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S-1/A
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ck0002109150-20260526.htm
S-1/A
S-1/A
As filed with the Securities and Exchange Commission on May 26, 2026.
Registration No. 333‑295751
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1 to
FORM S-1
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
INNIO Holding GmbH*
(Exact name of registrant as specified in its charter)
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Germany
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3621
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Not Applicable
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(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification Number)
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Nymphenburger Strasse 5
80335 Munich
Germany
+49.89.89.82.7221
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1101 W. St. Paul Ave.
Waukesha, WI 53188
+1.262.547.3311
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(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
INNIO Holding Inc.
1101 W. St. Paul Ave.
Waukesha, WI 53188
+1.262.547.3311
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
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Marc D. Jaffe
Ian D. Schuman
Oliver Seiler
Jennifer M. Gascoyne
Latham & Watkins LLP
1271 Avenue of the Americas
New York, NY 10020
(212) 906-1200
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Paul van der Bijl
NautaDutilh N.V.
Beethovenstraat 400
1082 PR Amsterdam
The Netherlands
+31 20 717 1000
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Rod Miller
David Dixter
Philipp Klöckner
Milbank LLP
55 Hudson Yards
New York, NY 10001
(212) 530-5000
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Approximate date of commencement of proposed sale to the public : As soon as practicable after this registration statement becomes effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box: ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☒
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Smaller reporting company
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☐
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Emerging growth company
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☐
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
(*) We intend to convert the legal form of our company from a German limited liability company ( Gesellschaft mit beschränkter Haftung ) to a Dutch private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ) and then to a Dutch public company ( naamloze vennootschap ) under Dutch law and to change our name from INNIO Holding GmbH to INNIO Group Holding B.V. and then to INNIO N.V. prior to the closing of this offering.
The information contained in this preliminary prospectus is not complete and may be changed. The selling shareholder may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities and the selling shareholder is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject to Completion, Dated May 26, 2026
PRELIMINARY PROSPECTUS
75,000,000 Common Shares
INNIO Holding GmbH
to be converted into and renamed
INNIO N.V.
This is the initial public offering of the common shares of INNIO Holding GmbH (to be converted into and renamed INNIO N.V.). AI Alpine (Luxembourg) S.à r.l. (our “Principal Shareholder” and the “selling shareholder”) is selling 75,000,000 common shares. We will not receive any proceeds from the sale of the common shares by the selling shareholder in this offering.
Prior to this offering, there has been no public market for our common shares. It is currently estimated that the initial public offering price will be between $24.00 and $27.00 per common share.
We have applied to list our common shares on the Nasdaq Global Select Market (“Nasdaq”) under the symbol “INIO.”
Immediately following the completion of this offering, our Principal Shareholder will hold an aggregate of 675,000,000 common shares, representing approximately 90% of the voting power of our outstanding share capital, assuming no exercise of the underwriters’ option to purchase additional common shares. As a result, following this offering we will be a “controlled company” within the meaning of the corporate governance rules of Nasdaq. For additional information, see the section titled “ Management—Controlled Company .” In connection with this offering, we will enter into a relationship agreement with our Principal Shareholder, which will regulate our ongoing relationship and govern the exercise by our Principal Shareholder of certain rights following the completion of this offering. For additional information, see “ Certain Relationships and Related Party Transactions—Transactions with our Principal Shareholder—Relationship Agreement .”
Investing in our common shares involves risks. See the section titled “Risk Factors” beginning on page 26 to read about factors you should consider before deciding to invest in our common shares.
Neither the Securities and Exchange Commission (the “SEC”) nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
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Per Share
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Total
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Initial public offering price
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$
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$
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Underwriting discounts and commissions (1)
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$
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$
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Proceeds to the selling shareholder, before expenses
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$
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$
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(1) See the section titled “ Underwriting ” for a description of the compensation payable to the underwriters.
The selling shareholder has granted the underwriters an option to purchase up to an additional 11,250,000 common shares from them at the initial public offering price, less underwriting discounts and commissions. We will not receive any proceeds from the sale of such additional common shares by the selling shareholder.
The underwriters expect to deliver the shares against payment in New York, New York on or about , 2026.
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Joint Lead Bookrunning Managers
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Goldman Sachs & Co. LLC*
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J.P. Morgan*
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Morgan Stanley*
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Bookrunners
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BofA Securities
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Barclays
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Citigroup
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Baird
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BNP PARIBAS
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Deutsche Bank Securities
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RBC Capital Markets
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UBS Investment Bank
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Co-Managers
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Credit Agricole CIB
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Erste Group
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UniCredit
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Academy Securities
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Drexel Hamilton
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*listed in alphabetical order
Prospectus dated , 2026
TABLE OF CONTENTS
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GLOSSARY OF CERTAIN TERMS
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iii
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MARKET, INDUSTRY, AND OTHER DATA
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v
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PROSPECTUS SUMMARY
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1
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THE OFFERING
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19
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SUMMARY HISTORICAL CONSOLIDATED FINANCIAL AND OTHER DATA
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21
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RISK FACTORS
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25
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
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74
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USE OF PROCEEDS
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76
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DIVIDEND POLICY
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77
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CORPORATE REORGANIZATION
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78
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CAPITALIZATION
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79
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MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
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80
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BUSINESS
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110
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MANAGEMENT
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141
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COMPENSATION DISCUSSION AND ANALYSIS
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150
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CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
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164
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PRINCIPAL AND SELLING SHAREHOLDERS
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170
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DESCRIPTION OF SHARE CAPITAL AND ARTICLES OF ASSOCIATION
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172
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COMPARISON OF DUTCH CORPORATE LAW AND U.S. CORPORATE LAW
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180
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COMMON SHARES ELIGIBLE FOR FUTURE SALE
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191
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MATERIAL TAX CONSIDERATIONS
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193
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UNDERWRITING
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209
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LEGAL MATTERS
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216
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EXPERTS
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216
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WHERE YOU CAN FIND ADDITIONAL INFORMATION
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216
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ENFORCEMENT OF JUDGMENTS
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217
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INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
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F- 1
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You should rely only on the information contained in this prospectus and any free writing prospectus prepared by or on behalf of us that we have referred to you. Neither we, the selling shareholder, nor the underwriters have authorized anyone to provide you with additional or different information. If anyone provides you with additional, different or inconsistent information, you should not rely on it. Offers to sell, and solicitations of offers to buy, our common shares are being made only in jurisdictions where offers and sales are permitted. The information contained in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or of any sale of our common shares. Our business, financial condition, operating results and prospects may have changed since such date.
For investors outside the United States: Neither we, the selling shareholder, nor any of the underwriters have done anything that would permit this offering or possession or distribution of this prospectus in any jurisdiction where action for that purpose is required, other than in the United States. Persons outside of the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, this offering of our common shares and the distribution of this prospectus outside of the United States.
About this Prospectus
Prior to the closing of this offering, we will complete a corporate reorganization described in more detail under “ Corporate Reorganization ,” in the course of which we will be converted into a Dutch private company ( besloten vennootschap met beperkte aansprakelijkheid ), and our legal name will change to INNIO Group Holding B.V. We will then be converted into a public company under Dutch law ( naamloze vennootschap ), and our legal name will change to INNIO N.V. (the “Reorganization”).
As used in this prospectus, unless the context otherwise indicates, any reference to the “Group,” “INNIO,” “our Company,” “us,” “we,” and “our” refers to (i) INNIO Holding GmbH, incorporated under the laws of Germany, together with its consolidated subsidiaries, prior to the completion of its conversion into INNIO Group Holding B.V. (the “Conversion”), (ii) INNIO Group Holding B.V. together with its consolidated subsidiaries, as of the completion of the Conversion and (iii) INNIO N.V. and its consolidated subsidiaries after the completion of the Reorganization.
Certain monetary amounts, percentages and other figures included in this prospectus have been subject to rounding adjustments. Percentage amounts included in this prospectus have not in all cases been calculated on the basis of such rounded figures, but on the basis of such amounts prior to rounding. For this reason, percentage amounts in this prospectus may vary from those obtained by performing the same calculations using the figures in our consolidated financial statements included elsewhere in this prospectus. Certain other amounts that appear in this prospectus may not sum due to rounding.
Financial information presented in parentheses denotes the negative of such number presented. A dash (“–”) signifies that the relevant figure is not available or zero, while a zero (“0.0”) signifies that the relevant figure has been rounded to zero.
Compression metrics in this prospectus have been converted from horsepower to megawatts for consistency across metrics.
Basis of Presentation
Except as otherwise disclosed in this prospectus, the historical consolidated financial statements, the summary historical consolidated financial data and the other financial information included elsewhere in this prospectus have been prepared in U.S. dollars in accordance with accounting principles generally accepted in the United States (“GAAP”). This historical financial information does not give effect to this offering.
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Gloss ary of Certain Terms
AI infrastructure . The combination of high-performance computing, networking and storage components that collectively enables the development and deployment of AI models.
AI workloads . The computing tasks specifically related to artificial intelligence applications. These include activities such as training machine learning models, running inference (making predictions with trained models), processing large datasets, natural language processing, computer vision and other AI-driven tasks. AI workloads typically require significant computational resources, often using specialized hardware like GPUs to handle complex calculations efficiently.
Backup power . A secondary source of electricity that automatically activates when the primary power supply fails, ensuring power supply for critical equipment and systems during outages.
Baseload . The minimum level of electricity demand that a power grid must continuously meet.
Behind-the-meter . Power generation equipment or energy systems that are installed on the customer's side of the electric utility meter, allowing the customer to generate and consume electricity on-site without relying on the public grid.
Capital expenditures. The sum of the additions to property, plant and equipment and additions to intangible assets over a given period.
Colocation operator . A third-party company that owns and manages data center facilities, renting out space, power, cooling and security to other businesses. They provide the infrastructure to host client-owned servers, enabling companies to reduce IT overhead, improve security and ensure high uptime.
Combined heat and power (“CHP”) . A system that simultaneously generates electricity and useable heat from the same energy source.
Compute . The processing power required to execute software tasks and applications, such as running AI workloads, and typically provided by GPUs, CPUs or other specialized chips.
Conversions, modifications and upgrades (“CM&U”) . Service activities that convert, modify or upgrade existing equipment to improve performance or extend life.
Digital-twin . A virtual replica of a physical asset, such as an engine or power generation system, that uses real-time data and simulation to monitor performance, predict maintenance needs and optimize operations.
Distributed power generation . Electricity generation that occurs at or near the point of use, rather than at a large, centralized facility.
Energy-as-a-Service (“EaaS”) . A business model where customers pay for energy services rather than purchasing equipment directly.
Equipment Order Backlog. Equipment Order Intake that has not yet been fulfilled towards the customer. Equipment Order Backlog is measured as of the end of a given period.
Equipment Order Intake. The booking of a new sales order for our Equipment segment within a given year when specific criteria are met, including a signed contract, defined scope, fixed price, delivery schedule, and fully defined terms and conditions. The order must have a low probability of cancellation, all necessary approvals and risk reviews completed, and any required down payment (if any) received. Equipment Order Intake is measured over a given period.
Firm capacity . The uninterruptible and reliable amount of energy, utility or production output that a provider promises to deliver at any given time, regardless of conditions.
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Full-time equivalent (“FTE”) . Each of our employees or employees of record, which are employees hired on behalf of us by a third-party organization, excluding interns, contractors, apprentices, passive employees and employees on leaves of absence.
Genset . A generator set. A self-contained unit including an engine and an electrical generator.
Graphics Processing Unit (“GPU”) . A type of processor optimized for parallel data processing, widely used in graphics rendering and high-performance computing tasks. GPUs are built on underlying design architectures that define how the GPU will operate, including its processing cores, memory systems, data pathways and features.
Grid balancing/grid firming/firming . The continuous process of matching electricity supply with demand across the power grid, often achieved by adjusting the output of flexible power sources like gas engines to maintain stable grid frequency and voltage.
Hyperscaler . A cloud provider or technology company that is capable of delivering computing infrastructure and services at massive scale, typically through large data centers and geographically distributed networks.
In-front-of-the-meter . Power generation equipment or energy systems that are installed on the utility’s side of the electric meter and connected directly to the public grid, typically delivering electricity to multiple customers or the wholesale power market.
Independent power producer (“IPP”) . A non-utility company that owns and operates power generation facilities and sells the electricity it produces to utilities, end users or into wholesale markets but typically does not own or operate the transmission or distribution grid.
Installed base . All active Jenbacher and Waukesha engines with their corresponding power output, measured in gigawatts (“GW”). Active is defined as operationally available for the customer without implying any operational running profile. Active excludes all inactive engines (i.e. engines on stock or not yet commissioned, engines decommissioned) and all engines owned or controlled by customers for whom the provision of services is restricted or prohibited where we are unable to deliver the full service scope.
Islanded . A mode of operation in which a power generation system operates independently from the main electric grid, providing electricity to a localized area or facility without any grid connection.
Microgrid . A localized group of electricity sources and loads that can disconnect from the traditional grid.
N+x . A measure of redundancy in power or cooling systems where “N” represents the capacity needed to meet operational requirements and “x” represents the number of additional backup units available to take over if one or more primary units fail.
Peaking . Power generation that operates during periods of highest electricity demand, typically for short durations, to supplement baseload power and prevent grid shortages.
Power Delivered. The aggregate electrical power output, measured in GW, of engines/gensets for which revenue has been recognized in the relevant period. Specifically, Power Delivered is calculated as the sum across all delivered units of the nameplate electrical output, measured in megawatts (“MW”) of each engine/genset multiplied by the respective quantity recognized. For our compression business line, Power Delivered is calculated by converting horsepower output into megawatts. Power Delivered is measured over a given period.
Prime power . A power system designed to serve as the primary and continuous source of electricity for a facility, operating for extended or unlimited periods rather than as a backup solution.
Time-to-power . The total duration required to move a new electricity generation asset from conception to full commercial operation.
Workloads . The computational tasks or applications, such as training AI models or running inference, that consume resources like GPUs, memory and storage in a computing environment.
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MARK ET, INDUSTRY, AND OTHER DATA
This prospectus contains estimates, projections and information concerning our industry, including the size of the markets in which we participate, that are based on various third-party sources, industry publications and reports, as well as our own internal information.
This information involves a number of assumptions and limitations, and you are cautioned not to give undue weight to such estimates and information. The markets in which we operate are subject to a high degree of uncertainty and risk due to a variety of factors, including those described in the section titled “ Risk Factors .” These and other factors could cause results to differ materially from those expressed in these sources, publications, and reports.
Certain information in the text of this prospectus is contained in publicly available reports, as well as third-party sources, including:
• BCG, Energy Demand from Compute November 2025 Update Whitepaper (“BCG Whitepaper”).
• BloombergNEF, New Energy Outlook 2025 Report (“BloombergNEF”).
• Center for Strategic and International Studies, Powering the Commanding Heights: The Strategic Context of Emergent U.S. Electricity Demand Growth, October 2024 (“CSIS”).
• CoreSite, Breaking Down Data Center Tier Level Classifications (“CoreSite”).
• datacenterhawk, data center market intelligence platform (“Datacenter Hawk”).
• Datacenters.com Energy, Data Center Construction in 2025: Permitting, Power, and Pitfalls to Avoid, October 2025 (“Datacenters Energy”).
• Enverus, 2026 Interconnection Queue Outlook & ISO Market Trends (“Enverus”).
• EMBER, Grids for Data Centers in Europe, June 2025 (“EMBER”).
• The International Energy Agency, Renewables 2025 Analysis and forecasts to 2030, October 2025 (“IEA Forecast Report”) and Energy Employment has Surged, but Growing Skills Shortages Threaten Future Momentum, December 2025 (“IEA Report”).
• Jaime Sevilla et al. (2024), "Can AI scaling continue through 2030?". Published online at epoch.ai. (the “Epoch AI Analysis”).
• JLL, 2026 Global Data Center Outlook, Navigating AI Demand, Power Constraints and Global Opportunities in 2026 (“JLL”).
• North American Electric Reliability Company (“NERC”), Characteristics and Risks of Emerging Large Loads, Large Load Tasks Force White Paper, July 2025 and 2024 Summer Reliability Assessment, May 2024 (“NERC Reports”).
• Oxcap Analytics, Power Generation: The Fourth Cycle (“Oxcap Analytics”).
• Semianalysis, How AI Labs are Solving the Power Crisis: the Onsite Gas Deep Dive, December 2025 (“Semianalysis”).
• Spears & Associates, The Upstream Gas Compression Market: October 2025 (“Spears & Associates”).
• S&P Capital IQ, a financial data and analytics platform provided by S&P Global (“S&P”).
• The U.S. Department of Energy (“DOE”) Report on Evaluating U.S. Grid Reliability and Security, July 2025 (the “DOE Report”) and Fact Sheet: The Department of Energy is Ending the War on Beautiful, Clean Oil, January 2026 (the “DOE Fact Sheet”).
• The U.S. Environmental Protection Agency (“EPA”), CHP’s Role Providing Reliability and Resiliency, December 2025 and CHP Benefits, August 2025 (the “EPA CHP Articles”).
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PRO SPECTUS SUMMARY
This summary highlights information contained elsewhere in this prospectus and does not contain all of the information that you should consider in making your investment decision. Before investing in our common shares, you should carefully read this entire prospectus. In particular, you should carefully read the sections entitled “Risk Factors,” “Special Note Regarding Forward-Looking Statements” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our consolidated historical financial statements and the accompanying notes included elsewhere in this prospectus.
Overview
We are a leading global distributed energy solutions provider that delivers reliable, flexible, transient, decentralized, modular and efficient power. Our reciprocating gas engines convert gaseous fuels, such as natural, renewable and specialty gases, into electricity and heat or compression for a wide array of critical infrastructure, including the grid, data centers and industrial applications. Our solution portfolio is fully focused on gaseous fuels rather than diesel-based solutions. With an installed base of approximately 44 GW and 3.4 GW of power delivered as of December 31, 2025, compared to an installed base of 42 GW and 2.5 GW of power delivered as of December 31, 2024, our technology platforms have proven themselves for decades in a variety of demanding applications and environments.
We operate through two primary segments: Equipment and Services. Our Equipment segment addresses the data center, power solutions and compression end-markets through our modular, flexible and highly efficient engine-based solutions, providing high quality power characteristics for their applications. In our data center business line, our modular, high-efficiency systems are ideally positioned to deliver the prime and backup power required to sustain intensive artificial intelligence (“AI”) workloads. By minimizing the complex auxiliary subsystems often required by alternative power sources, our technology offers a scalable, capital efficient behind-the-meter solution specifically optimized for rapid data center deployment. Our power solutions provide baseload and peaking power to stabilize utility grids (in-front-of-the-meter) and power independent microgrids (behind-the-meter). Our compression solutions support the full energy value chain, including gas lift, gathering, processing, storage and transmission, enabling efficient gaseous fuel transport. These solutions are mission critical and non-discretionary; our systems help our customers maintain operational continuity, generate electricity and produce oil and natural gas. As the backbone of resilient energy infrastructure, our equipment and services enable operators to mitigate grid capacity shortfalls and reduce reliance on unstable centralized power and intermittent renewables.
Our sizable and growing installed base drives our Services segment, as our gas engine solutions require regular maintenance and replacement of parts to deliver reliable performance. The proprietary design of many critical components positions us to capture a substantial majority of the life cycle service and parts opportunity. Given the critical role our equipment plays in our customers’ operations, we have strong uptake of, and a steady demand for, our support and maintenance offerings. For customers seeking long-term certainty of maintenance costs, we offer multi-year service agreements, which can extend to ten years or more. We also offer upgrades and overhaul services, which substantially extend the life of our engines. Supported by an internal service team of over 1,600 specialists as of March 31, 2026, our Services segment generates highly predictable, recurring and high-margin revenue streams. This near-captive aftermarket business underpins a compounding business model characterized by a virtuous cycle of equipment placement, service attachment and long-term customer loyalty. The expected growth of our installed base and our aftermarket exposure provide significant Services revenue visibility extending well beyond 2030.
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The table below gives an overview of our two segments, Equipment and Services, Equipment Order Intake and our revenue, along with customer types and use cases.
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Equipment
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Services
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Data Center
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Power Solutions
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Compression
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LTM Q1 2026 Equipment
Order Intake
(% of LTM Total Equipment Order Intake)
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$2,979M
(61%)
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$1,522M
(31%)
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$348M
(7%)
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N/A
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LTM Q1 2026 Revenue
(% of LTM Total Revenue)
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$317M
(11%)
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$946M
(34%)
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$215M
(8%)
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$1,334M
(47%)
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Customers
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• Colocation operators
• Energy-as-a-Service providers
• Hyperscalers
• Land developers
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• Agriculture
• Commercial
• Data center co-located
power generation
• Greenhouses
• Industry
• Municipalities
• Oil & gas
• Utilities
• IPPs
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• Exploration &
production companies
• Midstream oil & gas
• Oil companies (international and national)
• Oil field service
• Rental fleets
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• Same customers as Equipment
segment
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Use Cases
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• Behind-the-meter
prime power
• Behind-the-meter
backup power
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• Decentralized behind
the meter
• Grid balancing
• Heat and power application
• Microgrid
• Power generation
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• Gas gathering
• Gas lift
• Gas processing
• Gas storage
• Gas transmission
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• Spare parts
• Regular service
• Minor overhaul (approx. 30-40k operating hours)
• Major overhaul (approx. 60-80k operating hours)
• Remanufacturing
• CM&U
• Long-term service agreements
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Our global manufacturing footprint spans more than seven million square feet of land, anchored by production hubs in Austria (Jenbach, Hall, Kapfenberg) and North America (Welland, Ontario, Canada; Waukesha, Wisconsin, USA; Waller, Texas, USA and Trenton, New Jersey, USA) as of March 31, 2026. We have strengthened our North American footprint, including targeted investments in U.S. manufacturing and assembly capacity, to support growing demand for distributed and behind-the-meter power solutions and to improve proximity to key data center development regions. These facilities enable localized production and testing, shorter lead times and increased capacity and flexibility, supporting projects that need power quickly. We have global coverage across approximately 100 countries, as of March 31, 2026, through a robust commercial network that integrates direct sales, authorized distributors and channel partners, packagers and strategic key accounts. This extensive global reach, combined with our localized service capabilities, ideally positions us to effectively capture the growing demand for our energy solutions.
Although the Jenbacher and Waukesha brands possess a rich heritage established within major industrial conglomerates, our trajectory accelerated in 2018 when Advent International (“Advent”) carved out the businesses from General Electric Company (“GE”) to form INNIO as a standalone entity. In 2023, we further strengthened our capital base when Luxinva S.A. (“Luxinva”), a wholly owned subsidiary of the Abu Dhabi Investment Authority (“ADIA”), acquired a significant minority stake. Our Principal Shareholder is co-owned by funds managed by Advent and ADIA. For further information on our organizational history, see “— Organizational History .” Following our separation from GE, we have delivered record performance by enhancing our operational agility, digital capabilities and technological leadership. We have specifically focused on high-growth opportunities through substantial investments in our U.S. manufacturing infrastructure, targeted research and development (“R&D”), containerized solutions and service distribution network. With approximately 5,200 full-time equivalents (“FTEs”) as of March 31, 2026, our team is united by a vision to deliver the mission-critical power required for the economy’s vital operations.
For the three months ended March 31, 2026, we had an Equipment Order Intake (as defined in “ Summary Historical Consolidated Financial and Other Data—Key Operating Metrics and Non-GAAP Financial Measures ”) of $1,617.5 million (resulting in a 147.7% period-over-period increase, from $652.8 million for the three months ended March 31, 2025), $668.6 million in revenue (resulting in a 35.3% period-over-period increase from $494.0 million for the three months ended March 31, 2025), net loss of $9.0 million (reflecting a 125.7% period-over-period change from a net income of $35.0 million for the three months ended March 31, 2025) and an Adjusted EBITDA of $122.5 million (reflecting a 7.5% period-over-period increase from $114.0 million for the three months ended March 31, 2025).
For the year ended December 31, 2025, we had an Equipment Order Intake of $3,884.0 million (resulting in a 187.8% year-over-year increase, from $1,349.6 million for the year ended December 31, 2024), $2,636.8 million in revenue (resulting in a 22.1% year-over-year increase from $2,159.1 million for the year ended December 31, 2024), net income of $141.8 million (reflecting a 54.1% year-over-year increase from $92.0 million for the year ended December 31, 2024) and an Adjusted EBITDA of $549.0 million (reflecting a 19.4% year-over-year increase from $459.9 million for the year ended December 31, 2024). See “ Management’s Discussion and Analysis of Financial Condition and Results of Operations—Non-GAAP Financial Measures ” for a reconciliation of Adjusted EBITDA to net income.
Our Markets
Global power demand is entering a new growth phase, driven by a step-change in electricity consumption from data centers to enable the AI revolution, alongside broader electrification across industrial, commercial and residential end markets. Based on third-party research, we estimate that the average annual growth in electricity consumption across the US and Europe will step up from 0.3% from 2010 to 2025, to 1.6%, from 2025 to 2035, resulting in an incremental annual consumption of around 1.2 billion MWh.
AI-driven compute workloads are particularly power intensive, continuous and highly concentrated, requiring not just increased power, but a differentiated power, distinguished by high-quality capacity with fast start capability, strong transient response and the ability to manage rapid load fluctuations. As a result, data centers account for a disproportionate share of incremental load growth and are reshaping requirements for power supply at the gigawatt scale with global data center power demand expected to grow by around 14% to 18% per annum over the next five years according to JLL and Company estimates based on third-party sources.
At the same time, grid reliability and availability have become binding constraints. Years of underinvestment in generation, transmission and distribution infrastructure, combined with permitting complexity, interconnection queues and skilled-labor shortages, have extended time-to-power to multiple years in many regions. According to
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Enverus and EMBER, the average interconnection queue in the U.S. and key European countries now exceeds six years.
Rapid growth in large, concentrated loads, most notably data centers, has outpaced grid expansion, creating localized supply and demand imbalances that existing networks are structurally unable to absorb. Rising renewable penetration further increases system volatility, structurally elevating the need for firming and balancing capacity.
As a result, governments and regulators are increasingly intervening to protect residential consumers and incumbent industries from reliability risks and rising system costs associated with large, concentrated electricity loads. These interventions include connection moratoria, explicit load caps, curtailment obligations, large-load tariff structures and requirements for on-site or dedicated power supply.
These measures reflect growing recognition that existing grids are increasingly constrained. According to the DOE Fact Sheet, the U.S. power system is not positioned to sustain the combined impact of coal and other plant retirements, increasing reliance on intermittent generation sources such as wind and solar, and rapid growth in data center demand, underscoring the urgency of adding new dispatchable and locally available power capacity. The utility of behind-the-meter power generation is growing as U.S. interconnection rates have slowed in recent years. The miles of transmission lines added per year would require a multiple-fold increase to meet the required average build rate to comply with DOE 2030 or 2035 targets, according to our estimates based on third-party reports.
In this environment, certainty and speed of power delivery are central to project success and help to shift power generation from a basic utility to a strategic asset. Behind-the-meter power solutions are increasing sharply in share and are becoming a permanent component of data center and industrial power architectures rather than a temporary bridge to grid connection. These behind-the-meter solutions directly address availability, reliability and performance requirements, while mitigating regulatory risk and preserving long-term optionality as grid conditions evolve. Together, these dynamics are driving sustained demand for distributed, fast-ramping and highly reliable gas-based solutions across our end markets.
As dispatchable generation becomes essential for reliability and firming, natural gas gains importance in the power mix due to its scalability, availability and flexibility. Growing gas-fired generation, expanding liquified natural gas (“LNG”) exports and higher utilization of existing pipeline infrastructure are increasing compression intensity across the value chain, particularly as maturing fields and higher throughput require more frequent and higher-performance compression. As a result, demand for efficient, reliable compression equipment and services is structurally supported by the same trends driving growth in data centers and distributed power generation.
Data Centers
Within the broader power market, data centers represent one of the fastest-growing and most power-intensive end markets. Power availability has emerged as a binding constraint on computation growth and AI advancement, directly limiting the pace at which large-scale compute capacity can be deployed. Power constraints are expected to become a key factor restricting data center operators from deploying capacity and expanding on AI training capabilities, stifling growth earlier and more acutely than other potential supply chain limitations such as chip production. For example, Epoch AI Analysis estimates that by 2030, the power demand implied by available computing chips could exceed available power generation capacity by approximately four to five times. In this environment, timely access to reliable, scalable power is becoming a decisive factor in determining how quickly more capable AI models can be trained and deployed and, ultimately, a critical determinant of who can remain competitive in the global development of advanced AI systems.
As AI-driven load growth accelerates, existing transmission and distribution networks, which have been severely underinvested for decades, are increasingly unable to absorb large, concentrated demand. Consequently, grid availability and time-to-power have become binding constraints in many regions. In response, the adoption of behind-the-meter power is growing significantly faster than overall data center capacity, with the penetration of behind-the-meter and hybrid solutions in new-build projects expected to expand from around 10-20% in 2025 to around 50-60% by 2030, according to the DOE Report and Oxcap Analytics, as operators prioritize supply certainty, deployment speed and insulation from grid constraints.
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As a result, we believe we are well positioned in the disproportionately fast-growing data center power end-market. Our focus on flexible, dispatchable, behind-the-meter gas power generation aligns with multiple, layered demand drivers: rapid growth in overall data center electricity consumption, a rising share of new capacity requiring dedicated prime power and an increasing preference for such prime power to be deployed on-site or in hybrid configurations. As these trends compound, the addressable market for modular, rapidly deployable, behind-the-meter solutions is expanding materially faster than data center power demand overall, which we believe allows us to benefit from growth on top of growth as power architectures evolve.
This structural shift is underpinned by accelerating legislative momentum supporting decentralized generation. This trend was pioneered in Europe by Ireland’s Commission for Regulation of Utilities (the “CRU”), which first required on-site generation for data centers in November 2021. This regulatory trajectory was further cemented by the CRU’s recent December 2025 decision, which reinforced and expanded mandates for dispatchable, on-site power to mitigate grid instability. This legislative pivot has also gained momentum in the United States, evidenced by the passage of Texas Senate Bill 6 and evolving guidance from the PJM Interconnection, a regional transmission organization in the United States, both of which establish frameworks to standardize and facilitate co-located loads. In particular, Texas Senate Bill 6 effectively requires large, new power consumers to bring their own firm power or accept the risk of being curtailed. As a result, behind-the-meter power has evolved from a temporary fix into a primary enabler of data center growth globally. This shift also makes gas-based backup solutions more appealing to our data center customers given they are used more often and run longer than our customers would typically expect, becoming more economical and more emissions compliant than diesel-based alternatives.
Data center operators face stringent requirements around reliability, availability, power quality and emissions performance, reflecting the continuous, latency-sensitive nature of AI workloads. Power systems must deliver fast start-up, strong transient response and stable voltage and frequency given that power performance directly impacts server utilization and overall economics. These requirements favor dispatchable, highly transient and power dense solutions that can operate reliably across variable load profiles, support both grid-connected and islanded operation and comply with increasingly stringent emissions standards.
According to S&P, hyperscalers’ capex expectations for 2028 have almost doubled over the last 12 months. While hyperscale campuses are often planned at gigawatt scale, they are typically executed in phased increments, reinforcing the need for modular power solutions that can be deployed rapidly, energized independently and expanded in line with staged compute rollouts. More than 90% of planned data center capacity additions relate to incremental building blocks of up to 200 MW, according to Datacenter Hawk and Datacenters Energy. This development model increases the value proposition of prefabricated, modular power blocks. These standardized units not only compress time-to-power and reduce execution risk but also provide significant operational flexibility, serving as the primary energy source during initial phases with the potential to transition into a permanent backup or peaking role once permanent grid infrastructure is established. Semianalysis has found that, when comparing different power nodes, larger power nodes per unit necessitate a greater redundancy overbuild. This highlights a key advantage of our 5 MW engines for data center campuses, especially when compared to larger power nodes such as 50 MW turbines.
We address these requirements with gas engine-based power solutions deployed in behind-the-meter and hybrid configurations. Our solutions support both primary and backup power applications and are well suited to phased campus development, high-availability architectures and sustained long-duration operation. As data center operators increasingly prioritize speed of deployment, reliability and independence from constrained grids, we believe our solutions directly align with the evolving power architecture of the data center end market.
Power Solutions
Power systems globally are facing accelerating demand growth alongside the tightening availability of firm, reliable energy supply. Electrification of transportation and heat, together with AI-related load growth, is increasing both absolute electricity demand and peak volatility, while coal retirements and rising renewable energy penetration are reducing firm capacity, system inertia and grid stability. Reserve margins have declined to 15-20% in some regions in the United States, underscoring the growing need for flexible, dispatchable generation to support peaking, firming, balancing and grid stability, according to NERC Reports, IEA Report and Company estimates. As power systems become more unpredictable and less stable, value is shifting away from baseload generation toward assets that can start quickly, cycle frequently, provide stability and operate reliably and efficiently under variable load conditions.
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Within this context, natural gas is gaining share in power generation as a reliable and scalable fuel, particularly within flexible gas capacity, which is growing materially faster than baseload gas generation due to the operational requirements of renewable-heavy systems. Even under decarbonization and net-zero transition pathways, dispatchable thermal capacity remains critical to complement intermittent renewables and storage, according to the IEA Forecast Report. Flexible gas-based power solutions are therefore expected to grow three to four times faster than other gas-fired capacity between 2025 and 2030, according to BloombergNEF.
Grid constraints, interconnection delays, congestion and multi-year grid modernization timelines are further accelerating the structural adoption of on-site, decentralized and microgrid-based power solutions, which are increasingly viewed as permanent components of future power architectures rather than temporary bridges to grid connection. Demand for power solutions is broad-based, spanning utilities and independent power producers (“IPPs”), commercial and industrial customers, combined heat and power (“CHP”) applications and off-grid and mobile use cases. CHP plays a central role in applications requiring reliable heat and power, particularly where renewable electricity alone cannot meet continuous or high-temperature heat requirements. At the same time, tightening emissions standards and decarbonization objectives are increasing demand for lower-emissions, fuel-flexible and hydrogen-ready solutions capable of supporting biogas, renewable gases and staged hydrogen adoption over time.
We are well positioned to address these market conditions through our portfolio of flexible, dispatchable gas engine-based power solutions. Our platforms are designed for fast start, frequent cycling, high part-load efficiency and reliable operation under variable load profiles, directly aligning with the technical requirements of peaking, balancing, firming and CHP applications in increasingly volatile power systems. Modular, multi-engine architectures enable scalable deployment across utility, microgrid, industrial and on-site configurations, while fuel flexibility and hydrogen-ready capability provide customers with a pathway to comply with tightening emissions standards over time. As a result, our solutions are structurally aligned with fast-growing segments of gas-fired capacity and decentralized power architectures globally.
Compression
The same megatrends driving growth in our data center and power solutions business lines, including accelerating electricity demand, tightening reliability requirements and increased reliance on dispatchable generation, are also strengthening the role of natural gas in the global energy system. As a reliable and scalable fuel supporting power generation, industrial demand and energy security, natural gas is seeing rising utilization across global infrastructure, reinforced by the rapid expansion of LNG trade, with U.S. LNG export volumes forecast to grow at approximately 12% per year through 2030 based on currently planned projects, according to Spears & Associates.
Beyond higher volumes, compression demand is supported by structural changes in production and transport. Maturing reservoirs, declining pressures, basin mix shifts toward lower-pressure regions and increasingly complex gathering and pipeline networks are driving higher compression intensity across existing infrastructure. At the same time, aging compression fleets and high utilization levels limit further sweating of assets, necessitating replacement, restaging and incremental additions of compression capacity. Electrification of compression remains constrained by grid availability, permitting timelines and power congestion, particularly in regions experiencing rapid data center-driven load growth, supporting continued reliance on engine-driven solutions.
We address this demand through gas compression solutions deployed across upstream and midstream applications. Our solutions support higher volume and increasing compression needs associated with LNG-linked flows and broader gas infrastructure utilization for power generation, residential and petrochemical end markets. Increased regulatory focus on methane and emissions may further support modernization and upgrade activity across compressor stations.
Our Competitive Strengths
Our position as a trusted global distributed energy platform providing mission-critical applications is underpinned by our distinctive gas engine portfolio, long-standing customer relationships, differentiated technology and a compounding service business model. Unlike nascent technologies with limited operational history, our reciprocating gas engines represent a commercially mature standard known for exceptional reliability and performance. This track record is evidenced by our large installed base of approximately 44 GW as of December 31,
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2025, validating our technology on a global scale. Our strengths differentiate us from our competitors and drive growth over time.
Proven Growth Platform Well Positioned to Provide Behind-the-Meter and Co-location Solutions to Data Centers
One of the most prevalent constraints on data center growth is the availability of power sources that can handle AI-driven workload requirements and that can operate in locations without grid connectivity. Our gas engines are ideally positioned for data center use given they address many of the technical challenges facing our customers across the data center ecosystem, especially delivering the power characteristics required for AI workloads. By streamlining the power architecture, our solutions reduce the need for costly auxiliary infrastructure, such as batteries or supercapacitors, thereby driving higher total capex efficiency. We offer behind-the-meter solutions underpinned by modularity and fast three-month deployment timeframe to reduce time-to-power and service campuses of all sizes.
Our high-speed engine platforms, anchored by the up to 5 MW Jenbacher Type 6, are engineered to deliver rapid start-up capabilities and superior part-load efficiency, making them suited to handle large load fluctuations. These engines achieve start-to-first-load in approximately 15 seconds for backup operation and can manage dynamic load swings of 25-40% without requiring extensive battery buffering, all while maintaining strict power quality tolerances, a key value requirement for AI training and inferencing data center workloads.
To accelerate deployment, customers use our engines in pre-engineered containerized solutions scaling up to approximately 25 MW per module. Our units deliver competitive power density with built-in redundancy and “plug-and-play” integration, significantly shortening project timelines and reducing risks associated with implementation. Our systems achieve high electrical efficiency (43-45%) with minimal degradation at partial loads, allowing for N+x configurations, which allow for flexibility and reliability even under partial failure conditions, with lower total redundancy capacity than competing technologies. Notably, our fast start capability enables these assets to serve dual roles: operating as reliable prime power while simultaneously preserving the optionality to switch to backup power or grid-support services in the future. While our engines are already deployed as backup solutions for grid-connected sites today, this flexibility allows customers to monetize unused backup capacity and adapt to evolving regulatory frameworks without compromising availability standards.
Our customer value proposition is characterized by accountability and efficiency. Our go-to-market model and service network have allowed us to streamline execution and maximize accountability with our customer base, including hyperscalers, colocation operators and data center developers. Furthermore, the strength of our customer relationships and service network have allowed us to quickly enhance our product capabilities to meet AI workloads across prime and backup power. Approximately 80% of our data center Equipment Order Backlog as of December 31, 2025 was associated with prime power applications, while the remaining 20% was associated with backup power applications.
Our annual data center Equipment Order Intake increased from $27 million as of December 31, 2023 to $2,282 million as of December 31, 2025 due to the strength of our solutions and quality of our platform. Our data center Equipment Order Intake continued growing through the first quarter and was $1,005 million as of March 31, 2026, compared to $309 million as of March 31, 2025. These orders have included some marquee wins, including our agreement for a multi gigawatt power plant for one of the largest data centers in the world, utilizing our high-efficiency gas engines as the core technology.
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Our behind-the-meter solutions provide a structural cost advantage over grid reliance. Depending on the specific regulatory jurisdiction, grid-related charges, including transmission, capacity and, where applicable, distribution, can alone be equal to the total variable cash operating costs of an on-site INNIO engine once the engine has been installed. This allows our technology to serve as a long-term power solution, rather than a temporary bridge during grid interconnection delays. The chart below illustrates key attributes that underpin our competitive advantage and drive customer adoption of our gas engine solutions over alternative power generation solutions.
Source: Company information and estimates based on third-party sources.
(1) Transient capability refers to the ability to rapidly change power output in response to sudden changes in load or grid conditions while maintaining stable operation.
(2) Part load efficiency is calculated as electrical output divided by fuel energy input at a defined load level. It is commonly assessed by comparing efficiency at 50%, 75% and 100% of rated load to evaluate how performance changes across the operating range.
Established Leadership Position in Gas Engines for Balancing, Firming, CHP and Specialty Gas Applications
Our success in decentralized power generation is rooted in a long-standing focus on gaseous-fuel engine technology and a deliberate concentration on stationary power generation. Unlike diversified engine manufacturers that also serve marine, transportation or off-highway markets, our solutions have been engineered specifically for gas-based power generation and CHP applications.
We distinguish ourselves through deep specialization in gaseous fuels, with engines optimized for natural gas, associated petroleum gas, coal mine gas, biogases, such as landfill and sewage gas, and industrial waste gases. Our engine portfolio spans outputs from 220 kW to 10.6 MW, enabling deployment across a broad range of balancing, firming, CHP and specialty gas applications. All relevant Jenbacher engine platforms are ready to run on 25% hydrogen, and our Type 4 engine is capable of operating on up to 100% hydrogen. Additionally, as of April 15, 2026, our 3 MW Jenbacher engines have been validated to run on 100% hydrogen. This achievement was validated using various AI load profiles and large, rapid load fluctuations to simulate real-world data center conditions, demonstrating that our 3 MW engine can meet the demanding response profiles required for critical data center operations while running on 100% hydrogen.
High start-stop capability, strong part-load efficiency and stable performance under frequent cycling make our engines well suited for balancing and firming applications, which are critically required in power systems facing increasing volatility from renewable penetration. In CHP and district heating applications, modular factory-tested heat exchanger configurations enable customer-specific temperature levels at high total efficiency.
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In addition, our engine platforms are designed to accommodate increasing shares of renewable and low-carbon fuels, including hydrogen blends, providing customers with future pathways toward low-carbon operation. This combination of gas specialization, power-focused engineering, operational flexibility and reliability underpins our established leadership position in flexible decentralized power generation.
Top Two Position in Gas Engine Driven Gas Compression with Leading Technology in Gas Compression Applications that have Significant Barriers to Entry
Gas compression applications require equipment that can withstand harsher fuel and ambient conditions compared to other engine applications. Our engines are designed to operate in constantly changing conditions. Our engines’ hardware and controls are extremely flexible to maximize uptime during fuel, load and ambient condition changes. Our rich burn combustion technology provides the widest operating window compared to other engines in the category. This provides customers with the flexibility to deploy our engines in compression applications without modification or adjustment. It also achieves extremely low emissions without requiring expensive and complex exhaust aftermarket treatment systems.
Our engines perform particularly well in high-intensity compression applications characterized by higher pressures and output per unit, making them well suited for evolving field developments where declining gas well counts are offset by increasing production volumes.
Our strategy also aims to minimize the number of service intervals required for the entire compression package. We work to align the maintenance requirements with the compressor by reducing the number of maintenance events needed to keep the equipment operating to promote operational efficiency. We have simplified the digital interface with our equipment to expedite troubleshooting and remote support needed to bring the equipment back to operating condition.
Additionally, our extensive network of distributors and packagers can support sophisticated planned and unplanned maintenance activities. The combination of application-specific design and service access enables our engines to positively influence our customers’ ability to meet their production goals at low operating cost.
Service Capture Enabled by Proprietary, High-Performance Parts and a Global Service Network Drives Highly Profitable Recurring Revenues
The stable operation and availability of our engines are critical to our customers’ operations, making service an essential and structurally defensible component of our business model. Our service offerings are not only reliable but also strengthen customer relationships, generate recurring multi-year Services revenue for us and deliver higher margins, helping mitigate the impact of economic cyclicality.
Our strong Equipment Order Intake continues to expand our active fleet of engines. With approximately 44 GW of installed base as of December 31, 2025, the fleet forms the foundation of a growing and highly visible service business. Given the mission-critical nature of our engines, customers are structurally incentivized to source parts and services directly from us as the original equipment manufacturer (“OEM”). Our Equipment Order Intake is centered around engines at the higher end of our power generation capability portfolio where proprietary components, engine specifications and integrated control systems may make it more expensive to switch providers, as even a single component failure or improper intervention can materially increase the total cost of an outage. As a result, service capture is driven by risk management and operational certainty on top of discretionary customer choice.
Our strong Equipment Order Intake provides Services revenue visibility well beyond 2030, as each newly installed engine enables a long-duration service relationship over its operating life. We deliver services both transactionally and through long-term service agreements (“LSAs”), which can extend to ten years or more, supporting recurring and predictable revenue streams.
To maintain seamless performance and maximize useful life, our engines require comprehensive overhauls at specific operating intervals. We leverage these requisite milestones to deploy next-generation technology upgrades, a process that revitalizes the customer’s asset while driving predictable, accretive revenue growth for our platform. For the majority of the engines in our portfolio, minor overhauls are typically due between 30,000 to 40,000 operating hours. At this stage, key components are exchanged at mid-life. Major overhauls occur after 60,000 to 80,000 operating hours, and significant upgrades to new specifications are made. These major overhauls give the engines
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performance upgrades plus second and third working lives, which could extend an engine’s life to over 40 years in some cases.
Our “local-for-local” strategy in direct, strategic markets such as the United States and Germany, enables us to deliver fast, reliable support where it matters most—close to our customers’ operations—and assists us with mitigating our potential exposure to tariffs. By leveraging regional service hubs and local expertise, we minimize downtime and ensure rapid response for products that are critical to our customers’ business continuity. This proximity-driven approach reinforces trust and positions us as a dependable partner in the markets we serve. This has been particularly true in the United States, where, as of March 31, 2026, we have more than doubled service headcount since 2024 to prepare for data center growth.
System Integration and Execution Capability
Our ability to deliver fully integrated, turnkey power systems sets us apart in the distributed energy market. Unlike providers that supply only engines, we offer complete solutions, including generation, controls, containerization and grid interface, designed to meet the most demanding operational requirements. By maintaining our own distribution channels, we achieve superior customer intimacy and a localized presence, enabling us to provide tailored solutions that align with customer requirements. Our execution capabilities extend beyond product delivery. We operate effectively in complex and multi-vendor environments, facilitating seamless integration across diverse project stakeholders. By providing accountability from initial design and engineering through commissioning and lifecycle service, we simplify project management for our customers and reduce execution risk.
This integrated approach shortens time-to-power, a critical advantage for customers operating under tight delivery timelines, such as data centers and industrial facilities facing urgent capacity needs. Our track record in delivering projects on schedule and within scope reinforces our reputation as a trusted partner for mission-critical applications.
We complement these capabilities with a robust network of long-term supply chain and channel partners, enabling reliability and scalability across global markets. This ecosystem enables us to maintain quality standards, accelerate deployment and support customers throughout the asset lifecycle.
Global Manufacturing and Distribution Footprint
We serve our customers through an integrated global footprint spanning approximately seven million square feet of land for manufacturing spaces across North America and Europe, with global direct and indirect coverage across approximately 100 countries, supported by an internal service team of over 1,600 specialists as of March 31, 2026.
Our production capabilities are anchored by major manufacturing hubs on both sides of the Atlantic. In Europe, our Jenbach, Austria campus serves as a fully integrated center of excellence, housing our primary R&D, customer engineering and gas engine manufacturing operations. This hub is supported by specialized component and machining facilities in Hall and Kapfenberg, Austria.
In North America, our facilities in Welland, Ontario; Waukesha, Wisconsin and Waller, Texas serve as key regional hubs. Crucially, our Trenton, New Jersey facility operates as a dedicated containerization center specifically optimized for our data center business line. Recent investments in our North American footprint underscore our commitment to a “local-for-local” strategy, enhancing our in-region maintenance, component manufacturing and assembly capabilities to reduce lead times and mitigate supply chain and tariff risks.
This level of integration enables us to serve customers across the full asset lifecycle: from initial sale to recurring maintenance and replacement. This comprehensive approach deepens customer intimacy and positions us to capture significant upselling opportunities over time. Furthermore, between 2020 and 2025, we strategically expanded our value chain by acquiring the businesses and assets of six distributors or system integrators and a white-label service provider. These acquisitions have allowed us to internalize critical sales and distribution capabilities and more effectively serve our global customer base.
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Established Track Record of Innovation
Our track record of innovation reflects more than 100 years of sustained investment and strategic focus, spanning power density, efficiency, fuel technology, solution modularity and digital capabilities. In recent years, this innovation has increasingly been directed toward the specific requirements of data center applications, where power quality, transient performance and rapid load-following are critical to the reliable operation of AI-driven computing infrastructure.
Most recently, we introduced the latest generation of the Jenbacher Type 6 engine, incorporating a set of design innovations specifically targeted at improving power quality, transient response and deployment speed under the highly dynamic load conditions typical for modern data center applications. These include (i) an optimized generator module that improves frequency stability during rapid load changes, (ii) a decentralized gas addition that enhances fuel availability during block load events and materially reduces frequency and voltage deviations and (iii) turbocharging optimized for transient operation to support fast AI-driven load ramps. Within the Type 6 engine, a large-bore, 24-cylinder engine architecture further increases power density, delivering up to approximately 5 MW of peak power per unit while maintaining strong transient behavior. Together, these features reduce reliance on external inertia and battery systems, increase power density per genset (which combine engine and alternator together with controls) (“genset”), and lower overall system footprint, capex and complexity. These engine-level innovations are complemented by expanded, containerized solutions tailored for data center deployments, enabling aggregation of units, rapid installation, accelerated time-to-power and compliance with increasingly stringent emissions standards through proprietary in-house exhaust aftertreatment solutions.
As pioneers in alternative gaseous fuel technology, we are recognized as a leading provider of gas engines for renewables (e.g., biogas, landfill gas and sewage gas) and specialty gases (e.g., industrial waste, pyrolysis and coal mine gases). Our leadership, spanning decades, is reflected in our comprehensive portfolio. By 2020, our Jenbacher Type 4 platform demonstrated the capability to operate on up to 100% hydrogen, and as of 2022, all Jenbacher products were ready for hydrogen blends of up to 25% by volume. This offers customers the flexibility to decarbonize as supply chains for low-carbon molecules mature.
We continue to invest in extending our technological leadership. Since 2024, we have increased annual R&D expense by over 15% in 2025, focusing on emissions performance, fuel flexibility, electrical efficiency, power density and ramp rates. In parallel, we have developed digital solutions for the energy technology sector. As of March 31, 2026, our workforce included over 450 employees with R&D capabilities and we hold 1,132 issued patents, reinforcing that innovation remains central to both our heritage and our long-term growth strategy.
Digital Leadership Through myplant and Proprietary AI Enhance Both Our Customer Value Proposition and Operations
Our digital ecosystem enhances the reliability, performance and lifecycle economics of our equipment and services. At its core is myplant, our proprietary, AI-enabled fleet management platform. The platform uses high-frequency operational data to enable predictive maintenance, remote diagnostics, automated optimization and fleet-level analytics, improving asset availability and allowing a significant share of service events to be resolved remotely.
Myplant is built on machine-learning, AI, and digital-twin technologies and is integrated into our internal service processes. This strengthens service attachment, supports performance commitments, improves resource utilization and enables scalable growth with limited incremental cost. Our proprietary digital approach enables us to maintain control over the development of our solutions, reinforcing long-term customer relationships and creating a defensible competitive moat.
By separately embedding AI across corporate functions, including operations, sales, engineering, service, HR, IT and legal, we aim to improve productivity, optimize resource allocation and strengthen margins.
Our Growth Strategies
We believe our strengths and competitive position enable us to capitalize on the evolving market opportunity, differentiate us from our competitors and drive highly profitable growth over time.
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Order intake and revenue trends demonstrate our strong exposure to structurally high-growth segments of the global power generation market, reflecting our established positioning and leading technology in flexible, modular, gas-based power solutions.
We are particularly well placed to capture accelerating demand in behind-the-meter data center applications, notably in North America, where our solutions align closely with customer requirements for speed of deployment, reliability and dispatchability. The resulting step-up in Equipment Order Intake is materially expanding the installed base and is expected to translate into a sustained increase in Services revenues over the coming years, as reflected in the long-term revenue mix. In parallel, we are executing a disciplined, self-funded capacity expansion and advancing product innovation, partnerships and may conduct selective M&A to support continued growth and reinforce our leadership across these attractive end markets.
Capitalize on Data Center–Driven Power Demand and Energy Transition Tailwinds with Differentiated Gas Engine Solutions
We are positioned at the intersection of two powerful global trends: accelerating AI adoption and the global energy transition. All three of our Equipment business lines, data centers, power solutions and compression, benefit directly from surging data center power demand, driven by AI workloads. Our data center solutions are well positioned given our established behind-the-meter and co-location offerings. We are investing in our capacity, sales, distribution and R&D to scale these solutions through standardized, pre-engineered power blocks that can be deployed rapidly and replicated across campuses and geographies.
In parallel, rising renewable penetration and the accelerated retirement of coal‑fired capacity are structurally increasing the need for flexible, dispatchable generation to support peaking, firming, balancing and overall grid stability. As dispatchable generation becomes increasingly essential for reliability, we believe natural gas is set to play a larger role in the power mix due to its scalability, availability and flexibility, which in turn accelerates demand for our compression solutions.
Our predominantly direct go-to-market strategy enhances our ability to engage regularly with customers and adapt our offering to their requirements. Our strong position and competitive advantage in the markets in which we operate is validated by a robust and growing Equipment Order Backlog, supported by a 2.8x Equipment Order Intake book-to-bill ratio and an approximately 16 times increase in data center Equipment Order Intake from 2020 to 2025. We recently partnered with an energy-as-a-service (“EaaS”) provider to deploy 2.3 GW of advanced power-infrastructure solutions. With AI adoption and build-up of supporting infrastructure, our runway for future growth becomes stronger.
Sizable and Growing Installed Base Initiates “Service Flywheel,” Driving Resilient Growth and Profitability
The step-change in installed base that we expect in the coming years will accelerate the long-term growth of our Services segment. As our fleet expands, we are positioned to capture recurring parts and service revenues over the full lifecycle of each engine. Our Services revenue is derived from sales of parts and labor, where, as of December 31, 2025, parts represent around 85% of our Services revenue and labor represents around 15% of our Services revenue, based on management’s estimates on calculations in Euros. As a result, a substantial portion of lifecycle value is driven by parts, which are frequently proprietary and therefore naturally exhibit high OEM capture rates, particularly in high-growth applications such as data centers where reliability is paramount. To support incremental future growth, we expect to selectively expand our direct access to the labor value pool through a combination of targeted acquisitions and organic capability build-out, consistent with our historical approach. In parallel, we strive to continue strengthening customer compliance with our standard maintenance schedule and articulating the value proposition of OEM parts, reinforcing service capture across the installed base.
This structurally high service capture rate provides revenue visibility extending well beyond 2030, as a strong Equipment Order Intake expands the future service opportunity set. Equipment Order Intake has increased by 188% from 2024 to 2025, reinforcing the growth trajectory of the installed base. As the fleet grows and matures, these dynamics create a self-reinforcing service flywheel: incremental equipment deployments expand the installed base, the proprietary nature of parts and LSAs drive recurring aftermarket activity and deep customer relationships support incremental future equipment sales.
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The impact of this flywheel is evident in our recent financial performance, including Services revenue growth of 15% between 2023 and 2025, and Services revenue growth for seven consecutive years as of December 31, 2025. Together, these dynamics position us to sustain long-term value creation through continued investment in innovation, operational excellence and market expansion.
Execute on Our Self-Funded Global Manufacturing Capacity Expansion
In response to accelerating demand for our Equipment and Services segments, we are executing a series of self-funded manufacturing capacity expansion initiatives, with a particular focus on capturing U.S. data center demand. In 2025, our annual capital expenditures represented 6.5% of revenue, with the majority allocated to growth initiatives and funded from operating cash flow. A significant portion of recent and planned growth capital expenditures are directed towards North America, reflecting the strength of U.S. data center demand and our strategic focus on local manufacturing and execution.
Investments such as our Trenton, New Jersey facility are designed to expand containerization capabilities that are supporting data center deployments in the U.S. market. Across our manufacturing network, our current investment plan is expected to provide us with sufficient headroom and flexibility to deliver our growth plan and capture incremental market opportunities. The flexibility of our supply chain and long-standing supplier relationships further enable efficient scaling with controlled execution risk.
Our ability to bring incremental capacity online is supported by a proven execution track record, including the recent opening of our second facility in Hall, Austria. Building on this foundation, we are continuing to expand capacity, with our current plans designed to significantly increase MW output, targeting approximately a tripling of our total capacity. These plans include a near-term, elevated investment phase, where we expect spending to temporarily rise meaningfully as we accelerate build-out, followed by a return to our historical, normalized investment cadence once the additional capacity is in place.
Commercialize New Products and Solutions to Meet Evolving End Market Needs
Our ability to commercialize new products and solutions is underpinned by a long-standing engineering track record across gas engine technology, controls and system integration. This includes a series of category-defining milestones such as leadership in cogeneration, development of large-bore high-speed and high-efficiency engine platforms, advances in fast start and transient-capable designs, early innovation in alternative and hydrogen-ready gaseous fuels and the introduction of digital engine management and asset performance solutions.
This innovation capability is shaped through close collaboration and co-creation with key customers, technology partners and system integrators, ensuring new technologies are engineered for operational relevance, rapid deployment and scalability from inception. Innovations are industrialized into standardized platforms that can be deployed repeatedly across end markets rather than developed as one-off solutions.
Importantly, this long-term innovation capability is not episodic but platform-based, allowing new technologies to be consistently translated into commercially relevant products and solutions. The same engineering depth that enabled historical milestones now underpins recent innovations targeted at data centers, power solutions and compression, supporting advances in transient performance, power quality, power density, containerized deployment, digital optimization and hydrogen readiness as end-market requirements continue to evolve.
Pursue Targeted Partnerships and Selective M&A Opportunities
We regularly assess partnership and inorganic growth opportunities that expand our addressable market, accelerate adoption of low-carbon solutions and deepen our presence in high-growth verticals such as data centers, industrial microgrids and critical infrastructure. Our track record of leveraging partnerships to drive growth include our recent containerization project with Gföllner to address growing U.S. data center demand, our long-standing partnership with ExxonMobil and Q8 for developing specialized lubricants that extend oil life and reduce operators’ costs and our acquisition of numerous distributors and systems integrators that have enhanced our go-to-market strategy and service coverage.
We continue to evaluate strategic partnerships and selective acquisitions that will enhance our product portfolio, accelerate hydrogen or renewable natural gas capabilities, expand service intensity or provide access to
13
high-growth segments. We plan to prioritize accretive opportunities that strengthen our technology roadmap and production capabilities.
Our Principal Shareholder
AI Alpine (Luxembourg) S.à r.l., our “Principal Shareholder,” is co-owned by funds managed and/or advised by Advent and ADIA. Please see “ Principal and Selling Shareholders ” for more information.
Advent . Funds managed and/or advised by Advent initially acquired an interest in INNIO in 2018. Advent is a leading global private equity investor committed to working in partnership with management teams, entrepreneurs and founders to help transform businesses. With 16 offices across five continents, Advent oversees more than $100 billion in assets under management as of December 31, 2025 and has made more than 430 investments across 44 countries. Since its founding in 1984, Advent has developed specialist market expertise across its five core sectors: business & financial services, consumer, healthcare, industrial and technology. This approach is bolstered by Advent’s deep sub-sector knowledge, which informs every aspect of its investment strategy, from sourcing opportunities to working in partnership with management to execute value creation plans. Advent brings hands-on operational expertise to enhance and accelerate businesses. As one of the largest privately owned partnerships, its over 600 colleagues leverage the full ecosystem of Advent’s global resources, including its Portfolio Support Group, insights provided by industry expert Operating Partners and Operations Advisors, as well as bespoke tools to support and guide its portfolio companies as they seek to achieve their strategic goals.
ADIA. The ADIA shareholder is a wholly owned subsidiary of ADIA. ADIA is a globally diversified investment institution that prudently invests funds on behalf of the Government of Abu Dhabi through a strategy focused on long-term value creation. ADIA’s portfolio comprises more than two dozen asset classes and subcategories, from equities and fixed income to hedge funds, real estate, private equity and infrastructure.
Risk Factors Summary
Our business is subject to numerous risks and uncertainties, including those highlighted in the section titled “ Risk Factors ” immediately following this prospectus summary. If any of these risks actually occurs, our business, financial condition or results of operations could be materially and adversely affected. In such case, the trading price of our common shares would likely decline, and you may lose all or part of your investment. The following is a summary of the principal risks we face:
• We operate in a highly competitive environment, and competing solutions for distributed energy include renewables such as solar, wind and storage, reciprocating engines, fuel cells and other engines or turbines, any or all of which might be perceived as superior to our technology;
• Our business and operations expose us to numerous legal and regulatory requirements, and any actual or alleged violation of these requirements could materially adversely affect our business, results of operations, and financial condition;
• Future legislation and regulation governing internet-related services, other related communications services information technologies and critical infrastructure, such as data centers, could disrupt our customers’ businesses and markets, resulting in declines in sales volume and prices of our products;
• Our operations are expanding rapidly, and we may fail to effectively manage our anticipated growth and expansion of our operations. Our rapid growth and expansion have required and will continue to require significant capital expenditures and valuable management and employee resources;
• We may not be able to successfully implement our strategies; in particular, we may fail to successfully benefit from the disruptive trends in global energy markets (such as the shift to hydrogen as an alternative fuel) and to increase the share of our Services business;
• We rely on the continued growth of our customers’ data center networks to grow our business, operations and revenue;
14
• Our Services business, which is a key contributor to our success and competitiveness, may not generate the revenue and profitability we expect;
• Our products involve a lengthy sales cycle, and we may not anticipate sales levels appropriately;
• Our business depends on the timely availability of high-quality raw materials, parts, components and other inputs at reasonable prices. We are currently facing, and may continue to face, delays, shortages and price volatility as a result of global supply chain disruptions and other factors;
• We are engineering our systems to be able to run on 100% hydrogen and other eFuels, or electricity-based synthetic fuels. However, if we are unsuccessful or if there is an insufficient supply of, or demand for, hydrogen or other synthetic fuels, our sales growth could be adversely affected;
• A substantial portion of our revenue is driven by a limited number of our customers;
• We currently rely on a limited number of suppliers for certain parts and equipment to build our products, and we may not be able to find replacements or immediately transition to alternative suppliers;
• We are increasingly exposed to large-scale projects;
• Amounts included in our backlog may not result in actual revenue or translate into profits. Our backlog is subject to cancellation and unexpected adjustments and is, therefore, an uncertain indicator of future operating results;
• Our business requires access to significant credit and guarantee lines and other financing instruments. Our business activities could be negatively affected if we are unable to meet our capital requirements in the future or if access to capital becomes more expensive;
• We may fail to comply with environmental, social and governance (“ESG”) market expectations;
• Our operations are subject to various environmental, health and safety laws and regulations, and potential litigation, non-compliance with, or liabilities under, such laws and regulations could result in substantial costs, fines, sanctions, claims, additional regulatory oversight, suspension of operations and reputational harm;
• We are subject to the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd1, et seq.) (“FCPA”) and similar anti‑corruption laws and regulations. Our global operations and interactions with government officials, state‑owned entities, and third‑parties create compliance risks;
• We may be unable to adequately obtain, maintain, protect or enforce our intellectual property rights;
• Our Principal Shareholder will continue to own a significant percentage of our common shares upon the closing of this offering, and our Principal Shareholder will have certain governance rights upon the closing of this offering. Consequently, our Principal Shareholder will have significant influence on, and may control, all major corporate decisions and their interests may conflict with your interests as an owner of our common shares and our interests;
• We are a “controlled company” within the meaning of the Nasdaq rules and, as a result, will qualify for, and may rely on, exemptions from certain corporate governance requirements;
• We have identified material weaknesses in our internal control over financial reporting and may identify additional material weaknesses in the future or fail to maintain an effective system of internal control over financial reporting, which may result in material misstatements of our consolidated financial statements or cause us to fail to meet our periodic reporting obligations; and
• Upon the closing of this offering, we will be a Dutch public company. The rights of our shareholders may be different from the rights of shareholders in companies governed by the laws of U.S. jurisdictions and may not protect investors in a similar fashion afforded by incorporation in a U.S. jurisdiction.
15
Our Risk Factors are not guarantees that no such conditions exist as of the date of this prospectus and should not be interpreted as an affirmative statement that such risks or conditions have not materialized, in whole or in part.
Organizational History
We historically conducted our business through INNIO Group Holding GmbH, an Austrian limited liability company ( Gesellschaft mit beschränkter Haftung ), which was established on April 19, 2018 and became operational on November 1, 2018 after we were carved out of GE. For the years ended December 31, 2023 and 2024, our audited consolidated financial statements were those of INNIO Group Holding GmbH.
On September 26, 2025, we completed an income tax-free corporate restructuring to facilitate an initial public offering and establish a holding company structure. On September 1, 2025, our Principal Shareholder, the parent company of INNIO Group Holding GmbH, established a two-tier German holding structure with two German entities: INNIO Holding GmbH and INNIO Beteiligungs GmbH. As a result, INNIO Group Holding GmbH became an indirect wholly owned subsidiary of INNIO Holding GmbH, with INNIO Beteiligungs GmbH established between the two entities.
For the year ended December 31, 2025, our audited consolidated financial statements were those of INNIO Holding GmbH. Our beneficial ownership remained the same during this corporate reorganization. This corporate restructuring was accounted for as a transaction under common control and reflected prospectively from the date of transfer. For further details on this reorganization, including the relevant accounting treatment, see note 1 to our audited consolidated financial statements included elsewhere in this prospectus.
Prior to the closing of this offering, INNIO Holding GmbH will be converted from a German limited liability company ( Gesellschaft mit beschränkter Haftung ), into INNIO Group Holding B.V., a Dutch private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ) and then converted into a public company under Dutch law ( naamloze vennootschap ) and our legal name will change to INNIO N.V. We refer to these steps as the “Reorganization.”
16
The following diagram illustrates our corporate structure immediately following the Reorganization and the consummation of this offering (assuming no exercise of the underwriters' option to purchase additional common shares from the selling shareholder):
Corporate Information
INNIO Holding GmbH is the issuer of the common shares offered by this prospectus, and prior to the closing of this offering, we will be converted into INNIO Group Holding B.V., a Dutch private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ) and then into a public company under Dutch law ( naamloze vennootschap ) and our legal name will change to INNIO N.V. as described above. Our principal executive offices are located at Nymphenburger Strasse 5, 80335 Munich, Federal Republic of Germany. Our telephone number is +49.89.89.82.7221. Our website is https://www.innio.com. Information contained on, or that can be accessed through, our website is not a part of, and is not incorporated into, this prospectus, and the inclusion of our website address in this prospectus is an inactive textual reference only.
We use INNIO, the INNIO logo, and other marks as trademarks in the United States and other countries. This prospectus contains references to our trademarks and service marks and to those belonging to other entities. Solely for convenience, trademarks and trade names referred to in this prospectus, including logos, artwork, and other visual displays, may appear without the ® or symbols, but such references are not intended to indicate in any way that we will not assert, to the fullest extent under applicable law, our rights or the rights of the applicable licensor to these trademarks and trade names. We do not intend our use or display of other entities’ trade names, trademarks, or service marks to imply a relationship with, or an endorsement or sponsorship of, any other entity.
Channels for Disclosure of Information
Investors, the media, and others should note that, following the effectiveness of the registration statement of which this prospectus forms a part, we intend to announce material information to the public through filings with the SEC, the investor relations page on our website, press releases, public conference calls and webcasts.
The information disclosed by the foregoing channels could be deemed to be material information. As such, we encourage investors, the media and others to follow the channels listed above and to review the information disclosed through such channels. However, information disclosed through these channels does not constitute part of this prospectus and is not incorporated by reference herein.
17
We intend to post any updates to the list of disclosure channels through which we will announce information on the investor relations page on our website.
18
THE O FFERING
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Common shares offered by the selling shareholder
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75,000,000 common shares.
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Underwriters’ over-allotment option to purchase additional common shares from the selling shareholder
|
11,250,000 common shares.
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Common shares to be outstanding immediately after completion of this offering
|
750,000,000 common shares.
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Use of proceeds
|
We will not receive any proceeds from the sale of common shares by the selling shareholder in this offering (including any common shares sold pursuant to the underwriters’ option to purchase additional shares to cover over-allotments).
The principal purposes of this offering are to create a public market for our common shares, facilitate future access to the public equity markets and to increase our visibility in the marketplace.
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Risk factors
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See the section titled “ Risk Factors ” beginning on page 26 and the other information included in this prospectus for a discussion of factors you should carefully consider before deciding to invest in our common shares.
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Controlled Company
|
Following this offering, we will be a “controlled company” within the meaning of the corporate governance rules of Nasdaq. For additional information, see the section titled “ Management—Controlled Company .”
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Dividend policy
|
We do not currently intend to pay any cash dividends on our common shares in the foreseeable future. We currently intend to retain all available funds and any future earnings to fund the further development and expansion of our business. However, we expect to reevaluate our dividend policy on a regular basis following the offering and may, subject to compliance with the covenants contained in our SFA (as defined in “ Management’s Discussion and Analysis of Financial Condition and Results of Operations — Liquidity and Capital Resources—Senior Facilities Agreement ”) and other considerations, determine to pay dividends in the future.
Upon the completion of the Reorganization, under Dutch law, we may only pay dividends and other distributions from our reserves to the extent our shareholders’ equity ( eigen vermogen ) exceeds the sum of our paid-in and called-up share capital plus the reserves we must maintain under Dutch law or our articles of association and (if it concerns a distribution of profits) after adoption of our statutory annual accounts by our general meeting from which it appears that such dividend distribution is allowed. Subject to those restrictions, any future determination to pay dividends or other distributions from our reserves will be at the discretion of our board of directors and will depend upon a number of factors, including our results of operations, financial condition, future prospects, contractual restrictions, restrictions imposed by applicable law and other factors we deem relevant. See “ Dividend Policy .”
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Proposed trading symbol
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“INIO”
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19
Following completion of the Reorganization, we will have 750,000,000 common shares outstanding, which excludes:
• 11,250,000 common shares reserved for future issuance under our 2026 Plan, which will become effective in connection with the consummation of this offering, as well as any common shares that become available pursuant to provisions in the 2026 Plan that automatically increase the share reserve under the 2026 Plan (which number includes 1,721,978 common shares subject to restricted share unit awards that will be granted to certain of our employees and directors pursuant to our 2026 Plan in connection with the consummation of this offering, based upon an assumed initial public offering price of $25.50 per share (the midpoint of the price range set forth on the cover page of this prospectus)).
For additional information, see the section titled “ Compensation Discussion and Analysis—Equity-Based Compensation .”
Except as otherwise indicated, all information in this prospectus assumes or gives effect to the following:
• the completion of the Reorganization, as further described under the section titled “ Corporate Reorganization ;”
• an initial public offering price of $25.50 per common share, which is the midpoint of the price range set forth on the cover page of this prospectus; and
• no exercise of the underwriters’ option to purchase additional common shares.
20
SUMM ARY HISTORICAL CONSOLIDATED FINANCIAL AND OTHER DATA
The following tables set forth summary consolidated financial and other data as of March 31, 2026 and 2025, and for the years ended December 31, 2025, 2024 and 2023. The consolidated statements of operations and condensed cash flows data for the three months ended March 31, 2026 and 2025, and the condensed consolidated statement of financial position data as of March 31, 2026, are derived from the unaudited consolidated financial statements and related notes included elsewhere in this prospectus. The consolidated statements of operations and condensed cash flows data for the years ended December 31, 2025, 2024 and 2023 are derived from the audited consolidated financial statements and related notes included elsewhere in this prospectus.
You should read this data together with the consolidated financial statements and related notes appearing elsewhere in this prospectus and the information in the section titled “ Management’s Discussion and Analysis of Financial Condition and Results of Operations .” Our historical results are not necessarily indicative of our future results. The summary consolidated financial data in this section are not intended to replace, and are qualified in their entirety by, the consolidated financial statements and related notes included elsewhere in this prospectus.
Consolidated Statements of Operations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months Ended
March 31,
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|
For the Years Ended
December 31,
|
($ in millions, except share and per share amounts)
|
2026
|
|
2025
|
|
2025
|
|
2024
|
|
2023
|
Sales of equipment and products
|
$
|
322.4
|
|
$
|
210.2
|
|
$
|
1,365.4
|
|
$
|
935.5
|
|
$
|
909.7
|
Sales of services
|
|
346.2
|
|
|
283.8
|
|
|
1,271.4
|
|
|
1,223.6
|
|
|
1,105.3
|
Net sales
|
|
668.6
|
|
|
494.0
|
|
|
2,636.8
|
|
|
2,159.1
|
|
|
2,015.0
|
Cost of equipment and products sold
|
|
240.8
|
|
|
146.5
|
|
|
994.5
|
|
|
691.1
|
|
|
692.0
|
Cost of services sold
|
|
194.0
|
|
|
158.1
|
|
|
730.5
|
|
|
696.6
|
|
|
649.6
|
Gross profit
|
|
233.8
|
|
|
189.4
|
|
|
911.8
|
|
|
771.4
|
|
|
673.4
|
Selling, general, and administrative expenses
|
|
143.0
|
|
|
97.0
|
|
|
467.1
|
|
|
390.1
|
|
|
351.0
|
Research and development expenses
|
|
28.9
|
|
|
19.3
|
|
|
103.5
|
|
|
89.7
|
|
|
83.7
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Other operating (income) expense - net
|
|
(1.2)
|
|
|
(1.8)
|
|
|
(5.3)
|
|
|
(6.2)
|
|
|
—–
|
Operating income
|
|
63.1
|
|
|
74.9
|
|
|
346.5
|
|
|
297.8
|
|
|
238.7
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Interest expense and related financing costs - net
|
|
70.8
|
|
|
28.5
|
|
|
163.6
|
|
|
192.3
|
|
|
133.9
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Other (income) expense - net
|
|
(3.2)
|
|
|
(0.6)
|
|
|
(1.3)
|
|
|
(0.5)
|
|
|
(4.0)
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Income before income taxes
|
|
(4.5)
|
|
|
47.0
|
|
|
184.2
|
|
|
106.0
|
|
|
108.8
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Income tax expense
|
|
4.5
|
|
|
12.0
|
|
|
42.4
|
|
|
14.0
|
|
|
30.1
|
Net income
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$
|
(9.0)
|
|
$
|
35.0
|
|
$
|
141.8
|
|
$
|
92.0
|
|
$
|
78.7
|
Net income (loss) attributable to non-controlling interests (1)
|
|
(1.8)
|
|
|
—–
|
|
|
(2.5)
|
|
|
—–
|
|
|
—–
|
Net income (loss) attributable to INNIO Holding GmbH shareholder (1)
|
$
|
(7.2)
|
|
$
|
35.0
|
|
$
|
144.3
|
|
$
|
92.0
|
|
$
|
78.7
|
Earnings per share attributable to INNIO Holding GmbH shareholder (“EPS”), basic and diluted (1)(2)
|
$
|
(288.3)
|
|
$
|
1,401.3
|
|
$
|
5,772.5
|
|
$
|
3,678.0
|
|
$
|
3,148.0
|
Weighted average number of common shares outstanding used in computing earnings per share attributable to INNIO Holding GmbH shareholder, basic and diluted (1)(2)
|
|
25,000
|
|
|
25,000
|
|
|
25,000
|
|
|
25,000
|
|
|
25,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pro forma EPS (unaudited):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pro forma EPS giving effect to the planned Reorganization, basic and diluted (2)(3)
|
$
|
(0.01)
|
|
$
|
0.05
|
|
$
|
0.19
|
|
$
|
0.12
|
|
$
|
0.10
|
Pro forma weighted average number of common shares outstanding used in computing EPS giving effect to the planned Reorganization, basic and diluted (2)(3)
|
|
750,000,000
|
|
|
750,000,000
|
|
|
750,000,000
|
|
|
750,000,000
|
|
|
750,000,000
|
Pro forma data - giving effect to the capital repayment adjustment and the Reorganization (2)(3)(4)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pro forma EPS, basic and diluted
|
$
|
(0.01)
|
|
$
|
—–
|
|
$
|
0.19
|
|
$
|
—–
|
|
$
|
—–
|
Pro forma weighted average number of common shares outstanding used in computing EPS, basic and diluted
|
|
772,725,034
|
|
|
—–
|
|
|
772,725,034
|
|
|
—–
|
|
|
—–
|
(1) On September 1, 2025, we were incorporated with 25,000 shares that were assumed by our Principal Shareholder as part of our corporate reorganization in September 2025. All share and per share information presented has been retrospectively adjusted to reflect the new capital structure. Prior to the corporate reorganization in September 2025, as a private limited liability company, INNIO Group Holding GmbH had only one shareholder whose ownership interest was represented by a monetary share capital amount and no shares. See note 23 to our consolidated financial statements included elsewhere in this prospectus.
(2) There were no potentially dilutive securities in calculating earnings per share for the periods presented, therefore, basic and diluted earnings per share are the same. See note 23 to our consolidated financial statements included elsewhere in this prospectus.
21
(3) In connection with the Reorganization, immediately upon conversion of INNIO Holding GmbH into INNIO Group Holding B.V., INNIO Group Holding B.V. will issue 749,975,000 new common shares to reach a total of 750,000,000 common shares outstanding immediately after the completion of this offering. For more information, see “ Corporate Reorganization .”
(4) In the year preceding this offering, we distributed $723.8 million as capital repayment to our Principal Shareholder which exceeded our net income for the year by $579.5 million. As such, the pro forma earnings per share for the year ended December 31, 2025 and for the three months ended March 31, 2026 give effect to the pro forma adjustments to the number of shares that would be required to generate the proceeds necessary to fund the amount by which the capital repayment exceeded earnings for the year ended December 31, 2025. The computation is based on an offering price of $25.50 per share, which is the midpoint of the price range set forth on the cover page of this prospectus, resulting in incremental shares totaling 22,725,034.
This pro forma adjustment relates only to the capital repayment described in this footnote and does not give separate effect to the September 2025 corporate reorganization described in footnote (1), which is already reflected through a retrospective adjustment of the historical share and per share information presented above. This pro forma adjustment does reflect the number of common shares to be outstanding upon the completion of this offering following the Reorganization described in footnote (3) above.
Condensed Consolidated Statements of Cash Flows:
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
March 31,
|
|
Year Ended
December 31,
|
($ in millions)
|
2026
|
|
2025
|
|
2025
|
|
2024
|
|
2023
|
Net cash provided by operating activities
|
$
|
189.0
|
|
$
|
24.1
|
|
$
|
547.9
|
|
$
|
392.0
|
|
$
|
149.3
|
Net cash used for investing activities
|
|
(51.4)
|
|
|
(25.5)
|
|
|
(168.3)
|
|
|
(87.8)
|
|
|
(112.4)
|
Net cash used for financing activities
|
$
|
19.8
|
|
$
|
41.2
|
|
$
|
(86.8)
|
|
$
|
(209.4)
|
|
$
|
(29.0)
|
Condensed Consolidated Statement of Financial Position:
|
|
|
($ in millions)
|
As of March 31, 2026
|
Cash and cash equivalents
|
$
|
841.2
|
Total Assets
|
|
5,290.1
|
Long-term debt - net
|
|
2,621.1
|
Total liabilities
|
|
5,053.9
|
Total shareholders’ equity
|
$
|
236.2
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Key Operating Metrics and Non-GAAP Financial Measures
We review a number of operating and financial metrics, including the following key metrics and non-GAAP financial measures to evaluate our business, measure our performance, identify trends affecting our business, formulate business plans, and make strategic decisions. See the section titled “ Management’s Discussion and Analysis of Financial Condition and Results of Operations—Non-GAAP Financial Measures ” for a description of Adjusted EBITDA, Adjusted EBITDA Margin and Cash Conversion and reconciliations of such non-GAAP financial measures to their directly comparable financial measures calculated in accordance with GAAP. The following table sets forth Adjusted EBITDA, Adjusted EBITDA Margin and Cash Conversion, which we use to evaluate our business, for the three months ended March 31, 2026 and 2025, and for the years ended December 31, 2025, 2024 and 2023:
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Three Months Ended
March 31,
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Year Ended
December 31,
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($ in millions, other than percentages)
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2026
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2025
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2025
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2024
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2023
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Non-GAAP Financial Measures
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Adjusted EBITDA (1)
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$
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122.5
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$
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114.0
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$
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549.0
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$
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459.9
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$
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401.1
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Adjusted EBITDA Margin (1)
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18.3
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%
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23.1
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%
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20.8
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%
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21.3
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%
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19.9
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%
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Cash Conversion (1)
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57.9
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%
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76.4
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%
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68.8
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%
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81.2
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%
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80.5
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%
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(1) We define Adjusted EBITDA as net income as adjusted for (i) income tax expense, (ii) interest and other financial charges - net, (iii) other non-operating (income)/expense - net, (iv) depreciation and amortization, (v) other non-cash items, (vi) public market readiness costs, (vii) transformation costs, (viii) transaction costs and (ix) acquisition and divestment related gains and losses. We define Adjusted EBITDA Margin as Adjusted EBITDA divided by revenue.
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We define Cash Conversion as Adjusted EBITDA less capital expenditures divided by Adjusted EBITDA. Capital expenditures are the sum of the additions to property, plant and equipment and additions to intangible assets over a given period.
The following table reconciles Adjusted EBITDA, Adjusted EBITDA Margin and Cash Conversion from the most directly comparable GAAP metric, net income, for the periods presented:
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Three Months Ended
March 31,
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Year Ended
December 31,
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($ in millions, other than percentages)
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2026
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2025
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2025
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2024
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2023
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Net Income
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$
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(9.0)
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$
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35.0
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$
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141.8
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$
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92.0
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$
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78.7
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Income tax expense
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4.5
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12.0
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42.4
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14.0
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30.1
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Interest expense and related financing
costs - net
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70.8
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28.5
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163.6
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192.3
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133.9
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Other (income) expense - net
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(3.2)
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(0.5)
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(1.3)
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(0.5)
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(4.0)
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Depreciation and amortization
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38.2
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35.1
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153.5
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145.6
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132.7
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Other non-cash items (a)
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3.5
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1.6
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9.9
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8.6
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8.3
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Public market readiness costs (b)
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9.9
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—–
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12.0
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—–
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—–
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Transformation costs (c)
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3.5
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2.6
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12.9
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8.6
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4.8
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Transaction costs (d)
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4.1
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—–
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11.4
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0.5
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12.0
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Acquisition and divestment related gains (e)
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(0.3)
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(0.6)
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(0.6)
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(3.3)
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—–
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Acquisition and divestment related losses (e)
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0.5
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0.3
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3.3
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2.1
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4.6
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Adjusted EBITDA
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$
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122.5
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$
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114.0
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$
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549.0
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$
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459.9
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$
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401.1
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Adjusted EBITDA Margin
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18.3
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%
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23.1
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%
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20.8
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%
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21.3
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%
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19.9
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%
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Additions to property, plant, and equipment
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(47.6)
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(22.7)
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(151.0)
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(68.3)
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(64.0)
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Additions to intangible assets
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(4.0)
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(4.2)
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(20.2)
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(18.3)
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(14.2)
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Capital expenditures
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(51.6)
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(26.9)
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(171.2)
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(86.6)
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(78.2)
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Cash Conversion
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57.9
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%
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76.4
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%
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68.8
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%
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81.2
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%
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80.5
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%
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(a) Other non-cash items include amortization expenses of capitalized costs to obtain contracts.
(b) Public market readiness costs include costs incurred transitioning our financial statements into U.S. GAAP and implementing SOX-compliant internal controls and processes and organization required for a public company.
(c) Transformation costs include costs in a given year incurred in relation to significant operational change initiatives and the ramp up of supply chain capacity. This includes the ramp up of our business transformation efforts to support our capacity expansion initiatives to strengthen internal manufacturing and supply chain foundations, supported by dedicated third-party expertise to accelerate the capacity uplift. Costs also include those associated with streamlining management structures, processes and operational performance.
(d) Transaction costs include legal and professional fees related to our legal reorganization, as described in “— Organizational History ,” and adapting our financing structure and costs related to the July 2023 investment by Luxinva into INNIO.
(e) Acquisition and divestment related gains and losses incurred in connection with planned and completed acquisitions, including legal and professional fees. Contingent consideration arrangements (earn-outs) relate to specific acquisitions.
We use Equipment Order Intake, Equipment Order Backlog, Installed Base and Power Delivered as key performance indicators (“KPIs”) to assess the performance of our business and believe that these KPIs provide useful information to both management and investors by showing the growth of our business across the periods presented. Our management uses these KPIs to evaluate our business strategies and to facilitate operating
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performance comparisons from period to period. The following table shows our Equipment Order Intake, Equipment Order Backlog, Installed Base and Power Delivered for or as of the periods presented.
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Three Months Ended
March 31,
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For or as of the
Year Ended December 31,
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($ in millions, other than gigawatts)
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2026
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2025
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2025
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2024
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2023
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Equipment Order Intake (1)
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$
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1,617.5
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$
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652.8
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$
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3,884.0
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$
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1,349.6
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$
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910.3
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Equipment Order Backlog (2)
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$
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4,780.7
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$
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1,400.5
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$
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3,599.3
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$
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994.1
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$
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650.1
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Installed Base (3)
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—–
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—–
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44 GW
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42 GW
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41 GW
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Power Delivered (4)
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0.7 GW
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0.5 GW
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3.4 GW
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2.5 GW
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2.5 GW
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(1) We define Equipment Order Intake as the booking of a new sales order for our Equipment segment within a given year when specific criteria are met, including a signed contract, defined scope, fixed price, delivery schedule, and fully defined terms and conditions. The order must have a low probability of cancellation, all necessary approvals and risk reviews completed, and any required down payment (if any) received. Equipment Order Intake is measured over a given period.
(2) We define Equipment Order Backlog as Equipment Order Intake that has not yet been fulfilled towards the customer. Normal book-to-bill cycle for the Equipment segment is 3-12 months; however, this can range up to three years, depending on how far ahead customers place orders and/or the availability of production slots for specific end use or product configuration. Equipment Order Backlog is measured as of the end of a given period.
(3) We define Installed Base as all active Jenbacher and Waukesha engines with their corresponding power output, measured in gigawatts (GW). Active is defined as operationally available for the customer without implying any operational running profile. Active excludes all inactive engines (i.e. engines on stock or not yet commissioned, engines decommissioned) and all engines owned or controlled by customers for whom the provision of services is restricted or prohibited where we are unable to deliver the full service scope. Installed Base is measured as of the end of a given year. We report Installed Base on an annual basis.
(4) We define Power Delivered as the aggregate electrical power output (MW) of engines/gensets for which revenue has been recognized in the relevant period. Specifically, Power Delivered is calculated as the sum across all delivered units of the nameplate electrical output (MW) of each engine/genset multiplied by the respective quantity recognized. For our compression business line, Power Delivered is calculated by converting horsepower output into megawatts. Power Delivered is measured over a given period.
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RIS K FACTORS
Investing in our common shares involves a high degree of risk. Before making an investment decision, you should carefully consider the risks and uncertainties described below, together with all of the other information in this prospectus, including the section titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our consolidated financial statements and related notes thereto included elsewhere in this prospectus. Our business, results of operations, financial condition, or prospects could also be harmed by risks and uncertainties not currently known to us or that we currently do not believe are material. If any of the risks actually occur, our business, results of operations, financial condition, and prospects could be adversely affected. In that event, the market price of our common shares could decline, and you could lose part or all of your investment. The risks and uncertainties described below are not guarantees that no such conditions exist as of the date of this prospectus and should not be interpreted as an affirmative statement that such risks or conditions have not materialized, in whole or in part.
Risks Related to Our Industry
The distributed power generation and gas compression markets are highly competitive. Competing solutions for distributed energy include renewables such as solar, wind and storage, reciprocating engines, fuel cells and other engines or turbines, any or all of which might be perceived as superior to our technology, for economic, ecological or other reasons.
We manufacture reciprocating, fuel-flexible engines that provide energy solutions and services for power generation and compression at or near the point of use (distributed power generation). Our business operations encompass the production and sale of gas engines for the conversion of gaseous input fuels, including renewable, industrial waste and hydrogen-rich gases into mechanical, electrical and thermal energy, along with services such as spare parts, maintenance and repair, as well as digital solutions.
The worldwide markets for energy solutions, power systems and related services are highly competitive. Factors such as pricing, product and service quality, product development and launch time, power output, lead times (the time between order placement and delivery), power density (power output per square foot of land area), modularity, scalability, environmental regulations and requirements, permitting processes, incentivization schemes, customer relations, financing conditions, supplier capacity, consolidation of our competitors, delivery times, opportunity for electrical grid expansion and the ability to adapt quickly to changing market demands each have a key role to play in our highly competitive market environment. We face strong, existing competitors and rising new competitors from established markets, where many competitors have developed their offerings locally and are now expanding globally, who may offer more advanced products or solutions or have a more affordable cost structure. We also face competition as new technologies develop, such as small modular nuclear reactors and fuel cells. If the demand for our offerings decreased as a result of a weaker market position, we could experience increases in inventory of finished or work-in-progress goods or unexpected price erosion.
Within our addressable market, we face competition from technologies that can also provide onsite power as well as competition from a wide variety of distributed generation sources that can allow businesses to self-generate a portion of their energy demand and utilities or IPPs to provide energy to their end customers. The most direct competition to our solutions is other manufacturers of fuel-flexible (reciprocating) or diesel engines and energy solutions, such as turbines, and services for power generation and regional rental businesses that own and operate a fleet of diesel or gas-fueled reciprocating engines and turbines. The OEM equipment providers of these engines are typically large, well-established companies that benefit from global scale, cost advantages, high-volume manufacturing, strong supplier relationships, large customer bases and extensive service networks. If these competitors shift significant production or commercial focus toward gas-capable engines, we could experience price competition, which could negatively affect our market share, overall business and results of operations. Competing rental companies in partnership with large engine OEM providers also have extensive manufacturing, field service and financial resources that create intense competition in the form of large available supply capacity and highly competitive pricing.
In addition, renewable energy such as solar and wind power may decrease demand for our energy solutions and power systems due to a faster than expected transition towards renewables and decarbonization. For example, the European power generation market is transitioning to flexible grid-balance and peak-reducing applications from
25
continuous baseload operations due to the expansion of wind and solar power, which could reduce our engines’ anticipated annual operating hours. Fewer operating hours could result in reduced Services revenue, including decreased parts consumption and fewer maintenance events and overhauls. Additionally, while natural gas is well suited to serve as a bridge technology if renewables expand, the adoption of energy storage technology paired with intermittent renewables could emerge as a viable and proven baseload solution in the future and could thus become direct competition to our energy solutions and power systems.
Any inability to compete effectively against our competitors or achieve satisfactory prices in negotiations with customers could have a material adverse effect on our business, financial position and results of operations.
Adverse changes of certain external economic factors may materially and adversely affect our business, financial position and results of operations.
If the macroeconomic conditions of the economies in which we operate deteriorate, our business may be materially and adversely affected. For example, an actual or expected deterioration of macroeconomic conditions could lead to our customers modifying, delaying or, in rare instances, canceling plans to purchase our products, solutions and services, or they may fail to follow through on purchases or contracts already executed. For the same reasons, the prices that are achievable for our products, solutions and services may decline. In addition, it may become more difficult for our customers to obtain financing, including project financing and securities, or customers could request to move agreed payment dates, which could negatively impact our financial position. Additionally, region-specific macroeconomic factors, such as local gross domestic product growth rates, inflation, currency exchange rate fluctuations, taxation policies and the quality of infrastructure, could affect our customers’ purchasing power, operating costs and investment decisions, which could negatively impact our business.
The availability and terms of financing for our customers, including, in particular, interest rates for such financing are impacted by macroeconomic and other market conditions. As a result, large projects may become increasingly difficult to finance and subject to stricter requirements. For example, in 2022, as a result of the sharp rise in gas prices immediately following the beginning of the conflict between Russia and Ukraine, European governments began increasing subsidies, causing gas prices to fall. However, due to the structure of the government subsidies, electricity prices did not immediately decrease alongside gas prices, creating customer reluctance to make new investments, which decreased our order intake for equipment sales compared to the previous year.
Additionally, persistent high energy prices in the markets in which we operate may have an adverse impact on our business. There is a risk that certain sectors of our customer base could experience financial distress due to persistent high energy prices, leading to potential defaults on contractual obligations, or may choose to relocate their operations to other geographies with more favorable economic or regulatory conditions. Unforeseen and persistent high energy prices could decrease demand for our products, solutions or services and could affect the markets in which we operate and competitive position, which could materially impact our business, financial position and results of operations. For more information concerning macroeconomic conditions related to AI, see “ —We rely on the continued growth of our customers’ data center networks to grow our business, operations and revenue, and any decreases in demand for these networks could lead to a decrease in our product offerings ” and “ —Uncertainties with respect to the development and use of AI in our business, products, and solutions may result in harm to our business and reputation. ”
A deterioration of macroeconomic conditions, including an adverse development of financing conditions and reduced credit support for our customers, could lead to reduced demand for our offerings or reduced engine operating hours, which could have a material adverse effect on our business, financial position and results of operations.
Changes in tariffs, international trade policies or new trade barriers may have a material adverse effect on our business, financial position and results of operations.
Our operations are exposed to international trade policies, tariff regimes and related protectionist measures that may materially affect our cost structure and competitiveness. Changes in the political and economic framework due to trade wars, tariffs, sanctions, protectionist measures, among other things, could increase our input costs, decrease our ability to source key components, increase the risk of project fulfillment, decrease our ability to predict upcoming projects and reduce our margins.
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The United States imposed a series of tariffs, including on steel and aluminum imports, beginning in early 2025, on a wide range of trading partners, including the European Union (“EU”), Canada and Mexico, who historically benefited from treaties that provided for beneficial treatment when selling goods into the United States. The announcement of these tariffs in February 2025 resulted in an incredibly volatile market environment, leading to the implementation and subsequent partial suspension of the tariffs in April 2025, which partially eased the volatility. The suspension of some of the tariffs was lifted in August 2025, and there can be no assurance that similar tariffs will not be implemented in the future, which could have a material adverse effect on our business and results of operations. Additionally, in the United States, tariffs on steel and aluminum have subsequently been expanded. For example, since August 2025, our equipment has been subject to tariffs of up to 200%, corresponding with a proportion of aluminum and steel imported into the United States. The calculation of aluminum and steel tariffs applied to our equipment is difficult to assess under the current United States tariff framework, and the continued expansion of these tariffs could have a material adverse effect on our cost structure, business and results of operations. There can be no assurance that such market volatility and other negative effects in the United States and globally will not continue as the result of such significant changes in trade policies and tariffs.
Additionally, the ongoing economic conflict between the United States and China and the geopolitical tensions between China and Taiwan may result in restrictions on the export of certain goods from China to the United States and other countries. This could impact the availability of specific rare earth minerals, elements and metals and other products and production capacity in our supply chain, which could hinder our ability to manufacture certain engine parts, necessitate production at substantially higher costs, lead to legal uncertainty and delay order processing.
While we employ a “local-for-local” strategy, where we produce and source our equipment and services within the markets where we operate, to alleviate the impact of trade wars, tariffs, sanctions, customs, protectionist measures or other similar macroeconomic impacts on our equipment and services costs, due to increasing global price competition, there is no assurance that we will be able to pass increased costs through to customers, sustain historical pricing, or maintain contractual leverage with existing and prospective customers.
Prolonged trade disputes, trade barriers and broader geopolitical tensions may exacerbate these risks by triggering policy volatility, heightened enforcement of trade measures, and supply chain interruptions affecting critical components and raw materials. Such developments could contribute to financial market instability, commodity and energy price volatility, including potential energy market instability illustrated by elevated gas and electricity prices, short-term substitution toward coal or diesel, and restrictions on the availability of inputs necessary to operate our equipment. Any material escalation in tariffs or other adverse trade policy actions, or the realization of significant related political developments, could have a material adverse effect on our business, financial condition and results of operations.
Political instability or international conflicts may have a negative effect on our business, financial position and results of operations.
Our business prospects and the execution of projects awarded to us may be negatively affected by political instability or international conflicts. For example, we may be forced to reorganize, reduce or terminate business operations in geographical areas where our employees, partners, suppliers or subcontractors would otherwise be subject to unacceptable economic or personal risks due to situations such as ongoing or threatened civil unrest, terrorist attacks or military conflicts or otherwise unfavorable circumstances that would make it difficult to operate in such regions. Some of our current and planned projects and service activities are in regions that are exposed to a higher risk in this respect, including in many emerging markets such as in Pakistan, Bangladesh, Lebanon, Ukraine and other countries, which are subject to unpredictable changes in policies and regulations. Furthermore, changes in the political and economic framework due to boycotts or economic weakness of economies or industries, among other things, could negatively affect our business by increasing the costs of our inputs, decreasing our ability to source key components, increasing the risk of project fulfillment, decreasing our ability to predict upcoming projects and reducing our margins.
We employ a local-for-local strategy to mitigate the impact of boycotts or other similar macroeconomic impacts on our cost base. Due to global price competition, there can be no assurance that we can continue to pass these costs through to end markets nor that we can continue to maintain our contractual leverage with existing and potential customers. The long-term effects of trade wars, international conflicts and geopolitical tensions could lead to political and social instability, instability in financial markets, significant market and other disruptions, including a restructuring of the global energy market with increasing energy prices, particularly with respect to gas and electricity,
27
a short-term shift towards coal and diesel due to customer fears of gas shortages and restrictions on supply chain inputs needed to operate our equipment. The realization of any significant adverse political development could have a material adverse effect on our business, financial position and results of operations.
The spread between gas and electricity prices and the predictability of electricity prices could result in reduced demand for our equipment and services, which could negatively affect our profitability.
The economic benefits of our equipment and services to our customers depend on both the price of gas available from the local gas utilities and the cost of electricity available from alternative sources, including local electric utility companies. Historically, increases in gas prices have led to corresponding increases in electricity prices. However, if the relationship between gas and electricity prices weakens or deteriorates, our customers may face challenges in offsetting higher gas costs through elevated electricity pricing. For example, in 2021, due to government intervention in European gas markets in response to rising gas prices, the relationship between gas prices and electricity prices weakened, reducing the demand for our customers’ products and, therefore, our equipment used to support those products. Should this decoupling occur again, it could reduce demand for our gas engines or negatively impact our Services segment, resulting in a material adverse impact on our business, financial position and results of operations. Furthermore, actual or perceived potential increases in gas prices or other fuels or restrictions on their availability, whether due to physical constraints or unfavorable regulatory conditions affecting delivery or production of natural gas or other fuels, could render our equipment less economically appealing to potential customers, thereby reducing demand for our equipment and services.
Additionally, our customers’ decisions to purchase our equipment and services are significantly influenced by the price of our equipment and services, the price predictability of electricity generated by our equipment in comparison to the retail price, and the future price outlook of electricity from the local utility grid and other energy sources. These prices are subject to change and may affect the demand for our equipment and services. Factors that could influence these prices and are beyond our control include the impact of energy conservation initiatives that reduce electricity consumption; construction of additional power generation plants (including renewables, storage, nuclear, coal or natural gas); technological developments by others in the electric power industry; the imposition of interconnection, “departing load,” “standby,” power factor charges, greenhouse gas emissions charges, or other charges by local electric utility or regulatory authorities; and changes in the rates offered by local electric utilities and/or in the applicability or amounts of charges and other fees imposed or incentives granted by such utilities on customers. In addition, even with available subsidies for our equipment, in those areas where the current cost of grid electricity is low, including in some states in the United States, and some European and Asian countries, our equipment and services may not be economically attractive.
Any significant adverse change to the spread between electricity and gas prices, and to the predictability of electricity prices, could reduce customers’ demand for our equipment and services, which could have a material adverse impact on our business, financial position and results of operations.
Volatile oil and gas prices, long-term low demand for oil and gas or increasing alternative uses of byproduct, or flared, gas could result in reduced demand for certain of our offerings which could negatively affect our profitability.
Demand for certain of our products, services and solutions is affected by prices and demand for oil and gas. Since oil and gas prices are set on a commodity basis, spot market and futures market prices and their volatility, as well as storage capacities, impact the business activities of our customers from relevant industries and their investment behavior. Historically, prices for crude oil, refined products, natural gas and petrochemical products have fluctuated widely in response to changes in many factors over which we do not and will not have control and which are difficult to predict. For example, the price of crude oil has experienced significant volatility in recent years, with the price per barrel of West Texas Intermediate crude rising from a low of $35 in October 2020, due in part to reduced global demand stemming from the global COVID-19 pandemic, before surging to over $120 a barrel in early March 2022, following Russia’s invasion of Ukraine, and returning to a low of $58 in May 2025. Further volatility in the prices for oil and natural gas may occur due to heightened levels of uncertainty related to geopolitical issues such as Russia’s ongoing invasion of Ukraine and sanctions related thereto, the ongoing conflicts in the Middle East, and political, economic and social instability in Venezuela. Most recently, oil price volatility continued in early 2026 as a result of the ongoing conflict between the United States, Iran and Israel. The expansion of these hostilities has introduced further uncertainty into the global energy markets, which may lead to increased costs and delays in the near term.
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Additionally, the production rates of gas could decline due to resource depletion in mature fields, reduced exploration investments, stricter environmental regulations, lower customer demand due to increased competition with renewables, geopolitical instability, technical challenges in accessing new reserves, uneconomical market conditions, aging infrastructure, climate change initiatives and disruptions from natural disasters, which could limit the availability of fuel used to power our engines, affecting demand for our gas engines and other products across our customers’ industries. For more information, see “ —The spread between gas and electricity prices and the predictability of electricity prices could result in reduced demand for our equipment and services, which could negatively affect our profitability. ”
In the event of long-term volatile oil and gas prices or when such prices are expected to be low for a longer period in the future, our customers whose activities in the oil and gas industry primarily depend on profitability may postpone investments, affecting demand for our distributed power packages in the oil and gas industry and, in the event of low gas prices, rendering our gas use efficiency less relevant to our customers. Conversely, long-term high prices for oil and gas could cause an overall economic recession, which could lead to a change in customer behavior as a result of cost-saving measures or force us to adapt our pricing strategies.
Customers also use our engines to utilize the abundant associated gas that is otherwise flared as primary input fuel for our engines. Annual flaring in the upstream oil and gas industry has increased in recent years as oil production, and associated gas generated by oil production, outstrips the ability to build adequate midstream gas infrastructure to collect, process and transport associated gas to commercial markets. However, should the substantial upfront investment be made to expand midstream gas infrastructure and in effect provide a greater outlet for the associated gas, our customers could decide to transport and sell the petroleum gas on commercial markets, which in turn could reduce the demand for our engines and negatively affect our sales. This could have a material adverse effect on our business, results of operations and financial condition.
Any significant adverse developments in oil and gas markets, including sustained volatility and long-term low demand, could reduce customers’ demand for our products and services, which could have a material adverse impact on our business, financial position and results of operations.
Future legislation and regulation governing internet-related services, other related communications services information technologies and critical infrastructure, such as data centers, could disrupt our customers’ businesses and markets, resulting in declines in sales volume and prices of our products, which would have an adverse effect on our business operations and performance.
Various laws and governmental regulations governing internet-related services, related communications services, information technologies (“IT”) and the construction and location of data centers, and other critical infrastructure, both in the United States and internationally, remain largely unsettled, even in areas where there has been some legislative action. It is likely there will be further laws and regulations forthcoming in the United States and other countries where our customers operate in the areas of cybersecurity, data privacy and data security, AI intelligence and critical infrastructure construction, permitting and energy consumption, any of which could impact us and our customers. Additionally, current and future laws and regulations relating to the construction and location of data centers could have an adverse effect on our business, as we are dependent on development of significant land areas within the data center business line. New laws may be introduced that may impact our clients, and that may be retrospective, in relation to environmental, land use and development regulations, which could result in a decline in our sales volume. For example, certain state and local jurisdictions in the United States have or are considering enacting restrictions or moratoria on data center development in response to public opposition, and many local jurisdictions require discretionary approvals which could prohibit, restrict or condition data center development. Any significant curtailment on the development of data centers could adversely affect our business operations and financial performance. Future legislation and regulation could impose additional costs on our business, disrupt our customers’ businesses and markets and/or require us to make changes in our operations, which could adversely affect our operations and performance.
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Some of our customers currently benefit from government incentive programs, such as the availability of rebates, tax credits and other financial programs and incentives, and changes to such benefits could cause our revenue to decline and harm our financial results.
Certain of our customers benefit from government policies that support large scale renewable energy, energy efficiency or grid stability and enhance the economic feasibility of such projects and businesses in regions in which we operate. In a number of countries, notably in the EU, governments provide incentives, such as tax incentives, renewable portfolio standards or feed-in-tariffs, that support or are designed to support the sale of energy from large scale renewable energy facilities, cogeneration or flexible power plants. As a result of budgetary constraints, political factors or otherwise, governments from time to time may review such laws and policies and take actions that would be less conducive to the development, operation and manufacture of renewable energy equipment, cogeneration or flexible power plants. Any reductions or the elimination of governmental incentives or policies that support the utilization of our technology, such as the removal or reduction of tax incentives or the imposition of additional taxes or other assessments, could result in reduced demand for our equipment and services. Relatedly, a broad decline in public support or a rollback of policy support could adversely impact our business and results of operations.
In Europe, our customers, and indirectly our business, have benefited from a number of government-sponsored programs, incentives and initiatives related to renewable energy. For example, Germany extended their renewable energy law in 2025, which will expire in 2029, aimed at incentivizing flexible power generation with biogas, allowing our customers to benefit from biogas subsidy schemes, which we believe has increased their ability to purchase from us. There can be no assurance that these subsidy schemes will remain in effect in their present form or at all, and the elimination, reduction or modification of these regulations could materially harm our business and results of operations.
International, national, and state governments and agencies continue to evaluate and promulgate legislation and regulations that are focused on reducing greenhouse gas emissions. Caps or fees on carbon emissions have been and may continue to be established, and the cost of such caps or fees could disproportionately affect the fossil fuel sectors. While such legislation and regulations could boost demand for our equipment and services that contribute to the reduction of greenhouse gas emissions, compliance with greenhouse gas emission legislation and regulations applicable to our or our customers’ operations may have significant implications that could adversely affect our business and results of operations.
Risks Related to Our Business
Our operations are expanding rapidly, and we may fail to effectively manage our anticipated growth and expansion of our operations. Our rapid growth and expansion have required and will continue to require significant capital expenditures and valuable management and employee resources.
We have experienced, and expect to continue to experience, rapid growth regarding the scope and nature of our business and operations in a short timeframe, notably in the United States where there is an increasingly high demand for AI capabilities, data centers and strong prime and behind-the-meter power capabilities. Our ability to manage our operations and future growth will require us to continue to improve our operational, financial and management controls, compliance programs, reporting system, licensing and permitting processes and hiring system. We may not be able to implement improvements in an efficient or timely manner and may discover deficiencies in existing controls, programs, systems and procedures, which could have an adverse effect on our business, reputation and financial results. These improvements may require significant capital expenditures and management resources, and we cannot ensure that monetary and human resources expended to manage growth will yield financial returns. For example, we are expanding capacities across engine assembly, component manufacturing and containerization, including increasing the utilization of our Waukesha, Wisconsin and Welland, Ontario facilities to support regional production and delivery, as well as our containerization project in Trenton, New Jersey and the addition of new dedicated sites in Texas. Improving and expanding these facilities has required and may continue to require substantial investments in machinery and production, increased research into and contractual obligations with qualified suppliers for equipment parts and other critical components and greater hiring, onboarding and training of employees across manufacturing, quality, supply chain, compliance and support functions. If such improvements or investments are not implemented successfully, our ability to manage potential growth could be impaired and any impairment may require
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additional expenditures. Additionally, rapid growth in our business may place a strain on our human and capital resources, increasing potential labor shortages and workforce attrition.
Our diversified, global operations have increased, and may continue to increase, demands on our resources as we expand and may continue to require us to substantially expand the capabilities of our administrative and operational resources and to attract, train, manage and retain qualified management, technical experts, engineers, mechanics, field service technicians, sales and other personnel, particularly in the United States. Notably, our rapid capacity expansion in Trenton, New Jersey and Waukesha, Wisconsin exposes us to heightened ramp up and fulfillment risks, including the risk of a mismatch between the speed of our production ramp and the delivery timelines we have committed to in customer contracts. If the ramp up of our equipment, facilities, hiring, onboarding and training progresses more slowly than planned, we may be unable to deliver engines at the volumes and dates reflected in our backlog and prior sales commitments. As of March 31, 2026, approximately 62% of our Equipment Order Intake was generated from data centers, which heightens the potential impact of any ramp up slippage on our backlog concentration. This could lead to re-sequencing of orders, delays, cost overruns, liquidated damages or other contractual penalties, renegotiations or cancellations and reputational harm, particularly for some of our large data center customers to whom our contracts provide favorable terms, such as penalties we owe for any delivery delays, equipment non-conformance and equipment failures, some of which could be substantial if there were to be significant delays or issues with deliveries. Short-term mitigation through alternative manufacturing sites is inherently limited and depends on the availability of appropriate equipment, test capacity and shift models at those locations, and there can be no assurance that such mitigation would offset near-term shortfalls. While we may be able to supplement capacity at existing facilities in Europe subject to the availability of certain equipment, tooling and test stands and only after specific upgrades expected no earlier than 2028, any such measures would likely require extended lead times and higher costs.
Further, due to increasing demand, particularly from our data center customers, if we are asked to expedite the production of our engines, we may not always be able to conduct complete or adequate quality assurance testing or field validation of our equipment. As we continue to grow our equipment sales, the chance of quality defects or design flaws could increase.
Certain of our global installed engines may have operational lifetimes exceeding 20 years, as they may have undergone an overhaul or repair that extends the life of the engine, and may change ownership during this period. As a result, comprehensive operational data and service history may not be available consistently across our global installed base, making the accuracy of information regarding components installed during initial production or replaced during servicing hard to determine. This inability to trace these engines and parts makes it difficult to forecast the exact service requirements needed or anticipate the condition of certain engines prior to onsite maintenance, which can lead to increased engine downtime and added costs to maintain such engines by requiring additional parts or servicing, and we may lose customers if we are not able to sufficiently service their engines in a timely or cost effective manner. If we fail to align the pace of our capacity ramp up with customer commitments, our growth and financial results could be adversely affected. Any of the foregoing could have a material adverse effect on our business, financial position and results of operation.
We may not be able to successfully implement our strategies; in particular, we may fail to successfully benefit from the disruptive trends in global energy markets (such as the shift to hydrogen as an alternative fuel) and increase the share of our Services business.
Our future operational performance and financial position depend to a significant degree on the success of the strategic and operational measures we plan to implement or are currently implementing. We aim to benefit from the disruptive trends in global energy markets, namely decarbonization, decentralization and digitalization. Building on our role as a key enabler and an integral part of the broader energy transition, we are committed to leading the deployment of hydrogen- and electroFuel- (“eFuel”) engines, which may help facilitate the acceleration and transformation from fossil fuels to renewable energy sources. However, we may be unable to capitalize on the industry shift to hydrogen as an alternative fuel due to a potentially limited and costly hydrogen supply, evolving regulatory regimes, intensified competition from alternative low‑carbon solutions and other customer adoption barriers. Digital solutions, one aspect of our Services segment, are needed to help improve availability and efficiency, reduce costs over an asset’s service life, and optimize performance and profitability remotely. To benefit from the ongoing digitalization trend, we plan to expand and enhance our myplant digital solution and tech support to provide further digital control to our customers allowing them to further optimize the performance of their processes. We aim to
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expand our myplant offerings to monitoring-as-a-service and energy-as-a-service customers, and we aim to expand our AI capabilities to our engine fleet. While we intend to focus our R&D spending on products and solutions that we expect to offer a competitive advantage, there can be no guarantee that our R&D spending will help us increase our market share or benefit from the current trends in global energy markets to deliver the targeted economic returns.
As our order intake for Equipment increases, we anticipate that there will be a corresponding increase in the need for servicing the equipment, including through installation and commissioning, long-term maintenance, minor and major overhauls, spare parts and digital solutions, through our Services segment. Our Services segment allows us to generate recurring, multi-year revenue and drive higher overall margins than our products business. Should we fail to increase the order intake or should the correlation between order intake and equipment services weaken, we may fail to achieve our profitability improvement targets. If customers were to reduce operating hours of our energy solutions and power systems, for example, due to a faster than expected transition towards renewables, or our installed base of engines decreases, demand for our service offering may be reduced. In addition, we may face more competition in our Services business as digital technologies and additive manufacturing continue to allow competitors to service our installed base at a competitive cost or price level. For more information, see “— Our Services business, which is a key contributor to our success and competitiveness, may not generate the revenue and profitability we expect. ”
Our performance depends on the successful implementation of such measures, and the assumptions underlying our business planning could prove to be incorrect or may need to be revised in the future. If we are unable to successfully implement our strategies, our business prospects, financial condition and results of operation may be negatively affected.
We rely on the continued growth of our customers’ data center networks to grow our business, operations and revenue, and any decreases in demand for these networks could lead to a decrease in our product offerings.
A substantial portion of our business depends on the continued growth of our current and potential customers’ data center networks. As of March 31, 2026, approximately 62% of our Equipment Order Intake was generated from data centers. If these networks do not continue to grow, whether as a result of changes in the economy, regulatory environment, capital spending, building capacity in excess of demand, energy demand in excess of supply, inability to obtain, or delays in receiving, required permits and approvals, public opposition, or for any other reason, overall demand could decrease for our product offerings, which would have a material adverse effect on our business, results of operations and financial condition.
Further, our data center customers tend to be larger companies, such as communication network, cloud/hyperscale and colocation data center providers, which generally have greater purchasing power than smaller entities. Accordingly, these customers often have enhanced leverage that allows them to require more favorable terms and conditions in their contracts with us. In addition, these customers may impose substantial penalties for any product or service failures caused by us or the failure by us to timely deliver products ordered by those customers. As we seek to sell more products to such customers, we may be required to agree to such terms and conditions more frequently, which may include terms that affect the timing of our cash flows and ability to recognize revenue, and could have an adverse effect on our business, results of operations and financial condition.
As our data center business line continues to grow, we may not successfully execute our data center growth strategy as it depends on various factors, some of which are outside our control. Our data center growth strategy includes sustaining reliability, improving our operational efficiency and operating margins and continuing to develop production capacity to meet the increasing demand from customers as we anticipate growth in electricity demand from data center customers. The development of the data center industry is also supported by the rapid demand for local data centers, driven by increased cloud-based services and strong government support in data center infrastructure development, digital transformation and the rise of AI. Our ability to capitalize on the data center-driven power demand and energy transition tailwinds and growth in our installed base depends on our ability to execute our self-funded global manufacturing capacity expansion, commercialize new products and solutions and pursue targeted partnerships and selective M&A opportunities. The development of the data center industry also depends on demand for local data centers and cloud-based services as well as government support in data center infrastructure development. If environmental permits continue to allow diesel to be used for backup power solutions, the adoption rate of gas powered backup solutions may progress more slowly or come to a halt. Furthermore, data center customers have historically shown a preference for connections to the grid. If grid capacity grows unexpectedly, demand for our equipment, particularly our behind-the-meter offerings, may be reduced. There can be no assurance that we will be
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able to continue to grow as we currently anticipate or at all, and our failure to do so could have a material adverse effect on our business, financial condition, results of operations and prospects.
In addition, governments or regulatory bodies where our data center customers operate may change emission limits or enforce other environmental standards upon our customers through regulation, market-based emissions policies, permitting requirements or conditions or consumer preference which in turn could reduce the demand for our engines and negatively affect our business, results of operations and financial condition.
We may be unable to successfully develop and launch a portfolio of competitive and technologically advanced products, solutions and services to respond to evolving market trends.
We may not be successful in developing a portfolio of technologically advanced products, solutions and services within the envisaged timeframe or at all, or at prices that allow our new developments to be competiti
### EX-3.1 - EX-3.1
EX-3.1
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ck0002109150-ex3_1.htm
EX-3.1
EX-3.1
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Exhibit 3.1
This is a translation into English of the official Dutch version of the articles of association of a public company with limited liability under Dutch law. Definitions included in Article 1 below appear in the English alphabetical order, but will appear in the Dutch alphabetical order in the official Dutch version. In the event of a conflict between the English and Dutch texts, the Dutch text shall prevail.
ARTICLES OF ASSOCIATION
INNIO N.V.
DEFINITIONS AND INTERPRETATION
Article 1
1.1 In these articles of association the following definitions shall apply:
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Article
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An article of these articles of association.
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Board
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The Company's board of directors.
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Board Rules
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The internal rules applicable to the Board, as drawn up by the Board.
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CEO
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The Company's chief executive officer.
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Chairperson
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The chairperson of the Board.
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Company
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The company to which these articles of association pertain.
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DCC
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The Dutch Civil Code.
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Director
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A member of the Board.
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Executive Director
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An executive Director.
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General Meeting
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The Company's general meeting.
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Group Company
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An entity or partnership which is organizationally connected with the Company in an economic unit within the meaning of Section 2:24b DCC.
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Indemnified Officer
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A current or former Director or such other current or former officer or employee of the Company or its Group Companies as designated by the Board.
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Investor
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AI Alpine (Luxembourg) S.à r.l., a Luxembourg private limited liability company ( société à responsabilité limitée ) with its corporate seat in 2-4 rue Beck, L‑1222 Luxembourg, registered with the commercial register of Luxembourg ( Registre de Commerce et des Sociétés ) under number B228587, or its legal successor or the assignee of (all of) its rights and obligations under the Relationship Agreement.
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Investor Director
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A Non-Executive Director appointed pursuant to a nomination by the Investor.
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Meeting Rights
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With respect to the Company, the rights attributed by law to the holders of depository receipts issued for shares with a company's cooperation, including the right to attend and address a General Meeting.
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Non-Executive Director
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A non-executive Director.
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2
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Person with Meeting Rights
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A shareholder, a usufructuary or pledgee with voting rights or a holder of depository receipts for ordinary shares issued with the Company's cooperation.
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Record Date
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The date of registration for a General Meeting as provided by law.
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Relationship Agreement
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The relationship agreement originally entered into by AI Alpine (Luxembourg) S.à r.l. and the Company dated on or about the [fourth] day of June two thousand and twenty-six, as amended from time to time.
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Simple Majority
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More than half of the votes cast.
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Subsidiary
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A subsidiary of the Company within the meaning of Section 2:24a DCC.
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Vice-Chairperson
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The vice-chairperson of the Board.
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1.2 Unless the context requires otherwise, references to "ordinary shares" or "shareholders" are to ordinary shares in the Company's capital or to the holders thereof, respectively.
1.3 References to statutory provisions are to those provisions as they are in force from time to time.
1.4 Terms that are defined in the singular have a corresponding meaning in the plural.
1.5 Words denoting a gender include each other gender.
1.6 Except as otherwise required by law, the terms "written" and "in writing" include the use of electronic means of communication.
NAME AND SEAT
Article 2
2.1 The Company's name is INNIO N.V.
2.2 The Company has its corporate seat in Amsterdam.
OBJECTS
Article 3
The Company's objects are, whether directly or indirectly:
a. to develop, manufacture, market, sell, install, maintain, service and overhaul distributed energy solutions, including reciprocating gas engines and related equipment, systems and components, that convert gaseous fuels into electricity, heat or compression for critical infrastructure applications such as data centers, power grids and industrial operations, and to provide related aftermarket services, parts, upgrades and multi-year service agreements;
b. to incorporate, to participate in, to finance, to hold any other interest in and to conduct the management or supervision of other entities, companies, partnerships and businesses;
c. to acquire, to manage, to invest, to exploit, to encumber and to dispose of assets and liabilities;
d. to furnish guarantees, to provide security, to warrant performance in any other way and to assume liability, whether jointly and severally or otherwise, in respect of obligations of Group Companies or other parties; and
e. to do anything which, in the widest sense, is connected with or may be conducive to the objects described above.
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SHARES - AUTHORIZED SHARE CAPITAL AND DEPOSITORY RECEIPTS
Article 4
4.1 The Company's authorized share capital amounts to ninety-seven million five hundred thousand euro (EUR 97,500,000).
4.2 The authorized share capital is divided into two billion four hundred thirty-seven million five hundred thousand (2,437,500,000) ordinary shares, each having a nominal value of four eurocents (EUR 0.04).
4.3 The Board may resolve that one or more ordinary shares are divided into such number of fractional ordinary shares as may be determined by the Board. Unless specified differently, the provisions of these articles of association concerning ordinary shares and shareholders apply mutatis mutandis to fractional ordinary shares and the holders thereof, respectively.
4.4 The Company may cooperate with the issue of depository receipts for ordinary shares in its capital.
SHARES - FORM, SHARE REGISTER AND NOTIFICATION OBLIGATION
Article 5
5.1 All ordinary shares are in registered form. The Company may issue share certificates for ordinary shares in registered form as may be approved by the Board. Each Director is authorized to sign any such share certificate on behalf of the Company.
5.2 Ordinary shares shall be numbered consecutively, starting from 1.
5.3 The Board shall keep a register setting out the names and addresses of all shareholders and all holders of a usufruct or pledge in respect of ordinary shares. The register shall also set out any other particulars that must be included in the register pursuant to applicable law. Part of the register may be kept outside the Netherlands to comply with applicable local law or pursuant to stock exchange rules.
5.4 Shareholders, usufructuaries and pledgees shall provide the Board with the necessary particulars in a timely fashion. Any consequences of not, or incorrectly, notifying such particulars shall be borne by the party concerned.
5.5 All notifications may be sent to shareholders, usufructuaries and pledgees at their respective addresses as set out in the register.
5.6 The Investor must promptly inform the Company if and when the Investor no longer holds at least fifty percent (50%), forty percent (40%), thirty percent (30%), twenty-five percent (25%), twenty percent (20%), or fifteen percent (15%) of the issued share capital of the Company. The Company and any Director may from time to time request the Investor to provide supporting information and/or documentation demonstrating the shareholding of the Investor, for purposes of determining to which extent the Investor still has rights under these articles of association. Upon the Company having made such a request, the Investor must comply with such request within two (2) weeks following receipt of such request.
SHARES - ISSUE
Article 6
6.1 The Company can only issue ordinary shares pursuant to a resolution of the General Meeting or of another body authorized by the General Meeting for this purpose for a specified period not exceeding five years. When granting such authorization, the number of ordinary shares that may be issued must be specified. The authorization may be extended, in each case for a period not exceeding five years. Unless stipulated differently when granting the authorization, the authorization cannot be revoked. For as long as and to the extent that another body has been authorized to resolve to issue ordinary shares, the General Meeting shall not have this authority.
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6.2 Article 6.1 applies mutatis mutandis to the granting of rights to subscribe for ordinary shares, but does not apply in respect of issuing ordinary shares to a party exercising a previously acquired right to subscribe for ordinary shares.
6.3 The Company may not subscribe for ordinary shares in its own capital.
SHARES - PRE-EMPTION RIGHTS
Article 7
7.1 Upon an issue of ordinary shares, each shareholder shall have a pre-emption right in proportion to the aggregate nominal value of his/her ordinary shares.
7.2 In deviation of Article 7.1, shareholders do not have pre-emption rights in respect of:
a. ordinary shares issued against non-cash contribution; or
b. ordinary shares issued to employees of the Company or of a Group Company.
7.3 The Company shall announce an issue with pre-emption rights and the period during which those rights can be exercised in the State Gazette and in a daily newspaper with national distribution, unless the announcement is sent in writing to all shareholders at the addresses submitted by them.
7.4 Pre-emption rights may be exercised for a period of at least two weeks after the date of announcement in the State Gazette or after the announcement was sent to the shareholders.
7.5 Pre-emption rights may be limited or excluded by a resolution of the General Meeting or of the body authorized as referred to in Article 6.1, if that body was authorized by the General Meeting for this purpose for a specified period not exceeding five years. The authorization may be extended, in each case for a period not exceeding five years. Unless stipulated differently when granting the authorization, the authorization cannot be revoked. For as long as and to the extent that another body has been authorized to resolve to limit or exclude pre-emption rights, the General Meeting shall not have this authority.
7.6 A resolution of the General Meeting to limit or exclude pre-emption rights, or to grant an authorization as referred to in Article 7.5, shall require a majority of at least two thirds of the votes cast if less than half of the issued share capital is represented at the General Meeting.
7.7 The preceding provisions of this Article 7 apply mutatis mutandis to the granting of rights to subscribe for ordinary shares, but do not apply in respect of issuing ordinary shares to a party exercising a previously acquired right to subscribe for ordinary shares.
SHARES - PAYMENT
Article 8
8.1 Without prejudice to Section 2:80(2) DCC, the nominal value of an ordinary share and, if the ordinary share is subscribed for at a higher price, the difference between these amounts must be paid up upon subscription for that ordinary share.
8.2 Ordinary shares must be paid up in cash, except to the extent that payment by means of a contribution in another form has been agreed.
8.3 Payment in a currency other than the euro can only be made with the Company's consent. Where such a payment is made, the payment obligation is satisfied for the amount in euro for which the paid amount can be freely exchanged. Without prejudice to the last sentence of Section 2:80a(3) DCC, the date of the payment determines the exchange rate.
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SHARES - FINANCIAL ASSISTANCE
Article 9
9.1 The Company may not provide security, give a price guarantee, warrant performance in any other way or commit itself jointly and severally or otherwise with or for others with a view to the subscription for or acquisition of ordinary shares or depository receipts for ordinary shares in its capital by others. This prohibition applies equally to Subsidiaries.
9.2 The Company and its Subsidiaries may not provide loans with a view to the subscription for or acquisition of ordinary shares or depository receipts for ordinary shares in the Company's capital by others, unless the Board resolves to do so and Section 2:98c DCC is observed.
9.3 The preceding provisions of this Article 9 do not apply if ordinary shares or depository receipts for ordinary shares are subscribed for or acquired by or for employees of the Company or of a Group Company.
SHARES - ACQUISITION OF OWN SHARES
Article 10
10.1 The acquisition by the Company of ordinary shares in its own capital which have not been fully paid up shall be null and void.
10.2 The Company may only acquire fully paid up ordinary shares in its own capital for no consideration or if and to the extent that the General Meeting has authorized the Board for this purpose and all other relevant statutory requirements of Section 2:98 DCC are observed.
10.3 An authorization as referred to in Article 10.2 remains valid for no longer than eighteen months. When granting such authorization, the General Meeting shall determine the number of ordinary shares that may be acquired, how they may be acquired and within which range the acquisition price must be. An authorization shall not be required for the Company to acquire ordinary shares in its own capital in order to transfer them to employees of the Company or of a Group Company pursuant to an arrangement applicable to them, provided that these ordinary shares are included on the price list of a stock exchange.
10.4 The balance sheet referred to in Section 2:98(3) DCC shall either be the balance sheet included in the Company's most recently adopted annual accounts or, if applicable, a balance sheet with a more recent balance sheet date adopted by the Board or by the General Meeting at the proposal of the Board.
10.5 Subject to Articles 10.1 through 10.4, the Company may acquire ordinary shares in its own capital for cash consideration or for consideration satisfied in the form of assets. In the case of a consideration being satisfied in the form of assets, the value thereof, as determined by the Board, must be within the range stipulated by the General Meeting as referred to in Article 10.3.
10.6 The previous provisions of this Article 10 do not apply to ordinary shares acquired by the Company under universal title of succession.
10.7 In this Article 10, references to ordinary shares include depository receipts for ordinary shares.
SHARES - REDUCTION OF ISSUED SHARE CAPITAL
Article 11
11.1 The General Meeting can resolve to reduce the Company's issued share capital by canceling ordinary shares or by reducing the nominal value of ordinary shares by virtue of an amendment to these articles of association. The resolution must designate the ordinary shares to which the resolution relates and it must provide for the implementation of the resolution.
11.2 A resolution to cancel ordinary shares may only relate to ordinary shares held by the Company itself or in respect of which the Company holds the depository receipts.
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11.3 A resolution of the General Meeting to reduce the Company's issued share capital shall require a majority of at least two thirds of the votes cast if less than half of the issued share capital is represented at the General Meeting.
SHARES - ISSUE AND TRANSFER REQUIREMENTS
Article 12
12.1 Except as otherwise provided or allowed by Dutch law, the issue or transfer of an ordinary share shall require a deed to that effect and, in the case of a transfer and unless the Company itself is a party to the transaction, acknowledgement of the transfer by the Company.
12.2 The acknowledgement shall be set out in the deed or shall be made in such other manner as prescribed by law.
12.3 For as long as any ordinary shares are admitted to trading on the New York Stock Exchange, the Nasdaq Stock Market or on any other regulated stock exchange located in the United States of America, the laws of the State of New York shall apply to the property law aspects of the ordinary shares reflected in the register administered by the relevant transfer agent, without prejudice to the applicable provisions of Chapters 4 and 5 of Title 10 of Book 10 DCC.
SHARES - USUFRUCT AND PLEDGE
Article 13
13.1 Ordinary shares can be encumbered with a usufruct or pledge.
13.2 The voting rights attached to an ordinary share which is subject to a usufruct or pledge vest in the shareholder concerned.
13.3 In deviation of Article 13.2, the holder of a usufruct or pledge on ordinary shares shall have the voting rights attached thereto if this was provided when the usufruct or pledge was created.
13.4 Usufructuaries and pledgees without voting rights shall not have Meeting Rights.
BOARD - COMPOSITION
Article 14
14.1 The Company has a Board consisting of:
a. one or more Executive Directors, being primarily charged with the Company's day-to-day operations; and
b. one or more Non-Executive Directors, but never less than such number of Non-Executive Directors which is required in order for the Investor to be able to exercise its nomination rights pursuant to Article 15.2, being primarily charged with the supervision of the performance of the duties of the Directors.
The Board shall be composed of individuals.
14.2 The Board shall determine the number of Executive Directors and the number of Non-Executive Directors.
14.3 The Board shall elect an Executive Director to be the CEO, provided that, if there is only one Executive Director in office, that person shall serve as CEO. The Board may dismiss the CEO, provided that the CEO so dismissed shall subsequently continue his/her term of office as an Executive Director without having the title of CEO.
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14.4 The Board shall elect a Non-Executive Director to be the Chairperson and may elect another Non-Executive Director to be the Vice-Chairperson. The Board may dismiss the Chairperson or Vice-Chairperson, provided that the Chairperson or Vice-Chairperson so dismissed shall subsequently continue his/her term of office as a Non-Executive Director without having the title of Chairperson or Vice-Chairperson, respectively.
14.5 If a Director is absent or unable to act, he/she may be replaced temporarily by a person designated for that purpose by:
a. the Investor, if it concerns an Investor Director; or
b. the Board, in all other cases,
and, until then, the other Director(s) shall be charged with the management of the Company. If all Directors are absent or unable to act, the management of the Company shall be attributed to one or more persons whom the General Meeting has designated for that purpose. The person(s) charged with the management of the Company in this manner, may designate one or more persons to be charged with the management of the Company instead of, or together with, such person(s).
14.6 A Director shall be considered to be absent or unable to act, as applicable, within the meaning of Article 14.5:
a. during the existence of a vacancy on the Board, including as a result of:
i. his/her death;
ii. his/her dismissal by the General Meeting, other than at the proposal of the Board; or
iii. his/her voluntary resignation before his/her term of office has expired;
iv. not being reappointed by the General Meeting, notwithstanding a nomination to that effect by the Investor or the Board, as applicable,
provided that the Board may always decide to decrease the number of Directors such that a vacancy no longer exists, provided further that the number of Non-Executive Directors cannot be decreased to be less than such number of Non-Executive Directors which is required in order for the Investor to be able to exercise its nomination rights pursuant to Article 15.2; or
b. during his suspension; or
c. in a period during which the Company has not been able to contact him (including as a result of illness), provided that such period lasted longer than five consecutive days (or such other period as determined by the Board on the basis of the facts and circumstances at hand).
BOARD - APPOINTMENT, SUSPENSION AND DISMISSAL
Article 15
15.1 The General Meeting shall appoint the Directors and may at any time suspend or dismiss any Director. In addition, the Board may at any time suspend an Executive Director.
15.2 The General Meeting can only appoint Directors upon a nomination by:
a. the Investor, in each case only for as long as the Relationship Agreement has not terminated in accordance with its terms, as follows:
i. for up to five (5) Non-Executive Directors if and for as long as the Investor holds at least forty percent (40%) of the issued share capital of the Company;
ii. for up to four (4) Non-Executive Directors if and for as long as the Investor holds at least thirty percent (30%), but less than forty percent (40%), of the issued share capital of the Company;
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iii. for up to three (3) Non-Executive Directors if and for as long as the Investor holds at least twenty-five percent (25%), but less than thirty percent (30%), of the issued share capital of the Company;
iv. for up to two (2) Non-Executive Directors if and for as long as the Investor holds at least twenty percent (20%), but less than twenty-five percent (25%), of the issued share capital of the Company; or
v. for up to one (1) Non-Executive Director if and for as long as the Investor holds at least fifteen percent (15%), but less than twenty percent (20%), of the issued share capital of the Company; and
b. the Board for all Executive Directors and for all other Non-Executive Directors.
The General Meeting may at any time resolve to render such nomination to be non-binding by a majority of at least two thirds of the votes cast representing more than half of the issued share capital. If a nomination is rendered non-binding, a new nomination shall be made by the Board or the Investor, as applicable. If the nomination comprises one candidate for a vacancy, a resolution concerning the nomination shall result in the appointment of the candidate, unless the nomination is rendered non-binding. A second meeting as referred to in Section 2:120(3) DCC cannot be convened.
15.3 Upon the appointment of a person as a Director, the General Meeting shall determine whether that person is appointed as Executive Director or as Non-Executive Director.
15.4 At a General Meeting, a resolution to appoint a Director can only be passed in respect of candidates whose names are stated for that purpose in the agenda of that General Meeting or the explanatory notes thereto.
15.5 A resolution of the General Meeting to suspend or dismiss a Director shall require a majority of at least two thirds of the votes cast representing more than half of the issued share capital, unless the resolution is passed at the proposal of the Board. A second meeting as referred to in Section 2:120(3) DCC cannot be convened.
15.6 If a Director is suspended and the General Meeting does not resolve to dismiss him/her within three months from the date of such suspension, the suspension shall lapse.
BOARD - DUTIES AND ORGANISATION
Article 16
16.1 The Board is charged with the management of the Company, subject to the restrictions contained in these articles of association. This includes in any event setting the Company's policy and strategy. In performing their duties, Directors shall be guided by the interests of the Company and of the business connected with it.
16.2 The Board shall draw up Board Rules concerning its organization, decision-making and other internal matters, with due observance of these articles of association. In performing their duties, the Directors shall act in compliance with the Board Rules.
16.3 The Directors may allocate their duties among themselves in or pursuant to the Board Rules or otherwise pursuant to resolutions adopted by the Board, provided that:
a. the Executive Directors shall be charged with the Company's day-to-day operations;
b. the task of supervising the performance of the duties of the Directors cannot be taken away from the Non-Executive Directors;
c. the Chairperson must be a Non-Executive Director; and
d. the making of proposals for the appointment of a Director and the determination of the compensation of the Executive Directors cannot be allocated to an Executive Director.
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16.4 The Board may determine in writing, in or pursuant to the Board Rules or otherwise pursuant to resolutions adopted by the Board, that one or more Directors can validly pass resolutions in respect of matters which fall under his/her/their duties.
16.5 The Board shall establish the committees which the Company is required to have and otherwise such committees as are deemed to be appropriate by the Board. The Board shall draw up (and/or include in the Board Rules) rules concerning the organization, decision-making and other internal matters of its committees.
16.6 The Board may perform the legal acts referred to in Section 2:94(1) DCC without the prior approval of the General Meeting.
16.7 The Board may appoint one or more observers who are allowed to attend meetings of the Board and/or its committees, who may have consultation rights in relation to resolutions passed by the Board and/or its committees in writing, and who may receive certain information and documents in connection therewith, in each case subject to applicable law.
BOARD - DECISION-MAKING
Article 17
17.1 Without prejudice to Article 17.5, each Director may cast one vote in the decision-making of the Board.
17.2 A Director can be represented by another Director holding a written proxy for the purpose of the deliberations and the decision-making of the Board.
17.3 Resolutions of the Board shall be passed, irrespective of whether this occurs at a meeting or otherwise, by Simple Majority unless the Board Rules provide differently.
17.4 Invalid votes, blank votes and abstentions shall not be counted as votes cast. Directors who cast an invalid or blank vote or who abstained from voting shall be taken into account when determining the number of Directors who are present or represented at a meeting of the Board.
17.5 Where there is a tie in any vote of the Board, the relevant resolution shall not have been passed.
17.6 The Executive Directors shall not participate in the decision-making concerning:
a. the determination of the compensation of Executive Directors; and
b. the instruction of an auditor to audit the annual accounts if the General Meeting has not granted such instruction.
17.7 A Director shall not participate in the deliberations and decision-making of the Board on a matter in relation to which he/she has a direct or indirect personal interest which conflicts with the interests of the Company and of the business connected with it. If, as a result thereof, no resolution can be passed by the Board, the resolution may nevertheless be passed by the Board as if none of the Directors has a conflict of interests as described in the previous sentence.
17.8 Meetings of the Board can be held through audio/video-communication facilities, unless a Director objects thereto.
17.9 Resolutions of the Board may, instead of at a meeting, be passed in writing, provided that all Directors are familiar with the resolution to be passed and none of them objects to this decision-making process. Articles 17.1 through 17.7 apply mutatis mutandis.
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17.10 The approval of the General Meeting is required for resolutions of the Board concerning a material change to the identity or the character of the Company or the business, including in any event:
a. transferring the business or materially all of the business to a third party;
b. entering into or terminating a long-lasting alliance of the Company or of a Subsidiary either with another entity or company, or as a fully liable partner of a limited partnership or general partnership, if this alliance or termination is of significant importance for the Company; and
c. acquiring or disposing of an interest in the capital of a company by the Company or by a Subsidiary with a value of at least one third of the value of the assets, according to the balance sheet with explanatory notes or, if the Company prepares a consolidated balance sheet, according to the consolidated balance sheet with explanatory notes in the Company's most recently adopted annual accounts.
17.11 The absence of the approval of the General Meeting of a resolution as referred to in Article 17.10 shall result in the relevant resolution being null and void pursuant to Section 2:14(1) DCC but shall not affect the powers of representation of the Board or of the Directors.
BOARD - COMPENSATION
Article 18
18.1 The General Meeting shall determine the Company's policy concerning the compensation of the Board with due observance of the relevant statutory requirements.
18.2 The compensation of Directors shall be determined by the Board with due observance of the policy referred to in Article 18.1.
18.3 The Board shall submit proposals concerning compensation arrangements for the Board in the form of ordinary shares or rights to subscribe for ordinary shares to the General Meeting for approval. This proposal must at least include the number of ordinary shares or rights to subscribe for ordinary shares that may be awarded to the Board and which criteria apply for such awards or changes thereto. The absence of the approval of the General Meeting shall not affect the powers of representation of the Board or of the Directors.
BOARD - REPRESENTATION
Article 19
19.1 The Board is entitled to represent the Company.
19.2 The power to represent the Company also vests in any two (2) Executive Directors acting jointly, or in any Executive Director and any Non-Executive Director acting jointly.
19.3 The Company may also be represented by the holder of a power of attorney to that effect. If the Company grants a power of attorney to an individual, the Board may grant an appropriate title to such person.
INDEMNITY
Article 20
20.1 The Company shall indemnify and hold harmless each of its Indemnified Officers against:
a. any financial losses or damages incurred by such Indemnified Officer; and
b. any expense reasonably paid or incurred by such Indemnified Officer in connection with any threatened, pending or completed suit, claim, action or legal proceedings of a civil, criminal, administrative or other nature, formal or informal, in which he/she becomes involved, to the extent this relates to his/her current or former position with the Company and/or a Group Company and in each case to the extent permitted by applicable law.
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20.2 No indemnification shall be given to an Indemnified Officer:
a. if a competent court or arbitral tribunal has established, without having (or no longer having) the possibility for appeal, that the acts or omissions of such Indemnified Officer that led to the financial losses, damages, expenses, suit, claim, action or legal proceedings as described in Article 20.1 constitute malice, gross negligence, intentional recklessness and/or serious culpability attributable to such Indemnified Officer;
b. to the extent that his/her financial losses, damages and expenses are covered under insurance and the relevant insurer has settled, or has provided reimbursement for, these financial losses, damages and expenses (or has irrevocably undertaken to do so);
c. in relation to proceedings brought by such Indemnified Officer against the Company, except for proceedings brought to enforce indemnification to which he/she is entitled pursuant to these articles of association, pursuant to an agreement between such Indemnified Officer and the Company which has been approved by the Board or pursuant to insurance taken out by the Company for the benefit of such Indemnified Officer; or
d. for any financial losses, damages or expenses incurred in connection with a settlement of any proceedings effected without the Company's prior consent.
20.3 The Board may stipulate additional terms, conditions and restrictions in relation to the indemnification referred to in Article 20.1.
GENERAL MEETING - CONVENING AND HOLDING MEETINGS
Article 21
21.1 Annually, at least one General Meeting shall be held. This annual General Meeting shall be held within six months after the end of the Company's financial year.
21.2 A General Meeting shall also be held:
a. within three months after the Board has considered it to be likely that the Company's equity has decreased to an amount equal to or lower than half of its paid up and called up capital, in order to discuss the measures to be taken if so required; and
b. whenever the Board so decides.
21.3 Subject to Article 21.4, General Meetings must be held in the place where the Company has its corporate seat or in Alblasserdam, Arnhem, Assen, The Hague, Haarlem, 's-Hertogenbosch, Groningen, Leeuwarden, Lelystad, Maastricht, Middelburg, Rotterdam, Schiphol (Haarlemmermeer), Utrecht or Zwolle.
21.4 If and when allowed pursuant to applicable law, the Board may also decide whether (and if so, under what conditions, subject to the conditions required under applicable law) the General Meeting shall also or exclusively be accessible through the use of electronic means. In that case, references in these articles of association to attendance of a General Meeting shall include attendance by electronic means and Article 23.2, with the exception of the first sentence of Article 23.2, shall apply mutatis mutandis in respect of attendance by electronic means.
21.5 If the Board has failed to ensure that a General Meeting as referred to in Articles 21.1 or 21.2 paragraph a. is held, each Person with Meeting Rights may be authorized by the court in preliminary relief proceedings to do so.
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21.6 One or more Persons with Meeting Rights who collectively represent at least the part of the Company's issued share capital prescribed by law for this purpose may request the Board in writing to convene a General Meeting, setting out in detail the matters to be discussed. If the Board has not taken the steps necessary to ensure that the General Meeting could be held within the relevant statutory period after the request, the requesting Person(s) with Meeting Rights may be authorized, at his/her/their request, by the court in preliminary relief proceedings to convene a General Meeting. In addition, if and for as long as the Investor holds more than twenty percent (20%) of the issued share capital of the Company and the Relationship Agreement has not terminated in accordance with its terms, the Investor may convene the General Meeting and set the agenda for such General Meeting.
21.7 Any matter of which the discussion has been requested in writing by one or more Persons with Meeting Rights who, individually or collectively, represent at least the part of the Company's issued share capital prescribed by law for this purpose shall be included in the convening notice or announced in the same manner, if the Company has received the substantiated request or a proposal for a resolution no later than on the sixtieth day prior to that of the General Meeting.
21.8 Persons with Meeting Rights, except for the Investor for as long as it holds more than twenty percent (20%) of the issued share capital of the Company and the Relationship Agreement has not terminated in accordance with its terms, who wish to exercise their rights as described in Articles 21.6 and 21.7 must first consult the Board. In that respect, the Board shall have, and Persons with Meeting Rights must observe, the right to invoke any cooling-off period and response period provided under applicable law and/or the Dutch Corporate Governance Code.
21.9 A General Meeting must be convened with due observance of the relevant statutory minimum convening period.
21.10 All Persons with Meeting Rights must be convened for the General Meeting in accordance with applicable law. The shareholders may be convened for the General Meeting by means of convening letters sent to the addresses of those shareholders in accordance with Article 5.5. The previous sentence does not prejudice the possibility of sending a convening notice by electronic means in accordance with Section 2:113(4) DCC.
GENERAL MEETING - PROCEDURAL RULES
Article 22
22.1 The General Meeting shall be chaired by one of the following individuals, taking into account the following order of priority:
a. by the Chairperson, if there is a Chairperson and he/she is present at the General Meeting;
b. by the Vice-Chairperson, if there is a Vice-Chairperson and he/she is present at the General Meeting;
c. by another Non-Executive Director who is chosen by the Non-Executive Directors present at the General Meeting from their midst;
d. by the CEO, if there is a CEO and he/she is present at the General Meeting; or
e. by another person appointed by the General Meeting.
The person who should chair the General Meeting pursuant to paragraphs a. through d. may appoint another person to chair the General Meeting instead of him/her.
22.2 The chairperson of the General Meeting shall appoint another person present at the General Meeting to act as secretary and to minute the proceedings at the General Meeting. The minutes of a General Meeting shall be adopted by the chairperson of that General Meeting or by the Board. Where an official report of the proceedings is drawn up by a civil law notary, no minutes need to be prepared. Every Director may instruct a civil law notary to draw up such an official report at the Company's expense.
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22.3 The chairperson of the General Meeting shall decide on the admittance to the General Meeting of persons other than:
a. the persons who have Meeting Rights at that General Meeting, or their proxyholders; and
b. those who have a statutory right to attend that General Meeting on other grounds.
22.4 The holder of a written proxy from a Person with Meeting Rights who is entitled to attend a General Meeting shall only be admitted to that General Meeting if the proxy is determined to be acceptable by the chairperson of that General Meeting.
22.5 The Company may direct that any person, before being admitted to a General Meeting, identify himself/herself by means of a valid passport or driver's license and/or should be submitted to such security arrangements as the Company may consider to be appropriate under the given circumstances. Persons who do not comply with these requirements may be refused entry to the General Meeting.
22.6 The chairperson of the General Meeting has the right to eject any person from the General Meeting if he/she considers that person to disrupt the orderly proceedings at the General Meeting.
22.7 The General Meeting shall be conducted in English. The General Meeting may be conducted in another language, including the Dutch language, if so determined by the chairperson of the General Meeting.
22.8 The chairperson of the General Meeting may limit the amount of time that persons present at the General Meeting are allowed to take in addressing the General Meeting and the number of questions they are allowed to raise, with a view to safeguarding the orderly proceedings at the General Meeting. The chairperson of the General Meeting may also adjourn the meeting if he/she considers that this shall safeguard the orderly proceedings at the General Meeting.
GENERAL MEETING - EXERCISE OF MEETING AND VOTING RIGHTS
Article 23
23.1 Each Person with Meeting Rights has the right to attend, address and, if applicable, vote at General Meetings, whether in person or represented by the holder of a written proxy. Holders of fractional ordinary shares together constituting the nominal value of an ordinary share shall exercise these rights collectively, whether through one of them or through the holder of a written proxy.
23.2 The Board may decide that each Person with Meeting Rights is entitled, whether in person or represented by the holder of a written proxy, to participate in, address and, if applicable, vote at the General Meeting by electronic means of communication. For the purpose of applying the preceding sentence it must be possible, by electronic means of communication, for the Person with Meeting Rights to be identified, to observe in real time the proceedings at the General Meeting and, if applicable, to vote. The Board may impose conditions on the use of the electronic means of communication, provided that these conditions are reasonable and necessary for the identification of the Person with Meeting Rights and the reliability and security of the communication. Such conditions must be announced in the convening notice.
23.3 The Board can also decide that votes cast through electronic means of communication or by means of a letter prior to the General Meeting are considered to be votes that are cast during the General Meeting. These votes shall not be cast prior to the Record Date.
23.4 For the purpose of Articles 23.1 through 23.3, those who have voting rights and/or Meeting Rights on the Record Date and are recorded as such in a register designated by the Board shall be considered to have those rights, irrespective of whoever is entitled to the ordinary shares or depository receipts at the time of the General Meeting. Unless Dutch law requires otherwise, the Board is free to determine, when convening a General Meeting, whether the previous sentence applies.
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23.5 Each Person with Meeting Rights must notify the Company in writing of his/her identity and his/her intention to attend the General Meeting. This notice must be received by the Company ultimately on the seventh day prior to the General Meeting, unless indicated otherwise when such General Meeting is convened. Persons with Meeting Rights that have not complied with this requirement may be refused entry to the General Meeting.
GENERAL MEETING - DECISION-MAKING
Article 24
24.1 Each ordinary share shall give the right to cast one vote at the General Meeting. Fractional ordinary shares, if any, collectively constituting the nominal value of an ordinary share shall be considered to be equivalent to such ordinary share.
24.2 No vote can be cast at a General Meeting in respect of an ordinary share belonging to the Company or a Subsidiary or in respect of an ordinary share for which any of them holds the depository receipts. Usufructuaries and pledgees of ordinary shares belonging to the Company or its Subsidiaries are not, however, precluded from exercising their voting rights if the usufruct or pledge was created before the relevant ordinary share belonged to the Company or a Subsidiary. Neither the Company nor a Subsidiary can vote ordinary shares in respect of which it holds a usufruct or a pledge.
24.3 Unless a greater majority is required by law or by these articles of association, all resolutions of the General Meeting shall be passed by Simple Majority. If applicable law requires a greater majority for resolutions of the General Meeting and allows the articles of association to provide for a lower majority, those resolutions shall be passed with the lowest possible majority, except if these articles of association explicitly provide otherwise.
24.4 Subject to any provision of mandatory Dutch law and any higher quorum requirement stipulated by these articles of association, if the Company is subject to a requirement under applicable securities laws or listing rules that the General Meeting can only pass certain resolutions if a certain part of the Company's issued share capital is represented at such General Meeting, then such resolutions shall be subject to such quorum as specified by such securities laws or listing rules and a second meeting as referred to in Section 2:120(3) DCC cannot be convened.
24.5 Invalid votes, blank votes and abstentions shall not be counted as votes cast. Ordinary shares in respect of which an invalid or blank vote has been cast and ordinary shares in respect of which an abstention has been made shall be taken into account when determining the part of the issued share capital that is represented at a General Meeting.
24.6 Where there is a tie in any vote of the General Meeting, the relevant resolution shall not have been passed.
24.7 The chairperson of the General Meeting shall decide on the method of voting and the voting procedure at the General Meeting.
24.8 The determination during the General Meeting made by the chairperson of that General Meeting with regard to the results of a vote shall be decisive. If the accuracy of the chairperson's determination is contested immediately after it has been made, a new vote shall take place if the majority of the General Meeting so requires or, where the original vote did not take place by response to a roll call or in writing, if any party with voting rights who is present so requires. The legal consequences of the original vote shall lapse as a result of the new vote.
24.9 The Board shall keep a record of the resolutions passed. The record shall be available at the Company's office for inspection by Persons with Meeting Rights. Each of them shall, upon request, be provided with a copy of or extract from the record, at no more than the cost price.
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24.10 Shareholders may pass resolutions outside a meeting, unless the Company has cooperated with the issuance of depository receipts for ordinary shares in its capital. Such resolutions can only be passed by a unanimous vote of all shareholders with voting rights. The votes shall be cast in writing and may be cast through electronic means.
24.11 The Directors shall, in that capacity, have an advisory vote at the General Meetings.
GENERAL MEETING - SPECIAL RESOLUTIONS
Article 25
25.1 Without prejudice to Article 25.2, if one or more of the following resolutions are passed by the General Meeting other than at the proposal of the Board, such resolution(s) shall require a majority of at least two thirds of the votes cast:
a. the issue of ordinary shares or the granting of rights to subscribe for ordinary shares;
b. the limitation or exclusion of pre-emption rights;
c. the designation or granting of an authorization as referred to in Articles 6.1, 7.5 and 10.2, respectively;
d. the disapplication or revocation of a designation or authorization as referred to in Articles 6.1, 7.5 and 10.2, respectively;
e. the reduction of the Company's issued share capital;
f. the making of a distribution from the Company's profits or reserves;
g. the making of a distribution in the form of ordinary shares in the Company's capital or in the form of assets, instead of in cash;
h. the adoption or amendment of the Company's compensation policy referred to in Article 18.1;
i. the amendment of these articles of association;
j. the entering into of a merger or demerger;
k. the instruction of the Board to apply for the Company's bankruptcy; and
l. the Company's dissolution.
25.2 Without prejudice to Article 25.1, if and for as long as the Investor holds more than fifty percent (50%) of the issued share capital of the Company and the Relationship Agreement has not terminated in accordance with its terms, the following resolutions can only be passed by the General Meeting at the proposal of the Board:
a. the issue of ordinary shares or the granting of rights to subscribe for ordinary shares;
b. the limitation or exclusion of pre-emption rights;
c. the reduction of the Company's issued share capital;
d. the making of a distribution from the Company's profits or reserves in the form of ordinary shares in the Company's capital; and
e. the amendment of these articles of association.
25.3 A matter which has been included in the convening notice or announced in the same manner by or at the request of one or more Persons with Meeting Rights pursuant to Articles 21.6 and/or 21.7 shall not be considered to have been proposed by the Board for purposes of Articles 25.1 and 25.2, unless the Board has expressly indicated that it supports the discussion of such matter in the agenda of the General Meeting concerned or in the explanatory notes thereto.
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REPORTING - FINANCIAL YEAR, ANNUAL ACCOUNTS AND MANAGEMENT REPORT
Article 26
26.1 The Company's financial year shall coincide with the calendar year.
26.2 Annually, within the relevant statutory period, the Board shall prepare the annual accounts and the management report and deposit them at the Company's office for inspection by the shareholders.
26.3 The annual accounts shall be signed by the Directors. If any of their signatures is missing, this shall be mentioned, stating the reasons.
26.4 The Company shall ensure that the annual accounts, the management report and the particulars to be added pursuant to Section 2:392(1) DCC shall be available at its offices as from the convening of the General Meeting at which they are to be discussed. The Persons with Meeting Rights are entitled to inspect such documents at that location and to obtain a copy at no cost.
26.5 The annual accounts shall be adopted by the General Meeting.
REPORTING - AUDIT
Article 27
27.1 The General Meeting shall instruct an external auditor as referred to in Section 2:393 DCC to audit the annual accounts. Where the General Meeting fails to do so, the Board shall be authorized to do so.
27.2 The instruction may be revoked by the General Meeting and by the body that has granted the instruction. The instruction can only be revoked for well-founded reasons; a difference of opinion regarding the reporting or auditing methods shall not constitute such a reason.
DISTRIBUTIONS - GENERAL
Article 28
28.1 A distribution can only be made to the extent that the Company's equity exceeds the amount of the paid up and called up part of its capital plus the reserves which must be maintained by law.
28.2 The Board may resolve to make interim distributions, provided that it appears from interim accounts to be prepared in accordance with Section 2:105(4) DCC that the requirement referred to in Article 28.1 has been met.
28.3 Distributions shall be made in proportion to the aggregate nominal value of the ordinary shares.
28.4 The parties entitled to a distribution shall be the relevant shareholders, usufructuaries and pledgees, as the case may be, at a date to be determined by the Board for that purpose. This date shall not be earlier than the date on which the distribution was announced.
28.5 The General Meeting may resolve, subject to Article 25, that all or part of a distribution, instead of being made in cash, shall be made in the form of ordinary shares in the Company's capital or in the form of the Company's assets.
28.6 A distribution shall be payable on such date and, if it concerns a distribution in cash, in such currency or currencies as determined by the Board. If it concerns a distribution in the form of the Company's assets, the Board shall determine the value attributed to such distribution for purposes of recording the distribution in the Company's accounts with due observance of applicable law (including the applicable accounting principles).
28.7 A claim for payment of a distribution shall lapse after five years have expired after the distribution became payable.
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28.8 For the purpose of calculating the amount or allocation of any distribution, ordinary shares held by the Company in its own capital shall not be taken into account. No distribution shall be made to the Company in respect of ordinary shares held by it in its own capital.
DISTRIBUTIONS - RESERVES
Article 29
29.1 Subject to Article 25, the General Meeting is authorized to resolve to make a distribution from the Company's reserves.
29.2 The Board may resolve to charge amounts to be paid up on ordinary shares (including amounts in excess of the nominal value of the ordinary shares concerned) against the Company's reserves, irrespective of whether those ordinary shares are issued to existing shareholders.
DISTRIBUTIONS - PROFITS
Article 30
30.1 Subject to Article 28.1, the profits shown in the Company's annual accounts in respect of a financial year shall be appropriated as follows, and in the following order of priority:
a. the Board shall determine which part of the profits shall be added to the Company's reserves; and
b. subject to Article 25, the remaining profits shall be at the disposal of the General Meeting for distribution on the ordinary shares.
30.2 Subject to Article 28.1, a distribution of profits shall be made after the adoption of the annual accounts that show that such distribution is allowed.
DISSOLUTION AND LIQUIDATION
Article 31
31.1 In the event of the Company being dissolved, the liquidation shall be effected by the Board, unless the General Meeting decides otherwise.
31.2 To the extent possible, these articles of association shall remain in effect during the liquidation.
31.3 Any assets remaining after payment of all of the Company's debts shall be distributed to the shareholders.
31.4 After the Company has ceased to exist, its books, records and other information carriers shall be kept for the period prescribed by law by the person designated for that purpose in the resolution of the General Meeting to dissolve the Company. Where the General Meeting has not designated such a person, the liquidators shall do so.
FEDERAL FORUM PROVISION
Article 32
Unless the Company consents in writing to the selection of an alternative forum, the sole and exclusive forum for any complaint asserting a cause of action arising under the United States Securities Act of 1933, as amended, or the United States Securities Exchange Act of 1934, as amended, to the fullest extent permitted by applicable law, shall be the United States federal district courts.
### EX-5.1 - EX-5.1
EX-5.1
3
ck0002109150-ex5_1.htm
EX-5.1
EX-5.1
Exhibit 5.1
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ATTORNEYS CIVIL LAW NOTARIES TAX ADVISERS
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P.O. Box 7113
1007 JC Amsterdam
Beethovenstraat 400
1082 PR Amsterdam
T +31 20 71 71 000
F +31 20 71 71 111
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Amsterdam, 26 May 2026.
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To the Company:
We have acted as legal counsel as to Dutch law to the Company in connection with the Offering and the filing of the Registration Statement with the SEC. This opinion letter is rendered to you in order to be filed with the SEC as an exhibit to the Registration Statement.
Capitalised terms used in this opinion letter have the meanings set forth in Exhibit A to this opinion letter. The headings used in this opinion letter are for convenience of reference only and are not to affect its construction or to be taken into consideration in its interpretation.
This opinion letter is strictly limited to the matters stated in it and may not be read as extending by implication to any matters not specifically referred to in it. Nothing in this opinion letter should be taken as expressing an opinion in respect of any representations or warranties, or other information, contained in any document reviewed by us in connection with this opinion letter.
In rendering the opinions expressed in this opinion letter, we have reviewed and relied upon drafts of the Reviewed Documents, a draft of the Registration Statement and drafts of the Corporate Documents and we have assumed that the Reviewed Documents shall be entered into for bona fide commercial reasons. We have not investigated or verified any factual matter disclosed to us in the course of our review.
This opinion letter sets out our opinion on certain matters of the laws with general applicability of the Netherlands, and, insofar as they are directly applicable in the Netherlands, of the European Union, as at today's date and as presently interpreted under published authoritative case law of the Dutch courts, the General Court and the Court of Justice of the European Union. We do not express any opinion on Dutch or European competition law, data protection law, tax law, securitisation law or regulatory law. No undertaking is assumed on our part to revise, update or amend this opinion letter in connection with, or to notify or inform you of, any developments and/or changes of Dutch law subsequent to today's date. We do not purport to opine on the consequences of amendments to the Reviewed Documents, the Registration Statement or the Corporate Documents subsequent to the date of this opinion letter.
The opinions expressed in this opinion letter are to be construed and interpreted in accordance with Dutch law. The competent courts at Amsterdam, the Netherlands, have
All legal relationships are subject to NautaDutilh N.V.'s general terms and conditions (see https://www.nautadutilh.com/terms), which apply mutatis mutandis to our relationship with third parties relying on statements of NautaDutilh N.V., include a limitation of liability clause, have been filed with the Rotterdam District Court and will be provided free of charge upon request. NautaDutilh N.V.; corporate seat Rotterdam; trade register no. 24338323.
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exclusive jurisdiction to settle any issues of interpretation or liability arising out of or in connection with this opinion letter. Any legal relationship arising out of or in connection with this opinion letter (whether contractual or non-contractual), including the above submission to jurisdiction, is governed by Dutch law and shall be subject to the general terms and conditions of NautaDutilh. Any liability arising out of or in connection with this opinion letter shall be limited to the amount which is paid out under NautaDutilh's insurance policy in the matter concerned. No person other than NautaDutilh may be held liable in connection with this opinion letter.
In this opinion letter, legal concepts are expressed in English terms. The Dutch legal concepts concerned may not be identical in meaning to the concepts described by the English terms as they exist under the law of other jurisdictions. In the event of a conflict or inconsistency, the relevant expression shall be deemed to refer only to the Dutch legal concepts described by the English terms.
For the purposes of this opinion letter, we have assumed that:
a. drafts of documents reviewed by us will be signed in the form of those drafts, each copy of a document conforms to the original, each original is authentic, and each signature is the genuine signature of the individual purported to have placed that signature;
b. if any signature under any document is an electronic signature (as opposed to a handwritten ("wet ink") signature) only, it is either a qualified electronic signature within the meaning of the eIDAS Regulation, or the method used for signing is otherwise sufficiently reliable;
c. the Registration Statement has been or will be declared effective by the SEC in the form reviewed by us;
d. the Company (i) has been duly incorporated as a Gesellschaft mit beschränkter Haftung pursuant to the laws of Germany, and (ii) shall be validly converted into a besloten vennootschap met beperkte aansprakelijkheid pursuant to the B.V. Deed of Conversion;
e. the Company's equity ( eigen vermogen ) shall be sufficient to allow for the aggregate nominal value of the Secondary Shares to be charged against the Company's share premium reserve and to pay up the Secondary Shares in full in accordance with the relevant Resolutions and the Deed of Issue of Secondary Shares;
f. (i) no internal regulations ( reglementen ) have been, or shall have been, adopted by any corporate body of the Company which would affect the validity of the resolutions recorded in the Resolutions and (ii) the B.V. Articles will be the Articles of Association in force and at the time the Deed of Issue of Secondary Shares is executed;
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g. at the time the Deed of Issue of Secondary Shares is executed (i) the relevant resolutions recorded in the Resolutions shall be in full force and effect and (ii) the factual statements made and the confirmations given in the Resolutions and in the Deed of Issue of Secondary Shares, respectively, shall be complete and correct;
h. each Power of Attorney (i) is, or shall be, in full force and effect and (ii) under any applicable law other than Dutch law, validly authorises the person or persons purported to be granted power of attorney, to represent and bind the relevant principal for the purposes stated therein; and
i. the Offering, to the extent made in the Netherlands, has been, is and will be made in conformity with the Prospectus Regulation and the rules promulgated thereunder.
Based upon and subject to the foregoing and subject to the qualifications set forth in this opinion letter and to any matters, documents or events not disclosed to us, we express the following opinions:
Cross-Border Conversion and Corporate Status
1. Upon execution of the B.V. Deed of Conversion, the Company shall be duly converted into a besloten vennootschap met beperkte aansprakelijkheid pursuant to the cross-border conversion to be effected by the B.V. Deed of Conversion and, upon the execution of the N.V. Deed of Conversion, shall be validly existing as a naamloze vennootschap .
Secondary Shares
2. When issued and accepted in accordance with the relevant Resolutions and the Deed of Issue of Secondary Shares, the Secondary Shares, including the Secondary Option Shares, shall be validly issued, fully paid and non-assessable.
The opinions expressed above are subject to the following qualifications:
A. Opinion 1 must not be read to imply that the Company cannot be dissolved ( ontbonden ). A company such as the Company may be dissolved, inter alia by the competent court at the request of the company's board of directors, any interested party ( belanghebbende ) or the public prosecution office in certain circumstances, such as when there are certain defects in the incorporation of the company. Any such dissolution will not have retro-active effect.
B. Pursuant to Section 2:7 DCC, any transaction entered into by a legal entity may be nullified by the legal entity itself or its liquidator in bankruptcy proceedings ( curator ) if the objects of that entity were transgressed by the transaction and the other party to the transaction knew or should have known this without independent investigation ( wist of zonder eigen onderzoek moest weten ). The Dutch Supreme Court ( Hoge Raad der Nederlanden ) has ruled that in
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determining whether the objects of a legal entity are transgressed, not only the description of the objects in that legal entity's articles of association ( statuten ) is decisive, but all (relevant) circumstances must be taken into account, in particular whether the interests of the legal entity were served by the transaction. Based on the objects clause contained in the B.V. Articles, we have no reason to believe that, by entering into the Reviewed Documents, the Company would transgress the description of the objects contained in its Articles of Association. However, we cannot assess whether there are other relevant circumstances that must be taken into account, in particular whether the interests of the Company are served by entering into the Reviewed Documents since this is a matter of fact.
C. Pursuant to Section 2:98c DCC, a company such as the Company may grant loans ( leningen verstrekken ) only in accordance with the restrictions set out in Section 2:98c DCC, and may not provide security ( zekerheid stellen ), give a price guarantee ( koersgarantie geven ) or otherwise bind itself, whether jointly and severally or otherwise with or for third parties ( zich op andere wijze sterk maken of zich hoofdelijk of anderszins naast of voor anderen verbinden ) with a view to ( met het oog op ) the subscription or acquisition by third parties of shares in its share capital or depository receipts. This prohibition also applies to its subsidiaries ( dochtervennootschappen ). It is generally assumed that a transaction entered into in violation of Section 2:98c DCC is null and void ( nietig ). Based on the content of the Reviewed Documents, we have no reason to believe that the Company or its subsidiaries will violate Section 2:98c DCC in connection with the acquisition of the Secondary Shares. However, we cannot confirm this definitively, since the determination of whether a company (or a subsidiary) has provided security, has given a price guarantee or has otherwise bound itself, with a view to the subscription or acquisition by third parties of shares in its share capital or depository receipts, as described above, is a matter of fact.
D. The opinions expressed in this opinion letter may be limited or affected by:
a. rules relating to Insolvency Proceedings or similar proceedings under a foreign law and other rules affecting creditors' rights generally;
b. the provisions of fraudulent preference and fraudulent conveyance ( Actio Pauliana ) and similar rights available in other jurisdictions to insolvency practitioners and insolvency office holders in bankruptcy proceedings or creditors;
c. claims based on tort ( onrechtmatige daad );
d. sanctions and measures, including but not limited to those concerning export control, pursuant to European Union regulations, under the Dutch Sanctions Act 1977 ( Sanctiewet 1977 ) or other legislation;
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e. the Anti-Boycott Regulation, Anti Money Laundering Laws and related legislation;
f. any intervention, recovery or resolution measure by any regulatory or other authority or governmental body in relation to financial enterprises or their affiliated entities; and
g. the rules of force majeure ( niet toerekenbare tekortkoming ), reasonableness and fairness ( redelijkheid en billijkheid ), suspension ( opschorting ), dissolution ( ontbinding ), unforeseen circumstances ( onvoorziene omstandigheden ) and vitiated consent (i.e., duress ( bedreiging ), fraud ( bedrog ), abuse of circumstances ( misbruik van omstandigheden ) and error ( dwaling )) or a difference of intention ( wil ) and declaration ( verklaring ).
E. The term "non-assessable" has no equivalent in the Dutch language and for purposes of this opinion letter such term should be interpreted to mean that a holder of an Ordinary Share shall not by reason of merely being such a holder be subject to assessment or calls by the Company or its creditors for further payment on such Ordinary Share.
F. This opinion letter does not purport to express any opinion or view on the operational rules and procedures of any clearing or settlement system or agency.
We consent to the filing of this opinion letter as an exhibit to the Registration Statement and also consent to the reference to NautaDutilh in the Registration Statement under the caption "Legal Matters". In giving this consent we do not admit or imply that we are a person whose consent is required under Section 7 of the United States Securities Act of 1933, as amended, or any rules and regulations promulgated thereunder.
Sincerely yours,
/s/ NautaDutilh N.V.
NautaDutilh N.V.
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EXHIBIT A
LIST OF DEFINITIONS
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" Anti Money Laundering Laws "
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The European Anti-Money Laundering Directives, as implemented in the Netherlands in the Money Laundering and Terrorist Financing Prevention Act ( Wet ter voorkoming van witwassen en financieren van terrorisme ) and the Dutch Criminal Code ( Wetboek van Strafrecht ).
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" Anti-Boycott Regulation "
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The Council Regulation (EC) No 2271/96 of 22 November 1996 on protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom.
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" Articles of Association "
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The Company's articles of association ( statuten ) as they read from time to time.
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" Bankruptcy Code "
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The Dutch Bankruptcy Code ( Faillissementswet ).
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" Board "
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The Company's board of directors ( bestuur ).
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" B.V. Articles "
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The Articles of Association as they will read immediately after the execution of the duly completed Deed of Amendment Nominal Value.
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"B.V. Deed of Conversion"
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The draft deed of cross-border conversion and amendment prepared by us with reference number 83103611 M 59614661.
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" Company "
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INNIO Holding GmbH (i) to be converted into and renamed Innio Group Holding B.V., a private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ), and (ii) to be subsequently converted into and renamed INNIO N.V., a public company with limited liability ( naamloze vennootschap ); in each case in connection with the Offering.
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" Common Shares "
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Common shares in the Company's capital, with a nominal value of EUR 0.04 each.
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" Corporate Documents "
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The B.V. Deed of Conversion, the Deed of Amendment Nominal Value, the N.V. Deed of Conversion, the B.V. Articles and the Resolutions.
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" DCC "
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The Dutch Civil Code ( Burgerlijk Wetboek ).
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" Deed of Amendment Nominal Value "
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The draft deed of amendment to the Articles of Association prepared by us with reference number 83103611 M 59515959.
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" Deed of Issue of Secondary Shares "
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The draft deed of issue of the Secondary Shares, including the Secondary Option Shares, prepared by us with reference number 83103611 M 59515911.
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" eIDAS Regulation "
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Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC.
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" General Meeting "
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The Company's general meeting ( algemene vergadering ).
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" Insolvency Proceedings "
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Any insolvency proceedings within the meaning of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast), as amended by Regulation (EU) 2021/2260 of the European Parliament and of the Council of 15 December 2021, listed in Annex A thereto and any statutory proceedings for the restructuring of debts ( akkoordprocedure ) pursuant to the Bankruptcy Code.
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" N.V. Deed of Conversion "
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The draft deed of conversion and amendment to the Articles of Association prepared by us with reference number 83103611 M 59515823.
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" NautaDutilh "
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NautaDutilh N.V.
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" the Netherlands "
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The European territory of the Kingdom of the Netherlands and " Dutch " is in or from the Netherlands.
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" Offering "
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The offering of Common Shares as contemplated by the Registration Statement.
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" Option "
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The option to acquire a portion of the Secondary Shares, to be granted by AI Alpine (Luxembourg) S.à r.l. to the Underwriters pursuant to the Underwriting Agreement.
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" Power of Attorney "
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Each power of attorney granted or to be granted for purposes of the execution of the B.V. Deed of Conversion and the Deed of Issue of Secondary Shares and each power of attorney as contained in the Resolutions.
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" Prospectus Regulation "
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Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC.
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" Registration Statement "
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The Company's registration statement on Form S-1 filed or to be filed with the SEC in connection with the Offering in the form reviewed by us.
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" Resolutions "
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Each of the following:
a. the draft written resolution of the Board prepared by us with reference 83103611 M 59337073; and
b. the draft written resolution of the General Meeting prepared by us with reference 83103611 M 59337072.
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" Reviewed Documents "
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The Deed of Issue of Secondary Shares and the Underwriting Agreement.
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" SEC "
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The United States Securities and Exchange Commission.
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" Secondary Option Shares "
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The Secondary Shares in respect of which the Option is or can be exercised.
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" Secondary Shares "
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749,975,000 Common Shares issued to AI Alpine (Luxembourg) S.à r.l. pursuant to the Deed of Issue of Secondary Shares and offered for sale in the Offering.
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" Underwriters "
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The Underwriters, as defined in the Underwriting Agreement.
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" Underwriting Agreement "
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The draft underwriting agreement to be entered into between the Company and the Underwriters in connection with the Offering, in the form reviewed by us.
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### EX-10.1 - EX-10.1
EX-10.1
4
ck0002109150-ex10_1.htm
EX-10.1
EX-10.1
1
e xhibit 10.1
INDEMNIFICATION AGREEMENT
between
[ name ]
as the Officer
and
INNIO N.V.
as the Company
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TABLE OF CONTENTS
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1
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DEFINITIONS AND INTERPRETATION
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3
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1.1
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Definitions
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3
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1.2
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Interpretation
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2
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INDEMNIFICATION AND INSURANCE
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5
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2.1
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Entitlement to indemnification
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5
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2.2
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Advancements
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2.3
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Limitations
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2.4
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Determination of entitlement to indemnification and advancements
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2.5
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Proceedings
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2.6
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D&O Insurance
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3
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MISCELLANEOUS PROVISIONS
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8
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3.1
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Confidentiality and disclosure
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3.2
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Notices
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3.3
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Entire agreement
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3.4
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No implied waiver
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3.5
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Amendment
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9
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3.6
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Invalidity
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3.7
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No rescission or nullification
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3.8
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No transfer, assignment or encumbrance
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3.9
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Term and termination
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10
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4
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GOVERNING LAW AND JURISDICTION
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10
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4.1
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Governing law
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10
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4.2
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Jurisdiction
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10
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INDEMNIFICATION AGREEMENT
THIS AGREEMENT IS MADE ON [ DATE ] BETWEEN
1. Mr [ s ] . [ name ], born in [ place ] on [ date ] (the " Officer ").
2. INNIO N.V. , a public company with limited liability, having its corporate seat in Amsterdam (address: Nymphenburger Straße 5, 80335 Munich, Federal Republic of Germany, trade register number: [trade register number]) (the " Company ").
WHEREAS
A. The Officer has been appointed as Non-Executive Director.
B. The Parties now wish to enter into this Agreement in order to lay down the terms applicable to the indemnification arrangements between the Officer and the Company.
NOW HEREBY AGREE AS FOLLOWS
1. DEFINITIONS AND INTERPRETATION
1.1. Definitions
1.1.1. In this Agreement the following definitions shall apply:
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Agreement
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This indemnification agreement.
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Article
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An article of this Agreement.
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Board
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The Company's board of directors.
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Confidential Information
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Information relating to the Company, its Subsidiaries and/or their respective businesses, directors, officers and employees, received by the Officer at any time (including prior to the date of this Agreement and after the termination of this Agreement), by any means (including through discussions with any director, officer, employee or advisor of the Company or any of its Subsidiaries), except for information:
a. which is in the public domain, other than as a result of a breach by the Officer (or by any party to whom information is disclosed by the Officer as permitted under this Agreement) of the obligations imposed by this Agreement or any other legal, contractual or fiduciary duty of confidentiality; or
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b. of which the Officer is able to demonstrate that it has lawfully become available to the Officer on a non-confidential basis from a source which was not prohibited from disclosing such information under any legal, contractual or fiduciary duty of confidentiality.
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D&O Insurance
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Directors and officers liability insurance.
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DCC
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The Dutch Civil Code.
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Director
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A member of the Board.
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Disinterested Director
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Any Non-Executive Director who is not, and has not been, involved in a Proceeding in respect of which the Officer's entitlement to indemnification and/or advancements should be determined pursuant to Article 2.4.1 under a.
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Independent Counsel
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An attorney or a firm of attorneys which:
a. is experienced in matters of corporate law in the appropriate jurisdiction(s);
b. during a period of one year prior to being requested to determine the Officer's entitlement to indemnification and/or advancements pursuant to Article 2.4.1 under b., has not represented any party involved in a Proceeding in a manner which is material to either Party; and
c. under the applicable standards of professional conduct then prevailing, would not have a conflict of interests in representing either Party in determining the Officer's entitlement to indemnification and/or advancements pursuant to Article 2.4.1 under b.
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Non-Executive Director
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A non-executive Director.
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Party
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A party to this Agreement.
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Proceeding
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Any threatened, pending or completed suit, claim, action or legal proceedings of a civil, criminal, administrative, investigative or other nature, formal or informal, in which the Officer is, or becomes, involved.
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Stock Exchange
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Any of the following (including, for the avoidance of doubt, the Nasdaq Stock Market):
a. a regulated market or multilateral trading facility as defined in Section 1:1 of the Dutch Financial Supervision Act; or
b. a system comparable with a regulated market or multilateral trading facility as referred to under a. above, operating in a state which is not a Member State of the European Union or the European Economic Area.
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Subsidiary
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A subsidiary of the Company within the meaning of Section 2:24a DCC.
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1.2. Interpretation
1.2.1. References to statutory provisions are to those provisions as they are in force from time to time.
1.2.2. Terms that are defined in the singular have a corresponding meaning in the plural.
1.2.3. No provision of this Agreement shall be interpreted adversely against a Party solely because that Party was responsible for drafting that particular provision.
1.2.4. Although this Agreement has been drafted in the English language, this Agreement pertains to Dutch legal concepts. Any consequence of the use of English words and expressions in this Agreement under any law other than Dutch law shall be disregarded.
1.2.5. The word "including" is used to indicate that the matters listed are not a complete enumeration of all matters covered.
1.2.6. The titles and headings in this Agreement are for construction purposes as well as for reference. No Party may derive any rights from such titles and headings.
2. INDEMNIFICATION AND INSURANCE
2.1. Entitlement to indemnification
2.1.1. The Company shall indemnify the Officer and hold the Officer harmless against:
a. any financial losses or damages incurred by the Officer; and
b. any expense reasonably paid or incurred by the Officer in connection with any Proceeding,
in each case to the extent this relates to the Officer's current (or former) position as Non-Executive Director and to the extent permitted by applicable law.
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2.1.2. The right to indemnification conferred in Article 2.1.1 shall continue as to the Officer who has ceased to hold office as Non-Executive Director and shall inure to the benefit of the Officer's heirs, executors and administrators, subject always to Article 3.9.
2.2. Advancements
2.2.1. The Company shall promptly advance all reasonable and necessary expenses incurred by the Officer in connection with any Proceeding to the extent that the Company reasonably believes that the Officer is entitled to indemnification pursuant to Articles 2.1.1 and 2.3.1 in connection with such Proceeding, subject to the Officer submitting an itemised advance request to the Company.
2.2.2. To the extent that the Company has provided advancements pursuant to Article 2.2.1 in connection with a Proceeding in respect of which the Officer is not entitled to indemnification pursuant to Articles 2.1.1 and 2.3.1, such advancements shall promptly be reimbursed by the Officer.
2.3. Limitations
2.3.1. No indemnification shall be given to the Officer:
a. if a competent court or arbitral tribunal has established that the acts or omissions of the Officer that led to the financial losses, damages, expenses or Proceeding are considered to constitute malice, gross negligence, intentional recklessness and/or serious culpability attributable to the Officer and the Officer does not have, or no longer has, the possibility to appeal such decision;
b. to the extent that the Officer's financial losses, damages and expenses are covered under insurance (including any applicable D&O Insurance) and the relevant insurer has settled, or has provided reimbursement for, these financial losses, damages and expenses (or has irrevocably undertaken to do so);
c. in relation to proceedings brought by the Officer against the Company, except for proceedings brought to enforce indemnification to which the Officer is entitled pursuant to this Agreement, the Company's articles of association or any D&O Insurance taken out by the Company for the benefit of the Officer; or
d. for any financial losses, damages or expenses incurred in connection with a settlement of any Proceeding effected without the Company's prior consent.
2.4. Determination of entitlement to indemnification and advancements
2.4.1. If the Officer wishes to claim indemnification and/or advancements pursuant to Articles 2.1 and 2.2, the Officer shall submit a request to that effect to the Company. Upon receipt of such request, the Officer's entitlement to indemnification and/or advancements pursuant to Articles 2.1 and 2.2 shall be determined by any of the following (at the election of the Company):
a. so long as there are Disinterested Directors, either by majority vote of all Disinterested Directors or by majority vote of a committee composed exclusively of Disinterested
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Directors, provided that such committee is established by majority vote of all Disinterested Directors; or
b. Independent Counsel in a written opinion delivered to each Party.
2.4.2. If the Company decides to request Independent Counsel to make the determination referred to in Article 2.4.1, the Company shall notify the Officer of the identity of the Independent Counsel selected by it. The Officer may, within one week, notify the Company of its objection to the Independent Counsel selected by the Company, but only on the grounds that the relevant attorney or firm of attorneys does not meet the criteria of the definition of "Independent Counsel". In case of such objection being timely made and deemed well-founded by the Company, the Company shall select a different Independent Counsel and the previous two sentences apply mutatis mutandis in respect of such selection. The Company shall pay all fees and other expenses associated with the retention and services of Independent Counsel to make the determination referred to in Article 2.4.1.
2.4.3. The Company shall exert all reasonable efforts to cause any determination required under Article 2.4.1 to be made as promptly as practicable after the Officer has submitted its initial request for indemnification and/or advancements pursuant to Articles 2.1 and 2.2 and the Officer shall fully cooperate with the person(s) making such determination.
2.5. Proceedings
2.5.1. The Officer shall promptly notify the Company upon receipt of any complaint, demand letter, writ of summons or other indication that a Proceeding is being threatened or is forthcoming.
2.5.2. The Officer shall allow the Company to participate in any Proceeding and to assume the defence thereof in such manner as the Company deems appropriate, with counsel selected by the Company and reasonably satisfactory to the Officer, provided that:
a. the Company must conduct any such defence in good faith and in a diligent manner; and
b. the Company shall not, without the Officer's prior consent, allow or condone any judgment or award against the Officer nor enter into any settlement or compromise pursuant to which non-monetary obligations or penalties (including incarceration) would be imposed on the Officer and/or monetary obligations would be imposed on the Officer which would not be indemnified in full pursuant to Articles 2.1.1 and 2.3.1.
2.6. D&O Insurance
2.6.1. The Company shall take out and maintain adequate D&O Insurance for the benefit of the Officer for as long as the Officer serves as Non-Executive Director, subject to the acceptance of the Officer under the conditions by the insurer concerned.
2.6.2. The premiums payable for D&O Insurance covering the Officer as an insured shall be borne by the Company.
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3. MISCELLANEOUS PROVISIONS
3.1. Confidentiality and disclosure
3.1.1. Subject to Articles 3.1.2 through 3.1.5, the Officer shall treat and safeguard as private and confidential all Confidential Information at all times and shall keep any copies thereof secure in such way so as to prevent unauthorised access by any third party.
3.1.2. The Officer shall not disclose any Confidential Information, unless:
a. this is required under applicable law, Stock Exchange requirements and/or by any competent authority;
b. it concerns a disclosure to the Officer's professional advisors, subject to a duty of confidentiality and only to the extent necessary for any lawful purpose; or
c. this is required in order to report or make public a suspicion of misconduct ( vermoeden van misstand ) as defined by and in accordance with the Dutch Whistle-blower Protection Act ( Wet bescherming klokkenluiders ).
3.1.3. Any disclosure of Confidential Information by the Officer under Article 3.1.2 shall be delayed until the Company has been consulted about the timing and content of such disclosure, to the extent that such a delay would be legally permissible.
3.1.4. The Officer shall, at the Company's first request and in any event upon the termination of this Agreement, promptly return or destroy all Confidential Information which the Officer has at [his/her] disposal, except to the extent that the Officer is required by applicable law to retain such Confidential Information.
3.1.5. All Confidential Information shall remain the exclusive property of the Company and/or its Subsidiaries, as the case may be. No right or licence is granted pursuant to this Agreement in relation to any Confidential Information.
3.2. Notices
3.2.1. All notices given under this Agreement shall be given or made by electronic means of communication or in writing and, in the latter case, shall be sent by courier service or by registered mail (with a copy of such notice or request being sent in advance by electronic means of communication).
3.2.2. All notices given under this Agreement to a Party which are sent by courier or by registered mail shall be sent:
a. if to the Officer, to the address as on file with the Company at that time; and
b. if to the Company, to address as registered with the Dutch trade registry at that time, for the attention of the Board.
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3.2.3. All notices given under this Agreement to a Party by electronic means of communication shall be sent:
a. if to the Officer, to: [ e-mail address ]
b. if to the Company, to: [ e-mail address ]
3.3. Entire agreement
3.3.1. This Agreement replaces and supersedes any existing indemnification agreement between the Parties, including any indemnification arrangements agreed between the Parties as part of a service, employment or other agreement.
3.4. No implied waiver
3.4.1. Nothing shall be construed as a waiver under this Agreement unless a document to that effect has been signed by the Parties or a notice to that effect has been given.
3.4.2. The failure of a Party to exercise or enforce any right under this Agreement shall not constitute a waiver of the right to exercise or enforce such right in the future.
3.5. Amendment
3.5.1. No amendment to this Agreement shall have any force or effect unless it is in writing and signed by both Parties.
3.6. Invalidity
3.6.1. In the event that a provision of this Agreement is null and void or unenforceable (either in whole or in part):
a. the remainder of this Agreement shall continue to be effective to the extent that, given the substance and purpose of this Agreement, such remainder is not inextricably related to the null and void or unenforceable provision; and
b. the Parties shall make every effort to reach agreement on a new provision which differs as little as possible from the null and void or unenforceable provision, taking into account the substance and purpose of this Agreement.
3.7. No rescission or nullification
3.7.1. To the extent permitted by law, the Parties waive their rights to rescind or nullify or to demand the rescission, nullification or amendment of this Agreement, in whole or in part, on any grounds whatsoever.
3.8. No transfer, assignment or encumbrance
3.8.1. No Party may transfer, assign or encumber its contractual relationship, any of its rights or any of its obligations under this Agreement.
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3.9. Term and termination
3.9.1. Subject to Article 3.9.3, this Agreement shall remain in full force for the duration of the Officer's term of office as Non-Executive Director and shall terminate, without prior notice being required, at the moment when the Officer ceases to be a Non-Executive Director.
3.9.2. For purposes of Article 3.9.1, the Officer's term of office shall not be considered to have expired or interrupted if the Officer is reappointed as Non-Executive Director for consecutive terms.
3.9.3. In case of a termination of this Agreement, the Officer's right to indemnification under Article 2 shall terminate at (and, exclusively for that purpose, the relevant provisions of this Agreement shall survive until) the later of the following moments:
a. the expiration of the statute of limitations applicable to any claim that could be asserted against the Officer with respect to which the Officer would be entitled to indemnification under this Agreement;
b. ten years after the date that the Officer has ceased to serve as a Non-Executive Director; or
c. if, at the later of the dates referred to in paragraphs a. and b. above, there would be an actual or pending Proceeding in respect of which the Officer would be entitled to indemnification under this Agreement or there is an actual or pending Proceeding in connection with this Agreement, one year after the competent court or arbitral tribunal has finally adjudicated such Proceeding, without possibility for appeal.
4. GOVERNING LAW AND JURISDICTION
4.1. Governing law
4.1.1. This Agreement and any non-contractual obligation arising out of or in connection with this Agreement shall be exclusively governed by and construed in accordance with the laws of the Netherlands.
4.2. Jurisdiction
4.2.1. The Parties agree that any dispute in connection with this Agreement or any agreement resulting therefrom shall be submitted to the exclusive jurisdiction of the competent court in Amsterdam, the Netherlands.
(signature page follows)
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Signature page to the indemnification agreement
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[ name Officer ]
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INNIO N.V.
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Name:
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O. Berlien
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Name:
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D. Schulze
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Title:
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CEO
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Title:
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CFO
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1
INDEMNIFICATION AGREEMENT
between
[ name ]
as the Officer
and
INNIO N.V.
as the Company
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TABLE OF CONTENTS
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1
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DEFINITIONS AND INTERPRETATION
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3
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1.1
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Definitions
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3
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1.2
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Interpretation
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5
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2
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INDEMNIFICATION AND INSURANCE
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5
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2.1
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Entitlement to indemnification
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5
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2.2
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Advancements
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2.3
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Limitations
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2.4
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Determination of entitlement to indemnification and advancements
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6
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2.5
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Proceedings
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7
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2.6
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D&O Insurance
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3
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MISCELLANEOUS PROVISIONS
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8
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3.1
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Confidentiality and disclosure
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3.2
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Notices
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3.3
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Entire agreement
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3.4
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No implied waiver
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3.5
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Amendment
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3.6
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Invalidity
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3.7
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No rescission or nullification
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3.8
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No transfer, assignment or encumbrance
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3.9
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Term and termination
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4
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GOVERNING LAW AND JURISDICTION
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4.1
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Governing law
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4.2
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Jurisdiction
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INDEMNIFICATION AGREEMENT
THIS AGREEMENT IS MADE ON [ DATE ] 2026 BETWEEN
1. Mr [ s ] . [ name ], born in [ place ] on [ date ] (the " Officer ").
2. INNIO N.V. , a public company with limited liability, having its corporate seat in Amsterdam (address: Nymphenburger Straße 5, 80335 Munich, Federal Republic of Germany, trade register number: [trade register number]) (the " Company ").
WHEREAS
A. The Officer has been appointed as Executive Director.
B. The Parties now wish to enter into this Agreement in order to lay down the terms applicable to the indemnification arrangements between the Officer and the Company.
NOW HEREBY AGREE AS FOLLOWS
1. DEFINITIONS AND INTERPRETATION
1.1. Definitions
1.1.1. In this Agreement the following definitions shall apply:
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Agreement
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This indemnification agreement.
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Article
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An article of this Agreement.
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Board
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The Company's board of directors.
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Confidential Information
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Information relating to the Company, its Subsidiaries and/or their respective businesses, directors, officers and employees, received by the Officer at any time (including prior to the date of this Agreement and after the termination of this Agreement), by any means (including through discussions with any director, officer, employee or advisor of the Company or any of its Subsidiaries), except for information:
a. which is in the public domain, other than as a result of a breach by the Officer (or by any party to whom information is disclosed by the Officer as permitted under this Agreement) of the obligations imposed by this Agreement or any other legal, contractual or fiduciary duty of confidentiality; or
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b. of which the Officer is able to demonstrate that it has lawfully become available to the Officer on a non-confidential basis from a source which was not prohibited from disclosing such information under any legal, contractual or fiduciary duty of confidentiality.
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D&O Insurance
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Directors and officers liability insurance.
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DCC
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The Dutch Civil Code.
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Director
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A member of the Board.
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Disinterested Director
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Any Non-Executive Director who is not, and has not been, involved in a Proceeding in respect of which the Officer's entitlement to indemnification and/or advancements should be determined pursuant to Article 2.4.1 under a.
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Executive Director
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An executive Director.
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Independent Counsel
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An attorney or a firm of attorneys which:
a. is experienced in matters of corporate law in the appropriate jurisdiction(s);
b. during a period of one year prior to being requested to determine the Officer's entitlement to indemnification and/or advancements pursuant to Article 2.4.1 under b., has not represented any party involved in a Proceeding in a manner which is material to either Party; and
c. under the applicable standards of professional conduct then prevailing, would not have a conflict of interests in representing either Party in determining the Officer's entitlement to indemnification and/or advancements pursuant to Article 2.4.1 under b.
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Non-Executive Director
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A non-executive Director.
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Party
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A party to this Agreement.
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Proceeding
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Any threatened, pending or completed suit, claim, action or legal proceedings of a civil, criminal, administrative, investigative or other nature, formal or informal, in which the Officer is, or becomes, involved.
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Stock Exchange
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Any of the following (including, for the avoidance of doubt, the Nasdaq Stock Market):
a. a regulated market or multilateral trading facility as defined in Section 1:1 of the Dutch Financial Supervision Act; or
b. a system comparable with a regulated market or multilateral trading facility as referred to under a. above, operating in a state which is not a Member State of the European Union or the European Economic Area.
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Subsidiary
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A subsidiary of the Company within the meaning of Section 2:24a DCC.
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1.2. Interpretation
1.2.1. References to statutory provisions are to those provisions as they are in force from time to time.
1.2.2. Terms that are defined in the singular have a corresponding meaning in the plural.
1.2.3. No provision of this Agreement shall be interpreted adversely against a Party solely because that Party was responsible for drafting that particular provision.
1.2.4. Although this Agreement has been drafted in the English language, this Agreement pertains to Dutch legal concepts. Any consequence of the use of English words and expressions in this Agreement under any law other than Dutch law shall be disregarded.
1.2.5. The word "including" is used to indicate that the matters listed are not a complete enumeration of all matters covered.
1.2.6. The titles and headings in this Agreement are for construction purposes as well as for reference. No Party may derive any rights from such titles and headings.
2. INDEMNIFICATION AND INSURANCE
2.1. Entitlement to indemnification
2.1.1. The Company shall indemnify the Officer and hold the Officer harmless against:
a. any financial losses or damages incurred by the Officer; and
b. any expense reasonably paid or incurred by the Officer in connection with any Proceeding,
in each case to the extent this relates to the Officer's current (or former) position as Executive Director and to the extent permitted by applicable law.
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2.1.2. The right to indemnification conferred in Article 2.1.1 shall continue as to the Officer who has ceased to hold office as Executive Director and shall inure to the benefit of the Officer's heirs, executors and administrators, subject always to Article 3.9.
2.2. Advancements
2.2.1. The Company shall promptly advance all reasonable and necessary expenses incurred by the Officer in connection with any Proceeding to the extent that the Company reasonably believes that the Officer is entitled to indemnification pursuant to Articles 2.1.1 and 2.3.1 in connection with such Proceeding, subject to the Officer submitting an itemised advance request to the Company.
2.2.2. To the extent that the Company has provided advancements pursuant to Article 2.2.1 in connection with a Proceeding in respect of which the Officer is not entitled to indemnification pursuant to Articles 2.1.1 and 2.3.1, such advancements shall promptly be reimbursed by the Officer.
2.3. Limitations
2.3.1. No indemnification shall be given to the Officer:
a. if a competent court or arbitral tribunal has established that the acts or omissions of the Officer that led to the financial losses, damages, expenses or Proceeding are considered to constitute malice, gross negligence, intentional recklessness and/or serious culpability attributable to the Officer and the Officer does not have, or no longer has, the possibility to appeal such decision;
b. to the extent that the Officer's financial losses, damages and expenses are covered under insurance (including any applicable D&O Insurance) and the relevant insurer has settled, or has provided reimbursement for, these financial losses, damages and expenses (or has irrevocably undertaken to do so);
c. in relation to proceedings brought by the Officer against the Company, except for proceedings brought to enforce indemnification to which the Officer is entitled pursuant to this Agreement, the Company's articles of association or any D&O Insurance taken out by the Company for the benefit of the Officer; or
d. for any financial losses, damages or expenses incurred in connection with a settlement of any Proceeding effected without the Company's prior consent.
2.4. Determination of entitlement to indemnification and advancements
2.4.1. If the Officer wishes to claim indemnification and/or advancements pursuant to Articles 2.1 and 2.2, the Officer shall submit a request to that effect to the Company. Upon receipt of such request, the Officer's entitlement to indemnification and/or advancements pursuant to Articles 2.1 and 2.2 shall be determined by any of the following (at the election of the Company):
a. so long as there are Disinterested Directors, either by majority vote of all Disinterested Directors or by majority vote of a committee composed exclusively of Disinterested
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Directors, provided that such committee is established by majority vote of all Disinterested Directors; or
b. Independent Counsel in a written opinion delivered to each Party.
2.4.2. If the Company decides to request Independent Counsel to make the determination referred to in Article 2.4.1, the Company shall notify the Officer of the identity of the Independent Counsel selected by it. The Officer may, within one week, notify the Company of its objection to the Independent Counsel selected by the Company, but only on the grounds that the relevant attorney or firm of attorneys does not meet the criteria of the definition of "Independent Counsel". In case of such objection being timely made and deemed well-founded by the Company, the Company shall select a different Independent Counsel and the previous two sentences apply mutatis mutandis in respect of such selection. The Company shall pay all fees and other expenses associated with the retention and services of Independent Counsel to make the determination referred to in Article 2.4.1.
2.4.3. The Company shall exert all reasonable efforts to cause any determination required under Article 2.4.1 to be made as promptly as practicable after the Officer has submitted its initial request for indemnification and/or advancements pursuant to Articles 2.1 and 2.2 and the Officer shall fully cooperate with the person(s) making such determination.
2.5. Proceedings
2.5.1. The Officer shall promptly notify the Company upon receipt of any complaint, demand letter, writ of summons or other indication that a Proceeding is being threatened or is forthcoming.
2.5.2. The Officer shall allow the Company to participate in any Proceeding and to assume the defence thereof in such manner as the Company deems appropriate, with counsel selected by the Company and reasonably satisfactory to the Officer, provided that:
a. the Company must conduct any such defence in good faith and in a diligent manner; and
b. the Company shall not, without the Officer's prior consent, allow or condone any judgment or award against the Officer nor enter into any settlement or compromise pursuant to which non-monetary obligations or penalties (including incarceration) would be imposed on the Officer and/or monetary obligations would be imposed on the Officer which would not be indemnified in full pursuant to Articles 2.1.1 and 2.3.1.
2.6. D&O Insurance
2.6.1. The Company shall take out and maintain adequate D&O Insurance for the benefit of the Officer for as long as the Officer serves as Executive Director, subject to the acceptance of the Officer under the conditions by the insurer concerned.
2.6.2. The premiums payable for D&O Insurance covering the Officer as an insured shall be borne by the Company.
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3. MISCELLANEOUS PROVISIONS
3.1. Confidentiality and disclosure
3.1.1. Subject to Articles 3.1.2 through 3.1.5, the Officer shall treat and safeguard as private and confidential all Confidential Information at all times and shall keep any copies thereof secure in such way so as to prevent unauthorised access by any third party.
3.1.2. The Officer shall not disclose any Confidential Information, unless:
a. this is required under applicable law, Stock Exchange requirements and/or by any competent authority;
b. it concerns a disclosure to the Officer's professional advisors, subject to a duty of confidentiality and only to the extent necessary for any lawful purpose; or
c. this is required in order to report or make public a suspicion of misconduct ( vermoeden van misstand ) as defined by and in accordance with the Dutch Whistle-blower Protection Act ( Wet bescherming klokkenluiders ).
3.1.3. Any disclosure of Confidential Information by the Officer under Article 3.1.2 shall be delayed until the Company has been consulted about the timing and content of such disclosure, to the extent that such a delay would be legally permissible.
3.1.4. The Officer shall, at the Company's first request and in any event upon the termination of this Agreement, promptly return or destroy all Confidential Information which the Officer has at [his/her] disposal, except to the extent that the Officer is required by applicable law to retain such Confidential Information.
3.1.5. All Confidential Information shall remain the exclusive property of the Company and/or its Subsidiaries, as the case may be. No right or licence is granted pursuant to this Agreement in relation to any Confidential Information.
3.2. Notices
3.2.1. All notices given under this Agreement shall be given or made by electronic means of communication or in writing and, in the latter case, shall be sent by courier service or by registered mail (with a copy of such notice or request being sent in advance by electronic means of communication).
3.2.2. All notices given under this Agreement to a Party which are sent by courier or by registered mail shall be sent:
a. if to the Officer, to the address as on file with the Company at that time; and
b. if to the Company, to address as registered with the Dutch trade registry at that time, for the attention of the Board.
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3.2.3. All notices given under this Agreement to a Party by electronic means of communication shall be sent:
a. if to the Officer, to: [ e-mail address ]
b. if to the Company, to: [ e-mail address ]
3.3. Entire agreement
3.3.1. This Agreement replaces and supersedes any existing indemnification agreement between the Parties, including any indemnification arrangements agreed between the Parties as part of a service, employment or other agreement.
3.4. No implied waiver
3.4.1. Nothing shall be construed as a waiver under this Agreement unless a document to that effect has been signed by the Parties or a notice to that effect has been given.
3.4.2. The failure of a Party to exercise or enforce any right under this Agreement shall not constitute a waiver of the right to exercise or enforce such right in the future.
3.5. Amendment
3.5.1. No amendment to this Agreement shall have any force or effect unless it is in writing and signed by both Parties.
3.6. Invalidity
3.6.1. In the event that a provision of this Agreement is null and void or unenforceable (either in whole or in part):
a. the remainder of this Agreement shall continue to be effective to the extent that, given the substance and purpose of this Agreement, such remainder is not inextricably related to the null and void or unenforceable provision; and
b. the Parties shall make every effort to reach agreement on a new provision which differs as little as possible from the null and void or unenforceable provision, taking into account the substance and purpose of this Agreement.
3.7. No rescission or nullification
3.7.1. To the extent permitted by law, the Parties waive their rights to rescind or nullify or to demand the rescission, nullification or amendment of this Agreement, in whole or in part, on any grounds whatsoever.
3.8. No transfer, assignment or encumbrance
3.8.1. No Party may transfer, assign or encumber its contractual relationship, any of its rights or any of its obligations under this Agreement.
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3.9. Term and termination
3.9.1. Subject to Article 3.9.3, this Agreement shall remain in full force for the duration of the Officer's term of office as Executive Director and shall terminate, without prior notice being required, at the moment when the Officer ceases to be an Executive Director.
3.9.2. For purposes of Article 3.9.1, the Officer's term of office shall not be considered to have expired or interrupted if the Officer is reappointed as Executive Director for consecutive terms.
3.9.3. In case of a termination of this Agreement, the Officer's right to indemnification under Article 2 shall terminate at (and, exclusively for that purpose, the relevant provisions of this Agreement shall survive until) the later of the following moments:
a. the expiration of the statute of limitations applicable to any claim that could be asserted against the Officer with respect to which the Officer would be entitled to indemnification under this Agreement;
b. ten years after the date that the Officer has ceased to serve as an Executive Director; or
c. if, at the later of the dates referred to in paragraphs a. and b. above, there would be an actual or pending Proceeding in respect of which the Officer would be entitled to indemnification under this Agreement or there is an actual or pending Proceeding in connection with this Agreement, one year after the competent court or arbitral tribunal has finally adjudicated such Proceeding, without possibility for appeal.
4. GOVERNING LAW AND JURISDICTION
4.1. Governing law
4.1.1. This Agreement and any non-contractual obligation arising out of or in connection with this Agreement shall be exclusively governed by and construed in accordance with the laws of the Netherlands.
4.2. Jurisdiction
4.2.1. The Parties agree that any dispute in connection with this Agreement or any agreement resulting therefrom shall be submitted to the exclusive jurisdiction of the competent court in Amsterdam, the Netherlands.
(signature page follows)
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Signature page to the indemnification agreement
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[ name Officer ]
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INNIO N.V.
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Name:
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O. Berlien
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Name:
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D. Schulze
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Title:
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CEO
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Title:
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CFO
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### EX-10.2 - EX-10.2
EX-10.2
5
ck0002109150-ex10_2.htm
EX-10.2
EX-10.2
Exhibit 10.2
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INNIO N.V.
2026 INCENTIVE AWARD PLAN
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ARTICLE I.
Purpose
The Plan’s purpose is to enhance the Company’s ability to attract, retain and motivate persons who make (or are expected to make) important contributions to the Company by providing these individuals with equity ownership opportunities and/or equity-linked compensatory opportunities. Capitalized terms used in the Plan are defined in Article XI.
ARTICLE II.
Eligibility
Service Providers are eligible to be granted Awards under the Plan, subject to the limitations described herein.
ARTICLE III.
Administration and Delegation
3.1 Administration . The Plan is administered by the Administrator. The Administrator has authority to determine which Service Providers receive Awards, grant Awards and set Award terms and conditions, subject to the conditions and limitations in the Plan. The Administrator also has the authority to take all actions and make all determinations under the Plan, to interpret the Plan and Award Agreements and to adopt, amend and repeal Plan administrative rules, guidelines and practices as it deems advisable. The Administrator may correct defects and ambiguities, supply omissions and reconcile inconsistencies in the Plan or any Award Agreement as it deems necessary or appropriate to administer the Plan and any Awards. Without limiting the foregoing, the Administrator has the exclusive power, authority and sole discretion to: (i) designate Participants; (ii) determine the type or types of Awards to be granted to each Participant; (iii) determine the number of Awards to be granted and the number of Shares to which an Award will relate; (iv) subject to the limitations in the Plan, determine the terms and conditions of any Award and related Award Agreement, including, but not limited to, the exercise price, grant price, purchase price, any performance criteria, any restrictions or limitations on the Award, any schedule for vesting, lapse of forfeiture restrictions or restrictions on the exercisability of an Award, and accelerations, waivers or amendments thereof; (v) determine whether, to what extent, and under what circumstances an Award may be settled in, or the exercise price of an Award may be paid in cash, Shares, or other property, or an Award may be cancelled, forfeited, or surrendered; and (vi) make all other decisions and determinations that may be required pursuant to the Plan or as the Administrator deems necessary or advisable to administer the Plan. The Administrator’s determinations under the Plan are in its sole discretion and will be final and binding on all persons having or claiming any interest in the Plan or any Award.
3.2 Appointment of Committees . To the extent Applicable Laws permit, the Board or the Administrator may delegate any or all of its powers under the Plan to one or more Committees or one or more committees of directors or officers of the Company or any of its Subsidiaries; provided , however , that in no event shall an officer of the Company be delegated the authority to grant Awards to, or amend Awards held by, the following individuals: (a) individuals who are subject to Section 16 of the Exchange Act, or (b) officers of the Company (or Directors) to whom authority to grant or amend Awards has been delegated
hereunder. The Board or the Administrator, as applicable, may rescind any such delegation, abolish any such Committee or committee and/or re-vest in itself any previously delegated authority at any time.
ARTICLE IV.
SHARES Available for Awards
4.1 Number of Shares . Subject to adjustment under Article VIII and the terms of this Article IV, the maximum number of Shares that may be issued pursuant to Awards under the Plan shall be equal to the Overall Share Limit. Shares issued under the Plan may consist of authorized but unissued Shares, Shares purchased on the open market or treasury Shares.
4.2 Share Recycling . If all or any part of an Award expires, lapses or is terminated, exchanged for or settled in cash, surrendered, repurchased, canceled without having been fully exercised or forfeited, in any case, in a manner that results in the Company acquiring Shares covered by the Award at a price not greater than the price (as adjusted to reflect any Equity Restructuring) paid by the Participant for such Shares or not issuing any Shares covered by the Award (and no longer being obligated to issue any such Shares), the unused Shares covered by the Award will, as applicable, become or again be available for Award grants under the Plan. In addition, Shares delivered or surrendered to the Company by a Participant to satisfy the applicable exercise or purchase price of an Award and/or to satisfy any applicable tax withholding obligation with respect to an Award (including Shares retained or not issued by the Company from the Award being exercised or purchased and/or creating the tax obligation) will, as applicable, become or again be available for Award grants under the Plan. The payment of Dividend Equivalents in cash in conjunction with any outstanding Awards shall not count against the Overall Share Limit. Notwithstanding anything to the contrary contained herein, the following Shares shall not be added to the Shares authorized for grant under Section 4.1 and shall not be available for future grants of Awards: (i) Shares subject to a Share Appreciation Right that are not issued in connection with the share settlement of the Share Appreciation Right on exercise thereof; and (ii) Shares purchased on the open market by the Company with the cash proceeds from the exercise of Options.
4.3 Incentive Stock Option Limitations . Notwithstanding anything to the contrary herein, no more than 100,000,000 Shares may be issued pursuant to the exercise of Incentive Stock Options.
4.4 Substitute Awards . In connection with an entity’s merger or consolidation with the Company or the Company’s acquisition of an entity’s property or shares, the Administrator may grant Awards in substitution for any options or other share or share-based awards granted before such merger or consolidation by such entity or its affiliate. Substitute Awards may be granted on such terms as the Administrator deems appropriate, notwithstanding limitations on Awards in the Plan. Substitute Awards will not count against the Overall Share Limit (nor shall Shares subject to a Substitute Award be added to the Shares available for Awards under the Plan as provided above), except that Shares acquired by exercise of substitute Incentive Stock Options will count against the maximum number of Shares that may be issued pursuant to the exercise of Incentive Stock Options under the Plan. Additionally, in the event that a company acquired by the Company or any Subsidiary or with which the Company or any Subsidiary combines has shares available under a pre-existing plan approved by shareholders and not adopted in contemplation of such acquisition or combination, the shares available for grant pursuant to the terms of such pre-existing plan (as adjusted, to the extent appropriate, using the exchange ratio or other adjustment or valuation ratio or formula used in such acquisition or combination to determine the consideration payable to the holders of shares of the entities party to such acquisition or combination) may be used for Awards under the Plan and shall not reduce the Shares authorized for grant under the Plan (and Shares subject to such Awards shall not be added to the Shares available for Awards under the Plan as provided above); provided that Awards using such available shares shall not be made after the date awards or grants could have been made under
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the terms of the pre-existing plan, absent the acquisition or combination, and shall only be made to individuals who were not Employees, Consultants or Directors prior to such acquisition or combination.
ARTICLE V.
share Options and SHARE Appreciation Rights
5.1 General . The Administrator may grant Options or Share Appreciation Rights to Service Providers subject to the limitations in the Plan, including any limitations in the Plan that apply to Incentive Stock Options. A Share Appreciation Right will entitle the Participant (or other person entitled to exercise the Share Appreciation Right) to receive from the Company upon exercise of the exercisable portion of the Share Appreciation Right an amount determined by multiplying the excess, if any, of the Fair Market Value of one Share on the date of exercise over the exercise price per Share of the Share Appreciation Right by the number of Shares with respect to which the Share Appreciation Right is exercised, subject to any limitations of the Plan or that the Administrator may impose and payable in cash, Shares valued at Fair Market Value or a combination of the two as the Administrator may determine or provide in the Award Agreement.
5.2 Exercise Price . The Administrator will establish each Option’s and Share Appreciation Right’s exercise price and specify the exercise price in the Award Agreement. The exercise price will not be less than 100% of the Fair Market Value on the grant date of the Option (subject to Section 5.6) or Share Appreciation Right, unless otherwise determined by the Administrator (and shall be at least equal to the nominal value of the Shares underlying the Option or Share Appreciation Right). Notwithstanding the foregoing, in the case of an Option or a Share Appreciation Right that is a Substitute Award, the exercise price per Share of the Shares subject to such Option or Share Appreciation Right, as applicable, may be less than the Fair Market Value per share on the date of grant; provided that (a) the exercise price of any Substitute Award shall be determined in accordance with the applicable requirements of Sections 424 and 409A of the Code or other Applicable Law and (b) shall be at least equal to the nominal value of the Shares underlying the Option or Share Appreciation Right.
5.3 Duration . Each Option or Share Appreciation Right will be exercisable at such times and as specified in the Award Agreement, provided that, subject to Section 5.6, the term of an Option or Share Appreciation Right will not exceed ten years. Notwithstanding the foregoing and unless determined otherwise by the Company, in the event that on the last business day of the term of an Option or Share Appreciation Right (other than an Incentive Stock Option) (i) the exercise of the Option or Share Appreciation Right is prohibited by Applicable Law, as determined by the Company, or (ii) Shares may not be purchased or sold by the applicable Participant due to any Company insider trading policy (including blackout periods) or a “lock-up” agreement undertaken in connection with an issuance of securities by the Company, the term of the Option or Share Appreciation Right shall be extended until the date that is 30 days after the end of the legal prohibition, black-out period or lock-up agreement, as determined by the Company; provided , however , in no event shall the extension last beyond the ten year term of the applicable Option or Share Appreciation Right. Unless otherwise determined by the Administrator in the Award Agreement or by action of the Administrator following the grant of the Option or Share Appreciation Right, (i) no portion of an Option or Share Appreciation Right which is unexercisable at a Participant’s Termination of Service shall thereafter become exercisable and (ii) the portion of an Option or Share Appreciation Right that is unexercisable at a Participant’s Termination of Service shall automatically expire thirty (30) days following such Termination of Service. Notwithstanding the foregoing, to the extent permitted under Applicable Laws, if the Participant, prior to the end of the term of an Option or Share Appreciation Right, violates the non-competition, non-solicitation, confidentiality or other similar restrictive covenant provisions of any employment contract, confidentiality and nondisclosure agreement or other agreement between the Participant and the Company or any of its Subsidiaries (as determined by the Administrator at its discretion), the right of the Participant and the Participant’s transferees to exercise
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any Option or Share Appreciation Right issued to the Participant shall terminate immediately upon such violation, unless the Company otherwise determines.
5.4 Exercise . Options and Share Appreciation Rights may be exercised by delivering to the Company a written notice of exercise, in a form the Administrator approves (which may be electronic), signed by the person authorized to exercise the Option or Share Appreciation Right, together with, as applicable, payment in full (i) as specified in Section 5.5 for the number of Shares for which the Award is exercised and (ii) as specified in Section 9.5 for any applicable taxes. Unless the Administrator otherwise determines, an Option or Share Appreciation Right may not be exercised for a fraction of a Share.
5.5 Payment Upon Exercise . Subject to Section 10.8, any Company insider trading policy (including blackout periods) and Applicable Laws, the exercise price of an Option must be paid by:
(a) cash, wire transfer of immediately available funds or by check payable to the order of the Company, provided that the Company may limit the use of one of the foregoing payment forms if one or more of the payment forms below is permitted;
(b) if there is a public market for Shares at the time of exercise, unless the Company otherwise determines, (A) delivery (including electronically or telephonically to the extent permitted by the Company) of an irrevocable and unconditional undertaking by a broker acceptable to the Company to deliver promptly to the Company sufficient funds to pay the exercise price, or (B) the Participant’s delivery to the Company of a copy of irrevocable and unconditional instructions to a broker acceptable to the Company to deliver promptly to the Company cash or a check sufficient to pay the exercise price; provided that (i) such amount is paid to the Company at such time as may be required by the Administrator and (ii) such undertaking or instruction includes a confirmation from the broker concerned that it will hold an amount equal to the applicable exercise price for the Company’s benefit and for its account until such payment is made to the Company;
(c) to the extent permitted by the Administrator, delivery of Shares owned by the Participant valued at their Fair Market Value;
(d) to the extent permitted by the Administrator, surrendering Shares then issuable upon the Option’s exercise valued at their Fair Market Value on the exercise date;
(e) to the extent permitted by the Administrator, delivery of any other property that the Administrator determines is good and valuable consideration; or
(f) to the extent permitted by the Company, any combination of the above payment forms approved by the Administrator.
5.6 Additional Terms of Incentive Stock Options . The Administrator may grant Incentive Stock Options only to employees of the Company, any of its present or future parent or subsidiary corporations, as defined in Sections 424(e) or (f) of the Code, respectively, and any other entities the employees of which are eligible to receive Incentive Stock Options under the Code. If an Incentive Stock Option is granted to a Greater Than 10% Shareholder, the exercise price will not be less than 110% of the Fair Market Value on the Option’s grant date and shall be at least equal to the nominal value of the Shares underlying the Incentive Stock Option, and the term of the Option will not exceed five years. All Incentive Stock Options will be subject to and construed consistently with Section 422 of the Code. By accepting an Incentive Stock Option, the Participant agrees to give prompt notice to the Company of dispositions or other transfers (other than in connection with a Change in Control) of Shares acquired under the Option made within (i) two years from the grant date of the Option or (ii) one year after the transfer of such Shares
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to the Participant, specifying the date of the disposition or other transfer and the amount the Participant realized, in cash, other property, assumption of indebtedness or other consideration, in such disposition or other transfer. Neither the Company nor the Administrator will be liable to a Participant, or any other party, if an Incentive Stock Option fails or ceases to qualify as an “incentive stock option” under Section 422 of the Code. Any Incentive Stock Option or portion thereof that fails to qualify as an “incentive stock option” under Section 422 of the Code for any reason, including becoming exercisable with respect to Shares having a fair market value exceeding the $100,000 limitation under Treasury Regulation Section 1.422-4, will be a Non-Qualified Option.
ARTICLE VI.
Restricted ShareS; Restricted Share Units
6.1 General . The Administrator may grant Restricted Shares, or the right to purchase Restricted Shares, to any Service Provider, subject to the Company’s right to repurchase all or part of such Shares at their issue price or other stated or formula price from the Participant (or to require forfeiture of such Shares) if conditions the Administrator specifies in the Award Agreement are not satisfied before the end of the applicable restriction period or periods that the Administrator establishes for such Award. In addition, the Administrator may grant to Service Providers Restricted Share Units, which may be subject to vesting and forfeiture conditions during the applicable restriction period or periods, as set forth in an Award Agreement.
6.2 Restricted Shares .
(a) Rights as Shareholders . Subject to the Company’s right of repurchase as described above, upon issuance of Restricted Shares, the Participant shall have, unless otherwise provided by the Administrator, all of the rights of a shareholder with respect to said Shares, subject to the restrictions in the Plan.
(b) Dividends . Participants holding Restricted Shares will be entitled to all ordinary cash dividends and other distributions paid with respect to such Shares, unless the Administrator provides otherwise in the Award Agreement. In addition, unless the Administrator provides otherwise, if any dividends or distributions are paid in Shares, or consist of a dividend or distribution to holders of Shares of property other than an ordinary cash dividend, the Shares or other property will be subject to the same restrictions on transferability and forfeitability as the Restricted Shares with respect to which they were paid. Notwithstanding anything to the contrary herein, with respect to any award of Restricted Shares, dividends or other distributions which are paid to holders of Shares prior to vesting shall only be paid out to the Participant holding such Restricted Shares to the extent that the vesting conditions are subsequently satisfied. All such dividend payments or distributions will be made no later than March 15 of the calendar year following the calendar year in which the right to the dividend or distribution payment becomes nonforfeitable.
(c) Share Certificates . The Company may require that the Participant deposit in escrow with the Company (or its designee) any share certificates issued in respect of Restricted Shares, together with a share power endorsed in blank.
(d) Section 83(b) Election . If a Participant makes an election under Section 83(b) of the Code to be taxed with respect to the Restricted Shares as of the date of transfer of the Restricted Shares rather than as of the date or dates upon which such Participant would otherwise be taxable under Section 83(a) of the Code, such Participant shall be required to deliver a copy of such election to the Company
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promptly after filing such election with the Internal Revenue Service along with proof of the timely filing thereof.
6.3 Restricted Share Units.
(a) Settlement . The Administrator may provide that settlement of Restricted Share Units will occur upon or as soon as reasonably practicable after the Restricted Share Units vest or will instead be deferred, on a mandatory basis or at the Participant’s election, in a manner intended to comply with Section 409A.
(b) Shareholder Rights . A Participant will have no rights of a shareholder with respect to Shares subject to any Restricted Share Unit unless and until the Shares are delivered in settlement of the Restricted Share Unit.
ARTICLE VII.
Other Share or Cash Based Awards; DIVIDEND EQUIVALENTS
7.1 Other Share or Cash Based Awards . Other Share or Cash Based Awards may be granted to Participants, including Awards entitling Participants to receive Shares to be delivered in the future and including annual or other periodic or long-term cash bonus awards (whether based on specified Performance Criteria or otherwise), in each case subject to any conditions and limitations in the Plan. Such Other Share or Cash Based Awards will also be available as a payment form in the settlement of other Awards, as standalone payments and as payment in lieu of compensation to which a Participant is otherwise entitled. Other Share or Cash Based Awards may be paid in Shares, cash or other property, as the Administrator determines.
7.2 Dividend Equivalents . A grant of Restricted Share Units or Other Share or Cash Based Award may provide a Participant with the right to receive Dividend Equivalents, and no Dividend Equivalents shall be payable with respect to Options or Share Appreciation Rights. Dividend Equivalents may be paid currently or credited to an account for the Participant, settled in cash or Shares and subject to the same restrictions on transferability and forfeitability as the Award with respect to which the Dividend Equivalents are paid and subject to other terms and conditions as set forth in the Award Agreement. Notwithstanding anything to the contrary herein, Dividend Equivalents with respect to an Award shall only be paid out to the Participant to the extent that the vesting conditions applicable to the underlying Award are satisfied. All such Dividend Equivalent payments will be made no later than March 15 of the calendar year following the calendar year in which the right to the Dividend Equivalent payment becomes nonforfeitable in accordance with the foregoing, unless otherwise determined by the Administrator.
ARTICLE VIII.
Adjustments for Changes in ShareS and Certain Other Events
8.1 Equity Restructuring . In connection with any Equity Restructuring, notwithstanding anything to the contrary in this Article VIII, the Administrator will equitably adjust each outstanding Award as it deems appropriate to reflect the Equity Restructuring, which may include adjusting the number and type of securities subject to each outstanding Award, or with respect to which Awards may be granted under the Plan (including, but not limited to, adjustments of the limitations in Article IV hereof on the maximum number and kind of shares that may be issued); and/or the Award’s exercise price or grant price (if applicable), granting new Awards to Participants, and making a cash payment to Participants. The adjustments provided under this Section 8.1 will be nondiscretionary and final and binding on the affected Participant and the Company; provided that the Administrator will determine whether an adjustment is equitable.
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8.2 Corporate Transactions . In the event of any dividend or other distribution (whether in the form of cash, Shares, other securities, or other property), reorganization, merger, consolidation, combination, amalgamation, repurchase, recapitalization, liquidation, dissolution, or sale, transfer, exchange or other disposition of all or substantially all of the assets of the Company, or sale or exchange of Shares or other securities of the Company, Change in Control, issuance of warrants or other rights to purchase Shares or other securities of the Company, other similar corporate transaction or event, other unusual or nonrecurring transaction or event affecting the Company or its financial statements or any change in any Applicable Laws or accounting principles, the Administrator, on such terms and conditions as it deems appropriate, either by the terms of the Award or by action taken prior to the occurrence of such transaction or event (except that action to give effect to a change in Applicable Law or accounting principles may be made within a reasonable period of time after such change) and either automatically or upon the Participant’s request, is hereby authorized to take any one or more of the following actions whenever the Administrator determines that such action is appropriate in order to (x) prevent dilution or enlargement of the benefits or potential benefits intended by the Company to be made available under the Plan or with respect to any Award granted or issued under the Plan, (y) facilitate such transaction or event or (z) give effect to such changes in Applicable Laws or accounting principles:
(a) To provide for the cancellation of any such Award in exchange for either an amount of cash or other property with a value equal to the amount that could have been obtained upon the exercise or settlement of the vested portion of such Award or realization of the Participant’s rights under the vested portion of such Award, as applicable; provided that, if the amount that could have been obtained upon the exercise or settlement of the vested portion of such Award or realization of the Participant’s rights, in any case, is equal to or less than zero, then the Award may be terminated without payment;
(b) To provide that such Award shall vest and, to the extent applicable, be exercisable as to all Shares covered thereby, notwithstanding anything to the contrary in the Plan or the provisions of such Award;
(c) To provide that such Award be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted for by awards covering the shares of the successor or survivor corporation, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kind of shares and/or applicable exercise or purchase price, in all cases, as determined by the Administrator;
(d) To make adjustments in the number and type of Shares (or other securities or property) subject to outstanding Awards and/or with respect to which Awards may be granted under the Plan (including, but not limited to, adjustments of the limitations in Article IV on the maximum number and kind of shares which may be issued) and/or in the terms and conditions of (including the grant or exercise price or applicable performance goals), and the criteria included in, outstanding Awards;
(e) To replace such Award with other rights or property selected by the Administrator; and/or
(f) To provide that the Award will terminate and cannot vest, be exercised or become payable after the applicable event.
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8.3 Effect of Non-Assumption in a Change in Control .
(a) Notwithstanding the provisions of Section 8.2, if a Change in Control occurs and a Participant’s Award is not continued, converted, assumed or replaced with a substantially similar award by (a) the Company, or (b) a successor entity or its parent or subsidiary (an “ Assumption ”), and provided that the Participant has not had a Termination of Service, then, immediately prior to the Change in Control, such Award (including, for the avoidance of doubt, time-based awards) shall become fully vested, exercisable and/or payable, as applicable, and all forfeiture, repurchase and other restrictions on such Award shall lapse (and with respect to the portion of such Award subject to performance-based vesting, all performance criteria will be deemed achieved at the greater of (1) 100% of target levels and (2) actual achievement of the applicable performance criteria as of such Change in Control, unless specifically provided otherwise under the applicable Award Agreement or other written agreement between the Participant and the Company or any of its Subsidiaries or parents, as applicable), in which case, such Award shall be canceled upon the consummation of the Change in Control in exchange for the right to receive the Change in Control consideration payable to other holders of Shares (i) which may be on such terms and conditions as apply generally to holders of Shares under the Change in Control documents (including, without limitation, any escrow, earn-out or other deferred consideration provisions) or such other terms and conditions as the Administrator may provide, and (ii) determined by reference to the number of Shares subject to such Award and net of any applicable exercise price; provided that to the extent that any Award constitutes “nonqualified deferred compensation” that may not be paid upon the Change in Control under Section 409A without the imposition of taxes thereon under Section 409A (including payments as a result of any termination of “nonqualified deferred compensation” Awards permitted under Section 409A in connection with a Change in Control), the timing of such payments shall be governed by the applicable Award Agreement (subject to any deferred consideration provisions applicable under the Change in Control documents); and provided , further , that if the amount to which the Participant would be entitled upon the settlement or exercise of such Award at the time of the Change in Control is equal to or less than zero, then such Award may be terminated without payment. The Administrator shall determine whether an Assumption of an Award has occurred in connection with a Change in Control.
(b) If a Change in Control occurs and a Participant’s Awards are Assumed pursuant to Section 8.3(a), and, on or within 12 months following such Change in Control, the Company or its successor entity or a parent or subsidiary thereof terminates such Participant’s employment or service with such entity for any reason (other than for Cause and other than as a result of such Participant’s death or Disability), then (A) such Participant’s remaining unvested Awards (including any Substitute Awards) shall become fully vested, exercisable and/or payable, as applicable, and all forfeiture, repurchase and other restrictions on such Awards (including any Substitute Awards) shall lapse, on the date of such Termination of Service, and (B) with respect to Options then held by such Participant, the Participant shall have a period of six months following the date of such Termination of Service (or such longer period as may be set forth in the applicable Award Agreement(s)) to exercise such Options, to the extent that he or she was otherwise entitled to exercise such Options on the date of such Termination of Service (but in no event shall any Option remain exercisable beyond its outside expiration date).
8.4 Administrative Stand Still . In the event of any pending share dividend, share split, combination or exchange of shares, merger, consolidation or other distribution (other than normal cash dividends) of Company assets to shareholders, or any other extraordinary transaction or change affecting the Shares or the share price of the Shares, including any Equity Restructuring or any securities offering or other similar transaction, for administrative convenience, the Administrator may refuse to permit the exercise of any Award for up to 60 days before or after such transaction.
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8.5 General . Except as expressly provided in the Plan or the Administrator’s action under the Plan, no Participant will have any rights due to any subdivision or consolidation of Shares of any class, dividend payment, increase or decrease in the number of Shares of any class or dissolution, liquidation, merger, or consolidation of the Company or other corporation. Except as expressly provided with respect to an Equity Restructuring under Section 8.1 or the Administrator’s action under the Plan, no issuance by the Company of Shares of any class, or securities convertible into Shares of any class, will affect, and no adjustment will be made regarding, the number of Shares subject to an Award or the Award’s grant or exercise price. The existence of the Plan, any Award Agreements and the Awards granted hereunder will not affect or restrict in any way the Company’s right or power to make or authorize (i) any adjustment, recapitalization, reorganization or other change in the Company’s capital structure or its business, (ii) any merger, consolidation dissolution or liquidation of the Company or sale of Company assets or (iii) any sale or issuance of securities, including securities with rights superior to those of the Shares or securities convertible into or exchangeable for Shares. The Administrator may treat Participants and Awards (or portions thereof) differently under this Article VIII.
ARTICLE IX.
General Provisions Applicable to Awards
9.1 Transferability . Except as the Administrator may determine or provide in an Award Agreement or otherwise for Awards other than Incentive Stock Options, Awards may not be sold, assigned, transferred, pledged or otherwise encumbered, either voluntarily or by operation of law, except for certain beneficiary designations, by will or the laws of descent and distribution, or, subject to the Administrator’s consent, pursuant to a domestic relations order, and, during the life of the Participant, will be exercisable only by the Participant. Any permitted transfer of an Award hereunder shall be without consideration, except as required by Applicable Law, and such Award transferred to a permitted transferee shall continue to be subject to all the terms and conditions of the Award as applicable to the original Participant and the Participant or transferor and the receiving permitted transferee shall execute any and all documents requested by the Administrator. References to a Participant, to the extent relevant in the context, will include references to a Participant’s authorized transferee that the Administrator specifically approves.
9.2 Documentation . Each Award will be evidenced in an Award Agreement, which may be written or electronic, as the Administrator determines. The Award Agreement will contain the terms and conditions applicable to an Award. Each Award may contain terms and conditions in addition to those set forth in the Plan.
9.3 Discretion . Except as the Plan otherwise provides, each Award may be made alone or in addition or in relation to any other Award. The terms of each Award to a Participant need not be identical, and the Administrator need not treat Participants or Awards (or portions thereof) uniformly.
9.4 Termination of Status . The Administrator will determine in accordance with Applicable Law how the disability, death, retirement, an authorized leave of absence or any other change or purported change in a Participant’s Service Provider status affects an Award and the extent to which, and the period during which the Participant, the Participant’s legal representative, conservator, guardian or Designated Beneficiary may exercise rights under the Award, if applicable.
9.5 Withholding . Each Participant must pay the Company, or make provision satisfactory to the Administrator for payment of, any taxes (including any employee’s portion of any social security contribution) required by Applicable Law to be withheld in connection with such Participant’s Awards by the date of the event creating the tax liability. The Company (or any subsidiary of the Company as employing entity) may deduct an amount sufficient to satisfy such tax obligations based on the applicable statutory withholding rates (or such other rate as may be determined by the Company after considering any
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accounting consequences or costs) from any payment of any kind otherwise due to a Participant. In the absence of a contrary determination by the Company (or, with respect to withholding pursuant to clause (ii) below with respect to Awards held by individuals subject to Section 16 of the Exchange Act, a contrary determination by the Administrator), all tax withholding obligations will be calculated based on the maximum applicable statutory withholding rates. Subject to Section 10.8 and any Company insider trading policy (including blackout periods), Participants may satisfy such tax obligations (i) in cash, by wire transfer of immediately available funds, by check made payable to the order of the Company, provided that the Company may limit the use of the foregoing payment forms if one or more of the payment forms below is permitted, (ii) to the extent permitted by the Administrator, in whole or in part by delivery of Shares, including Shares delivered by attestation and Shares retained from the Award creating the tax obligation, valued at their Fair Market Value on the date of delivery, (iii) if there is a public market for Shares at the time the tax obligations are satisfied, unless the Company otherwise determines, (A) delivery (including electronically or telephonically to the extent permitted by the Company) of an irrevocable and unconditional undertaking by a broker acceptable to the Company to deliver promptly to the Company sufficient funds to satisfy the tax obligations, or (B) delivery by the Participant to the Company of a copy of irrevocable and unconditional instructions to a broker acceptable to the Company to deliver promptly to the Company cash or a check sufficient to satisfy the tax withholding; provided that such amount is paid to the Company at such time as may be required by the Administrator, or (iv) to the extent permitted by the Company, any combination of the foregoing payment forms approved by the Administrator. Notwithstanding any other provision of the Plan, the number of Shares which may be so delivered or retained pursuant to clause (ii) of the immediately preceding sentence shall be limited to the number of Shares which have a Fair Market Value on the date of delivery or retention no greater than the aggregate amount of such liabilities based on the maximum individual statutory tax rate in the applicable jurisdiction at the time of such withholding (or such other rate as may be required to avoid the liability classification of the applicable award under generally accepted accounting principles in the United States of America); provided , however , to the extent such Shares were acquired by Participant from the Company as compensation, the Shares must have been held for the minimum period required by applicable accounting rules to avoid a charge to the Company’s earnings for financial reporting purposes; provided , further , that, any such Shares delivered or retained shall be rounded up to the nearest whole Share to the extent rounding up to the nearest whole Share does not result in the liability classification of the applicable Award under generally accepted accounting principles in the United States of America. If any tax withholding obligation will be satisfied under clause (ii) above by the Company’s retention of Shares from the Award creating the tax obligation and there is a public market for Shares at the time the tax obligation is satisfied, the Company may elect to instruct any brokerage firm determined acceptable to the Company for such purpose to sell on the applicable Participant’s behalf some or all of the Shares retained and to remit the proceeds of the sale to the Company or its designee, and each Participant’s acceptance of an Award under the Plan will constitute the Participant’s authorization to the Company and instruction and authorization to such brokerage firm to complete the transactions described in this sentence.
9.6 Amendment of Award; Repricing . The Administrator may amend, modify or terminate any outstanding Award, including by substituting another Award of the same or a different type, changing the exercise or settlement date, and converting an Incentive Stock Option to a Non-Qualified Option. The Participant’s consent to such action will be required unless (i) the action, taking into account any related action, does not materially and adversely affect the Participant’s rights under the Award, or (ii) the change is permitted under Article VIII or pursuant to Section 10.6, in each case, as determined by the Administrator in its discretion. Notwithstanding the foregoing or anything in the Plan to the contrary, the Administrator may not, without the approval of the Company’s general meeting, (i) reduce the exercise price per share of outstanding Options or Share Appreciation Rights or (ii) cancel outstanding Options or Share Appreciation
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Rights in exchange for cash, other Awards or Options or Share Appreciation Rights with an exercise price per share that is less than the exercise price per share of the original Options or Share Appreciation Rights.
9.7 Conditions on Delivery of Shares . The Company will not be obligated to deliver any Shares under the Plan or remove restrictions from Shares previously delivered under the Plan until (i) all Award conditions have been met or removed to the Company’s satisfaction, (ii) as determined by the Company, all other legal matters regarding the issuance and delivery of such Shares have been satisfied, including any applicable securities laws and stock exchange or stock market rules and regulations, and (iii) the Participant has executed and delivered to the Company such representations or agreements as the Administrator deems necessary or appropriate to satisfy any Applicable Laws. The Company’s inability to obtain authority from any regulatory body having jurisdiction, which the Administrator determines is necessary to the lawful issuance and sale of any securities, will relieve the Company of any liability for failing to issue or sell such Shares as to which such requisite authority has not been obtained.
9.8 Acceleration . The Administrator may at any time provide that any Award will become immediately vested and fully or partially exercisable, free of some or all restrictions or conditions, or otherwise fully or partially realizable.
9.9 Cash Settlement . Without limiting the generality of any other provision of the Plan, the Administrator may provide, in an Award Agreement or subsequent to the grant of an Award, in its discretion, that any Award may be settled in cash, Shares or a combination thereof.
9.10 Broker-Assisted Sales . In the event of a broker-assisted sale of Shares in connection with the payment of amounts owed by a Participant under or with respect to the Plan or Awards, including amounts to be paid under the final sentence of Section 9.5: (i) any Shares to be sold through the broker-assisted sale will be sold on the day the payment first becomes due, or as soon thereafter as practicable; (ii) such Shares may be sold as part of a block trade with other Participants in the Plan in which all participants receive an average price; (iii) the applicable Participant will be responsible for all broker’s fees and other costs of sale, and by accepting an Award, each Participant agrees to indemnify and hold the Company harmless from any losses, costs, damages, or expenses relating to any such sale; (iv) to the extent the Company or its designee receives proceeds of such sale that exceed the amount owed, the Company will pay such excess in cash to the applicable Participant as soon as reasonably practicable; (v) the Company and its designees are under no obligation to arrange for such sale at any particular price; and (vi) in the event the proceeds of such sale are insufficient to satisfy the Participant’s applicable obligation, the Participant may be required to pay immediately upon demand to the Company or its designee an amount in cash sufficient to satisfy any remaining portion of the Participant’s obligation.
ARTICLE X.
Miscellaneous
10.1 No Right to Employment or Other Status . No person will have any claim or right to be granted an Award, and the grant of an Award will not be construed as giving a Participant the right to continued employment or any other relationship with the Company or any of its Subsidiaries. The Company and its Subsidiaries expressly reserve the right at any time to dismiss or otherwise terminate its relationship with a Participant free from any liability or claim under the Plan or any Award, except as expressly provided in an Award Agreement or in the Plan. No Service Provider shall have any right to be granted an Award pursuant to the Plan and neither the Company nor the Administrator is obligated to treat Service Providers, Participants or any other persons uniformly.
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10.2 No Rights as Shareholder; Certificates . Subject to the Award Agreement, no Participant or Designated Beneficiary will have any rights as a shareholder with respect to any Shares to be distributed under an Award until becoming the record holder of such Shares. Notwithstanding any other provision of the Plan, unless the Administrator otherwise determines or Applicable Laws require, the Company will not be required to deliver to any Participant certificates evidencing Shares issued in connection with any Award and instead such Shares may be recorded in the books of the Company (or, as applicable, its transfer agent or share plan administrator). The Company may place legends on share certificates issued under the Plan that the Administrator deems necessary or appropriate to comply with Applicable Laws.
10.3 Effective Date and Term of Plan . Unless earlier terminated by the Board, the Plan will become effective on the day prior to the Public Trading Date, subject to the conversion of the Company into a Dutch company with limited liability ( naamloze vennootschap ) (the “ Effective Date ”) and will remain in effect until the tenth anniversary of the earlier of (i) the date the Board adopted the Plan or (ii) the date the Company’s general meeting approved the Plan, but Awards previously granted may extend beyond that date in accordance with the Plan. Notwithstanding anything to the contrary in the Plan, an Incentive Stock Option may not be granted under the Plan after 10 years from the earlier of (i) the date the Board adopted the Plan or (ii) the date the Company’s general meeting of shareholders approved the Plan, but Awards previously granted may extend beyond that date in accordance with the Plan. If the Plan is not approved by the Company’s general meeting, the Plan will not become effective and no Awards will be granted under the Plan.
10.4 Amendment of Plan . The Board may amend, suspend or terminate the Plan at any time; provided that no amendment, other than an increase to the Overall Share Limit, may materially and adversely affect any Award outstanding at the time of such amendment without the affected Participant’s consent. No Awards may be granted under the Plan during any suspension period or after the Plan’s termination. Awards outstanding at the time of any Plan suspension or termination will continue to be governed by the Plan and the Award Agreement, as in effect before such suspension or termination. The Board will obtain approval by the Company’s general meeting of any Plan amendment to the extent necessary to comply with Applicable Laws.
10.5 Provisions for Foreign Participants . The Administrator may modify Awards granted to Participants who are foreign nationals or employed outside the United States or establish subplans or procedures under the Plan to address requirements of Applicable Laws and differences in laws, rules, regulations or customs of such foreign jurisdictions with respect to tax, securities, currency, employee benefit or other matters; provided , however , that no such subplans and/or modifications shall increase the Overall Share Limit.
10.6 Section 409A .
(a) General . The Company intends that all Awards be structured to comply with, or be exempt from, Section 409A, such that no adverse tax consequences, interest, or penalties under Section 409A apply. Notwithstanding anything in the Plan or any Award Agreement to the contrary, the Administrator may, without a Participant’s consent, amend this Plan or Awards, adopt policies and procedures, or take any other actions (including amendments, policies, procedures and retroactive actions) as are necessary or appropriate to preserve the intended tax treatment of Awards, including any such actions intended to (A) exempt this Plan or any Award from Section 409A, or (B) comply with Section 409A, including regulations, guidance, compliance programs and other interpretative authority that may be issued after an Award’s grant date. The Company makes no representations or warranties as to an Award’s tax treatment under Section 409A or otherwise. The Company will have no obligation under this Section 10.6 or otherwise to avoid the taxes, penalties or interest under Section 409A with respect to any Award and will have no liability to any Participant or any other person if any Award, compensation or other benefits under
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the Plan are determined to constitute noncompliant “nonqualified deferred compensation” subject to taxes, penalties or interest under Section 409A.
(b) Separation from Service . If an Award constitutes “nonqualified deferred compensation” under Section 409A, any payment or settlement of such Award upon a termination of a Participant’s Service Provider relationship will, to the extent necessary to avoid taxes under Section 409A, be made only upon the Participant’s “separation from service” (within the meaning of Section 409A), whether such “separation from service” occurs upon or after the termination of the Participant’s Service Provider relationship. For purposes of this Plan or any Award Agreement relating to any such payments or benefits, references to a “termination,” “termination of employment” or like terms means a “separation from service.”
(c) Payments to Specified Employees . Notwithstanding any contrary provision in the Plan or any Award Agreement, any payment(s) of “nonqualified deferred compensation” required to be made under an Award to a “specified employee” (as defined under Section 409A and as the Administrator determines) due to his or her “separation from service” will, to the extent necessary to avoid taxes under Section 409A(a)(2)(B)(i) of the Code, be delayed for the six-month period immediately following such “separation from service” (or, if earlier, until the specified employee’s death) and will instead be paid (as set forth in the Award Agreement) on the day immediately following such six-month period or as soon as administratively practicable thereafter (without interest). Any payments of “nonqualified deferred compensation” under such Award payable more than six months following the Participant’s “separation from service” will be paid at the time or times the payments are otherwise scheduled to be made.
10.7 Limitations on Liability . To the extent permitted under Applicable Law and the Organizational Documents, each member of the Administrator shall be indemnified and held harmless by the Company from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by such member in connection with or resulting from any claim, action, suit, or proceeding to which he or she may be a party or in which he or she may be involved by reason of any action or failure to act pursuant to the Plan and against and from any and all amounts paid by him or her in satisfaction of judgment in such action, suit, or proceeding against him or her; provided he or she gives the Company an opportunity, at its own expense, to handle and defend the same before he or she undertakes to handle and defend it on his or her own behalf. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such persons may be entitled pursuant to the Organizational Documents, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or hold them harmless.
10.8 Lock-Up Period . The Company may, at the request of any underwriter representative or otherwise, in connection with registering the offering of any Company securities under the Securities Act, prohibit Participants from, directly or indirectly, selling or otherwise transferring any Shares or other Company securities during a period of up to 180 days following the effective date of a Company registration statement filed under the Securities Act, or such longer period as determined by the underwriter.
10.9 Data Privacy . As a condition for receiving any Award, each Participant explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of personal data as described in this section by and among the Company and its Subsidiaries and affiliates exclusively for implementing, administering and managing the Participant’s participation in the Plan. The Company and its Subsidiaries and affiliates may hold certain personal information about a Participant, including the Participant’s name, address and telephone number; birthdate; social security, insurance number or other identification number; salary; nationality; job title(s); any Shares held in the Company or its Subsidiaries and affiliates; and Award details, to implement, manage and administer the Plan and Awards (the “ Data ”). The Company and its Subsidiaries and affiliates may transfer the Data amongst themselves as necessary to
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implement, administer and manage a Participant’s participation in the Plan, and the Company and its Subsidiaries and affiliates may transfer the Data to third parties assisting the Company with Plan implementation, administration and management. These recipients may be located in the Participant’s country, or elsewhere, and the Participant’s country may have different data privacy laws and protections than the recipients’ country. By accepting an Award, each Participant authorizes such recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, to implement, administer and manage the Participant’s participation in the Plan, including any required Data transfer to a broker or other third party with whom the Company or the Participant may elect to deposit any Shares. The Data related to a Participant will be held only as long as necessary to implement, administer, and manage the Participant’s participation in the Plan. A Participant may, at any time, view the Data that the Company holds regarding such Participant, request additional information about the storage and processing of the Data regarding such Participant, recommend any necessary corrections to the Data regarding the Participant or refuse or withdraw the consents in this Section 10.9 in writing, without cost, by contacting the local human resources representative. If the Participant refuses or withdraws the consents in this Section 10.9, the Company may cancel Participant’s ability to participate in the Plan and, in the Administrator’s discretion, the Participant may forfeit any outstanding Awards. For more information on the consequences of refusing or withdrawing consent, Participants may contact their local human resources representative. Notwithstanding the foregoing, to the extent a Participant is employed by an entity established in the European Union and/or the Data are processed in the context of activities in the European Union (an “ EU Participant ”), the processing of Data shall not be based on consent, but is necessary (i) for the performance of the Award Agreement and (ii) for the legitimate interests of the Company, its Subsidiaries, affiliates and the Administrator in implementing, administering and managing the Plan. Where Data of an EU Participant are transferred outside the European Economic Area, such transfers shall take place in accordance with Chapter V of the General Data Protection Regulation, including on the basis of an adequacy decision or appropriate safeguards. Further information on the processing of Data is set out in the Company’s privacy policy or other similar policy.
10.10 Severability . If any portion of the Plan or any action taken under it is held illegal or invalid for any reason, the illegality or invalidity will not affect the remaining parts of the Plan, and the Plan will be construed and enforced as if the illegal or invalid provisions had been excluded, and the illegal or invalid action will be null and void.
10.11 Governing Documents . If any contradiction occurs between the Plan and any Award Agreement or other written agreement between a Participant and the Company (or any Subsidiary) that the Administrator has approved, the Plan will govern, unless it is expressly specified in such Award Agreement or other written document that a specific provision of the Plan will not apply.
10.12 Governing Law . The Plan and all Awards will be governed by and interpreted in accordance with the laws of the State of Delaware, without giving effect to principles of conflicts of laws.
10.13 Claw-back Provisions . All Awards (including, without limitation, any proceeds, gains or other economic benefit actually or constructively received by Participant upon any receipt or exercise of any Award or upon the receipt or resale of any Shares underlying the Award) shall be subject to the provisions of any claw-back policy implemented by the Company, including, without limitation, any claw-back policy adopted to comply with Applicable Laws (including the Dodd-Frank Wall Street Reform and Consumer Protection Act and any rules or regulations promulgated thereunder) as and to the extent set forth in such claw-back policy or the Award Agreement.
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10.14 Titles and Headings . The titles and headings in the Plan are for convenience of reference only and, if any conflict, the Plan’s text, rather than such titles or headings, will control.
10.15 Conformity to Securities Laws . Participant acknowledges that the Plan is intended to conform to the extent necessary with Applicable Laws. Notwithstanding anything herein to the contrary, the Plan and all Awards will be administered only in conformance with Applicable Laws (including Regulation (EU) 2017/1129 (as amended)). To the extent Applicable Laws permit, the Plan and all Award Agreements will be deemed amended as necessary to conform to Applicable Laws.
10.16 Relationship to Other Benefits . No payment under the Plan will be taken into account in determining any benefits under any pension, retirement, savings, profit sharing, group insurance, welfare or other benefit plan of the Company or any Subsidiary except as expressly provided in writing in such other plan or an agreement thereunder.
ARTICLE XI.
Definitions
As used in the Plan, the following words and phrases will have the following meanings:
11.1 “ Administrator ” means the Board or a Committee to the extent that the Board’s powers or authority under the Plan have been delegated to such Committee. Notwithstanding the foregoing, the full Board, acting by a majority of its members in office and entitled to vote on the matters concerned under Applicable Laws, shall conduct the general administration of the Plan with respect to Awards granted to Directors and, with respect to such Awards, the term “Administrator” as used in the Plan shall be deemed to refer to the Board.
11.2 “ Applicable Laws ” means the requirements relating to the administration of equity incentive plans under U.S. federal and state securities, tax and other applicable laws, rules and regulations, the applicable rules of any stock exchange or quotation system on which the Shares are listed or quoted and the applicable laws, statutes, regulations, requirements and rules of any U.S. or non-U.S. jurisdiction where Awards are granted.
11.3 “ Award ” means, individually or collectively, a grant under the Plan of Options, Share Appreciation Rights, Restricted Shares, Restricted Share Units, Dividend Equivalents, or Other Share or Cash Based Awards.
11.4 “ Award Agreement ” means a written agreement evidencing an Award, which may be electronic, that contains such terms and conditions as the Administrator determines, consistent with and subject to the terms and conditions of the Plan.
11.5 “ Board ” means the Board of Directors of the Company.
11.6 “ Cause ” with respect to a Participant, “Cause” (or any term of similar effect) as defined in such Participant’s employment or service agreement with the Company or an affiliate thereof if such an agreement exists and contains a definition of Cause (or term of similar effect), or, if no such agreement exists or such agreement does not contain a definition of Cause (or term of similar effect), then “Cause” shall mean, subject to Applicable Law, one or more of the following: (i) any willful, material violation by the Participant of any law or regulation applicable to the business of the Company or a Subsidiary or other affiliate of the Company, (ii) the Participant’s commission of a felony (or crime of similar magnitude under Applicable Law outside the United States) or a crime involving moral turpitude, or any willful perpetration by the Participant of a common law fraud, act of dishonesty or misappropriation or similar conduct against
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the Company, (iii) the Participant’s commission of an act of personal dishonesty which involves personal profit in connection with the Company or any other entity having a business relationship with the Company, (iv) any material breach or violation by the Participant of any provision of any agreement or understanding between the Company or any Subsidiary or other affiliate of the Company and the Participant regarding the terms of the Participant’s service as an employee, officer, director or consultant to the Company or a Subsidiary or other affiliate of the Company, including without limitation, the willful and continued failure or refusal of the Participant to perform the material duties required of such Participant as an employee, officer, director or consultant of the Company or a Subsidiary or other affiliate of the Company, other than as a result of having a Disability, or a breach of any applicable invention assignment and confidentiality agreement or similar agreement between the Company or a Subsidiary or other affiliate of the Company and the Participant, (v) the Participant’s violation of the Company’s code of ethics or conduct or other similar policy, (vi) the Participant’s disregard of the policies of the Company or any Subsidiary or other affiliate of the Company so as to cause loss, harm, damage or injury to the property, reputation or employees of the Company or a Subsidiary or other affiliate of the Company, (vii) conduct by such Participant which should be considered as an urgent cause within the meaning of Section 7:678 Dutch Civil Code, irrespective of whether that provision applies to such Participant's relationship with the Company and/or any Subsidiary, (viii) conduct by such Participant which should be considered as imputable acts or omissions within the meaning of Section 7:669 section 3 under e of the Dutch Civil Code or (ix) any other misconduct by the Participant which is injurious to the financial condition or business reputation of, or is otherwise injurious to, the Company or a Subsidiary or other affiliate of the Company.
11.7 “ Change in Control ” means and includes each of the following:
(a) A transaction or series of transactions (other than an offering of Shares to the general public through a registration statement filed with the Securities and Exchange Commission or a transaction or series of transactions that meets the requirements of clauses (i) and (ii) of subsection (c) below) whereby any “person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2) of the Exchange Act) (other than the Company or the Principal Shareholder or any of their Subsidiaries, an employee benefit plan maintained by the Company or any of its Subsidiaries or a “person” that, prior to such transaction, directly or indirectly controls, is controlled by, or is under common control with, the Company (collectively, the “ Excluded Parties ”)) directly or indirectly acquires beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of securities of the Company possessing more than 50% of the total combined voting power of the Company’s securities outstanding immediately after such acquisition; or
(b) During any period of twenty-four consecutive months, individuals who, at the beginning of such period, constitute the Board together with any new Director(s) (other than a Director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in subsections (a) or (c)) who was nominated for appointment by the Principal Shareholder (defined as the “ Investeerder ” in the Company’s articles of association and pursuant to the nomination arrangements for such “ Investeerder ” under the Company’s articles of association) or by the Board acting by a vote of at least two-thirds of the Directors then still in office who either were Directors at the beginning of the twenty-four month period or whose nomination for appointment was previously so approved, cease for any reason to constitute a majority thereof; or
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(c) The consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company’s assets in any single transaction or series of related transactions or (z) the acquisition of assets or shares of another entity, in each case other than a transaction:
(i) which results in the Company’s voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds to the business of the Company (the Company or such person, the “ Successor Entity ”)) directly or indirectly, at least a majority of the combined voting power of the Successor Entity’s outstanding voting securities immediately after the transaction, and
(ii) after which no person or group (other than the Principal Shareholder) beneficially owns voting securities representing 50% or more of the combined voting power of the Successor Entity; provided , however , that no person or group shall be treated for purposes of this clause (ii) as beneficially owning 50% or more of the combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction.
Notwithstanding the foregoing, (x) if a Change in Control constitutes a payment event with respect to any Award (or portion of any Award) that provides for the deferral of compensation that is subject to Section 409A, to the extent required to avoid the imposition of additional taxes under Section 409A, the transaction or event described in subsection (a), (b) or (c) with respect to such Award (or portion thereof) shall only constitute a Change in Control for purposes of the payment timing of such Award if such transaction also constitutes a “change in control event,” as defined in Treasury Regulation Section 1.409A-3(i)(5) and (y) for the avoidance of doubt, the following events shall not constitute a Change in Control: (A) any sale, transfer, disposition, or distribution (whether by dividend, spin-off, split-off, or otherwise) by the Principal Shareholder or any of its affiliates of any or all of the securities of the Company held by the Principal Shareholder or any of its affiliates (a “ Principal Shareholder Sell-Down ”), whether effected in a single transaction or a series of related or unrelated transactions, regardless of whether such Principal Shareholder Sell-Down results in the Principal Shareholder and its affiliates ceasing to hold any voting securities of the Company (other than a transfer by the Principal Shareholder or any of its affiliates of more than 50% of the total combined voting power of the Company’s securities to a “person” or “group” as described in Section 11.7(a), above); (B) any underwritten offering, secondary offering, block trade, or other capital markets transaction involving the sale or distribution by the Principal Shareholder or any of its affiliates of the Company’s securities; or (C) any change in the composition of the Board resulting from, or made in connection with, a Principal Shareholder Sell-Down.
The Administrator shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control has occurred pursuant to the above definition, the date of the occurrence of such Change in Control and any incidental matters relating thereto; provided that any exercise of authority in conjunction with a determination of whether a Change in Control is a “change in control event” as defined in Treasury Regulation Section 1.409A-3(i)(5) shall be consistent with such regulation.
11.8 “ Code ” means the Internal Revenue Code of 1986, as amended, and the regulations issued thereunder.
11.9 “ Committee ” means one or more committees or subcommittees of the Board. To the extent required to comply with the provisions of Rule 16b-3, it is intended that each member of the
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Committee will be, at the time the Committee takes any action with respect to an Award that is subject to Rule 16b-3, a “non-employee director” within the meaning of Rule 16b-3; however, a Committee member’s failure to qualify as a “non-employee director” within the meaning of Rule 16b-3 will not invalidate any Award granted by the Committee that is otherwise validly granted under the Plan.
11.10 “ Company ” means INNIO N.V., a company existing under the laws of the Netherlands, or any successor.
11.11 “ Consultant ” means any person, including any adviser, engaged by the Company or any of its Subsidiaries to render services to such entity if the consultant or adviser: (a) renders bona fide services to the Company; (b) renders services not in connection with the offer or sale of securities in a capital-raising transaction and does not directly or indirectly promote or maintain a market for the Company’s securities; and (c) is a natural person.
11.12 “ Designated Beneficiary ” means the beneficiary or beneficiaries the Participant designates, in a manner the Administrator determines, to receive amounts due or exercise the Participant’s rights if the Participant dies or becomes incapacitated. Without a Participant’s effective designation, “Designated Beneficiary” will mean the Participant’s estate.
11.13 “ Director ” means a Board member.
11.14 “ Disability ” means that the Participant is unable to engage in any substantial gainful activity, or perform their stipulated working activities, by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, or such other period as required by Applicable Laws.
11.15 “ Dividend Equivalents ” means a right granted to a Participant under the Plan to receive the equivalent value (in cash or Shares) of dividends or distributions from the Company’s retained earnings or such other reserves designated by the Administrator, in each case, to the extent paid on Shares.
11.16 “ Employee ” means any employee of the Company or its Subsidiaries.
11.17 “ Equity Restructuring ” means, as determined by the Administrator, a non-reciprocal transaction between the Company and its shareholders, such as a share dividend, share split, spin-off or recapitalization through a large, nonrecurring cash dividend, or other large, nonrecurring cash dividend, that affects the Shares (or other securities of the Company) or the share price of Shares (or other securities of the Company) and causes a change in the per share value of the Shares underlying outstanding Awards.
11.18 “ Exchange Act ” means the Securities Exchange Act of 1934, as amended.
11.19 “ Fair Market Value ” means, as of any date, the value of a Share determined as follows: (a) if the Shares are listed on any established stock exchange, the Fair Market Value will be the closing sales price for such Shares as quoted on such exchange for such date, or if no sale occurred on such date, the last day preceding such date during which a sale occurred, as reported in The Wall Street Journal or another source the Administrator deems reliable; (b) if the Shares are not traded on a stock exchange but are quoted on a national market or other quotation system, the closing sales price on such date, or if no sales occurred on such date, then on the last date preceding such date during which a sale occurred, as reported in The Wall Street Journal or another source the Administrator deems reliable; or (c) without an established market for the Shares, the Administrator will determine the Fair Market Value in its discretion.
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11.20 “ Greater Than 10% Shareholder ” means an individual then owning (within the meaning of Section 424(d) of the Code) more than 10% of the total combined voting power of all classes of shares of the Company or its parent or subsidiary corporation, as defined in Section 424(e) and (f) of the Code, respectively.
11.21 “ Incentive Stock Option ” means an Option intended to qualify as an “incentive stock option” as defined in Section 422 of the Code.
11.22 “ Non-Qualified Option ” means an Option, or portion thereof, not intended or not qualifying as an Incentive Stock Option.
11.23 “ Option ” means an option to purchase Shares, which will either be an Incentive Stock Option or a Non-Qualified Option.
11.24 “ Ordinary Shares ” means the ordinary shares of the Company, nominal value EUR 0.04.
11.25 “ Organizational Documents ” shall mean, collectively, (a) the Company’s articles of association or other similar organizational documents relating to the creation and governance of the Company, (b) the internal rules of the Board or other similar organizational documents relating to the governance of the Board and (c) the Committee’s charter or other similar organizational documentation relating to the creation and governance of the Committee.
11.26 “ Other Share or Cash Based Awards ” means cash awards, awards of Shares, and other awards valued wholly or partially by referring to, or are otherwise based on, Shares or other property awarded to a Participant under Article VII.
11.27 “ Overall Share Limit ” means the sum of (a) 11,250,000 Shares and (b) an annual increase on the first day of each calendar year beginning January 1, 2027 and ending on and including January 1, 2036, equal to the lesser of (i) 2% of the aggregate number of Shares outstanding as of the last day of the immediately preceding fiscal year and (ii) such smaller number of Shares as is determined by the Board.
11.28 “ Participant ” means a Service Provider who has been granted an Award.
11.29 “ Performance Criteria ” means the criteria (and adjustments) that the Administrator may select for an Award to establish performance goals for a performance period, which may include (but is not limited to) the following: net earnings or losses (either before or after one or more of interest, taxes, depreciation, amortization, and non-cash equity-based compensation expense); gross or net sales or revenue or sales or revenue growth; net income (either before or after taxes) or adjusted net income; profits (including but not limited to gross profits, net profits, profit growth, net operation profit or economic profit), profit return ratios or operating margin; budget or operating earnings (either before or after taxes or before or after allocation of corporate overhead and bonus); cash flow (including operating cash flow and free cash flow or cash flow return on capital); return on assets; return on capital or invested capital; cost of capital; return on shareholders’ equity; total shareholder return; return on sales; costs, reductions in costs and cost control measures; expenses; working capital; earnings or loss per share; adjusted earnings or loss per share; price per share or dividends per share (or appreciation in or maintenance of such price or dividends); regulatory achievements or compliance; implementation, completion or attainment of objectives relating to research, development, regulatory, commercial, or strategic milestones or developments; market share; economic value or economic value added models; division, group or corporate financial goals; customer satisfaction/growth; customer service; employee satisfaction; recruitment and maintenance of personnel;
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human resources management; supervision of litigation and other legal matters; strategic partnerships and transactions; financial ratios (including those measuring liquidity, activity, profitability or leverage); debt levels or reductions; sales-related goals; portfolio or acquisition goals; financing and other capital raising transactions; cash on hand; acquisition activity; investment sourcing activity; and marketing initiatives, any of which may be measured in absolute terms or as compared to any incremental increase or decrease. Such performance goals also may be based solely by reference to the Company’s performance or the performance of a Subsidiary, division, business segment or business unit of the Company or a Subsidiary, or based upon performance relative to performance of other companies or upon comparisons of any of the indicators of performance relative to performance of other companies.
11.30 “ Plan ” means this 2026 Incentive Award Plan, as may be amended from time to time.
11.31 “ Principal Shareholder ” means AI Alpine (Luxembourg) S.à.r.l. and its affiliates and subsidiaries.
11.32 “ Public Trading Date ” means the first date upon which the Shares are listed (or approved for listing) upon notice of issuance on any securities exchange or designated (or approved for designation) upon notice of issuance as a national market security on an interdealer quotation system.
11.33 “ Restricted Shares ” means Shares awarded to a Participant under Article VI subject to certain vesting conditions and other restrictions.
11.34 “ Restricted Share Unit ” means an unfunded, unsecured right to receive, on the applicable settlement date, one Share or an amount in cash or other consideration determined by the Administrator to be of equal value as of such settlement date awarded to a Participant under Article VI subject to certain vesting conditions and other restrictions.
11.35 “ Rule 16b-3 ” means Rule 16b-3 promulgated under the Exchange Act.
11.36 “ Section 409A ” means Section 409A of the Code and all regulations, guidance, compliance programs and other interpretative authority thereunder.
11.37 “ Securities Act ” means the Securities Act of 1933, as amended.
11.38 “ Service Provider ” means an Employee, Consultant or Director.
11.39 “ Shares ” means Ordinary Shares.
11.40 “ Share Appreciation Right ” means a Share appreciation right granted under Article V.
11.41 “ Subsidiary ” means any entity (other than the Company), whether domestic or foreign, in an unbroken chain of entities beginning with the Company if each of the entities other than the last entity in the unbroken chain beneficially owns, at the time of the determination, securities or interests representing at least 50% of the total combined voting power of all classes of securities or interests in one of the other entities in such chain.
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11.42 “ Substitute Awards ” means Awards granted or Shares issued by the Company in assumption of, or in substitution or exchange for, awards previously granted, or the right or obligation to make future awards, in each case by a company acquired by the Company or any Subsidiary or with which the Company or any Subsidiary combines.
11.43 “ Termination of Service ” means the date the Participant ceases to be a Service Provider.
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### EX-10.3 - EX-10.3
EX-10.3
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ck0002109150-ex10_3.htm
EX-10.3
EX-10.3
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1
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Exhibit 10.3
COMPENSATION POLICY
INNIO N.V.
INTRODUCTION
Article 1
This document sets out the Company's policy concerning the compensation of the Directors.
DEFINITIONS AND INTERPRETATION
Article 2
2.1 In this policy the following definitions shall apply:
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Article
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An article of this policy.
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Board
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The Company's board of directors.
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Change of Control Benefit
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Any compensation or other benefit comprised in a Compensation Package that becomes payable, vests, is settled, becomes exercisable or is triggered in any other manner as a result of a change of control over the Company (as such term may be defined in the applicable agreement, plan or arrangement providing for such compensation or benefit).
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Company
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INNIO N.V.
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Compensation Committee
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The compensation committee established by the Board.
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Compensation Package
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The total compensation package of a Director for services rendered in that capacity.
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Director
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A member of the Board.
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Executive Director
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An executive Director.
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Fringe Benefit
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Fringe benefits (other than Pension) comprised in a Compensation Package, including use of a cell phone, laptop and/or lease car, vacation pay, sick pay, accident and/or health insurance, pension and life insurance, director and officer (D&O) insurance, social security contributions, housing allowance, reimbursement of travel costs and education assistance.
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General Meeting
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The Company's general meeting.
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LTI
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Long-term variable compensation comprised in a Compensation Package, including in the form of equity incentive awards.
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Non-Executive Director
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A non-executive Director.
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2
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Non-Compete Payment
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Any compensation or other payment comprised in a Compensation Package that becomes payable, is settled or is triggered in any other manner in connection with a Director being subject to a non-competition restriction vis-à-vis the Company or any of its Subsidiaries.
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Pension
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Post-retirement income and/or other pension-related contributions or benefits comprised in a Compensation Package.
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STI
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Short-term variable compensation comprised in a Compensation Package, including in the form of cash bonuses and profit sharing arrangements.
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Subsidiary
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A subsidiary of the Company within the meaning of Section 2:24a of the Dutch Civil Code.
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2.2 Terms that are defined in the singular have a corresponding meaning in the plural.
2.3 Words denoting a gender include each other gender.
OBJECTIVES
Article 3
3.1 The amount, level and structure of Compensation Packages should contribute to the Company's strategy, long-term interests and sustainability by:
a. attracting, retaining and motivating highly skilled individuals with the qualities, capabilities, profile and experience needed to support and promote the growth and sustainable success of the Company and its business;
b. driving strong business performance, promoting accountability and incentivising the achievement of short and long-term performance targets with the objective of furthering sustainable long-term value creation in a manner consistent with the Company's identity, mission and values;
c. assuring that the interests of the Directors are closely aligned to those of the Company, its business and its stakeholders; and
d. ensuring overall market competitiveness of the Compensation Packages, while providing the Board sufficient flexibility to tailor the Company's compensation practices on a case-by-case basis, depending on the market conditions from time to time.
3.2 The Compensation Packages of the Non-Executive Directors should reflect the time spent and the responsibilities of their role on the Board.
3.3 In determining the amount, level and structure of Compensation Packages, the Board shall consider, among other matters:
a. scenario analyses carried out in advance;
b. the financial and non-financial performance indicators relevant to the Company's long-term strategy with due observance of the risks for the Company's business which may result from variable compensation; and
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3
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c. relevant market information such as industry standards and peer group data, pre-existing arrangements with the Directors, the respective positions which the Directors serve within the Company's organization and any compensation payable by the Company or any of its Subsidiaries to the Directors in any other capacity.
DETERMINATION OF COMPENSATION
Article 4
4.1 The amount, level and structure of Compensation Packages shall be determined by the Board at the recommendation of the Compensation Committee in accordance with this policy. No Executive Director shall participate in the decision-making concerning the determination of the Compensation Package for any Executive Director.
4.2 The Compensation Committee shall prepare its recommendations relating to the Compensation Packages in accordance with this policy and any such recommendation shall cover the compensation structure, the amount of the fixed and variable compensation components, the performance criteria used, the scenario analyses that have been carried out and the relevant internal pay ratio(s).
4.3 Before making a recommendation relating to the Compensation Package of any Executive Director, the Compensation Committee shall take note of the views of such Executive Director with regard to the amount, level and structure of that Compensation Package.
COMPOSITION OF COMPENSATION PACKAGES
Article 5
5.1 Compensation Packages may consist of a mix of fixed and variable compensation components as determined by the Board, including:
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Executive Directors
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Non-Executive Directors
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Base salary
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Retainer fee
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Committee membership fee
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Chairperson fee
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Meeting attendance fees
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STI
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LTI
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Fringe Benefits
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Change of Control Benefits
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Non-Compete Payments
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Severance pay
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Pension
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5.2 Base salary, retainer fees, committee membership fees, chairperson fees and attendance fees shall be fixed annual amounts that may be subject to indexation by the Board and may be increased or decreased by the Board from time to time, subject to the terms of any existing contractual arrangements with the Directors concerned.
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5.3 The Company shall not grant any loans, guarantees or similar benefits as part of a Compensation Package, provided that cash advances and use of a Company sponsored credit card in the ordinary course of business shall not be prohibited.
STI AND LTI
Article 6
6.1 The mix of STI and LTI comprised in a Compensation Package should support both sustainable long-term value creation and the achievement of short-term Company objectives, including by:
a. contributing to corporate social responsibility;
b. rewarding the achievement of strategic milestones for the Company and its business;
c. providing award opportunities in consideration for substantial contributions to the success of the Company and its business; and/or
d. promoting and incentivizing continued service of the Directors within the Company's organization.
6.2 With respect to all STI and LTI awards, subject to the terms of any existing contractual arrangements with the Directors concerned, the Board shall:
a. set and, if appropriate, amend the applicable financial and/or non-financial metrics, targets, objectives and/or conditions, including corporate social responsibility metrics, and their respective weighting;
b. set and, if appropriate, amend the maximum amount for any cash incentive and the maximum number of securities underlying any equity incentive which may be awarded as part of an STI or LTI; and
c. determine the extent to which the applicable targets, objectives and/or conditions are achieved and the extent to which and incentive awards vest, using clear, pre-defined and objective and verifiable methods.
6.3 The Board may adjust the amount or value of an STI or LTI awarded to a Director to a suitable level, if payment or satisfaction of that award would be unacceptable under the standards of reasonableness and fairness.
6.4 The Company may reclaim payments made (in cash, in kind or in the form of securities) under an STI or LTI award, in whole or in part, to the extent that such payment was made on the basis of incorrect information regarding the achievement of the targets, objectives and/or conditions underlying the award or regarding the circumstances on which the award was dependent. The Non-Executive Directors, or a special representative designated by the General Meeting, may demand such repayment on the Company's behalf. Without limiting the foregoing, all STI and LTI awards shall be subject to any clawback or recoupment policy adopted by the Company from time to time, including, without any limitation, any clawback or recoupment policy adopted to comply with the Dodd-Frank Wall Street Reform and Consumer Protection Act and any rules or regulations promulgated thereunder (including Rule 10D-1 under the Securities Exchange Act of 1934, as amended) and the listing standards of any securities exchange on which the Company's securities are listed.
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SEVERANCE PAY
Article 7
7.1 The Executive Directors may be eligible for such severance payment upon termination of office as determined by the Board from time to time. Unless the Board decides otherwise, such severance pay shall not exceed the Executive Director's relevant annual gross base salary and shall not be paid if his service agreement is terminated early at the initiative of the Executive Director concerned, or in the event of seriously culpable or negligent behavior on the part of the Executive Director concerned.
7.2 In addition to severance pay, Executive Directors may be eligible to receive compensation for post-contractual non-compete obligations as determined by the Board from time to time.
AMENDMENTS
Article 8
Pursuant to a resolution to that effect, the General Meeting may amend or supplement this policy, subject to ongoing compliance with applicable law and stock exchange requirements.
GOVERNING LAW AND JURISDICTION
Article 9
This policy shall be governed by and shall be construed in accordance with the laws of the Netherlands. Any dispute arising in connection with this policy shall be submitted to the exclusive jurisdiction of the competent court in Amsterdam, the Netherlands.
### EX-10.7 - EX-10.7
EX-10.7
7
ck0002109150-ex10_7.htm
EX-10.7
EX-10.7
Exhibit 10.7
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Weil, Gotshal & Manges (London) LLP
110 Fetter Lane
London EC4A 1AY
+44 20 7903 1000 main tel
+44 20 7903 0990 main fax
weil.com
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WARNING: THE TAKING OF THIS DOCUMENT, ANY CERTIFIED COPY THEREOF OR ANY OTHER DOCUMENT WHICH CONSTITUTES SUBSTITUTE DOCUMENTATION OF A TRANSACTION AGREED, ENVISAGED OR OTHERWISE MENTIONED IN THIS DOCUMENT, INCLUDING WRITTEN CONFIRMATIONS OR REFERENCES THERETO, INTO THE REPUBLIC OF AUSTRIA, AS WELL AS THE PRODUCTION IN, OR THE SENDING TO OR FROM, THE REPUBLIC OF AUSTRIA OF ANY OF THE FOREGOING DOCUMENTS, AS WELL AS THE SENDING TO OR FROM THE REPUBLIC OF AUSTRIA OF FAX MESSAGES OR E-MAILS CARRYING AN ELECTRONIC SIGNATURE (WHETHER DIGITALLY, MANUSCRIPT OR OTHERWISE TECHNICALLY REPRODUCED) WHICH REFER TO THIS DOCUMENT OR TO WHICH A COPY OF THIS DOCUMENT IS ATTACHED, MAY TRIGGER AUSTRIAN STAMP DUTY. IN ORDER TO AVOID TRIGGERING AUSTRIAN STAMP DUTY, DO NOT TAKE OR SEND TO OR SET UP IN THE REPUBLIC OF AUSTRIA THIS DOCUMENT OR ANY CERTIFIED COPY THEREOF OR WRITTEN AND SIGNED REFERENCES THERETO OR ANY STAMP DUTY SENSITIVE DOCUMENTS (WHETHER DIGITALLY, MANUSCRIPT OR OTHERWISE TECHNICALLY REPRODUCED) WHICH REFER TO THIS DOCUMENT OR TO WHICH A COPY OF THIS DOCUMENT IS ATTACHED
Execution version
18 December 2023
AMENDMENT AND RESTATEMENT AGREEMENT
related to a senior facilities agreement originally dated 25 October 2018
between
INNIO GROUP HOLDING GMBH
as the Company
AI ALPINE (LUXEMBOURG) S.À R.L.
as Topco
WILMINGTON TRUST (LONDON) LIMITED
as Agent
WILMINGTON TRUST (LONDON) LIMITED
as Security Agent
TABLE OF CONTENTS
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1
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DEFINITIONS AND INTERPRETATION
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4
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2
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AMENDMENT AND RESTATEMENT OF THE SENIOR FACILITIES AGREEMENT
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3
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EXTENSION OID
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4
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NOTICE OF PREPAYMENT OF TERM FACILITIES
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GUARANTEE AND SECURITY CONFIRMATION
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MISCELLANEOUS
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SCHEDULE 1 THE EFFECTIVE DATE OBLIGORS
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SCHEDULE 2 CONDITIONS PRECEDENT TO THE EXTENSION EFFECTIVE DATE
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SCHEDULE 3 FORM OF AMENDED SENIOR FACILITIES AGREEMENT
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THIS AGREEMENT is made on 18 December 2023 between the following parties
(1) INNIO GROUP HOLDING GMBH , a limited liability company ( Gesellschaft mit beschränkter Haftung ) incorporated under the laws of Austria having its registered office at Achenseestraβe 1-3, 6200 Jenbach, Austria and registered with the companies’ register ( Firmenbuch ) of the regional court of Innsbruck ( Landesgericht Innsbruck ) FN489858f for itself and as Obligor’s Agent under the Senior Facilities Agreement (as defined below) (the “ Company ”);
(2) AI ALPINE (LUXEMBOURG) S.À R.L. , a private limited liability company ( société à responsabilité limitée ) incorporated under the laws of the Grand Duchy of Luxembourg having its registered office at 2-4, rue Beck, L-1222 Luxembourg and registered with the Luxembourg Trade and Companies Register ( Registre de Commerce et des Sociétés, Luxembourg ) under number B 228.587 (“ Topco ”)
(3) WILMINGTON TRUST (LONDON) LIMITED as agent acting for itself and on behalf of the other Finance Parties under the Senior Facilities Agreement (as defined below) (the “ Agent ”); and
(4) WILMINGTON TRUST (LONDON) LIMITED as security agent for itself and on behalf of the other Secured Parties under the Senior Facilities Agreement (as defined below) (the “ Security Agent ”).
RECITALS :
(A) Reference is made to:
(i) the senior facilities agreement originally dated 25 October 2018 (as amended, supplemented and/or amended and restated from time to time) between, among others, the Company as Original Borrower, Wilmington Trust (London) Limited as Agent and as Security Agent and the financial institutions listed therein as Original Lenders (the “ Senior Facilities Agreement ”);
(ii) the additional facility notice dated 2 February 2022 pursuant to which the Company established Facility B2 (EUR) (the “ Existing Additional Facility Notice ”);
(iii) a posting note from the Company and the A&E Coordinators (as defined therein) copying the Agent in respect of the Facilities Extension (as defined therein) (the “ Posting Note ”);
(iv) the marketing term sheet summarising the proposed terms of the Extended Facilities and the Senior Facilities Agreement following the Extension Effective Date (as defined therein), in the form appended to the Posting Note and as amended or deemed to be amended to reflect any amendments agreed pursuant to the lender solicitation process in respect of the Term Facilities Extension (the “ Marketing Term Sheet ”);
(v) the amendment agreement and additional facility notice in respect of the Guarantee Facility and Original Revolving Facility dated 28 November 2023 (the “ RCF / Guarantee Facility Amendment Agreement ”);
(vi) the form of Additional Facility Notices appended to the Posting Note in respect of the Extended Term Facilities (the “ Agreed Form Additional Facility Notices ”); and
(vii) an extension notice response form appended to the Posting Note (the “ Extension Response ”),
together, the “ A&E Documents ”.
(B) Pursuant to the A&E Documents, the Consenting Lenders (which comprise the Majority Lenders, among others) have consented to the amendment and restatement and other transactions
contemplated by this Agreement and the A&E Documents (together the “ Extension Amendments ”), and the Agent and the Security Agent are authorised to enter into this Agreement pursuant to clauses 43.1 ( Required consents ) and 43.4 ( Other exceptions ) of the Senior Facilities Agreement.
(C) In accordance with clause 2.6 ( Obligors’ Agent ) of the Senior Facilities Agreement, the Company is authorised to enter into this Agreement for itself and as Obligors’ Agent for and on behalf of each other Obligor, and the terms of this Agreement shall be binding on all Obligors upon its countersignature of this Agreement.
(D) Pursuant to the RCF / Guarantee Facility Amendment Agreement, the Agent and the Security Agent are authorised to enter into this Agreement to give effect to the terms of the RCF / Guarantee Facility Amendment Agreement.
IT IS AGREED as follows
1. DEFINITIONS AND INTERPRETATION
1.1. Definitions
In this Agreement:
“ Allocation Schedule ” means the schedule of consents, allocations and commitments agreed in writing by the Company and the A&E Coordinators and as notified to the Agent on or prior to the Extension Effective Date.
“ Amended Senior Facilities Agreement ” means the Senior Facilities Agreement, as amended and restated on the Extension Effective Date in accordance with this Agreement.
“ Consenting EUR Lenders ” means each Lender with a Commitment in respect of Facility B (EUR) and/or Facility B2 (EUR) that has, pursuant to the A&E Documents, consented to the Extension Amendments.
“ Consenting Guarantee Facility Lenders ” means each Lender with a Commitment in respect of the Original Guarantee Facility that has consented to the Extension Amendments.
“ Consenting Lenders ” means the Consenting EUR Lenders, the Consenting USD Lenders, the Consenting RCF Lenders and the Consenting Guarantee Facility Lenders.
“ Consenting RCF Lenders ” means each Lender with a Commitment in respect of the Original Revolving Facility that has consented to the Extension Amendments.
“ Consenting USD Lenders ” means each Lender with a Commitment in respect of Facility B (USD) that has, pursuant to the A&E Documents, consented to the Extension Amendments.
“ Extended Facility B (EUR) ” means the term loan facility made available as an Additional Facility under the Senior Facilities Agreement as described in paragraph (a) of Clause 2.1 ( Step 1a on the Extension Effective Date – establishment of Extended Facility B (EUR) ).
“ Extended Facility B (EUR) Additional Facility Notice ” means the Additional Facility Notice dated on or around the date of this Agreement between, among others, the Company and the Agent in respect of the establishment of the Extended Facility B (EUR).
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“ Extended Facility B (EUR) New Money Commitment ” means the aggregate principal amount of Extended Facility B (EUR) Commitments as specified in the Allocation Schedule (or substantially equivalent term) which are in excess of the aggregate principal amount of Extended
Facility B (EUR) Rollover Commitments as specified in the Allocation Schedule (or substantially equivalent term).
“ Extended Facility B (EUR) Rollover Commitment ” means, in relation to a Consenting EUR Lender, the aggregate amount of its Facility B (EUR) Commitments and/or Facility B2 (EUR) Commitments (as applicable) which have been agreed with the Company and the A&E Coordinators to be rolled over into Commitments in respect of the Extended Facility B (EUR), as specified in the Allocation Schedule as that Lender’s “Extended Facility B (EUR) Rollover Commitment” (or substantially equivalent term).
“ Extended Facility B (EUR) Upsize Commitment ” means, in relation to a Consenting EUR Lender, the aggregate amount of its commitments under the Extended Facility B (EUR) which are in excess of the aggregate principal amount of its Extended Facility B (EUR) Rollover Commitment, as specified in the Allocation Schedule as that Lender’s “Extended Facility B (EUR) Upsize Commitment” (or substantially equivalent term).
“ Extended Facility B (EUR) Utilisation Request ” means the Utilisation Request from the Company in respect of the drawdown of the Extended Facility B (EUR).
“ Extended Facility B (USD) ” means the term loan facility made available as an Additional Facility under the Senior Facilities Agreement as described in paragraph (a) of Clause 2.3 ( Step 1b on the Extension Effective Date – establishment of Extended Facility B (USD) ).
“ Extended Facility B (USD) Additional Facility Notice ” means the Additional Facility Notice dated on or around the date of this Agreement between, among others, the Company and the Agent in respect of the establishment of the Extended Facility B (USD).
“ Extended Facility B (USD) New Money Commitment ” means the aggregate principal amount of Extended Facility B (USD) Commitments as specified in the Allocation Schedule (or substantially equivalent term) which are in excess of the aggregate principal amount of Extended Facility B (USD) Rollover Commitments as specified in the Allocation Schedule (or substantially equivalent term).
“ Extended Facility B (USD) Rollover Commitment ” means, in relation to a Consenting USD Lender, the aggregate amount of its Facility B (USD) Commitments which have been agreed with the Company and the A&E Coordinators to be rolled over into Commitments in respect of the Extended Facility B (USD), as specified in the Allocation Schedule as that Lender’s “Extended Facility B (USD) Rollover Commitment” (or substantially equivalent term).
“ Extended Facility B (USD) Upsize Commitment ” means, in relation to a Consenting USD Lender, the aggregate amount of its commitments under the Extended Facility B (USD) which are in excess of the aggregate principal amount of its Extended Facility B (USD) Rollover Commitments, as specified in the Allocation Schedule as that Lender’s “Extended Facility B (USD) Upsize Commitment” (or substantially equivalent term).
“ Extended Facility B (USD) Utilisation Request ” means the Utilisation Request from the Company in respect of the drawdown of the Extended Facility B (USD).
“ Extension Effective Date ” means the first date by which:
(a) the Agent has notified the Company in writing that it has received all the documents and evidence listed in Schedule 2 ( Conditions Precedent to the Extension Effective Date ) and (unless specified therein to be in another form or substance) such documents or other
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evidence are in form and substance satisfactory to the Agent (acting reasonably and acting on the instructions of the Majority Lenders each also acting reasonably) or receipt of such documents and evidence has been waived by the Agent (acting reasonably and acting on the instructions of the Majority Lenders each also acting reasonably); and
(b) the Utilisation Date in respect of Extended Facility B (EUR) and Extended Facility B (USD) has occurred.
1.2. Construction
(a) Capitalised terms defined in the A&E Documents (as applicable) have the same meaning when used in this Agreement and references to a clause shall be deemed to be a reference to a clause of the Senior Facilities Agreement, unless stated otherwise.
(b) The provisions of clauses 1.2 ( Construction ), 1.3 ( Currency, Symbols and Definitions ), 1.6 ( Third Party Rights ), 1.9 ( Personal Liability ) and 1.11 ( Cashless rolls ) to 1.14 ( Luxembourg terms ) of the Senior Facilities Agreement apply to this Agreement as though they were set out in full in this Agreement except that references to the Senior Facilities Agreement are to be construed as references to this Agreement.
2. AMENDMENT AND RESTATEMENT OF THE SENIOR FACILITIES AGREEMENT
On the Extension Effective Date, each of the following steps set out in this Clause 2 shall be deemed to occur substantially concurrently and in the following chronological sequence.
For all purposes of this paragraph 2, references herein to:
(a) “ Facility B (EUR) ” shall be deemed to include Facility B2 (EUR);
(b) “ Facility B (EUR) Lenders ” shall be deemed to include the Facility B2 (EUR) Lenders;
(c) “Facility B (EUR) Loan” shall be deemed to include any Facility B2 (EUR) Loan,
in each case, save as otherwise set out herein.
2.1. Step 1a on the Extension Effective Date – establishment of Extended Facility B (EUR)
(a) A new euro denominated term loan facility (the “ Extended Facility B (EUR) ”) is established pursuant to clause 2.2 ( Additional Facility ) of the Senior Facilities Agreement on the terms set out in the Extended Facility B (EUR) Additional Facility Notice.
(b) The Extended Facility B (EUR) shall be provided by the Consenting EUR Lenders and any other Additional Facility Lenders in respect of the Extended Facility B (EUR) in the proportions and as set out in the Extended Facility B (EUR) Additional Facility Notice.
2.2. Step 1b on the Extension Effective Date – utilisation of Extended Facility B (EUR)
(a) In accordance with the Facility B Prepayment Notice (as defined below) and the Extended Facility B (EUR) Utilisation Request, the Extended Facility B (EUR) shall be utilised, and the Loans under Facility B (EUR) shall be prepaid in full (together with all amounts which are due and payable in relation to the Facility B (EUR) Loans including accrued but unpaid interest and (subject to sub-paragraph (b) below) any Break Costs (if any)) pursuant to clause 13.4 ( Voluntary prepayment of Term Loans ) of the Senior Facilities Agreement) as follows:
(i) each Consenting EUR Lender shall be deemed to have made a portion of its participation in the Extended Facility B (EUR) Loan requested by the Extended
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Facility B (EUR) Utilisation Request in an amount equal to its Extended Facility B (EUR) Rollover Commitment (and the Company shall be deemed to have utilised such participation), such that such participation shall (x) automatically be constituted as owing to that Consenting EUR Lender under the Extended Facility B (EUR); and (y) that Consenting EUR Lender’s Facility B (EUR) Commitment shall be reduced by the amount of such participation; and
(ii) each Consenting EUR Lender (in relation to any Extended Facility B (EUR) Upsize Commitments, if any) and the Additional Facility Lender in respect of Extended Facility B (EUR) New Money Commitments shall participate pro rata in the Extended Facility B (EUR) Loan requested under the Extended Facility B (EUR) Utilisation Request in accordance with clause 5 ( Utilisation - Loans ) of the Senior Facilities Agreement (and, for the avoidance of doubt, its pro rata participation for the purposes of clause 5.4 ( Lenders’ participation ) of the Senior Facilities Agreement shall be determined taking into account the deemed participations of each Consenting EUR Lender (in respect of its Extended Facility B (EUR) Rollover Commitment) in the Extended Facility B (EUR) Loan in accordance with paragraph (i) above) and shall, if so directed by the Company in accordance with the Facility B Prepayment Notice, apply the proceeds of its participation in such Extended Facility B (EUR) Loan towards prepayment of the remaining participations (taking into account the reductions under paragraph (i) above) under Facility B (EUR) Loans.
(b) The Agent and the Company acknowledge that each Consenting EUR Lender has, in accordance with clause 43.4(i) ( Other exceptions ) of the Senior Facilities Agreement, waived its right to receive any Break Costs in respect of any prepayment of its Extended Facility B (EUR) Rollover Commitment.
2.3. Step 2a on the Extension Effective Date – establishment of Extended Facility B (USD)
(a) A new US dollar denominated term loan facility (the “ Extended Facility B (USD) ”) is established pursuant to clause 2.2 ( Additional Facility ) of the Senior Facilities Agreement on the terms set out in the Extended Facility B (USD) Additional Facility Notice.
(b) The Extended Facility B (USD) shall be provided by the Consenting USD Lenders and any other Additional Facility Lenders in respect of the Extended Facility B (USD) in the proportions and as set out in the Extended Facility B (USD) Additional Facility Notice.
2.4. Step 2b on the Extension Effective Date – utilisation of Extended Facility B (USD)
(a) In accordance with the Facility B Prepayment Notice (as defined below) and the Extended Facility B (USD) Utilisation Request, the Extended Facility B (USD) shall be utilised, and the Loans under Facility B (USD) shall be prepaid in full (together with all amounts which are due and payable in relation to the Facility B (USD) Loans including accrued but unpaid interest and (subject to sub-paragraph (b) below) any Break Costs (if any)) pursuant to clause 13.4 (Voluntary prepayment of Term Loans) of the Senior Facilities Agreement) as follows:
(i) each Consenting USD Lender shall be deemed to have made a portion of its participation in the Extended Facility B (USD) Loan requested by the Extended Facility B (USD) Utilisation Request in an amount equal to its Extended Facility B (USD) Rollover Commitment (and the Company shall be deemed to have utilised such participation), such that such participation shall (x) automatically be constituted as owing to that Consenting USD Lender under the Extended Facility B (USD); and (y) that Consenting USD Lender’s Facility B (USD) Commitment shall be reduced by the amount of such participation; and
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(ii) each Consenting USD Lender (in relation to any Extended Facility B (USD) Upsize Commitments, if any) and the Additional Facility Lender in respect of Extended Facility B (USD) New Money Commitments shall participate pro rata in the Extended Facility B (USD) Loan requested under the Extended Facility B (USD) Utilisation Request in accordance with clause 5 ( Utilisation - Loans ) of the Senior Facilities Agreement (and, for the avoidance of doubt, its pro rata participation for the purposes of clause 5.4 ( Lenders’ participation ) of the Senior Facilities Agreement shall be determined taking into account the deemed participations of each Consenting USD Lender (in respect of its Extended Facility B (USD) Rollover Commitment) in the Extended Facility B (USD) Loan in accordance with paragraph (i) above) and shall, if so directed by the Company in accordance with the Facility B Prepayment Notice, apply the proceeds of its participation in such Extended Facility B (USD) Loan towards prepayment of the remaining participations (taking into account the reductions under paragraph (i) above) under Facility B (USD) Loans.
(b) The Agent and the Company acknowledge that each Consenting USD Lender has, in accordance with clause 43.4(i) ( Other exceptions ) of the Senior Facilities Agreement, waived its right to receive any Break Costs in respect of any prepayment of its Extended Facility B (USD) Rollover Commitment.
2.5. Step 3 on the Extension Effective Date – Amendment and Restatement of the Senior Facilities Agreement
(a) By its countersignature to this Agreement, the Agent confirms that it has received the consent (in accordance with the terms set out in the A&E Documents and the Amended Senior Facilities Agreement) of each Consenting Lender and accordingly confirms (for itself and on behalf of the Consenting Lenders) that it consents to the Extension Amendments.
(b) With effect immediately after completion of the steps set out in paragraphs 2.1 to 2.4 (inclusive) above on the Extension Effective Date, the Senior Facilities Agreement will be amended and restated such that it shall read and be construed for all purposes as set out in Schedule 3 ( Form of Amended Senior Facilities Agreement ) to this Agreement and for the avoidance of doubt, such amended and restated agreement shall supersede and replace in its entirety the Senior Facilities Agreement as amended by paragraphs 2.1 to 2.4 (inclusive) above.
3. EXTENSION OID
The extension fees and OID fees payable in connection with the establishment of the Extended Facility B (EUR) and Extended Facility B (USD) shall be payable accordance with the terms of the OID Fee Letter.
4. NOTICE OF PREPAYMENT OF TERM FACILITIES
4.1. The parties agree that this Agreement shall constitute notice (the “ Facility B Prepayment Notice ”) to the Agent that the Company intends to prepay (or procure such prepayment) in full of all outstanding Term Loans under the Term Facilities in force immediately prior to the Extension Effective Date (together with all amounts which are due and payable in relation to such Term Loans including accrued but unpaid interest and any Break Costs (if any)) pursuant to clause 13.4 ( Voluntary prepayment of Term Loans ) of the Senior Facilities Agreement on 16 January 2024 (or such other date as notified by the Company to the Agent) (the “ Prepayment Date ”).
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4.2. The prepayment notice referred to in paragraph 4.1 above shall be revocable until the date falling four (4) Business Days (or such shorter period as the Agent (acting on the instructions of the Majority Lenders under the applicable Term Facility (each acting reasonably)) may agree) prior to the Prepayment Date.
5. GUARANTEE AND SECURITY CONFIRMATION
5.1. The Company (as Obligors’ Agent for itself and on behalf of each other Obligor) and Topco (in respect only of Transaction Security granted by it) confirm for the benefit of the Secured Parties that to the fullest extent permitted by law:
(a) each Obligor’s and Topco’s liabilities and obligations arising under the Amended Senior Facilities Agreement, the Intercreditor Agreement and the Finance Documents shall form part of (but do not limit) the “ Liabilities ”, “ Secured Liabilities ” or, as the case may be, “ Secured Obligations ” (or any equivalent or corresponding term) (as applicable) as defined in the Intercreditor Agreement and/or each Transaction Security Document to which that Obligor and/or Topco (as applicable) is a party (including by incorporation);
(b) any Security created by it under the Transaction Security Documents extends to the liabilities and obligations of the Obligors and Topco (as applicable) under the Finance Documents and the Secured Debt Documents (as defined in the Intercreditor Agreement), as applicable (including the Amended Senior Facilities Agreement);
(c) the Security created under the Transaction Security Documents continues in full force and effect on the terms of the respective Transaction Security Documents; and
(d) the guarantees and indemnities set out in clause 25 ( Guarantee and indemnity ) of the Senior Facilities Agreement shall:
(i) remain in full force and effect and shall continue to apply in respect of the liabilities and obligations of each Obligor under the Finance Documents; and
(ii) extend to all new liabilities and obligations assumed by an Obligor under the Finance Documents (including the Amended Senior Facilities Agreement), including, but not limited to, the Total Commitments on the Extension Effective Date and shall be owed to each Finance Party, in each case subject only to the guarantee limitations set out in the Senior Facilities Agreement or otherwise in an Accession Deed.
5.2. The Parties confirm that the acknowledgement of debt contained in clause 19.3 ( Parallel Debt (Covenant to pay the Security Agent) ) of the Intercreditor Agreement shall continue in full force and effect and apply and extend to any and all obligations of the Obligors under and in connection with the Senior Facilities Agreement and the Finance Documents (including, for the avoidance of doubt, the Amended Senior Facilities Agreement).
6. MISCELLANEOUS
6.1. This Agreement is designated as a Finance Document.
6.2. This Agreement may not be amended, or any provision hereof modified, except by an instrument in writing signed by each of the parties hereto.
6.3. This Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
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6.4. If, at any time, any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
6.5. Save as expressly provided in this Agreement, the Finance Documents remain and shall continue in full force and effect and no other amendment or waiver of any provision of any Finance Document is given by terms of this Agreement.
6.6. This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
6.7. Paragraphs (a) and (b) of clause 48.1 ( Jurisdiction of English courts ) of the Senior Facilities Agreement shall be incorporated in this Agreement mutatis mutandis .
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SCHEDULE 1
THE EFFECTIVE DATE OBLIGORS
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Company Name
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Jurisdiction
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Registration Number
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INNIO Group Holding GmbH
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Austria
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FN 489858f
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INNIO Austria GmbH
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Austria
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FN 189091a
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INNIO Jenbacher GmbH
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Austria
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FN 354147f
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INNIO Jenbacher GmbH & Co OG
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Austria
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FN 239923d
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INNIO Spark Plug Technology GmbH
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Austria
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FN 142725s
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INNIO Waukesha Canada Corporation
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Canada
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3318158
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INNIO North America Holding Inc.
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Delaware
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6921086
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INNIO Waukesha Gas Engines Inc.
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Delaware
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2347088
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INNIO International Holding B.V.
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The Netherlands
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71852336
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INNIO Jenbacher International B.V.
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The Netherlands
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90210352
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INNIO Jenbacher Netherlands B.V.
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The Netherlands
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90209982
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Jenbacher GmbH
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Germany
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3520249
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SCHEDULE 2
CONDITIONS PRECEDENT TO THE EXTENSION EFFECTIVE DATE
1. Corporate Authorisations: the Obligors
(d) Constitutional documents : a copy of the constitutional documents of the Company.
(e) Board approvals : with respect to the Company, INNIO Austria GmbH, INNIO Jenbacher GmbH and INNIO Jenbacher GmbH & Co OG to the extent legally required, a copy of the resolution of the board of directors, the management board of directors, any supervisory board of directors (or, in each case, any committee thereof) and/or equivalent body of the Company, INNIO Austria GmbH, INNIO Jenbacher GmbH, INNIO Jenbacher GmbH & Co OG (as applicable) approving the transactions and the Finance Documents to which it is a party, including in the case of the Company, a managing board resolution ( Geschäftsführerbeschluss ) and a shareholders’ resolution ( Gesellschafterbeschluss ).
(f) Specimen Signatures : specimen signatures for such person(s) authorised in the resolutions of the Company referred to above (to the extent such person will execute a Finance Document).
(g) Director’s or officer’s certificates: a certificate from the Company (signed by an authorised signatory):
(i) certifying that each copy document relating to it specified in paragraphs (a) to (c) above is correct, complete and (to the extent executed) in full force and effect and has not been amended or superseded prior to the date of this Agreement; and
(ii) confirming that, subject to the Guarantee Limitations, borrowing or guaranteeing or securing (as appropriate) the Total Commitments (immediately following the occurrence of the Extension Effective Date) would not cause any borrowing, guarantee, security or other similar limit binding on it to be exceeded.
2. Topco
Board approvals : with respect to Topco, to the extent legally required, a copy of a resolution of the board of directors, the management board of directors, any supervisory board of directors (or, in each case, any committee thereof) and/or equivalent body of Topco approving the transactions and the Finance Documents to which it is a party.
3. Finance Documents
A copy of the counterparts of each of the following documents in the agreed form, each duly executed by the Company (where applicable, acting as Obligors’ Agent) and Topco (to the extent party to such document):
(a) this Agreement;
(b) the Additional Facility Notice establishing the Extended Facility B (EUR);
(c) the Additional Facility Notice establishing the Extended Facility B (USD);
(d) a fee letter in respect of the extension OID fee payable pursuant to the Term Facility Extension (the “ OID Fee Letter ”) between, among others, the Company and the Agent; and
(e) a copy of the Austrian law security confirmation agreement in the agreed form, duly executed by Topco, and the Company (acting, where applicable, on behalf of INNIO Austria GmbH, INNIO Jenbacher GmbH and INNIO Jenbacher GmbH & Co OG) and the Security Agent.
4. Legal Opinions
(a) A legal opinion (as to enforceability) from Paul Hastings (Europe) LLP as English law counsel to the Lenders.
(b) A legal opinion (as to enforceability) from BINDER GRÖSSWANG Rechtsanwälte GmbH as Austrian law counsel to the Lenders in respect of the Austrian law governed security confirmation agreement.
(c) A legal opinion (as to capacity) from Schönherr Rechtsanwälte GmbH as Austrian law counsel to the Company
SCHEDULE 3
FORM OF AMENDED SENIOR FACILITIES AGREEMENT
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Weil, Gotshal & Manges (London) LLP
110 Fetter Lane
London EC4A 1AY
+44 20 7903 1000 main tel
+44 20 7903 0990 main fax
weil.com
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WARNING: THE TAKING OF THIS DOCUMENT, ANY CERTIFIED COPY THEREOF OR ANY OTHER DOCUMENT WHICH CONSTITUTES SUBSTITUTE DOCUMENTATION OF A TRANSACTION AGREED, ENVISAGED OR OTHERWISE MENTIONED IN THIS DOCUMENT, INCLUDING WRITTEN CONFIRMATIONS OR REFERENCES THERETO, INTO THE REPUBLIC OF AUSTRIA, AS WELL AS THE PRODUCTION IN, OR THE SENDING TO OR FROM, THE REPUBLIC OF AUSTRIA OF ANY OF THE FOREGOING DOCUMENTS, AS WELL AS THE SENDING TO OR FROM THE REPUBLIC OF AUSTRIA OF FAX MESSAGES OR E-MAILS CARRYING AN ELECTRONIC SIGNATURE (WHETHER DIGITALLY, MANUSCRIPT OR OTHERWISE TECHNICALLY REPRODUCED) WHICH REFER TO THIS DOCUMENT OR TO WHICH A COPY OF THIS DOCUMENT IS ATTACHED, MAY TRIGGER AUSTRIAN STAMP DUTY. IN ORDER TO AVOID TRIGGERING AUSTRIAN STAMP DUTY, DO NOT TAKE OR SEND TO OR SET UP IN THE REPUBLIC OF AUSTRIA THIS DOCUMENT OR ANY CERTIFIED COPY THEREOF OR WRITTEN AND SIGNED REFERENCES THERETO OR ANY STAMP DUTY SENSITIVE DOCUMENTS (WHETHER DIGITALLY, MANUSCRIPT OR OTHERWISE TECHNICALLY REPRODUCED) WHICH REFER TO THIS DOCUMENT OR TO WHICH A COPY OF THIS DOCUMENT IS ATTACHED
AGREED FORM
Originally dated 25 October 2018 as amended by the Amendment and Restatement Agreement and as otherwise amended from time to time
SENIOR FACILITIES AGREEMENT
between
INNIO GROUP HOLDING GMBH
(previously known as AI ALPINE AT BIDCO GMBH)
as the Company
INNIO NORTH AMERICA HOLDING INC.
(previously known as AI ALPINE US BIDCO INC.)
as US Bidco
INNIO INTERNATIONAL HOLDING B.V.
(previously known as AI ALPINE NL BIDCO B.V.)
as Dutch Bidco
arranged by
BANK OF AMERICA, N.A. AND BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED, BNP PARIBAS FORTIS S.A./N.V., CITIGROUP GLOBAL MARKETS LIMITED, JEFFERIES FINANCE EUROPE, SCSP, CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK DEUTSCHLAND, NIEDERLASSUNG EINER FRANZÖSISCHEN SOCIÉTÉ ANONYME, ERSTE GROUP BANK AG, UNICREDIT BANK AUSTRIA AG, DEUTSCHE BANK AG, LONDON BRANCH AND LANDESBANK HESSEN-THÜRINGEN
GIROZENTRALE
as Mandated Lead Arrangers
with
WILMINGTON TRUST (LONDON) LIMITED
as Agent
and
WILMINGTON TRUST (LONDON) LIMITED
as Security Agent
TABLE OF CONTENTS
Page No.
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1
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DEFINITIONS AND INTERPRETATION
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1
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2
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THE FACILITIES
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78
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3
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PURPOSE
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90
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4
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CONDITIONS OF UTILISATION
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91
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5
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UTILISATION – LOANS
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95
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6
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UTILISATION – LETTERS OF CREDIT
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98
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7
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LETTERS OF CREDIT
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104
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8
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UTILISATION – BANK GUARANTEES
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109
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9
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BANK GUARANTEES
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115
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10
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OPTIONAL CURRENCIES
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121
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11
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ANCILLARY FACILITIES
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122
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12
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REPAYMENT
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133
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13
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ILLEGALITY, VOLUNTARY PREPAYMENT AND CANCELLATION
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136
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14
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MANDATORY PREPAYMENT
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141
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15
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RESTRICTIONS
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148
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16
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INTEREST
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149
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17
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INTEREST PERIODS
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153
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18
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CHANGES TO THE CALCULATION OF INTEREST
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155
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19
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FEES
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157
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20
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TAXES
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164
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21
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INCREASED COSTS
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178
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22
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OTHER INDEMNITIES
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180
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23
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MITIGATION BY THE LENDERS
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183
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24
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COSTS AND EXPENSES
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184
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25
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GUARANTEES AND INDEMNITY
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185
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26
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REPRESENTATIONS AND WARRANTIES
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192
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27
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INFORMATION UNDERTAKINGS
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200
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28
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FINANCIAL COVENANT
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209
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29
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GENERAL UNDERTAKINGS
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226
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30
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EVENTS OF DEFAULT
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232
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31
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CHANGES TO THE LENDERS
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239
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32
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DEBT PURCHASE TRANSACTIONS
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253
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33
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CHANGES TO THE OBLIGORS
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258
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34
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ROLE OF THE AGENT, THE MANDATED LEAD ARRANGERS, THE ISSUING BANK AND OTHERS
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263
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35
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CONDUCT OF BUSINESS BY THE FINANCE PARTIES
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276
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i
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36
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SHARING AMONG THE FINANCE PARTIES
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276
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37
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PAYMENT MECHANICS
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278
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38
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SET-OFF
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283
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39
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NOTICES
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283
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40
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CALCULATIONS AND CERTIFICATES
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286
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41
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PARTIAL INVALIDITY
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287
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42
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REMEDIES AND WAIVERS
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287
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43
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AMENDMENTS AND WAIVERS
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287
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44
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CONFIDENTIALITY
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299
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45
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COUNTERPARTS
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304
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46
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GOVERNING LAW
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304
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47
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POWER OF ATTORNEY
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304
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48
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ENFORCEMENT
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304
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Schedule 1 THE ORIGINAL PARTIES
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306
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Schedule 2 CONDITIONS PRECEDENT
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309
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Schedule 3 REQUESTS AND NOTICES
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315
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Schedule 4 FORM OF TRANSFER CERTIFICATE
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325
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Schedule 5 FORM OF ASSIGNMENT AGREEMENT
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329
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Schedule 6 FORM OF ACCESSION DEED
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333
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Schedule 7 FORM OF RESIGNATION LETTER
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338
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Schedule 8 FORMS OF COMPLIANCE CERTIFICATE
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340
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Schedule 9 TIMETABLES
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344
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Schedule 10 FORM OF LETTER OF CREDIT
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348
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Schedule 11 AGREED SECURITY PRINCIPLES
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351
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Schedule 12 FORM OF INCREASE CONFIRMATION
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361
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Schedule 13 FORMS OF NOTIFIABLE DEBT PURCHASE TRANSACTION NOTICE
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365
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Schedule 14 FORMS OF ADDITIONAL FACILITY NOTIFICATIONS
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369
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Schedule 15 GENERAL UNDERTAKINGS
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375
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Schedule 16 EVENTS OF DEFAULT
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415
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Schedule 17 CERTAIN NEW YORK LAW DEFINED TERMS
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418
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ii
THIS AGREEMENT was originally made on 25 October 2018 between the following parties and has been amended and restated on the Extension Effective Date:
(1) INNIO GROUP HOLDING GMBH (previously known as AI ALPINE AT BIDCO GMBH) ,a limited liability company ( Gesellschaft mit beschränkter Haftung ) incorporated under the laws of Austria having its registered address at Achenseestraβe 103, 6200, Jenbach, Austria and registered with the companies’ register ( Firmenbuch ) of the commercial court of Vienna ( Handelsgericht Wien ) under FN489858f (the “ Company ”);
(2) INNIO NORTH AMERICA HOLDING INC. (previously known as AI ALPINE US BIDCO INC.) , a limited liability company incorporated in the State of Delaware having its registered office at Corporation Trust Centre, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware, 19801 (“ US Bidco ”);
(3) INNIO INTERNATIONAL HOLDING B.V. (previously known as AI ALPINE NL BIDCO B.V.) , a private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ) having its seat in Amsterdam, its address at Herengracht 450, 1017 CA Amsterdam and registered in the trade register under number 71852336 (“ Dutch Bidco ”);
(4) THE ENTITIES listed in Part I ( The Original Obligors ) of Schedule 1 ( The Original Parties ) as original borrowers (the “ Original Borrowers ”);
(5) THE ENTITIES listed in Part I ( The Original Obligors ) of Schedule 1 ( The Original Parties ) as original guarantors (the “ Original Guarantors ”);
(6) BANK OF AMERICA, N.A. AND BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED, BNP PARIBAS FORTIS S.A./N.V., CITIGROUP GLOBAL MARKETS LIMITED, JEFFERIES FINANCE EUROPE, SCSP, CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK DEUTSCHLAND, NIEDERLASSUNG EINER FRANZÖSISCHEN SOCIÉTÉ ANONYME, ERSTE GROUP BANK AG, UNICREDIT BANK AUSTRIA AG, DEUTSCHE BANK AG, LONDON BRANCH and LANDESBANK HESSEN-THÜRINGEN GIROZENTRALE (the “ Mandated Lead Arrangers ”);
(7) THE FINANCIAL INSTITUTIONS listed in Part II ( The Original Lenders ) of Schedule 1 ( The Original Parties ) as Lenders (the “ Original Lenders ”);
(8) WILMINGTON TRUST (LONDON) LIMITED as agent of the other Finance Parties (the “ Agent ”);
(9) WILMINGTON TRUST (LONDON) LIMITED as security agent for the Secured Parties (the “ Security Agent ”); and
(10) UNICREDIT BANK AUSTRIA AG as issuing bank for the Original Guarantee Facility (the “ Original Guarantee Facility Issuing Bank ”).
IT IS AGREED as follows
1. DEFINITIONS AND INTERPRETATION
1.1. Definitions
In this Agreement:
“ Acceptable Bank ” means:
(a) a bank or financial institution which has a long term unsecured credit rating of at least BBB- by S&P or Fitch or at least Baa3 by Moody’s or a comparable rating
1
from an internationally recognised credit rating agency, or any bank or financial institution which (having previously satisfied such requirement) ceases to satisfy the foregoing ratings requirement for a period of not more than three (3) Months;
(b) any Finance Party or any Affiliate of a Finance Party;
(c) any other bank or financial institution included on the Approved List or which otherwise provides banking services to the Group (including the Target Group) and is notified in writing to the Agent on or before the Closing Date; and
(d) any other bank or financial institution approved by the Agent (acting reasonably) or providing banking services to a business or entity acquired by a member of the Group, provided that such services are terminated and moved to a bank or financial institution falling under another limb of this definition within six (6) Months of completion of the relevant acquisition.
“ Acceptable Funding Sources ” means without duplication:
(a) Proceeds of asset dispositions described in sub-paragraphs (i) to (xxii) of the definition of Asset Disposition (and other proceeds of Asset Dispositions to the extent not required to be applied in prepayment of the Facilities);
(b) Equity Contributions;
(c) Permitted Indebtedness;
(d) Retained Cash;
(e) Excess IPO Proceeds;
(f) Closing Overfunding; and
(g) cash and Cash Equivalent Investments held by members of the Group, provided that such cash and Cash Equivalent Investments would otherwise have been able to be used at that time to make a Permitted Payment,
in each case to the extent any such amount is Not Otherwise Applied.
“ Acceptable Nation ” has the meaning given to that term in the definition of Cash Equivalent Investments.
“ Accession Deed ” means a document substantially in the form set out in Schedule 6 ( Form of Accession Deed ) or any other form agreed between the Agent and the Obligors’ Agent (each acting reasonably).
“ Accounting Principles ” means, in respect of any Reporting Entity or a member of any Reporting Entity Group or the Group (as applicable), at its election, IFRS or generally accepted accounting principles it in its jurisdiction of incorporation, in each case to the extent applicable to the relevant financial statements and as applied by such Reporting Entity or that member of the Reporting Entity Group or Group (as applicable) from time to time.
“ Accounting Reference Date ” means 31 December, or otherwise the accounting reference date of the relevant Reporting Entity.
“ Acquired Indebtedness ” has the meaning given to that term in Schedule 17 ( Certain New York Law Defined Terms ).
2
“ Acquired Person or Asset ” means:
(a) a person or any of its Subsidiaries that becomes a Restricted Subsidiary after the Closing Date;
(b) a person that merges with or into or consolidates or otherwise combines with any Restricted Subsidiary after the Closing Date; or
(c) assets of, or shares (or other ownership interests) in, any person listed in paragraphs (a) or (b) above, or otherwise acquired after the Closing Date,
in each case other than in connection with the Acquisition.
“ Acquisition ” means the direct or indirect acquisition by the Bidcos of the Targets in accordance with the terms of the Acquisition Agreement.
“ Acquisition Agreement ” means the sale and purchase agreement dated 25 June 2018 between the Bidcos and the Vendor in respect of the Acquisition.
“ Acquisition Closing Date ” means the date on which the Acquisition is completed in accordance with the terms of the Acquisition Agreement.
“ Acquisition Costs ” has the meaning given to that term in Clause 28.1 ( Financial definitions ).
“ Acquisition Documents ” means the Acquisition Agreement and each other document or agreement designated in writing as an Acquisition Document by the Obligors’ Agent and the Agent (each acting reasonably).
“ Additional Borrower ” means a person which becomes a Borrower in accordance with Clause 33 ( Changes to the Obligors ).
“ Additional Facility ” means one or more additional facilities made available pursuant to Clause 2.2 ( Additional Facilities ) which are documented under this Agreement including as new or existing facility commitment(s) and/or as an additional tranche or class of, or an increase of, or an extension of, any existing Facility or a previously incurred Additional Facility.
“ Additional Facility Borrower ” means:
(a) any member of the Group which is specified as a borrower under an Additional Facility in the applicable Additional Facility Notice and which:
(i) is a Borrower under this Agreement; or
(ii) accedes as an Additional Borrower in accordance with Clause 33 ( Changes to the Obligors ); and
(b) any member of the Group which accedes as an Additional Borrower under the relevant Additional Facility in accordance with Clause 33 ( Changes to the Obligors ),
unless, in each case, it has ceased to be a Borrower in accordance with Clause 33 ( Changes to the Obligors ).
“ Additional Facility Commencement Date ” means in respect of an Additional Facility, the date, as elected by the Obligors’ Agent, specified as the Additional Facility
3
Commencement Date (being any date when the relevant Additional Facility is committed, utilised or available for utilisation) in the Additional Facility Notice relating to that Additional Facility.
“ Additional Facility Commitment ” means:
(a) in relation to an Additional Facility Lender, the amount in the Base Currency set out in each Additional Facility Notice signed by that Additional Facility Lender and the amount of any other Additional Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Additional Facilities) or Clause 2.3 (Increase); and
(b) in relation to any other Lender, the amount in the Base Currency of any Additional Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Additional Facilities) or Clause 2.3 (Increase),
to the extent:
(i) not cancelled, reduced or transferred by it under this Agreement; and
(ii) not deemed to be zero (0) pursuant to Clause 32 ( Debt Purchase Transactions ).
“ Additional Facility Lender ” means any Lender or other bank, trust, financial institution, fund, entity or other person which signs an Additional Facility Notice and confirms its willingness to provide all or a part of an Additional Facility.
“ Additional Facility Lender Accession Notice ” means a notice substantially in the form set out in Part I ( Form of Additional Facility Lender Accession Notice ) of Schedule 14 ( Forms of Additional Facility Notifications ) or any other form agreed between the Agent and the Obligors’ Agent (each acting reasonably).
“ Additional Facility Loan ” means a loan made or to be made under any Additional Facility or the principal amount outstanding for the time being of that loan (including any amount which is outstanding prior to the relevant Additional Facility Commencement Date).
“ Additional Facility Notice ” means, in respect of an Additional Facility, a notice substantially in the form set out in Part II ( Form of Additional Facility Notice ) of Schedule 14 ( Forms of Additional Facility Notifications ) (or any other form agreed between the Agent and the Obligors’ Agent (each acting reasonably)) delivered by the Obligors’ Agent to the Agent in accordance with Clause 2.2 ( Additional Facilities ).
“ Additional Guarantee Facility ” means any Additional Facility which is designated as a Guarantee Facility in an Additional Facility Notice.
“ Additional Guarantee Facility Borrower ” means:
(a) any member of the Group which is specified as a borrower under an Additional Guarantee Facility in the applicable Additional Facility Notice and which:
(i) is a Borrower under this Agreement; or
(ii) accedes as an Additional Borrower under the Guarantee Facility in accordance with Clause 33 ( Changes to the Obligors );
4
(b) any member of the Group which accedes as an Additional Borrower under the relevant Additional Facility in accordance with Clause 33 ( Changes to the Obligors ); and
(c) an Approved Subsidiary,
unless, in the case of paragraphs (a) and (b) above, it has ceased to be a Guarantee Facility Borrower in accordance with Clause 33 ( Changes to the Obligors ).
“ Additional Guarantee Facility Commitment ” means:
(a) in relation to an Additional Guarantee Facility Lender, the amount in the Base Currency set out in each Additional Facility Notice signed by that Additional Guarantee Facility Lender and the amount of any other Additional Guarantee Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 ( Additional Facilities ) or Clause 2.3 (Increase); and
(b) in relation to any other Lender, the amount in the Base Currency of any Additional Guarantee Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 ( Additional Facilities ) or Clause 2.3 (Increase),
to the extent:
(i) not cancelled, reduced or transferred by it under this Agreement; and
(ii) not deemed to be zero (0) pursuant to Clause 32 ( Debt Purchase Transactions ).
“ Additional Guarantee Facility Lender ” means any Lender or other bank, financial institution, fund, entity or other person which signs an Additional Facility Notice and confirms its willingness to provide all or a part of an Additional Guarantee Facility.
“ Additional Guarantee Facility Utilisation ” means a Bank Guarantee issued or to be issued under an Additional Guarantee Facility.
“ Additional Guarantor ” means any person which becomes an Additional Guarantor in accordance with Clause 33 ( Changes to the Obligors ).
“ Additional Obligor ” means an Additional Borrower or an Additional Guarantor.
“ Additional Revolving Facility ” means any Additional Facility which is designated as a Revolving Facility in an Additional Facility Notice.
“ Additional Revolving Facility Borrower ” means:
(a) any member of the Group which is specified as a borrower under an Additional Revolving Facility in the applicable Additional Facility Notice and which:
(i) is a Borrower under this Agreement; or
(ii) accedes as an Additional Borrower under the Revolving Facility in accordance with Clause 33 ( Changes to the Obligors ); and
(b) any member of the Group which accedes as an Additional Borrower under the relevant Additional Facility in accordance with Clause 33 ( Changes to the Obligors ),
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unless, in each case, it has ceased to be a Revolving Facility Borrower in accordance with Clause 33 ( Changes to the Obligors ).
“ Additional Revolving Facility Commitment ” means:
(a) in relation to an Additional Revolving Facility Lender, the amount in the Base Currency set out in each Additional Facility Notice signed by that Additional Revolving Facility Lender and the amount of any other Additional Revolving Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 ( Additional Facilities ) or Clause 2.3 ( Increase ); and
(b) in relation to any other Lender, the amount in the Base Currency of any Additional Revolving Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 ( Additional Facilities ) or Clause 2.3 ( Increase ),
to the extent:
(i) not cancelled, reduced or transferred by it under this Agreement; and
(ii) not deemed to be zero (0) pursuant to Clause 32 ( Debt Purchase Transactions ).
“ Additional Revolving Facility Lender ” means any Lender or other bank, financial institution, fund, entity or other person which signs an Additional Facility Notice and confirms its willingness to provide all or a part of an Additional Revolving Facility.
“ Additional Revolving Facility Loan ” means a loan made or to be made under any Additional Revolving Facility or the principal amount outstanding for the time being of that loan (including any amount which is outstanding prior to the relevant Additional Facility Commencement Date).
“ Additional Revolving Facility Utilisation ” means an Additional Revolving Facility Loan or a Letter of Credit issued or to be issued under an Additional Revolving Facility.
“ Additional Term Facility ” means any Additional Facility which is not an Additional Revolving Facility.
“ Advent Investors ” means Advent International, L.P. and any funds, limited partnerships or other entities managed or advised by Advent International, L.P. or any of their Affiliates or direct or indirect Subsidiaries (but excluding, in each case, any portfolio company which is an obligor (and any of its Subsidiaries) in respect of any third party financing provided to that portfolio company (or any of its Subsidiaries) in which Advent International, L.P. or such funds, limited partnerships, Affiliates, Subsidiaries or investors hold an investment or interest in).
“ Affiliate ” means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.
“ Agent’s Spot Rate of Exchange ” means the Agent’s spot rate of exchange for the purchase of the relevant currency with the Base Currency in the London foreign exchange market at or about 11.00 a.m. (local time) on a particular day or, if the Agent does not have a spot rate of exchange, the spot rate of exchange of any Original Revolving Facility Lender as selected by the Company.
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“ Agreed Certain Funds Obligor ” means any member of the Group and/or any third party security provider which is a Holding Company of the Company designated as an Agreed Certain Funds Obligor by the Obligors’ Agent and the relevant Revolving Facility Lenders, Guarantee Facility Lenders or Additional Facility Lenders who have agreed to provide an Agreed Certain Funds Utilisation in accordance with the provisions of Clause 4.6 ( Utilisations during an Agreed Certain Funds Period ).
“ Agreed Certain Funds Period ” means, in respect of any Facility or Utilisation which all of the relevant Lenders have agreed shall be provided on a “ certain funds basis ” in accordance with the provisions of Clause 4.6 ( Utilisations during an Agreed Certain Funds Period ), the period specified in a notice delivered by the Obligors’ Agent and the relevant Lenders to the Agent.
“ Agreed Certain Funds Utilisation ” means:
(a) in respect of any Revolving Facility or Guarantee Facility which all of the relevant Revolving Facility Lenders or Guarantee Facility Lenders (as applicable) have agreed shall be provided on a “certain funds basis” in accordance with the provisions of Clause 4.6 ( Utilisations during an Agreed Certain Funds Period ), a Utilisation made or to be made under the relevant Revolving Facility or Guarantee Facility during the Agreed Certain Funds Period solely for any of the purposes agreed with the relevant Revolving Facility Lenders or Guarantee Facility Lenders (as applicable); and
(b) in respect of an Additional Facility which all of the Additional Facility Lenders providing such Additional Facility have agreed shall be provided on a “certain funds basis” in accordance with the provisions of Clause 4.6 ( Utilisations during an Agreed Certain Funds Period ), a Utilisation made or to be made under the relevant Additional Facility during the Agreed Certain Funds Period solely for any of the purposes agreed with the relevant Additional Facility Lenders providing such Additional Facility.
“ Agreed Co-Investor ” means Abu Dhabi Investment Authority (“ ADIA ”) and any funds, limited partnerships or other entities managed or advised by ADIA (including, for the avoidance of doubt, Luxinva) or any of their Affiliates or direct or indirect Subsidiaries (but excluding, in each case, any portfolio company which is an obligor (and any of its Subsidiaries) in respect of any third party financing provided to that portfolio company (or any of its Subsidiaries) in which ADIA or such funds, limited partnerships, Affiliates, Subsidiaries or investors hold an investment or interest in).
“ Agreed Security Principles ” means the principles set out in Schedule 11 ( Agreed Security Principles ).
“ Amendment and Restatement Agreement ” means the amendment and restatement agreement dated 18 December 2023 between, amongst others, the Company and the Agent.
“ Amortising Facility ” means:
(a) Facility B (USD);
(b) an Additional Term Facility which is repayable by instalments; and
(c) any Facility if any Lender under the applicable Facility has accepted repayment by instalments in accordance with (b)(iv)(B) of Clause 2.2 ( Additional Facilities ).
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“ Amortising Facility Commitment ” means any Commitment under an Amortising Facility.
“ Amortising Facility Loan ” means a Loan made or to be made under an Amortising Facility.
“ Amortising Facility Repayment Date ” means:
(a) in respect of Facility B (USD):
(i) each Quarter Date falling prior to the Termination Date in respect of Facility B, commencing with the first Quarter Date falling not less than one (1) complete Financial Quarter after the Extension Effective Date; and
(ii) the Termination Date in respect of Facility B;
(b) in respect of an Additional Facility which is an Amortising Facility, each date set out as such in the relevant Additional Facility Notice for that Additional Facility (including the Termination Date in respect of that Additional Facility); and
(c) in respect of an Amortising Facility under paragraph (c) of that definition, each date determined in accordance with paragraph (b)(iv)(B) of Clause 2.2 ( Additional Facilities ) (including the Termination Date in respect of that Amortising Facility).
“ Amortising Facility Repayment Instalment ” means:
(a) in respect of a Facility B (USD) Loan:
(i) on each Amortising Facility Repayment Date in respect of Facility B (USD) falling prior to the Termination Date in respect of Facility B, an amount equal to 0.25% of the principal amount of such Facility B (USD) Loan as at the Extension Effective Date; and
(ii) on the Termination Date in respect of Facility B, the principal amount of such Facility B (USD) Loan not repaid or prepaid prior to such date;
(b) in respect of an Additional Facility which is an Amortising Facility, each repayment instalment in relation to that Additional Facility calculated and payable in accordance with the provisions of paragraph (a)(i) of Clause 12.2 ( Repayment of Additional Term Facility Loans ) and the applicable Additional Facility Notice; and
(c) in respect of an Amortising Facility under paragraph (c) of that definition, each repayment instalment determined in accordance with paragraph (b)(iv)(B) of Clause 2.2 ( Additional Facilities ),
in each case as amended pursuant to Clause 12.5 ( Effect of Cancellation and Prepayment on Scheduled Repayments ).
“ Ancillary Commencement Date ” means, in relation to an Ancillary Facility or Fronted Ancillary Facility (as the case may be), the date on which that Ancillary Facility or Fronted Ancillary Facility (as the case may be) is first made available whether or not drawn, which date shall be a Business Day within the Availability Period for the relevant Revolving Facility.
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“ Ancillary Commitment ” means, in relation to an Ancillary Lender and an Ancillary Facility, the maximum Base Currency Amount which that Ancillary Lender has agreed (whether or not subject to satisfaction of conditions precedent) to make available from time to time under an Ancillary Facility and which has been authorised as such under Clause 11 ( Ancillary Facilities ), in each case as notified by the Ancillary Lender to the Agent pursuant to Clause 11.2 ( Availability ) to the extent that amount is not cancelled or reduced under this Agreement or the Ancillary Documents relating to that Ancillary Facility.
“ Ancillary Document ” means each document relating to or evidencing the terms of an Ancillary Facility or a Fronted Ancillary Facility (as the case may be).
“ Ancillary Facility ” has the meaning given to that term in Clause 11.2 ( Availability ). “ Ancillary Facility Utilisation ” means a Utilisation under an Ancillary Facility.
“ Ancillary Lender ” means each Lender (or Affiliate of a Lender) which makes available an Ancillary Facility in accordance with Clause 11 ( Ancillary Facilities ).
“ Ancillary Outstandings ” means, at any time:
(a) in relation to an Ancillary Lender and an Ancillary Facility then in force the aggregate of the equivalents (as calculated by that Ancillary Lender) in the Base Currency of the following amounts outstanding under that Ancillary Facility:
(i) the principal amount under each overdraft facility and on demand short term loan facility (provided that, for the purposes of this definition, any amount of any outstanding utilisation under any BACS facility, other intra-day or overnight exposure facilities (or similar) made available by an Ancillary Lender shall be excluded, unless, in relation to that Ancillary Facility, otherwise agreed between the Obligors’ Agent and the relevant Ancillary Lender);
(ii) the principal face value amount of each guarantee, bond and letter of credit under that Ancillary Facility; and
(iii) the amount fairly representing the aggregate principal or equivalent outstanding (excluding interest and similar charges) of that Ancillary Lender under each other type of accommodation provided under that Ancillary Facility,
(b) in relation to a Fronted Ancillary Facility and Fronting Ancillary Lender or Fronted Ancillary Lender, the aggregate amounts (in the Base Currency as calculated by the relevant Fronting Ancillary Lender or Fronted Ancillary Lender) outstanding as referred to in paragraphs (a)(i), (a)(ii) and (a)(iii) above (where, for this purpose, references in paragraph (a) above to Ancillary Lender shall be read as Fronting Ancillary Lender and Fronted Ancillary Lender, and references to Ancillary Facility should be read as Fronted Ancillary Facility) under that Fronted Ancillary Facility,
in each case net of any cash cover for that Ancillary Facility or Fronted Ancillary Facility and any credit balances on any account of any Borrower of an Ancillary Facility or Fronted Ancillary Facility with the Ancillary Lender or Fronting Ancillary Lender making available that Ancillary Facility or Fronted Ancillary Facility to the extent that the credit balances are freely available to be set-off by that Ancillary Lender or Fronting Ancillary Lender against liabilities owed to it by that Borrower under that Ancillary Facility or Fronted Ancillary Facility and in each case as determined by such Ancillary Lender or Fronting Ancillary Lender and Fronted Ancillary Lender(s), acting reasonably and in accordance with the relevant Ancillary Document, or (if not provided for in the relevant Ancillary
9
Document), after consultation with the relevant Borrower, in accordance with its normal banking practice and in accordance with the relevant Ancillary Document.
For the purposes of this definition:
(A) in relation to any Utilisation denominated in the Base Currency, the amount of that Utilisation (determined as described in paragraphs (a) and (b) above) shall be used; and
(B) in relation to any Utilisation not denominated in the Base Currency, the equivalent (calculated as specified in the relevant Ancillary Document or, if not so specified, as the relevant Ancillary Lender or Fronting Ancillary Lender may specify, in each case in accordance with its usual practice at that time for calculating that equivalent in the Base Currency (acting reasonably)) of the amount of that Utilisation (determined as described in paragraphs (a) and (b) above) shall be used.
“ Annual Compliance Certificate ” means a certificate substantially in the form set out in Part II ( Form of Annual Compliance Certificate ) of Schedule 8 ( Forms of Compliance Certificate ) and delivered by the Obligors’ Agent to the Agent under paragraph (c) of Clause 27.2 ( Provision and contents of Compliance Certificates ).
“ Annual Financial Statements ” has the meaning given to that term in paragraph (a)(i) of Clause 27.1 ( Financial statements ).
“ Anti-Corruption Laws ” means all laws of any jurisdiction applicable to an Obligor from time to time prohibiting bribery or corruption or money laundering (including the Bribery Act 2010 and the United States Foreign Corrupt Practices Act of 1977).
“ Applicable Metric ” means any financial covenant, ratio, permission, test, basket or threshold in any Finance Document (including any financial definition or component thereof and any financial covenant, ratio, permission, test, basket or threshold directly or indirectly calculated by reference to Consolidated EBITDA, Consolidated Pro Forma EBITDA, LTM EBITDA, the Senior Secured Net Leverage Ratio, the Consolidated Senior Secured Net Leverage Ratio, the Consolidated Total Net Leverage Ratio or the Fixed Charge Coverage Ratio).
“ Applicable Reporting Date ” means, at the election of the Obligors’ Agent:
(a) if no Financial Statements have yet been delivered since the Closing Date, the Closing Date, with such Applicable Metric determined by reference to the financial information set out in the Base Case Model;
(b) the most recent Quarter Date for which Financial Statements have been delivered pursuant to the terms of this Agreement, with such Applicable Metric determined by reference to such Financial Statements; or
(c) the last date of the most recently completed Relevant Period for which the Group has sufficient available information to be able to determine such Applicable Metric, with such Applicable Metric determined by reference to such available information, provided that such information is provided to the Agent.
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“ Applicable Test Date ” means the most recent Applicable Reporting Date elected by the Obligors’ Agent prior to:
(a) the date on which any applicable Additional Facility or Permitted Indebtedness is committed or, in respect of any Indebtedness of a person acquired by a member of the Group, the date such acquisition is committed or the date on which the relevant Permitted Investment, Permitted Payment, consolidation or merger or other action based on an Applicable Metric is committed to be made or declared;
(b) the Additional Facility Commencement Date in respect of any applicable Additional Facility, the date of any debt instrument constituting, documenting or evidencing any applicable Permitted Indebtedness or, in respect of any Indebtedness of a person acquired by a member of the Group, the date such acquisition occurs;
(c) the date of any incurrence of all or part of such Additional Facility or Permitted Indebtedness, as the case may be or the date on which the relevant Permitted Investment, Permitted Payment, consolidation or merger or other action based on an Applicable Metric is consummated; or
(d) as otherwise determined in accordance with Section 1 ( Limitation on Indebtedness ) or Section 2 ( Limitation on Restricted Payments ) of Schedule 15 ( General Undertakings ),
and, in each case, the Obligors’ Agent may revoke such determination at any time and from time to time.
“ Applicable US Laws ” has the meaning given to such term in Clause 25.13 ( Guarantee Limitations: United States of America ).
“ Approved Existing Ancillary Facility ” means the ancillary facilities or other facilities of the type described in Clause 11.1 ( Type of Facility ) made available to the Group (including the Target Group) by a Lender which, prior to the Closing Date, are agreed and designated in writing as Approved Existing Ancillary Facilities by the Obligors’ Agent and the Lender which will provide those ancillary facilities as Ancillary Facilities under this Agreement in place of a corresponding part of that Lender’s unutilised Revolving Facility Commitments and promptly notified to the Agent.
“ Approved Facility B Jurisdiction ” means each jurisdiction listed in paragraph (a)(i)(B) of Clause 33.2 ( Additional Borrowers ).
“ Approved List ” means the list of lenders and potential lenders agreed by the Obligors’ Agent and the Mandated Lead Arrangers before the Closing Date and held by the Agent (as the same may be amended from time to time pursuant to paragraph (c) of Clause 31.3 ( Conditions of assignment or transfer )).
“ Approved Subsidiary ” means each member of the Target Group set out in a list delivered to the Agent, the Original Guarantee Facility Issuing Bank and each Guarantee Facility Lender on or prior to the Closing Date and any Eligible Subsidiary that has become an Approved Subsidiary in accordance with Clause 8.9 ( Approved Subsidiaries ).
“ Arrangement Fee Letter ” has the meaning given in to that term in the definition of “ Fee Letter ”.
“ Asset Disposition ” has the meaning given to that term in Schedule 17 ( Certain New York Law Defined Terms ).
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“ Assignment Agreement ” means an agreement substantially in the form set out in Schedule 5 ( Form of Assignment Agreement ) or any other form agreed between the relevant assignor and assignee, provided that if that other form does not contain an undertaking substantially similar to the undertaking set out in the form set out in Schedule 5 ( Form of Assignment Agreement ) it shall not be a Creditor/Agent Accession Undertaking as defined in, and for the purposes of, the Intercreditor Agreement.
“ Auditors ” means any firm of independent accountants appointed by the Company as its auditors from time to time.
“ Austrian Capital Maintenance Rules ” has the meaning given to that term in Clause 25.12 ( Guarantee Limitations: Austria ).
“ Authorisation ” means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration, in each case required by any applicable law or regulation.
“ Availability Period ” means:
(a) in relation to Facility B, the period from (and including) the Extension Effective Date to and including 31 March 2024;
(b) in relation to the Original Guarantee Facility, the period from (and including) the Closing Date to (and including) the date falling one (1) Month prior to the Termination Date applicable to the Original Guarantee Facility;
(c) in relation to the Original Revolving Facility, the period from (and including) the date of this Agreement to (and including) the date falling one (1) Month prior to the Termination Date applicable to the Original Revolving Facility; and
(d) in relation to any Additional Facility, the period specified in the Additional Facility Notice delivered by the Obligors’ Agent in accordance with Clause 2.2 ( Additional Facilities ) for those Additional Facility Commitments.
“ Available Ancillary Commitment ” means in relation to an Ancillary Facility or a Fronted Ancillary Facility, an Ancillary Lender’s Ancillary Commitment or a Fronted Ancillary Lender’s Fronted Ancillary Commitment or a Fronting Ancillary Lender’s Fronting Ancillary Commitments (which in the case of a multi-account overdraft, for the purpose of this definition, shall be the Designated Net Amount, unless, in relation to any Ancillary Commitment, Fronted Ancillary Commitment or Fronting Ancillary Commitment, otherwise agreed between the Obligors’ Agent and the relevant Ancillary Lender, Fronted Ancillary Lender or Fronting Ancillary Lender) less the Ancillary Outstandings in relation to that Ancillary Facility or, in the case of a Fronted Ancillary Facility, that Fronted Ancillary Lender’s or Fronting Ancillary Lender’s proportion of the Ancillary Outstandings.
“ Available Commitment ” means, in relation to a Facility, a Lender’s Commitment under that Facility minus (subject to Clause 11.8 ( Affiliates of Lenders ) and as set out below):
(a) the Base Currency Amount of its participation in any outstanding Utilisations under that Facility and, in the case of a Revolving Facility only, the Base Currency Amount of the aggregate of its (and its Affiliate’s) Ancillary Commitments, Fronted Ancillary Commitments and Fronting Ancillary Commitments; and
(b) in relation to any proposed Utilisation, the Base Currency Amount of its participation in any other Utilisations that are due to be made under that Facility on or before the proposed Utilisation Date and, in the case of a Revolving Facility
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only, the Base Currency Amount of its (and its Affiliate’s) Ancillary Commitment, Fronted Ancillary Commitments and Fronting Ancillary Commitments (which in the case of a multi-account overdraft, for the purpose of this definition, shall be the Designated Net Amount) in relation to any new Ancillary Facility or Fronted Ancillary Facility that is due to be made available on or before the proposed Utilisation Date.
For the purposes of calculating a Lender’s Available Commitment in relation to any proposed Utilisation under a Revolving Facility only, the following amounts shall not be deducted from a Lender’s Commitment under that Revolving Facility:
(i) that Lender’s (or its Affiliate’s) participation in any Revolving Facility Utilisations that are due to be repaid or prepaid on or before the proposed Utilisation Date; and
(ii) that Lender’s (or its Affiliate’s) Ancillary Commitments, Fronted Ancillary Commitments and Fronting Ancillary Commitments to the extent that they are due to be reduced or cancelled on or before the proposed Utilisation Date.
For the purposes of calculating a Lender’s Available Commitment in relation to any proposed Utilisation under a Guarantee Facility only, that Lender’s participation in any Guarantee Facility Utilisations under that Facility that are due to be repaid or prepaid on or before the proposed Utilisation Date shall not be deducted from that Lender’s Guarantee Facility Commitment.
“ Available Facility ” means, in relation to a Facility, the aggregate for the time being of each Lender’s Available Commitment in respect of that Facility.
“ A&E Coordinators ” means BNP Paribas Fortis S.A./N.V., Citibank N.A., London Branch, Deutsche Bank Aktiengesellschaft, Morgan Stanley Bank AG and UniCredit Bank Austria AG.
“ Bank Guarantee ” means any guarantee (including, but not limited to, an advance payment guarantee), bond (including, but not limited to, a surety bond or performance bond), indemnity, letter of credit, documentary or like letter of credit or any other instrument (including of suretyship or payment), issued, undertaken or made by a Guarantee Facility Lender (or the Guarantee Facility Issuing Bank on its behalf) in a form requested by a Borrower (or the Obligors’ Agent on its behalf) and agreed with the Guarantee Facility Issuing Bank (whether pursuant to a Supplemental Guarantee Facility Document or otherwise) acting reasonably and in good faith.
“ Bank Guarantee Fee ” has the meaning given to it in paragraph (a) of Clause 19.7 ( Fees payable in respect of Bank Guarantees ).
“ Bank Guarantee Rate ” has the meaning given to it in paragraph (a) of Clause 19.7 ( Fees payable in respect of Bank Guarantees).
“ Bank Levy ” means any amount payable by any Finance Party or any of its Affiliates on the basis of, or in relation to:
(a) its balance sheet or capital base or any part of that person or its liabilities or minimum regulatory capital or any combination thereof (including the United Kingdom bank levy as set out in the Finance Act 2011, the French taxe de risque bancaire systémique as set out in Article 235 ter ZE of the French Tax Code and the French taxe pour le financement du fonds de soutien aux collectivités territoriales as set out in Article 235 ter ZE bis of the French Tax Code, the
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German bank levy as set out in the German Restructuring Fund Act 2010 ( Restrukturierungsfondsgesetz ), the Dutch bankenbelasting as set out in the Dutch bank levy act ( Wet bankenbelasting ), the Austrian bank levy as set out in the Austrian Stability Duty Act ( Stabilitätsgesetz ), the Spanish bank levy ( Impuesto sobre los Depósitos en las Entidades de Crédito ) as set out in the Law 16/2012 of 27 December 2012, the Swedish bank levy as set out in the Swedish Precautionary Support Act ( Sw. lag (2015:1017) om förebyggande statligt stöd till kreditinstitut ) (as amended)) and any tax in any jurisdiction levied on a similar basis or for a similar purpose; or
(b) any financial activities taxes (or other taxes) of a kind contemplated in the European Commission consultation paper on financial sector taxation dated 22 February 2011 or the Single Resolution Mechanism established by EU Regulation No. 806 / 2014 of 15 July 2014 which has been enacted or which has been formally announced as proposed as at the date of this Agreement (or, if later, the date on which the relevant Finance Party becomes a Party).
“ Base Case Model ” means the financial model relating to the Group in the agreed form and delivered to the Agent pursuant to Clause 4.1 ( Initial conditions precedent ).
“ Base Currency ” means:
(a) for Facility B (EUR), euro;
(b) for Facility B (USD), the Original Guarantee Facility and the Original Revolving Facility, US Dollars; and
(c) in relation to any Additional Facility, as agreed between the Obligors’ Agent and the applicable Additional Facility Lenders.
“ Base Currency Amount ” means:
(a) in relation to a Utilisation of a Facility, the amount specified in the Utilisation Request delivered by a Borrower for that Utilisation (or, if the amount requested is not denominated in the Base Currency for that Facility, that amount converted into the Base Currency at the Agent’s Spot Rate of Exchange on the date which is three (3) Business Days before the Utilisation Date or, if later, on the date the Agent (or the Guarantee Facility Issuing Bank, as applicable) receives the Utilisation Request in accordance with the terms of this Agreement);
(b) in relation to an Ancillary Commitment, Fronted Ancillary Commitment or Fronting Ancillary Commitment, the amount specified as such in the notice delivered to the Agent by the Obligors’ Agent pursuant to Clause 11.2 ( Availability ) (or, if the amount specified is not denominated in the Base Currency, that amount converted into the Base Currency at the Agent’s Spot Rate of Exchange on the date which is three (3) Business Days before the Ancillary Commencement Date for that Ancillary Facility or Fronted Ancillary Facility or, if later, the date the Agent receives the notice of the Ancillary Commitment or Fronted Ancillary Commitment and Fronting Ancillary Commitment in accordance with the terms of this Agreement); and
(c) in relation to an Additional Facility Commitment, the amount specified as such in the Additional Facility Notice delivered to the Agent by the Obligors’ Agent pursuant to Clause 2.2 ( Additional Facilities ) (or, if the amount specified is not denominated in the Base Currency, that amount of the Additional Facility converted into the Base Currency at the spot rate of exchange on the relevant date (as elected and determined by the Obligors’ Agent acting reasonably and in good
14
faith) and notified to the Agent or if the Obligors’ Agent has not notified to the Agent, such conversion rate at the Agent’s Spot Rate of Exchange on the date which is three (3) Business Days before the Additional Facility Commencement Date for that Additional Facility or, if later, the Applicable Test Date in relation thereto),
as adjusted to reflect any repayment, prepayment, consolidation or division of a Utilisation, or utilisation under an Ancillary Facility or Fronted Ancillary Facility or (as the case may be) cancellation or reduction of an Ancillary Facility or Fronted Ancillary Facility.
“ Bidcos ” means the Company, US Bidco and Dutch Bidco. “ Board of Directors ” means:
(a) with respect to the Company or any company or corporation, the board of directors or managers, as applicable, of that company or corporation, or any duly authorised committee thereof;
(b) with respect to any partnership, the board of directors or other governing body of the general partner of that partnership or any duly authorised committee thereof, except if a manager or a board of managers have been appointed in accordance with the constitutional documents of such partnership, in which case paragraph (a) above shall apply; and
(c) with respect to any other person, the board or any duly authorised committee of that person serving a similar function.
Whenever any provision requires any action or determination to be made by, or any approval of, a Board of Directors, such action, determination or approval shall be deemed to have been taken or made if approved by a majority of the directors (excluding employee representatives, if any) on any such Board of Directors (whether or not such action or approval is taken as part of a formal board meeting or as a formal board approval).
“ Borrower ” means:
(a) in the case of Facility B, a Facility B Borrower;
(b) in the case of a Guarantee Facility, a Guarantee Facility Borrower;
(c) in the case of a Revolving Facility, a Revolving Facility Borrower;
(d) in the case of an Additional Facility, the relevant Additional Facility Borrower(s); and
(e) in the case of an Ancillary Facility only, any Affiliate of a Borrower that becomes a borrower of that Ancillary Facility with the approval of the relevant Ancillary Lender pursuant to Clause 11.9 ( Affiliates of Borrowers ).
“ Break Costs ” means the amount (if any) by which:
(a) EURIBOR, if positive and disregarding any interest rate floor, for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
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exceeds:
(b) the amount (if positive) which that Lender would be able to obtain by placing an amount equal to the principal amount of that Loan or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
“ Bridging Debt ” means any Indebtedness which is incurred with an initial maturity of or about one (1) year or less:
(a) as interim indebtedness to be refinanced by long term indebtedness which is not prohibited by the terms of this Agreement;
(b) as a bridge to a refinancing by way of any other indebtedness which is not prohibited by the terms of this Agreement which is in the form of bonds, notes or other equivalent security issuance, and which shall be:
(i) refinanced in full with the proceeds of such bonds, notes or other equivalent securities; or
(ii) converted or exchanged on or about (or prior to) one (1) year from the incurrence of the relevant Bridging Debt on terms customary for an instrument of this type into term loans or other bonds, notes or other equivalent securities.
“ Business Day ” means a day (other than a Saturday or Sunday) on which banks are open for general business in London, Vienna, Amsterdam, New York and Luxembourg; and:
(a) (in relation to any date for payment or purchase of a currency other than euro) the principal financial centre of the country of that currency;
(b) (in relation to any date for payment or purchase of euro) any TARGET Day; and
(c) (in relation to any date for payment by a Borrower (other than a Borrower incorporated in England and Wales, Austria, the Netherlands, the United States of America or Luxembourg)) in that Borrower’s jurisdiction of incorporation.
“ Capital Stock ” has the meaning given to that term in Schedule 17 ( Certain New York Law Defined Terms ).
“ Cash Equivalent Investments ” means, at any time when held by a member of the Group, any Cash Equivalents (as defined in Schedule 17 ( Certain New York Law Defined Terms ) and (without double counting)):
(a) debt securities or other investments in marketable debt obligations issued or guaranteed by the United States of America, the United Kingdom, Switzerland, Japan, Canada, any member state of the European Union, Australia or any other state which has a rating for its short term unsecured and non credit enhanced debt obligations of A 1 or higher by S&P or F1 or higher by Fitch or P 1 or higher by Moody’s or by an instrumentality or agency of any such government having an equivalent credit rating or which state has been approved by the Agent (acting on the instructions of the Majority Lenders) (each an “ Acceptable Nation ”) or any agency thereof and having not more than one (1) year to final maturity;
(b) certificates of deposit maturing within one (1) year after the relevant date of calculation and issued by an Acceptable Bank;
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(c) any investment in marketable debt obligations issued or guaranteed by any government of any Acceptable Nation, maturing within one (1) year after the relevant date of calculation and not convertible or exchangeable to any other security;
(d) commercial paper not convertible or exchangeable to any other security:
(i) for which a recognised trading market exists;
(ii) which matures within one (1) year after the relevant date of calculation; and
(iii) which has a credit rating of either A1 or higher by S&P or F1 or higher by Fitch or P1 or higher by Moody’s, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its short term unsecured and non-credit enhanced debt obligations, an equivalent rating;
(e) bills of exchange issued in any Acceptable Nation or, in each case, any agency thereof and eligible for rediscount at the relevant central bank and accepted by a bank (or their dematerialised equivalent);
(f) any investment which:
(i) is an investment in money market funds:
(A) with a credit rating of either A1 or higher by S&P or F1 or higher by Fitch or P1 or higher by Moody’s; or
(B) which invests substantially all their assets in securities of the types described in paragraphs (a) to (e) above;
(ii) is any other money market investment (including repurchase agreements) and substantially all of the assets or collateral in respect of that investment have a credit rating of either A1 or higher by S&P or F1 or higher by Fitch or P1 or higher by Moody’s; or
(iii) can be turned into cash on not more than 30 days’ notice; or
(g) any other debt security approved by the Majority Lenders (acting reasonably),
in each case, to which any member of the Group is alone (or together with other members of the Group) beneficially entitled at that time and which is not issued or guaranteed by any member of the Group or subject to any Security (other than a Permitted Lien).
“ Centre of Main Interests ” means the “centre of main interests” as such term is used in Article 3(1) of Regulation (EU) No. 2015/848 of May 2015 of the European Parliament and of the Council on Insolvency Proceedings (recast).
“ CEO ” means the chief executive officer of the Group or, if no chief executive officer is appointed, such other person fulfilling the functions of chief executive officer of the Group.
“ Certain Funds Entities ” means the Company and (to the extent any Major Default, Major Representation and/or Major Undertaking (as applicable) applies to it only) Topco.
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“ Certain Funds Period ” means the period beginning on (and including) 25 October 2018 and ending at 11.59 p.m. on the earliest to occur of:
(a) the Closing Date;
(b) 30 April 2019; and
(c) the date on which the Obligors’ Agent (or any of its Affiliates) notifies the Agent in writing (which notification shall be provided as soon as reasonably practicable after such event) that the Acquisition Agreement has been validly and conclusively terminated prior to the Acquisition Closing Date in accordance with its terms or by agreement between the parties thereto.
or, in each case, such later time and date as agreed by the Mandated Lead Arrangers (each acting reasonably and in good faith).
“ Certain Funds Utilisation ” means a Utilisation made or to be made during the Certain Funds Period.
“ CFO ” means the chief financial officer or finance director of the Group or, if no chief financial officer or finance director is appointed, such other person fulfilling the functions of chief financial officer or finance director of the Group.
“ Change of Control ” has the meaning given to that term in Clause 14.1 ( Exit and Listing ).
“ Charged Property ” has the meaning given to that term in the Intercreditor Agreement.
“ Clean-Up Period ” has the meaning given to it in Clause 30.6 ( Clean-up Period ).
“ Closing Date ” means 2 November 2018.
“ Closing Overfunding ” means the aggregate amount invested in the Company by way of Equity Contribution on or around the Closing Date and identified as “ Closing Overfunding ” in the Funds Flow Statement and/or the Tax Structure Memorandum (to the extent a statement of sources and uses is contained therein), plus the amount of cash on the balance sheet of the Group (including the Target Group) as at the Closing Date, as certified by the Obligors’ Agent to the Agent as soon as practicable following the Closing Date or otherwise in the first Compliance Certificate delivered under the terms of this Agreement to the extent Not Otherwise Applied.
“ Commitment ” means a Facility B Commitment, an Original Guarantee Facility Commitment, an Original Revolving Facility Commitment and an Additional Facility Commitment.
“ Commitment Letter ” means the commitment letter dated 27 July 2018 (as amended or replaced from time to time) between, among others, the Mandated Lead Arrangers and the Company.
“ Compliance Certificate ” means an Annual Compliance Certificate or a Quarterly Compliance Certificate.
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“ Confidential Information ” means all information relating to Topco, any Obligor, the Group, the Target Group, the Investors, the Transaction Documents, the Refinancing or a Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or a Facility from either:
(a) Topco, any member of the Group, any Investor, the Target Group or any of their respective advisers; or
(b) another Finance Party, if the information was obtained by that Finance Party directly or indirectly from Topco, any member of the Group, any Investor, the Target Group or any of its or their respective advisers,
in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that:
(i) is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 44 ( Confidentiality );
(ii) is identified in writing at the time of delivery as non confidential by Topco, any member of the Group, the Target Group or any of its or their respective advisers; or
(iii) is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with Topco, the Group or the Target Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.
“ Confidentiality Undertaking ” means a confidentiality undertaking substantially in a recommended form of the LMA on the date of this Agreement or in any other form agreed between the Obligors’ Agent and the Agent, and in any case capable of being relied upon by, and not capable of being materially amended without the consent of, the Obligors’ Agent.
“ Consolidated EBITDA ” has the meaning given to that term in Clause 28.1 ( Financial definitions ).
“ Consolidated Financial Interest Expenses ” has the meaning given to that term in Clause 28.1 ( Financial definitions ).
“ Consolidated Pro Forma EBITDA ” has the meaning given to that term in Clause 28.1 ( Financial definitions ).
“ Consolidated Senior Secured Net Debt ” has the meaning given to that term in Clause 28.1 ( Financial definitions ).
“ Consolidated Senior Secured Net Leverage Ratio ” has the meaning given to that term in Schedule 17 ( Certain New York Law Defined Terms ).
“ Consolidated Total Indebtedness ” has the meaning given to that term in Schedule 17 ( Certain New York Law Defined Terms ).
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“ Consolidated Total Net Leverage Ratio ” has the meaning given to that term in Schedule 17 ( Certain New York Law Defined Terms ).
“ Consolidated Total Secured Indebtedness ” has the meaning given to that term in Schedule 17 ( Certain New York Law Defined Terms ).
“ Constitutional Documents ” means the constitutional documents of the Company.
“ Debt Purchase Transaction ” means, in relation to a person, a transaction where such person:
(a) purchases by way of assignment or transfer;
(b) enters into any sub-participation in respect of; or
(c) enters into any other agreement or arrangement having an economic effect substantially similar to a sub-participation in respect of,
any Commitment or amount outstanding under this Agreement.
“ Debt Transfer ” has the meaning given in paragraph (a) of Clause 33.7 ( Debt Transfer ).
“ Debt Transfer Notice ” has the meaning given in paragraph (a)(iii) of Clause 33.7 ( Debt Transfer ).
“ Declared Default ” means the giving of notice by the Agent under paragraphs (a)(i), (a)(ii), (b)(i) or (b)(ii) of Clause 30.5 ( Acceleration ) and such notice has not been withdrawn, cancelled or otherwise ceased to have effect.
“ Default ” means an Event of Default or an event or circumstance which would (with the expiry of a grace period, the making of a determination, or the giving of notice provided for in Clause 30 ( Events of Default ), Schedule 16 ( Events of Default ) or any combination of the foregoing) be an Event of Default, provided that any such event or circumstance which requires the satisfaction of a condition as to materiality before it becomes an Event of Default shall not be a Default unless that condition is satisfied.
“ Defaulting Lender ” means any Lender (other than a Lender which is a member of the Group or a Sponsor Affiliate):
(a) which has failed to make its participation in a Loan available or has notified the Agent or the Obligors’ Agent that it will not make its participation in a Loan available by the Utilisation Date of that Loan in accordance with Clause 5.4 ( Lenders’ participation ) or Clause 7.3 ( Indemnities ) or has failed to provide cash collateral (or has notified the Issuing Bank or the Obligors’ Agent that it will not provide cash collateral) in accordance with Clause 7.4 ( Cash collateral by Non Acceptable L/C Lender );
(b) which has failed to indemnify the Guarantee Facility Issuing Bank in accordance with Clause 9.3 ( Indemnities ) or has failed to provide cash collateral (or has notified the Guarantee Facility Issuing Bank or the Obligors’ Agent that it will not provide cash collateral) in accordance with Clause 9.7 ( Cash collateral by Non Acceptable Guarantee Lender );
(c) which has otherwise disaffirmed, rescinded or repudiated a Finance Document or any term thereof;
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(d) which is a Non Consenting Lender and which has failed to assist with any step required to implement the Obligors’ Agent’s right to prepay that Non Consenting Lender or to replace that Non Consenting Lender pursuant to and as contemplated by Clause 43.5 ( Replacement of Lender ) within three (3) Business Days of a request to do so by the Obligors’ Agent;
(e) with respect to which (or any Holding Company of which) an Insolvency Event has occurred and is continuing; or
(f) which has incorrectly represented to the Company or the Agent that it is not a Net Short Lender (including as a result of a representation deemed to be made under paragraph (v) of Clause 43.4 (Other exceptions)),
unless, in the case of paragraph (a) above:
(i) its failure to pay is caused by administrative or technical error or a Disruption Event and payment is made within three (3) Business Days of its due date; or
(ii) the Lender is disputing in good faith whether it is contractually obliged to make the payment in question,
in each case, provided that the Agent may assume that (A) any Lender which has notified the Agent that it has become a Defaulting Lender and (B) any Lender in relation to which it is aware that any of the events or circumstances referred to in this definition has occurred, is a Defaulting Lender unless it has received notice to the contrary from the Lender concerned (together with any supporting evidence reasonably requested by the Agent) or the Agent is otherwise aware that the Lender has ceased to be a Defaulting Lender.
“ Delegate ” means any delegate, agent, attorney, co-trustee or co-security agent appointed by the Security Agent.
“ Designated Person ” means any person (i) listed in any applicable Sanctions-related list of designated persons maintained by a Sanctions Authority or (ii) located or resident in, or incorporated or organised under, the laws of a country or territory that is a Sanctioned Country, or (iii) owned or controlled by persons that are the target of Sanctions.
“ Designated Gross Amount ” has the meaning given to that term in Clause 11.2 ( Availability ). “ Designated Net Amount ” has the meaning given to that term in Clause 11.2 ( Availability ).
“ Designation Date ” has the meaning given to that term in Schedule 17 ( Certain New York Law Defined Terms ).
“ Disqualified Stock ” has the meaning given to that term in Schedule 17 ( Certain New York Law Defined Terms ).
“ Disruption Event ” means either or both of:
(a) a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
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(b) the occurrence of any other event which results in a disruption (of a technical or systems related nature) to the treasury or payments operations of a Party preventing that, or any other Party:
(i) from performing its payment obligations under the Finance Documents; or
(ii) from communicating with other Parties in accordance with the terms of the Finance Documents,
and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.
“ Dutch Civil Code ” means the Burgerliik Wetboek of the Netherlands.
“ Dutch Financial Supervision Act ” means the Wet op het financieel toezicht of the Netherlands. “ Dutch Obligor ” means any Obligor domiciled in the Netherlands.
“ DQ List ” means the disqualified lender list agreed by the Company and the A&E Coordinators before the Extension Effective Date and held by the Agent (as the same may be amended from time to time pursuant to paragraph (c) of Clause 31.3 ( Conditions of assignment or transfer )).
“ EBITDA based basket ” has the meaning given to that term in paragraph (a) of Clause 1.5 ( Baskets and Basket Testing ).
“ Eligible Subsidiary ” means any Subsidiary of the Company which is incorporated in (a) the same jurisdiction as an existing Approved Subsidiary or (b) in any other jurisdiction approved by each Lender under a Guarantee Facility.
“ Environment ” means humans, animals, plants and all other living organisms including the ecological systems of which they form part and the following media:
(a) air (including air within natural or man-made structures, whether above or below ground);
(b) water (including territorial, coastal and inland waters, water under or within land and water in drains and sewers); and
(c) land (including land under water).
“ Environmental Law ” means any applicable law or regulation binding upon a member of the Group in the jurisdiction in which it operates which relates to:
(a) the pollution or protection of the Environment;
(b) the conditions of the workplace; or
(c) the generation, handling, storage, use, release or spillage of any substance which, alone or in combination with any other, is capable of causing harm to the Environment, including any waste.
“ Environmental Permits ” means any permit and other Authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of any member of the Group conducted on or from the properties owned or used by any member of the Group.
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“ Equity Contribution ” has the meaning given to that term in Clause 28.1 ( Financial definitions ).
“ Equity Documents ” means the Constitutional Documents and any document evidencing an Equity Contribution as described in paragraph (b) of the definition of “ Equity Contribution ”.
“ EURIBOR ” means, in relation to any Loan in euro:
(a) the applicable Screen Rate;
(b) (if no Screen Rate is available for the Interest Period of that Loan) the Interpolated Screen Rate for that Loan; or
(c) if:
(i) no Screen Rate is available for the Interest Period of that Loan; and
(ii) it is not possible to calculate an Interpolated Screen Rate for that Loan, the Reference Bank Rate,
as of, in the case of paragraphs (a) and (c) above, the Specified Time on the Quotation Day for euro and for a period equal in length to the Interest Period of that Loan and, if any such rate applicable to:
(A) a Facility B (EUR) Loan or an Original Revolving Facility Loan is below zero (0), EURIBOR for such Loan will be deemed to be zero (0); and
(B) an Additional Facility Loan is below any percentage agreed with the relevant Additional Facility Lenders in the Additional Facility Notice for those Additional Facility Commitments, EURIBOR will be deemed to be such percentage rate specified in such Additional Facility Notice.
“ Event of Default ” means any event or circumstance specified as such in Clause 30 ( Events of Default ) (save for Clause 30.5 ( Acceleration ), Clause 30.6 ( Clean-up Period ) and Clause 30.7 ( Excluded Matters ).
“ Excess Cash Flow ” has the meaning given to that term in Clause 28.1 ( Financial definitions ).
“ Excess Cash Flow De Minimis ” means an amount equal to the greater of (x) €150,000,000 and (y) an amount equal to 35% of LTM EBITDA.
“ Excess IPO Proceeds ” means any amount of IPO Proceeds received by any member of the Group from a Listing which does not result in a Change of Control and which are not applied (and which are not required to be applied) in prepayment of the Facilities or any other Indebtedness.
“ Exchange Act ” has the meaning given to that term in Schedule 17 ( Certain New York Law Defined Terms ).
“ Excluded Jurisdiction ” has the meaning given to that term in paragraph 6 ( Excluded Jurisdictions ) of Schedule 11 ( Agreed Security Principles ).
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“ Existing Bank Guarantees ” means each letter of credit, bank guarantee or similar instrument issued on behalf of a member of the Target Group on or prior to the Closing Date as notified by the Company to the Guarantee Facility Issuing Bank and the Agent prior to the Closing Date.
“ Existing Lender ” has the meaning given to that term in Clause 31.2 ( Assignments and Transfers by Lenders ).
“ Existing Target Debt ” means, if applicable, the outstanding Indebtedness (and any interest, coupon, premia, fees, costs or expenses accruing thereon after the Closing Date) under (i) any Existing Target Debt Document and (ii) any hedging agreement or related or ancillary agreement entered into in connection with any Existing Target Debt Document.
“ Existing Target Debt Document ” means any document or instrument constituting, documenting or evidencing any indebtedness made available to or guaranteed or secured by any member of the Target Group and existing immediately prior to the Closing Date.
“ Exit Event ” has the meaning given to that term in Clause 14.1 ( Exit and Listing ). “ Expiry Date ” means, for a Letter of Credit or Bank Guarantee, the last day of its Term.
“ Extension Effective Date ” has the meaning given to such term in the Amendment and Restatement Agreement.
“ Facility ” means a Term Facility, a Guarantee Facility, a Revolving Facility and any Additional Facility, in each case, as the context requires.
“ Facility B ” means Facility B (EUR) and/or Facility B (USD).
“ Facility B Borrower ” means each of the Company, US Bidco and any Additional Borrowers in respect of Facility B.
“ Facility B Commitment ” means a Facility B (EUR) Commitment and/or a Facility B (USD) Commitment.
“ Facility B Lender ” means a Facility B (EUR) Lender and/or a Facility B (USD) Lender. “ Facility B Loan ” means a Facility B (EUR) Loan and/or a Facility B (USD) Loan.
“ Facility B (EUR) ” means the term loan facility made available under this Agreement as described in paragraph (a)(i) of Clause 2.1 ( The Facilities ).
“ Facility B (EUR) Commitment ” means:
(a) in relation to an Original Lender, the amount in euro set out in Part II ( The Original Lenders ) of Schedule 1 ( The Original Parties ) as its Facility B (EUR) Commitment and the amount of any other Facility B (EUR) Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 ( Additional Facilities ) or Clause 2.3 ( Increase ); and
(b) in relation to any other Lender, the amount in euro of any Facility B (EUR) Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 ( Additional Facilities ) or Clause 2.3 ( Increase ),
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to the extent:
(i) not cancelled, reallocated, reduced or transferred by it under this Agreement; and
(ii) not deemed to be zero (0) pursuant to Clause 32 ( Debt Purchase Transactions ).
“ Facility B (EUR) Lender ” means any Lender who makes available a Facility B (EUR) Commitment or a Facility B (EUR) Loan.
“ Facility B (EUR) Loan ” means a loan made or to be made under Facility B (EUR) or the principal amount outstanding for the time being of that loan.
“ Facility B (EUR) / Facility B (USD) Rate of Exchange ” means €1.00 equals US$1.10.
“ Facility B (USD) ” means the term loan facility made available under this Agreement as described in paragraph (a)(ii) of Clause 2.1 ( The Facilities ).
“ Facility B (USD) Commitment ” means:
(a) in relation to an Original Lender, the amount in USD set out in Part II ( The Original Lenders ) of Schedule 1 ( The Original Parties ) as its Facility B (USD) Commitment and the amount of any other Facility B (USD) Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 ( Additional Facilities ) or Clause 2.3 ( Increase ); and
(b) in relation to any other Lender, the amount in USD of any Facility B (USD) Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 ( Additional Facilities ) or Clause 2.3 ( Increase ),
to the extent:
(i) not cancelled, reallocated, reduced or transferred by it under this Agreement; and
(ii) not deemed to be zero (0) pursuant to Clause 32 ( Debt Purchase Transactions ).
“ Facility B (USD) Lender ” means any Lender who makes available a Facility B (USD) Commitment or a Facility B (USD) Loan.
“ Facility B (USD) Loan ” means a loan made or to be made under Facility B (USD) or the principal amount outstanding for the time being of that loan.
“ Facility Office ” means the office or offices notified by a Lender, Finance Party, the Guarantee Facility Issuing Bank or the Issuing Bank to the Agent in writing on or before the date it becomes a Lender, Finance Party, Guarantee Facility Issuing Bank or the Issuing Bank (or, following that date, by not less than five (5) Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement.
“ FATCA ” means:
(a) sections 1471 to 1474 of the Internal Revenue Code or any associated regulations (or any amended or successor version that is substantially comparable);
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(b) any treaty, law, regulation or other official guidance of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or
(c) any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
“ FATCA Application Date ” means:
(a) in relation to a “ withholdable payment ” described in section 1473(1)(A)(i) of the Internal Revenue Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;
(b) in relation to a “ withholdable payment ” described in section 1473(1)(A)(ii) of the Internal Revenue Code (which relates to “ gross proceeds ” from the disposition of property of a type that can produce interest from sources within the US), 1 January 2019; or
(c) in relation to a “ passthru payment ” described in section 1471(d)(7) of the Internal Revenue Code not falling within paragraphs (a) or (b) above, 1 January 2019,
or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA as a result of any change in FATCA after the date of this Agreement.
“ FATCA Deduction ” means a deduction or withholding from a payment under a Finance Document required by FATCA.
“ FATCA Exempt Party ” means a Party that is entitled to receive payments free from any FATCA Deduction.
“ Fee Letter ” means:
(a) the fee letter dated 27 July 2018 from the Mandated Lead Arrangers to the Company (the “ Arrangement Fee Letter ”);
(b) any fee letter or other agreement dated on or prior to the date of this Agreement between any Finance Party (or any of its Affiliates) and a member of the Group, setting out any of the fees referred to in Clause 19 ( Fees );
(c) any agreement setting out fees payable to a Finance Party pursuant to the Refinancing to the extent such agreement is expressly stated to be a Finance Document; and
(d) any agreement setting out fees payable to a Finance Party referred to in paragraph (n) of Clause 2.2 ( Additional Facilities ), paragraph (e) of Clause 2.3 ( Increase ), Clause 19.5 ( Agent and Security Agent fees ) or Clause 19.7 ( Interest, commission and fees on Ancillary Facilities and Fronted Ancillary Facilities ) of this Agreement or under or in relation to any other Finance Document.
“ Finance Document ” means this Agreement, any Accession Deed, any Ancillary Document, any Compliance Certificate, any Supplemental Guarantee Facility Document, any Fee Letter, each Increase Confirmation, each Additional Facility Notice and Additional Facility Lender Accession Notice, the Intercreditor Agreement, any Resignation Letter, any
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Selection Notice, any Debt Transfer Notice, the Syndication Strategy Letter, any Transaction Security Document, any Utilisation Request and any other document designated as a Finance Document by the Agent and the Obligors’ Agent.
“ Finance Party ” means the Agent, each Mandated Lead Arranger, the Security Agent, a Lender, the Issuing Bank, Guarantee Facility Issuing Bank, or any Ancillary Lender, Fronting Ancillary Lender or Fronted Ancillary Lender.
“ Financial Covenant Facility ” has the meaning given to that term in paragraph (b) of Clause 28.2 ( Financial Condition ).
“ Financial Quarter ” has the meaning given to that term in Clause 28.1 ( Financial definitions ). “ Financial Statements ” means Annual Financial Statements or Quarterly Financial Statements. “ Financial Year ” has the meaning given to that term in Clause 28.1 ( Financial definitions ).
“ Fitch ” has the meaning given to that term in Schedule 17 ( Certain New York Law Defined Terms ).
“ Fixed Charge Coverage Ratio ” has the meaning given to that term in Schedule 17 ( Certain New York Law Defined Terms ).
“ Fronted Ancillary Commitment ” means, in relation to a Fronted Ancillary Lender and a Fronted Ancillary Facility, the maximum Base Currency Amount of the Revolving Facility Commitment of that Fronted Ancillary Lender that is fronted under the Fronted Ancillary Facility as notified by the Fronting Ancillary Lender to the Agent pursuant to Clause 11.2 ( Availability ), such Fronted Ancillary Portion being equal to the proportion borne by that Fronted Ancillary Lender’s Available Commitment to the Available Facility (in each case in relation to the applicable Revolving Facility) on the date of such notification, to the extent that amount is not cancelled or reduced under this Agreement or the Ancillary Documents relating to that Fronted Ancillary Facility.
“ Fronted Ancillary Lender ” has the meaning given to that term in Clause 11.2 ( Availability ). “ Fronted Ancillary Facility ” has the meaning given to that term in Clause 11.2 ( Availability ).
“ Fronted Ancillary Facility Fee ” has the meaning given to that term in Clause 19.8 ( Interest, commission and fees on Ancillary Facilities and Fronted Ancillary Facilities ).
“ Fronted Ancillary Facility Fee Period ” has the meaning given to that term in Clause 19.8 ( Interest, commission and fees on Ancillary Facilities and Fronted Ancillary Facilities ).
“ Fronted Ancillary Portion ” means, in relation to a Fronted Ancillary Lender, the proportion which that Fronted Ancillary Lender’s commitment under a Fronted Ancillary Facility bears to all commitments under that Fronted Ancillary Facility.
“ Fronting Ancillary Commitment ” means, in relation to a Fronting Ancillary Lender and a Fronted Ancillary Facility, the maximum Base Currency Amount of that Fronted Ancillary Facility for which it is not indemnified by other Fronted Ancillary Lenders pursuant to paragraph (b) of Clause 11.15 ( Fronted Ancillary Commitment Indemnities ), as notified by the Fronting Ancillary Lender to the Agent pursuant to Clause 11.2 ( Availability ) to the extent that amount is not increased, cancelled or reduced under this Agreement or the Ancillary Documents relating to that Fronted Ancillary Facility.
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“ Fronting Ancillary Lender ” has the meaning given to that term in Clause 11.2 ( Availability ).
“ Funded Capital Structure ” means the sum of (a) the Sponsor Equity Investment plus (b) the aggregate principal amount of the funded Facility B Loans and loans made available pursuant to the Second Lien Facility Agreement, in each case, as of the Closing Date (excluding any increases in such amount as contemplated by a Fee Letter (and/or any other letter setting out syndication and/or flex terms relating to the Transaction) to fund certain original issue discount or fees in connection with any of the Facilities and the Second Lien Facility) less (i) cash on balance sheet of Target Group as of the Closing Date, and (ii) any Closing Overfunding.
“ Funds Flow Statement ” means any funds flow statement relating to the Transaction which is delivered to the Agent pursuant to Clause 4.1 ( Initial conditions precedent ).
“ Gross Outstandings” means, in relation to a multi-account overdraft, the Ancillary Outstandings of that multi-account overdraft but calculated on the basis that the wording in the definition of “ Ancillary Outstandings ” permitting the netting of credit balances were deleted.
“ Group ” means the Company and each of its Restricted Subsidiaries from time to time. “ Group Initiative ” has the meaning given to that term in Clause 28.1 ( Financial definitions ).
“ Group Structure Chart ” means any structure chart of the Group (assuming the Acquisition Closing Date has occurred) which is delivered to the Agent pursuant to Clause 4.1 ( Initial conditions precedent ).
“ Guarantee Facility ” means the Original Guarantee Facility or an Additional Guarantee Facility.
“ Guarantee Facility Borrower ” means an Original Guarantee Facility Borrower or an Additional Guarantee Facility Borrower.
“ Guarantee Facility Commitment ” means an Original Guarantee Facility Commitment or an Additional Guarantee Facility Commitment.
“ Guarantee Facility Lender ” means an Original Guarantee Facility Lender or an Additional Guarantee Facility Lender.
“ Guarantee Facility Utilisation ” means:
(a) in relation to any Utilisation under the Original Guarantee Facility, an Original Guarantee Facility Utilisation; and
(b) in relation to any Utilisation under the relevant Additional Guarantee Facility, an Additional Guarantee Facility Utilisation.
“ Guarantee Facility Issuing Bank ” means the Original Guarantee Facility Issuing Bank or any Guarantee Facility Lender (or Affiliate thereof) which has notified the Agent and the Company that it has agreed to be a Guarantee Facility Issuing Bank pursuant to the terms of this Agreement and to the extent there is more than one Guarantee Facility Issuing Bank in respect of Bank Guarantees outstanding at any time, as the context dictates, the “Guarantee Facility Issuing Bank” shall be the Guarantee Facility Issuing Bank that has issued or agreed to issue that Bank Guarantee.
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“ Guarantee Limitations ” means, in respect of any Obligor and any payments such Obligor is required to make in its capacity as a guarantor or as the provider of an indemnity or as debtor of costs or disbursements or with respect to any other payment obligation under this Agreement or any other Finance Document, the limitations and restrictions applicable to such entity pursuant to Clause 25.11 ( Guarantee Limitations: General ) to Clause 25.15 ( Additional Guarantee Limitations ) (inclusive) and the relevant Accession Deed applicable to such Additional Guarantor.
“ Guarantee Proportion ” means, in relation to a Guarantee Facility Lender in respect of any Bank Guarantee, the proportion, expressed as a percentage of that Lender’s Available Commitment in the Guarantee Facility pursuant to which such Bank Guarantee has been issued immediately prior to the issuance of that Bank Guarantee.
“ Guarantor ” means an Original Guarantor or an Additional Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 33.4 ( Resignation of an Obligor ).
“ Guarantor Coverage Test ” means confirmation that the aggregate (without double counting) earnings before interest, tax, depreciation and amortisation (calculated on an LTM basis on the same basis as Consolidated EBITDA but taking each entity on an unconsolidated basis and excluding goodwill, all intra Group items and investments in Subsidiaries of any member of the Group) (EBITDA) of the members of the Group which are Guarantors equals or exceeds 80% of Consolidated EBITDA (excluding for these purposes, any adjustments made to Consolidated EBITDA pursuant to paragraphs (a)(viii) and (a)(ix) of the definition thereof), provided that, for the purposes of calculating the Guarantor Coverage Test only:
(a) to the extent any Guarantor generates negative EBITDA, such Guarantor shall be deemed to have zero (0) EBITDA, for the purpose of calculating the numerator of the Guarantor Coverage Test; and
(b) unless otherwise elected by the Obligors’ Agent, to the extent that any member of the Group:
(i) is not a Guarantor; and
(ii) is incorporated in an Excluded Jurisdiction and/or (other than pursuant to paragraph 12 ( Controlled Foreign Corporations ) of Schedule 11 ( Agreed Security Principles )) is otherwise not required to (or is unable to) become a Guarantor in accordance with the Agreed Security Principles,
such member of the Group shall be deemed to have zero (0) EBITDA, for the purpose of calculating the denominator of the Guarantor Coverage Test.
“ Hedge Counterparty ” means each person which is party to the Intercreditor Agreement as a “ Hedge Counterparty ”.
“ Hedge Fund ” means a pooled investment vehicle or similar entity that is or would reasonably be recognised or categorised as a “hedge fund” by reputable institutions which are prominent participants in the financial markets (including any “vulture funds” and any pass-through or structured finance vehicles, in whatever legal form, which are used by any such pooled investment vehicle or similar entity) as part of structuring any investment.
“ Hedging Agreement ” has the meaning given to that term in the Intercreditor Agreement.
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“ Hedging Obligations ” has the meaning given to that term in Schedule 17 ( Certain New York Law Defined Terms ).
“ Historic Term SOFR ” means, in relation to any Loan denominated in USD, the most recent applicable Term SOFR for a period equal in length to the Interest Period of that Loan and which is as of a day which is no more than three (3) US Government Securities Business Days before the Quotation Day.
“ Holding Company ” means, in relation to a company, corporation or any other entity, any other company, corporation or entity in respect of which it is a Subsidiary.
“ IFRS ” has the meaning given to that term in Schedule 17 ( Certain New York Law Defined Terms ).
“ Impaired Agent ” means the Agent at any time when:
(a) it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;
(b) the Agent otherwise disaffirms, rescinds or repudiates a Finance Document or any term thereof;
(c) (if the Agent is also a Lender) it is (x) a Defaulting Lender under paragraphs (a) or (b) of the definition of Defaulting Lender or (y) a Sanctioned Lender; or
(d) an Insolvency Event has occurred and is continuing with respect to the Agent,
unless, in the case of paragraph (a) above:
(i) its failure to pay is caused by administrative or technical error or a Disruption Event and payment is made within three (3) Business Days of its due date; or
(ii) the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.
“ Increase Confirmation ” means a confirmation substantially in the form set out in Schedule 12 ( Form of Increase Confirmation ) or in any other form agreed between the Agent and the Obligors’ Agent (each acting reasonably).
“ Increase Lender ” has the meaning given to that term in Clause 2.3 ( Increase ).
“ Indebtedness ” has the meaning given to that term in Schedule 17 ( Certain New York Law Defined Terms ).
“ Industry Competitor ” means any person or entity (or any of its Affiliates) which is a competitor of a member of the Group or whose business is similar or related to a member of the Group (including any supplier or sub-contractor) and any controlling shareholder of such persons or any person which is acting (in relation to this Agreement) on behalf of such person or entity, provided that this shall not include any person or entity (or any of its Affiliates) which is a bank, financial institution or trust, fund or other entity whose principal business or a material activity of whom is arranging, underwriting or investing in debt.
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“ Information Memorandum ” means the document in the form approved by the Obligors’ Agent concerning the Group and the Target Group in relation to the Facilities and the Second Lien
Facility and distributed by the Mandated Lead Arrangers on a confidential basis prior to the Syndication Date in connection with the syndication of Facility B.
“ Initial Investors ” means:
(a) the Advent Investors;
(b) the Agreed Co-Investor; and
(c) any other co-investor approved by the Majority Lenders (acting reasonably).
“ Inside Maturity Additional Facility Indebtedness ” means an Additional Facility (or part thereof) which has been designated by the Obligors’ Agent as Inside Maturity Additional Facility Indebtedness, provided that at no time shall the outstanding aggregate principal amount of all Indebtedness designated as Inside Maturity Additional Facility Indebtedness exceed an amount equal to the greater of (x) €220,000,000 and (y) an amount equal to 50% of LTM EBITDA.
“ Insolvency Event ” means, in relation to a Finance Party, the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager, custodian or other similar officer in respect of that Finance Party or all or substantially all of that Finance Party’s assets or any analogous procedure or step being taken in any jurisdiction with respect to that Finance Party.
“ Intellectual Property ” means:
(a) any patents, utility models, trademarks, service marks, designs, business names, copyrights, database rights, design rights, registered designs, domain names, moral rights, inventions, confidential information, trade secrets, knowhow and all other intellectual property rights and interests throughout the world (which may now or in the future subsist), whether registered or unregistered; and
(b) the benefit of all applications (and all goodwill associated with such applications) and rights to use such assets of each member of the Group, including all rights under any agreements relating to the use or exploitation of any such rights, which may now or in the future subsist.
“ Intercreditor Agreement ” means the intercreditor agreement dated 25 October 2018 and made between, among others, the Company, the Original Debtors (as defined therein), the Agent, the Security Agent and the Original Lenders.
“ Interest Period ” means, in relation to a Loan, each period determined in accordance with Clause 17 ( Interest Periods ) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 17 ( Default interest ).
“ Internal Revenue Code ” means the US Internal Revenue Code of 1986, as amended.
“ Interpolated Screen Rate ” means, in relation to EURIBOR for any Loan, the rate (rounded to the same number of decimal places as the two (2) relevant Screen Rates) which results from interpolating on a linear basis between:
(a) the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and
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(b) the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,
each as of the Specified Time for the currency of that Loan.
“ Interpolated Term SOFR ” means, in relation to the applicable Term SOFR for any Loan denominated in USD, the rate (rounded to the same number of decimal places as Term SOFR) which results from interpolating on a linear basis between:
(a) either:
(i) the most recent applicable Term SOFR (provided that it is for a day which is no more than three (3) US Government Securities Business Days before the relevant Quotation Day) for the longest period (for which Term SOFR is available) which is less than the Interest Period of that Loan; or
(ii) if no such Term SOFR is available for a period which is less than the Interest Period of that Loan denominated in USD, SOFR for a day which is two (2) US Government Securities Business Days before the Quotation Day; or
(b) the most recent applicable Term SOFR (provided that it is for a day which is no more than three (3) US Government Securities Business Days before the relevant Quotation Day) for the shortest period (for which Term SOFR is available) which exceeds the Interest Period of that Loan,
each as of 11.00am (London time).
“ Investment ” has the meaning given to that term in Schedule 17 ( Certain New York Law Defined Terms ).
“ Investors ” means the Initial Investors and any other person holding (directly or indirectly) any issued share capital of the Company from time to time.
“ IPO Proceeds ” means the Net Proceeds received by members of the Group or any Holding Company of the Company from a Listing or a primary issue of shares in connection with such a Listing.
“ Issuing Bank ” means any Lender which has notified the Agent that it has agreed to the Obligors’ Agent’s request to be an Issuing Bank under a Revolving Facility pursuant to the terms of this Agreement (and if more than one Lender has so agreed, such Lenders shall be referred to, whether acting individually or together, as the Issuing Bank), provided that, in respect of a Letter of Credit issued or to be issued pursuant to the terms of this Agreement, the Issuing Bank shall be the Issuing Bank which has issued or agreed to issue that Letter of Credit.
“ L/C Proportion ” means, in relation to a Revolving Facility Lender in respect of any Letter of Credit, the proportion (expressed as a percentage) borne by that Lender’s Available Commitment to the relevant Available Facility (in each case) under a Revolving Facility immediately prior to the issue of that Letter of Credit, adjusted to reflect any assignment or transfer under this Agreement to or by that Lender, including pursuant to Clause 11.11 ( Adjustments required in relation to Ancillary Facilities ).
“ Legal Opinion ” means any legal opinion delivered to the Agent under Clause 4.1 ( Initial conditions precedent ) or under Clause 33 ( Changes to the Obligors ) or at any other time in connection with the Finance Documents.
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“ Legal Reservations ” means:
(a) the principle that certain remedies (including equitable remedies and remedies that are analogous to equitable remedies in the applicable jurisdiction) may be granted or refused at the discretion of the court, the principles of reasonableness and fairness, the limitation of enforcement by laws relating to bankruptcy, pre-insolvency proceedings, insolvency, liquidation, reorganisation, court schemes, moratoria, administration, examinership and other laws generally affecting the rights of creditors and secured creditors and similar principles or limitations under the laws of any applicable jurisdiction;
(b) the time barring of claims under applicable limitation laws (including the Limitation Acts) and defences of acquiescence, set-off or counterclaim and the possibility that an undertaking to assume liability for or to indemnify a person against non-payment of stamp duty may be void and defences of set-off, counterclaim or acquiescence and similar principles or limitations under the laws of any applicable jurisdiction;
(c) the principle that in certain circumstances Security granted by way of fixed charge may be recharacterised as a floating charge or that Security purported to be constituted as an assignment may be recharacterised as a charge;
(d) the principle that additional or default interest imposed pursuant to any relevant agreement may be held to be unenforceable on the grounds that it is a penalty and thus void;
(e) the principle that a court may not give effect to an indemnity for legal costs incurred by an unsuccessful litigant;
(f) the principle that the creation or purported creation of Security may be subject to additional limitations and restrictions pursuant to the applicable law (including on capital maintenance) and is subject to the completion of applicable Perfection Requirements;
(g) the principle that a court may not grant an order for specific performance with respect to contractual obligations other than payment obligations;
(h) the principle that provisions limiting or excluding liability may be only effective to the extent that they do not cover gross negligence, fraud or wilful misconduct, and that penalty clauses are subject to the general provisions of law;
(i) the principle that the creation or purported creation of Security over (i) any asset not beneficially owned by the relevant charging company at the date of the relevant security document or (ii) any contract or agreement which is subject to a prohibition on transfer, assignment or charging, may be void, ineffective or invalid and may give rise to a breach of the contract or agreement over which Security has purportedly been created;
(j) the possibility that a court may strike out a provision of a contract for rescission or oppression, undue influence or similar reason;
(k) the principle that a court may not give effect to any parallel debt provisions, covenants to pay the Security Agent or other similar provisions;
(l) the principle that certain remedies in relation to regulated entities may require further approval from government or regulatory bodies or pursuant to agreements with such bodies;
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(m) similar principles, rights and defences under the laws of any relevant jurisdiction;
(n) the principles of private and procedural laws of the Relevant Jurisdiction which affect the enforcement of a foreign court judgment;
(o) the principle that in certain circumstances pre-existing Security purporting to secure an Additional Facility, further advances or any Facility following a Structural Adjustment may be void, ineffective, invalid or unenforceable; and
(p) any other matters which are set out as qualifications or reservations (however described) as to matters of law in the Legal Opinions.
“ Lender ” means:
(a) an Original Lender; or
(b) any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in accordance with Clause 2.2 ( Additional Facilities ), Clause 2.3 ( Increase ) or Clause 31 ( Changes to the Lenders ),
which in each case has not ceased to be a Lender in accordance with the terms of this Agreement and provided that (among other things as provided by this Agreement) upon (i) termination in full of all Commitments of any Lender in relation to any Facility and (ii) payment in full of all amounts which are then due and payable to such Lender under that Facility, such Lender shall not be regarded as a Lender for that Facility for the purpose of determining whether any provision which requires consultation, consent, agreement or vote with any Lender (or any class thereof) has been complied with.
“ Letter of Credit ” means:
(a) a letter of credit, substantially in the agreed form set out in Schedule 10 ( Form of Letter of Credit ) or in any other form requested by the Obligors’ Agent and agreed by the Issuing Bank; or
(b) any guarantee, indemnity, documentary credit, performance bond or other instrument in a form requested by a Borrower (or the Obligors’ Agent on its behalf) and agreed by the Issuing Bank.
“ Liabilities ” has the meaning given to that term in the Intercreditor Agreement.
“ Lien ” has the meaning given to that term in Schedule 17 ( Certain New York Law Defined Terms ).
“ Limitation Acts ” means the Limitation Act 1980 and the Foreign Limitation Periods Act 1984.
“ Listing ” means the listing or the admission to trading of all or any part of the share capital of any member of the Group or any Holding Company (the only material assets of which are shares or other investments (directly or indirectly in the Group)) of a member of the Group (other than the Initial Investors) on any recognised investment exchange (as that term is used in the Financial Services and Markets Act 2000) or in or on any other exchange or market in any jurisdiction or country or any other sale or issue by way of listing, flotation or public offering or any equivalent circumstances in relation to any member of the Group or any such Holding Company of any member of the Group (other than the Initial Investors and their Holding Companies) in any jurisdiction or country.
“ LMA ” means the Loan Market Association.
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“ Loan ” means a Term Loan or a Revolving Facility Loan.
“ Loan to Own/Distressed Investor ” means any person (including an Affiliate or a Related Fund of a Lender or any transferee which satisfies the requirements set out under paragraph (b) of Clause 31.3 ( Conditions of Assignment or Transfer )) whose principal business or material activity is in investment strategies whose primary purpose is the purchase of loans or other debt securities with the intention of (or view to) owning the equity or gaining control of a business (directly or indirectly), provided that:
(a) any Affiliate of such persons which are a deposit taking financial institution authorised by a financial services regulator to carry out the business of banking which holds a minimum rating equal to or better than BBB- or Baa3 (as applicable) according to at least two of Moody’s, S&P or Fitch which are managed and controlled independently where any information made available under the Finance Documents is not disclosed or made available to other Affiliates; and
(b) any Original Lender,
shall not, in each case, be a Loan to Own/Distressed Investor. “ LTM ” means last 12 Months.
“ LTM EBITDA ” has the meaning given to that term in Schedule 17 ( Certain New York Law Defined Terms ).
“ Major Default ” means any event or circumstance constituting an Event of Default that is continuing under:
(a) paragraph (a) of Section 1 of Schedule 16 ( Events of Default );
(b) paragraph (b) of Section 1 of Schedule 16 ( Events of Default );
(c) paragraph (c) of Section 1 of Schedule 16 ( Events of Default ) insofar as it relates to a breach of any Major Undertaking;
(d) paragraph (e) of Section 1 of Schedule 16 ( Events of Default );
(e) Clause 30.2 ( Misrepresentation ) insofar as it relates to a breach of any Major Representation in any material respect; or
(f) Clause 30.3 ( Invalidity and Unlawfulness ),
in each case as it relates to:
(i) in the case of the Acquisition or a Certain Funds Utilisation, the Certain Funds Entities only (and excluding: (x) any procurement obligations on the part of the Certain Funds Entities with respect to any member of the Target Group; and (y) any failure to comply, breach or Default by any other member of the Group); and
(ii) in the case of any other acquisition not prohibited by the terms of this Agreement or an Agreed Certain Funds Utilisation, the applicable Agreed Certain Funds Obligor(s) only (and excluding: (x) any procurement obligations on the part of the Agreed Certain Funds Obligor with respect to any other member of the Group; and (y) any failure to comply, breach or Default by any other member of the Group).
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“ Major Representation ” means a representation or warranty under:
(a) Clause 26.1 ( Status );
(b) Clause 26.2 ( Binding obligations );
(c) Clause 26.3 ( Non-conflict with other obligations );
(d) Clause 26.4 ( Power and authority ); and
(e) Clause 26.6 ( Governing law and enforcement ),
in each case as it relates to:
(i) in the case of the Acquisition or a Certain Funds Utilisation, the Certain Funds Entities only (and excluding: (x) any procurement obligations on the part of the Certain Funds Entities with respect to any member of the Target Group; and (y) any failure to comply, breach or Default by any other member of the Group); and
(ii) in the case of any other acquisition not prohibited by the terms of this Agreement or an Agreed Certain Funds Utilisation, the applicable Agreed Certain Funds Obligor(s) only (and excluding: (x) any procurement obligations on the part of the Agreed Certain Funds Obligor with respect to any other member of the Group; and (y) any failure to comply, breach or Default by any other member of the Group).
“ Major Undertaking ” means an undertaking under:
(a) Section 1 ( Limitation on Indebtedness ) of Schedule 15 ( General Undertakings );
(b) Section 2 ( Limitation on Restricted Payments ) of Schedule 15 ( General Undertakings );
(c) Section 3 ( Limitation on Liens ) of Schedule 15 ( General Undertakings ); and
(d) Section 8 ( Merger and Consolidation - Company ) of Schedule 15 ( General Undertakings ),
in each case as it rela