SHARE ISSUANCE AGREEMENT
THIS SHARE ISSUANCE AGREEMENT (this “Agreement”) is entered into as of May 20, 2024 between Shimmick Corporation, a Delaware corporation (“Shimmick”) and AECOM, a Delaware corporation (“AECOM”), for the issuance by Shimmick to AECOM of 7,745,000 shares of common stock, par value $0.01 (the “Common Stock”), of Shimmick (such shares of Common Stock to be delivered hereunder, the “Shares”).
RECITALS
WHEREAS, AECOM and Berkshire Hathaway Specialty Insurance Company have entered into commitments to provide loans to Shimmick in the form of a $60 million revolving loan facility (which AECOM shall fund 50%) (the “Loans”) and an unconditional guaranty by AECOM of Shimmick’s existing $35 million ABL Facility.
WHEREAS, in connection with resolving certain litigation matters between AECOM and Shimmick, AECOM and Shimmick are also entering into a settlement and release agreement as to certain claims (the “Settlement and Release Agreement”).
WHEREAS, as consideration for the releases given by AECOM under the Settlement and Release Agreement, Shimmick agrees to issue to AECOM, and AECOM agrees to take delivery of, the Shares.
NOW, THEREFORE, in consideration of the premises and the representations, warranties, covenants and agreements herein contained and intending to be legally bound hereby, the parties hereto hereby agree as follows:
ISSUANCE OF SHARES
REPRESENTATIONS AND WARRANTIES OF SHIMMICK
Shimmick hereby represents and warrants to AECOM as follows as of the date hereof and as of the Additional Share Issuance Date:
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REPRESENTATIONS AND WARRANTIES OF AECOM
AECOM hereby represents, warrants, and covenants to Shimmick as follows as of the date hereof and as of the Additional Share Issuance Date:
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CERTAIN COVENANTS AND AGREEMENTS OF THE PARTIES
THE SECURITIES REFERENCED HEREIN HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.
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(i) Beginning on the one year anniversary of the Closing Date and ending on the Outside Date (as defined below), AECOM shall be entitled to request up to three (3) Requested Underwritten Offerings per twelve (12) month period; provided, however, that during the period beginning on the Closing Date and ending on the second anniversary of the Closing Date, Shimmick may postpone up to one (1) such Registered Underwritten Offering if Shimmick has a bona fide intention to conduct a primary offering of Common Stock within sixty (60) days of receipt of the applicable Underwritten Offering Notice. With respect to the proviso of the immediately preceding sentence, any determination as to whether Shimmick has a bona fide intention to conduct a primary offering of Common Stock shall be in the sole discretion of the board of directors of Shimmick (with the approval of the Special Committee (as defined in the Side Letter)) (the “Board”). In the event a Requested Underwritten Offering is postponed pursuant to Section 4.2(c)(i), Shimmick shall effectuate such Requested Underwritten Offering as soon as
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practicable thereafter (unless such Requested Underwritten Offering is otherwise withdrawn by AECOM).
(ii) Following the Outside Date, AECOM shall be entitled to request up to one (1) Requested Underwritten Offering per twelve (12) month period.
(iii) AECOM may request Requested Underwritten Offerings in excess of the limitations set forth in clauses (i) and (ii) of this Section 4.2(c), and Shimmick shall consider, in good faith, effectuating such additional Requested Underwritten Offerings.
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This indemnity shall be in addition to any liability Shimmick may otherwise have. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of AECOM or any indemnified party and shall survive the transfer of such securities by AECOM or any indemnified party and regardless of any indemnity agreed to in the underwriting agreement that is less favorable to AECOM or any indemnified party.
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MISCELLANEOUS
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if to Shimmick or Goldsteen:
Shimmick Corporation
530 Technology Drive
Suite 300
Irvine, California 92618
Attention: John Carpenter
Email: john.carpenter@shimmick.com
with a copy to, which shall not constitute notice to Shimmick:
King & Spalding LLP
1700 Pennsylvania Avenue NW
Washington, DC 20006
Attention: Zachary Davis
Alan Noskow
Email: zdavis@kslaw.com
anoskow@kslaw.com
if to AECOM:
AECOM
13355 Noel Road
Dallas, Texas 75240
Attention: Will Gabrielski
AECOM
One Capifornia Plaza
300 South Grand Avenue
Los Angeles, California 90071
Attention: Manav Kumar
with a copy to, which shall not constitute notice to AECOM:
Kirkland & Ellis LLP
601 Lexington Ave.
New York, New York 10022
Attention: Brian Schartz, P.C.
Michael Rigdon, P.C.
Atma Kabad
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Each party by notice to the other party may designate additional or different addresses for subsequent notices or communications.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have caused this Agreement to be executed by their respective duly authorized officers, as of the date first above written.
AECOM
By:
Name:
Title:
SHIMMICK CORPORATION
By:
Name:
Title:
FOR PURPOSES OF ARTICLE V ONLY:
MITCHELL B. GOLDSTEEN
Name: Mitchell B. Goldsteen
FOR PURPOSES OF ARTICLE V ONLY:
GOHO LLC
By:
Name: Mitchell B. Goldsteen
Title:
Signature Page to Share Issuance Agreement