of offices may be held by the same person.
SECTION 2. President. The President shall be the chief executive officer of the Corporation. Subject to the provisions of these Bylaws and to the direction of the Board of Directors, he or she shall have the responsibility for the general management and control of the business and affairs of the Corporation and shall perform all duties and have all powers which are commonly incident to the office of chief executive or which are delegated to him or her by the Board of Directors. He or she shall have power to sign all stock certificates, contracts and other instruments of the Corporation which are authorized and shall have general supervision and direction of all of the other officers, employees and agents of the Corporation.
SECTION 3. Vice President. Each Vice President shall have such powers and duties as may be delegated to him or her by the Board of Directors.
SECTION 4. Delegation of Authority. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officers or agents, notwithstanding any provision hereof.
SECTION 5. Removal. Any officer of the Corporation may be removed at any time, with or without cause, by the Board of Directors.
SECTION 6. Action with Respect to Securities of Other Corporations. Unless otherwise directed by the Board of Directors, the President or any officer of the Corporation authorized by the President shall have power to vote and otherwise act on behalf of the Corporation, in person or by proxy, at any meeting of stockholders of or with respect to any action of stockholders of any other corporation in which this Corporation may hold securities and otherwise to exercise any and all rights and powers which this Corporation may possess by reason of its ownership of securities in such other corporation.
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ARTICLE VI
Stock
SECTION 1. Certificates of Stock. Shares of stock of the Corporation may be certificated or uncertificated as provided under the Delaware General Corporation Law. If shares are certificated, certificates for shares of stock of the Corporation shall be in such form as shall be approved by the Board of Directors. Notwithstanding the foregoing, each holder of uncertificated shares shall be entitled, upon request, to a certificate representing such shares. The certificates shall be signed by, or in the name of the Corporation by, the President and the Vice President, certifying the number of shares owned by him or her. Any or all of the signatures on the certificate may be by facsimile.
SECTION 2. Transfers of Stock. Transfers of stock shall be made only upon the transfer books of the Corporation kept at an office of the Corporation or by transfer agents designated to transfer shares of the stock of the Corporation. Except where a certificate is issued in accordance with Section 4 of ARTICLE VI of these Bylaws, an outstanding certificate, if one has been issued, for the number of shares involved shall be surrendered for cancellation before a new certificate, if any, is issued therefor.
SECTION 3. Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders, or to receive payment of any dividend or other distribution or allotment of any rights or to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date on which the resolution fixing the record date is adopted and which record date shall not be more than sixty (60) nor less than ten (10) days before the date of any meeting of stockholders, nor more than sixty (60) days prior to the time for such other action as hereinbefore described; provided, however, that if no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held, and, for determining stockholders entitled to receive payment of any dividend or other distribution or allotment of rights or to exercise any rights of change, conversion or exchange of stock or for any other purpose, the record date shall be at the close of business on the day on which the Board of Directors adopts a resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
In order that the Corporation may determine the stockholders entitled to consent to corporate action without a meeting, (including by telegram, cablegram or other electronic transmission as permitted by law), the Board of Directors may fix a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall be not more than ten (10) days after the date upon which the resolution fixing the record date is adopted. If no record date has been fixed by the Board of Directors and no prior action by the Board of Directors is required by the Delaware General Corporation Law, the record date shall be the first date on which a consent setting forth the action taken or proposed to be taken is delivered to the Corporation in the manner prescribed by Section 9 of ARTICLE II of these Bylaws. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by the Delaware General Corporation Law with respect to the proposed action by consent of the stockholders without a meeting, the record date for determining stockholders entitled to consent to corporate action without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.
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SECTION 4. Lost, Stolen or Destroyed Certificates. In the event of the loss, theft or destruction of any certificate of stock, another may be issued in its place pursuant to such regulations as the Board of Directors may establish concerning proof of such loss, theft or destruction and concerning the giving of a satisfactory bond or bonds of indemnity.
SECTION 5. Regulations. The issue, transfer, conversion and registration of certificates of stock shall be governed by such other regulations as the Board of Directors may establish.
ARTICLE VII
Notices
SECTION 1. Notices. If mailed, notice to stockholders shall be deemed given when deposited in the mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the Corporation. Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders may be given by electronic transmission in the manner provided in Section 232 of the Delaware General Corporation Law.
SECTION 2. Waivers. A written waiver of any notice, signed by a stockholder or director, or waiver by electronic transmission by such person, whether given before or after the time of the event for which notice is to be given, shall be deemed equivalent to the notice required to be given to such person. Neither the business nor the purpose of any meeting need be specified in such a waiver.
ARTICLE VIII
Miscellaneous
SECTION 1. Facsimile Signatures. In addition to the provisions for use of facsimile signatures elsewhere specifically authorized in these Bylaws, facsimile signatures of any officer or officers of the Corporation may be used whenever and as authorized by the Board of Directors or a committee thereof.
SECTION 2. Corporate Seal. The Board of Directors may provide a suitable seal, containing the name of the Corporation, which seal shall be in the charge of the Secretary. If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used by the Treasurer or by an Assistant Secretary or Assistant Treasurer.
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SECTION 3. Reliance upon Books, Reports and Records. Each director, each member of any committee designated by the Board of Directors, and each officer of the Corporation shall, in the performance of his or her duties, be fully protected in relying in good faith upon the books of account or other records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of its officers or employees, or committees of the Board of Directors so designated, or by any other person as to matters which such director or committee member reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation.
SECTION 4. Fiscal Year. The fiscal year of the Corporation shall be as fixed by the Board of Directors.
SECTION 5. Time Periods. In applying any provision of these Bylaws which requires that an act be done or not be done a specified number of days prior to an event or that an act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included.
ARTICLE IX
Indemnification of Directors and Officers
SECTION 1. Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she is or was a director or an officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, or trustee of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an “indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer or trustee, or in any other capacity while serving as a director, officer or trustee, shall be indemnified and held harmless by the Corporation to the fullest extent permitted by Delaware law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith; provided, however, that, except as provided in Section 3 of this ARTICLE IX with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation.
SECTION 2. Right to Advancement of Expenses. In addition to the right to indemnification conferred in Section 1 of this ARTICLE IX, an indemnitee shall also have the right to be paid by the Corporation the expenses (including attorney’s fees) incurred in defending any such proceeding in advance of its final disposition (hereinafter an “advancement of expenses”); provided, however, that, if the Delaware General Corporation Law requires, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled to be indemnified for such expenses under this Section 2 or otherwise.
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SECTION 3. Right of Indemnitee to Bring Suit. If a claim under Section 1 or 2 of this ARTICLE IX is not paid in full by the Corporation within sixty (60) days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty (20) days, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In (i) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (ii) in any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that, the indemnitee has not met any applicable standard for indemnification set forth in the Delaware General Corporation Law. Neither the failure of the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this ARTICLE IX or otherwise shall be on the Corporation.
SECTION 4. Non-Exclusivity of Rights. The rights to indemnification and to the advancement of expenses conferred in this ARTICLE IX shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the Corporation’s Certificate of Incorporation, Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
SECTION 5. Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law.
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SECTION 6. Indemnification of Employees and Agents of the Corporation. The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this ARTICLE IX with respect to the indemnification and advancement of expenses of directors and officers of the Corporation.
SECTION 7. Nature of Rights. The rights conferred upon indemnitees in this ARTICLE IX shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director, officer or trustee and shall inure to the benefit of the indemnitee’s heirs, executors and administrators. Any amendment, alteration or repeal of this ARTICLE IX that adversely affects any right of an indemnitee or its successors shall be prospective only and shall not limit or eliminate any such right with respect to any proceeding involving any occurrence or alleged occurrence of any action or omission to act that took place prior to such amendment, alteration or repeal.
ARTICLE X
Amendments
These Bylaws may be amended or repealed by the Board of Directors at any meeting or by the stockholders at any meeting.
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Exhibit 99.1
VIA CERTIFIED MAIL
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, NY 10004
Attention: Compliance Department
Re: SPAC Warrants
Ladies and Gentlemen:
Reference is made to (a) the Amended and Restated Warrant Agreement, dated as of March 26, 2018, by and between Infrastructure and Energy Alternatives, Inc., a Delaware corporation (f/k/a M III Acquisition Corp.) (the “Company”), and Continental Stock Transfer & Trust Company, a New York corporation, as the warrant agent (the “Warrant Agent”) (as amended, restated or otherwise modified from time to time, the “Warrant Agreement”), and (b) the Agreement and Plan of Merger, dated as of July 24, 2022, by and among MasTec, Inc., a Florida corporation (“MasTec”), Indigo Acquisition I Corp., a Delaware corporation, and the Company (as amended, restated or otherwise modified from time to time, the “Merger Agreement”), pursuant to which a wholly owned subsidiary of MasTec merged with and into the Company, with the Company surviving the merger as a wholly owned subsidiary of MasTec (the “Merger”). Upon the terms and subject to the conditions of the Merger Agreement, at the effective time of the Merger (the “Effective Time”), each issued and outstanding share of common stock of the Company, par value $0.0001 per share (the “IEA Common Stock”), immediately prior to the Effective Time (other than shares held in the treasury of the Company or owned, directly or indirectly, by MasTec, Indigo Acquisition I Corp., the Company or any wholly-owned subsidiary of the Company immediately prior to the Effective Time) was cancelled and automatically converted into the right to receive (i) 0.0483 shares of common stock, par value $0.10 per share (the “MasTec Common Stock”), of MasTec and (ii) $10.50 per share in cash, without interest (the “Cash Consideration”). Capitalized terms used but not otherwise defined in this notice shall have the meanings ascribed thereto in the Warrant Agreement.
Under the terms of the Warrant Agreement, prior to the Merger, each holder of Warrants was entitled to receive one share of IEA Common Stock, upon proper exercise of two Warrants and the payment in cash of the Warrant Price of $11.50 payable upon the exercise of two Warrants.
Pursuant to Sections 4.5 and 4.6 of the Warrant Agreement, the Company hereby provides notice of the following:
| 1. | The Effective Time of the Merger was 8:31 a.m. Eastern time on October 7, 2022. |
| 2. | The Merger constitutes an Alternative Issuance under Section 4.5 of the Warrant Agreement. Accordingly, following the Effective Time of the Merger, (a) no shares of IEA Common Stock will be issuable upon exercise of the Warrants and (b) each holder of Warrants will be entitled to receive: $10.50 in cash (the “Cash Payment”) and 0.0483 of a validly issued, fully paid and nonassessable share of common stock, par value $0.10 per share of MasTec Common Stock (together with the Cash Payment, the “Warrant Payment”) upon proper exercise of two Warrants and the payment in cash of the Warrant Price payable upon the exercise of two Warrants. |
| 3. | Pursuant to Section 4.5 of the Warrant Agreement, the Warrant Price for any two Warrants properly exercised during the period beginning on October 7, 2022, and ending on and including November 6, 2022 (such period, the “Special Exercise Period”) will be reduced by an amount (in dollars) equal to the difference (but in no event less than zero) of (a) $11.50 (which constitutes the Warrant Price in effect on the trading day immediately prior to such reduction) minus (b)(i) $13.7468 (the volume weighted average price of the IEA Common Stock as reported during the ten (10) trading day period ending on October 6, 2022, the trading day prior to the Effective Time, which constitutes the Per Share Consideration), minus (ii) the applicable Black-Scholes Warrant Value. |
| 4. | The Black-Scholes Warrant Value was calculated for each Private Placement Warrant and Public Warrant in accordance with the terms of the Warrant Agreement and the terms set forth below: |
| Term | Private Placement Warrants | Public Warrants | ||
| Reference Date | October 6, 2022 (the trading day prior to the Effective Time) | Same as per the Private Placement Warrants | ||
| Price of Each Share of IEA Common Stock (10-day VWAP for the period ended on the Reference Date) | $13.7468 | Same as per the Private Placement Warrants | ||
| Assumed Volatility | Calculated using the 90-day volatility obtained from the HVT function on Bloomberg determined as of July 22, 2022 (the trading day immediately prior to the day of the Company’s announcement of the Merger Agreement) | Same as per the Private Placement Warrants | ||
| Assumed Risk-Free Interest Rate | Calculated using the Graph Curve (GC) function on Bloomberg and the U.S. Treasury Actives Curve rate using the Interpolate Curves tool for the Expiration Date (March 26, 2023) | Same as per the Private Placement Warrants | ||
| Option Pricing via the Bloomberg OVME Calculator | Regular American call input using the other inputs derived in accordance with the other terms of this notice, the Expiration Date (March 26, 2023) and a buy/strike price of $11.50 (value display in “price total”) | Capped American call input using a call cap of $24.00, the other inputs derived in accordance with the other terms of this notice, the Expiration Date (March 26, 2023) and a buy/strike price of $11.50 (value display in “price total”) |
| 5. | Accordingly, the Warrant Price for any two Public Warrants exercised during the Special Exercise Period is $9.80 and the Warrant Price for any two Private Placement Warrants exercised during the Special Exercise Period is $9.76. Any holder that purports to exercise Private Placement Warrants during the Special Exercise Period and pays the corresponding Warrant Price with respect thereto must also provide evidence acceptable to the Warrant Agent that such Warrants are Private Placement Warrants (and not an Excluded Private Placement Warrant). The failure of any such holder to comply with the requirements of this notice may result in a failure to properly exercise the applicable Warrants prior to the expiration of the Special Exercise Period. After the end of the Special Exercise Period, the Warrant Price for the exercise of any two Public Warrants or Private Placement Warrants will be $11.50. |
The Company hereby requests that upon receipt of this notice the Warrant Agent promptly provide a copy of this notice in writing to each holder of a Warrant on behalf of the Company in accordance with Section 4.6 of the Warrant Agreement, with such further notices confirmed by the Warrant Agent to the Company in writing. Each holder of Warrants is encouraged to contact its advisors if it has any questions regarding the exercise of its Warrants. The Warrant Payment will be made by the Warrant Agent as soon as practicable following the proper exercise of Warrants, the payment of the Warrant Price in cash, the satisfaction of any additional actions reasonably requested by the Warrant Agent and the Warrant Agent’s review of any other materials required to be submitted hereunder or otherwise.
Holders of Private Placement Warrants have the right to elect to exercise those warrants on a cashless basis. For Private Placement Warrants exercised on a cashless basis after the Merger, the holder will be entitled to pay the exercise price for those warrants by surrendering, at the holder’s election, all or portion of the Cash Payment and/or shares of MasTec Common Stock constituting the Warrant Payment (valuing such shares at their deemed “Fair Market Value”). For this purpose, shares of MasTec Common Stock so surrendered will be deemed to have “Fair Market Value” equal to the average reported last sale price of our Common Stock for the ten (10) trading days ending on the third trading day prior to the date of exercise of the applicable Private Placement Warrants.
In addition, although not required under the terms of the Warrant Agreement, at the request of a holder exercising two Public Warrants, the Company will apply, all or a portion, as applicable, of the Cash Payment that the holder would be entitled to receive upon such exercise to satisfy all or a portion, as applicable, of the Warrant Price payable by the holder upon such exercise.
If the holder of Warrants would be entitled, upon the exercise of such Warrants, to receive a fractional interest in a share of MasTec Common Stock, the Company will, upon such exercise, round down to the nearest whole number the number of shares of MasTec Common Stock to be issued to the exercising Warrant holder.
This notice shall be governed in all respects by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction.
[Signature page follows]
| INFRASTRUCTURE AND ENERGY ALTERNATIVES, INC. | |||
| By: | /s/ John Paul Roehm | ||
| Name: | John Paul Roehm | ||
| Title: | President, Chief Executive Officer and Director | ||
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