株探米国株
英語
エドガーで原本を確認する
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________________________________________________________________________

FORM 10-Q
_________________________________________________________________________________________
(Mark One)
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 2023
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _________ to _________
Commission File Number: 001-38995
_________________________________________________________________________________________
Sunnova Energy International Inc.
(Exact name of registrant as specified in its charter)
_________________________________________________________________________________________
Delaware
30-1192746
(State or other jurisdiction of
incorporation or organization)
(I.R.S. Employer
Identification Number)
20 East Greenway Plaza, Suite 540
Houston, Texas 77046
(Address, including zip code, of principal executive offices)

(281) 892-1588
(Registrant's telephone number, including area code)
_______________________________________________________________________________

Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class Trading Symbol(s) Name of Each Exchange on Which Registered
Common Stock, $0.0001 par value per share NOVA New York Stock Exchange


Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☒ No ☐

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☒ No ☐

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.
Large accelerated filer Accelerated filer
Non-accelerated filer
Smaller reporting company
Emerging growth company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ☐ No ☒

The registrant had 122,416,359 shares of common stock outstanding as of October 23, 2023.



TABLE OF CONTENTS

Page
PART I - FINANCIAL INFORMATION
Item 1.
Item 2.
Item 3.
Item 4.
PART II - OTHER INFORMATION
Item 1.
Item 1A.
Item 2.
Item 3.
Item 4.
Item 5.
Item 6.

2

SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS

This report contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the "Securities Act"), and Section 21E of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Unless the context otherwise requires, the terms "Sunnova," "the Company," "we," "us" and "our" refer to Sunnova Energy International Inc. ("SEI") and its consolidated subsidiaries. Forward-looking statements generally relate to future events or Sunnova's future financial or operating performance. Actual outcomes and results may differ materially from what is expressed or forecast in such forward-looking statements. In some cases, you can identify these statements because they contain words such as "anticipate," "believe," "contemplate," "continue," "could," "estimate," "expect," "future," "goal," "intend," "likely," "may," "plan," "potential," "predict," "project," "seek," "should," "target," "will" or the negative of these words or other similar terms or expressions that concern our expectations, strategy, plans or intentions. Forward-looking statements contained in this report include, but are not limited to, statements about:

•federal, state and local statutes, regulations and policies;
•determinations of the Internal Revenue Service ("IRS") of the fair market value of our solar energy systems;
•the price of centralized utility-generated electricity and electricity from other sources and technologies;
•technical and capacity limitations imposed by operators of the power grid;
•the availability of tax rebates, credits and incentives, including changes to the rates of, or expiration of, federal tax credits and the availability of related safe harbors;
•our need and ability to raise capital to finance the installation and acquisition of distributed solar energy systems, refinance existing debt or otherwise meet our liquidity needs;
•our expectations concerning relationships with third parties, including the attraction, retention, performance and continued existence of our dealers;
•our ability to manage our supply chains and distribution channels and the impact of natural disasters and other events beyond our control;
•our ability to retain or upgrade current customers, further penetrate existing markets or expand into new markets;
•our investment in our platform and new product offerings and the demand for and expected benefits of our platform and product offerings;
•the ability of our solar energy systems, energy storage systems or other product offerings to operate or deliver energy for any reason, including if interconnection or transmission facilities on which we rely become unavailable;
•our ability to maintain our brand and protect our intellectual property and customer data;
•our ability to manage the cost of solar energy systems, energy storage systems and our service offerings;
•the willingness of and ability of our dealers and suppliers to fulfill their respective warranty and other contractual obligations;
•our expectations regarding litigation and administrative proceedings; and
•our ability to renew or replace expiring, canceled or terminated solar service agreements at favorable rates or on a long-term basis.

Our actual results and timing of these events may differ materially from those anticipated in these forward-looking statements as a result of many factors, including but not limited to those discussed under "Risk Factors" and elsewhere in this Quarterly Report on Form 10-Q. Moreover, we operate in a very competitive and rapidly changing environment and new risks emerge from time to time. It is not possible for our management to predict all risks, nor can we assess the impact of all factors on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements we may make. In light of these risks, uncertainties and assumptions, the forward-looking events and circumstances discussed in this Quarterly Report on Form 10-Q may not occur and actual results could differ materially and adversely from those anticipated or implied in the forward-looking statements. We undertake no obligation to update publicly any forward-looking statements for any reason after the date of this Quarterly Report on Form 10-Q to conform these statements to actual results or to changes in our expectations, except as required by law.

3

PART I - FINANCIAL INFORMATION

Item 1. Financial Statements.

SUNNOVA ENERGY INTERNATIONAL INC.
UNAUDITED CONDENSED CONSOLIDATED BALANCE SHEETS
(in thousands, except share amounts and share par values)
As of 
 September 30, 2023
As of 
 December 31, 2022
Assets
Current assets:
Cash and cash equivalents $ 467,902  $ 360,257 
Accounts receivable—trade, net 40,170  24,435 
Accounts receivable—other 101,907  212,397 
Other current assets, net of allowance of $4,276 and $3,250 as of September 30, 2023 and December 31, 2022, respectively
383,961  351,300 
Total current assets 993,940  948,389 
Property and equipment, net 5,119,027  3,784,801 
Customer notes receivable, net of allowance of $106,385 and $77,998 as of September 30, 2023 and December 31, 2022, respectively
3,531,083  2,466,149 
Intangible assets, net 141,175  162,512 
Goodwill 13,150  13,150 
Other assets 986,930  961,891 
Total assets (1) $ 10,785,305  $ 8,336,892 
Liabilities, Redeemable Noncontrolling Interests and Equity
Current liabilities:
Accounts payable $ 194,551  $ 116,136 
Accrued expenses 107,140  139,873 
Current portion of long-term debt 470,133  214,431 
Other current liabilities 96,949  71,506 
Total current liabilities 868,773  541,946 
Long-term debt, net 6,710,734  5,194,755 
Other long-term liabilities 1,003,922  712,741 
Total liabilities (1) 8,583,429  6,449,442 
Commitments and contingencies (Note 14)
Redeemable noncontrolling interests 124,082  165,737 
Stockholders' equity:
Common stock, 122,405,788 and 114,939,079 shares issued as of September 30, 2023 and December 31, 2022, respectively, at $0.0001 par value
12  11 
Additional paid-in capital—common stock 1,749,419  1,637,847 
Accumulated deficit (191,513) (364,782)
Total stockholders' equity
1,557,918  1,273,076 
Noncontrolling interests 519,876  448,637 
Total equity
2,077,794  1,721,713 
Total liabilities, redeemable noncontrolling interests and equity $ 10,785,305  $ 8,336,892 

(1) The consolidated assets as of September 30, 2023 and December 31, 2022 include $4,712,182 and $3,201,271, respectively, of assets of variable interest entities ("VIEs") that can only be used to settle obligations of the VIEs. These assets include cash of $51,260 and $40,382 as of September 30, 2023 and December 31, 2022, respectively; accounts receivable—trade, net of $13,789 and $8,542 as of September 30, 2023 and December 31, 2022, respectively; accounts receivable—other of $1,198 and $810 as of September 30, 2023 and December 31, 2022, respectively; other current assets of $805,774 and $422,364 as of September 30, 2023 and December 31, 2022, respectively; property and equipment, net of $3,778,707 and $2,680,587 as of September 30, 2023 and December 31, 2022, respectively; and other assets of $61,454 and $48,586 as of September 30, 2023 and December 31, 2022, respectively. The consolidated liabilities as of September 30, 2023 and December 31, 2022 include $88,275 and $66,441, respectively, of liabilities of VIEs whose creditors have no recourse to Sunnova Energy International Inc. These liabilities include accounts payable of $17,502 and $9,015 as of September 30, 2023 and December 31, 2022, respectively; accrued expenses of $77 and $287 as of September 30, 2023 and December 31, 2022, respectively; other current liabilities of $6,112 and $4,420 as of September 30, 2023 and December 31, 2022, respectively; and other long-term liabilities of $64,584 and $52,719 as of September 30, 2023 and December 31, 2022, respectively.

See accompanying notes to unaudited condensed consolidated financial statements.
4

SUNNOVA ENERGY INTERNATIONAL INC.
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except share and per share amounts)

Three Months Ended 
 September 30,
Nine Months Ended 
 September 30,
2023 2022 2023 2022
Revenue $ 198,398  $ 149,364  $ 526,471  $ 362,098 
Operating expense:
Cost of revenue—depreciation 33,743  24,663  92,262  69,935 
Cost of revenue—inventory sales 50,694  40,917  129,016  89,884 
Cost of revenue—other 30,981  15,567  81,599  32,974 
Operations and maintenance 18,702  9,774  59,306  23,787 
General and administrative 111,545  75,897  314,190  214,362 
Other operating (income) expense (9,051) 10,267  (3,134) (4,186)
Total operating expense, net 236,614  177,085  673,239  426,756 
Operating loss
(38,216) (27,721) (146,768) (64,658)
Interest expense, net 57,601  20,824  200,155  44,380 
Interest income (30,590) (16,185) (81,670) (40,428)
Other (income) expense
561  (12) 3,969  (327)
Loss before income tax
(65,788) (32,348) (269,222) (68,283)
Income tax benefit
(9,325) —  (1,632) — 
Net loss
(56,463) (32,348) (267,590) (68,283)
Net income (loss) attributable to redeemable noncontrolling interests and noncontrolling interests
6,684  32,195  (37,269) 72,455 
Net loss attributable to stockholders
$ (63,147) $ (64,543) $ (230,321) $ (140,738)
Net loss per share attributable to stockholders—basic and diluted
$ (0.53) $ (0.56) $ (1.97) $ (1.23)
Weighted average common shares outstanding—basic and diluted 119,554,008  114,816,879  116,971,318  114,293,251 

See accompanying notes to unaudited condensed consolidated financial statements.

5

SUNNOVA ENERGY INTERNATIONAL INC.
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)

Nine Months Ended 
 September 30,
2023 2022
CASH FLOWS FROM OPERATING ACTIVITIES
Net loss
$ (267,590) $ (68,283)
Adjustments to reconcile net loss to net cash used in operating activities:
Depreciation 107,957  78,401 
Impairment and loss on disposals, net
24,930  2,971 
Amortization of intangible assets 21,324  21,333 
Amortization of deferred financing costs 17,007  9,690 
Amortization of debt discount 12,971  6,273 
Non-cash effect of equity-based compensation plans 19,812  20,059 
Non-cash direct sales revenue (43,034) (4,448)
Provision for current expected credit losses and other bad debt expense
35,085  28,773 
Unrealized gain on derivatives
(10,208) (27,580)
Unrealized (gain) loss on fair value instruments and equity securities
846  (4,136)
Other non-cash items 2,633  (38,412)
Changes in components of operating assets and liabilities:
Accounts receivable 99,753  (100,537)
Other current assets (77,976) (139,946)
Other assets (95,321) (84,142)
Accounts payable (6,711) 1,403 
Accrued expenses (35,193) 41,571 
Other current liabilities 9,604  (4,243)
Other long-term liabilities (10,680) (4,542)
Net cash used in operating activities
(194,791) (265,795)
CASH FLOWS FROM INVESTING ACTIVITIES
Purchases of property and equipment (1,315,192) (637,556)
Payments for investments and customer notes receivable (716,972) (902,773)
Proceeds from customer notes receivable 126,980  79,870 
Proceeds from investments in solar receivables 8,708  9,388 
Other, net 4,707  (282)
Net cash used in investing activities
(1,891,769) (1,451,353)
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds from long-term debt 2,859,489  2,308,033 
Payments of long-term debt (1,090,338) (571,261)
Payments on notes payable (4,356) — 
Payments of deferred financing costs (60,336) (24,748)
Purchase of capped call transactions —  (48,420)
Proceeds from issuance of common stock, net 81,329  (3,345)
Contributions from redeemable noncontrolling interests and noncontrolling interests 520,611  236,661 
Distributions to redeemable noncontrolling interests and noncontrolling interests (30,159) (20,847)
Payments of costs related to redeemable noncontrolling interests and noncontrolling interests (8,475) (10,380)
Proceeds from sales of investment tax credits for redeemable noncontrolling interests and noncontrolling interests
4,950  — 
Other, net (6,662) (601)
Net cash provided by financing activities
2,266,053  1,865,092 
Net increase in cash, cash equivalents and restricted cash
179,493  147,944 
Cash, cash equivalents and restricted cash at beginning of period 545,574  391,897 
Cash, cash equivalents and restricted cash at end of period 725,067  539,841 
Restricted cash included in other current assets (30,307) (14,584)
Restricted cash included in other assets (226,858) (112,676)
Cash and cash equivalents at end of period $ 467,902  $ 412,581 
6

Nine Months Ended 
 September 30,
2023 2022
Non-cash investing and financing activities:
Change in accounts payable and accrued expenses related to purchases of property and equipment $ 66,022  $ 14,019 
Change in accounts payable and accrued expenses related to payments for investments and customer notes receivable $ 11,800  $ 21,750 
Supplemental cash flow information:
Cash paid for interest $ 213,016  $ 105,375 
Cash paid for income taxes $ 11,693  $ — 

See accompanying notes to unaudited condensed consolidated financial statements.
7

SUNNOVA ENERGY INTERNATIONAL INC.
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF REDEEMABLE NONCONTROLLING INTERESTS AND EQUITY
(in thousands, except share amounts)

Redeemable
Noncontrolling
Interests
Common Stock Additional
Paid-in
Capital -
Common
Stock
Accumulated
Deficit
Total
Stockholders'
Equity
Noncontrolling
Interests
Total
Equity
Shares Amount
December 31, 2021 $ 145,336  113,386,600  $ 11  $ 1,649,199  $ (459,715) $ 1,189,495  $ 286,782  $ 1,476,277 
Net income (loss) (2,432) —  —  —  (35,058) (35,058) 15,386  (19,672)
Issuance of common stock, net —  524,788  —  (2,976) —  (2,976) —  (2,976)
Contributions from redeemable noncontrolling interests and noncontrolling interests 3,757  —  —  —  —  —  48,132  48,132 
Distributions to redeemable noncontrolling interests and noncontrolling interests (1,122) —  —  —  —  —  (4,732) (4,732)
Costs related to redeemable noncontrolling interests and noncontrolling interests (57) —  —  —  —  —  (2,292) (2,292)
Equity in subsidiaries attributable to parent (173) —  —  —  69,769  69,769  (69,596) 173 
Equity-based compensation expense —  —  —  10,864  —  10,864  —  10,864 
Other, net (123) —  —  —  —  —  174  174 
March 31, 2022 145,186  113,911,388  11  1,657,087  (425,004) 1,232,094  273,854  1,505,948 
Net income (loss) 4,563  —  —  —  (41,137) (41,137) 22,743  (18,394)
Issuance of common stock, net —  745,829  —  15,828  —  15,828  —  15,828 
Contributions from redeemable noncontrolling interests and noncontrolling interests 13,423  —  —  —  —  —  111,967  111,967 
Distributions to redeemable noncontrolling interests and noncontrolling interests (1,239) —  —  —  —  —  (5,237) (5,237)
Costs related to redeemable noncontrolling interests and noncontrolling interests (193) —  —  —  —  —  (2,417) (2,417)
Equity in subsidiaries attributable to parent (10,168) —  —  —  83,316  83,316  (73,148) 10,168 
Equity-based compensation expense —  —  —  4,732  —  4,732  —  4,732 
Other, net (65) —  —  —  (1) (1) (2,010) (2,011)
June 30, 2022 151,507  114,657,217  11  1,677,647  (382,826) 1,294,832  325,752  1,620,584 
Net income (loss) (1,507) —  —  —  (64,543) (64,543) 33,702  (30,841)
Issuance of common stock, net —  238,653  —  (183) —  (183) —  (183)
Capped call transactions —  —  —  (48,420) —  (48,420) —  (48,420)
Contributions from redeemable noncontrolling interests and noncontrolling interests 5,990  —  —  —  —  —  53,392  53,392 
Distributions to redeemable noncontrolling interests and noncontrolling interests (1,203) —  —  —  —  —  (7,314) (7,314)
Costs related to redeemable noncontrolling interests and noncontrolling interests (8) —  —  —  —  —  (226) (226)
Equity in subsidiaries attributable to parent (1,240) —  —  —  52,191  52,191  (50,951) 1,240 
Equity-based compensation expense —  —  —  4,463  —  4,463  —  4,463 
Other, net (70) —  —  —  —  —  (854) (854)
September 30, 2022 $ 153,469  114,895,870  $ 11  $ 1,633,507  $ (395,178) $ 1,238,340  $ 353,501  $ 1,591,841 
8


Redeemable
Noncontrolling
Interests
Common Stock Additional
Paid-in
Capital -
Common
Stock
Accumulated
Deficit
Total
Stockholders'
Equity
Noncontrolling
Interests
Total
Equity
Shares Amount
December 31, 2022 $ 165,737  114,939,079  $ 11  $ 1,637,847  $ (364,782) $ 1,273,076  $ 448,637  $ 1,721,713 
Net loss (20,404) —  —  —  (81,083) (81,083) (8,859) (89,942)
Issuance of common stock, net —  645,580  (1,625) —  (1,624) —  (1,624)
Contributions from redeemable noncontrolling interests and noncontrolling interests 60,203  —  —  —  —  —  114,748  114,748 
Distributions to redeemable noncontrolling interests and noncontrolling interests (1,448) —  —  —  —  —  (7,106) (7,106)
Costs related to redeemable noncontrolling interests and noncontrolling interests (2,605) —  —  —  —  —  (1,460) (1,460)
Equity in subsidiaries attributable to parent (21,528) —  —  —  78,893  78,893  (57,365) 21,528 
Equity-based compensation expense —  —  —  9,515  —  9,515  —  9,515 
Other, net (453) —  —  —  —  —  (110) (110)
March 31, 2023 179,502  115,584,659  12  1,645,737  (366,972) 1,278,777  488,485  1,767,262 
Net income (loss) 860  —  —  —  (86,091) (86,091) (15,550) (101,641)
Issuance of common stock, net —  809,283  —  11,409  —  11,409  —  11,409 
Contributions from redeemable noncontrolling interests and noncontrolling interests 40,201  —  —  —  —  —  104,204  104,204 
Distributions to redeemable noncontrolling interests and noncontrolling interests (2,498) —  —  —  —  —  (7,320) (7,320)
Costs related to redeemable noncontrolling interests and noncontrolling interests (719) —  —  —  —  —  (721) (721)
Equity in subsidiaries attributable to parent (111,121) —  —  —  180,877  180,877  (69,756) 111,121 
Equity-based compensation expense —  —  —  4,803  —  4,803  —  4,803 
Other, net (6,144) —  —  —  —  —  (1,073) (1,073)
June 30, 2023 100,081  116,393,942  12  1,661,949  (272,186) 1,389,775  498,269  1,888,044 
Net income (loss)
(8,715) —  —  —  (63,147) (63,147) 15,399  (47,748)
Issuance of common stock, net —  6,011,846  —  81,976  —  81,976  —  81,976 
Contributions from redeemable noncontrolling interests and noncontrolling interests
137,580  —  —  —  —  —  63,675  63,675 
Distributions to redeemable noncontrolling interests and noncontrolling interests
(3,347) —  —  —  —  —  (8,440) (8,440)
Costs related to redeemable noncontrolling interests and noncontrolling interests
(2,575) —  —  —  —  —  (155) (155)
Equity in subsidiaries attributable to parent (96,524) —  —  —  143,820  143,820  (47,296) 96,524 
Equity-based compensation expense —  —  —  5,494  —  5,494  —  5,494 
Other, net (2,418) —  —  —  —  —  (1,576) (1,576)
September 30, 2023 $ 124,082  122,405,788  $ 12  $ 1,749,419  $ (191,513) $ 1,557,918  $ 519,876  $ 2,077,794 

See accompanying notes to unaudited condensed consolidated financial statements.
9

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(1) Description of Business and Basis of Presentation

We are a leading Energy as a Service provider, serving over 386,000 customers in more than 45 United States ("U.S.") states and territories. Sunnova Energy Corporation was incorporated in Delaware on October 22, 2012 and formed Sunnova Energy International Inc. ("SEI") as a Delaware corporation on April 1, 2019. We completed our initial public offering on July 29, 2019 (our "IPO"); and in connection with our IPO, all of Sunnova Energy Corporation's ownership interests were contributed to SEI. Unless the context otherwise requires, references in this report to "Sunnova," the "Company," "we," "our," "us," or like terms, refer to SEI and its consolidated subsidiaries.

We have a differentiated dealer model in which we partner with local dealers who originate, design and install our customers' solar energy systems, energy storage systems and related products and services on our behalf. Our focus on our dealer model enables us to leverage our dealers' specialized knowledge, connections and experience in local markets to drive customer origination while providing our dealers with access to high quality products at competitive prices, as well as technical oversight and expertise. We believe this structure provides operational flexibility, reduces exposure to labor shortages and lowers fixed costs relative to our peers, furthering our competitive advantage.

We provide our services through long-term agreements with a diversified pool of customers. Our solar service agreements typically are structured as either a legal-form lease (a "lease") of a solar energy system and/or energy storage system to the customer, the sale of the solar energy system's output to the customer under a power purchase agreement ("PPA") or the purchase of a solar energy system, energy storage system and/or accessory either with financing provided by us (a "loan") or paid in full by the customer (a "sale"); however, we also offer service plans and repair services for systems we did not originate. We make it possible in some states for a customer to obtain a new roof and/or other ancillary products. We also allow customers originated through our homebuilder channel the option of purchasing the system when the customer closes on the purchase of a new home. The initial term of our solar service agreements is typically between 10 and 25 years, during which time we provide or arrange for ongoing services to customers, including monitoring, maintenance and warranty services. Our lease and PPA agreements typically include an opportunity for customers to renew for up to an additional 10 years, via two five-year or one 10-year renewal options. Our ancillary products include both cash sales and loans with an initial term between one year and 20 years. Customer payments and rates can be fixed for the duration of the solar service agreement or escalated at a pre-determined percentage annually. We also receive tax benefits and other incentives from leases and PPAs, a portion of which we finance through tax equity, non-recourse debt structures and hedging arrangements in order to fund our upfront costs, overhead and growth investments. Our future success depends in part on our ability to raise capital from third-party investors and commercial sources. We have an established track record of attracting capital from diverse sources. From our inception through September 30, 2023, we have raised more than $14.5 billion in total capital commitments from equity, debt and tax equity investors.

Basis of Presentation

The accompanying interim unaudited condensed consolidated financial statements ("interim financial statements") include our consolidated balance sheets, statements of operations, statements of redeemable noncontrolling interests and equity and statements of cash flows and have been prepared in accordance with accounting principles generally accepted in the United States of America ("GAAP") from records maintained by us. We have condensed or omitted certain information and note disclosures normally included in the financial statements prepared in accordance with GAAP pursuant to the applicable rules and regulations of the Securities and Exchange Commission ("SEC") regarding interim financial reporting. As such, these interim financial statements should be read in conjunction with our 2022 annual audited consolidated financial statements and accompanying notes included in our Annual Report on Form 10-K filed with the SEC on February 23, 2023. Our interim financial statements reflect all normal recurring adjustments necessary, in our opinion, to state fairly our financial position and results of operations for the reported periods. Amounts reported for interim periods may not be indicative of a full year period because of our continual growth, seasonal fluctuations in demand for power, timing of maintenance and other expenditures, changes in interest expense and other factors.

Our interim financial statements include our accounts and those of our subsidiaries in which we have a controlling financial interest. In accordance with the provisions of the Financial Accounting Standards Board ("FASB") Accounting Standards Codification ("ASC") 810, Consolidation, we consolidate any VIE of which we are the primary beneficiary. We form VIEs with our investors in the ordinary course of business to facilitate the funding and monetization of certain attributes associated with our solar energy systems. The typical condition for a controlling financial interest is holding a majority of the voting interests of an entity. However, a controlling financial interest may also exist in entities, such as VIEs, through arrangements that do not involve holding a majority of the voting interests.
10

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
A primary beneficiary is defined as the party that has (a) the power to direct the activities of a VIE that most significantly impact the VIE's economic performance and (b) the obligation to absorb losses or receive benefits from the VIE that could potentially be significant to the VIE. We do not consolidate a VIE in which we have a majority ownership interest when we are not considered the primary beneficiary. We have considered the provisions within the contractual arrangements that grant us power to manage and make decisions that affect the operation of our VIEs, including determining the solar energy systems contributed to the VIEs, and the installation, operation and maintenance of the solar energy systems. We consider the rights granted to the other investors under the contractual arrangements to be more protective in nature rather than substantive participating rights. As such, we have determined we are the primary beneficiary of our VIEs and evaluate our relationships with our VIEs on an ongoing basis to determine whether we continue to be the primary beneficiary. We have eliminated all intercompany transactions in consolidation.

Reclassifications

Certain prior period amounts have been reclassified to conform to the current period presentation. These reclassifications did not have a significant impact on our interim financial statements.

Revisions

We have revised our previously issued interim financial statements to correct immaterial errors pertaining to our interest rate derivative financial instruments, specifically the credit valuation adjustment to account for the counterparties' credit risk. We originally did not record the estimated reduction to the derivative assets related to the credit valuation adjustment as of March 31, 2022, June 30, 2022 and September 30, 2022. These immaterial errors impacted our consolidated balance sheets, consolidated statements of operations, consolidated statements of cash flows and consolidated statements of redeemable noncontrolling interests and equity. The following tables present the impact of these revisions on the interim financial statements:

Consolidated Balance Sheets
As of March 31, 2022
As Previously
Reported
Revisions As
Revised
(in thousands)
Other assets $ 662,456  $ (1,475) $ 660,981 
Accumulated deficit $ (423,529) $ (1,475) $ (425,004)

As of June 30, 2022
As Previously
Reported
Revisions As
Revised
(in thousands)
Other assets $ 802,862  $ (5,609) $ 797,253 
Accumulated deficit $ (377,217) $ (5,609) $ (382,826)

As of September 30, 2022
As Previously
Reported
Revisions As
Revised
(in thousands)
Other assets $ 920,634  $ (8,105) $ 912,529 
Accumulated deficit $ (387,073) $ (8,105) $ (395,178)

11

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Consolidated Statements of Operations
Three Months Ended March 31, 2022
As Previously
Reported
Revisions As
Revised
(in thousands)
Interest expense, net $ (2,490) $ 1,475  $ (1,015)
Loss before income tax $ (20,629) $ (1,475) $ (22,104)
Net loss $ (20,629) $ (1,475) $ (22,104)
Net loss attributable to stockholders $ (33,583) $ (1,475) $ (35,058)
Net loss per share attributable to stockholders—basic and diluted $ (0.30) $ (0.01) $ (0.31)

Three Months Ended June 30, 2022 Six Months Ended June 30, 2022
As Previously
Reported
Revisions As
Revised
As Previously
Reported
Revisions As
Revised
(in thousands)
Interest expense, net $ 20,437  $ 4,134  $ 24,571  $ 17,947  $ 5,609  $ 23,556 
Loss before income tax $ (9,697) $ (4,134) $ (13,831) $ (30,326) $ (5,609) $ (35,935)
Net loss $ (9,697) $ (4,134) $ (13,831) $ (30,326) $ (5,609) $ (35,935)
Net loss attributable to stockholders $ (37,003) $ (4,134) $ (41,137) $ (70,586) $ (5,609) $ (76,195)
Net loss per share attributable to stockholders—basic and diluted $ (0.32) $ (0.04) $ (0.36) $ (0.62) $ (0.05) $ (0.67)

Three Months Ended September 30, 2022 Nine Months Ended September 30, 2022
As Previously
Reported
Revisions As
Revised
As Previously
Reported
Revisions As
Revised
(in thousands)
Interest expense, net $ 18,328  $ 2,496  $ 20,824  $ 36,275  $ 8,105  $ 44,380 
Loss before income tax $ (29,852) $ (2,496) $ (32,348) $ (60,178) $ (8,105) $ (68,283)
Net loss $ (29,852) $ (2,496) $ (32,348) $ (60,178) $ (8,105) $ (68,283)
Net loss attributable to stockholders $ (62,047) $ (2,496) $ (64,543) $ (132,633) $ (8,105) $ (140,738)
Net loss per share attributable to stockholders—basic and diluted $ (0.54) $ (0.02) $ (0.56) $ (1.16) $ (0.07) $ (1.23)

Consolidated Statements of Cash Flows
Three Months Ended March 31, 2022
As Previously
Reported
Revisions As
Revised
(in thousands)
Net loss $ (20,629) $ (1,475) $ (22,104)
Unrealized gain on derivatives $ (35,349) $ 1,475  $ (33,874)
Net cash used in operating activities $ (92,129) $ —  $ (92,129)

Six Months Ended June 30, 2022
As Previously
Reported
Revisions As
Revised
(in thousands)
Net loss $ (30,326) $ (5,609) $ (35,935)
Unrealized gain on derivatives $ (6,626) $ 5,609  $ (1,017)
Net cash used in operating activities $ (162,343) $ —  $ (162,343)

12

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Nine Months Ended September 30, 2022
As Previously
Reported
Revisions As
Revised
(in thousands)
Net loss $ (60,178) $ (8,105) $ (68,283)
Unrealized gain on derivatives $ (35,685) $ 8,105  $ (27,580)
Net cash used in operating activities $ (265,795) $ —  $ (265,795)

Consolidated Statements of Redeemable Noncontrolling Interests and Equity
Accumulated Deficit
As Previously
Reported
Revisions As
Revised
(in thousands)
December 31, 2021 $ (459,715) $ —  $ (459,715)
Net loss attributable to stockholders (33,583) (1,475) (35,058)
Equity in subsidiaries attributable to parent 69,769  —  69,769 
March 31, 2022 (423,529) (1,475) (425,004)
Net loss attributable to stockholders (37,003) (4,134) (41,137)
Equity in subsidiaries attributable to parent 83,316  —  83,316 
Other, net (1) —  (1)
June 30, 2022 (377,217) (5,609) (382,826)
Net loss attributable to stockholders (62,047) (2,496) (64,543)
Equity in subsidiaries attributable to parent 52,191  —  52,191 
September 30, 2022 $ (387,073) $ (8,105) $ (395,178)

(2) Significant Accounting Policies

Included below are updates to significant accounting policies disclosed in our 2022 annual audited consolidated financial statements.

Use of Estimates

The application of GAAP in the preparation of the interim financial statements requires us to make estimates and assumptions that affect the amounts reported in the interim financial statements and accompanying notes. We base our estimates on historical experience and on various other assumptions believed to be reasonable, the results of which form the basis for making judgments about the carrying values of assets and liabilities. Actual results could differ materially from those estimates.

Accounts Receivable

Accounts Receivable—Trade. Accounts receivable—trade primarily represents trade receivables from customers that are generally collected in the subsequent month. Accounts receivable—trade is recorded net of an allowance for credit losses, which is based on our assessment of the collectability of customer accounts based on the best available data at the time. We review the allowance by considering factors such as historical experience, customer credit rating, contractual term, aging category and current economic conditions that may affect a customer's ability to pay to identify customers with potential disputes or collection issues. We write off accounts receivable when we deem them uncollectible. The following table presents the changes in the allowance for credit losses recorded against accounts receivable—trade, net in the unaudited condensed consolidated balance sheets:
13

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

Three Months Ended 
 September 30,
Nine Months Ended 
 September 30,
2023 2022 2023 2022
(in thousands)
Balance at beginning of period $ 2,143  $ 1,198  $ 1,676  $ 1,044 
Provision for current expected credit losses 1,474  802  3,579  1,891 
Write off of uncollectible accounts (1,257) (717) (3,005) (1,769)
Recoveries 96  83  206  200 
Balance at end of period $ 2,456  $ 1,366  $ 2,456  $ 1,366 

Accounts Receivable—Other.    Accounts receivable—other primarily represents receivables from our dealers or other parties related to the sale of inventory and the use of inventory procured by us.

Inventory

Inventory is stated at the lower of cost and net realizable value using the first-in, first-out method. Inventory primarily represents (a) raw materials, such as energy storage systems, photovoltaic modules, inverters, meters and modems, (b) homebuilder construction in progress and (c) other associated equipment purchased. These materials are typically procured by us and used by our dealers, sold to our dealers or held for use as original parts on new solar energy systems or replacement parts on existing solar energy systems. We remove these items from inventory and record the transaction in typically one of these manners: (a) expense to operations and maintenance expense when installed as a replacement part for a solar energy system, (b) recognize in accounts receivable—other when procured by us and used by our dealers, (c) expense to cost of revenue—inventory sales if sold directly to a dealer or other party, (d) capitalize to property and equipment when installed on an existing home or business or (e) capitalize to property and equipment when placed in service under the homebuilder program. We periodically evaluate our inventory for unusable and obsolete items based on assumptions about future demand and market conditions. Based on this evaluation, provisions are made to write inventory down to net realizable value. The following table presents the detail of inventory as recorded in other current assets in the unaudited condensed consolidated balance sheets:

As of 
 September 30, 2023
As of 
 December 31, 2022
(in thousands)
Energy storage systems and components $ 69,082  $ 74,968 
Homebuilder construction in progress 43,179  43,116 
Modules and inverters 23,872  32,798 
Meters and modems 1,541  1,166 
Other —  65 
Total $ 137,674  $ 152,113 

Fair Value of Financial Instruments

Fair value is an exit price representing the amount that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. As such, fair value is a market-based measurement that should be determined based on assumptions market participants would use in pricing an asset or a liability. Valuation techniques used to measure fair value must maximize the use of observable inputs and minimize the use of unobservable inputs. ASC 820 establishes a three-tier fair value hierarchy, which prioritizes inputs that may be used to measure fair value as follows:

•Level 1—Observable inputs that reflect unadjusted quoted market prices in active markets for identical assets or liabilities that are accessible at the measurement date.
•Level 2—Observable inputs other than Level 1 prices, such as quoted market prices for similar assets or liabilities in active markets, quoted market prices in markets that are not active or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the assets or liabilities.
14

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
•Level 3—Unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets or liabilities.

In certain cases, the inputs used to measure fair value may fall into different levels of the fair value hierarchy. In such cases, the level in the fair value hierarchy must be determined based on the lowest level input that is significant to the fair value measurement. An assessment of the significance of a particular input to the fair value measurement in its entirety requires judgment and consideration of factors specific to the asset or liability. Our financial instruments include cash, cash equivalents, accounts receivable, customer notes receivable, investments in solar receivables, accounts payable, accrued expenses, long-term debt, interest rate swaps and caps and contingent consideration. The carrying values of accounts receivable, accounts payable and accrued expenses approximate the fair values due to the fact that they are short-term in nature (Level 1). We estimate the fair value of our customer notes receivable based on interest rates currently offered under the loan program with similar maturities and terms (Level 3). We estimate the fair value of our investments in solar receivables based on a discounted cash flows model that utilizes market data related to solar irradiance, production factors by region and projected electric utility rates in order to build up revenue projections (Level 3). In addition, lease-related revenue and maintenance and service costs were supported through the use of available market studies and data. We estimate the fair value of our fixed-rate long-term debt based on an analysis of debt with similar book values, maturities and required market yields based on current interest rates (Level 3). We determine the fair values of the interest rate derivative transactions based on a discounted cash flow method using contractual terms of the transactions and counterparty credit risk as key inputs. The floating interest rate is based on observable rates consistent with the frequency of the interest cash flows (Level 2). For contingent consideration, we estimate the fair value of the installation earnout using the Monte Carlo model based on the forecasted placements for the installations and the microgrid earnout using a scenario-based methodology based on the probabilities of the microgrid earnout, both using Level 3 inputs. See Note 6, Customer Notes Receivable, Note 7, Long-Term Debt and Note 8, Derivative Instruments.

The following tables present our financial instruments measured at fair value on a recurring basis as of September 30, 2023 and December 31, 2022:

As of September 30, 2023
Total Level 1 Level 2 Level 3
(in thousands)
Financial assets:
Investments in solar receivables $ 64,250  $ —  $ —  $ 64,250 
Derivative assets 129,643  —  129,643  — 
Total $ 193,893  $ —  $ 129,643  $ 64,250 
Financial liabilities:
Contingent consideration $ 12,874  $ —  $ —  $ 12,874 
Total $ 12,874  $ —  $ —  $ 12,874 

As of December 31, 2022
Total Level 1 Level 2 Level 3
(in thousands)
Financial assets:
Investments in solar receivables $ 72,171  $ —  $ —  $ 72,171 
Derivative assets 112,712  —  112,712  — 
Total $ 184,883  $ —  $ 112,712  $ 72,171 
Financial liabilities:
Contingent consideration $ 26,787  $ —  $ —  $ 26,787 
Total $ 26,787  $ —  $ —  $ 26,787 

Changes in the fair value of our investments in solar receivables are included in other operating expense/income in the consolidated statements of operations. The following table summarizes the change in the fair value of our financial assets accounted for at fair value on a recurring basis using Level 3 inputs as recorded in other current assets and other assets (see Note 4, Detail of Certain Balance Sheet Captions) in the unaudited condensed consolidated balance sheets:
15

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

Nine Months Ended 
 September 30,
2023 2022
(in thousands)
Balance at beginning of period $ 72,171  $ 82,658 
Additions 969  — 
Settlements (8,931) (8,090)
Gain (loss) recognized in earnings
41  (2,912)
Balance at end of period $ 64,250  $ 71,656 

Changes in the fair value of our contingent consideration are included in other operating expense/income in the consolidated statements of operations. The following table summarizes the change in the fair value of our financial liabilities accounted for at fair value on a recurring basis using Level 3 inputs as recorded in other long-term liabilities in the unaudited condensed consolidated balance sheets:

Nine Months Ended 
 September 30,
2023 2022
(in thousands)
Balance at beginning of period $ 26,787  $ 67,895 
Settlements (10,831) (16,014)
Gain recognized in earnings
(3,082) (6,720)
Balance at end of period $ 12,874  $ 45,161 

The following table summarizes the significant unobservable inputs used in the valuation of our liabilities as of September 30, 2023 using Level 3 inputs:

Unobservable
Input
Weighted
Average
Liabilities:
Contingent consideration - installation earnout Volatility 35.00%
Revenue risk premium 15.00%
Risk-free discount rate 5.25%
Contingent consideration - microgrid earnout Probability of success 10.00%
Risk-free discount rate 5.25%

Significant increases or decreases in the volatility, revenue risk premium, probability of success or risk-free discount rate in isolation could result in a significantly higher or lower fair value measurement.

16

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Revenue

The following table presents the detail of revenue as recorded in the unaudited condensed consolidated statements of operations:

Three Months Ended 
 September 30,
Nine Months Ended 
 September 30,
2023 2022 2023 2022
(in thousands)
PPA revenue $ 38,300  $ 31,891  $ 99,201  $ 84,235 
Lease revenue 37,966  25,912  103,468  71,717 
Inventory sales revenue 51,356  45,528  137,762  99,773 
Service revenue 19,323  4,309  55,282  7,024 
Solar renewable energy certificate revenue 16,136  16,241  38,982  37,172 
Cash sales revenue 24,284  18,933  62,827  45,695 
Loan revenue 9,283  5,012  24,538  12,582 
Other revenue 1,750  1,538  4,411  3,900 
Total $ 198,398  $ 149,364  $ 526,471  $ 362,098 

We recognize revenue from contracts with customers as we satisfy our performance obligations at a transaction price reflecting an amount of consideration based upon an estimated rate of return, net of cash incentives. We express this rate of return as the solar rate per kilowatt hour ("kWh") in the customer contract. The amount of revenue we recognize does not equal customer cash payments because we satisfy performance obligations ahead of cash receipt or evenly as we provide continuous access on a stand-ready basis to the solar energy system. We reflect the differences between revenue recognition and cash payments received in accounts receivable, other assets or deferred revenue, as appropriate. Revenue allocated to remaining performance obligations represents contracted revenue we have not yet recognized and includes deferred revenue as well as amounts that will be invoiced and recognized as revenue in future periods. Contracted but not yet recognized revenue was approximately $4.7 billion as of September 30, 2023, of which we expect to recognize approximately 3% over the next 12 months. We do not expect the annual recognition to vary significantly over approximately the next 20 years as the vast majority of existing solar service agreements have at least 20 years remaining, given the average age of the fleet of solar energy systems under contract is less than four years.

Certain customers may receive cash incentives. We defer recognition of the payment of these cash incentives and recognize them over the life of the contract as a reduction to revenue. The deferred payment is recorded in other assets for customers who receive the cash incentives under our lease and PPA agreements, and as a contra-liability in other long-term liabilities for customers who receive the cash incentives under our loan agreements.

PPAs.    Customers purchase electricity from us under PPAs. Pursuant to ASC 606, we recognize revenue based upon the amount of electricity delivered as determined by remote monitoring equipment at solar rates specified under the PPAs. All customers must pass our credit evaluation process. The PPAs generally have a term of 20 or 25 years with an opportunity for customers to renew for up to an additional 10 years, via two five-year or one 10-year renewal options.

Leases.    We are the lessor under lease agreements for solar energy systems and energy storage systems, which do not meet the definition of a lease under ASC 842 and are accounted for as contracts with customers under ASC 606. We recognize revenue on a straight-line basis over the contract term as we satisfy our obligation to provide continuous access to the solar energy system. All customers must pass our credit evaluation process. The lease agreements generally have a term of 20 or 25 years with an opportunity for customers to renew for up to an additional 10 years, via two five-year or one 10-year renewal options.

In most cases, we provide customers under our lease agreements a performance guarantee that each solar energy system will achieve a certain specified minimum solar energy production output, which is a significant proportion of its expected output. The specified minimum solar energy production output may not be achieved due to natural fluctuations in the weather or equipment failures from exposure and wear and tear outside of our control, among other factors. We determine the amount of the guaranteed output based on a number of different factors, including: (a) the specific site information related to the tilt of the panels, azimuth (a horizontal angle measured clockwise in degrees from a reference direction) of the panels, size of the system, and shading on site; (b) the calculated amount of available irradiance (amount of energy for a given flat surface facing a specific direction) based on historical average weather data and (c) the calculated amount of energy output of the solar energy system.
17

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
While actual irradiance levels can significantly change year over year due to natural fluctuations in the weather, we expect the levels to average out over the term of a lease and to approximate the levels used in determining the amount of the performance guarantee. Generally, weather fluctuations are the most likely reason a solar energy system may not achieve a certain specified minimum solar energy production output.

If the solar energy system does not produce the guaranteed production amount, we are required to refund a portion of the previously remitted customer payments, where the repayment is calculated as the product of (a) the shortfall production amount and (b) the dollar amount (guaranteed rate) per kWh that is fixed throughout the term of the contract. These remittances of a customer's payments, if needed, are payable as early as the first anniversary of the solar energy system's placed in service date and then every annual period thereafter. See Note 14, Commitments and Contingencies.

Inventory Sales.    Inventory sales revenue represents revenue from the direct sale of inventory to our dealers or other parties. We recognize the related revenue under ASC 606 upon shipment or upon sale when a bill and hold agreement is in place. Shipping and handling costs are included in cost of revenue—inventory sales in the consolidated statements of operations.

Service Revenue.    Service revenue includes revenue from the direct sale of solar energy systems and energy storage systems to customers with financing provided by us and sales of service plans and repair services. We recognize revenue from the direct sale of energy storage systems in the period in which the storage components are placed in service. Service plans are available to customers whose solar energy system was not originally sold by Sunnova. We recognize revenue from service plan contracts on a straight-line basis over the life of the contract, which is typically 10 years. We recognize revenue from repair services in the period in which the service was performed.

Solar Renewable Energy Certificates.    Each solar renewable energy certificate ("SREC") represents the environmental benefit of one megawatt hour (1,000 kWh) generated by a solar energy system. SRECs can be sold separate from the actual electricity generated by the renewable-based generation source. We account for the SRECs we generate from our solar energy systems as governmental incentives with no costs incurred to obtain them and do not consider those SRECs output of the underlying solar energy systems. We classify these SRECs as inventory held until sold and delivered to third parties. As we did not incur costs to obtain these governmental incentives, the inventory carrying value for the SRECs was $0 as of September 30, 2023 and December 31, 2022. We enter into economic hedges related to expected production of SRECs through forward contracts. While these fixed price forward contracts serve as an economic hedge against spot price fluctuations for the SRECs, the contracts do not qualify for hedge accounting and are not designated as cash flow hedges or fair value hedges. The contracts require us to physically deliver the SRECs upon settlement. We recognize the related revenue under ASC 606 upon satisfaction of the performance obligation to transfer the SRECs to the stated counterparty. Payments are typically received within one month of transferring the SREC to the counterparty. The costs related to the sales of SRECs are generally limited to broker fees (recorded in cost of revenue—other), which are only paid in connection with certain transactions. In certain circumstances we are required to purchase SRECs on the open market to fulfill minimum delivery requirements under our forward contracts.

Cash Sales.    Cash sales revenue represents revenue from a customer's purchase of a solar energy system from us typically when purchasing a new home. We recognize the related revenue under ASC 606 upon verification of the home closing.

Loans.    See discussion of loan revenue in the "Loans" section below.

Other Revenue.    Other revenue includes certain state and utility incentives. We recognize revenue from state and utility incentives in the periods in which they are earned.

Loans

We offer a loan program, under which the customer finances the purchase of a solar energy system, energy storage system and/or accessory through a solar service agreement, typically for a term of 10, 15 or 25 years. We recognize cash payments received from customers on a monthly basis under our loan program (a) as interest income, to the extent attributable to earned interest on the contract that financed the customer's purchase; (b) as a reduction of a note receivable on the balance sheet, to the extent attributable to a return of principal (whether scheduled or prepaid) on the contract that financed the customer's purchase; and (c) as revenue, to the extent attributable to payments for operations and maintenance services provided by us. To qualify for the loan program, a customer must pass our credit evaluation process, which requires the customer to have a minimum FICO® score of 600 to 710 depending on certain circumstances, and we secure the loans with the solar energy systems, energy storage systems or accessories financed.
18

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
The credit evaluation process is performed once for each customer at the time the customer is entering into the solar service agreement with us.

Our investments in solar energy systems, energy storage systems and accessories related to the loan program that are not yet placed in service are recorded in other assets in the consolidated balance sheets and are transferred to customer notes receivable upon being placed in service. Customer notes receivable are recorded at amortized cost, net of an allowance for credit losses (as described below), in other current assets and customer notes receivable in the consolidated balance sheets. Accrued interest receivable related to our customer notes receivable is recorded in accounts receivable—trade, net in the consolidated balance sheets. Interest income from customer notes receivable is recorded in interest income in the consolidated statements of operations. The amortized cost of our customer notes receivable is equal to the principal balance of customer notes receivable outstanding and does not include accrued interest receivable. Customer notes receivable continue to accrue interest until they are written off against the allowance, which occurs when the balance is 180 days or more past due unless the balance is in the process of collection. Customer notes receivable are considered past due one day after the due date based on the contractual terms of the loan agreement. In all cases, customer notes receivable balances are placed on a nonaccrual status or written off at an earlier date when they are deemed uncollectible. Expected recoveries do not exceed the aggregate of amounts previously written off and expected to be written off. Accrued interest receivable for customer notes receivable placed on a nonaccrual status is recorded as a reduction to interest income. Interest received on such customer notes receivable is accounted for on a cash basis until the customer notes receivable qualifies for the return to accrual status. Customer notes receivable are returned to accrual status when there is no longer any principal or interest amounts past due and future payments are reasonably assured.

The allowance for credit losses is deducted from the customer notes receivable amortized cost to present the net amount expected to be collected. It is measured on a collective (pool) basis when similar risk characteristics (such as financial asset type, customer credit rating, contractual term and vintage) exist. In determining the allowance for credit losses, we identify customers with potential disputes or collection issues and consider our historical level of credit losses and current economic trends that might impact the level of future credit losses. Adjustments to historical loss information are made for differences in current loan-specific risk characteristics, such as differences in underwriting standards. Expected credit losses are estimated over the contractual term of the loan agreements based on the best available data at the time and adjusted for expected prepayments when appropriate. The contractual term excludes expected extensions, renewals and modifications unless either of the following applies: (a) we have a reasonable expectation at the reporting date that a troubled debt restructuring will be executed with an individual customer or (b) the extension or renewal options are included in the original or modified contract at the reporting date and are not unconditionally cancelable by us. Expected credit losses are recorded in general and administrative expense in the consolidated statements of operations. See Note 6, Customer Notes Receivable.

Deferred Revenue

Deferred revenue consists of amounts for which the criteria for revenue recognition have not yet been met and includes (a) payments for unfulfilled performance obligations that will be recognized on a straight-line basis over the remaining term of the respective solar service agreements, net of any cash incentives earned by the customers, (b) down payments and partial or full prepayments from customers and (c) differences due to the timing of energy production versus billing for certain types of PPAs. Deferred revenue was $297.8 million as of December 31, 2021. The following table presents the detail of deferred revenue as recorded in other current liabilities and other long-term liabilities in the unaudited condensed consolidated balance sheets:

As of 
 September 30, 2023
As of 
 December 31, 2022
(in thousands)
Loans $ 871,981  $ 586,128 
PPAs and leases 34,122  24,893 
Solar receivables 4,405  4,602 
Total (1) $ 910,508  $ 615,623 

(1) Of this amount, $46.4 million and $30.2 million is recorded in other current liabilities as of September 30, 2023 and December 31, 2022, respectively.

During the nine months ended September 30, 2023 and 2022, we recognized revenue of $28.8 million and $12.3 million, respectively, from amounts recorded in deferred revenue at the beginning of the respective years.

19

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Goodwill

Goodwill represents the excess of the purchase price over the fair value of assets acquired and liabilities assumed. Goodwill is reviewed for impairment at least annually or whenever events or changes in circumstances indicate the carrying amount may be impaired. When assessing goodwill for impairment, we use qualitative and if necessary, quantitative methods in accordance with GAAP. As of September 30, 2023, we utilized a qualitative assessment and concluded it was more likely than not the fair value was greater than the carrying amount and thus, a goodwill impairment does not exist. As such, no further testing is required. Our review considered performance compared to released guidance, renewable market factors, liquidity and market capitalization including stock price along with other market factors including interest rate changes and inflation. Our annual assessment date is October 31 and should, among other events and circumstances, industry conditions deteriorate, the outlook for future operating results and cash flow decline or regulations change, costs of equity or debt capital increase, valuations for comparable public companies or our market capitalization experiences a sustained decline, we may need to further reassess the recoverability of goodwill in future periods.

Self-Insurance

In January 2023, we changed our health insurance policy for qualifying employees in the U.S. from a fully-insured policy to a self-insured policy in order to administer insurance coverage to our employees at a lower cost to us. The change in insurance policy did not have a significant impact on our consolidated financial statements and related disclosures. Under the self-insured policy, we maintain stop-loss coverage from a third party that limits our exposure to large claims. We record a liability associated with these benefits that includes an estimate of both claims filed and losses incurred but not yet reported based on historical claims experience. In estimating this accrual, we utilize a third-party actuary to estimate a range of expected losses, which are based on an analysis of historical data. Assumptions are monitored and adjusted when warranted by changing circumstances. We record our liability for estimated losses under our self-insured policy in accrued liabilities in the consolidated balance sheets. As of September 30, 2023, our liability for self-insured claims was $4.3 million, which represents our best estimate of the future cost of claims incurred as of that date. We believe we have adequate reserves for these claims as of September 30, 2023; however, the actual value of such claims could be significantly affected if future occurrences and claims differ from these assumptions.

Sales of Investment Tax Credits ("ITCs")

In September 2023, we entered into tax credit purchase agreements with a third-party purchaser to sell to such third-party purchaser, for cash, the Section 48(a) ITCs generated by certain solar energy systems that have or will be placed in service, subject to certain conditions set forth therein. We account for ITCs using the flow-through method. For tax credit purchase agreements entered into by certain of our consolidated tax equity partnerships, we record our share of the sale as income tax benefit and the tax equity investor's share as an increase to redeemable noncontrolling interest or noncontrolling interest. During the nine months ended September 30, 2023, we recognized ITC sales of $14.4 million, of which $11.8 million is recorded in income tax benefit in the unaudited condensed consolidated statements of operations and $2.6 million is recorded in redeemable noncontrolling interest in the unaudited condensed consolidated balance sheets.

New Accounting Guidance

New accounting pronouncements are issued by the FASB or other standard setting bodies and are adopted as of the specified effective date.

In March 2022, the FASB issued Accounting Standards Update ("ASU") No. 2022-02, Financial Instruments—Credit Losses: Troubled Debt Restructurings and Vintage Disclosures, to eliminate the accounting guidance for troubled debt restructurings while enhancing disclosure requirements for certain loan refinancings and restructurings by creditors when a borrower is experiencing financial difficulty. This ASU is effective for annual and interim reporting periods beginning in January 2023. We adopted this ASU in January 2023 and determined it did not have a significant impact on our consolidated financial statements and related disclosures.

20

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(3) Property and Equipment

The following table presents the detail of property and equipment, net as recorded in the unaudited condensed consolidated balance sheets:

Useful Lives As of 
 September 30, 2023
As of 
 December 31, 2022
(in years) (in thousands)
Solar energy systems and energy storage systems 35 $ 4,826,091  $ 3,719,727 
Construction in progress 619,171  329,893 
Asset retirement obligations 30 71,125  57,063 
Information technology systems 3 102,170  72,797 
Computers and equipment
3-5
6,944  4,976 
Leasehold improvements
3-6
6,170  5,558 
Furniture and fixtures 7 1,172  1,172 
Vehicles
4-5
1,640  1,640 
Other
5-6
157  157 
Property and equipment, gross 5,634,640  4,192,983 
Less: accumulated depreciation (515,613) (408,182)
Property and equipment, net $ 5,119,027  $ 3,784,801 

The amounts included in the above table for solar energy systems and energy storage systems and substantially all the construction in progress relate to our customer contracts (including PPAs and leases). These assets had accumulated depreciation of $451.9 million and $360.1 million as of September 30, 2023 and December 31, 2022, respectively.

(4) Detail of Certain Balance Sheet Captions

The following table presents the detail of other current assets as recorded in the unaudited condensed consolidated balance sheets:

As of 
 September 30, 2023
As of 
 December 31, 2022
(in thousands)
Inventory $ 137,674  $ 152,113 
Current portion of customer notes receivable 165,884  114,910 
Restricted cash 30,307  51,733 
Prepaid assets 28,805  17,492 
Deferred receivables 12,984  7,392 
Current portion of investments in solar receivables 7,618  7,107 
Other 689  553 
Total $ 383,961  $ 351,300 

21

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
The following table presents the detail of other assets as recorded in the unaudited condensed consolidated balance sheets:

As of 
 September 30, 2023
As of 
 December 31, 2022
(in thousands)
Construction in progress - customer notes receivable $ 190,019  $ 382,611 
Restricted cash 226,858  133,584 
Exclusivity and other bonus arrangements with dealers, net 171,402  121,313 
Investments in solar receivables 56,632  65,064 
Straight-line revenue adjustment, net 60,059  53,086 
Other 281,960  206,233 
Total $ 986,930  $ 961,891 

The following table presents the detail of other current liabilities as recorded in the unaudited condensed consolidated balance sheets:

As of 
 September 30, 2023
As of 
 December 31, 2022
(in thousands)
Interest payable $ 36,041  $ 35,258 
Deferred revenue 46,403  30,172 
Current portion of operating and finance lease liability 4,001  3,247 
Current portion of performance guarantee obligations 2,675  2,495 
Other 7,829  334 
Total $ 96,949  $ 71,506 

(5) Asset Retirement Obligations ("ARO")

AROs consist primarily of costs to remove solar energy system assets and costs to restore the solar energy system sites to the original condition, which we estimate based on current market rates. For each solar energy system, we recognize the fair value of the ARO as a liability and capitalize that cost as part of the cost basis of the related solar energy system. The related assets are depreciated on a straight-line basis over 30 years, which is the estimated average time a solar energy system will be installed in a location before being removed, and the related liabilities are accreted to the full value over the same period of time. We revise our estimated future liabilities based on recent actual experiences, including third party cost estimates, average size of solar energy systems and inflation rates, which we evaluate at least annually. Changes in our estimated future liabilities are recorded as either a reduction or addition in the carrying amount of the remaining unamortized asset and the ARO and either decrease or increase our depreciation and accretion expense amounts prospectively. The following table presents the changes in AROs as recorded in other long-term liabilities in the unaudited condensed consolidated balance sheets:

Nine Months Ended 
 September 30,
2023 2022
(in thousands)
Balance at beginning of period $ 69,869  $ 54,396 
Additional obligations incurred 14,106  7,962 
Accretion expense 3,491  2,687 
Other (61) (79)
Balance at end of period $ 87,405  $ 64,966 

22

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(6) Customer Notes Receivable

We offer a loan program, under which the customer finances the purchase of a solar energy system, energy storage system and/or accessory through a solar service agreement for a term of 10, 15 or 25 years. The following table presents the detail of customer notes receivable as recorded in the unaudited condensed consolidated balance sheets and the corresponding fair values:

As of 
 September 30, 2023
As of 
 December 31, 2022
(in thousands)
Customer notes receivable $ 3,807,628  $ 2,662,307 
Allowance for credit losses (110,661) (81,248)
Customer notes receivable, net $ 3,696,967  $ 2,581,059 
Estimated fair value, net $ 3,609,218  $ 2,554,948 

The following table presents the changes in the allowance for credit losses related to customer notes receivable as recorded in the unaudited condensed consolidated balance sheets:

Three Months Ended 
 September 30,
Nine Months Ended 
 September 30,
2023 2022 2023 2022
(in thousands)
Balance at beginning of period $ 102,337  $ 57,043  $ 81,248  $ 41,138 
Provision for current expected credit losses 8,324  10,945  29,413  26,814 
Recoveries —  —  —  36 
Balance at end of period $ 110,661  $ 67,988  $ 110,661  $ 67,988 

As of September 30, 2023 and December 31, 2022, we invested $190.0 million and $382.6 million, respectively, in loan solar energy systems, energy storage systems and accessories not yet placed in service. For the three months ended September 30, 2023 and 2022, interest income related to our customer notes receivable was $26.8 million and $15.1 million, respectively. For the nine months ended September 30, 2023 and 2022, interest income related to our customer notes receivable was $69.9 million and $39.1 million, respectively. As of September 30, 2023 and December 31, 2022, accrued interest receivable related to our customer notes receivable was $25.8 million and $10.2 million, respectively. As of September 30, 2023 and December 31, 2022, there was $25.8 million and $12.6 million, respectively, of customer notes receivable not accruing interest and there was $568,000 and $278,000, respectively, of allowance recorded for loans on nonaccrual status. For the three months ended September 30, 2023 and 2022, interest income of $0 was recognized for loans on nonaccrual status and accrued interest receivable of $15,000 and $8,000, respectively, was written off by reversing interest income. For the nine months ended September 30, 2023 and 2022, interest income of $0 was recognized for loans on nonaccrual status and accrued interest receivable of $32,000 and $505,000, respectively, was written off by reversing interest income.

We consider the performance of our customer notes receivable portfolio and its impact on our allowance for credit losses. We also evaluate the credit quality based on the aging status and payment activity. The following table presents the aging of the amortized cost of customer notes receivable:

As of 
 September 30, 2023
As of 
 December 31, 2022
(in thousands)
1-90 days past due $ 147,369  $ 91,668 
91-180 days past due 32,861  16,859 
Greater than 180 days past due 62,252  14,504 
Total past due 242,482  123,031 
Not past due 3,565,146  2,539,276 
Total $ 3,807,628  $ 2,662,307 

23

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
As of September 30, 2023 and December 31, 2022, the amortized cost of our customer notes receivable more than 90 days past due but not on nonaccrual status was $69.3 million and $31.4 million, respectively. The following table presents the amortized cost by origination year of our customer notes receivable based on payment activity:

Amortized Cost by Origination Year
2023 2022 2021 2020 2019 Prior Total
(in thousands)
Payment performance:
Performing $ 1,237,601  $ 1,360,949  $ 703,184  $ 215,362  $ 111,257  $ 117,023  $ 3,745,376 
Nonperforming (1) 1,655  26,752  16,337  4,979  4,543  7,986  62,252 
Total $ 1,239,256  $ 1,387,701  $ 719,521  $ 220,341  $ 115,800  $ 125,009  $ 3,807,628 

(1)    A nonperforming loan is a loan in which the customer is in default and has not made any scheduled principal or interest payments for 181 days or more.

(7) Long-Term Debt

Our subsidiaries with long-term debt include Sunnova Energy Corporation, Sunnova EZ-Own Portfolio, LLC ("EZOP"), Sunnova Helios II Issuer, LLC ("HELII"), Sunnova RAYS I Issuer, LLC ("RAYSI"), Sunnova Helios III Issuer, LLC ("HELIII"), Sunnova TEP Holdings, LLC ("TEPH"), Sunnova Sol Issuer, LLC ("SOLI"), Sunnova Helios IV Issuer, LLC ("HELIV"), Sunnova Asset Portfolio 8, LLC ("AP8"), Sunnova Sol II Issuer, LLC ("SOLII"), Sunnova Helios V Issuer, LLC ("HELV"), Sunnova Sol III Issuer, LLC ("SOLIII"), Sunnova Helios VI Issuer, LLC ("HELVI"), Sunnova Helios VII Issuer, LLC ("HELVII"), Sunnova Helios VIII Issuer, LLC ("HELVIII"), Sunnova Sol IV Issuer, LLC ("SOLIV"), Sunnova Helios IX Issuer, LLC ("HELIX"), Sunnova Helios X Issuer, LLC ("HELX"), Sunnova Inventory Supply, LLC ("IS"), Sunnova Sol V Issuer, LLC ("SOLV"), Sunnova Helios XI Issuer, LLC ("HELXI"), Sunnova Helios XII Issuer, LLC ("HELXII") and Sunnova Asset Portfolio 9, LLC ("AP9"). The following table presents the detail of long-term debt, net as recorded in the unaudited condensed consolidated balance sheets:

Nine Months Ended
September 30, 2023
Weighted Average
Effective Interest
Rates
As of September 30, 2023 Year Ended
December 31, 2022
Weighted Average
Effective Interest
Rates
As of December 31, 2022
Long-term Current Long-term Current
(in thousands, except interest rates)
SEI
0.25% convertible senior notes
0.71  % $ 575,000  $ —  0.71  % $ 575,000  $ — 
2.625% convertible senior notes
3.03  % 600,000  —  3.11  % 600,000  — 
Debt discount, net (20,471) —  (24,324) — 
Deferred financing costs, net (802) —  (920) — 
Sunnova Energy Corporation
Notes payable
5.54  % —  5,878  —  — 
5.875% senior notes
6.55  % 400,000  —  6.52  % 400,000  — 
11.75% senior notes
9.92  % 400,000  —  —  — 
Debt discount, net (13,833) —  (3,767) — 
Deferred financing costs, net (13,080) —  (7,339) — 
EZOP
Revolving credit facility 8.65  % 639,500  —  5.10  % 500,000  — 
Debt discount, net (343) —  (532) — 
HELII
Solar asset-backed notes 5.66  % 194,933  9,065  5.69  % 204,016  8,632 
Debt discount, net (26) —  (30) — 
Deferred financing costs, net (3,090) —  (3,591) — 
RAYSI
Solar asset-backed notes 5.55  % 106,666  6,280  5.54  % 105,878  9,957 
Debt discount, net (807) —  (960) — 
Deferred financing costs, net (3,120) —  (3,451) — 
HELIII
24

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Solar loan-backed notes 4.45  % 87,862  10,095  4.42  % 94,247  10,438 
Debt discount, net (1,318) —  (1,536) — 
Deferred financing costs, net (1,265) —  (1,474) — 
TEPH
Revolving credit facility 9.99  % 766,000  —  7.74  % 425,700  — 
Debt discount, net (1,320) —  (2,043) — 
SOLI
Solar asset-backed notes 3.91  % 339,489  13,672  3.92  % 348,962  16,063 
Debt discount, net (77) —  (87) — 
Deferred financing costs, net (6,035) —  (6,827) — 
HELIV
Solar loan-backed notes 4.17  % 99,165  11,011  4.15  % 105,655  11,494 
Debt discount, net (453) —  (564) — 
Deferred financing costs, net (2,114) —  (2,609) — 
AP8
Revolving credit facility 9.50  % —  213,400  20.52  % 74,535  465 
SOLII
Solar asset-backed notes 3.42  % 224,368  7,340  3.41  % 232,276  6,409 
Debt discount, net (58) —  (64) — 
Deferred financing costs, net (4,106) —  (4,576) — 
HELV
Solar loan-backed notes 2.50  % 136,508  13,709  2.47  % 143,940  14,367 
Debt discount, net (577) —  (690) — 
Deferred financing costs, net (2,234) —  (2,661) — 
SOLIII
Solar asset-backed notes 2.81  % 261,947  16,763  2.78  % 275,779  16,632 
Debt discount, net (106) —  (117) — 
Deferred financing costs, net (5,061) —  (5,616) — 
HELVI
Solar loan-backed notes 2.11  % 162,708  13,733  2.08  % 167,669  16,770 
Debt discount, net (34) —  (40) — 
Deferred financing costs, net (2,488) —  (2,909) — 
HELVII
Solar loan-backed notes 2.54  % 125,045  10,384  2.50  % 126,856  16,058 
Debt discount, net (33) —  (38) — 
Deferred financing costs, net (1,898) —  (2,193) — 
HELVIII
Solar loan-backed notes 3.63  % 243,105  22,967  3.54  % 250,014  31,099 
Debt discount, net (4,579) —  (5,267) — 
Deferred financing costs, net (3,570) —  (4,080) — 
SOLIV
Solar asset-backed notes 5.91  % 329,677  8,355  5.76  % 338,251  8,080 
Debt discount, net (9,885) —  (11,190) — 
Deferred financing costs, net (7,077) —  (7,996) — 
HELIX
Solar loan-backed notes 5.65  % 191,394  23,945  5.46  % 193,837  29,632 
Debt discount, net (3,171) —  (3,589) — 
Deferred financing costs, net (2,931) —  (3,303) — 
HELX
Solar loan-backed notes 7.29  % 200,868  22,671  6.23  % 162,301  18,335 
Debt discount, net (18,035) —  (12,459) — 
Deferred financing costs, net (3,268) —  (3,319) — 
IS
Revolving credit facility 8.67  % 30,100  —  —  — 
SOLV
25

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Solar asset-backed notes 6.90  % 314,261  7,554  —  — 
Debt discount, net (16,344) —  —  — 
Deferred financing costs, net (7,054) —  —  — 
HELXI
Solar loan-backed notes 6.25  % 251,057  29,644  —  — 
Debt discount, net (12,451) —  —  — 
Deferred financing costs, net (5,494) —  —  — 
HELXII
Solar loan-backed notes 6.67  % 215,462  23,667  —  — 
Debt discount, net (13,724) —  —  — 
Deferred financing costs, net (4,495) —  —  — 
AP9
Revolving credit facility
11.79  % 13,096  —  —  — 
Debt discount, net (650) —  —  — 
Total $ 6,710,734  $ 470,133  $ 5,194,755  $ 214,431 

Availability.    As of September 30, 2023, we had $312.2 million of available borrowing capacity under our various financing arrangements, consisting of $235.5 million under the EZOP revolving credit facility, $3.3 million under the TEPH revolving credit facility, $1.6 million under the AP8 revolving credit facility, $19.9 million under the IS revolving credit facility and $51.9 million under the AP9 revolving credit facility. There was no available borrowing capacity under any of our other financing arrangements. As of September 30, 2023, we were in compliance with all debt covenants under our financing arrangements.

Weighted Average Effective Interest Rates.    The weighted average effective interest rates disclosed in the table above are the weighted average stated interest rates for each debt instrument plus the effect on interest expense for other items classified as interest expense, such as the amortization of deferred financing costs, amortization of debt discounts and commitment fees on unused balances for the period of time the debt was outstanding during the indicated periods.

EZOP Debt.    In February 2023, we amended the EZOP revolving credit facility to, among other things, (a) increase the aggregate commitment amount from $450.0 million to $675.0 million, (b) increase the uncommitted maximum facility amount from $575.0 million to $800.0 million, (c) amend certain provisions related to the allocation of certain payments made to the lenders, (d) amend certain provisions related to excess concentration limits and eligibility criteria to permit us and our affiliates to provide warranties of, and replacements for, load controllers and generators in connection with the related solar loan contracts and (e) add provisions to allow EZOP to request an increase in the aggregate commitment amount (subject to certain conditions) by adding additional lenders to the EZOP revolving credit facility. In February 2023, Credit Suisse AG ("Credit Suisse") sold a significant part of its Securitized Products Group (the "Credit Suisse Securitized Products Sale") to Apollo Global Management ("Apollo"). Subsequently, Apollo publicly announced the majority of the assets and professionals associated with the sale are now part of or managed by ATLAS SP Partners, a new stand-alone credit firm focused on asset-backed financing and capital markets solutions ("Atlas"). In March 2023, in connection with the Credit Suisse Securitized Products Sale, certain of our subsidiaries consented to the assignment of the loans and commitments of the Credit Suisse lenders to the Atlas lenders (such assignment, the "EZOP Assignment") under the EZOP revolving credit facility. In connection with the EZOP Assignment, Credit Suisse AG, New York Branch ("CSNYB") resigned as the agent under the EZOP revolving credit facility, Atlas Securitized Products Holdings, L.P. (the "Successor Agent") was appointed as the successor agent thereunder and, in connection with such appointment, the Successor Agent assumed the agent roles under the EZOP revolving credit facility. In connection with the appointment of Atlas as Successor Agent, the borrowers and the lenders party to the applicable agency resignation and appointment agreements consented to, among other things, Atlas' ability to assign the agent role under the EZOP revolving credit facility to one of its affiliates subject to certain conditions set forth therein. In March 2023, after the EZOP Assignment, we amended the EZOP revolving credit facility to, among other things, (a) increase the aggregate commitment amount from $675.0 million to $775.0 million, (b) increase the uncommitted maximum facility amount from $800.0 million to $900.0 million, (c) amend and supplement certain defaulting lender provisions and (d) update the references from CSNYB, the predecessor agent, to Atlas, the successor agent, and remove or modify certain provisions related to the borrowing, funding and allocation of payments among the previous lender syndicate (that previously included lenders affiliated with Credit Suisse that, prior to the date of the amendment to the EZOP revolving credit facility and pursuant to the EZOP Assignment, had assigned their loans and commitments to lenders affiliated with Atlas). In August 2023, we amended the EZOP revolving credit facility to, among other things, (a) increase the aggregate commitment amount from $775.0 million to $875.0 million, (b) increase the uncommitted maximum facility amount from $900.0 million to $1.0 billion, (c) extend the maturity date from November 2024 to November 2025 and (d) amend the Advance Rate (as defined therein).
26

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

TEPH Debt.    In March 2023, in connection with the Credit Suisse Securitized Products Sale, certain of our subsidiaries consented to the assignment of the loans and commitments of the Credit Suisse lenders to the Atlas lenders (such assignment, the "TEPH Assignment") under the TEPH revolving credit facility. In connection with the TEPH Assignment, CSNYB resigned as the agent under the TEPH revolving credit facility, Atlas was appointed as the successor agent thereunder and, in connection with such appointment, the Successor Agent assumed the agent roles under the TEPH revolving credit facility. In connection with the appointment of Atlas as Successor Agent, the borrowers and the lenders party to the applicable agency resignation and appointment agreements consented to, among other things, Atlas' ability to assign the agent role under the TEPH revolving credit facility to one of its affiliates subject to certain conditions set forth therein. In March 2023, after the TEPH Assignment, we amended the TEPH revolving credit facility to, among other things, (a) increase the aggregate commitment amount from $600.0 million to $700.0 million, (b) increase the uncommitted maximum facility amount from $689.7 million to $789.7 million, (c) add provisions to allow TEPH to request an increase in the aggregate commitment amount (subject to certain conditions) by adding additional lenders to the TEPH revolving credit facility, (d) amend and supplement certain defaulting lender provisions, (e) modify the hedging provisions to give all hedge counterparties the benefit of certain payment priorities and certain other terms previously limited to qualifying hedge counterparties (as defined by the TEPH revolving credit facility), to extend the time period for the event of default resulting from hedge counterparties ceasing to be qualifying hedge counterparties and to make other hedge-related amendments, (f) update the references from CSNYB, the predecessor administrative agent, to Atlas, the successor administrative agent, and remove or modify certain provisions related to the borrowing, funding and allocation of payments among the previous lender syndicate (that previously included lenders affiliated with Credit Suisse that, prior to the date of the amendment to the TEPH revolving credit facility and pursuant to the TEPH Assignment, had assigned their loans and commitments to lenders affiliated with Atlas), (g) add European Union bail-in provisions and (h) add certain syndication-related provisions. In August 2023, we amended the TEPH revolving credit facility to, among other things, (a) increase the aggregate commitment amount from $700.0 million to $769.3 million, (b) increase the uncommitted maximum facility amount from $789.7 million to $859.0 million and (c) extend the maturity date from November 2024 to November 2025.

AP8 Debt.    In March 2023, we amended the AP8 revolving credit facility to, among other things, increase the aggregate commitment amount from $75.0 million to $150.0 million. In June 2023, we amended the AP8 revolving credit facility to, among other things, increase the aggregate commitment amount from $150.0 million to $185.0 million. In August 2023, we amended the AP8 revolving credit facility to, among other things, increase the aggregate commitment amount from $185.0 million to $215.0 million. We believe we will be able to satisfy this obligation due in September 2024 through refinancing of the facility or alternatively through the use of our existing cash resources and liquidity.

IS Debt.    In March 2023, IS entered into a secured revolving credit facility with Texas Capital Bank, as agent, and the lenders party thereto, for an aggregate commitment amount of $50.0 million with a maturity date of the earlier of (a) March 2026 and (b) six months from the latest maturity date of any material parent credit facility (defined as a parent credit facility with a commitment amount of $250.0 million or more that, if terminated could individually be expected to result in a liquidity event (as defined by the IS revolving credit facility)). The proceeds of the loans under the IS revolving credit facility are available to purchase or otherwise acquire certain accounts receivable and inventory, fund certain reserve accounts that are required to be maintained by IS in accordance with the revolving credit agreement and pay fees and expenses incurred in connection with the IS revolving credit facility. Interest on the borrowings under the IS revolving credit facility is due monthly. Borrowings under the IS revolving credit facility bear interest at an annual rate based on Term SOFR (as defined by the IS revolving credit facility).

SOLV Debt. In April 2023, we pooled and transferred eligible solar energy systems and the related asset receivables into wholly-owned subsidiaries of SOLV, a special purpose entity, that issued $300.0 million in aggregate principal amount of Series 2023-1 Class A solar asset-backed notes and $23.5 million in aggregate principal amount of Series 2023-1 Class B solar asset-backed notes (collectively, the "SOLV Notes") with a maturity date of April 2058. The SOLV Notes were issued at a discount of 5.01% and 11.63% for the Class A and Class B notes, respectively, and bear interest at an annual rate equal to 5.40% and 7.35% for the Class A and Class B notes, respectively. The cash flows generated by the solar energy systems of SOLV's subsidiaries are used to service the quarterly principal and interest payments on the SOLV Notes and satisfy SOLV's expenses, and any remaining cash can be distributed to Sunnova Sol V Depositor, LLC, SOLV's sole member. In connection with the SOLV Notes, certain of our affiliates receive a fee for managing and servicing the solar energy systems pursuant to a transaction management agreement and management and servicing agreements. In addition, Sunnova Energy Corporation has guaranteed (a) the obligations of certain of our subsidiaries to manage and service the solar energy systems pursuant to a transaction management agreement and management and servicing agreements, (b) the managing members' obligations, in such capacity, under the related financing fund's limited liability company agreement and (c) certain of our subsidiaries' obligations to repurchase or substitute certain ineligible solar energy systems eventually sold to SOLV pursuant to the sale and contribution agreement. SOLV is also required to maintain certain reserve accounts for the benefit of the holders of the SOLV Notes, each of which must remain funded at all times to the levels specified in the SOLV Notes.
27

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
The indenture requires SOLV to track the debt service coverage ratio (such ratio, the "DSCR") of (a) the amount of certain payments received from customers, certain performance based incentives, certain energy credits and any applicable insurance proceeds as of a specific date to (b) interest and scheduled principal due on the SOLV Notes as of such date, with the potential to enter into an early amortization period if the DSCR drops below a certain threshold. The holders of the SOLV Notes have no recourse to our other assets except as expressly set forth in the SOLV Notes.

HELXI Debt.    In May 2023, we pooled and transferred eligible solar loans and the related receivables into HELXI, a special purpose entity, that issued $174.9 million in aggregate principal amount of Series 2023-A Class A solar loan-backed notes, $80.1 million in aggregate principal amount of Series 2023-A Class B solar loan-backed notes and $31.7 million in aggregate principal amount of Series 2023-A Class C solar loan-backed notes (collectively, the "HELXI Notes") with a maturity date of May 2050. The HELXI Notes were issued at a discount of 2.57% for Class A, 5.31% for Class B and 13.56% for Class C and bear interest at an annual rate of 5.30%, 5.60% and 6.00% for the Class A, Class B and Class C notes, respectively. The cash flows generated by these solar loans are used to service the monthly principal and interest payments on the HELXI Notes and satisfy HELXI's expenses, and any remaining cash can be distributed to Sunnova Helios XI Depositor, LLC, HELXI's sole member. In connection with the HELXI Notes, certain of our affiliates receive a fee for managing and servicing the solar energy systems pursuant to management and service agreements. In addition, Sunnova Energy Corporation has guaranteed, among other things, (a) the obligations of certain of our subsidiaries to manage and service the solar energy systems pursuant to management and servicing agreements and (b) certain of our subsidiaries' obligations to repurchase or substitute certain ineligible solar loans eventually sold to HELXI pursuant to the related sale and contribution agreement. HELXI is also required to maintain certain reserve accounts for the benefit of the holders of the HELXI Notes, each of which must be funded at all times to the levels specified in the HELXI Notes. The holders of the HELXI Notes have no recourse to our other assets except as expressly set forth in the HELXI Notes.

HELXII Debt.    In August 2023, we pooled and transferred eligible solar loans and the related receivables into HELXII, a special purpose entity, that issued $148.5 million in aggregate principal amount of Series 2023-B Class A solar loan-backed notes, $71.1 million in aggregate principal amount of Series 2023-B Class B solar loan-backed notes and $23.1 million in aggregate principal amount of Series 2023-B Class C solar loan-backed notes (collectively, the "HELXII Notes") with a maturity date of August 2050. The HELXII Notes were issued at a discount of 4.23% for Class A, 6.67% for Class B and 12.64% for Class C and bear interest at an annual rate of 5.30%, 5.60% and 6.00% for the Class A, Class B and Class C notes, respectively. The cash flows generated by these solar loans are used to service the monthly principal and interest payments on the HELXII Notes and satisfy HELXII's expenses, and any remaining cash can be distributed to Sunnova Helios XII Depositor, LLC, HELXII's sole member. In connection with the HELXII Notes, certain of our affiliates receive a fee for managing and servicing the solar energy systems pursuant to management and service agreements. In addition, Sunnova Energy Corporation has guaranteed, among other things, (a) the obligations of certain of our subsidiaries to manage and service the solar energy systems pursuant to management and servicing agreements and (b) certain of our subsidiaries' obligations to repurchase or substitute certain ineligible solar loans eventually sold to HELXII pursuant to the related sale and contribution agreement. HELXII is also required to maintain certain reserve accounts for the benefit of the holders of the HELXII Notes, each of which must be funded at all times to the levels specified in the HELXII Notes. The holders of the HELXII Notes have no recourse to our other assets except as expressly set forth in the HELXII Notes.

AP9 Debt.    In September 2023, AP9 entered into a secured revolving credit facility with Citibank, N.A., as administrative agent, and the lenders party thereto, for an aggregate commitment amount of $65.0 million with a maturity date of October 2027. The proceeds of the loans under the AP9 revolving credit facility are available to purchase or otherwise acquire home improvement loans, fund certain reserve accounts that are required to be maintained by AP9 in accordance with the AP9 revolving credit facility and pay fees and expenses incurred in connection with the AP9 revolving credit facility. Interest on the borrowings under the AP9 revolving credit facility is due monthly. Borrowings under the AP9 revolving credit facility bear interest at an annual rate based on either Term SOFR or a CP Yield Rate (as defined by the AP9 revolving credit facility).

Sunnova Energy Corporation Debt.    In June 2023, Sunnova Energy Corporation entered into an arrangement to finance $6.8 million of insurance premiums at an annual interest rate of 7.24% over ten months. In August 2023, Sunnova Energy Corporation entered into an arrangement to finance $1.5 million of insurance premiums at an annual interest rate of 7.49% over ten months. In September 2023, Sunnova Energy Corporation entered into an arrangement to finance $1.9 million of insurance premiums at an annual interest rate of 7.49% over nine months. In September 2023, Sunnova Energy Corporation issued and sold an aggregate principal amount of $400.0 million of 11.75% senior notes ("11.75% senior notes") at a discount to the initial purchasers of approximately 2.74%, for an aggregate purchase price of approximately $389.0 million. The 11.75% senior notes mature in October 2028 and are initially guaranteed on a senior unsecured basis by SEI and a wholly-owned subsidiary of Sunnova Energy Corporation.
28

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

Fair Values of Long-Term Debt.    The fair values of our long-term debt and the corresponding carrying amounts are as follows:

As of September 30, 2023 As of December 31, 2022
Carrying
Value
Estimated
Fair Value
Carrying
Value
Estimated
Fair Value
(in thousands)
SEI 0.25% convertible senior notes
$ 575,000  $ 510,607  $ 575,000  $ 511,733 
SEI 2.625% convertible senior notes
600,000  561,077  600,000  574,693 
Sunnova Energy Corporation notes payable
5,878  5,878  —  — 
Sunnova Energy Corporation 5.875% senior notes
400,000  358,407  400,000  359,283 
Sunnova Energy Corporation 11.75% senior notes
400,000  399,397  —  — 
EZOP revolving credit facility 639,500  639,500  500,000  500,000 
HELII solar asset-backed notes 203,998  190,769  212,648  206,045 
RAYSI solar asset-backed notes 112,946  98,595  115,835  104,594 
HELIII solar loan-backed notes 97,957  85,697  104,685  93,706 
TEPH revolving credit facility 766,000  766,000  425,700  425,700 
SOLI solar asset-backed notes 353,161  299,219  365,025  313,174 
HELIV solar loan-backed notes 110,176  95,114  117,149  100,913 
AP8 revolving credit facility 213,400  213,400  75,000  75,000 
SOLII solar asset-backed notes 231,708  184,006  238,685  189,728 
HELV solar loan-backed notes 150,217  128,945  158,307  135,408 
SOLIII solar asset-backed notes 278,710  226,217  292,411  237,425 
HELVI solar loan-backed notes 176,441  149,601  184,439  157,289 
HELVII solar loan-backed notes 135,429  116,533  142,914  124,476 
HELVIII solar loan-backed notes 266,072  233,492  281,113  252,483 
SOLIV solar asset-backed notes 338,032  315,855  346,331  334,335 
HELIX solar loan-backed notes 215,339  198,336  223,469  210,070 
HELX solar loan-backed notes 223,539  217,342  180,636  183,165 
IS revolving credit facility 30,100  30,100  —  — 
SOLV solar asset-backed notes 321,815  307,706  —  — 
HELXI solar loan-backed notes 280,701  268,627  —  — 
HELXII solar loan-backed notes 239,129  235,836  —  — 
AP9 revolving credit facility
13,096  13,096  —  — 
Total (1) $ 7,378,344  $ 6,849,352  $ 5,539,347  $ 5,089,220 

(1) Amounts exclude the net deferred financing costs (classified as debt) and net debt discounts of $197.5 million and $130.2 million as of September 30, 2023 and December 31, 2022, respectively.

For the notes payable, EZOP, TEPH, AP8, IS and AP9 debt, the estimated fair values approximate the carrying amounts primarily due to the variable nature of the interest rates of the underlying instruments. For the convertible senior notes, senior notes and the HELII, RAYSI, HELIII, SOLI, HELIV, SOLII, HELV, SOLIII, HELVI, HELVII, HELVIII, SOLIV, HELIX, HELX, SOLV, HELXI and HELXII debt, we determined the estimated fair values based on an analysis of debt with similar book values, maturities and required market yields based on current interest rates.

(8) Derivative Instruments

Interest Rate Swaps and Caps on EZOP Debt. During the nine months ended September 30, 2023 and 2022, EZOP entered into interest rate swaps and caps for an aggregate notional amount of $924.4 million and $506.6 million, respectively, to economically hedge its exposure to the variable interest rates on a portion of the outstanding EZOP debt. No collateral was posted for the interest rate swaps and caps as they are secured under the EZOP revolving credit facility.
29

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
In August 2023, the notional amount of the interest rate swaps and caps began decreasing to match EZOP's estimated monthly principal payments on the debt. During the nine months ended September 30, 2023 and 2022, EZOP unwound interest rate swaps and caps with an aggregate notional amount of $659.6 million and $360.2 million, respectively, and recorded a realized gain of $26.8 million and $19.6 million, respectively.

Interest Rate Swaps and Caps on TEPH Debt.    During the nine months ended September 30, 2023 and 2022, TEPH entered into interest rate swaps and caps for an aggregate notional amount of $601.6 million and $333.7 million, respectively, to economically hedge its exposure to the variable interest rates on a portion of the outstanding TEPH debt. No collateral was posted for the interest rate swaps and caps as they are secured under the TEPH revolving credit facility. In October 2023, the notional amount of the interest rate swaps and caps will begin decreasing to match TEPH's estimated quarterly principal payments on the debt. During the nine months ended September 30, 2023 and 2022, TEPH unwound interest rate swaps and caps with an aggregate notional amount of $241.1 million and $515.4 million, respectively, and recorded a realized gain of $6.2 million and $27.8 million, respectively.

Interest Rate Swaps and Caps on AP8 Debt.    During the nine months ended September 30, 2023 and 2022, AP8 entered into interest rate swaps and caps for an aggregate notional amount of $140.0 million and $0, respectively, to economically hedge its exposure to the variable interest rates on a portion of the outstanding AP8 debt. No collateral was posted for the interest rate swaps and caps as they are secured under the AP8 revolving credit facility. The notional amount of the interest rate swaps and caps is locked for the life of the contract. During the nine months ended September 30, 2023 and 2022, AP8 unwound interest rate swaps and caps with an aggregate notional amount of $0 and recorded a realized gain of $470,000 and $0, respectively.

Interest Rate Swaps and Caps on AP9 Debt.    During the nine months ended September 30, 2023 and 2022, AP9 entered into interest rate swaps and caps for an aggregate notional amount of $25.0 million and $0, respectively, to economically hedge its exposure to the variable interest rates on a portion of the outstanding AP9 debt. No collateral was posted for the interest rate swaps and caps as they are secured under the AP9 revolving credit facility. In September 2025, the notional amount of the interest rate swaps and caps will begin decreasing to match AP9's estimated monthly principal payments on the debt. During the nine months ended September 30, 2023 and 2022, AP9 unwound interest rate swaps and caps with an aggregate notional amount of $0 and recorded a realized gain of $0.

The following table presents a summary of the outstanding derivative instruments:

As of September 30, 2023 As of December 31, 2022
Effective
Date
Termination
Date
Fixed
Interest
Rate
Aggregate
Notional
Amount
Effective
Date
Termination
Date
Fixed
Interest
Rate
Aggregate
Notional
Amount
(in thousands, except interest rates)
EZOP
July 2023 -
September 2023
September 2029 -
November 2035
2.000% $ 575,550  June 2022 -
July 2022
July 2034
0.890%
$ 489,477 
TEPH
July 2022 -
September 2023
October 2031 -
October 2041
2.620% - 4.035%
743,740  July 2022 -
December 2022
January 2035 -
April 2041
1.520% -
2.630%
383,749 
AP8
November 2022
 - August 2023
September 2025
4.250% 215,000  November 2022 September 2025 4.250% 75,000 
AP9
September 2023
September 2027
4.250% 25,000  — 
Total $ 1,559,290  $ 948,226 

The following table presents the fair value of the interest rate swaps and caps as recorded in the unaudited condensed consolidated balance sheets:

As of 
 September 30, 2023
As of 
 December 31, 2022
(in thousands)
Other assets $ 129,643  $ 112,712 

30

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
We did not designate the interest rate swaps and caps as hedging instruments for accounting purposes. As a result, we recognize changes in fair value immediately in interest expense, net. The following table presents the impact of the interest rate swaps and caps as recorded in the unaudited condensed consolidated statements of operations:

Three Months Ended 
 September 30,
Nine Months Ended 
 September 30,
2023 2022 2023 2022
(in thousands)
Realized gain $ (17,753) $ (1,928) $ (33,522) $ (47,434)
Unrealized gain (18,219) (26,563) (10,208) (27,580)
Total $ (35,972) $ (28,491) $ (43,730) $ (75,014)

(9) Income Taxes

Our effective income tax rate is 14% and 0% for the three months ended September 30, 2023 and 2022, respectively, and is 1% and 0% for the nine months ended September 30, 2023 and 2022, respectively. Total income tax differs from the amounts computed by applying the statutory income tax rate to loss before income tax primarily as a result of our full valuation allowance, foreign tax expense and tax benefit from ITC sales. We assessed whether we had any significant uncertain tax positions taken in a filed tax return, planned to be taken in a future tax return or claim, or otherwise subject to interpretation and determined there were none not more likely than not to be sustained upon examination, including resolution of any related appeals or litigation processes, based on the technical merits of the position, or prospectively approved when such approval may be sought in advance. Accordingly, we recorded no reserve for uncertain tax positions. Should a provision for any interest or penalties relative to unrecognized tax benefits be necessary, it is our policy to accrue for such in our income tax accounts. There were no such accruals as of September 30, 2023 and December 31, 2022 and we do not expect a significant change in gross unrecognized tax benefits in the next twelve months. Our tax years after 2011 remain subject to examination by the Internal Revenue Service and by the taxing authorities in the states and territories in which we operate.

(10) Redeemable Noncontrolling Interests and Noncontrolling Interests

Redeemable Noncontrolling Interests

In February 2023, the Class A member of Sunnova TEP 7-B, LLC increased its capital commitment from approximately $30.0 million to approximately $125.0 million. In March 2023, the Class A member of Sunnova TEP 7-C, LLC increased its capital commitment from approximately $41.0 million to approximately $51.3 million. In May 2023, we admitted a tax equity investor as the Class A member of Sunnova TEP 7-E, LLC ("TEP7E"), a subsidiary of Sunnova TEP 7-E Manager, LLC, which is the Class B member of TEP7E. The Class A member of TEP7E made a total capital commitment of approximately $51.0 million. In June 2023, we exercised our purchase option to purchase 100% of the Class A member's interest in Sunnova TEP I, LLC ("TEPI") for $5.9 million. This purchase resulted in an increase in our equity in TEPI of $67.0 million. In August 2023, we admitted a tax equity investor as the Class A member of Sunnova TEP 7-G, LLC ("TEP7G"), a subsidiary of Sunnova TEP 7-G Manager, LLC, which is the Class B member of TEP7G. The Class A member of TEP7G made a total capital commitment of approximately $104.0 million. In September 2023, we admitted a tax equity investor as the Class A member of Sunnova TEP 7-F, LLC ("TEP7F"), a subsidiary of Sunnova TEP 7-F Manager, LLC, which is the Class B member of TEP7F. The Class A member of TEP7F made a total capital commitment of approximately $134.9 million. The carrying values of the redeemable noncontrolling interests were equal to or greater than the redemption values as of September 30, 2023 and December 31, 2022.

Noncontrolling Interests

In April 2023, the Class A member of Sunnova TEP V-C, LLC increased its capital commitment from approximately $150.0 million to approximately $150.2 million. In April 2023, the Class A member of Sunnova TEP 6-A, LLC increased its capital commitment from approximately $50.0 million to approximately $57.7 million. In June 2023, the Class A member of Sunnova TEP 7-D, LLC increased its capital commitment from approximately $150.0 million to approximately $250.0 million.

(11) Stockholders' Equity

During the nine months ended September 30, 2023 and 2022, we issued 693,443 and 694,446 shares of our common stock to Lenx, LLC pursuant to the terms of the earnout agreement, as amended, entered into in connection with the acquisition of SunStreet Energy Group, LLC.

31

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
In August 2023, we sold 5,865,000 shares of common stock at a public offering price of $14.75 per share. We received aggregate net proceeds of approximately $82.2 million, after deducting underwriting discounts and commissions of approximately $3.9 million and offering expenses of approximately $400,000. We used the net proceeds from the offering for general corporate purposes.

(12) Equity-Based Compensation

In February 2023, the aggregate number of shares of common stock that may be issued pursuant to awards under the 2019 Long-Term Incentive Plan (the "LTIP") was increased by 1,525,652, an amount that, together with the shares remaining available for grant under the LTIP, is equal to 5,746,588 shares, or approximately 5% of the number of shares of common stock outstanding as of December 31, 2022.

Stock Options

The following table summarizes stock option activity:

Number
of Stock
Options
Weighted
Average
Exercise
Price
Weighted
Average
Remaining
Contractual
Term (Years)
Weighted
Average
Grant Date
Fair Value
Aggregate
Intrinsic
Value
(in thousands)
Outstanding, December 31, 2022 3,259,459  $ 18.48  4.75 $ 10,341 
Granted 1,017,493  $ 15.01  9.49 $ 8.82 
Exercised (36,360) $ 13.11  $ 182 
Forfeited (140,680) $ 21.96  $ 11.70 
Outstanding, September 30, 2023 4,099,912  $ 17.54  5.19 $ 102 
Exercisable, September 30, 2023 2,656,858  $ 16.44  3.07 $ 102 
Vested and expected to vest, September 30, 2023 4,099,912  $ 17.54  5.19 $ 102 
Non-vested, September 30, 2023 1,443,054  $ 10.78 

The number of stock options that vested during the three months ended September 30, 2023 and 2022 was 0. The number of stock options that vested during the nine months ended September 30, 2023 and 2022 was 16,816. The grant date fair value of stock options that vested during the three months ended September 30, 2023 and 2022 was $0. The grant date fair value of stock options that vested during the nine months ended September 30, 2023 and 2022 was $309,000. As of September 30, 2023, there was $10.5 million of total unrecognized compensation expense related to stock options, which is expected to be recognized over the remaining weighted average period of 2.04 years.

Restricted Stock Units

The following table summarizes restricted stock unit activity:

Number of
Restricted
Stock Units
Weighted
Average
Grant Date
Fair Value
Outstanding, December 31, 2022 1,609,615  $ 20.62 
Granted 2,085,532  $ 14.67 
Vested (961,682) $ 17.88 
Forfeited (311,648) $ 17.94 
Outstanding, September 30, 2023 2,421,817  $ 16.93 

The number of restricted stock units that vested during the three months ended September 30, 2023 and 2022 was 145,115 and 245,740, respectively. The number of restricted stock units that vested during the nine months ended September 30, 2023 and 2022 was 961,682 and 948,404, respectively. The grant date fair value of restricted stock units that vested during the three months ended September 30, 2023 and 2022 was $2.2 million and $3.4 million, respectively. The grant date fair value of restricted stock units that vested during the nine months ended September 30, 2023 and 2022 was $17.2 million and $18.5 million, respectively.
32

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
As of September 30, 2023, there was $31.3 million of total unrecognized compensation expense related to restricted stock units, which is expected to be recognized over the remaining weighted average period of 1.54 years.

Employee Stock Purchase Plan ("ESPP")

As of September 30, 2023 and December 31, 2022, the number of shares of common stock issued under the ESPP was 20,966 and 7,106, respectively.

(13) Basic and Diluted Net Loss Per Share

The following table sets forth the computation of our basic and diluted net loss per share:

Three Months Ended 
 September 30,
Nine Months Ended 
 September 30,
2023 2022 2023 2022
(in thousands, except share and per share amounts)
Net loss attributable to stockholders—basic and diluted $ (63,147) $ (64,543) $ (230,321) $ (140,738)
Net loss per share attributable to stockholders—basic and diluted $ (0.53) $ (0.56) $ (1.97) $ (1.23)
Weighted average common shares outstanding—basic and diluted 119,554,008  114,816,879  116,971,318  114,293,251 

The following table presents the weighted average shares of common stock equivalents that were excluded from the computation of diluted net loss per share for the periods presented because including them would have been anti-dilutive:

Three Months Ended 
 September 30,
Nine Months Ended 
 September 30,
2023 2022 2023 2022
Equity-based compensation awards 6,400,263  5,033,658  5,971,205  4,906,182 
Convertible senior notes 34,150,407  25,294,010  34,150,407  19,548,462 

(14) Commitments and Contingencies

Legal.    We are a party to a number of lawsuits, claims and governmental proceedings that are ordinary, routine matters incidental to our business. In addition, in the ordinary course of business, we periodically have disputes with dealers and customers. We do not expect the outcomes of these matters to have, either individually or in the aggregate, a material adverse effect on our financial position or results of operations.

Performance Guarantee Obligations.    As of September 30, 2023, we recorded $5.6 million related to our guarantee of certain specified minimum solar energy production output under our leases and loans, of which $2.7 million is recorded in other current liabilities and $2.9 million is recorded in other long-term liabilities in the unaudited condensed consolidated balance sheet. As of December 31, 2022, we recorded $4.8 million related to these guarantees, of which $2.5 million is recorded in other current liabilities and $2.3 million is recorded in other long-term liabilities in the unaudited condensed consolidated balance sheet. The changes in our aggregate performance guarantee obligations are as follows:

Nine Months Ended 
 September 30,
2023 2022
(in thousands)
Balance at beginning of period $ 4,845  $ 5,293 
Accruals 3,620  1,811 
Settlements (2,855) (3,170)
Balance at end of period $ 5,610  $ 3,934 

33

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Operating and Finance Leases.    We lease real estate and certain office equipment under operating leases and vehicles and certain other office equipment under finance leases. The following table presents the detail of lease expense as recorded in general and administrative expense in the unaudited condensed consolidated statements of operations:

Three Months Ended 
 September 30,
Nine Months Ended 
 September 30,
2023 2022 2023 2022
(in thousands)
Operating lease expense $ 754  $ 676  $ 2,138  $ 2,061 
Finance lease expense:
Amortization expense 308  201  787  562 
Interest on lease liabilities 31  15  69  42 
Short-term lease expense 62  37  128  97 
Variable lease expense 367  190  835  712 
Total $ 1,522  $ 1,119  $ 3,957  $ 3,474 

The following table presents the detail of right-of-use assets and lease liabilities as recorded in other assets and other current liabilities/other long-term liabilities, respectively, in the unaudited condensed consolidated balance sheets:

As of 
 September 30, 2023
As of 
 December 31, 2022
(in thousands)
Right-of-use assets:
Operating leases $ 13,805  $ 14,706 
Finance leases 3,523  2,476 
Total right-of-use assets $ 17,328  $ 17,182 
Current lease liabilities:
Operating leases $ 2,845  $ 2,451 
Finance leases 1,156  796 
Long-term leases liabilities:
Operating leases 14,406  15,751 
Finance leases 1,393  957 
Total lease liabilities $ 19,800  $ 19,955 

Other information related to leases was as follows:

Nine Months Ended 
 September 30,
2023 2022
(in thousands)
Cash paid for amounts included in the measurement of lease liabilities:
Operating cash flows from operating leases (1) $ 2,187  $ 1,242 
Operating cash flows from finance leases $ 69  $ 42 
Financing cash flows from finance leases $ 725  $ 601 
Right-of-use assets obtained in exchange for lease obligations:
Operating leases $ 703  $ 226 
Finance leases $ 1,835  $ 758 

(1)Includes reimbursements in 2023 and 2022 of approximately $225,000 and $45,000, respectively, for leasehold improvements.
34

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

As of 
 September 30, 2023
As of 
 December 31, 2022
Weighted average remaining lease term (years):
Operating leases 5.74 6.60
Finance leases 3.06 2.86
Weighted average discount rate:
Operating leases 4.07  % 3.95  %
Finance leases 5.81  % 4.37  %

Future minimum lease payments under our non-cancelable leases as of September 30, 2023 were as follows:

Operating
Leases
Finance
Leases
(in thousands)
Remaining 2023 $ 894  $ 351 
2024 3,496  1,180 
2025 3,392  716 
2026 3,236  370 
2027 3,304  147 
2028 and thereafter 5,485  — 
Total 19,807  2,764 
Amount representing interest (2,160) (215)
Amount representing leasehold incentives (396) — 
Present value of future payments 17,251  2,549 
Current portion of lease liability (2,845) (1,156)
Long-term portion of lease liability $ 14,406  $ 1,393 

Guarantees or Indemnifications.    We enter into contracts that include indemnifications and guarantee provisions. In general, we enter into contracts with indemnities for matters such as breaches of representations and warranties and covenants contained in the contract and/or against certain specified liabilities. Examples of these contracts include dealer agreements, debt agreements, asset purchases and sales agreements, service agreements and procurement agreements. We are unable to estimate our maximum potential exposure under these agreements until an event triggering payment occurs.

Dealer Commitments.    As of September 30, 2023 and December 31, 2022, the net unamortized balance of payments to dealers for exclusivity and other similar arrangements was $171.4 million and $121.3 million, respectively. Under these agreements, we paid $55.0 million and $33.6 million during the nine months ended September 30, 2023 and 2022, respectively. We could be obligated to make maximum payments, excluding additional amounts payable on a per watt basis if even higher thresholds are met, as follows:

Dealer
Commitments
(in thousands)
Remaining 2023 $ 7,845 
2024 78,529 
2025 60,561 
2026 36,904 
2027 30,000 
2028 and thereafter — 
Total $ 213,839 

35

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Purchase Commitments.    In October 2023, we amended an agreement with a supplier in which we agreed to purchase approximately $325.0 million of energy storage systems through December 2024, with approximately $80.0 million in the fourth quarter of 2023 and approximately $245.0 million in 2024. Under this agreement, we purchased $12.8 million and $55.4 million during the three months ended September 30, 2023 and 2022, respectively, and we purchased $119.3 million and $141.1 million during the nine months ended September 30, 2023 and 2022, respectively.

Information Technology Commitments.    We have certain long-term contractual commitments related to information technology software services and licenses. Future commitments as of September 30, 2023 were as follows:

Information
Technology
Commitments
(in thousands)
Remaining 2023 $ 22,649 
2024 10,181 
2025 4,282 
2026 2,561 
2027 3,300 
2028 and thereafter — 
Total $ 42,973 

(15) Subsequent Events

EZOP Debt.     In October 2023, we amended the EZOP revolving credit facility to, among other things, reallocate commitments among the lenders.

HESI Debt.     In October 2023, we entered into a note purchase agreement, which at closing will indirectly benefit from a partial guarantee provided by the U.S. Department of Energy ("DOE") Loan Programs Office. The notes will not be directly guaranteed by the DOE. The offering consists of $219.6 million in aggregate principal amount of Series 2023-GRID1 Class A solar loan-backed notes and $24.4 million in aggregate principal amount of Series 2023-GRID1 Class B solar loan-backed notes (collectively, the "HESI Notes") with a maturity date of December 2050. The HESI Notes were issued at a discount of 2.46% for Class A and 9.40% for Class B and bear interest at an annual rate of 5.75% and 8.25% for the Class A and Class B notes, respectively. The offering is expected to close in November 2023, subject to customary closing conditions.
36

Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations.

The following discussion and analysis contain forward-looking statements that are subject to risks, uncertainties and assumptions. Our actual results and timing of selected events may differ materially from those anticipated in these forward-looking statements as a result of many factors, including but not limited to those discussed under "Special Note Regarding Forward-Looking Statements" above and "Special Note Regarding Forward-Looking Statements", "Risk Factors" and elsewhere in our Annual Report on Form 10-K filed with the Securities and Exchange Commission ("SEC") on February 23, 2023, our Quarterly Reports on Form 10-Q filed with the SEC on April 27, 2023 and July 27, 2023 and elsewhere in this Quarterly Report on Form 10-Q. Moreover, we operate in a very competitive and rapidly changing environment and new risks emerge from time to time. It is not possible for our management to predict all risks, nor can we assess the impact of all factors on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements we may make. In light of these risks, uncertainties and assumptions, the forward-looking events and circumstances discussed in this Quarterly Report on Form 10-Q may not occur and actual results could differ materially and adversely from those anticipated or implied in the forward-looking statements. Unless the context otherwise requires, the terms "Sunnova," "the Company," "we," "us" and "our" refer to SEI and its consolidated subsidiaries.

Company Overview

We are a leading Energy as a Service provider, serving over 386,000 customers in more than 45 United States ("U.S.") states and territories. Our goal is to be the source of clean, affordable and reliable energy with a simple mission: to power energy independence so home and business owners have the freedom to live life uninterrupted. We were founded to deliver customers a better energy service at a better price; and, through our energy service offerings, we are disrupting the traditional energy landscape and the way the 21st century customer generates and consumes electricity.

We have a differentiated dealer model in which we partner with local dealers who originate, design and install our customers' solar energy systems, energy storage systems and related products and services on our behalf. Our focus on our dealer model enables us to leverage our dealers' specialized knowledge, connections and experience in local markets to drive customer origination while providing our dealers with access to high quality products at competitive prices, as well as technical oversight and expertise. We believe this structure provides operational flexibility, reduces exposure to labor shortages and lowers fixed costs relative to our peers, furthering our competitive advantage.

We offer customers products to power their homes and businesses with affordable solar energy and related products and services. We are able to offer savings compared to utility-based retail rates with little to no up-front expense to the customer in conjunction with solar and solar plus energy storage, and, in the case of the latter, are able to also provide energy resiliency. Our solar service agreements typically take the form of a lease, power purchase agreement ("PPA"), loan or cash purchase; however, we also offer service plans for systems we did not originate. We make it possible in some states for a customer to obtain a new roof and/or other ancillary products. We also allow customers originated through our homebuilder channel the option of purchasing the system when the customer closes on the purchase of a new home. The initial term of our solar service agreements is typically between 10 and 25 years. Service is an integral part of our agreements and includes operations and maintenance, monitoring, repairs and replacements, equipment upgrades, on-site power optimization for the customer (for both supply and demand), the ability to efficiently switch power sources among the solar panel, grid and energy storage system, as appropriate, and diagnostics. During the life of the contract, we have the opportunity to integrate related and evolving servicing and monitoring technologies to upgrade the flexibility and reduce the cost of our customers' energy supply.

In the case of leases and PPAs, we also currently receive tax benefits and other incentives from federal, state and local governments, a portion of which we finance through tax equity, non-recourse debt structures and hedging arrangements in order to fund our upfront costs, overhead and growth investments. We have an established track record of attracting capital from diverse sources. From our inception through September 30, 2023, we have raised more than $14.5 billion in total capital commitments from equity, debt and tax equity investors.

In addition to providing ongoing service as a standard component of our solar service agreements, we also offer ongoing energy services to customers who purchased their solar energy system through third parties. Under these arrangements, we agree to provide monitoring, maintenance and repair services to these customers for the life of the service contract they sign with us. In addition, we offer one-time repair services to customers who purchased their solar energy systems through third parties. We also offer complementary products as well as non-solar financing. Specifically, our offerings include a non-solar loan program enabling customers to finance the purchase of products independent of a solar energy system or energy storage system. We believe the quality and scope of our comprehensive energy service offerings, whether to customers that obtained their solar energy system through us or through another party, is a key differentiator between us and our competitors.

37

In April 2021, we acquired SunStreet Energy Group, LLC, Lennar Corporation's ("Lennar") residential solar platform that focuses primarily on solar energy systems and energy storage systems for homebuilders. In connection with that acquisition, we entered into an agreement pursuant to which we would be the exclusive solar and storage provider for Lennar's new home communities with solar across the U.S. for a period of four years. We believe the acquisition provides a new strategic path to further scale our solar business, reduces customer acquisition costs, provides a multi-year supply of sites through the development of new solar communities and allows us to pursue the development of clean and resilient microgrids across the U.S.

We also enter into leases with third-party owners of pools of solar energy systems to receive such third party's interest in those systems. In connection therewith, we assume the related customer PPA and lease obligations, entitling us to future customer cash flows as well as certain credits, rebates and incentives (including SRECs) under those agreements, in exchange for a lease payment, whether upfront or over time, to the third-party owner, which may be made in the form of cash or shares of our common stock. We believe such arrangements enhance our long-term contracted cash flows and are complementary to our overall business model.

We commenced operations in January 2013 and began providing solar energy services under our first solar energy system in April 2013. Since then, our brand, innovation and focused execution have driven significant, rapid growth in our market share and in the number of customers on our platform. We operate one of the largest residential fleets of solar energy systems in the U.S., comprising more than 2,099 megawatts of generation capacity and serving over 386,000 customers.

Recent Developments

Financing Transactions

In August 2023, we admitted a tax equity investor with a total capital commitment of approximately $104.0 million. In September 2023, we admitted a tax equity investor with a total capital commitment of approximately $134.9 million. See "—Liquidity and Capital Resources—Financing Arrangements—Tax Equity Fund Commitments" below.

In August 2023, we amended the revolving credit facility by and among Sunnova EZ-Own Portfolio, LLC ("EZOP"), certain of our other subsidiaries party thereto, Atlas Securitized Products Holdings, L.P., as administrative agent, and the lenders and other financial institutions party thereto, to, among other things, (a) increase the aggregate commitment amount from $775.0 million to $875.0 million, (b) increase the uncommitted maximum facility amount from $900.0 million to $1.0 billion, (c) extend the maturity date from November 2024 to November 2025 and (d) amend the Advance Rate (as defined therein). In October 2023, we amended the EZOP revolving credit facility to, among other things, reallocate commitments among the lenders. In August 2023, we amended the revolving credit facility by and among Sunnova TEP Holdings, LLC ("TEPH"), certain of our other subsidiaries party thereto, Atlas Securitized Products Holdings, L.P., as administrative agent, and the lenders and other financial institutions party thereto, to, among other things, (a) increase the aggregate commitment amount from $700.0 million to $769.3 million, (b) increase the uncommitted maximum facility amount from $789.7 million to $859.0 million and (c) extend the maturity date from November 2024 to November 2025. In August 2023, the revolving credit facility by and among Sunnova Asset Portfolio 8, LLC ("AP8"), certain of our other subsidiaries party thereto, Banco Popular de Puerto Rico, as agent, and the lenders and other financial institutions party thereto was amended to, among other things, increase the aggregate commitment amount from $185.0 million to $215.0 million. In September 2023, one of our subsidiaries, Sunnova Asset Portfolio 9, LLC ("AP9") entered into a secured revolving credit facility with Citibank, N.A., as administrative agent, and the lenders party thereto, for an aggregate commitment amount of $65.0 million with a maturity date of October 2027. Interest on the borrowings under the AP9 revolving credit facility is due monthly. Borrowings under the AP9 revolving credit facility bear interest at an annual rate based on either Term SOFR or a CP Yield Rate (as defined by the AP9 revolving credit facility). See "—Liquidity and Capital Resources—Financing Arrangements—Warehouse and Other Debt Financings" below.

In August 2023, one of our subsidiaries issued $148.5 million in aggregate principal amount of Series 2023-B Class A solar loan-backed notes, $71.1 million in aggregate principal amount of Series 2023-B Class B solar loan-backed notes and $23.1 million in aggregate principal amount of Series 2023-B Class C solar loan-backed notes (collectively, the "HELXII Notes") with a maturity date of August 2050. The HELXII Notes were issued at a discount of 4.23%, 6.67% and 12.64% for the Class A, Class B and Class C notes, respectively, and bear interest at an annual rate of 5.30%, 5.60% and 6.00%, for the Class A, Class B and Class C notes, respectively. In October 2023, we entered into a note purchase agreement, which at closing will indirectly benefit from a partial guarantee provided by the U.S. Department of Energy ("DOE") Loan Programs Office. The notes will not be directly guaranteed by the DOE. The offering consists of $219.6 million in aggregate principal amount of Series 2023-GRID1 Class A solar loan-backed notes and $24.4 million in aggregate principal amount of Series 2023-GRID1 Class B solar loan-backed notes (collectively, the "HESI Notes") with a maturity date of December 2050. The HESI Notes were issued at a discount of 2.46% and 9.40% for the Class A and Class B notes respectively, and bear interest at an annual rate of 5.75% and 8.25% for the Class A and Class B notes, respectively.
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The offering is expected to close in November 2023, subject to customary closing conditions. See "—Liquidity and Capital Resources—Financing Arrangements—Securitizations" below.

In September 2023, one of our subsidiaries issued and sold an aggregate principal amount of $400.0 million of 11.75% senior notes ("11.75% senior notes") at a discount to the initial purchasers of approximately 2.74%, for an aggregate purchase price of approximately $389.0 million. The 11.75% senior notes mature in October 2028. See "—Liquidity and Capital Resources—Financing Arrangements—Senior Notes" below.

In August 2023, we sold 5,865,000 shares of common stock at a public offering price of $14.75 per share. We received aggregate net proceeds of approximately $82.2 million, after deducting underwriting discounts and commissions of approximately $3.9 million and offering expenses of approximately $400,000. See "—Liquidity and Capital Resources—Financing Arrangements—Public Offerings" below.

Securitizations

As a source of long-term financing, we securitize qualifying solar energy systems, energy storage systems and related solar service agreements into special purpose entities who issue solar asset-backed and solar loan-backed notes to institutional investors. We also securitize the cash flows generated by the membership interests in certain of our indirect, wholly-owned subsidiaries that are the managing member of a tax equity fund that owns a pool of solar energy systems, energy storage systems and related solar service agreements that were originated by one of our wholly-owned subsidiaries. The federal government currently provides business investment tax credits under Section 48(a) (the "Section 48(a) ITC") and residential energy credits under Section 25D (the "Section 25D Credit") of the U.S. Internal Revenue Code of 1986, as amended. For projects that begin construction after December 31, 2024, the Section 48(a) ITC will be replaced with investment tax credits under Section 48E(a) (the "Section 48E ITC"). We do not securitize the Section 48(a) ITC incentives, and currently do not plan to securitize any Section 48E ITC incentives, associated with the solar energy systems and energy storage systems as part of these arrangements. However, we may in the future securitize the expected proceeds from the sale of such tax credits. We use the cash flows these solar energy systems and energy storage systems generate to service the monthly, quarterly or semi-annual principal and interest payments on the notes and satisfy the expenses and reserve requirements of the special purpose entities, with any remaining cash distributed to their sole members, who are typically our indirect wholly-owned subsidiaries. In connection with these securitizations, certain of our affiliates receive a fee for managing and servicing the solar energy systems and energy storage systems pursuant to management, servicing, facility administration and asset management agreements. The special purpose entities are also typically required to maintain a liquidity reserve account and a reserve account for equipment replacements and, in certain cases, reserve accounts for financing fund purchase option/withdrawal right exercises or storage system replacement for the benefit of the holders under the applicable series of notes, each of which are funded from initial deposits or cash flows to the levels specified therein. The creditors of these special purpose entities have no recourse to our other assets except as expressly set forth in the terms of the notes. From our inception through September 30, 2023, we have issued $4.5 billion in solar asset-backed and solar loan-backed notes.

Tax Equity Funds

Our ability to offer long-term solar service agreements depends in part on our ability to finance the installation of the solar energy systems and energy storage systems by co-investing with tax equity investors, such as large banks who value the resulting customer receivables and Section 48(a) ITCs or, in the future, Section 48E ITCs, accelerated tax depreciation and other incentives related to the solar energy systems and energy storage systems, primarily through structured investments known as "tax equity". Tax equity investments are generally structured as non-recourse project financings known as "tax equity funds". In the context of distributed generation solar energy, tax equity investors make contributions upfront or in stages based on milestones in exchange for a share of the tax attributes and cash flows emanating from an underlying portfolio of solar energy systems and energy storage systems. In these tax equity funds, the U.S. federal income tax attributes offset taxes that otherwise would have been payable on the investors' other operations. The terms and conditions of each tax equity fund vary significantly by investor and by fund. We continue to negotiate with potential investors to create additional tax equity funds.

In general, our tax equity funds are structured using the "partnership flip" structure. Under partnership flip structures, we and our tax equity investors contribute cash into a partnership. The partnership uses this cash to acquire long-term solar service agreements, solar energy systems and energy storage systems developed by us and sells energy from such solar energy systems and energy storage systems, as applicable, to customers or directly leases the solar energy systems and energy storage systems, as applicable, to customers. We assign these solar service agreements, solar energy systems, energy storage systems and related incentives to our tax equity funds in accordance with the criteria of the specific funds. Upon such assignment and the satisfaction of certain conditions precedent, we are able to draw down on the tax equity fund commitments.
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The conditions precedent to funding vary across our tax equity funds but generally require that we have entered into a solar service agreement with the customer, the customer meets certain credit criteria, the solar energy system is expected to be eligible for the Section 48(a) ITC or the Section 48E ITC, as applicable, we have a recent appraisal from an independent appraiser establishing the fair market value of the solar energy system and the property is in an approved state or territory. Certain tax equity investors agree to receive a minimum target rate of return, typically on an after-tax basis, which varies by tax equity fund. Prior to receiving a contractual rate of return or a date specified in the contractual arrangements, the tax equity investor receives substantially all of the non-cash value attributable to the solar energy systems and energy storage systems, which includes accelerated depreciation and Section 48(a) ITCs or Section 48E ITCs, as applicable; however, we typically receive a majority of the cash distributions, which are typically paid quarterly. After the tax equity investor receives its contractual rate of return or after a specified date, we receive substantially all of the cash and tax allocations.

We have determined we are the primary beneficiary in these tax equity funds for accounting purposes. Accordingly, we consolidate the assets and liabilities and operating results of these partnerships in our consolidated financial statements. We recognize the tax equity investors' share of the net assets of the tax equity funds as redeemable noncontrolling interests and noncontrolling interests in our consolidated balance sheets. The income or loss allocations reflected in our consolidated statements of operations may create significant volatility in our reported results of operations, including potentially changing net loss attributable to stockholders to net income attributable to stockholders, or vice versa, from quarter to quarter.

We typically have an option to acquire, and our tax equity investors may have an option to withdraw and require us to purchase, all the equity interests our tax equity investor holds in the tax equity funds starting approximately five years after the last solar energy system in the applicable tax equity fund is operational. If we or our tax equity investors exercise this option, we are typically required to pay at least the fair market value of the tax equity investor's equity interest and, in certain cases, a contractual minimum amount. From our inception through September 30, 2023, we have received commitments of approximately $2.3 billion through the use of tax equity funds, of which an aggregate of $1.9 billion has been funded and $199.3 million remains available for use.

Key Financial and Operational Metrics

We regularly review a number of metrics, including the following key operational and financial metrics, to evaluate our business, measure our performance, identify trends affecting our business, formulate our financial projections and make strategic decisions.

Number of Customers. We define number of customers to include every unique premises on which a Sunnova product is installed or on which Sunnova is obligated to perform services for a counterparty. We track the total number of customers as an indicator of our historical growth and our rate of growth from period to period.

As of 
 September 30, 2023
As of 
 December 31, 2022
Change
Number of customers 386,200 279,400 106,800

Weighted Average Number of Systems. We calculate the weighted average number of systems based on the number of months a customer and any additional service obligation related to a solar energy system is in-service during a given measurement period. The weighted average number of systems reflects the number of systems at the beginning of a period, plus the total number of new systems added in the period adjusted by a factor that accounts for the partial period nature of those new systems. For purposes of this calculation, we assume all new systems added during a month were added in the middle of that month. The number of systems for any end of period will exceed the number of customers, as defined above, for that same end of period as we are also including any additional services and/or contracts a customer or third party executed for the additional work for the same residence or business. We track the weighted average system count in order to accurately reflect the contribution of the appropriate number of systems to key financial metrics over the measurement period.

Three Months Ended 
 September 30,
Nine Months Ended 
 September 30,
2023 2022 2023 2022
Weighted average number of systems (excluding loan agreements and cash sales) 225,200  171,600  210,900  163,800 
Weighted average number of systems with loan agreements 133,300  60,800  110,500  50,900 
Weighted average number of systems with cash sales 10,000  4,300  8,600  3,300 
Weighted average number of systems 368,500  236,700  330,000  218,000 
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Adjusted EBITDA. We define Adjusted EBITDA as net income (loss) plus net interest expense, depreciation and amortization expense, income tax expense, financing deal costs, natural disaster losses and related charges, net, losses on extinguishment of long-term debt, realized and unrealized gains and losses on fair value instruments and equity securities, amortization of payments to dealers for exclusivity and other bonus arrangements, legal settlements, investment tax credit ("ITC") sales and excluding the effect of certain non-recurring items we do not consider to be indicative of our ongoing operating performance such as, but not limited to, acquisition costs, losses on unenforceable contracts, indemnification payments to tax equity investors and other non-cash items such as non-cash compensation expense, asset retirement obligation ("ARO") accretion expense, provision for current expected credit losses and non-cash inventory and other impairments.

Adjusted EBITDA is a non-GAAP financial measure we use as a performance measure. We believe investors and securities analysts also use Adjusted EBITDA in evaluating our operating performance. This measurement is not recognized in accordance with accounting principles generally accepted in the United States of America ("GAAP") and should not be viewed as an alternative to GAAP measures of performance. The GAAP measure most directly comparable to Adjusted EBITDA is net income (loss). The presentation of Adjusted EBITDA should not be construed to suggest our future results will be unaffected by non-cash or non-recurring items. In addition, our calculation of Adjusted EBITDA is not necessarily comparable to Adjusted EBITDA as calculated by other companies.

We believe Adjusted EBITDA is useful to management, investors and analysts in providing a measure of core financial performance adjusted to allow for comparisons of results of operations across reporting periods on a consistent basis. These adjustments are intended to exclude items that are not indicative of the ongoing operating performance of the business. Adjusted EBITDA is also used by our management for internal planning purposes, including our consolidated operating budget, and by our board of directors in setting performance-based compensation targets. Adjusted EBITDA should not be considered an alternative to but viewed in conjunction with GAAP results, as we believe it provides a more complete understanding of ongoing business performance and trends than GAAP measures alone. Adjusted EBITDA has limitations as an analytical tool, and you should not consider it in isolation or as a substitute for analysis of our results as reported under GAAP.

Three Months Ended 
 September 30,
Nine Months Ended 
 September 30,
2023 2022 2023 2022
(in thousands)
Reconciliation of Net Loss to Adjusted EBITDA:
Net loss
$ (56,463) $ (32,348) $ (267,590) $ (68,283)
Interest expense, net 57,601  20,824  200,155  44,380 
Interest income (30,590) (16,185) (81,670) (40,428)
Income tax benefit
(9,325) —  (1,632) — 
Depreciation expense 40,082  27,594  107,957  78,401 
Amortization expense 7,416  7,309  22,112  21,894 
EBITDA 8,721  7,194  (20,668) 35,964 
Non-cash compensation expense 5,494  4,463  19,812  20,059 
ARO accretion expense 1,257  952  3,491  2,687 
Financing deal costs 608  162  1,282  582 
Natural disaster losses and related charges, net 1,442  1,161  2,388  1,161 
Acquisition costs 150  3,005  1,137  5,622 
Unrealized (gain) loss on fair value instruments and equity securities (8,482) 10,625  846  (4,136)
Amortization of payments to dealers for exclusivity and other bonus arrangements 1,996  1,185  4,957  3,110 
Legal settlements —  (1,001) 750  (1,001)
Provision for current expected credit losses 8,360  10,967  29,467  26,881 
Non-cash inventory and other impairments 6,443  864  22,106  864 
Indemnification payments to tax equity investors —  1,727  3,053  1,727 
ITC sales
14,422  —  14,422  — 
Adjusted EBITDA $ 40,411  $ 41,304  $ 83,043  $ 93,520 
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Interest Income from Customer Notes Receivable; Principal Proceeds from Customer Notes Receivable, Net of Related Revenue; and Proceeds from Investments in Solar Receivables. Under our loan agreements, the customer obtains financing for the purchase of a solar energy system from us and we agree to operate and maintain the solar energy system throughout the duration of the agreement. Pursuant to the terms of the loan agreement, the customer makes scheduled principal and interest payments to us and has the option to prepay principal at any time in part or in full. Whereas we typically recognize payments from customers under our leases and PPAs as revenue, we recognize payments received from customers under our loan agreements (a) as interest income, to the extent attributable to earned interest on the contract that financed the customer's purchase of the solar energy system; (b) as a reduction of a note receivable on the balance sheet, to the extent attributable to a return of principal (whether scheduled or prepaid) on the contract that financed the customer's purchase of the solar energy system; and (c) as revenue, to the extent attributable to payments for operations and maintenance services provided by us. We also enter into leases with third-party owners of pools of solar energy systems to receive such third party's interest in those systems. In connection therewith, we assume the related customer PPA and lease obligations, entitling us to future customer cash flows as well as certain credits, rebates and incentives (including SRECs) under those agreements. We recognize payments received from such third parties as proceeds from investments in solar receivables.

While Adjusted EBITDA effectively captures the operating performance of our leases and PPAs, it only reflects the service portion of the operating performance under our loan agreements. We do not consider our types of solar service agreements differently when evaluating our operating performance. In order to present a measure of operating performance that provides comparability without regard to the different accounting treatment among our different types of solar service agreements, we consider interest income from customer notes receivable, principal proceeds from customer notes receivable, net of related revenue, and proceeds from investments in solar receivables as key performance metrics. We believe these metrics provide a more meaningful and uniform method of analyzing our operating performance when viewed in light of our other key performance metrics across the primary types of solar service agreements.

Three Months Ended 
 September 30,
Nine Months Ended 
 September 30,
2023 2022 2023 2022
(in thousands)
Interest income from customer notes receivable $ 26,761  $ 15,119  $ 69,950  $ 39,051 
Principal proceeds from customer notes receivable, net of related revenue $ 36,966  $ 22,284  $ 102,914  $ 67,478 
Proceeds from investments in solar receivables $ 3,779  $ 3,768  $ 8,708  $ 9,388 

Adjusted Operating Expense. We define Adjusted Operating Expense as total operating expense less depreciation and amortization expense, financing deal costs, natural disaster losses and related charges, net, amortization of payments to dealers for exclusivity and other bonus arrangements, legal settlements, direct sales costs, cost of revenue related to cash sales, cost of revenue related to inventory sales, unrealized gains and losses on fair value instruments, gains and losses on held-for-sale loans and excluding the effect of certain non-recurring items we do not consider to be indicative of our ongoing operating performance such as, but not limited to, acquisition costs, losses on unenforceable contracts, indemnification payments to tax equity investors and other non-cash items such as non-cash compensation expense, ARO accretion expense, provision for current expected credit losses and non-cash inventory and other impairments. Adjusted Operating Expense is a non-GAAP financial measure we use as a performance measure. We believe investors and securities analysts will also use Adjusted Operating Expense in evaluating our performance. This measurement is not recognized in accordance with GAAP and should not be viewed as an alternative to GAAP measures of performance. The GAAP measure most directly comparable to Adjusted Operating Expense is total operating expense. We believe Adjusted Operating Expense is a supplemental financial measure useful to management, analysts, investors, lenders and rating agencies as an indicator of the efficiency of our operations between reporting periods. Adjusted Operating Expense should not be considered an alternative to but viewed in conjunction with GAAP total operating expense, as we believe it provides a more complete understanding of our performance than GAAP measures alone. Adjusted Operating Expense has limitations as an analytical tool and you should not consider it in isolation or as a substitute for analysis of our results as reported under GAAP, including total operating expense.

We use per system metrics, including Adjusted Operating Expense per weighted average system, as an additional way to evaluate our performance. Specifically, we consider the change in this metric from period to period as a way to evaluate our performance in the context of changes we experience in the overall customer base. While the Adjusted Operating Expense figure provides a valuable indicator of our overall performance, evaluating this metric on a per system basis allows for further nuanced understanding by management, investors and analysts of the financial impact of each additional system.

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Three Months Ended 
 September 30,
Nine Months Ended 
 September 30,
2023 2022 2023 2022
(in thousands, except per system data)
Reconciliation of Total Operating Expense, Net to Adjusted Operating Expense:
Total operating expense, net $ 236,614  $ 177,085  $ 673,239  $ 426,756 
Depreciation expense (40,082) (27,594) (107,957) (78,401)
Amortization expense (7,416) (7,309) (22,112) (21,894)
Non-cash compensation expense (5,494) (4,463) (19,812) (20,059)
ARO accretion expense (1,257) (952) (3,491) (2,687)
Financing deal costs (608) (162) (1,282) (582)
Natural disaster losses and related charges, net (1,442) (1,161) (2,388) (1,161)
Acquisition costs (150) (3,005) (1,137) (5,622)
Amortization of payments to dealers for exclusivity and other bonus arrangements (1,996) (1,185) (4,957) (3,110)
Legal settlements —  1,001  (750) 1,001 
Provision for current expected credit losses (8,360) (10,967) (29,467) (26,881)
Non-cash inventory and other impairments (6,443) (864) (22,106) (864)
Direct sales costs (12,635) (3,237) (33,199) (4,110)
Cost of revenue related to cash sales (12,698) (10,225) (34,001) (23,946)
Cost of revenue related to inventory sales (50,694) (40,917) (129,016) (89,884)
Unrealized gain (loss) on fair value instruments 9,043  (10,637) 3,123  3,809 
Indemnification payments to tax equity investors —  (1,727) (3,053) (1,727)
Gain on held-for-sale loans
—  11  — 
Adjusted Operating Expense $ 96,390  $ 53,681  $ 261,645  $ 150,638 
Adjusted Operating Expense per weighted average system $ 262  $ 227  $ 793  $ 691 

Estimated Gross Contracted Customer Value. We calculate estimated gross contracted customer value as defined below. We believe estimated gross contracted customer value can serve as a useful tool for investors and analysts in comparing the remaining value of our customer contracts to that of our peers.

Estimated gross contracted customer value as of a specific measurement date represents the sum of the present value of the remaining estimated future net cash flows we expect to receive from existing customers during the initial contract term of our customer agreements, which are typically 25 years in length, plus the present value of future net cash flows we expect to receive from the sale of related solar renewable energy certificates ("SRECs"), either under existing contracts or in future sales, plus the cash flows we expect to receive from energy services programs such as grid services, plus the carrying value of outstanding customer loans on our balance sheet. From these aggregate estimated initial cash flows, we subtract the present value of estimated net cash distributions to redeemable noncontrolling interests and noncontrolling interests and estimated operating, maintenance and administrative expenses associated with the solar service agreements. These estimated future cash flows reflect the projected monthly customer payments over the life of our solar service agreements and depend on various factors including but not limited to solar service agreement type, contracted rates, expected sun hours and the projected production capacity of the solar equipment installed. For the purpose of calculating this metric, we discount all future cash flows at 6%.

The anticipated operating, maintenance and administrative expenses included in the calculation of estimated gross contracted customer value include, among other things, expenses related to accounting, reporting, audit, insurance, maintenance and repairs. In the aggregate, we estimate these expenses are $20 per kilowatt per year initially, with 2% annual increases for inflation, and an additional $81 per year non-escalating expense included for energy storage systems. We do not include maintenance and repair costs for inverters and similar equipment as those are largely covered by the applicable product and dealer warranties for the life of the product, but we do include additional cost for energy storage systems, which are only covered by a 10-year warranty. Expected distributions to tax equity investors vary among the different tax equity funds and are based on individual tax equity fund contract provisions.

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Estimated gross contracted customer value is forecasted as of a specific date. It is forward-looking and we use judgment in developing the assumptions used to calculate it. Factors that could impact estimated gross contracted customer value include, but are not limited to, customer payment defaults, or declines in utility rates or early termination of a contract in certain circumstances, including prior to installation. The following table presents the calculation of estimated gross contracted customer value as of September 30, 2023 and December 31, 2022, calculated using a 6% discount rate.

As of 
 September 30, 2023
As of 
 December 31, 2022
(in millions)
Estimated gross contracted customer value $ 8,244  $ 5,875 

Sensitivity Analysis. The calculation of estimated gross contracted customer value and associated operational metrics requires us to make a number of assumptions regarding future revenues and costs that may not prove accurate. Accordingly, we present below a sensitivity analysis with a range of assumptions. We consider a discount rate of 6% to be appropriate based on recent transactions that demonstrate a portfolio of solar service agreements is an asset class that can be securitized successfully on a long-term basis with a weighted-average coupon of less than 6%. We also present these metrics with a discount rate of 6% based on industry practice. The appropriate discount rate for these estimates may change in the future due to the level of inflation, rising interest rates, our cost of capital and consumer demand for solar energy systems. In addition, the table below provides a range of estimated gross contracted customer value amounts if different cumulative customer loss rate assumptions were used. We are presenting this information for illustrative purposes only and as a comparison to information published by our peers.

Estimated Gross Contracted Customer Value
As of September 30, 2023
Discount rate
Cumulative customer loss rate 4% 5% 6% 7% 8%
(in millions)
5% $ 8,741  $ 8,338  $ 7,985  $ 7,675  $ 7,402 
0% $ 9,085  $ 8,635  $ 8,244  $ 7,901  $ 7,600 

Significant Factors and Trends Affecting Our Business

Our results of operations and our ability to grow our business over time could be impacted by a number of factors and trends that affect our industry generally, as well as new offerings of services and products we may acquire or seek to acquire in the future. Additionally, our business is concentrated in certain markets, putting us at risk of region-specific disruptions such as adverse economic, regulatory, political, weather and other conditions. See "Risk Factors" in our Annual Report on Form 10-K filed with the SEC on February 23, 2023, our Quarterly Reports on Form 10-Q filed with the SEC on April 27, 2023 and July 27, 2023 and in this Quarterly Report on Form 10-Q for further discussion of risks affecting our business.

Financing Availability. Our future growth depends, in significant part, on our ability to raise capital from third-party investors on competitive terms to help finance the origination of our solar energy systems under our solar service agreements. We have historically used debt, such as convertible senior notes, senior notes, asset-backed and loan-backed securitizations and warehouse facilities, tax equity, preferred equity, common equity and other financing strategies to help fund our operations. From our inception through September 30, 2023, we have raised more than $14.5 billion in total capital commitments from equity, debt and tax equity investors. With respect to tax equity, there are a limited number of potential tax equity investors, and the competition for this investment capital is intense. The principal tax credit on which tax equity investors in our industry rely is the Section 48(a) ITC. Prior to the Inflation Reduction Act of 2022 ("IRA"), which was enacted in August 2022, the amount for the Section 48(a) ITC was equal to (a) 30% of the basis of eligible solar property that began construction before 2020 or (b) 26% of the basis of eligible solar property that began construction during 2020, 2021 or 2022. Under the IRA, the Section 48(a) ITC is (a) 26% for eligible solar property that began construction after 2019 and was placed in service before 2022 and (b) 30% for eligible solar property or eligible energy storage property that begins construction before 2025 provided (i) the project satisfies certain labor and apprenticeship requirements, (ii) the project has a maximum net output of less than one megawatt (as measured in alternating current) or (iii) the project began construction prior to January 29, 2023. If no criterion is satisfied, the base amount of the Section 48(a) ITC will be equal to 6%. In addition, the Section 48(a) ITC will be replaced by the Section 48E ITC for eligible solar energy property or eligible energy storage property that begins construction after 2024, and the Section 48E ITC percentage will be the same as the percentage for the Section 48(a) ITC and subject to the same requirements in order to receive the full benefit.
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The Section 48E ITC percentage will begin to phase down for projects that begin construction after (a) 2033 or (b) if later, the first year after the year in which the U.S. Department of Treasury determines greenhouse gas emissions from the production of electricity in the United States are no more than 25% of 2022 levels. We believe our solar energy systems and energy storage systems generally will not be subject to the labor and apprenticeship requirements of the IRA due to the maximum net output of most of our solar energy systems and energy storage systems. However, solar energy systems and energy storage systems systems financed by Hestia securitizations will be subject to applicable labor requirements imposed by the DOE and the U.S. Department of Labor. In addition, the IRA added a new provision that allows taxpayers to transfer certain federal income tax credits that arise after 2022, such as the Section 48(a) ITC, to third parties for cash. In September 2023, we entered into our first tax credit purchase agreements. It is unclear what long-term effect the ability to transfer Section 48(a) ITCs will have on tax equity structures, although we expect the market for tax equity structures to continue for investors who will continue to value benefits that are not transferable, such as accelerated depreciation. We are continuing to evaluate the overall impact and applicability of the IRA to our ability to raise capital from third-party investors.

Our ability to raise capital from third-party investors is also affected by general economic conditions, the state of the capital markets, inflation levels and concerns about our industry or business. Specifically, interest rates have risen and remain subject to volatility that may result from action taken by the Federal Reserve. Recent data have suggested inflationary pressures may be more durable than anticipated, which could result in interest rate increases or continued higher interest rates and/or further tapering of quantitative easing policies enacted towards the outset of the COVID-19 pandemic sooner than previously expected.

Cost of Solar Energy Systems and Energy Storage Systems. Upward pressure on prices of solar energy systems and energy storage systems may occur due to growth in the solar industry, regulatory policy changes, tariffs and duties, inflationary cost pressures and an increase in demand. As a result of these developments, we may pay higher prices on solar modules, which may make it less economical for us to serve certain markets. Attachment rates for energy storage systems have trended higher while the price to acquire has trended lower making the addition of energy storage systems a potential area of growth for us. Downward pressure on prices of solar energy systems and energy storage systems may lead to impairment of our inventory.

Energy Storage Systems. Our energy storage systems increase our customers' independence from the centralized utility and provide on-site backup power when there is a grid outage due to storms, wildfires, other natural disasters and general power failures caused by supply or transmission issues. In addition, at times it can be more economic to consume less energy from the grid or, alternatively, to export solar energy back to the grid. Recent technological advancements for energy storage systems allow the energy storage system to adapt to pricing and utility rate shifts by controlling the inflows and outflows of power, allowing customers to increase the value of their solar energy system plus energy storage system. The energy storage system charges during the day, making the energy it stores available to the home or business when needed. It also features software that can customize power usage for the individual customer, providing backup power, optimizing solar energy consumption versus grid consumption or preventing export to the grid as appropriate. The software is tailored based on utility regulation, economic indicators and grid conditions. The combination of energy control, increased energy resilience and independence from the grid is strong incentive for customers to adopt solar and energy storage. As energy storage systems and their related software features become more advanced, we expect to see increased adoption of energy storage systems.

Climate Change Action. As a result of increasing global awareness of and aversion to climate change impacts, we believe the renewable energy market in which we operate, and investment in climate solutions more broadly, will continue to grow as the impact of climate change increases. This trend, along with increasing commitments to reduce carbon emissions, is expected to result in increased demand for our products and services. Under the current presidential administration, the focus on cleaner energy sources and technology to decarbonize the U.S. economy continues to accelerate. The federal government's administration under President Joe Biden ("Biden administration") has taken immediate steps that we believe signify support for cleaner energy sources, including, but not limited to, rejoining the Paris Climate Accord, re-establishing a social price on carbon used in cost/benefit analysis for policy making and announcing a commitment to transition the U.S. economy to a net-zero carbon economy by 2050. We expect the Biden administration, combined with a closely divided Congress, to continue to take actions that are supportive of the renewable energy industry, such as incentivizing clean energy sources and supporting new investment in areas like renewables.

Government Regulations, Policies and Incentives. Our growth strategy depends in significant part on government policies and incentives that promote and support solar energy and enhance the economic viability of distributed solar. These policies and incentives come in various forms, including net metering, eligibility for accelerated depreciation such as the modified accelerated cost recovery system, SRECs, tax abatements, rebates, renewable targets, DOE loan guarantee programs, incentive programs and tax credits, particularly the Section 48(a) ITC and the Section 25D Credit. The recently enacted IRA expanded and extended the tax credits available to solar energy projects in an effort to achieve the Biden administration's non-binding target of net-zero emissions by 2050, which we expect will increase demand for our services.
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The IRA allows qualifying homeowners to deduct up to 30% of the cost of installing residential solar energy systems from their U.S. federal income taxes, thereby returning a significant portion of the purchase price of the residential solar energy system to homeowners that may participate in our solar loan programs. Under the terms of the current extension, the residential tax credit will remain at 30% through the end of 2032, reduce to 26% for 2033, reduce to 22% for 2034, and further reduce to 0% after the end of 2034 for residential solar energy systems, unless it is extended before that time. The IRA also extended the investment tax credit for solar energy projects through at least 2033 and, depending on the location of a particular project, its size, its ability to satisfy certain labor and domestic content requirements and the category of consumers it serves, the investment tax credit percentage can range between 6% and 70%. Policies requiring solar on new roofs, such as those enacted in California and New York City, also support the growth of distributed solar. The sale of SRECs has constituted a significant portion of our revenue historically. A change in the value of net metering credits or SRECs or changes in other policies or a loss or reduction in such incentives could decrease the attractiveness of distributed solar to us, our dealers and our customers in applicable markets, which could reduce our customer acquisition opportunities. Such a loss or reduction could also reduce our willingness to pursue certain customer acquisitions due to decreased revenue or income under our solar service agreements. Additionally, such a loss or reduction may also impact the terms of and availability of third-party financing. If any of these government regulations, policies or incentives are adversely amended, delayed, eliminated, reduced, retroactively changed or not extended beyond their current expiration dates or there is a negative impact from the recent federal law changes or proposals, our operating results and the demand for, and the economics of, distributed solar energy may decline, which could harm our business.

Components of Results of Operations

Revenue. We recognize revenue from contracts with customers as we satisfy our performance obligations at a transaction price reflecting an amount of consideration based upon an estimated rate of return, net of cash incentives. We express this rate of return as the solar rate per kilowatt hour ("kWh") in the customer contract. The amount of revenue we recognize does not equal customer cash payments because we satisfy performance obligations ahead of cash receipt or evenly as we provide continuous access on a stand-ready basis to the solar energy system. We reflect the differences between revenue recognition and cash payments received in accounts receivable, other assets or deferred revenue, as appropriate.

PPAs. We have determined solar service agreements under which customers purchase electricity from us should be accounted for as revenue from contracts with customers. We recognize revenue based upon the amount of electricity delivered as determined by remote monitoring equipment at solar rates specified under the contracts. The PPAs generally have a term of 20 or 25 years with an opportunity for customers to renew for up to an additional 10 years, via two five-year or one 10-year renewal options.

Lease Agreements. We are the lessor under lease agreements for solar energy systems and energy storage systems, which we account for as revenue from contracts with customers. We recognize revenue on a straight-line basis over the contract term as we satisfy our obligation to provide continuous access to the solar energy system. The lease agreements generally have a term of 20 or 25 years with an opportunity for customers to renew for up to an additional 10 years, via two five-year or one 10-year renewal options.

We provide customers under our lease agreements a performance guarantee that each solar energy system will achieve a certain specified minimum solar energy production output. The specified minimum solar energy production output may not be achieved due to natural fluctuations in the weather or equipment failures from exposure and wear and tear outside of our control, among other factors. We determine the amount of guaranteed output based on a number of different factors, including (a) the specific site information related to the tilt of the panels, azimuth (a horizontal angle measured clockwise in degrees from a reference direction) of the panels, size of the solar energy system and shading on site; (b) the calculated amount of available irradiance (amount of energy for a given flat surface facing a specific direction) based on historical average weather data and (c) the calculated amount of energy output of the solar energy system.

If the solar energy system does not produce the guaranteed production amount, we are required to provide a bill credit or refund a portion of the previously remitted customer payments, where the bill credit or repayment is calculated as the product of (a) the shortfall production amount and (b) the dollar amount (guaranteed rate) per kWh that is fixed throughout the term of the contract. These bill credits or remittances of a customer's payments, if needed, are payable in January following the end of the first three years of the solar energy system's placed in service date and then every annual period thereafter. See Note 14, Commitments and Contingencies, to our interim unaudited condensed consolidated financial statements ("interim financial statements") included elsewhere in this Quarterly Report on Form 10-Q.

Inventory Sales. Inventory sales revenue represents revenue from the direct sale of inventory to our dealers or other parties. We recognize the related revenue under ASC 606 upon shipment or upon sale when a bill and hold agreement is in place.
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Service Revenue. Service revenue includes revenue from the direct sale of solar energy systems and energy storage systems to customers with financing provided by us and sales of service plans and repair services. We recognize revenue from the direct sale of energy storage systems in the period in which the storage components are placed in service. Service plans are available to customers whose solar energy system was not originally sold by Sunnova. We recognize revenue from service plan contracts on a straight-line basis over the life of the contract, which is typically 10 years. We recognize revenue from repair services in the period in which the service was performed.

SRECs. Each SREC represents the environmental benefit of one megawatt hour (1,000 kWh) generated by a solar energy system. We sell SRECs to utilities and other third parties who use the SRECs to meet renewable portfolio standards and can do so separate from the actual electricity generated by the renewable-based generation source. We account for SRECs generated from solar energy systems owned by us, as opposed to those owned by our customers, as governmental incentives with no costs incurred to obtain them and do not consider those SRECs output of the underlying solar energy systems. We classify SRECs as inventory held until sold and delivered to third parties. We enter into economic hedges with major financial institutions related to expected production of SRECs through forward contracts to partially mitigate the risk of decreases in SREC market rates. While these fixed price forward contracts serve as an economic hedge against spot price fluctuations for the SRECs, the contracts do not qualify for hedge accounting and are not designated as cash flow hedges or fair value hedges. The contracts require us to physically deliver the SRECs upon settlement. We recognize the related revenue upon the transfer of the SRECs to the counterparty. The costs related to the sales of SRECs are generally limited to fees for brokered transactions. Accordingly, the sale of SRECs in a period generally has a favorable impact on our operating results for that period. In certain circumstances we are required to purchase SRECs on the open market to fulfill minimum delivery requirements under our forward contracts.

Cash Sales. Cash sales revenue represents revenue from a customer's purchase of a solar energy system from us typically when purchasing a new home. We recognize the related revenue upon verification of the home closing.

Loan Agreements. We recognize payments received from customers under loan agreements (a) as interest income, to the extent attributable to earned interest on the contract that financed the customer's purchase; (b) as a reduction of a note receivable on the balance sheet, to the extent attributable to a return of principal (whether scheduled or prepaid) on the contract that financed the customer's purchase; and (c) as revenue, to the extent attributable to payments for operations and maintenance services provided by us. Similar to our lease agreements, we provide customers under our loan agreements a performance guarantee that each solar energy system will achieve a certain specified minimum solar energy production output, which is a significant proportion of its expected output.

Other Revenue. Other revenue includes certain state and utility incentives. We recognize revenue from state and utility incentives in the periods in which they are earned.

Cost of Revenue—Depreciation. Cost of revenue—depreciation represents depreciation on solar energy systems under lease agreements and PPAs that have been placed in service.

Cost of Revenue—Inventory Sales. Cost of revenue—inventory sales represents costs related to the procurement and direct sale of inventory to our dealers or other parties, including shipping and handling costs.

Cost of Revenue—Other. Cost of revenue—other represents costs related to cash sales, costs to purchase SRECs on the open market, SREC broker fees, payroll and related costs for Sunnova personnel who install solar energy systems and energy storage systems and other items deemed to be a cost of providing the service of selling power to customers or potential customers, such as certain costs to service loan agreements, costs for filing under the Uniform Commercial Code to maintain title, title searches, credit checks on potential customers at the time of initial contract and other similar costs, typically directly related to the volume of customers and potential customers.

Operations and Maintenance Expense. Operations and maintenance expense represents costs from third parties for maintaining and servicing the solar energy systems, property insurance, property taxes and warranties. When services for maintaining and servicing solar energy systems are provided by Sunnova personnel rather than third parties, those amounts are included in payroll costs classified within general and administrative expense. During the nine months ended September 30, 2023 and 2022, we incurred $26.6 million and $13.3 million, respectively, of Sunnova personnel costs related to maintaining and servicing solar energy systems, which are classified in general and administrative expense. In addition, operations and maintenance expense includes write downs and write-offs related to inventory adjustments, gains and losses on disposals and other impairments and impairments and costs due to natural disaster losses net of insurance proceeds recovered under our business interruption and property damage insurance coverage for natural disasters.

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General and Administrative Expense. General and administrative expense represents costs for our employees, such as salaries, bonuses, benefits and all other employee-related costs, including stock-based compensation, professional fees related to legal, accounting, human resources, finance and training, information technology and software services, marketing and communications, acquisition costs, travel and rent and other office-related expenses. General and administrative expense also includes depreciation on assets not classified as solar energy systems, including information technology software and development projects, vehicles, furniture, fixtures, computer equipment and leasehold improvements and accretion expense on AROs. We capitalize a portion of general and administrative costs, such as payroll-related costs, that is related to employees who are directly involved in the design, construction, installation and testing of the solar energy systems but not directly associated with a particular asset. We also capitalize a portion of general and administrative costs, such as payroll-related costs, that is related to employees who are directly associated with and devote time to internal information technology software and development projects, to the extent of the time spent directly on the application and development stage of such software project.

Other Operating (Income) Expense. Other operating (income) expense primarily represents changes in the fair values of certain financial instruments related to our investments in solar receivables and contingent consideration related to the installation and microgrid earnouts.

Interest Expense, Net. Interest expense, net represents interest on our borrowings under our various debt facilities, amortization of debt discounts and deferred financing costs and realized and unrealized gains and losses on derivative instruments.

Interest Income. Interest income represents interest income from the notes receivable under our loan program and income on short term investments with financial institutions.

Other (Income) Expense. Other (income) expense primarily represents changes in the fair value of certain financial instruments related to non-operating assets.

Income Tax Benefit. We account for income taxes under Accounting Standards Codification 740, Income Taxes. As such, we determine deferred tax assets and liabilities based on temporary differences resulting from the different treatment of items for tax and financial reporting purposes. We measure deferred tax assets and liabilities using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to reverse. Additionally, we must assess the likelihood that deferred tax assets will be recovered as deductions from future taxable income. We have a full valuation allowance on our deferred tax assets because we believe it is more likely than not that our deferred tax assets will not be realized. We evaluate the recoverability of our deferred tax assets on a quarterly basis. The income tax benefit includes the effects of taxes incurred in U.S. territories where the tax code for the respective territory may have separate tax reporting requirements, as applicable. We account for ITCs using the flow-through method. For tax credit purchase agreements entered into by certain of our consolidated tax equity partnerships, we record our share of the sale as income tax benefit and the tax equity investor's share as an increase to redeemable noncontrolling interest or noncontrolling interest.

Net Income (Loss) Attributable to Redeemable Noncontrolling Interests and Noncontrolling Interests. Net income (loss) attributable to redeemable noncontrolling interests and noncontrolling interests represents tax equity interests in the net income or loss of certain consolidated subsidiaries based on hypothetical liquidation at book value.
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Results of Operations—Three Months Ended September 30, 2023 Compared to Three Months Ended September 30, 2022

The following table sets forth our unaudited condensed consolidated statements of operations data for the periods indicated.

Three Months Ended 
 September 30,
2023 2022 Change
(in thousands)
Revenue $ 198,398  $ 149,364  $ 49,034 
Operating expense:
Cost of revenue—depreciation 33,743  24,663  9,080 
Cost of revenue—inventory sales 50,694  40,917  9,777 
Cost of revenue—other 30,981  15,567  15,414 
Operations and maintenance 18,702  9,774  8,928 
General and administrative 111,545  75,897  35,648 
Other operating (income) expense
(9,051) 10,267  (19,318)
Total operating expense, net 236,614  177,085  59,529 
Operating loss
(38,216) (27,721) (10,495)
Interest expense, net 57,601  20,824  36,777 
Interest income (30,590) (16,185) (14,405)
Other (income) expense
561  (12) 573 
Loss before income tax
(65,788) (32,348) (33,440)
Income tax benefit
(9,325) —  (9,325)
Net loss
(56,463) (32,348) (24,115)
Net income attributable to redeemable noncontrolling interests and noncontrolling interests
6,684  32,195  (25,511)
Net loss attributable to stockholders
$ (63,147) $ (64,543) $ 1,396 

Revenue

Three Months Ended 
 September 30,
2023 2022 Change
(in thousands)
PPA revenue $ 38,300  $ 31,891  $ 6,409 
Lease revenue 37,966  25,912  12,054 
Inventory sales revenue 51,356  45,528  5,828 
Service revenue 19,323  4,309  15,014 
SREC revenue 16,136  16,241  (105)
Cash sales revenue 24,284  18,933  5,351 
Loan revenue 9,283  5,012  4,271 
Other revenue 1,750  1,538  212 
Total $ 198,398  $ 149,364  $ 49,034 

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Revenue increased by $49.0 million in the three months ended September 30, 2023 compared to the three months ended September 30, 2022 primarily due to an increased number of solar energy systems in service. The weighted average number of systems (excluding systems with loan agreements, service-only agreements and cash sales) increased from approximately 132,000 for the three months ended September 30, 2022 to approximately 173,500 for the three months ended September 30, 2023. Excluding SREC revenue, revenue under our loan agreements, inventory sales revenue, cash sales revenue and service revenue, on a weighted average number of systems basis, revenue remained relatively flat at $450 per system for the three months ended September 30, 2022 and 2023. Inventory sales revenue increased by $5.8 million in the three months ended September 30, 2023 compared to the three months ended September 30, 2022 primarily due to the sale of inventory to our dealers or other parties. Service revenue increased by $15.0 million in the three months ended September 30, 2023 compared to the three months ended September 30, 2022 primarily due to an increased focus on direct sales of additional services to existing customers. SREC revenue decreased by $105,000 in the three months ended September 30, 2023 compared to the three months ended September 30, 2022 primarily due to a decrease in SREC volume in New Jersey. The amount of SREC revenue recognized in each period is also affected by the total number of solar energy systems, weather seasonality and hedge and spot prices associated with the timing of the sale of SRECs. On a weighted average number of systems basis, revenues under our loan agreements (excluding accessory loans, which do not generate revenue) increased from $87 per system for the three months ended September 30, 2022 to $103 per system for the same period in 2023 (19% increase) primarily due to an increase in the fees charged for operations and maintenance services.

Cost of Revenue—Depreciation

Three Months Ended 
 September 30,
2023 2022 Change
(in thousands)
Cost of revenue—depreciation $ 33,743  $ 24,663  $ 9,080 

Cost of revenue—depreciation increased by $9.1 million in the three months ended September 30, 2023 compared to the three months ended September 30, 2022. This increase was primarily due to an increase in the weighted average number of systems (excluding systems with loan agreements, service-only agreements and cash sales) from approximately 132,000 for the three months ended September 30, 2022 to approximately 173,500 for the three months ended September 30, 2023. On a weighted average number of systems basis, cost of revenue—depreciation remained relatively flat at $187 per system for the three months ended September 30, 2022 compared to $194 per system for the same period in 2023 (4% increase).

Cost of Revenue—Inventory Sales

Three Months Ended 
 September 30,
2023 2022 Change
(in thousands)
Cost of revenue—inventory sales $ 50,694  $ 40,917  $ 9,777 

Cost of revenue—inventory sales increased by $9.8 million in the three months ended September 30, 2023 compared to the three months ended September 30, 2022 due to higher inventory sales activity.

Cost of Revenue—Other

Three Months Ended 
 September 30,
2023 2022 Change
(in thousands)
Cost of revenue—other $ 30,981  $ 15,567  $ 15,414 

Cost of revenue—other increased by $15.4 million in the three months ended September 30, 2023 compared to the three months ended September 30, 2022. This increase was primarily due to costs related to services of $12.4 million.

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Operations and Maintenance Expense

Three Months Ended 
 September 30,
2023 2022 Change
(in thousands)
Operations and maintenance $ 18,702  $ 9,774  $ 8,928 

Operations and maintenance expense increased by $8.9 million in the three months ended September 30, 2023 compared to the three months ended September 30, 2022 primarily due to higher impairments and losses on disposals, truck roll costs and property insurance costs. Operations and maintenance expense per weighted average system, excluding net natural disaster losses and non-cash inventory and other impairments, increased from $45 per system for the three months ended September 30, 2022 to $47 per system for the three months ended September 30, 2023 primarily due to higher truck roll costs.

General and Administrative Expense

Three Months Ended 
 September 30,
2023 2022 Change
(in thousands)
General and administrative $ 111,545  $ 75,897  $ 35,648 

General and administrative expense increased by $35.6 million in the three months ended September 30, 2023 compared to the three months ended September 30, 2022 primarily due to increases in (a) payroll and employee related expenses primarily due to the hiring of personnel to support growth of $20.6 million, (b) consultants, contractors, and professional fees of $3.8 million, (c) depreciation expense of $3.4 million, (d) information technology expense of $3.2 million, (e) marketing expense of $2.4 million, (f) other personnel expense of $1.6 million and (g) legal expense of $1.4 million.

Other Operating (Income) Expense

Three Months Ended 
 September 30,
2023 2022 Change
(in thousands)
Other operating (income) expense $ (9,051) $ 10,267  $ (19,318)

Other operating (income) expense changed by $19.3 million in the three months ended September 30, 2023 compared to the three months ended September 30, 2022 primarily due to changes in the fair value of certain financial instruments and contingent consideration.

Interest Expense, Net

Three Months Ended 
 September 30,
2023 2022 Change
(in thousands)
Interest expense, net $ 57,601  $ 20,824  $ 36,777 

Interest expense, net increased by $36.8 million in the three months ended September 30, 2023 compared to the three months ended September 30, 2022. This increase was primarily due to an increase in interest expense of $39.5 million due to higher levels of debt outstanding in 2023 compared to 2022 and a decrease in unrealized gains on derivatives of $8.3 million. This was partially offset by an increase in realized gains on derivatives of $15.8 million.

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Interest Income

Three Months Ended 
 September 30,
2023 2022 Change
(in thousands)
Interest income $ 30,590  $ 16,185  $ 14,405 

Interest income increased by $14.4 million in the three months ended September 30, 2023 compared to the three months ended September 30, 2022. This increase was primarily due to an increase in the weighted average number of systems with loan agreements from approximately 60,800 for the three months ended September 30, 2022 to approximately 133,300 for the three months ended September 30, 2023. On a weighted average number of systems basis, loan interest income decreased from $249 per system for the three months ended September 30, 2022 to $201 per system for the three months ended September 30, 2023 primarily due to an increase in the volume of accessory loans, which have smaller principal balances.

Income Tax Benefit

Income tax benefit increased by $9.3 million in the three months ended September 30, 2023 compared to the three months ended September 30, 2022 primarily due to ITC sales that resulted in an income tax benefit offset by an increase in taxable income related to tax gains recognized on the sale of solar energy systems and energy storage systems located in separate tax-reporting jurisdictions.

Net Income Attributable to Redeemable Noncontrolling Interests and Noncontrolling Interests

Net income attributable to redeemable noncontrolling interests and noncontrolling interests decreased by $25.5 million in the three months ended September 30, 2023 compared to the three months ended September 30, 2022 primarily due to a decrease in income attributable to noncontrolling interests from tax equity funds added in 2021, 2022 and 2023.

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Results of Operations—Nine Months Ended September 30, 2023 Compared to Nine Months Ended September 30, 2022

The following table sets forth our unaudited condensed consolidated statements of operations data for the periods indicated.

Nine Months Ended 
 September 30,
2023 2022 Change
(in thousands)
Revenue $ 526,471  $ 362,098  $ 164,373 
Operating expense:
Cost of revenue—depreciation 92,262  69,935  22,327 
Cost of revenue—inventory sales 129,016  89,884  39,132 
Cost of revenue—other 81,599  32,974  48,625 
Operations and maintenance 59,306  23,787  35,519 
General and administrative 314,190  214,362  99,828 
Other operating income
(3,134) (4,186) 1,052 
Total operating expense, net 673,239  426,756  246,483 
Operating loss
(146,768) (64,658) (82,110)
Interest expense, net 200,155  44,380  155,775 
Interest income (81,670) (40,428) (41,242)
Other (income) expense
3,969  (327) 4,296 
Loss before income tax
(269,222) (68,283) (200,939)
Income tax benefit
(1,632) —  (1,632)
Net loss
(267,590) (68,283) (199,307)
Net income (loss) attributable to redeemable noncontrolling interests and noncontrolling interests
(37,269) 72,455  (109,724)
Net loss attributable to stockholders
$ (230,321) $ (140,738) $ (89,583)

Revenue

Nine Months Ended 
 September 30,
2023 2022 Change
(in thousands)
PPA revenue $ 99,201  $ 84,235  $ 14,966 
Lease revenue 103,468  71,717  31,751 
Inventory sales revenue 137,762  99,773  37,989 
Service revenue 55,282  7,024  48,258 
SREC revenue 38,982  37,172  1,810 
Cash sales revenue 62,827  45,695  17,132 
Loan revenue 24,538  12,582  11,956 
Other revenue 4,411  3,900  511 
Total $ 526,471  $ 362,098  $ 164,373 

Revenue increased by $164.4 million in the nine months ended September 30, 2023 compared to the nine months ended September 30, 2022 primarily due to an increased number of solar energy systems in service.
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The weighted average number of systems (excluding systems with loan agreements, service-only agreements and cash sales) increased from approximately 124,200 for the nine months ended September 30, 2022 to approximately 161,000 for the nine months ended September 30, 2023. Excluding SREC revenue, revenue under our loan agreements, inventory sales revenue, cash sales revenue and service revenue, on a weighted average number of systems basis, revenue remained relatively flat at $1,287 per system for the nine months ended September 30, 2022 compared to $1,286 per system for the same period in 2023. Inventory sales revenue increased by $38.0 million in the nine months ended September 30, 2023 compared to the nine months ended September 30, 2022 due to the sale of inventory to our dealers or other parties, which began in April 2022. Service revenue increased by $48.3 million in the nine months ended September 30, 2023 compared to the nine months ended September 30, 2022 primarily due to an increased focus on direct sales of additional services to existing customers. SREC revenue increased by $1.8 million in the nine months ended September 30, 2023 compared to the nine months ended September 30, 2022 primarily due to increases in SREC prices in Connecticut, Puerto Rico and Pennsylvania. The amount of SREC revenue recognized in each period is also affected by the total number of solar energy systems, weather seasonality and hedge and spot prices associated with the timing of the sale of SRECs. On a weighted average number of systems basis, revenues under our loan agreements (excluding accessory loans, which do not generate revenue) increased from $253 per system for the nine months ended September 30, 2022 to $297 per system for the same period in 2023 (17% increase) primarily due to an increase in the fees charged for operations and maintenance services.

Cost of Revenue—Depreciation

Nine Months Ended 
 September 30,
2023 2022 Change
(in thousands)
Cost of revenue—depreciation $ 92,262  $ 69,935  $ 22,327 

Cost of revenue—depreciation increased by $22.3 million in the nine months ended September 30, 2023 compared to the nine months ended September 30, 2022. This increase was primarily due to an increase in the weighted average number of systems (excluding systems with loan agreements, service-only agreements and cash sales) from approximately 124,200 for the nine months ended September 30, 2022 to approximately 161,000 for the nine months ended September 30, 2023. On a weighted average number of systems basis, cost of revenue—depreciation remained relatively flat at $563 per system for the nine months ended September 30, 2022 compared to $573 per system for the same period in 2023 (2% increase).

Cost of Revenue—Inventory Sales

Nine Months Ended 
 September 30,
2023 2022 Change
(in thousands)
Cost of revenue—inventory sales $ 129,016  $ 89,884  $ 39,132 

Cost of revenue—inventory sales increased by $39.1 million in the nine months ended September 30, 2023 compared to the nine months ended September 30, 2022. This increase was due to costs from the sale of inventory to our dealers or other parties, which began in April 2022.

Cost of Revenue—Other

Nine Months Ended 
 September 30,
2023 2022 Change
(in thousands)
Cost of revenue—other $ 81,599  $ 32,974  $ 48,625 

Cost of revenue—other increased by $48.6 million in the nine months ended September 30, 2023 compared to the nine months ended September 30, 2022. This increase was primarily due to costs related to services of $35.8 million and costs related to cash sales revenue of $10.1 million.

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Operations and Maintenance Expense

Nine Months Ended 
 September 30,
2023 2022 Change
(in thousands)
Operations and maintenance $ 59,306  $ 23,787  $ 35,519 

Operations and maintenance expense increased by $35.5 million in the nine months ended September 30, 2023 compared to the nine months ended September 30, 2022 primarily due to higher impairments and losses on disposals, truck roll costs and property insurance costs. Operations and maintenance expense per weighted average system, excluding net natural disaster losses and non-cash inventory and other impairments, increased from $131 per system for the nine months ended September 30, 2022 to $163 per system for the nine months ended September 30, 2023 primarily due to higher truck roll costs.

General and Administrative Expense

Nine Months Ended 
 September 30,
2023 2022 Change
(in thousands)
General and administrative $ 314,190  $ 214,362  $ 99,828 

General and administrative expense increased by $99.8 million in the nine months ended September 30, 2023 compared to the nine months ended September 30, 2022 primarily due to increases in (a) payroll and employee related expenses primarily due to the hiring of personnel to support growth of $51.1 million, (b) consultants, contractors and professional fees of $9.9 million, (c) depreciation expense of $7.2 million, (d) information technology expense of $7.0 million, (e) legal expense of $6.0 million, (f) marketing expense of $4.9 million, (g) fees of $4.6 million and (h) provision for current expected credit losses primarily due to the growth in loan customers of $2.6 million.

Other Operating Income

Nine Months Ended 
 September 30,
2023 2022 Change
(in thousands)
Other operating income $ (3,134) $ (4,186) $ 1,052 

Other operating income decreased by $1.1 million in the nine months ended September 30, 2023 compared to the nine months ended September 30, 2022 primarily due to changes in the fair value of certain financial instruments and contingent consideration.

Interest Expense, Net

Nine Months Ended 
 September 30,
2023 2022 Change
(in thousands)
Interest expense, net $ 200,155  $ 44,380  $ 155,775 

Interest expense, net increased by $155.8 million in the nine months ended September 30, 2023 compared to the nine months ended September 30, 2022. This increase was primarily due to an increase in interest expense of $111.0 million primarily due to higher levels of debt outstanding in 2023 compared to 2022, a decrease in unrealized gains on derivatives of $17.4 million and a decrease in realized gains on derivatives of $13.9 million.

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Interest Income

Nine Months Ended 
 September 30,
2023 2022 Change
(in thousands)
Interest income $ 81,670  $ 40,428  $ 41,242 

Interest income increased by $41.2 million in the nine months ended September 30, 2023 compared to the nine months ended September 30, 2022. This increase was primarily due to an increase in the weighted average number of systems with loan agreements from approximately 50,900 for the nine months ended September 30, 2022 to approximately 110,500 for the nine months ended September 30, 2023. On a weighted average number of systems basis, loan interest income decreased from $767 per system for the nine months ended September 30, 2022 to $633 per system for the nine months ended September 30, 2023 primarily due to an increase in the volume of accessory loans, which have smaller principal balances.

Income Tax Benefit

Income tax benefit increased by $1.6 million in the nine months ended September 30, 2023 compared to the nine months ended September 30, 2022 primarily due to ITC sales that resulted in an income tax benefit offset by an increase in taxable income related to tax gains recognized on the sale of solar energy systems and energy storage systems located in separate tax-reporting jurisdictions.

Net Income (Loss) Attributable to Redeemable Noncontrolling Interests and Noncontrolling Interests

Net income (loss) attributable to redeemable noncontrolling interests and noncontrolling interests changed by $109.7 million in the nine months ended September 30, 2023 compared to the nine months ended September 30, 2022 primarily due to an increase in loss attributable to noncontrolling interests from tax equity funds added in 2021, 2022 and 2023.

Liquidity and Capital Resources

As of September 30, 2023, we had total cash of $725.1 million, of which $467.9 million was unrestricted, and $312.2 million of available borrowing capacity under our various financing arrangements. We seek to maintain diversified and cost-effective funding sources to finance and maintain our operations, fund capital expenditures, including customer acquisitions, and satisfy obligations arising from our indebtedness, which may include reducing debt prior to scheduled maturities through debt repurchases, either in the open market or in privately negotiated transactions, through debt redemptions or tender offers, or through repayments of bank borrowings. For a discussion of cash requirements from contractual and other obligations, see Note 14, Commitments and Contingencies, to our interim financial statements included elsewhere in this Quarterly Report on Form 10-Q. Historically, our primary sources of liquidity have included non-recourse and recourse debt, investor asset-backed and loan-backed securitizations and cash generated from operations. Our business model requires substantial outside financing arrangements to grow the business and facilitate the deployment of additional solar energy systems. We will seek to raise additional required capital, including from new and existing tax equity investors, additional borrowings, securitizations and other potential debt and equity financing sources. We believe our cash and financing arrangements, as further described below, will be sufficient to meet our anticipated cash needs for at least the next twelve months. As of September 30, 2023, we were in compliance with all debt covenants under our financing arrangements.

As of September 30, 2023, our liquidity and financial condition had not been materially affected by the adverse developments affecting financial institutions and companies in the financial services industry, including Silicon Valley Bank and Credit Suisse. For a discussion of the potential impact of these adverse developments, see Item 1A. Risk Factors included elsewhere in this Quarterly Report on Form 10-Q.

Financing Arrangements

The following is an update to the description of our various financing arrangements. See "Management's Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Financing Arrangements" in our Annual Report on Form 10-K filed with the SEC on February 23, 2023 for a full description of our various financing arrangements.

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Tax Equity Fund Commitments

As of September 30, 2023, we had undrawn committed capital of approximately $199.3 million under our tax equity funds, which may only be used to purchase and install solar energy systems. In February 2023, a tax equity investor increased its capital commitment from approximately $30.0 million to approximately $125.0 million. In March 2023, a tax equity investor increased its capital commitment from approximately $41.0 million to approximately $51.3 million. In April 2023, two tax equity investors increased their capital commitment from approximately $200.0 million to approximately $207.8 million. In May 2023, we admitted a tax equity investor with a total capital commitment of approximately $51.0 million. In June 2023, a tax equity investor increased its capital commitment from approximately $150.0 million to approximately $250.0 million. In August 2023, we admitted a tax equity investor with a total capital commitment of approximately $104.0 million. In September 2023, we admitted a tax equity investor with a total capital commitment of approximately $134.9 million.

Warehouse and Other Debt Financings

In February 2023, we amended the revolving credit facility by and among EZOP, certain of our other subsidiaries party thereto, Atlas Securitized Products Holdings, L.P. (as successor to Credit Suisse AG, New York Branch), as agent, and the lenders and other financial institutions party thereto, to, among other things, (a) increase the aggregate commitment amount from $450.0 million to $675.0 million, (b) increase the uncommitted maximum facility amount from $575.0 million to $800.0 million, (c) amend certain provisions related to the allocation of certain payments made to the lenders, (d) amend certain provisions related to excess concentration limits and eligibility criteria to permit us and our affiliates to provide warranties of, and replacements for, load controllers and generators in connection with the related solar loan contracts and (e) add provisions to allow EZOP to request an increase in the aggregate commitment amount (subject to certain conditions) by adding additional lenders to the EZOP revolving credit facility. In February 2023, Credit Suisse AG ("Credit Suisse") sold a significant part of its Securitized Products Group (the "Credit Suisse Securitized Products Sale") to Apollo Global Management ("Apollo"). Subsequently, Apollo publicly announced the majority of the assets and professionals associated with the sale are now part of or managed by ATLAS SP Partners, a new stand-alone credit firm focused on asset-backed financing and capital markets solutions ("Atlas"). In March 2023, in connection with the Credit Suisse Securitized Products Sale, certain of our subsidiaries consented to the assignment of the loans and commitments of the Credit Suisse lenders to the Atlas lenders (such assignment, the "EZOP Assignment") under the EZOP revolving credit facility. In connection with the EZOP Assignment, Credit Suisse AG, New York Branch ("CSNYB") resigned as the agent under the EZOP revolving credit facility, Atlas Securitized Products Holdings, L.P. (the "Successor Agent") was appointed as the successor agent thereunder and, in connection with such appointment, the Successor Agent assumed the agent roles under the EZOP revolving credit facility. In connection with the appointment of Atlas as Successor Agent, the borrowers and the lenders party to the applicable agency resignation and appointment agreements consented to, among other things, Atlas' ability to assign the agent role under the EZOP revolving credit facility to one of its affiliates subject to certain conditions set forth therein. In March 2023, after the EZOP Assignment, we amended the EZOP revolving credit facility to, among other things, (a) increase the aggregate commitment amount from $675.0 million to $775.0 million, (b) increase the uncommitted maximum facility amount from $800.0 million to $900.0 million, (c) amend and supplement certain defaulting lender provisions and (d) update the references from CSNYB, the predecessor agent, to Atlas, the successor agent, and remove or modify certain provisions related to the borrowing, funding and allocation of payments among the previous lender syndicate (that previously included lenders affiliated with Credit Suisse that, prior to the date of the amendment to the EZOP revolving credit facility and pursuant to the EZOP Assignment, had assigned their loans and commitments to lenders affiliated with Atlas). In August 2023, we amended the EZOP revolving credit facility to, among other things, (a) increase the aggregate commitment amount from $775.0 million to $875.0 million, (b) increase the uncommitted maximum facility amount from $900.0 million to $1.0 billion, (c) extend the maturity date from November 2024 to November 2025 and (d) amend the Advance Rate (as defined therein). In October 2023, we amended the EZOP revolving credit facility to, among other things, reallocate commitments among the lenders.

In March 2023, in connection with the Credit Suisse Securitized Products Sale, certain of our subsidiaries consented to the assignment of the loans and commitments of the Credit Suisse lenders to the Atlas lenders (such assignment, the "TEPH Assignment") under the revolving credit facility by and among TEPH, certain of our other subsidiaries party thereto, Atlas Securitized Products Holdings, L.P. (as successor to CSNYB), as agent, and the lenders and other financial institutions party thereto. In connection with the TEPH Assignment, CSNYB resigned as the agent under the TEPH revolving credit facility, Atlas was appointed as the successor agent thereunder and, in connection with such appointment, the Successor Agent assumed the agent roles under the TEPH revolving credit facility. In connection with the appointment of Atlas as Successor Agent, the borrowers and the lenders party to the applicable agency resignation and appointment agreements consented to, among other things, Atlas' ability to assign the agent role under the TEPH revolving credit facility to one of its affiliates subject to certain conditions set forth therein.
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In March 2023, after the TEPH Assignment, we amended the TEPH revolving credit facility to, among other things, (a) increase the aggregate commitment amount from $600.0 million to $700.0 million, (b) increase the uncommitted maximum facility amount from $689.7 million to $789.7 million, (c) add provisions to allow TEPH to request an increase in the aggregate commitment amount (subject to certain conditions) by adding additional lenders to the TEPH revolving credit facility, (d) amend and supplement certain defaulting lender provisions, (e) modify the hedging provisions to give all hedge counterparties the benefit of certain payment priorities and certain other terms previously limited to qualifying hedge counterparties (as defined by the TEPH revolving credit facility), to extend the time period for the event of default resulting from hedge counterparties ceasing to be qualifying hedge counterparties and to make other hedge-related amendments, (f) update the references from CSNYB, the predecessor administrative agent, to Atlas, the successor administrative agent, and remove or modify certain provisions related to the borrowing, funding and allocation of payments among the previous lender syndicate (that previously included lenders affiliated with Credit Suisse that, prior to the date of the amendment to the TEPH revolving credit facility and pursuant to the TEPH Assignment, had assigned their loans and commitments to lenders affiliated with Atlas), (g) add European Union bail-in provisions and (h) add certain syndication-related provisions. In August 2023, we amended the TEPH revolving credit facility to, among other things, (a) increase the aggregate commitment amount from $700.0 million to $769.3 million, (b) increase the uncommitted maximum facility amount from $789.7 million to $859.0 million and (c) extend the maturity date from November 2024 to November 2025.

In March 2023, the AP8 revolving credit facility was amended to, among other things, increase the aggregate commitment amount from $75.0 million to $150.0 million. In June 2023, the revolving credit facility by and among AP8, certain of our other subsidiaries party thereto, Banco Popular de Puerto Rico, as agent, and the lenders and other financial institutions party thereto was amended to, among other things, increase the aggregate commitment amount from $150.0 million to $185.0 million. In August 2023, the AP8 revolving credit facility was amended to, among other things, increase the aggregate commitment amount from $185.0 million to $215.0 million. We believe we will be able to satisfy this obligation due in September 2024 through refinancing of the facility or alternatively through the use of our existing cash resources and liquidity.

In March 2023, Sunnova Inventory Supply, LLC, ("IS") entered into a secured revolving credit facility with Texas Capital Bank, as agent, and the lenders party thereto, for an aggregate commitment amount of $50.0 million with a maturity date of the earlier of (a) March 2026 and (b) six months from the latest maturity date of any material parent credit facility (defined as a parent credit facility with a commitment of $250.0 million or more that, if terminated could individually be expected to result in a liquidity event (as defined by the IS revolving credit facility)). The proceeds of the loans under the IS revolving credit facility are available to purchase or otherwise acquire certain accounts receivable and inventory, fund certain reserve accounts that are required to be maintained by IS in accordance with the revolving credit agreement and pay fees and expenses incurred in connection with the IS revolving credit facility. Interest on the borrowings under the IS revolving credit facility is due monthly. Borrowings under the IS revolving credit facility bear interest at an annual rate based on Term SOFR (as defined by the IS revolving credit facility).

In September 2023, AP9 entered into a secured revolving credit facility with Citibank, N.A., as administrative agent, and the lenders party thereto, for an aggregate commitment amount of $65.0 million with a maturity date of October 2027. Interest on the borrowings under the AP9 revolving credit facility is due monthly. Borrowings under the AP9 revolving credit facility bear interest at an annual rate based on either Term SOFR or a CP Yield Rate (as defined by the AP9 revolving credit facility).

Securitizations

In April 2023, one of our subsidiaries issued $300.0 million in aggregate principal amount of Series 2023-1 Class A solar asset-backed notes and $23.5 million in aggregate principal amount of Series 2023-1 Class B solar asset-backed notes (collectively, the "SOLV Notes") with a maturity date of April 2058. The SOLV Notes were issued at a discount of 5.01% and 11.63% for the Class A and Class B notes, respectively, and bear interest at an annual rate of 5.40% and 7.35% for the Class A and Class B notes, respectively.

In May 2023, one of our subsidiaries issued $174.9 million in aggregate principal amount of Series 2023-A Class A solar loan-backed notes, $80.1 million in aggregate principal amount of Series 2023-A Class B solar loan-backed notes and $31.7 million in aggregate principal amount of Series 2023-A Class C solar loan-backed notes (collectively, the "HELXI Notes") with a maturity date of May 2050. The HELXI Notes were issued at a discount of 2.57%, 5.31% and 13.56% for the Class A, Class B and Class C notes, respectively, and bear interest at an annual rate of 5.30%, 5.60% and 6.00% for the Class A, Class B and Class C notes, respectively.

In August 2023, one of our subsidiaries issued $148.5 million in aggregate principal amount of Series 2023-B Class A solar loan-backed notes, $71.1 million in aggregate principal amount of Series 2023-B Class B solar loan-backed notes and $23.1 million in aggregate principal amount of Series 2023-B Class C solar loan-backed notes with a maturity date of August 2050. The HELXII Notes were issued at a discount of 4.23%, 6.67% and 12.64% for the Class A, Class B and Class C notes, respectively, and bear interest at an annual rate of 5.30%, 5.60% and 6.00%, for the Class A, Class B and Class C notes, respectively.
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In April 2023, the DOE announced a conditional commitment to guarantee 90% of up to approximately $3.3 billion of certain of our future financing arrangements under its Innovative Clean Energy Loan Guarantee Program. The commitment is subject to various customary conditions. There is no assurance the DOE's conditional commitment will be fulfilled on the terms announced or at all or that the related guarantees will provide the anticipated benefits to us. In September 2023, we entered into a $3.0 billion partial loan guarantee agreement (the "Hestia Agreement") with the DOE to support certain loans originated by us. We anticipate the Hestia Agreement will support future loan originations, reduce our weighted average cost of capital and generate interest savings. Before the DOE issues loan guarantees under the Hestia Agreement, various customary conditions must be fulfilled. In October 2023, we entered into a note purchase agreement, which at closing will indirectly benefit from a partial guarantee provided by the DOE Loan Programs Office. The notes will not be directly guaranteed by the DOE. The offering consists of $219.6 million in aggregate principal amount of Series 2023-GRID1 Class A solar loan-backed notes and $24.4 million in aggregate principal amount of Series 2023-GRID1 Class B solar loan-backed notes with a maturity date of December 2050. The HESI Notes were issued at a discount of 2.46% and 9.40% for the Class A and Class B notes respectively, and bear interest at an annual rate of 5.75% and 8.25% for the Class A and Class B notes, respectively. The offering is expected to close in November 2023, subject to customary closing conditions.

Senior Notes

In September 2023, one of our subsidiaries issued and sold an aggregate principal amount of $400.0 million of 11.75% senior notes at a discount to the initial purchasers of approximately 2.74%, for an aggregate purchase price of approximately $389.0 million. The 11.75% senior notes mature in October 2028.

Public Offerings

In August 2023, we sold 5,865,000 shares of common stock at a public offering price of $14.75 per share. We received aggregate net proceeds of approximately $82.2 million, after deducting underwriting discounts and commissions of approximately $3.9 million and offering expenses of approximately $400,000.

Historical Cash Flows—Nine Months Ended September 30, 2023 Compared to Nine Months Ended September 30, 2022

The following table summarizes our cash flows for the periods indicated:

Nine Months Ended 
 September 30,
2023 2022 Change
(in thousands)
Net cash used in operating activities
$ (194,791) $ (265,795) $ 71,004 
Net cash used in investing activities
(1,891,769) (1,451,353) (440,416)
Net cash provided by financing activities
2,266,053  1,865,092  400,961 
Net increase in cash, cash equivalents and restricted cash
$ 179,493  $ 147,944  $ 31,549 

Operating Activities

Net cash used in operating activities decreased by $71.0 million in the nine months ended September 30, 2023 compared to the nine months ended September 30, 2022. This decrease is primarily due to a decrease in purchases of inventory and prepaid inventory of $176.2 million, offset by an increase in payments to dealers for exclusivity and other bonus arrangements of $21.4 million. This decrease is also due to net outflows of $78.3 million in 2023 compared to net inflows of $24.6 million in 2022 based on: (a) our net loss of $267.6 million in 2023 excluding non-cash operating items of $189.3 million, primarily from depreciation, impairments and losses on disposals, amortization of intangible assets, amortization of deferred financing costs and debt discounts, non-cash direct sales revenue, provision for current expected credit losses and other bad debt expense, unrealized net gains on derivatives, unrealized net losses on fair value instruments and equity securities and equity-based compensation charges, which results in net outflows of $78.3 million and (b) our net loss of $68.3 million in 2022 excluding non-cash operating items of $92.9 million, primarily from depreciation, impairments and losses on disposals, amortization of intangible assets, amortization of deferred financing costs and debt discounts, non-cash direct sales revenue, provision for current expected credit losses and other bad debt expense, unrealized net gains on derivatives, unrealized net gains on fair value instruments and equity-based compensation charges, which results in net inflows of $24.6 million. These net differences between the two periods resulted in a net change in operating cash flows of $102.9 million in 2023 compared to 2022.
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Investing Activities

Net cash used in investing activities increased by $440.4 million in the nine months ended September 30, 2023 compared to the nine months ended September 30, 2022. This increase is primarily due to an increase in purchases of property and equipment, primarily solar energy systems, of $677.6 million. This increase is partially offset by a decrease in payments for investments and customer notes receivable of $185.8 million and an increase in proceeds from customer notes receivable of $47.1 million.

Financing Activities

Net cash provided by financing activities increased by $401.0 million in the nine months ended September 30, 2023 compared to the nine months ended September 30, 2022. This increase is primarily due to increases in net contributions from our redeemable noncontrolling interests and noncontrolling interests of $274.6 million, net proceeds from the issuance of common stock of $84.7 million and net borrowings under our debt facilities of $28.0 million.

Seasonality

The amount of electricity our solar energy systems produce is dependent in part on the amount of sunlight, or irradiation, where the assets are located. Because shorter daylight hours in winter months and poor weather conditions due to cloud cover, rain or snow results in less irradiation, the output of solar energy systems will vary depending on the season or the year. While we expect seasonal variability to occur, the geographic diversity in our assets helps to mitigate our aggregate seasonal variability.

Our Easy Plan PPAs with variable billing, Solar 20/20 Plan Agreements and Fixed Rate Power Purchase Agreements are subject to seasonality because we sell all the solar energy system's energy output to the customer at either a fixed price per kWh or indexed, variable rate per kWh. Our Easy Plan PPAs with balanced billing are not subject to seasonality (from a cash flow perspective or the customer's perspective) within a given year because the customer's payments are levelized on an annualized basis so we insulate the customer from monthly fluctuations in production. In addition, energy production true-ups and production estimate adjustments for Easy Plan PPAs with balanced billing are calculated over an entire year. However, our Easy Plan PPAs with balanced billing are subject to seasonality from a revenue recognition perspective because, similar to the Easy Plan PPAs with variable billing, we sell all the solar energy system's energy output to the customer. Our lease agreements are not subject to seasonality within a given year because we lease the solar energy system to the customer at a fixed monthly rate and the reference period for any production guarantee payments is a full year. Finally, our loan agreements are not subject to seasonality within a given year because the monthly installment payments for the financing of the customers' purchase of the solar energy system are fixed and the reference period for any production guarantee is a full year.

In addition, weather may impact our dealers' ability to install solar energy systems and energy storage systems. For example, the ability to install solar energy systems and energy storage systems during the winter months in the Northeastern U.S. is limited. This can impact the timing of when solar energy systems and energy storage systems can be installed and when we can acquire and begin to generate revenue from solar energy systems and energy storage systems.

Critical Accounting Policies and Estimates

Our discussion and analysis of our financial condition and results of operations is based upon our interim financial statements, which have been prepared in accordance with GAAP, which requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenue, expenses, cash flows and related disclosures. We base our estimates on historical experience and on various other assumptions we believe to be reasonable under the circumstances. In many instances, we could have reasonably used different accounting estimates, and in other instances, changes in the accounting estimates are reasonably likely to occur from period-to-period. Actual results may differ from these estimates. Our future financial statements will be affected to the extent our actual results materially differ from these estimates. For further information on our significant accounting policies, see Note 2, Significant Accounting Policies, in our Annual Report on Form 10-K filed with the SEC on February 23, 2023 and Note 2, Significant Accounting Policies, to our interim financial statements included elsewhere in this Quarterly Report on Form 10-Q.

We identify our most critical accounting policies as those that are the most pervasive and important to the portrayal of our financial position and results of operations, and that require the most difficult, subjective, and/or complex judgments by management regarding estimates about matters that are inherently uncertain. We believe the assumptions and estimates associated with our principles of consolidation, the valuation of assets acquired and liabilities assumed in acquisitions, the estimated useful life of our solar energy systems, the valuation of the removal assumptions, including costs, associated with AROs, the valuation of redeemable noncontrolling interests and noncontrolling interests and our allowance for current expected credit losses have the greatest subjectivity and impact on our interim financial statements.
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Therefore, we consider these to be our critical accounting policies and estimates. There have been no material changes to our critical accounting policies and estimates as described in our Annual Report on Form 10-K.

Recent Accounting Pronouncements

See Note 2, Significant Accounting Policies, to our interim financial statements included elsewhere in this Quarterly Report on Form 10-Q.

Item 3. Quantitative and Qualitative Disclosures About Market Risk.

We are exposed to various market risks in the ordinary course of our business. Market risk is the potential loss that may result from market changes associated with our business or with an existing or forecasted financial or commodity transaction. Our primary exposure includes changes in interest rates because certain borrowings bear interest at floating rates based on SOFR or a similar index plus a specified margin. We sometimes manage our interest rate exposure on floating-rate debt by entering into derivative instruments to hedge all or a portion of our interest rate exposure on certain debt facilities. We do not enter into any derivative instruments for trading or speculative purposes. Changes in economic conditions could result in higher interest rates, thereby increasing our interest expense and operating expenses and reducing funds available to capital investments, operations and other purposes. A hypothetical 10% increase in our interest rates on our variable-rate debt facilities would have increased our interest expense by $3.4 million and $8.5 million for the three and nine months ended September 30, 2023, respectively.

Item 4. Controls and Procedures.

Internal Control Over Financial Reporting

Evaluation of Disclosure Controls and Procedures

We carried out an evaluation, under the supervision and with the participation of our management, including our Chief Executive Officer ("CEO") and our Chief Financial Officer ("CFO"), of the effectiveness of our disclosure controls and procedures as of the end of the period covered by this Quarterly Report on Form 10-Q, pursuant to Rules 13a-15(e) and 15d-15(e) under the Exchange Act. In connection with that evaluation, our CEO and our CFO concluded our disclosure controls and procedures were effective and designed to provide reasonable assurance the information required to be disclosed is recorded, processed, summarized and reported within the time periods specified in the SEC's rules and forms as of September 30, 2023, and that such information is accumulated and communicated to our management, including our CEO and CFO, as appropriate to allow timely decisions regarding required disclosures. The term "disclosure controls and procedures", as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act, means controls and other procedures of a company that are designed to ensure information required to be disclosed by a company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the SEC's rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure information required to be disclosed by a company in the reports it files or submits under the Exchange Act is accumulated and communicated to the company's management, including its principal executive and principal financial officers, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure. Management recognizes any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving their objectives and management necessarily applies its judgment in evaluating the cost-benefit relationship of possible controls and procedures.

Changes in Internal Control over Financial Reporting

There was no change in our internal control over financial reporting that occurred during the third quarter of 2023 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

Limitations on Effectiveness of Controls and Procedures

Our disclosure controls and procedures are designed to provide reasonable assurance of achieving their objectives as specified above. However, our management, including our principal executive and principal financial officers, does not expect that our disclosure controls and procedures will prevent or detect all error and fraud. Any control system, no matter how well designed and operated, is based upon certain assumptions and can provide only reasonable, not absolute, assurance that its objectives will be met.
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Further, no evaluation of controls can provide absolute assurance that misstatements due to error or fraud will not occur or that all control issues and instances of fraud, if any, within our company have been detected.

PART II - OTHER INFORMATION

Item 1. Legal Proceedings.

Although we may, from time to time, be involved in litigation, claims and government proceedings arising in the ordinary course of business, we are not a party to any litigation or governmental or other proceeding we believe will have a material adverse impact on our financial position, results of operations or liquidity. In the ordinary course of business, we have disputes with dealers and customers. In general, litigation claims or regulatory proceedings can be expensive and time consuming to bring or defend against, may result in the diversion of management attention and resources from our business and business goals and could result in settlement or damages that could significantly affect financial results and the conduct of our business.

Item 1A. Risk Factors.

There have been no material changes in the risks facing us as described in our Annual Report on Form 10-K filed with the SEC on February 23, 2023 except as described below.

Adverse developments affecting the financial services industry, such as actual events or concerns involving liquidity, defaults, or non-performance by financial institutions or transactional counterparties, could adversely impact our business, financial condition and results of operations.

Actual events involving limited liquidity, defaults, non-performance or other adverse developments that affect financial institutions or other companies in the financial services industry or the financial services industry generally, or concerns or rumors about any events of these kinds or other similar risks, have in the past and may in the future lead to market-wide liquidity problems. For example, in March 2023, Silicon Valley Bank ("SVB") was closed by the California Department of Financial Protection and Innovation, which appointed the Federal Deposit Insurance Corporation as receiver. Similarly, in March 2023, Signature Bank and Silvergate Capital Corp. were each swept into receivership. Further, uncertainty remains over liquidity concerns in the broader financial services industry, including for example in the case of First Republic Bank and Credit Suisse ("CS") during March 2023. In March 2023, CS agreed to be acquired by UBS following the intervention of the Swiss Federal Department of Finance, the Swiss National Bank and the Swiss Financial Market Supervisory Authority. While we have no deposits with CS or SVB, we continue to have ongoing relationships with both banks. CS was the primary lender and agent for our EZOP and TEPH revolving credit facilities until March 2023; and CS was and remains an interest rate counterparty. SVB and its successor, Silicon Valley Bridge Bank ("SVBB") were and are lenders of our TEPH revolving credit facility. To date, CS and SVBB have performed their obligations to us and have been responsive to our requests, although there can be no assurances such performance will continue in the future.

We maintain deposits at financial institutions as a part of doing business that could be at risk if another similar event were to occur. Our ongoing cash management strategy is to maintain the majority of our deposit accounts in large "money center" financial institutions, but there can be no assurance this strategy will be successful. Increasing concerns regarding the U.S. or international financial systems, including bank failures and bailouts, and their potential broader effects and potential systemic risk on the banking sector generally, may adversely affect our access to capital. Any decline in available funding or access to our cash and liquidity resources could, among other risks, limit our ability to meet our capital needs and fund future growth or fulfill our other obligations, or result in breaches of our financial and/or contractual obligations. Any of these impacts, or any other impacts resulting from the factors described above or other related or similar factors not described above, could have material adverse impacts on our business, financial condition and results of operations.

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds.

Not applicable.

Item 3. Defaults Upon Senior Securities.

Not applicable.

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Item 4. Mine Safety Disclosures.

Not applicable.

Item 5. Other Information.

Bylaws Amendment and Restatement

On October 25, 2023, our Board of Directors adopted amendments to our bylaws, effective as of such date of adoption (the "Amended and Restated Bylaws"). The Amended and Restated Bylaws, among other things, provide for reasonable steps to ensure the list of stockholders entitled to vote at a meeting would be made available electronically only to stockholders before the meeting (Section 1.5), address the adjournment of stockholders meetings (Section 1.7), clarify that, in relation to an action at a stockholder meeting, abstentions and broker non-votes will not be considered votes cast in determining the outcome of a matter (Section 1.9) and update the provisions regarding the obligations of a stockholder who intends to propose certain business or nominations of persons for the election of directors before a meeting of stockholders, including deadlines and obligations to provide and update information and representations, and to comply with applicable rules regarding the solicitation of proxies (including Rule 14a-19 under the Securities Exchange Act of 1934) (Section 1.10).

The foregoing summary of the Amended and Restated Bylaws is qualified in its entirety by reference to the full text of the Amended and Restated Bylaws attached to this report as Exhibit 3.2 in unmarked form, and as Exhibit 3.3 to this report in redline form marking the amendments as described above, and are incorporated herein by reference.

10b5-1 Plans

During the three months ended September 30, 2023, there were no "Rule 10b5-1 trading plans" or "non-Rule 10b5-1 trading arrangements" adopted, modified or terminated by any of our directors or officers (as each term is defined in Item 408(a) of Regulation S-K).
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PART IV

Item 6. Exhibits.

Exhibit No.
Description
2.1
2.2
3.1
3.2
3.3
4.1∞
4.2
4.3
4.4
4.5
4.6
10.1∞
10.2∞
10.3∞
10.4∞
10.5∞
31.1
31.2
32.1
32.2
101.INS XBRL Instance Document - the instance document does not appear in the Interactive Data File because its tags are embedded within the inline XBRL document.
101.SCH
XBRL Taxonomy Extension Schema Linkbase Document.
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Exhibit No.
Description
101.CAL
XBRL Taxonomy Extension Calculation Linkbase Document.
101.DEF
XBRL Taxonomy Extension Definition Linkbase Document.
101.LAB
XBRL Taxonomy Extension Label Linkbase Document.
101.PRE
XBRL Taxonomy Extension Presentation Linkbase Document.
104
Cover Page Interactive Data File (embedded within the inline XBRL document).
__________________
∞    Portions of this exhibit have been omitted in accordance with Items 601(a)(5) and 601(b)(10) of Regulation S-K. We agree to furnish a copy of any omitted schedule or exhibit to the SEC upon request.

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

SUNNOVA ENERGY INTERNATIONAL INC.
Date: October 26, 2023 By: /s/ William J. Berger
William J. Berger
Chief Executive Officer and Director
(Principal Executive Officer)

Date: October 26, 2023 By: /s/ Robert L. Lane
Robert L. Lane
Chief Financial Officer
(Principal Financial Officer)

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EX-3.2 2 exhibit32-thirdarbylaws.htm EX-3.2 Document
Exhibit 3.2
THIRD AMENDED AND RESTATED BYLAWS

OF

SUNNOVA ENERGY INTERNATIONAL, INC.

(Adopted on October 25, 2023)



TABLE OF CONTENTS
Page
ARTICLE I STOCKHOLDERS
1.1    Place of Meetings
1.2    Annual Meeting
1.3    Special Meetings
1.4    Notice of Meetings
1.5    Voting List
1.6    Quorum
1.7    Adjournments
1.8    Proxies
1.9    Action at Meeting
1.10    Advance Notice Procedures
1.11    Conduct of Meetings; Inspectors of Election
ARTICLE II DIRECTORS
2.1    General Powers
2.2    Number, Election, Term and Qualification
2.3    Chairperson of the Board
2.4    Lead Independent Director
2.5    Quorum
2.6    Action at Meeting
2.7    Removal
2.8    Newly Created Directorships; Vacancies
2.9    Resignation
2.10    Regular Meetings
2.11    Special Meetings
2.12    Notice of Special Meetings
2.13    Meetings by Conference Communications Equipment
2.14    Action by Consent
2.15    Committees
2.16    Compensation of Directors
ARTICLE III OFFICERS
3.1    Titles
3.2    Election
3.3    Qualification
3.4    Tenure
3.5    Resignation and Removal
3.6    Vacancies
3.7    President; Chief Executive Officer
3.8    Chief Financial Officer
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3.9    Vice Presidents
3.10    Secretary and Assistant Secretaries
3.11    Treasurer and Assistant Treasurers
3.12    Salaries
3.13    Delegation of Authority
ARTICLE IV CAPITAL STOCK
4.1    Stock Certificates; Uncertificated Shares
4.2    Transfers
4.3    Lost, Stolen or Destroyed Certificates
4.4    Record Date
4.5    Regulations
ARTICLE V GENERAL PROVISIONS
5.1    Fiscal Year
5.2    Corporate Seal
5.3    Waiver of Notice
5.4    Voting of Securities
5.5    Evidence of Authority
5.6    Certificate of Incorporation
5.7    Severability
5.8    Pronouns
ARTICLE VI AMENDMENTS
ARTICLE VII INDEMNIFICATION AND ADVANCEMENT
7.1    Power to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Corporation
7.2    Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation
7.3    Authorization of Indemnification
7.4    Right of Claimant to Bring Suit
7.5    Expenses Payable in Advance
7.6    Nonexclusivity of Indemnification and Advancement of Expenses
7.7    Insurance
7.8    Certain Definitions
7.9    Survival of Indemnification and Advancement of Expenses
7.10    Limitation on Indemnification
7.11    Contract Rights
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ARTICLE I
STOCKHOLDERS
1.1Place of Meetings. All meetings of stockholders shall be held at such place, if any, as may be designated from time to time by the Board of Directors (the “Board”) of Sunnova Energy International Inc. (the “Corporation”), the Chairperson of the Board or the Chief Executive Officer or, if not so designated, at the principal office of the Corporation. The Board may, in its sole discretion, determine that a meeting shall not be held at any place, but may instead be held solely by means of remote communication in accordance with Section 211(a)(2) of the General Corporation Law of the State of Delaware (the “DGCL”).
1.2Annual Meeting. The annual meeting of stockholders for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly be brought before the meeting in accordance with these Bylaws shall be held on a date and at a time designated by the Board, the Chairperson of the Board or the Chief Executive Officer. The Board or the chairperson of the meeting may postpone, recess, reschedule or cancel any previously scheduled annual meeting of stockholders at any time, before or after the notice for such meeting has been sent to the stockholders.
1.3Special Meetings. Special meetings of stockholders for any purpose or purposes may be called only in the manner provided in the Certificate of Incorporation. The Board or the chairperson of the meeting may postpone, recess, reschedule or cancel any previously scheduled special meeting of stockholders at any time, before or after the notice for such meeting has been sent to the stockholders. Business to be conducted at a special meeting of stockholders shall be limited to the purposes stated in the notice of meeting. Nothing contained in this Section 1.3 shall be construed as limiting, fixing or affecting the time when a meeting of stockholders called by action of the Board may be held.
1.4Notice of Meetings. Except as otherwise provided by law, notice of each meeting of stockholders, whether annual or special, shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting as of the record date for determining the stockholders entitled to notice of the meeting. Without limiting the manner by which notice otherwise may be given to stockholders, any notice to stockholders given by the Corporation shall be effective if given by electronic transmission in accordance with applicable law. The notices of all meetings shall state the place, if any, date and time of the meeting, the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, and the record date for determining the stockholders entitled to vote at the meeting (if such date is different from the record date for stockholders entitled to notice of the meeting). The notice of a special meeting shall state, in addition, the purpose or purposes for which the meeting is called. If notice is given by mail, such notice shall be deemed given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the Corporation. If notice is given by electronic transmission, such notice shall be deemed given at the time specified in Section 232 of the DGCL.





1.5Voting List. The Corporation shall prepare, no later than the tenth (10th) day before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting (provided, however, if the record date for determining the stockholders entitled to vote is less than ten (10) days before the date of the meeting, the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date), arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting for a period of at least ten (10) days prior to the meeting: (a) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (b) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. Except as otherwise provided by law, such list shall presumptively determine the identity of the stockholders entitled to examine the list of stockholders required by this Section 1.5 and vote at the meeting and the number of shares held by each of them. To the fullest extent permitted by applicable law, the failure to comply with any requirements of this Section 1.5 shall not affect the validity of any action taken at such meeting.
1.6Quorum. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, at each meeting of stockholders the presence of the holders of a majority in voting power of the shares of the capital stock of the Corporation issued and outstanding and entitled to vote at the meeting, present in person or represented by proxy, shall constitute a quorum for the transaction of business; provided, however, that where a separate vote by a class or classes or series of capital stock is required by law or the Certificate of Incorporation, the holders of a majority in voting power of the shares of such class or classes or series of the capital stock of the Corporation issued and outstanding and entitled to vote on such matter, present in person or represented by proxy, shall constitute a quorum with respect to the vote on such matter. A quorum, once established at a meeting, shall not be broken by the withdrawal of enough votes to leave less than a quorum.
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1.7Adjournments. Any meeting of stockholders, annual or special, may be adjourned from time to time (including adjourning to address a technical failure to convene or continue a meeting using remote communication), whether or not there is a quorum, to reconvene at any other time and to the same or some other place by the Board, the chairperson of the meeting or, if directed to be voted on by the chairperson of the meeting, by the stockholders present in person or represented by proxy at the meeting and entitled to vote thereon, although less than a quorum. It shall not be necessary to notify any stockholder of any adjournment of less than 30 days if the time and place of the adjourned meeting, and the means of remote communication, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting, (i) are announced at the meeting at which adjournment is taken, (ii) displayed, during the time scheduled for the meeting, on the same electronic network used to enable stockholders to participate in the meeting by means of remote communication, or (iii) set forth in the notice of meeting given in accordance with Section 1.4, unless after the adjournment a new record date is fixed for the adjourned meeting. If the adjournment is for more than thirty (30) days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for determination of stockholders entitled to vote is fixed for the adjourned meeting, the Board shall fix as the record date for determining stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote at the adjourned meeting, and shall give, in accordance with Section 1.4, notice of the adjourned meeting to each stockholder of record as of the record date so fixed for notice of such adjourned meeting. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting.

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1.8Proxies. Each stockholder of record entitled to vote at a meeting of stockholders may authorize another person or persons to vote for such stockholder by proxy. Any copy, facsimile transmission or other reliable reproduction of the document authorizing a person to vote by proxy may be substituted or used in lieu of the original document for any and all purposes for which the original document could be used; provided that such copy, facsimile transmission or other reproduction shall be a complete reproduction of the entire document. Any electronic transmission authorizing a person to vote by proxy must set forth or be submitted with information from which it can be determined that the transmission was authorized by the stockholder. No such proxy shall be voted upon after three (3) years from its date unless the proxy provides for a longer period.
1.9Action at Meeting. When a quorum is present at any meeting, any matter other than the election or re-election of directors to be voted upon by the stockholders at such meeting shall be decided by a majority of the votes cast by the holders of all of the shares of stock present in person or represented by proxy at the meeting and voting affirmatively or negatively on such matter (or if one or more class, classes or series of stock are entitled to vote as a separate class or series, then a majority of the votes cast by the holders of the shares of stock of such class, classes or series entitled to vote as a separate class or series present in person or represented by proxy at the meeting and voting affirmatively or negatively on such matter), except when a different vote is required by express provision of applicable law, regulation applicable to the Corporation or its securities, the rules or regulations of any stock exchange applicable to the Corporation, the Certificate of Incorporation or these Bylaws, in which case such express provision shall govern. Abstentions and broker non-votes, if any, will not be considered votes cast in determining the vote outcome. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect directors.

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1.10Advance Notice Procedures.
(a)Nomination of Directors at Annual Meetings.
(i)Except for any directors entitled to be elected by the holders of Preferred Stock, only persons who are nominated in accordance with the procedures in this Section 1.10 shall be eligible for election or re-election as directors. Nomination for election or re-election to the Board at an annual meeting of stockholders may be made only (A) pursuant to the Corporation’s notice of meeting (or any supplement thereto), (B) by or at the direction of the Board or any duly authorized committee thereof or (C) by a stockholder of the Corporation who (1) timely complies in proper form in writing with the notice procedures in Section 1.10(a), (2) is a stockholder of record on the date of the giving of notice to the Secretary of the Corporation required by this Section 1.10(a), on the record date for the determination of stockholders entitled to notice of the annual meeting and on the record date for the determination of stockholders entitled to vote at such meeting and (3) is entitled to vote at such meeting upon such election or re-election of directors. For any nominations to be properly brought before an annual meeting by a stockholder pursuant to clause (C) of this Section 1.10(a)(i), the stockholder must have given timely notice thereof in proper form, and must timely provide any updates and supplements to such notice thereof, in writing to the Secretary of the Corporation at such times and in such forms provided by this Section 1.10(a).
(ii)To be timely, a stockholder’s notice required by Section 1.10(a)(i)(C) must be received by the Secretary at the principal executive offices of the Corporation not later than 5:00 p.m., Eastern Time on the ninetieth (90th) day, nor earlier than 8:00 a.m., Eastern Time on the one hundred twentieth (120th) day, prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is scheduled for a date that is more than thirty (30) days before or more than seventy (70) days after such anniversary date or in the event that no annual meeting of stockholders was held in the previous year, notice by the stockholder to be timely must be so received not earlier than 8:00 a.m., Eastern Time on the one hundred twentieth (120th) day prior to the date of such annual meeting and not later than 5:00 p.m. Eastern Time on the later of (A) the ninetieth (90th) day prior to the date of such annual meeting and (B) the tenth (10th) day following the day on which public announcement of the date of such meeting is first made by the Corporation. In no event shall any adjournment, recess, cancellation, rescheduling or postponement of an annual meeting or the public announcement thereof commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.
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(iii)To be in proper form for purposes of this Section 1.10(a), a stockholder’s notice to the Secretary must set forth:
(A)as to each person whom the stockholder proposes to nominate for election or re-election as a director (1) the name, age, business address and residence address of the nominee, (2) the principal occupation or employment of the nominee, (3) any undisclosed Voting Commitments (as defined below) or other undisclosed arrangements with respect to the nominee’s actions as a director, (4) whether the nominee (w) is or has been, within the past three (3) years, an officer, director, or employee of a competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914, as amended, (x) is or has been, within the past three (3) years, an officer, director, or employee of the stockholder nominating such nominee, (y) is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) or has previously been convicted in a criminal proceeding (excluding traffic violations and other minor offenses), or (z) is subject to any order of the type specified in Rule 506(d) (or any successor provision) of Regulation D promulgated under the Securities Act of 1933, as amended, (5) all information relating to such nominee that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election or re-election of directors in an election contest, or is otherwise required, in each case pursuant to Section 14(a) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”), (6) a reasonably detailed description of all direct and indirect compensatory, payment or other financial agreements, arrangements and understandings (whether written or oral) during the past three (3) years that such nominee has with any other person or entity other than the Corporation including the amount of any payment or payments received or receivable thereunder, in each case in connection with candidacy or service as a director of the Corporation, and any other material relationships during the past three (3) years, including financial transactions and compensation, between or among such stockholder, such beneficial owner, and any of their respective affiliates or associates, on the one hand, and such proposed nominee and any of his or her respective affiliates and associates, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the stockholder making the nomination and any beneficial owner on whose behalf the nomination is made, if any, or any of their respective affiliates and associates, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (7) a statement confirming that the nominee intends to tender the advance resignations described in Section 1.10(a)(v) of these Bylaws, (8) a completed and signed questionnaire, a signed consent and a signed representation and agreement as required by Section 1.10(a)(vi), and (9) all information with respect to such nominee that would be required to be set forth in a stockholder’s notice pursuant to this Section 1.10 if such nominee were the stockholder giving notice hereunder (the information required by this Section 1.10(a)(iii)(A) is referred to herein as the “Nominee Information”); and
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(B)as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination is made (1) the name and address of such stockholder, as they appear on the Corporation’s books, and of the beneficial owner, if any, on whose behalf the proposal is being made, (2) a description of (v) the class or series and number of shares of each such class or series of capital stock of the Corporation which are, directly or indirectly, owned beneficially (within the meaning of Rule 13d-3 under the Exchange Act) or of record by such stockholder, such beneficial owner, and their respective affiliate and associates (provided, that such stockholder and the beneficial owner, if any, on whose behalf the nomination is made shall in all events be deemed to beneficially own any shares of any class or series and number of shares of capital stock of the Corporation as to which such stockholder or beneficial owner, if any, has a right to acquire beneficial ownership at any time in the future), (w) all Derivative Transactions (as defined below), whether or not subject to settlement in underlying shares of capital stock of the Corporation or otherwise, by such stockholder, the beneficial owner, if any, or any of their respective affiliates or associates during the previous six (6) month period, including the date of the transactions and the class, series and number of securities involved in, and the material economic terms of, such Derivative Transactions, (x) any proportionate interest in capital stock of the Corporation or Derivative Transactions held by a general or limited partnership in which such stockholder is a general partner or beneficially owns an interest in a general partner of such general or limited partnership, (y) any significant equity interests or any Derivative Transactions in any principal competitor of
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the Corporation held by such stockholder, such beneficial owner, or any of their respective affiliates or associates, and (z) any direct or indirect interest of such stockholder, such beneficial owner, and their respective affiliates or associates in any contract with the Corporation, any affiliate of the Corporation, or any principal competitor of the Corporation (including, in any such case, any employment agreement, collective bargaining agreement, or consulting agreement), (3) a description of any agreement, arrangement or understanding (whether written or oral) with respect to the nomination between or among such stockholder, the beneficial owner, if any, on whose behalf the nominations are proposed and each proposed nominee and any of their respective affiliates or associates, on the one hand, and any other person, on the other hand (which description shall identify the name of each other person who is party to such an agreement, arrangement, or understanding), (4) a description of any agreement, arrangement, or understanding (whether written or oral) between the stockholder or the beneficial owner, if any, and their respective affiliates or associates, on the one hand, and any other person or persons, on the other hand (including their names) entered into (v) for the purposes of acquiring, holding, voting (except, in the case of a meeting of stockholders of the Corporation, pursuant to a revocable proxy given to such person in response to a public proxy solicitation made generally by such person to all stockholders entitled to vote at the meeting), or disposing of any capital stock of the Corporation, (x) to cooperate in obtaining, changing, or influencing the control of the Corporation (except independent financial, legal, and other advisors acting in the ordinary course of their respective businesses), (y) with the effect or intent of increasing or decreasing the voting power of, or that contemplates any person voting together with, the stockholder or beneficial owner, if any, with respect to any capital stock of the Corporation, or (z) otherwise in connection with the proposed nominations, including with respect to such stockholder’s notice; (5) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting upon such nomination and that such stockholder or a qualified representative of the stockholder intends to appear in person at the meeting to nominate the person or persons specified in the notice, (6) a representation as to whether the such stockholder, the beneficial owner, if any, and/or any of their respective affiliates or associates intends or is part of a group which intends (x) to deliver a proxy statement and/or form of proxy to stockholders in accordance with Rule 14a-19 (or any successor provision) of the Exchange Act, (y) to solicit proxies or votes from stockholders in support of such nomination in accordance with Rule 14a-19 (or any successor provision) of the Exchange Act (and such representation shall be included in any such solicitation materials), or (z) to engage in a solicitation (within the meaning of Exchange Act Rule 14a-1(1) (or any successor provision)) with respect to the nomination, and if so, the name of each participant (as defined in Item 4 of Schedule 14A under the Exchange Act) in such solicitation, (7) all information that would be required to be set forth in a Schedule 13D filed pursuant to Rule 13d-1(a) under the Exchange Act or an amendment pursuant to Rule 13d-2(a) under the Exchange Act if such a statement were required to be filed under the Exchange Act by such stockholder, such beneficial owner, and their respective affiliates or associates, (8) any other information relating to such stockholder, the beneficial owner, if any, and any of their respective affiliates or associates, if any, required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in an election contest pursuant to Section 14(a) of the Exchange Act, (9) a description of any proxy (other than a revocable proxy given in response to a public proxy solicitation made pursuant to, and in accordance with, the Exchange Act), contract, agreement, arrangement, understanding (whether written or oral), or relationship pursuant to which such stockholder, such beneficial owner, or any of their respective affiliates or associates has or shares a right to vote any shares of any class or series of capital stock of the Corporation, and (10) the names and addresses of other stockholders (including beneficial and record owners) known by the stockholder to support the proposed nominations to be brought before the meeting, and to the extent known, the number of shares of capital stock of the Corporation owned beneficially or of record by such other stockholders.
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The Corporation may require (A) a stockholder making the nomination and the beneficial owner, if any, on whose behalf the nomination is being made, to furnish, within five (5) business days after the information is requested, such other information as may reasonably be required to facilitate disclosure to stockholders of all material facts that, in the reasonable discretion of the Corporation, are relevant for stockholders to make an informed decision on any proposed nominee, including information regarding any of their respective associates and affiliates or any other person; and (B) any proposed nominee to furnish, within five (5) business days after the information is requested, such other information as the Corporation may reasonably require to determine the eligibility of such proposed nominee to serve as a director, including, but not limited to, such other information as may be reasonably required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could reasonably be expected to be material to a stockholders’ understanding of whether such nominee would be independent under applicable Securities and Exchange Commission and stock exchange rules and the Corporation’s publicly disclosed corporate governance guidelines, as applicable.
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A stockholder’s notice to the Secretary shall further confirm the stockholder’s agreement to use a proxy card or written ballot card color other than white, which color the stockholder agrees will be reserved for the Corporation’s exclusive use.
(iv)In addition, to be timely and in proper written form, a stockholder’s notice to the Secretary must further be updated and supplemented by such stockholder, if necessary, so that the information provided or required to be provided in such notice shall be true and correct as of the record date for the meeting and as of the date that is ten (10) days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to the Secretary at the principal executive offices of the Corporation by hand or by certified mail, return receipt requested, not later than 5:00 p.m. Eastern Time on the fifth (5th) day after the record date for the meeting in the case of the update and supplement required to be made as of the record date, and not later than 5:00 p.m. Eastern Time on the eighth (8th) day prior to the date for the meeting or any adjournment or postponement thereof in the case of the update and supplement required to be made as of ten (10) days prior to the meeting or any adjournment or postponement thereof. For the avoidance of doubt, the obligation to update and supplement as set forth in this paragraph or any other Section of these Bylaws shall not limit the Corporation’s rights with respect to any deficiencies in any notice provided by a stockholder, extend any applicable deadlines under these Bylaws, or enable or be deemed to permit a stockholder who has previously submitted a notice under these Bylaws to amend or update any proposal or to submit any new proposal, including by changing or adding matters, business, and/or resolutions proposed to be brought before a meeting of stockholders and no such update or supplement shall cure or affect the accuracy (or inaccuracy) of any representations made by any stockholder or the validity (or invalidity) of any proposed business that failed to comply with this Section 1.10(a) or is rendered invalid as a result of any inaccuracy therein.
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(v)Any notice with respect to the nominations of persons for election or re-election to the Board shall be accompanied by a letter of resignation signed by each nominee, which letter shall specify that such resignation is irrevocable and that it shall become effective upon a determination by the Board (excluding, for purposes of such determination, such nominee) that (A) any of the information provided to the Corporation by a stockholder or the stockholder’s nominee in respect of the nomination of the nominee pursuant to Section 1.10(a) is or was untrue in any material respect (or omitted to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading) or (B) the nominee or the stockholder shall have breached its obligations under Section 1.10.
(vi)To be eligible to be a nominee by a stockholder for election or re-election as a director, the proposed nominee must deliver to the Secretary at the principal executive offices of the Corporation’s, in accordance with the time periods and methods prescribed for in Section 1.10 for delivery of notice (A) a written questionnaire with respect to the background and qualification of such proposed nominee (in the form of questionnaire to be provided by the Secretary upon written request); (B) a written consent to serve as a director if elected; and (C) a written representation and agreement (in the form to be provided by the Secretary upon written request) that such proposed nominee (1) intends to serve as a director for the full term for which such person is standing for election; (2) is not and will not become a party to (I) any agreement, arrangement, or understanding (whether written or oral) with, and has not given any commitment or assurance to, any person or entity as to how such proposed nominee, if elected as a director, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation in writing or (II) any Voting Commitment that could limit or interfere with such proposed nominee’s ability to comply with such proposed nominee’s fiduciary duties under applicable law, if elected as a director; (3) except as disclosed to the Corporation in writing, (I) is not and will not become a party to any agreement, arrangement, or understanding (whether written or oral) with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement, indemnification, or other payment in connection with candidacy or service as a director and (II) has not received any such compensation or other payment from any person or entity other than the Corporation in connection with candidacy or service as a director of the Corporation; and (4) would be in compliance, if elected as a director, and will comply with all applicable laws and stock exchange listing standards, the applicable provisions of these Bylaws, and all publicly disclosed corporate governance, ethics, conflict of interest, confidentiality, and stock ownership and trading policies and guidelines of the Corporation applicable to directors.
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(vii)Notwithstanding anything in the first sentence of Section 1.10(a)(ii) to the contrary, in the event that the number of directors to be elected to the Board at the annual meeting is increased effective after the time period for which nominations would otherwise be due under Section 1.10(a)(ii) and there is no public announcement by the Corporation naming the nominees for the additional directorships at least one hundred (100) days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required by this Section 1.10(a) shall also be considered timely, but only with respect to nominees for the additional directorships (and subject to providing any updates or supplements to such notice at such times and in such forms provided by this Section 1.10(a)), if it shall be received by the Secretary at the principal executive offices of the Corporation not later than 5:00 p.m. Eastern Time on the tenth (10th) day following the day on which the Corporation first makes a public announcement of the date of such meeting. The number of nominees a stockholder may nominate for election at an annual meeting of stockholders on its own behalf (or in the case of one or more stockholders giving the notice on behalf of a beneficial owner, the number of nominees such stockholders may collectively nominate for election at the meeting on behalf of such beneficial owner) shall not exceed the number of directors to be elected at such meeting.
(viii)Notwithstanding the foregoing provisions of this Section 1.10, unless otherwise required by law, if any stockholder that nominates persons for election or re-election under this Section 1.10(a) provides notice pursuant to Rule 14a-19(b) of the Exchange Act and subsequently either (A) notifies the Corporation that such stockholder no longer intends to comply with Rule 14a-19(a)(3) of the Exchange Act or (B) fails to comply with the requirements of Rule 14a-19(a)(2) of the Exchange Act or Rule 14a-19(a)(3) of the Exchange Act (or fails to timely provide reasonable evidence sufficient to satisfy the Corporation that such stockholder has met the requirements of Rule 14a-19(a)(3) of the Exchange Act in accordance with the following sentence), then the Corporation shall disregard any proxies or votes solicited for such proposed nominees. If any stockholder provides notice pursuant to Rule 14a-19(b) of the Exchange Act, such nominating stockholder shall deliver to the Corporation, no later than five (5) business days prior to the applicable meeting, reasonable evidence that it has met the requirements of Rule 14a-19(a)(3) of the Exchange Act.
(ix)A stockholder shall also comply with all applicable requirements of the Exchange Act, with respect to the matters set forth in this Section 6. Without limiting the generality of the foregoing, any stockholder who intends to nominate a person or persons for election to the Board of Directors of the Corporation must comply in all respects with Regulation 14A (or any successor provision) under the Exchange Act and the Board of Directors shall have the authority to determine whether a stockholder has satisfied such requirement.
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(b)Notice of Business at Annual Meetings.
(i)At any annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business other than the election of directors must be (A) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board or any duly authorized committee thereof, (B) otherwise properly brought before the meeting by or at the direction of the Board or any duly authorized committee thereof or (C) properly brought before the meeting by a stockholder in accordance with this Section 1.10(b).
(ii)For business other than the election of directors to be properly brought before an annual meeting by a stockholder pursuant to Section 1.10(b)(i)(C), the business must constitute a proper matter under Delaware law for stockholder action and the stockholder must (A) have given timely notice thereof in proper form in writing to the Secretary of the Corporation (and must timely provide any updates or supplements to such notice at such times and in such forms provided by this Section 1.10(b)), (B) be a stockholder of record on the date of the giving of such notice, on the record date for the determination of stockholders entitled to notice of the annual meeting and on the record date for the determination of stockholders entitled to vote at such annual meeting and (C) be entitled to vote at such annual meeting and on such proposal.
(iii)To be timely, a stockholder’s notice required by Section 1.10(b)(ii) must be received by the Secretary at the principal executive offices of the Corporation not later than 5:00 p.m. Eastern Time on the ninetieth (90th) day, nor earlier than 8:00 a.m. Eastern Time on the one hundred twentieth (120th) day, prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is scheduled for a date that is more than thirty (30) days before or more than seventy (70) days after such anniversary date or in the event that no annual meeting of stockholders was held in the previous year, notice by the stockholder to be timely must be so received not earlier than 8:00 a.m. Eastern Time on the one hundred twentieth (120th) day prior to the date of such annual meeting and not later than 5:00 p.m. Eastern Time on the later of (A) the ninetieth (90th) day prior to the date of such annual meeting and (B) the tenth (10th) day following the day on which public announcement of the date of such meeting is first made by the Corporation. In no event shall any adjournment, recess, cancellation, rescheduling or postponement of an annual meeting or the public announcement thereof commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.
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(iv)To be in proper form for purposes of this Section 1.10(b), such stockholder’s notice to the Secretary must set forth:
(A)as to each matter of business the stockholder proposes to bring before the annual meeting (1) a reasonably detailed description of the business proposed to be brought before the meeting, the reasons for conducting such business at the meeting and any substantial interest (within the meaning of Item 5 of Schedule 14A (or any successor provision) under the Exchange Act) of such stockholder or the beneficial owner, if any, in such business, (2) the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend the these Bylaws, the language of the proposed amendment), (3) a description of all agreements, arrangements and understandings (whether written or oral) between or among such stockholder or the beneficial owner, if any, on whose behalf the business proposed and any of their respective affiliate or associates, on the one hand, and any other person, on the other hand (which description shall identify the name of each other person who is party to such an agreement, arrangement, or understanding), and (4) such other information relating to any proposed item of business as the Corporation may reasonably require to determine whether such proposed item of business is a proper matter for stockholder action; and
(B)as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the proposal is made (1) the information required to be provided pursuant to clause (1) through (4) of Section 1.10(a)(iii)(B) above (except that the references to “nominee” or “nomination” in such clauses shall instead refer to “business proposal” for purposes of this paragraph), (2) a representation as to whether the stockholder and/or beneficial owner, if any, or their respective affiliates or associates intends or is part of a group which intends (x) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required under applicable law to approve or adopt the
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proposal (and such representation shall be included in any such proxy statement and form of proxy) and/or (y) otherwise to solicit proxies or votes from stockholders in support of such proposal (and such representation shall be included in any such solicitation materials), (3) a description of any agreement, arrangement, or understanding (whether written or oral) between the stockholder or the beneficial owner, if any, and their respective affiliates or associates, on the one hand, and any other person or persons, on the other hand (including their names) entered into (w) for the purposes of acquiring, holding, voting (except, in the case of a meeting of stockholders of the Corporation, pursuant to a revocable proxy given to such person in response to a public proxy solicitation made generally by such person to all stockholders entitled to vote at the meeting), or disposing of any capital stock of the Corporation, (x) to cooperate in obtaining, changing, or influencing the control of the Corporation (except independent financial, legal, and other advisors acting in the ordinary course of their respective businesses), (y) with the effect or intent of increasing or decreasing the voting power of, or that contemplates any person voting together with, the stockholder or beneficial owner, if any, with respect to any capital stock of the Corporation, or (z) otherwise in connection with the proposed business, including with respect to such stockholder’s notice, (4) all information that would be required to be set forth in a Schedule 13D filed pursuant to Rule 13d-1(a) under the Exchange Act or an amendment pursuant to Rule 13d-2(a) under the Exchange Act if such a statement were required to be filed under the Exchange Act and the rules and regulations promulgated thereunder by such stockholder, such beneficial owner, and their respective affiliates or associates, (5) any other information relating to such stockholder and beneficial owner, if any, required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for the proposal pursuant to Section 14(a) of the Exchange Act, (6) a description of any proxy (other than a revocable proxy given in response to a public proxy solicitation made pursuant to, and in accordance with, the Exchange Act), contract, agreement, arrangement, understanding (whether written or oral), or relationship pursuant to which such stockholder, such beneficial owner, or any of their respective affiliates or associates has or shares a right to vote any shares of any class or series of capital stock of the Corporation, and (7) the names and addresses of other stockholders (including beneficial and record owners) known by the stockholder to support the proposed business to be brought before the meeting, and to the extent known, the number of shares of capital stock of the Corporation owned beneficially or of record by such other stockholders.
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(v)In addition, to be timely and in proper written form, a stockholder’s notice to the Secretary must further be updated and supplemented by such stockholder, if necessary, so that the information provided or required to be provided in such notice shall be true and correct as of the record date for the meeting and as of the date that is ten (10) days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to the Secretary at the principal executive offices of the Corporation by hand or by certified mail, return receipt requested, not later than 5:00 p.m. Eastern Time on the fifth (5th) day after the record date for the meeting in the case of the update and supplement required to be made as of the record date, and not later than 5:00 p.m. Eastern Time on the eighth (8th) day prior to the date for the meeting or any adjournment or postponement thereof in the case of the update and supplement required to be made as of ten (10) days prior to the meeting or any adjournment or postponement thereof. For the avoidance of doubt, the obligation to update and supplement as set forth in this paragraph or any other Section of these Bylaws shall not limit the Corporation’s rights with respect to any deficiencies in any notice provided by a stockholder, extend any applicable deadlines under these Bylaws, or enable or be deemed to permit a stockholder who has previously submitted a notice under these Bylaws to amend or update any proposal or to submit any new proposal, including by changing or adding matters, business, and/or resolutions proposed to be brought before a meeting of stockholders and no such update or supplement shall cure or affect the accuracy (or inaccuracy) of any representations made by any stockholder or the validity (or invalidity) of any proposed business that failed to comply with this Section 1.10(b) or is rendered invalid as a result of any inaccuracy therein.
(vi)Notwithstanding anything in this Section 1.10(b) to the contrary, the foregoing notice requirements of this Section 1.10(b) shall be deemed satisfied by a stockholder with respect to business other than a nomination if the stockholder has notified the Corporation of such stockholder’s intention to present a proposal at an annual meeting in compliance with applicable rules and regulations promulgated under the Exchange Act and such stockholder’s proposal has been included in a proxy statement that has been prepared by the Corporation to solicit proxies for such annual meeting.
(c)Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to
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the Corporation’s notice of meeting. Nominations of persons for election or re-election to the Board may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting only (i) by or at the direction of the Board or any duly authorized committee thereof or (ii) provided that the Board has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who (A) is a stockholder of record at the time the notice provided for in this Section 1.10 is received by the Secretary of the Corporation, on the record date for the determination of stockholders entitled to notice of the special meeting and on the record date for the determination of stockholders entitled to vote at such special meeting, (B) is entitled to vote at the meeting and upon such election or re-election and (C) complies with the notice procedures set forth in this Section 1.10(c) (including, without limitation, as to (I) timely notice and as to proper form, which notice shall include the information, agreements, consents and representations set forth in Section 1.10(a) and (II) updates and supplements to such notice at such times and in such forms set forth in Section 1.10(a), except in each case that the references to “annual meeting” in Section 1.10(a) shall instead refer to such “special meeting”) and applicable law. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board, any such stockholder entitled to vote in such election or re-election of directors may nominate a person or persons (as the case may be) for election or re-election to such position(s) as specified in the Corporation’s notice of meeting, if the stockholder’s notice required by paragraph (a)(iii) of this Section 1.10 with respect to each such nomination (including, without limitation, all Nominee Information) shall be received by the Secretary at the principal executive offices of the Corporation not earlier than 8:00 a.m. Eastern Time on the one hundred twentieth (120th) day prior to the date of such special meeting and not later than 5:00 p.m. Eastern Time on the later of (A) the ninetieth (90th) day prior to the date of such special meeting and (B) the tenth (10th) day following the day on which public announcement of the date of such special meeting is first made by the Corporation. In no event shall any adjournment, recess, cancellation, rescheduling or postponement of a special meeting or the public announcement thereof commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. The number of nominees a stockholder may nominate for election at a special meeting of stockholders on its own behalf (or in the case of one or more stockholders giving the notice on behalf of a beneficial owner, the number of nominees such stockholders may collectively nominate for election at the meeting on behalf of such beneficial owner) shall not exceed the number of directors to be elected at such meeting.
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(d)General. (i) Except as otherwise expressly provided in any applicable rule or regulation promulgated under the Exchange Act, only such persons who are nominated in accordance with the procedures set forth in this Section 1.10 shall be eligible to be elected at an annual or special meeting of stockholders of the Corporation to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 1.10. Except as otherwise provided by law, the chairperson of the meeting shall have the power and duty (a) to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 1.10 (including whether the stockholder or beneficial owner, if any, on whose behalf the nomination or proposal is made, solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies or votes in support of such stockholder’s nominee or proposal in compliance with such stockholder’s representation as required by clause (A)(2)(c)(vi) of this Section 1.10) and (b) if any proposed nomination or business was not made or proposed in compliance with this Section 1.10, to declare that such nomination shall be disregarded or that such proposed business shall not be transacted. Except as otherwise required by law, nothing in this Section 1.10 shall obligate the Corporation or the Board to include in any proxy statement or other stockholder communication distributed on behalf of the Corporation or the Board information with respect to any nominee for director submitted by a stockholder. Notwithstanding the foregoing provisions of this Section 1.10, unless otherwise required by law, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination or proposed business, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 1.10, to be considered a qualified representative of the stockholder, a person or entity must be a duly authorized officer, manager or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person or entity must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.
(vii)For purposes of these Bylaws:
“affiliate” has the meaning in Rule 12b-2 under the Exchange Act.
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“associate” has the meaning in Rule 12b-2 under the Exchange Act.
“beneficial ownership,” including the correlative terms “beneficially own” and “beneficial owner,” has the meaning in Rule 13d-3 under the Exchange Act, except that a person shall in all events be deemed to beneficially own any shares of any class or series of capital stock of the Corporation as to which such person has a right to acquire (by conversion, exercise of otherwise) beneficial ownership currently or at any time in the future.
“Derivative Transaction” shall mean any agreement, arrangement, interest or understanding entered into by, or on behalf or for the benefit of, the stockholder or beneficial owner or any of their respective affiliates or associates, whether record or beneficial:
(w) the value of which is derived in whole or in part from the value of any class or series of shares or other securities of the Corporation,
(x) which otherwise provides any direct or indirect opportunity to gain or share in any gain derived from a change in the value of securities of the Corporation,
(y) the effect or intent of which is to mitigate loss, manage risk or benefit of security value or price changes, or
(z) which provides the right to vote or increase or decrease the voting power of, such stockholder or beneficial owner, or any of their respective affiliates or associates, with respect to any securities of the Corporation,
which agreement, arrangement, interest or understanding may include, without limitation, any option, warrant, debt position, note, bond, convertible security, swap, stock appreciation right, short position, profit interest, hedge, right to dividends, voting agreement, performance-related fee or arrangement to borrow or lend shares (whether or not subject to payment, settlement, exercise or conversion in any such class or series), and any proportionate interest of such stockholder or beneficial owner in the securities of the Corporation held, directly or indirectly, by any general or limited partnership, limited liability company or similar entity of which such stockholder or beneficial owner is or, directly or indirectly, owns an interest in a general partner or managing member of such entity.
“public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or other national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
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(viii)Notwithstanding the foregoing provisions of this Section 1.10, a stockholder shall also comply with all applicable requirements of the Exchange Act with respect to the matters set forth herein; provided, however, that any references in these Bylaws to the Exchange Act are not intended to and shall not limit any requirements applicable to nominations or proposals as to any other business to be considered pursuant to this Section 1.10 (including paragraphs (a)(i)(C), (b)(i)(C) and (c) hereof), and compliance with paragraphs (a)(i)(B), (b)(i)(C) and (c) of this Section 1.10 shall be the exclusive means for a stockholder to make nominations or submit other business (other than business other than nominations brought properly under and in compliance with Rule 14a-8 of the Exchange Act, as may be amended from time to time). Nothing in these Bylaws shall be deemed to affect any rights (a) of stockholders to request inclusion of proposals or nominations in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or (b) of the holders of any series of Preferred Stock to elect directors pursuant to any applicable provisions of the Certificate of Incorporation.

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1.11Conduct of Meetings; Inspectors of Election.
(a)Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in the Chairperson’s absence by the Chief Executive Officer, or in the Chief Executive Officer’s absence, by the President, or in the absence of all of the foregoing persons by a chairperson designated by the Board. The Secretary shall act as secretary of the meeting, but in the Secretary’s absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.
(b)The Board may adopt by resolution such rules, regulations and procedures for the conduct of any meeting of stockholders of the Corporation as it shall deem appropriate including, without limitation, such guidelines and procedures as it may deem appropriate regarding the participation by means of remote communication of stockholders and proxyholders not physically present at a meeting. Except to the extent inconsistent with such rules, regulations and procedures as adopted by the Board, the chairperson of any meeting of stockholders shall have the right and authority to convene and (for any or no reason) to recess and/or adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairperson, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board or prescribed by the chairperson of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as shall be determined; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. Unless and to the extent determined by the Board or the chairperson of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.
(c)The chairperson of the meeting shall announce at the meeting when the polls for each matter to be voted upon at the meeting will be opened and closed. After the polls close, no ballots, proxies or votes or any revocations or changes thereto may be accepted.
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(d)The Corporation may, and if required by law, shall, in advance of any meeting of stockholders, appoint one or more inspectors of election to act at the meeting and make a written report thereof. One or more other persons may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the chairperson of the meeting shall appoint one or more inspectors to act at the meeting. Unless otherwise required by law, inspectors may be officers, employees, agents or representatives of the Corporation. Each inspector, before entering upon the discharge of such inspector’s duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of such inspector’s ability. The inspector shall have the duties prescribed by law and, when the vote is completed, shall certify their determination of the result of the vote taken and of such other facts as may be required by law. Every vote taken by ballots shall be counted by a duly appointed inspector or duly appointed inspectors.

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ARTICLE II
DIRECTORS
2.1    General Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board, who may exercise all of the powers of the Corporation except as otherwise provided by law or the Certificate of Incorporation.
2.2    Number, Election, Term and Qualification. The total number of directors constituting the Board shall be as fixed in, or in the manner provided by, the Certificate of Incorporation. Election of directors need not be by written ballot. The term of office of each director shall be as specified in the Certificate of Incorporation. Directors need not be stockholders of the Corporation.
2.3    Chairperson of the Board. The Board may appoint from its members a Chairperson of the Board, and such person need not be an employee or officer of the Corporation. If the Board appoints a Chairperson of the Board, such Chairperson shall perform such duties and possess such powers as are assigned by the Board and, if the Chairperson of the Board is also designated as the Corporation’s Chief Executive Officer, shall have the powers and duties of the Chief Executive Officer prescribed in Section 3.7 of these Bylaws. Unless otherwise provided by the Board, the Chairperson of the Board shall preside at all meetings of the Board.
2.4    Lead Independent Director. The Board may appoint from its members that are Independent Directors a lead independent director of the Board (as defined below) (such director, the “Lead Independent Director”). The Lead Independent Director shall preside at all meetings at which the Chairperson of the Board is not present and shall exercise such other powers and duties as may from time to time be assigned to such Lead Independent Director by the Board or as prescribed by these Bylaws. For purposes of these Bylaws, “Independent Director” has the meaning ascribed to such term under the rules of the exchange upon which the Corporation’s common stock is primarily traded.
2.5 Quorum. The greater of (a) a majority of the directors at any time in office and (b) one-third of the Whole Board shall constitute a quorum of the Board. For purposes of these Bylaws, the term “Whole Board” shall mean the total number of authorized directors whether or not there exist any vacancies or unfilled seats in previously authorized directorships (provided for the avoidance of doubt that voting power shall be attributed to any such vacancies or unfilled seats). If at any meeting of the Board there shall be less than a quorum, a majority of the directors present may adjourn the meeting from time to time without further notice other than announcement at the meeting, until a quorum shall be present.
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2.6    Action at Meeting. Every act or decision done or made by a majority of the directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the Board, unless a greater number is required by law, the Certificate of Incorporation or these Bylaws.
2.7    Removal. Subject to the rights of holders of any series of Preferred Stock, directors of the Corporation may be removed only as expressly provided in the Certificate of Incorporation or by applicable law.
2.8    Newly Created Directorships; Vacancies. Any vacancy or newly created directorship on the Board, however occurring, shall be filled only in accordance with the Certificate of Incorporation.
2.9    Resignation. Any director may resign by delivering a resignation in writing or by electronic transmission to the Corporation. Such resignation shall be effective upon delivery unless it is specified to be effective at some later time or upon the happening of some later event.
2.10    Regular Meetings. Regular meetings of the Board may be held without notice at such time and place as shall be determined from time to time by the Board; provided that any director who is absent when such a determination is made shall be given notice of the determination. A regular meeting of the Board may be held without notice immediately after and at the same place as the annual meeting of stockholders.
2.11    Special Meetings. Special meetings of the Board may be called by the Chairperson of the Board, the Chief Executive Officer, the affirmative vote of a majority of the directors then in office, or by one director in the event that there is only a single director in office.
2.12 Notice of Special Meetings. Notice of the date, place and time of any special meeting of the Board shall be given to each director (a) in person, by telephone or by electronic transmission at least twenty-four (24) hours in advance of the meeting, (b) by delivering written notice by hand to such director’s last known business or home at least twenty-four (24) hours in advance of the meeting, or (c) by sending written notice by first-class mail to such director’s last known business or home address at least seventy-two (72) hours in advance of the meeting. Such notice may be given by the Secretary or by the Chairperson of the Board, the Chief Executive Officer or one of the directors calling the meeting. A notice or waiver of notice of a meeting of the Board need not specify the purposes of the meeting.
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2.13    Meetings by Conference Communications Equipment. Directors may participate in meetings of the Board or any committee thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at such meeting.
2.14    Action by Consent. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting, if all members of the Board or committee, as the case may be, consent to the action in writing or by electronic transmission.
2.15    Committees. The Board may designate one or more committees, each committee to consist of one or more of the directors of the Corporation with such lawfully delegable powers and duties as the Board thereby confers, to serve at the pleasure of the Board. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members of the committee present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board and subject to the provisions of law, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation and may authorize the seal of the Corporation to be affixed to all papers which may require it. Each such committee shall keep minutes and make such reports as the Board may from time to time request. Except as the Board may otherwise determine, any committee may make rules for the conduct of its business, but unless otherwise provided by the directors or in such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these Bylaws for the Board. Except as otherwise provided in the Certificate of Incorporation, these Bylaws, or the resolution of the Board designating the committee, a committee may create one or more subcommittees, each subcommittee to consist of one or more members of the committee, and delegate to a subcommittee any or all of the powers and authority of the committee.

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2.16    Compensation of Directors. Directors may be paid such compensation for their services and such reimbursement for expenses of attendance at meetings as the Board may from time to time determine. No such payment shall preclude any director from serving the Corporation or any of its parent or subsidiary entities in any other capacity and receiving compensation for such service.
ARTICLE III
OFFICERS
3.1    Titles. The officers of the Corporation may consist of a Chief Executive Officer, a President, a Chief Financial Officer, a Treasurer and a Secretary and such other officers with such other titles as the Board shall from time to time determine. The Board may appoint such other officers, including one or more Vice Presidents and one or more Assistant Treasurers or Assistant Secretaries, as it may deem appropriate from time to time.
3.2    Election. The officers of the Corporation shall be elected by the Board.
3.3    Qualification. No officer need be a stockholder. Any two or more offices may be held by the same person.
3.4    Tenure. Except as otherwise provided by law, by the Certificate of Incorporation or by these Bylaws, each officer shall hold office until such officer’s successor is duly elected and qualified, unless a different term is specified in the resolution electing or appointing such officer, or until such officer’s earlier death, resignation, disqualification or removal.
3.5    Resignation and Removal. Any officer may resign by delivering a resignation in writing or by electronic transmission to the Corporation. Such resignation shall be effective upon delivery unless it is specified to be effective at some later time or upon the happening of some later event. Any officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Whole Board. Except as the Board may otherwise determine, no officer who resigns or is removed shall have any right to any compensation as an officer for any period following such officer’s resignation or removal, or any right to damages on account of such removal, whether such officer’s compensation be by the month or by the year or otherwise, unless such compensation is expressly provided for in a duly authorized written agreement with the Corporation
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3.6    Vacancies. The Board may fill any vacancy occurring in any office for any reason and may, in its discretion, leave unfilled, for such period as it may determine, any offices. Each such successor shall hold office for the unexpired term of such officer’s predecessor and until a successor is duly elected and qualified, or until such officer’s earlier death, resignation, disqualification or removal.
3.7    President; Chief Executive Officer. Unless the Board has designated another person as the Corporation’s Chief Executive Officer, the President shall be the Chief Executive Officer of the Corporation. The Chief Executive Officer shall have general charge and supervision of the business of the Corporation subject to the direction of the Board, and shall perform all duties and have all powers that are commonly incident to the office of chief executive or that are delegated to such officer by the Board. The President shall perform such other duties and shall have such other powers as the Board or the Chief Executive Officer (if the President is not the Chief Executive Officer) may from time to time prescribe. In the event of the absence, inability or refusal to act of the Chief Executive Officer or the President (if the President is not the Chief Executive Officer), the Vice President (or if there shall be more than one, the Vice Presidents in the order determined by the Board) shall perform the duties of the Chief Executive Officer and when so performing such duties shall have all the powers of and be subject to all the restrictions upon the Chief Executive Officer.
3.8    Chief Financial Officer. Unless the Board has designated another person as the Corporation’s Chief Financial Officer, the Treasurer shall be the Chief Financial Officer of the Corporation. The Chief Financial Officer shall perform such duties and possess such powers as the Board or the Chief Executive Officer may from time to time prescribe.
3.9    Vice Presidents. Each Vice President shall perform such duties and possess such powers as the Board or the Chief Executive Officer may from time to time prescribe. The Board may assign to any Vice President the title of Executive Vice President, Senior Vice President or any other title selected by the Board.
3.10    Secretary and Assistant Secretaries. The Secretary shall perform such duties and shall have such powers as the Board or the Chief Executive Officer may from time to time prescribe. In addition, the Secretary shall perform such duties and have such powers as are incident to the office of the secretary, including without limitation the duty and power to give notices of all meetings of stockholders and special meetings of the Board, to attend all meetings of stockholders and the Board and keep a record of the proceedings, to maintain a stock ledger and prepare lists of stockholders and
27




their addresses as required, to be custodian of corporate records and the corporate seal and to affix and attest to the same on documents.
Any Assistant Secretary shall perform such duties and possess such powers as the Board, the Chief Executive Officer or the Secretary may from time to time prescribe. In the event of the absence, inability or refusal to act of the Secretary, the Assistant Secretary (or if there shall be more than one, the Assistant Secretaries in the order determined by the Board) shall perform the duties and exercise the powers of the Secretary.
The chairperson of any meeting of the Board or of stockholders may designate a temporary secretary to keep a record of any meeting.
3.11    Treasurer and Assistant Treasurers. The Treasurer shall perform such duties and shall have such powers as may from time to time be assigned by the Board or the Chief Executive Officer. In addition, the Treasurer shall perform such duties and have such powers as are incident to the office of treasurer, including without limitation the duty and power to keep and be responsible for all funds and securities of the Corporation, to deposit funds of the Corporation in depositories selected in accordance with these Bylaws, to disburse such funds as ordered by the Board, to make proper accounts of such funds, and to render as required by the Board statements of all such transactions and of the financial condition of the Corporation.
The Assistant Treasurers shall perform such duties and possess such powers as the Board, the Chief Executive Officer or the Treasurer may from time to time prescribe. In the event of the absence, inability or refusal to act of the Treasurer, the Assistant Treasurer (or if there shall be more than one, the Assistant Treasurers in the order determined by the Board) shall perform the duties and exercise the powers of the Treasurer.
3.12    Salaries. Officers of the Corporation shall be entitled to such salaries, compensation or reimbursement as shall be fixed or allowed from time to time by the Board.
3.13    Delegation of Authority. The Board may from time to time delegate the powers or duties of any officer to any other officer or agent, notwithstanding any provision hereof.
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ARTICLE IV
CAPITAL STOCK
4.1    Stock Certificates; Uncertificated Shares. The shares of the Corporation shall be uncertificated shares, provided that the resolution of the Board that the shares of capital stock of the Corporation shall be uncertificated shares shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation (or the transfer agent or registrar, as the case may be). Notwithstanding the foregoing, the Board may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be certificated shares. Every holder of stock of the Corporation represented by certificates shall be entitled to have a certificate, in such form as may be prescribed by law and by the Board, representing the number of shares held by such holder registered in certificate form. Each such certificate shall be signed by or in the name of the Corporation by any two authorized officers of the Corporation and each of the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer and any Assistant Treasurer are duly authorized to sign such certificates by, or in the name of, the Corporation, unless otherwise expressly provided in the resolution of the Board electing such officer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were an officer, transfer agent or registrar at the date of issue.
Each certificate for shares of stock which are subject to any restriction on transfer pursuant to the Certificate of Incorporation, these Bylaws, applicable securities laws or any agreement among any number of stockholders or among such holders and the Corporation shall have conspicuously noted on the face or back of the certificate either the full text of the restriction or a statement of the existence of such restriction.
If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class, the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of each certificate representing shares of such class or series of stock, provided that in lieu of the foregoing requirements there may be set forth on the face or back of each certificate representing shares of such class or series of stock a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
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Within a reasonable time after the issuance or transfer of uncertificated shares, the registered owner thereof shall be given a notice, in writing or by electronic transmission, containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) of the DGCL or, with respect to Section 151 of DGCL, a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
4.2    Transfers. Shares of stock of the Corporation shall be transferable in the manner prescribed by law, the Certificate of Incorporation and in these Bylaws. Transfers of shares of stock of the Corporation shall be made only on the books of the Corporation or by transfer agents designated to transfer shares of stock of the Corporation. Subject to applicable law, shares of stock represented by certificates shall be transferred only on the books of the Corporation by the surrender to the Corporation or its transfer agent of the certificate representing such shares properly endorsed or accompanied by a written assignment or power of attorney properly executed, and with such proof of authority or the authenticity of signature as the Corporation or its transfer agent may reasonably require. Except as may be otherwise required by law, by the Certificate of Incorporation or by these Bylaws, the Corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect to such stock, regardless of any transfer, pledge or other disposition of such stock until the shares have been transferred on the books of the Corporation in accordance with the requirements of these Bylaws.
4.3    Lost, Stolen or Destroyed Certificates. The Corporation may issue a new certificate or uncertificated shares in place of any previously issued certificate alleged to have been lost, stolen or destroyed, upon such terms and conditions as the Board may prescribe, including the presentation of reasonable evidence of such loss, theft or destruction and the giving of such indemnity and posting of such bond sufficient to indemnify the Corporation or any transfer agent or registrar against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.
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4.4    Record Date. In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If the Board so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance herewith at the adjourned meeting.
In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of capital stock or for the purpose of any other lawful action, the Board may fix a record date, which shall not be more than sixty (60) days prior to such action. If no such record date is fixed, the record date for determining stockholders for any such purpose shall be at 5:00 p.m. Eastern Time on the day on which the Board adopts the resolution relating thereto.
4.5    Regulations. The issue and registration of shares of stock of the Corporation shall be governed by such other regulations as the Board may establish.

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ARTICLE V
GENERAL PROVISIONS
5.1    Fiscal Year. Except as from time to time otherwise designated by the Board, the fiscal year of the Corporation shall begin on the first day of January of each year and end on the last day of December in each year.
5.2    Corporate Seal. The corporate seal shall be in such form as shall be approved by the Board.
5.3    Waiver of Notice. Whenever notice is required to be given by law, by the Certificate of Incorporation or by these Bylaws, a written waiver signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before, at or after the time of the event for which notice is to be given, shall be deemed equivalent to notice required to be given to such person. Neither the business nor the purpose of any meeting need be specified in any such waiver. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.
5.4    Voting of Securities. Except as the Board may otherwise designate, the Chief Executive Officer, the President, the Chief Financial Officer or the Treasurer may waive notice, vote, consent, or appoint any person or persons to waive notice, vote or consent, on behalf of the Corporation, and act as, or appoint any person or persons to act as, proxy or attorney-in-fact for the Corporation (with or without power of substitution and re-substitution), with respect to the securities of any other entity which may be held by this Corporation.
5.5    Evidence of Authority. A certificate by the Secretary, or an Assistant Secretary, or a temporary Secretary, as to any action taken by the stockholders, directors, a committee or any officer or representative of the Corporation shall as to all persons who rely on the certificate in good faith be conclusive evidence of such action.
5.6    Certificate of Incorporation. All references in these Bylaws to the Certificate of Incorporation shall be deemed to refer to the Certificate of Incorporation of the Corporation, as amended and/or restated and in effect from time to time, including any certificate of designation relating to any outstanding series of Preferred Stock.
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5.7    Severability. Any determination that any provision of these Bylaws is for any reason inapplicable, illegal or ineffective shall not affect or invalidate any other provision of these Bylaws.
5.8    Pronouns. All pronouns used in these Bylaws shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons may require.
ARTICLE VI
AMENDMENTS
These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the Board or by the stockholders as expressly provided in the Certificate of Incorporation.
ARTICLE VII

INDEMNIFICATION AND ADVANCEMENT
7.1    Power to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Corporation. Subject to Section 7.3, the Corporation shall indemnify, to the fullest extent permitted by applicable law, any person (a “Covered Person”) who was or is made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that such Covered Person is or was a director or officer of the Corporation, or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, trustee, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys’ fees), liability and loss, judgments, fines and penalties and amounts paid in settlement actually and reasonably incurred or suffered by such Covered Person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful.
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7.2    Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation. Subject to Section 7.3, the Corporation shall indemnify, to the fullest extent permitted by applicable law, any Covered Person who was or is made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such Covered Person is or was a director or officer of the Corporation, or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, trustee, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by such Covered Person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
7.3    Authorization of Indemnification. Any indemnification under this Article VII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the Covered Person is proper in the circumstances because such Covered Person has met the applicable standard of conduct set forth in Section 7.1 or Section 7.2, as the case may be. Such determination shall be made, with respect to a Covered Person who is a director or officer at the time of such determination, (i) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (ii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (iii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion or (iv) by the stockholders. Such determination shall be made, with respect to former directors and officers, by any person or persons having the authority to act on the matter on behalf of the Corporation. To the extent, however, that a Covered Person has been successful on the merits or otherwise in defense of any action, suit or proceeding set forth in Section 7.1 or Section 7.2 or in defense of any claim, issue or matter therein, such Covered Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith, without the necessity of authorization in the specific case.
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7.4    Right of Claimant to Bring Suit. Notwithstanding any contrary determination in the specific case under Section 7.3, and notwithstanding the absence of any determination thereunder, if (i) following the final disposition of the applicable proceeding, a claim for indemnification under Sections 7.1 or 7.2 of this Article VII is not paid in full by the Corporation within ninety (90) days after a written claim for indemnification has been received by the Corporation, or (ii) a claim for advancement of expenses under Section 7.5 of this Article VII is not paid in full by the Corporation within thirty (30) days after the Corporation has received a statement or statements requesting such amounts to be advanced, the Covered Person may at any time thereafter (but not before) bring suit against the Corporation in the Court of Chancery in the State of Delaware to recover the unpaid amount of the claim, together with interest thereon, or to obtain advancement of expenses, as applicable. It shall be a defense to any such action brought to enforce a right to indemnification (but not in an action brought to enforce a right to an advancement of expenses) that the Covered Person has not met the standards of conduct which make it permissible under the DGCL (or other applicable law) for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither a contrary determination in the specific case under Section 7.3 nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the claimant has not met any applicable standard of conduct. If successful, in whole or in part, the claimant shall also be entitled to be paid the expense of prosecuting such claim, including reasonable attorneys’ fees incurred in connection therewith, to the fullest extent permitted by applicable law.
7.5    Expenses Payable in Advance. Expenses, including without limitation attorneys’ fees, incurred by a Covered Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Covered Person to repay such amount if it shall ultimately be determined that such Covered Person is not entitled to be indemnified by the Corporation as authorized in this Article VII or otherwise.

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7.6    Nonexclusivity of Indemnification and Advancement of Expenses. The rights to indemnification and advancement of expenses provided by or granted pursuant to this Article VII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the Certificate of Incorporation, any agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that, subject to Section 7.10, indemnification of Covered Persons shall be made to the fullest extent permitted by law. The provisions of this Article VII shall not be deemed to preclude the indemnification of any person who is not specified in Section 7.1 or 7.2 but whom the Corporation has the power or obligation to indemnify under the provisions of the DGCL or otherwise.
7.7    Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power or the obligation to indemnify such person against such expense, liability or loss under the provisions of this Article VII.
7.8 Certain Definitions. For purposes of this Article VII, references to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees or agents so that any person who is or was a director or officer of such constituent corporation, or, while a director or officer of such constituent Corporation, is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article VII with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VII, references to “fines” shall include any excise taxes assessed on a person with respect of any employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article VII.
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7.9    Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VII shall continue as to a Covered Person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a Covered Person.
7.10    Limitation on Indemnification. Notwithstanding anything contained in this Article VII to the contrary, except for proceedings to enforce rights to indemnification or advancement of expenses (which shall be governed by Section 7.4), the Corporation shall not be obligated to indemnify any Covered Person in connection with an action, suit proceeding (or part thereof) initiated by such person unless such action, suit or proceeding (or part thereof) was authorized by the Board.
7.11    Contract Rights. The obligations of the Corporation under this Article VII to indemnify, and advance expenses to, a Covered Person who is or was a director or officer of the Corporation shall be considered a contract between the Corporation and such Covered Person, and no modification or repeal of any provision of this Article VII shall affect, to the detriment of such Covered Person, such obligations of the Corporation in connection with a claim based on any act or failure to act occurring before such modification or repeal.
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EX-3.3 3 exhibit33-thirdarbylawsred.htm EX-3.3 Document
Exhibit 3.3
THIRD AMENDED AND RESTATED BYLAWS

OF

SUNNOVA ENERGY INTERNATIONAL, INC.

(Adopted on October 25,
2023)



TABLE OF CONTENTS
Page
ARTICLE I STOCKHOLDERS    1
1.1    Place of Meetings    1
1.2    Annual Meeting    1
1.3    Special Meetings    1
1.4    Notice of Meetings    1
1.5    Voting List    2
1.6    Quorum    2
1.7    Adjournments    3
1.8    Proxies    4
1.9    Action at Meeting    4
1.10    Advance Notice Procedures    5
1.11    Conduct of Meetings; Inspectors of Election    21
ARTICLE II DIRECTORS    23
2.1    General Powers    23
2.2    Number, Election, Term and Qualification    23
2.3    Chairperson of the Board    23
2.4    Lead Independent Director    23
2.5    Quorum    23
2.6    Action at Meeting    24
2.7    Removal    24
2.8    Newly Created Directorships; Vacancies    24
2.9    Resignation    24
2.10    Regular Meetings    24
2.11    Special Meetings    24
2.12    Notice of Special Meetings    24
2.13    Meetings by Conference Communications Equipment    25
2.14    Action by Consent    25
2.15    Committees    25
2.16    Compensation of Directors    26
ARTICLE III OFFICERS    26
3.1    Titles    26
3.2    Election    26
3.3    Qualification    26
3.4    Tenure    26
3.5    Resignation and Removal    26
3.6    Vacancies    27
3.7    President; Chief Executive Officer    27
3.8    Chief Financial Officer    27
3.9    Vice Presidents    27
3.10    Secretary and Assistant Secretaries    27
3.11    Treasurer and Assistant Treasurers    28
3.12    Salaries    28
3.13    Delegation of Authority    28
ARTICLE IV CAPITAL STOCK    29
4.1    Stock Certificates; Uncertificated Shares    29
4.2    Transfers    30
4.3    Lost, Stolen or Destroyed Certificates    30
4.4    Record Date    31
4.5    Regulations    31
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ARTICLE V GENERAL PROVISIONS    32
5.1    Fiscal Year    32
5.2    Corporate Seal    32
5.3    Waiver of Notice    32
5.4    Voting of Securities    32
5.5    Evidence of Authority    32
5.6    Certificate of Incorporation    32
5.7    Severability    33
5.8    Pronouns    33
ARTICLE VI AMENDMENTS    33
ARTICLE VII INDEMNIFICATION AND ADVANCEMENT    33
7.1    Power to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Corporation    33
7.2    Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation    34
7.3    Authorization of Indemnification    34
7.4    Right of Claimant to Bring Suit    35
7.5    Expenses Payable in Advance    35
7.6    Nonexclusivity of Indemnification and Advancement of Expenses    36
7.7    Insurance    36
7.8    Certain Definitions    36
7.9    Survival of Indemnification and Advancement of Expenses    37
7.10    Limitation on Indemnification    37
7.11    Contract Rights    37
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ARTICLE I
STOCKHOLDERS
1.1Place of Meetings
. All meetings of stockholders shall be held at such place, if any, as may be designated from time to time by the Board of Directors (the “Board”) of Sunnova Energy International Inc. (the “Corporation”), the Chairperson of the Board or the Chief Executive Officer or, if not so designated, at the principal office of the Corporation. The Board may, in its sole discretion, determine that a meeting shall not be held at any place, but may instead be held solely by means of remote communication in accordance with Section 211(a)(2) of the General Corporation Law of the State of Delaware (the “DGCL”).
1.2Annual Meeting
. The annual meeting of stockholders for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly be brought before the meeting in accordance with these Bylaws shall be held on a date and at a time designated by the Board, the Chairperson of the Board or the Chief Executive Officer. The Board or the chairperson of the meeting may postpone, recess, reschedule or cancel any previously scheduled annual meeting of stockholders at any time, before or after the notice for such meeting has been sent to the stockholders.
1.3Special Meetings
. Special meetings of stockholders for any purpose or purposes may be called only in the manner provided in the Certificate of Incorporation. The Board or the chairperson of the meeting may postpone, recess, reschedule or cancel any previously scheduled special meeting of stockholders at any time, before or after the notice for such meeting has been sent to the stockholders. Business to be conducted at a special meeting of stockholders shall be limited to the purposes stated in the notice of meeting. Nothing contained in this Section 1.3 shall be construed as limiting, fixing or affecting the time when a meeting of stockholders called by action of the Board may be held.
1.4Notice of Meetings



. Except as otherwise provided by law, notice of each meeting of stockholders, whether annual or special, shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting as of the record date for determining the stockholders entitled to notice of the meeting. Without limiting the manner by which notice otherwise may be given to stockholders, any notice to stockholders given by the Corporation shall be effective if given by electronic transmission in accordance with applicable law. The notices of all meetings shall state the place, if any, date and time of the meeting, the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, and the record date for determining the stockholders entitled to vote at the meeting (if such date is different from the record date for stockholders entitled to notice of the meeting). The notice of a special meeting shall state, in addition, the purpose or purposes for which the meeting is called. If notice is given by mail, such notice shall be deemed given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the Corporation. If notice is given by electronic transmission, such notice shall be deemed given at the time specified in Section 232 of the DGCL.
1.5Voting List
. The Corporation shall prepare, no later than the tenth (10th) day before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting (provided, however, if the record date for determining the stockholders entitled to vote is less than ten (10) days before the date of the meeting, the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date), arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting for a period of at least ten (10) days prior to the meeting: (a) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (b) during ordinary business hours, at the principal place of business of the Corporation.



In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. Except as otherwise provided by law, such list shall presumptively determine the identity of the stockholders entitled to examine the list of stockholders required by this Section 1.5 and vote at the meeting and the number of shares held by each of them. To the fullest extent permitted by applicable law, the failure to comply with any requirements of this Section 1.5 shall not affect the validity of any action taken at such meeting.
1.6Quorum
. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, at each meeting of stockholders the presence of the holders of a majority in voting power of the shares of the capital stock of the Corporation issued and outstanding and entitled to vote at the meeting, present in person or represented by proxy, shall constitute a quorum for the transaction of business; provided, however, that where a separate vote by a class or classes or series of capital stock is required by law or the Certificate of Incorporation, the holders of a majority in voting power of the shares of such class or classes or series of the capital stock of the Corporation issued and outstanding and entitled to vote on such matter, present in person or represented by proxy, shall constitute a quorum with respect to the vote on such matter. A quorum, once established at a meeting, shall not be broken by the withdrawal of enough votes to leave less than a quorum.
1.7Adjournments
. Any meeting of stockholders, annual or special, may be adjourned from time to time (including adjourning to address a technical failure to convene or continue a meeting using remote communication), whether or not there is a quorum, to reconvene at any other time and to the same or some other place by the Board, the chairperson of the meeting or, if directed to be voted on by the chairperson of the meeting, by the stockholders present in person or represented by proxy at the meeting and entitled to vote thereon, although less than a quorum.



It shall not be necessary to notify any stockholder of any adjournment of less than 30 days if the time and place of the adjourned meeting, and the means of remote communication, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting, (i) are announced at the meeting at which adjournment is taken, (ii) displayed, during the time scheduled for the meeting, on the same electronic network used to enable stockholders to participate in the meeting by means of remote communication, or (iii) set forth in the notice of meeting given in accordance with Section 1.4, unless after the adjournment a new record date is fixed for the adjourned meeting. If the adjournment is for more than thirty (30) days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for determination of stockholders entitled to vote is fixed for the adjourned meeting, the Board shall fix as the record date for determining stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote at the adjourned meeting, and shall give, in accordance with Section 1.4, notice of the adjourned meeting to each stockholder of record as of the record date so fixed for notice of such adjourned meeting. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting.
1.8Proxies
. Each stockholder of record entitled to vote at a meeting of stockholders may authorize another person or persons to vote for such stockholder by proxy. Any copy, facsimile transmission or other reliable reproduction of the document authorizing a person to vote by proxy may be substituted or used in lieu of the original document for any and all purposes for which the original document could be used; provided that such copy, facsimile transmission or other reproduction shall be a complete reproduction of the entire document. Any electronic transmission authorizing a person to vote by proxy must set forth or be submitted with information from which it can be determined that the transmission was authorized by the stockholder.



No such proxy shall be voted upon after three (3) years from its date unless the proxy provides for a longer period.
1.9Action at Meeting
. When a quorum is present at any meeting, any matter other than the election or re-election of directors to be voted upon by the stockholders at such meeting shall be decided by a majority of the votes cast by the holders of all of the shares of stock present in person or represented by proxy at the meeting and voting affirmatively or negatively on such matter (or if one or more class, classes or series of stock are entitled to vote as a separate class or series, then a majority of the votes cast by the holders of the shares of stock of such class, classes or series entitled to vote as a separate class or series present in person or represented by proxy at the meeting and voting affirmatively or negatively on such matter), except when a different vote is required by express provision of applicable law, regulation applicable to the Corporation or its securities, the rules or regulations of any stock exchange applicable to the Corporation, the Certificate of Incorporation or these Bylaws, in which case such express provision shall govern. Abstentions and broker non-votes, if any, will not be considered votes cast in determining the vote outcome. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect directors.
1.10Advance Notice Procedures
.
(a)Nomination of Directors at Annual Meetings.



(i)Except for any directors entitled to be elected by the holders of Preferred Stock, only persons who are nominated in accordance with the procedures in this Section 1.10 shall be eligible for election or re-election as directors. Nomination for election or re-election to the Board at an annual meeting of stockholders may be made only (A) pursuant to the Corporation’s notice of meeting (or any supplement thereto), (B) by or at the direction of the Board or any duly authorized committee thereof or (C) by a stockholder of the Corporation who (1) timely complies in proper form in writing with the notice procedures in Section 1.10(a), (2) is a stockholder of record on the date of the giving of notice to the Secretary of the Corporation required by this Section 1.10(a), on the record date for the determination of stockholders entitled to notice of the annual meeting and on the record date for the determination of stockholders entitled to vote at such meeting and (3) is entitled to vote at such meeting upon such election or re-election of directors. For any nominations to be properly brought before an annual meeting by a stockholder pursuant to clause (C) of this Section 1.10(a)(i), the stockholder must have given timely notice thereof in proper form, and must timely provide any updates and supplements to such notice thereof, in writing to the Secretary of the Corporation at such times and in such forms provided by this Section 1.10(a).
(ii)To be timely, a stockholder’s notice required by Section 1.10(a)(i)(C) must be received by the Secretary at the principal executive offices of the Corporation not later than 5:00 p.m., Eastern Time on the ninetieth (90th) day, nor earlier than 8:00 a.m., Eastern Time on the one hundred twentieth (120th) day, prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is scheduled for a date that is more than thirty (30) days before or more than seventy (70) days after such anniversary date or in the event that no annual meeting of stockholders was held in the previous year, notice by the stockholder to be timely must be so received not earlier than 8:00 a.m., Eastern Time on the one hundred twentieth (120th) day prior to the date of such annual meeting and not later than 5:00 p.m. Eastern Time on the later of (A) the ninetieth (90th) day prior to the date of such annual meeting and (B) the tenth (10th) day following the day on which public announcement of the date of such meeting is first made by the Corporation. In no event shall any adjournment, recess, cancellation, rescheduling or postponement of an annual meeting or the public announcement thereof commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.



(iii)To be in proper form for purposes of this Section 1.10(a), a stockholder’s notice to the Secretary must set forth:
(A)as to each person whom the stockholder proposes to nominate for election or re-election as a director (1) the name, age, business address and residence address of the nominee, (2) the principal occupation or employment of the nominee, (3) any undisclosed Voting Commitments (as defined below) or other undisclosed arrangements with respect to the nominee’s actions as a director, (4) whether the nominee (w) is or has been, within the past three (3) years, an officer, director, or employee of a competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914, as amended, (x) is or has been, within the past three (3) years, an officer, director, or employee of the stockholder nominating such nominee, (y) is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) or has previously been convicted in a criminal proceeding (excluding traffic violations and other minor offenses), or (z) is subject to any order of the type specified in Rule 506(d) (or any successor provision) of Regulation D promulgated under the Securities Act of 1933, as amended, (5) all information relating to such nominee that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election or re-election of directors in an election contest, or is otherwise required, in each case pursuant to Section 14(a) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”), (6) a reasonably detailed description of all direct and indirect compensatory, payment or other financial agreements, arrangements and understandings (whether written or oral) during the past three (3) years that such nominee has with any other person or entity other than the Corporation including the amount of any payment or payments received or receivable thereunder, in each case in connection with candidacy or service as a director of the Corporation, and any other material relationships during the past three (3) years, including financial transactions and compensation, between or among such stockholder, such beneficial owner, and any of their respective affiliates or associates, on the one hand, and such proposed nominee and any of his or her respective affiliates and associates, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the stockholder making the nomination and any beneficial owner on whose behalf the nomination is made, if any, or any of their respective affiliates and associates, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (7) a statement confirming that the nominee intends to tender the advance resignations described in Section 1.10(a)(v) of these Bylaws, (8) a completed and signed questionnaire, a signed consent and a signed representation and agreement as required by Section 1.10(a)(vi), and (9) all information with respect to such nominee that would be required to be set forth in a stockholder’s notice pursuant to this Section 1.10 if such nominee were the stockholder giving notice hereunder (the information required by this Section 1.10(a)(iii)(A) is referred to herein as the “Nominee Information”); and



(B)as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination is made (1) the name and address of such stockholder, as they appear on the Corporation’s books, and of the beneficial owner, if any, on whose behalf the proposal is being made, (2) a description of (v) the class or series and number of shares of each such class or series of capital stock of the Corporation which are, directly or indirectly, owned



beneficially (within the meaning of Rule 13d-3 under the Exchange Act) or of record by such stockholder, such beneficial owner, and their respective affiliate and associates (provided, that such stockholder and the beneficial owner, if any, on whose behalf the nomination is made shall in all events be deemed to beneficially own any shares of any class or series and number of shares of capital stock of the Corporation as to which such stockholder or beneficial owner, if any, has a right to acquire beneficial ownership at any time in the future), (w) all Derivative Transactions (as defined below), whether or not subject to settlement in underlying shares of capital stock of the Corporation or otherwise, by such stockholder, the beneficial owner, if any, or any of their respective affiliates or associates during the previous six (6) month period, including the date of the transactions and the class, series and number of securities involved in, and the material economic terms of, such Derivative Transactions, (x) any proportionate interest in capital stock of the Corporation or Derivative Transactions held by a general or limited partnership in which such stockholder is a general partner or beneficially owns an interest in a general partner of such general or limited partnership, (y) any significant equity interests or any Derivative Transactions in any principal competitor of the Corporation held by such stockholder, such beneficial owner, or any of their respective affiliates or associates, and (z) any direct or indirect interest of such stockholder, such beneficial owner, and their respective affiliates or associates in any contract with the Corporation, any affiliate of the Corporation, or any principal competitor of the Corporation (including, in any such case, any employment agreement, collective bargaining agreement, or consulting agreement), (3) a description of any agreement, arrangement or understanding (whether written or oral) with respect to the nomination between or among such stockholder, the beneficial owner, if any, on whose behalf the nominations are proposed and each proposed nominee and any of their respective affiliates or associates, on the one hand, and any other person, on the other hand (which description shall identify the name of each other person who is party to such an agreement, arrangement, or understanding), (4) a description of any agreement, arrangement, or understanding (whether written or oral) between the stockholder or the beneficial owner, if any, and their respective affiliates or associates, on the one hand, and any other person or persons, on the other hand (including their names) entered into (v) for the purposes of acquiring, holding, voting (except, in the case of a meeting of stockholders of the Corporation, pursuant to a revocable proxy given to such person in response to a public proxy solicitation made generally by such person to all stockholders entitled to vote at the meeting), or disposing of any capital stock of the Corporation, (x) to cooperate in obtaining, changing, or influencing the control of the Corporation (except independent financial, legal, and other advisors acting in the ordinary course of their respective businesses), (y) with the effect or intent of increasing or decreasing the voting power of, or that contemplates any person voting together with, the stockholder or beneficial owner, if any, with respect to any capital stock of the Corporation, or (z) otherwise in connection with the proposed nominations, including with respect to such stockholder’s notice; (5) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting upon such nomination and that such stockholder or a qualified representative of the stockholder intends to appear in person at the meeting to nominate the person or persons specified in the notice, (6) a representation as to whether the such stockholder, the beneficial owner, if any, and/or any of their respective affiliates or associates intends or is part of a group which intends (x) to deliver a proxy statement and/or form of proxy to






stockholders in accordance with Rule 14a-19 (or any successor provision) of the Exchange Act, (y) to solicit proxies or votes from stockholders in support of such nomination in accordance with Rule 14a-19 (or any successor provision) of the Exchange Act (and such representation shall be included in any such solicitation materials), or (z) to engage in a solicitation (within the meaning of Exchange Act Rule 14a-1(1) (or any successor provision)) with respect to the nomination, and if so, the name of each participant (as defined in Item 4 of Schedule 14A under the Exchange Act) in such solicitation, (7) all information that would be required to be set forth in a Schedule 13D filed pursuant to Rule 13d-1(a) under the Exchange Act or an amendment pursuant to Rule 13d-2(a) under the Exchange Act if such a statement were required to be filed under the Exchange Act by such stockholder, such beneficial owner, and their respective affiliates or associates, (8) any other information relating to such stockholder, the beneficial owner, if any, and any of their respective affiliates or associates, if any, required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in an election contest pursuant to Section 14(a) of the Exchange Act, (9) a description of any proxy (other than a revocable proxy given in response to a public proxy solicitation made pursuant to, and in accordance with, the Exchange Act), contract, agreement, arrangement, understanding (whether written or oral), or relationship pursuant to which such stockholder, such beneficial owner, or any of their respective affiliates or associates has or shares a right to vote any shares of any class or series of capital stock of the Corporation, and (10) the names and addresses of other stockholders (including beneficial and record owners) known by the stockholder to support the proposed nominations to be brought before the meeting, and to the extent known, the number of shares of capital stock of the Corporation owned beneficially or of record by such other stockholders.



The Corporation may require (A) a stockholder making the nomination and the beneficial owner, if any, on whose behalf the nomination is being made, to furnish, within five (5) business days after the information is requested, such other information as may reasonably be required to facilitate disclosure to stockholders of all material facts that, in the reasonable discretion of the Corporation, are relevant for stockholders to make an informed decision on any proposed nominee, including information regarding any of their respective associates and affiliates or any other person; and (B) any proposed nominee to furnish, within five (5) business days after the information is requested, such other information as the Corporation may reasonably require to determine the eligibility of such proposed nominee to serve as a director, including, but not limited to, such other information as may be reasonably required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could reasonably be expected to be material to a stockholders’ understanding of whether such nominee would be independent under applicable Securities and Exchange Commission and stock exchange rules and the Corporation’s publicly disclosed corporate governance guidelines, as applicable. A stockholder’s notice to the Secretary shall further confirm the stockholder’s agreement to use a proxy card or written ballot card color other than white, which color the stockholder agrees will be reserved for the Corporation’s exclusive use.

(iv)In addition, to be timely and in proper written form, a stockholder’s notice to the Secretary must further be updated and supplemented by such stockholder, if necessary, so that the information provided or required to be provided in such notice shall be true and correct as of the record date for the meeting and as of the date that is ten (10) days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to the Secretary at the principal executive offices of the Corporation by hand or by certified mail, return receipt requested, not later than 5:00 p.m. Eastern Time on the fifth (5th) day after



the record date for the meeting in the case of the update and supplement required to be made as of the record date, and not later than 5:00 p.m. Eastern Time on the eighth (8th) day prior to the date for the meeting or any adjournment or postponement thereof in the case of the update and supplement required to be made as of ten (10) days prior to the meeting or any adjournment or postponement thereof. For the avoidance of doubt, the obligation to update and supplement as set forth in this paragraph or any other Section of these Bylaws shall not limit the Corporation’s rights with respect to any deficiencies in any notice provided by a stockholder, extend any applicable deadlines under these Bylaws, or enable or be deemed to permit a stockholder who has previously submitted a notice under these Bylaws to amend or update any proposal or to submit any new proposal, including by changing or adding matters, business, and/or resolutions proposed to be brought before a meeting of stockholders and no such update or supplement shall cure or affect the accuracy (or inaccuracy) of any representations made by any stockholder or the validity (or invalidity) of any proposed business that failed to comply with this Section 1.10(a)
or is rendered invalid as a result of any inaccuracy therein.
(v)Any notice with respect to the nominations of persons for election or re-election to the Board shall be accompanied by a letter of resignation signed by each nominee, which letter shall specify that such resignation is irrevocable and that it shall become effective upon a determination by the Board (excluding, for purposes of such determination, such nominee) that (A) any of the information provided to the Corporation by a stockholder or the stockholder’s nominee in respect of the nomination of the nominee pursuant to Section 1.10(a) is or was untrue in any material respect (or omitted to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading) or (B) the nominee or the stockholder shall have breached its obligations under Section 1.10.



(vi)To be eligible to be a nominee by a stockholder for election or re-election as a director, the proposed nominee must deliver to the Secretary at the principal executive offices of the Corporation’s, in accordance with the time periods and methods prescribed for in Section 1.10 for delivery of notice (A) a written questionnaire with respect to the background and qualification of such proposed nominee (in the form of questionnaire to be provided by the Secretary upon written request); (B) a written consent to serve as a director if elected; and (C) a written representation and agreement (in the form to be provided by the Secretary upon written request) that such proposed nominee (1) intends to serve as a director for the full term for which such person is standing for election; (2) is not and will not become a party to (I) any agreement, arrangement, or understanding (whether written or oral) with, and has not given any commitment or assurance to, any person or entity as to how such proposed nominee, if elected as a director, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation in writing or (II) any Voting Commitment that could limit or interfere with such proposed nominee’s ability to comply with such proposed nominee’s fiduciary duties under applicable law, if elected as a director; (3) except as disclosed to the Corporation in writing, (I) is not and will not become a party to any agreement, arrangement, or understanding (whether written or oral) with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement, indemnification, or other payment in connection with candidacy or service as a director and (II) has not received any such compensation or other payment from any person or entity other than the Corporation in connection with candidacy or service as a director of the Corporation; and (4) would be in compliance, if elected as a director, and will comply with all applicable laws and stock exchange listing standards, the applicable provisions of these Bylaws, and all publicly disclosed corporate governance, ethics, conflict of interest, confidentiality, and stock ownership and trading policies and guidelines of the Corporation applicable to directors.



(vii)Notwithstanding anything in the first sentence of Section 1.10(a)(ii) to the contrary, in the event that the number of directors to be elected to the Board at the annual meeting is increased effective after the time period for which nominations would otherwise be due under Section 1.10(a)(ii) and there is no public announcement by the Corporation naming the nominees for the additional directorships at least one hundred (100) days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required by this Section 1.10(a) shall also be considered timely, but only with respect to nominees for the additional directorships (and subject to providing any updates or supplements to such notice at such times and in such forms provided by this Section 1.10(a)), if it shall be received by the Secretary at the principal executive offices of the Corporation not later than 5:00 p.m. Eastern Time on the tenth (10th) day following the day on which the Corporation first makes a public announcement of the date of such meeting. The number of nominees a stockholder may nominate for election at an annual meeting of stockholders on its own behalf (or in the case of one or more stockholders giving the notice on behalf of a beneficial owner, the number of nominees such stockholders may collectively nominate for election at the meeting on behalf of such beneficial owner) shall not exceed the number of directors to be elected at such meeting.
(viii)Notwithstanding the foregoing provisions of this Section 1.10, unless otherwise required by law, if any stockholder that nominates persons for election or re-election under this Section 1.10(a) provides notice pursuant to Rule 14a-19(b) of the Exchange Act and subsequently either (A) notifies the Corporation that such stockholder no longer intends to comply with Rule 14a-19(a)(3) of the Exchange Act or (B) fails to comply with the requirements of Rule 14a-19(a)(2) of the Exchange Act or Rule 14a-19(a)(3) of the Exchange Act (or fails to timely provide reasonable evidence sufficient to satisfy the Corporation that such stockholder has met the requirements of Rule 14a-19(a)(3) of the Exchange Act in accordance with the following sentence), then the Corporation shall disregard any proxies or votes solicited for such proposed nominees. If any stockholder provides notice pursuant to Rule 14a-19(b) of the Exchange Act, such nominating stockholder shall deliver to the Corporation, no later than five (5) business days prior to the applicable meeting, reasonable evidence that it has met the requirements of Rule 14a-19(a)(3) of the Exchange Act.



(ix)A stockholder shall also comply with all applicable requirements of the Exchange Act, with respect to the matters set forth in this Section 6. Without limiting the generality of the foregoing, any stockholder who intends to nominate a person or persons for election to the Board of Directors of the Corporation must comply in all respects with Regulation 14A (or any successor provision) under the Exchange Act and the Board of Directors shall have the authority to determine whether a stockholder has satisfied such requirement.
(b)Notice of Business at Annual Meetings.
(i)At any annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business other than the election of directors must be (A) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board or any duly authorized committee thereof, (B) otherwise properly brought before the meeting by or at the direction of the Board or any duly authorized committee thereof or (C) properly brought before the meeting by a stockholder in accordance with this Section 1.10(b).
(ii)For business other than the election of directors to be properly brought before an annual meeting by a stockholder pursuant to Section 1.10(b)(i)(C), the business must constitute a proper matter under Delaware law for stockholder action and the stockholder must (A) have given timely notice thereof in proper form in writing to the Secretary of the Corporation (and must timely provide any updates or supplements to such notice at such times and in such forms provided by this Section 1.10(b)), (B) be a stockholder of record on the date of the giving of such notice, on the record date for the determination of stockholders entitled to notice of the annual meeting and on the record date for the determination of stockholders entitled to vote at such annual meeting and (C) be entitled to vote at such annual meeting and on such proposal.



(iii)To be timely, a stockholder’s notice required by Section 1.10(b)(ii) must be received by the Secretary at the principal executive offices of the Corporation not later than 5:00 p.m. Eastern Time on the ninetieth (90th) day, nor earlier than 8:00 a.m. Eastern Time on the one hundred twentieth (120th) day, prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is scheduled for a date that is more than thirty (30) days before or more than seventy (70) days after such anniversary date or in the event that no annual meeting of stockholders was held in the previous year, notice by the stockholder to be timely must be so received not earlier than 8:00 a.m. Eastern Time on the one hundred twentieth (120th) day prior to the date of such annual meeting and not later than 5:00 p.m. Eastern Time on the later of (A) the ninetieth (90th) day prior to the date of such annual meeting and (B) the tenth (10th) day following the day on which public announcement of the date of such meeting is first made by the Corporation. In no event shall any adjournment, recess, cancellation, rescheduling or postponement of an annual meeting or the public announcement thereof commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.
(iv)To be in proper form for purposes of this Section 1.10(b), such stockholder’s notice to the Secretary must set forth:



(A)as to each matter of business the stockholder proposes to bring before the annual meeting (1) a reasonably detailed description of the business proposed to be brought before the meeting, the reasons for conducting such business at the meeting and any substantial interest (within the meaning of Item 5 of Schedule 14A (or any successor provision) under the Exchange Act) of such stockholder or the beneficial owner, if any, in such business, (2) the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend the these Bylaws, the language of the proposed amendment), (3) a description of all agreements, arrangements and understandings (whether written or oral) between or among such stockholder or the beneficial owner, if any, on whose behalf the business proposed and any of their respective affiliate or associates, on the one hand, and any other person, on the other hand (which description shall identify the name of each other person who is party to such an agreement, arrangement, or understanding), and (4) such other information relating to any proposed item of business as the Corporation may reasonably require to determine whether such proposed item of business is a proper matter for stockholder action; and
(B)as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the proposal is made (1) the information required to be provided pursuant to clause (1) through (4) of Section 1.10(a)(iii)(B) above (except that the references to “nominee” or “nomination” in such clauses shall instead refer to “business proposal” for purposes of this paragraph), (2) a representation as to whether the stockholder and/or beneficial owner, if any, or their respective affiliates or associates intends or is part of a group which intends (x) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required under applicable law to approve or adopt the proposal (and such representation shall be included in any such proxy statement and form of proxy) and/or (y) otherwise to solicit proxies or votes from stockholders in support of such proposal (and such representation shall be included in any such solicitation materials), (3) a description of any agreement, arrangement, or understanding (whether written or oral) between the stockholder or the beneficial owner, if any, and their respective affiliates or associates, on the one hand, and any other person or persons, on the other hand (including their



names) entered into (w) for the purposes of acquiring, holding, voting (except, in the case of a meeting of stockholders of the Corporation, pursuant to a revocable proxy given to such person in response to a public proxy solicitation made generally by such person to all stockholders entitled to vote at the meeting), or disposing of any capital stock of the Corporation, (x) to cooperate in obtaining, changing, or influencing the control of the Corporation (except independent financial, legal, and other advisors acting in the ordinary course of their respective businesses), (y) with the effect or intent of increasing or decreasing the voting power of, or that contemplates any person voting together with, the stockholder or beneficial owner, if any, with respect to any capital stock of the Corporation, or (z) otherwise in connection with the proposed business, including with respect to such stockholder’s notice, (4) all information that would be required to be set forth in a Schedule 13D filed pursuant to Rule 13d-1(a) under the Exchange Act or an amendment pursuant to Rule 13d-2(a) under the Exchange Act if such a statement were required to be filed under the Exchange Act and the rules and regulations promulgated thereunder by such stockholder, such beneficial owner, and their respective affiliates or associates, (5) any other information relating to such stockholder and beneficial owner, if any, required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for the proposal pursuant to Section 14(a) of the Exchange Act, (6) a description of any proxy (other than a revocable proxy given in response to a public proxy solicitation made pursuant to, and in accordance with, the Exchange Act), contract, agreement, arrangement, understanding (whether written or oral), or relationship pursuant to which such stockholder, such beneficial owner, or any of their respective affiliates or associates has or shares a right to vote any shares of any class or series of capital stock of the Corporation, and (7) the names and addresses of other stockholders (including beneficial and record owners) known by the stockholder to support the proposed business to be brought before the meeting, and to the extent known, the number of shares of capital stock of the Corporation owned beneficially or of record by such other stockholders.




(v)In addition, to be timely and in proper written form, a stockholder’s notice to the Secretary must further be updated and supplemented by such stockholder, if necessary, so that the information provided or required to be provided in such notice shall be true and correct as of the record date for the meeting and as of the date that is ten (10) days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to the Secretary at the principal executive offices of the Corporation by hand or by certified mail, return receipt requested, not later than 5:00 p.m. Eastern Time on the fifth (5th) day after the record date for the meeting in the case of the update and supplement required to be made as of the record date, and not later than 5:00 p.m. Eastern Time on the eighth (8th) day prior to the date for the meeting or any adjournment or postponement thereof in the case of the update and supplement required to be made as of ten (10) days prior to the meeting or any adjournment or postponement thereof. For the avoidance of doubt, the obligation to update and supplement as set forth in this paragraph or any other Section of these Bylaws shall not limit the Corporation’s rights with respect to any deficiencies in any notice provided by a stockholder, extend any applicable deadlines under these Bylaws, or enable or be deemed to permit a stockholder who has previously submitted a notice under these Bylaws to amend or update any proposal or to submit any new proposal, including by changing or adding matters, business, and/or resolutions proposed to be brought before a meeting of stockholders and no such update or supplement shall cure or affect the accuracy (or inaccuracy) of any representations made by any stockholder or the validity (or invalidity) of any proposed business that failed to comply with this Section 1.10(b) or is rendered invalid as a result of any inaccuracy therein.



(vi)Notwithstanding anything in this Section 1.10(b) to the contrary, the foregoing notice requirements of this Section 1.10(b) shall be deemed satisfied by a stockholder with respect to business other than a nomination if the stockholder has notified the Corporation of such stockholder’s intention to present a proposal at an annual meeting in compliance with applicable rules and regulations promulgated under the Exchange Act and such stockholder’s proposal has been included in a proxy statement that has been prepared by the Corporation to solicit proxies for such annual meeting.
(c)Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election or re-election to the Board may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting only (i) by or at the direction of the Board or any duly authorized committee thereof or (ii) provided that the Board has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who (A) is a stockholder of record at the time the notice provided for in this Section 1.10 is received by the Secretary of the Corporation, on the record date for the determination of stockholders entitled to notice of the special meeting and on the record date for the determination of stockholders entitled to vote at such special meeting, (B) is entitled to vote at the meeting and upon such election or re-election and (C) complies with the notice procedures set forth in this Section 1.10(c) (including, without limitation, as to (I) timely notice and as to proper form, which notice shall include the information, agreements, consents and representations set forth in Section 1.10(a) and (II) updates and supplements to such notice at such times and in such forms set forth in Section 1.10(a), except in each case that the references to “annual meeting” in Section 1.10(a) shall instead refer to such “special meeting”) and applicable law. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board, any such stockholder entitled to vote in such election or re-election of directors may nominate a person or persons (as the case may be) for election or re-election to such position(s) as specified in the Corporation’s notice of meeting, if the stockholder’s notice required by paragraph (a)(iii) of this Section 1.10 with respect to each such nomination (including, without limitation, all Nominee Information) shall be received by the Secretary at the principal executive offices of the Corporation not earlier than 8:00 a.m. Eastern Time on the one hundred twentieth (120th) day prior to the date of such special meeting and not later than 5:00 p.m. Eastern Time on the later of (A) the ninetieth (90th) day prior to the date of such special meeting and (B) the tenth (10th) day following the day on which public announcement of the date of such special meeting is first made by the Corporation. In no event shall any adjournment, recess, cancellation, rescheduling or postponement of a special meeting or the public announcement thereof commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. The number of nominees a stockholder may nominate for election at a special meeting of stockholders on its own behalf (or in the case of one or more stockholders giving the notice on behalf of a beneficial owner, the number of nominees such stockholders may collectively nominate for election at the meeting on behalf of such beneficial owner) shall not exceed the number of directors to be elected at such meeting.






(d)General. (i) Except as otherwise expressly provided in any applicable rule or regulation promulgated under the Exchange Act, only such persons who are nominated in accordance with the procedures set forth in this Section 1.10 shall be eligible to be elected at an annual or special meeting of stockholders of the Corporation to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 1.10. Except as otherwise provided by law, the chairperson of the meeting shall have the power and duty (a) to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 1.10 (including whether the stockholder or beneficial owner, if any, on whose behalf the nomination or proposal is made, solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies or votes in support of such stockholder’s nominee or proposal in compliance with such stockholder’s representation as required by clause (A)(2)(c)(vi) of this Section 1.10) and (b) if any proposed nomination or business was not made or proposed in compliance with this Section 1.10, to declare that such nomination shall be disregarded or that such proposed business shall not be transacted. Except as otherwise required by law, nothing in this Section 1.10 shall obligate the Corporation or the Board to include in any proxy statement or other stockholder communication distributed on behalf of the Corporation or the Board information with respect to any nominee for director submitted by a stockholder. Notwithstanding the foregoing provisions of this Section 1.10, unless otherwise required by law, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination or proposed business, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 1.10, to be considered a qualified representative of the stockholder, a person or entity must be a duly authorized officer, manager or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person or entity must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.
(vii)For purposes of these Bylaws:
“affiliate” has the meaning in Rule 12b-2 under the Exchange Act.
“associate” has the meaning in Rule 12b-2 under the Exchange Act.
“beneficial ownership,” including the correlative terms “beneficially own” and “beneficial owner,” has the meaning in Rule 13d-3 under the Exchange Act, except that a person shall in all events be deemed to beneficially own any shares of any class or series of capital stock of the Corporation as to which such person has a right to acquire (by conversion, exercise of otherwise) beneficial ownership currently or at any time in the future.



“Derivative Transaction” shall mean any agreement, arrangement, interest or understanding entered into by, or on behalf or for the benefit of, the stockholder or beneficial owner or any of their respective affiliates or associates, whether record or beneficial:
(w) the value of which is derived in whole or in part from the value of any class or series of shares or other securities of the Corporation,
(x) which otherwise provides any direct or indirect opportunity to gain or share in any gain derived from a change in the value of securities of the Corporation,
(y) the effect or intent of which is to mitigate loss, manage risk or benefit of security value or price changes, or
(z) which provides the right to vote or increase or decrease the voting power of, such stockholder or beneficial owner, or any of their respective affiliates or associates, with respect to any securities of the Corporation,
which agreement, arrangement, interest or understanding may include, without limitation, any option, warrant, debt position, note, bond, convertible security, swap, stock appreciation right, short position, profit interest, hedge, right to dividends, voting agreement, performance-related fee or arrangement to borrow or lend shares (whether or not subject to payment, settlement, exercise or conversion in any such class or series), and any proportionate interest of such stockholder or beneficial owner in the securities of the Corporation held, directly or indirectly, by any general or limited partnership, limited liability company or similar entity of which such stockholder or beneficial owner is or, directly or indirectly, owns an interest in a general partner or managing member of such entity.



“public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or other national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act
.
(viii)Notwithstanding the foregoing provisions of this Section 1.10, a stockholder shall also comply with all applicable requirements of the Exchange Act with respect to the matters set forth herein; provided, however, that any references in these Bylaws to the Exchange Act are not intended to and shall not limit any requirements applicable to nominations or proposals as to any other business to be considered pursuant to this Section 1.10 (including paragraphs (a)(i)(C), (b)(i)(C) and (c) hereof), and compliance with paragraphs (a)(i)(B), (b)(i)(C) and (c) of this Section 1.10 shall be the exclusive means for a stockholder to make nominations or submit other business (other than business other than nominations brought properly under and in compliance with Rule 14a-8 of the Exchange Act, as may be amended from time to time). Nothing in these Bylaws shall be deemed to affect any rights (a) of stockholders to request inclusion of proposals or nominations in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or (b) of the holders of any series of Preferred Stock to elect directors pursuant to any applicable provisions of the Certificate of Incorporation.
1.11Conduct of Meetings; Inspectors of Election



.
(a)Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in the Chairperson’s absence by the Chief Executive Officer, or in the Chief Executive Officer’s absence, by the President, or in the absence of all of the foregoing persons by a chairperson designated by the Board. The Secretary shall act as secretary of the meeting, but in the Secretary’s absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.
(b)The Board may adopt by resolution such rules, regulations and procedures for the conduct of any meeting of stockholders of the Corporation as it shall deem appropriate including, without limitation, such guidelines and procedures as it may deem appropriate regarding the participation by means of remote communication of stockholders and proxyholders not physically present at a meeting. Except to the extent inconsistent with such rules, regulations and procedures as adopted by the Board, the chairperson of any meeting of stockholders shall have the right and authority to convene and (for any or no reason) to recess and/or adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairperson, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board or prescribed by the chairperson of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as shall be determined; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. Unless and to the extent determined by the Board or the chairperson of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.
(c)The chairperson of the meeting shall announce at the meeting when the polls for each matter to be voted upon at the meeting will be opened and closed. After the polls close, no ballots, proxies or votes or any revocations or changes thereto may be accepted.



(d)The Corporation may, and if required by law, shall, in advance of any meeting of stockholders, appoint one or more inspectors of election to act at the meeting and make a written report thereof. One or more other persons may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the chairperson of the meeting shall appoint one or more inspectors to act at the meeting. Unless otherwise required by law, inspectors may be officers, employees, agents or representatives of the Corporation. Each inspector, before entering upon the discharge of such inspector’s duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of such inspector’s ability. The inspector shall have the duties prescribed by law and, when the vote is completed, shall certify their determination of the result of the vote taken and of such other facts as may be required by law. Every vote taken by ballots shall be counted by a duly appointed inspector or duly appointed inspectors.
ARTICLE II
DIRECTORS
2.1    General Powers
. The business and affairs of the Corporation shall be managed by or under the direction of the Board, who may exercise all of the powers of the Corporation except as otherwise provided by law or the Certificate of Incorporation.
2.2    Number, Election, Term and Qualification
. The total number of directors constituting the Board shall be as fixed in, or in the manner provided by, the Certificate of Incorporation. Election of directors need not be by written ballot. The term of office of each director shall be as specified in the Certificate of Incorporation. Directors need not be stockholders of the Corporation.



2.3 Chairperson of the Board . The Board may appoint from its members a Chairperson of the Board, and such person need not be an employee or officer of the Corporation. If the Board appoints a Chairperson of the Board, such Chairperson shall perform such duties and possess such powers as are assigned by the Board and, if the Chairperson of the Board is also designated as the Corporation’s Chief Executive Officer, shall have the powers and duties of the Chief Executive Officer prescribed in Section 3.7 of these Bylaws. Unless otherwise provided by the Board, the Chairperson of the Board shall preside at all meetings of the Board.
2.4    Lead Independent Director
. The Board may appoint from its members that are Independent Directors a lead independent director of the Board (as defined below) (such director, the “Lead Independent Director”). The Lead Independent Director shall preside at all meetings at which the Chairperson of the Board is not present and shall exercise such other powers and duties as may from time to time be assigned to such Lead Independent Director by the Board or as prescribed by these Bylaws. For purposes of these Bylaws, “Independent Director” has the meaning ascribed to such term under the rules of the exchange upon which the Corporation’s common stock is primarily traded.
2.5    Quorum
. The greater of (a) a majority of the directors at any time in office and (b) one-third of the Whole Board shall constitute a quorum of the Board. For purposes of these Bylaws, the term “Whole Board” shall mean the total number of authorized directors whether or not there exist any vacancies or unfilled seats in previously authorized directorships (provided for the avoidance of doubt that voting power shall be attributed to any such vacancies or unfilled seats). If at any meeting of the Board there shall be less than a quorum, a majority of the directors present may adjourn the meeting from time to time without further notice other than announcement at the meeting, until a quorum shall be present.
2.6    Action at Meeting



. Every act or decision done or made by a majority of the directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the Board, unless a greater number is required by law, the Certificate of Incorporation or these Bylaws.
2.7    Removal
. Subject to the rights of holders of any series of Preferred Stock, directors of the Corporation may be removed only as expressly provided in the Certificate of Incorporation or by applicable law.
2.8    Newly Created Directorships; Vacancies
. Any vacancy or newly created directorship on the Board, however occurring, shall be filled only in accordance with the Certificate of Incorporation.
2.9    Resignation
. Any director may resign by delivering a resignation in writing or by electronic transmission to the Corporation. Such resignation shall be effective upon delivery unless it is specified to be effective at some later time or upon the happening of some later event.
2.10    Regular Meetings
. Regular meetings of the Board may be held without notice at such time and place as shall be determined from time to time by the Board; provided that any director who is absent when such a determination is made shall be given notice of the determination. A regular meeting of the Board may be held without notice immediately after and at the same place as the annual meeting of stockholders.
2.11    Special Meetings
. Special meetings of the Board may be called by the Chairperson of the Board, the Chief Executive Officer, the affirmative vote of a majority of the directors then in office, or by one director in the event that there is only a single director in office.



2.12    Notice of Special Meetings
. Notice of the date, place and time of any special meeting of the Board shall be given to each director (a) in person, by telephone or by electronic transmission at least twenty-four (24) hours in advance of the meeting, (b) by delivering written notice by hand to such director’s last known business or home at least twenty-four (24) hours in advance of the meeting, or (c) by sending written notice by first-class mail to such director’s last known business or home address at least seventy-two (72) hours in advance of the meeting. Such notice may be given by the Secretary or by the Chairperson of the Board, the Chief Executive Officer or one of the directors calling the meeting. A notice or waiver of notice of a meeting of the Board need not specify the purposes of the meeting.
2.13    Meetings by Conference Communications Equipment
. Directors may participate in meetings of the Board or any committee thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at such meeting.
2.14    Action by Consent
. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting, if all members of the Board or committee, as the case may be, consent to the action in writing or by electronic transmission.
2.15    Committees
. The Board may designate one or more committees, each committee to consist of one or more of the directors of the Corporation with such lawfully delegable powers and duties as the Board thereby confers, to serve at the pleasure of the Board. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members of the committee present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.



Any such committee, to the extent provided in the resolution of the Board and subject to the provisions of law, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation and may authorize the seal of the Corporation to be affixed to all papers which may require it. Each such committee shall keep minutes and make such reports as the Board may from time to time request. Except as the Board may otherwise determine, any committee may make rules for the conduct of its business, but unless otherwise provided by the directors or in such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these Bylaws for the Board. Except as otherwise provided in the Certificate of Incorporation, these Bylaws, or the resolution of the Board designating the committee, a committee may create one or more subcommittees, each subcommittee to consist of one or more members of the committee, and delegate to a subcommittee any or all of the powers and authority of the committee.
2.16    Compensation of Directors
. Directors may be paid such compensation for their services and such reimbursement for expenses of attendance at meetings as the Board may from time to time determine. No such payment shall preclude any director from serving the Corporation or any of its parent or subsidiary entities in any other capacity and receiving compensation for such service.
ARTICLE III
OFFICERS
3.1    Titles
. The officers of the Corporation may consist of a Chief Executive Officer, a President, a Chief Financial Officer, a Treasurer and a Secretary and such other officers with such other titles as the Board shall from time to time determine. The Board may appoint such other officers, including one or more Vice Presidents and one or more Assistant Treasurers or Assistant Secretaries, as it may deem appropriate from time to time.



3.2    Election
. The officers of the Corporation shall be elected by the Board.
3.3    Qualification
. No officer need be a stockholder. Any two or more offices may be held by the same person.
3.4    Tenure
. Except as otherwise provided by law, by the Certificate of Incorporation or by these Bylaws, each officer shall hold office until such officer’s successor is duly elected and qualified, unless a different term is specified in the resolution electing or appointing such officer, or until such officer’s earlier death, resignation, disqualification or removal.
3.5    Resignation and Removal
. Any officer may resign by delivering a resignation in writing or by electronic transmission to the Corporation. Such resignation shall be effective upon delivery unless it is specified to be effective at some later time or upon the happening of some later event. Any officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Whole Board. Except as the Board may otherwise determine, no officer who resigns or is removed shall have any right to any compensation as an officer for any period following such officer’s resignation or removal, or any right to damages on account of such removal, whether such officer’s compensation be by the month or by the year or otherwise, unless such compensation is expressly provided for in a duly authorized written agreement with the Corporation
3.6    Vacancies
. The Board may fill any vacancy occurring in any office for any reason and may, in its discretion, leave unfilled, for such period as it may determine, any offices.



Each such successor shall hold office for the unexpired term of such officer’s predecessor and until a successor is duly elected and qualified, or until such officer’s earlier death, resignation, disqualification or removal.
3.7    President; Chief Executive Officer
. Unless the Board has designated another person as the Corporation’s Chief Executive Officer, the President shall be the Chief Executive Officer of the Corporation. The Chief Executive Officer shall have general charge and supervision of the business of the Corporation subject to the direction of the Board, and shall perform all duties and have all powers that are commonly incident to the office of chief executive or that are delegated to such officer by the Board. The President shall perform such other duties and shall have such other powers as the Board or the Chief Executive Officer (if the President is not the Chief Executive Officer) may from time to time prescribe. In the event of the absence, inability or refusal to act of the Chief Executive Officer or the President (if the President is not the Chief Executive Officer), the Vice President (or if there shall be more than one, the Vice Presidents in the order determined by the Board) shall perform the duties of the Chief Executive Officer and when so performing such duties shall have all the powers of and be subject to all the restrictions upon the Chief Executive Officer.
3.8    Chief Financial Officer
. Unless the Board has designated another person as the Corporation’s Chief Financial Officer, the Treasurer shall be the Chief Financial Officer of the Corporation. The Chief Financial Officer shall perform such duties and possess such powers as the Board or the Chief Executive Officer may from time to time prescribe.
3.9    Vice Presidents
. Each Vice President shall perform such duties and possess such powers as the Board or the Chief Executive Officer may from time to time prescribe. The Board may assign to any Vice President the title of Executive Vice President, Senior Vice President or any other title selected by the Board.



3.10    Secretary and Assistant Secretaries
. The Secretary shall perform such duties and shall have such powers as the Board or the Chief Executive Officer may from time to time prescribe. In addition, the Secretary shall perform such duties and have such powers as are incident to the office of the secretary, including without limitation the duty and power to give notices of all meetings of stockholders and special meetings of the Board, to attend all meetings of stockholders and the Board and keep a record of the proceedings, to maintain a stock ledger and prepare lists of stockholders and their addresses as required, to be custodian of corporate records and the corporate seal and to affix and attest to the same on documents.
Any Assistant Secretary shall perform such duties and possess such powers as the Board, the Chief Executive Officer or the Secretary may from time to time prescribe. In the event of the absence, inability or refusal to act of the Secretary, the Assistant Secretary (or if there shall be more than one, the Assistant Secretaries in the order determined by the Board) shall perform the duties and exercise the powers of the Secretary.
The chairperson of any meeting of the Board or of stockholders may designate a temporary secretary to keep a record of any meeting.
3.11    Treasurer and Assistant Treasurers
. The Treasurer shall perform such duties and shall have such powers as may from time to time be assigned by the Board or the Chief Executive Officer. In addition, the Treasurer shall perform such duties and have such powers as are incident to the office of treasurer, including without limitation the duty and power to keep and be responsible for all funds and securities of the Corporation, to deposit funds of the Corporation in depositories selected in accordance with these Bylaws, to disburse such funds as ordered by the Board, to make proper accounts of such funds, and to render as required by the Board statements of all such transactions and of the financial condition of the Corporation.



The Assistant Treasurers shall perform such duties and possess such powers as the Board, the Chief Executive Officer or the Treasurer may from time to time prescribe. In the event of the absence, inability or refusal to act of the Treasurer, the Assistant Treasurer (or if there shall be more than one, the Assistant Treasurers in the order determined by the Board) shall perform the duties and exercise the powers of the Treasurer.
3.12    Salaries
. Officers of the Corporation shall be entitled to such salaries, compensation or reimbursement as shall be fixed or allowed from time to time by the Board.
3.13    Delegation of Authority
. The Board may from time to time delegate the powers or duties of any officer to any other officer or agent, notwithstanding any provision hereof.
ARTICLE IV
CAPITAL STOCK
4.1    Stock Certificates; Uncertificated Shares
. The shares of the Corporation shall be uncertificated shares, provided that the resolution of the Board that the shares of capital stock of the Corporation shall be uncertificated shares shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation (or the transfer agent or registrar, as the case may be). Notwithstanding the foregoing, the Board may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be certificated shares. Every holder of stock of the Corporation represented by certificates shall be entitled to have a certificate, in such form as may be prescribed by law and by the Board, representing the number of shares held by such holder registered in certificate form. Each such certificate shall be signed by or in the name of the Corporation by any two authorized officers of the Corporation and each of the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer and any Assistant Treasurer are duly authorized to sign such certificates by, or in the name of, the Corporation, unless otherwise expressly provided in the resolution of the Board electing such officer.



Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were an officer, transfer agent or registrar at the date of issue.
Each certificate for shares of stock which are subject to any restriction on transfer pursuant to the Certificate of Incorporation, these Bylaws, applicable securities laws or any agreement among any number of stockholders or among such holders and the Corporation shall have conspicuously noted on the face or back of the certificate either the full text of the restriction or a statement of the existence of such restriction.
If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class, the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of each certificate representing shares of such class or series of stock, provided that in lieu of the foregoing requirements there may be set forth on the face or back of each certificate representing shares of such class or series of stock a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
Within a reasonable time after the issuance or transfer of uncertificated shares, the registered owner thereof shall be given a notice, in writing or by electronic transmission, containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) of the DGCL or, with respect to Section 151 of DGCL, a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.



4.2    Transfers
. Shares of stock of the Corporation shall be transferable in the manner prescribed by law, the Certificate of Incorporation and in these Bylaws. Transfers of shares of stock of the Corporation shall be made only on the books of the Corporation or by transfer agents designated to transfer shares of stock of the Corporation. Subject to applicable law, shares of stock represented by certificates shall be transferred only on the books of the Corporation by the surrender to the Corporation or its transfer agent of the certificate representing such shares properly endorsed or accompanied by a written assignment or power of attorney properly executed, and with such proof of authority or the authenticity of signature as the Corporation or its transfer agent may reasonably require. Except as may be otherwise required by law, by the Certificate of Incorporation or by these Bylaws, the Corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect to such stock, regardless of any transfer, pledge or other disposition of such stock until the shares have been transferred on the books of the Corporation in accordance with the requirements of these Bylaws.
4.3    Lost, Stolen or Destroyed Certificates
. The Corporation may issue a new certificate or uncertificated shares in place of any previously issued certificate alleged to have been lost, stolen or destroyed, upon such terms and conditions as the Board may prescribe, including the presentation of reasonable evidence of such loss, theft or destruction and the giving of such indemnity and posting of such bond sufficient to indemnify the Corporation or any transfer agent or registrar against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.
4.4    Record Date



. In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If the Board so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance herewith at the adjourned meeting.
In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of capital stock or for the purpose of any other lawful action, the Board may fix a record date, which shall not be more than sixty (60) days prior to such action. If no such record date is fixed, the record date for determining stockholders for any such purpose shall be at 5:00 p.m. Eastern Time on the day on which the Board adopts the resolution relating thereto.
4.5    Regulations



. The issue and registration of shares of stock of the Corporation shall be governed by such other regulations as the Board may establish.
ARTICLE V
GENERAL PROVISIONS
5.1    Fiscal Year
. Except as from time to time otherwise designated by the Board, the fiscal year of the Corporation shall begin on the first day of January of each year and end on the last day of December in each year.
5.2    Corporate Seal
. The corporate seal shall be in such form as shall be approved by the Board.
5.3    Waiver of Notice
. Whenever notice is required to be given by law, by the Certificate of Incorporation or by these Bylaws, a written waiver signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before, at or after the time of the event for which notice is to be given, shall be deemed equivalent to notice required to be given to such person. Neither the business nor the purpose of any meeting need be specified in any such waiver. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.
5.4    Voting of Securities
. Except as the Board may otherwise designate, the Chief Executive Officer, the President, the Chief Financial Officer or the Treasurer may waive notice, vote, consent, or appoint any person or persons to waive notice, vote or consent, on behalf of the Corporation, and act as, or appoint any person or persons to act as, proxy or attorney-in-fact for the Corporation (with or without power of substitution and re-substitution), with respect to the securities of any other entity which may be held by this Corporation.



5.5    Evidence of Authority
. A certificate by the Secretary, or an Assistant Secretary, or a temporary Secretary, as to any action taken by the stockholders, directors, a committee or any officer or representative of the Corporation shall as to all persons who rely on the certificate in good faith be conclusive evidence of such action.
5.6    Certificate of Incorporation
. All references in these Bylaws to the Certificate of Incorporation shall be deemed to refer to the Certificate of Incorporation of the Corporation, as amended and/or restated and in effect from time to time, including any certificate of designation relating to any outstanding series of Preferred Stock.
5.7    Severability
. Any determination that any provision of these Bylaws is for any reason inapplicable, illegal or ineffective shall not affect or invalidate any other provision of these Bylaws.
5.8    Pronouns
. All pronouns used in these Bylaws shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons may require.
ARTICLE VI
AMENDMENTS
These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the Board or by the stockholders as expressly provided in the Certificate of Incorporation.



ARTICLE VII

INDEMNIFICATION AND ADVANCEMENT
7.1    Power to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Corporation
. Subject to Section 7.3, the Corporation shall indemnify, to the fullest extent permitted by applicable law, any person (a “Covered Person”) who was or is made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that such Covered Person is or was a director or officer of the Corporation, or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, trustee, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys’ fees), liability and loss, judgments, fines and penalties and amounts paid in settlement actually and reasonably incurred or suffered by such Covered Person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful.
7.2    Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation
.



Subject to Section 7.3, the Corporation shall indemnify, to the fullest extent permitted by applicable law, any Covered Person who was or is made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such Covered Person is or was a director or officer of the Corporation, or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, trustee, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by such Covered Person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
7.3    Authorization of Indemnification
. Any indemnification under this Article VII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the Covered Person is proper in the circumstances because such Covered Person has met the applicable standard of conduct set forth in Section 7.1 or Section 7.2, as the case may be. Such determination shall be made, with respect to a Covered Person who is a director or officer at the time of such determination, (i) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (ii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (iii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion or (iv) by the stockholders. Such determination shall be made, with respect to former directors and officers, by any person or persons having the authority to act on the matter on behalf of the Corporation. To the extent, however, that a Covered Person has been successful on the merits or otherwise in defense of any action, suit or proceeding set forth in Section 7.1 or Section 7.2 or in defense of any claim, issue or matter therein, such Covered Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith, without the necessity of authorization in the specific case.



7.4    Right of Claimant to Bring Suit
. Notwithstanding any contrary determination in the specific case under Section 7.3, and notwithstanding the absence of any determination thereunder, if (i) following the final disposition of the applicable proceeding, a claim for indemnification under Sections 7.1 or 7.2 of this Article VII is not paid in full by the Corporation within ninety (90) days after a written claim for indemnification has been received by the Corporation, or (ii) a claim for advancement of expenses under Section 7.5 of this Article VII is not paid in full by the Corporation within thirty (30) days after the Corporation has received a statement or statements requesting such amounts to be advanced, the Covered Person may at any time thereafter (but not before) bring suit against the Corporation in the Court of Chancery in the State of Delaware to recover the unpaid amount of the claim, together with interest thereon, or to obtain advancement of expenses, as applicable. It shall be a defense to any such action brought to enforce a right to indemnification (but not in an action brought to enforce a right to an advancement of expenses) that the Covered Person has not met the standards of conduct which make it permissible under the DGCL (or other applicable law) for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither a contrary determination in the specific case under Section 7.3 nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the claimant has not met any applicable standard of conduct. If successful, in whole or in part, the claimant shall also be entitled to be paid the expense of prosecuting such claim, including reasonable attorneys’ fees incurred in connection therewith, to the fullest extent permitted by applicable law.
7.5    Expenses Payable in Advance
.



Expenses, including without limitation attorneys’ fees, incurred by a Covered Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Covered Person to repay such amount if it shall ultimately be determined that such Covered Person is not entitled to be indemnified by the Corporation as authorized in this Article VII or otherwise.
7.6    Nonexclusivity of Indemnification and Advancement of Expenses
. The rights to indemnification and advancement of expenses provided by or granted pursuant to this Article VII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the Certificate of Incorporation, any agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that, subject to Section 7.10, indemnification of Covered Persons shall be made to the fullest extent permitted by law. The provisions of this Article VII shall not be deemed to preclude the indemnification of any person who is not specified in Section 7.1 or 7.2 but whom the Corporation has the power or obligation to indemnify under the provisions of the DGCL or otherwise.
7.7    Insurance
. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power or the obligation to indemnify such person against such expense, liability or loss under the provisions of this Article VII.
7.8    Certain Definitions
.



For purposes of this Article VII, references to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees or agents so that any person who is or was a director or officer of such constituent corporation, or, while a director or officer of such constituent Corporation, is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article VII with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VII, references to “fines” shall include any excise taxes assessed on a person with respect of any employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article VII.
7.9    Survival of Indemnification and Advancement of Expenses
. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VII shall continue as to a Covered Person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a Covered Person.
7.10    Limitation on Indemnification
. Notwithstanding anything contained in this Article VII to the contrary, except for proceedings to enforce rights to indemnification or advancement of expenses (which shall be governed by Section 7.4), the Corporation shall not be obligated to indemnify any Covered Person in connection with an action, suit proceeding (or part thereof)



initiated by such person unless such action, suit or proceeding (or part thereof) was authorized by the Board.
7.11    Contract Rights
. The obligations of the Corporation under this Article VII to indemnify, and advance expenses to, a Covered Person who is or was a director or officer of the Corporation shall be considered a contract between the Corporation and such Covered Person, and no modification or repeal of any provision of this Article VII shall affect, to the detriment of such Covered Person, such obligations of the Corporation in connection with a claim based on any act or failure to act occurring before such modification or repeal.


EX-31.1 4 exhibit311-q32023.htm EX-31.1 Document
Exhibit 31.1


CHIEF EXECUTIVE OFFICER CERTIFICATION PURSUANT TO SECTION 302 OF
THE SARBANES-OXLEY ACT OF 2002

I, William J. Berger, certify that:

1. I have reviewed this Quarterly Report on Form 10-Q of Sunnova Energy International Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: October 26, 2023 /s/ William J. Berger
William J. Berger
Chief Executive Officer


EX-31.2 5 exhibit312-q32023.htm EX-31.2 Document
Exhibit 31.2
CHIEF FINANCIAL OFFICER CERTIFICATION PURSUANT TO SECTION 302 OF
THE SARBANES-OXLEY ACT OF 2002

I, Robert L. Lane, certify that:

1. I have reviewed this Quarterly Report on Form 10-Q of Sunnova Energy International Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: October 26, 2023 /s/ Robert L. Lane
Robert L. Lane
Chief Financial Officer


EX-32.1 6 exhibit321-q32023.htm EX-32.1 Document
Exhibit 32.1
CHIEF EXECUTIVE OFFICER CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

Pursuant to 18 U.S.C. §1350, the undersigned officer of Sunnova Energy International Inc. (the “Registrant”) hereby certifies that, to his knowledge, the Registrant’s Quarterly Report on Form 10-Q for the three months ended September 30, 2023 (the “Quarterly Report”) fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934 and that the information contained in the Quarterly Report fairly presents, in all material respects, the financial condition and results of operations of the Registrant.

Date: October 26, 2023 /s/ William J. Berger
William J. Berger
Chief Executive Officer

EX-32.2 7 exhibit322-q32023.htm EX-32.2 Document
Exhibit 32.2
CHIEF FINANCIAL OFFICER CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

Pursuant to 18 U.S.C. §1350, the undersigned officer of Sunnova Energy International Inc. (the “Registrant”) hereby certifies that, to his knowledge, the Registrant’s Quarterly Report on Form 10-Q for the three months ended September 30, 2023 (the “Quarterly Report”) fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934 and that the information contained in the Quarterly Report fairly presents, in all material respects, the financial condition and results of operations of the Registrant.

Date: October 26, 2023 /s/ Robert L. Lane
Robert L. Lane
Chief Financial Officer