Form 10-Q Advanced Emissions Solut For: Jun 30

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August 9, 2016 5:06 PM EDT


United States
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________________________ 
FORM 10-Q
 ______________________________________  
x
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 2016
or
¨
TRANSITION REPORT PURSUANT TO 13 OR 15(d) OF THE EXCHANGE ACT OF 1934
For the transition period from to
Commission File Number: 000-54992
______________________________________  
Advanced Emissions Solutions, Inc.
(Exact name of registrant as specified in its charter)
______________________________________   
Delaware
 
27-5472457
(State or other jurisdiction of
incorporation or organization)
 
(I.R.S. Employer
Identification No.)
9135 South Ridgeline Boulevard, Suite 200, Highlands Ranch CO,
 
80129
(Address of principal executive offices)
 
(Zip Code)
(720) 598-3500
 (Registrant’s telephone number, including area code)
Not Applicable
(Former name, former address and former fiscal year, if changed since last report)
______________________________________ 
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  x   No  ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted 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 and post such files).    Yes  x    No  ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one): 
Large accelerated filer
 
o
  
Accelerated filer
 
x
 
 
 
 
Non-accelerated filer
 
o
  
Smaller reporting company
 
¨
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act. (Check one):    Yes  ¨    No  x
Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date. 
Class
 
Outstanding at August 1, 2016
Common stock, par value $0.001 per share
 
22,037,821




INDEX
 
 
PAGE
 
 
 
 
 
 
 
 
 
 
 




Part I. – FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements
Advanced Emissions Solutions, Inc. and Subsidiaries
Condensed Consolidated Balance Sheets
(Unaudited)
 
 
As of
(in thousands, except share data)
 
June 30, 2016
 
December 31, 2015
ASSETS
 
 
 
 
Current assets:
 
 
 
 
Cash and cash equivalents
 
$
2,221

 
$
9,265

Receivables, net
 
8,950

 
8,361

Receivables, related parties, net
 
444

 
1,918

Restricted cash
 
4,469

 
728

Costs in excess of billings on uncompleted contracts
 
1,254

 
2,137

Prepaid expenses and other assets
 
1,781

 
2,306

Total current assets
 
19,119

 
24,715

Restricted cash, long-term
 
6,700

 
10,980

Property and equipment, net of accumulated depreciation of $2,528 and $4,557, respectively
 
1,218

 
2,040

Investment securities, restricted, long-term
 
—

 
336

Cost method investment
 
2,776

 
2,776

Equity method investments
 
3,081

 
17,232

Other assets
 
3,714

 
2,696

Total Assets
 
$
36,608

 
$
60,775

LIABILITIES AND STOCKHOLDERS’ DEFICIT
 
 
 
 
Current liabilities:
 
 
 
 
Accounts payable
 
$
3,263

 
$
6,174

Accrued payroll and related liabilities
 
3,413

 
5,800

Current portion of notes payable, related parties
 
—

 
1,837

Billings in excess of costs on uncompleted contracts
 
5,112

 
9,708

Short-term borrowings, net of discount and deferred loan costs, related party
 
—

 
12,676

Legal settlements and accruals
 
11,470

 
6,502

Other current liabilities
 
7,012

 
7,395

Total current liabilities
 
30,270

 
50,092

Long-term portion of notes payable, related party
 
—

 
13,512

Legal settlements and accruals, long-term
 
11,596

 
13,797

Advance deposit, related party
 
2,362

 
2,980

Other long-term liabilities
 
2,871

 
5,372

Total Liabilities
 
47,099

 
85,753

Commitments and contingencies (Note 8)
 

 

Stockholders’ deficit:
 
 
 
 
Preferred stock: par value of $.001 and no par value per share, respectively, 50,000,000 shares authorized, none outstanding
 
—

 
—

Common stock: par value of $.001 per share, 100,000,000 shares authorized, 22,241,474 and 21,943,872 shares issued, and 21,967,969 and 21,809,164 shares outstanding at June 30, 2016 and December 31, 2015, respectively
 
22

 
22

Additional paid-in capital
 
118,280

 
116,029

Accumulated deficit
 
(128,793
)
 
(141,029
)
Total stockholders’ deficit
 
(10,491
)
 
(24,978
)
Total Liabilities and Stockholders’ Deficit
 
$
36,608

 
$
60,775


See Notes to the Condensed Consolidated Financial Statements.

1


Advanced Emissions Solutions, Inc. and Subsidiaries
Condensed Consolidated Statements of Operations
(Unaudited) 
 
 
Three Months Ended June 30,

Six Months Ended June 30,
(in thousands, except per share data and percentages)
 
2016

2015

2016

2015
Revenues:
 
 
 
 
 
 
 
 
Equipment sales
 
$
8,213


$
14,236


$
29,919


$
35,351

Chemicals
 
613


343


1,047


617

Consulting services and other
 
125


316


320


684

Total revenues
 
8,951


14,895


31,286


36,652

Operating expenses:
 







Equipment sales cost of revenue, exclusive of depreciation and amortization
 
5,437


13,698


22,470


28,749

Chemicals cost of revenue, exclusive of depreciation and amortization
 
255


41


396


278

Consulting services cost of revenue, exclusive of depreciation and amortization
 
77


264


212


690

Payroll and benefits
 
3,956


9,746


7,759


14,657

Rent and occupancy
 
632


601


1,026


1,232

Legal and professional fees
 
1,982


4,387


4,965


8,122

General and administrative
 
1,346


1,503


2,092


3,385

Research and development, net
 
(345
)

1,860


(143
)

3,110

Depreciation and amortization
 
223


573


454


1,104

Total operating expenses

13,563


32,673


39,231


61,327

Operating loss

(4,612
)

(17,778
)

(7,945
)

(24,675
)
Other income (expense):












Earnings from equity method investments

13,754


4,860


19,331


5,174

Royalties, related party

669


2,299


1,859


4,493

Interest income

95


6


118


18

Interest expense

(1,573
)

(1,794
)

(3,537
)

(3,569
)
Gain on sale of equity method investment

—


—


2,078


—

Gain on settlement of note payable and licensed technology

151


—


1,019


—

Other

(525
)

23


(535
)

87

Total other income

12,571


5,394


20,333


6,203

Income (loss) before income tax expense

7,959


(12,384
)

12,388


(18,472
)
Income tax expense

99


63


152


107

Net income (loss)

$
7,860


$
(12,447
)

$
12,236


$
(18,579
)
Earnings (loss) per common share (Note 1):












Basic

$
0.36


$
(0.57
)

$
0.55


$
(0.85
)
Diluted

$
0.35


$
(0.57
)

$
0.55


$
(0.85
)
Weighted-average number of common shares outstanding:












Basic

21,875


21,715


21,895


21,728

Diluted

22,187


21,715


22,204


21,728


See Notes to the Condensed Consolidated Financial Statements.



2


Advanced Emissions Solutions, Inc. and Subsidiaries
Condensed Consolidated Statements of Cash Flows
(Unaudited) 
 
 
Six Months Ended June 30,
(in thousands)
 
2016
 
2015
Cash flows from operating activities
 
 
 
 
Net income (loss)

$
12,236


$
(18,579
)
Adjustments to reconcile net income (loss) to net cash used in operating activities:




Depreciation and amortization

454


1,104

Amortization of debt issuance costs

1,152


50

Impairment of property and equipment and inventory

517


46

Interest costs added to principal balance of notes payable

—


432

Share-based compensation expense

1,543


5,459

Earnings from equity method investments

(19,331
)

(5,174
)
Gain on sale of equity method investment

(2,078
)

—

Gain on settlement of note payable and licensed technology

(1,019
)

—

Other non-cash items, net

34

 
688

Changes in operating assets and liabilities, net of effects of acquired businesses:






Receivables

(627
)

7,625

Related party receivables

1,473


(226
)
Prepaid expenses and other assets

806


(460
)
Costs incurred on uncompleted contracts

17,201


2,363

Restricted cash

1,089


(709
)
Other long-term assets

(2,630
)

231

Accounts payable

(2,910
)

2,713

Accrued payroll and related liabilities

(1,596
)

1,651

Other current liabilities

(101
)

1,348

Billings on uncompleted contracts

(20,910
)

(9,420
)
Advance deposit, related party

(618
)

(1,496
)
Other long-term liabilities

(1,336
)

19

Legal settlements and accruals

2,767


(1,472
)
Distributions from equity method investees, return on investment

5,900


19

Net cash used in operating activities

(7,984
)

(13,788
)

3


 
 
Six Months Ended June 30,
(in thousands)
 
2016
 
2015
Cash flows from investing activities




Maturity of investment securities, restricted

336


—

Increase in restricted cash

(550
)

(1,200
)
Acquisition of property and equipment, net

(111
)

(380
)
Advance on note receivable

—


(500
)
Acquisition of business

—


(2,124
)
Purchase of and contributions to equity method investees

(223
)

(230
)
Proceeds from sale of equity method investment

1,773


—

Distributions from equity method investees in excess of cumulative earnings

14,875


4,730

Net cash provided by investing activities

16,100


296

Cash flows from financing activities




Repayments on short-term borrowings, related party

(13,250
)

—

Repayments on notes payable, related party

(1,246
)

(1,014
)
Short-term borrowing loan costs

(579
)

—

Repurchase of shares to satisfy tax withholdings

(85
)

(262
)
Net cash used in financing activities

(15,160
)

(1,276
)
Decrease in Cash and Cash Equivalents

(7,044
)

(14,768
)
Cash and Cash Equivalents, beginning of period

9,265


25,181

Cash and Cash Equivalents, end of period

$
2,221


$
10,413

Supplemental disclosures of cash information:




Cash paid for interest

$
1,436


$
2,993

Cash paid (refunded) for income taxes

$
(72
)

$
146

Supplemental disclosure of non-cash investing and financing activities:




Restricted stock award reclassification (liability to equity)

$
899


$
—

Settlement of RCM6 note payable

$
13,234


$
—

Non-cash reduction of equity method investment

$
11,156


$
—


See Notes to the Condensed Consolidated Financial Statements.



4


Advanced Emissions Solutions, Inc. and Subsidiaries
Notes to Condensed Consolidated Financial Statements
(Unaudited)
Note 1 - Basis of Presentation
Nature of Operations
Advanced Emissions Solutions, Inc. ("ADES" or the "Company"), a Delaware corporation with its principal office located in Highlands Ranch, Colorado, is principally engaged in providing environmental and emissions control equipment, technologies and specialty chemicals to the coal-burning electric power generation industry. Although the Company has historically operated at a net loss, the Company generates substantial earnings and tax credits under Section 45 of the Internal Revenue Code ("IRC") from its equity investments in certain entities and royalty payment streams related to technologies that are licensed to Clean Coal Solutions, LLC, a Colorado limited liability company ("CCS"). Such technologies allow CCS to provide their customers with various solutions to enhance combustion and reduced emissions of nitrogen oxide ("NOx") and mercury from coal burned to generate electrical power. The Company’s sales occur principally throughout the United States. See Note 12 for additional information regarding the Company's operating segments.
Basis of Presentation
The accompanying Condensed Consolidated Financial Statements of ADES are unaudited and have been prepared in conformity with U.S. generally accepted accounting principles ("U.S. GAAP") and with Article 10 of Regulation S-X. In compliance with those instructions, certain information and footnote disclosures normally included in annual consolidated financial statements prepared in accordance with U.S. GAAP have been condensed or omitted.
The unaudited Condensed Consolidated Financial Statements of ADES in this quarterly report are presented on a consolidated basis comprising ADES and its direct and indirect, wholly-owned subsidiaries: ADA-ES, Inc. ("ADA"), a Colorado corporation; BCSI, LLC ("BCSI"), a Delaware limited liability company; Advanced Clean Energy Solutions, LLC ("ACES"), a Delaware limited liability company; ADEquity, LLC ("ADEquity"), a Delaware limited liability company; ADA Environmental Solutions, LLC ("ADA LLC"), a Colorado limited liability company; ADA Intellectual Property, LLC ("ADA IP"), a Colorado limited liability company; ADA-RCM6, LLC ("ADA-RCM6"), a Colorado limited liability company; ADA Analytics, LLC, a Delaware limited liability company and ADA Analytics Israel Ltd. (collectively with ADA Analytics, LLC, "ADA Analytics"), an Israel limited liability company. ADA LLC and ADA IP had no operations for the three and six months ended June 30, 2016 and 2015, nor during the year ended December 31, 2015.
Included within the unaudited Condensed Consolidated Financial Statements of ADES in this quarterly report are its investments, CCS and Clean Coal Solutions Services, LLC ("CCSS"), which are accounted for using the equity method of accounting. As discussed in Note 4, the Company sold its equity investment in RMC6 in March 2016, which was also accounted for using the equity method prior to the sale.
During 2015, the Company elected to cease the operations of ADA Analytics. The Company anticipates that ADA Analytics will be legally dissolved during 2016. In addition, the Company terminated its manufacturing operations, conducted under BCSI, effective as of the end of 2015. The Company anticipates that BCSI will eventually be legally dissolved upon the winding down of its remaining manufacturing operations, commitments and obligations. The Company will continue to serve the Dry Sorbent Injection ("DSI") market, which BCSI previously served, through ADA.
Results of operations and cash flows for the interim periods are not necessarily indicative of the results that may be expected for the entire year. All significant intercompany transactions and accounts were eliminated as of and for the three and six months ended June 30, 2016 and 2015.
In the opinion of management, these Condensed Consolidated Financial Statements include all normal and recurring adjustments considered necessary for a fair presentation of the results of operations, financial position and cash flows for the interim periods presented. These Condensed Consolidated Financial Statements of ADES should be read in conjunction with the Company’s Annual Report on Form 10-K for the year ended December 31, 2015. Significant accounting policies disclosed therein have not changed.
Liquidity
During the six months ended June 30, 2016, the Company's cash and cash equivalents balance continued to decline, primarily due to debt service payments on our short-term loan, discussed in Note 8 (the “Credit Agreement”) and notes payable, fees incurred to extend the maturity of our Credit Agreement, the payoff of our Credit Agreement on June 30, 2016 and delivering on our existing contracts and customer commitments. In addition, the Company continued to incur professional fees related to the re-audit and restatement of prior financial statements (the "Restatement") and to become current with its regulatory filings.

5


The Company's working capital increased by $14.2 million during the six months ended June 30, 2016, primarily due to distributions from CCS and CCSS, reduction in operated retained RC facilities, proceeds received from the sale of our interest in RCM6 and the elimination of the related note payable, as well as the favorable settlement of our note payable to the former-sole owner of companies from which BCSI acquired its assets (the "DSI Business Owner"). Working capital was also positively affected by net income for the three and six months ended June 30, 2016, which was driven in part by significantly improved performance from our Refined Coal ("RC") segment, specifically cash distributions. The Company expects that the pressure on our working capital will continue as we continue to restructure our operations and seek to expand our revenue generating activities.
The Company's ability to generate sufficient cash flow required to meet ongoing operational needs and to meet obligations depends upon several factors, including executing on the Company's contracts and initiatives, receiving royalty payments from CCS and distributions from CCS and CCSS, and our ability to maintain and grow our share of the market and increase operational efficiencies for emissions control equipment, chemicals and services. Increased distributions from CCS will likely be dependent upon the securing of additional tax equity investors for those CCS facilities that are currently not operating, or operating as retained RC facilities. If we are unable to generate sufficient cash flow, we may be unable to meet our operational needs. We are working to renegotiate the terms of the existing revolving credit facility to enable the Company to have borrowing capacity to provide short-term liquidity for operating purposes. If we are unable to obtain such financing, we will continue to restructure our operations to adequately manage our cash position.
Earnings (Loss) Per Share
The Company computes earnings (loss) per share in accordance with FASB ASC 260-10. Under this guidance, unvested restricted stock awards ("RSA's") that contain non-forfeitable rights to dividends or dividend equivalents are deemed to be participating securities and, therefore, are included in computing basic earnings per share pursuant to the two-class method. The two-class method determines earnings per share for each class of common stock and participating securities according to dividends or dividend equivalents and their respective participation rights in undistributed earnings (losses). The Company did not declare any cash dividends during the three-month or six-month periods ended June 30, 2016 or 2015.
Under the two-class method, net income (loss) for the period is allocated between common stockholders and the holders of the participating securities, in this case, the weighted-average number of unvested restricted stock awards outstanding during the period. The allocated, undistributed income (loss) for the period is then divided by the weighted-average number of common shares and participating securities outstanding during the period to arrive at basic earnings (loss) per common share or participating security for the period, respectively. Because the Company did not declare any dividends during the periods presented, and because the unvested RSA's possess substantially the same rights to undistributed earnings as common shares outstanding, there is no difference between the calculated basic earnings (loss) per share for common shares and participating securities. Accordingly, and pursuant to U.S. GAAP, the Company has elected not to separately present basic or diluted earnings (loss) per share attributable to participating securities on its Condensed Consolidated Statements of Operations.
Diluted earnings (loss) per share takes into consideration shares of common stock and unvested RSA's outstanding (computed under basic earnings (loss) per share) and potentially dilutive shares of common stock. Potentially dilutive shares consist of vested, in-the-money outstanding options, Stock Appreciation Rights ("SAR's") and contingent Performance Share Units ("PSU's") (collectively "Potential dilutive shares"). When there is a loss from continuing operations, all potentially dilutive shares become anti-dilutive and are thus excluded from the calculation of diluted loss per share.
Each PSU represents a contingent right to receive shares of the Company’s common stock, that may range from zero to two times the number of PSU's granted on the award date, should the Company meet certain performance measures over the requisite performance period. The number of potentially dilutive shares related to PSU's is based on the number of shares, if any, that would be issuable at the end of the respective reporting period, assuming that the end of the reporting period was the end of the contingency period applicable to such PSU's.

6


The following table sets forth the calculations of basic and diluted earnings (loss) per share:
 
 
Three Months Ended June 30,
 
Six Months Ended June 30,
(in thousands, except per share amounts)
 
2016
 
2015
 
2016
 
2015
Net income (loss)
 
$
7,860

 
$
(12,447
)
 
$
12,236

 
$
(18,579
)
Less: Undistributed income (loss) allocated to participating securities
 
83

 
(130
)
 
109

 
(215
)
Income (loss) attributable to common stockholders
 
$
7,777

 
$
(12,317
)
 
$
12,127

 
$
(18,364
)

 


 


 


 


Basic weighted-average common shares outstanding
 
21,875

 
21,715

 
21,895

 
21,728

Add: dilutive effect of equity instruments
 
312

 
—

 
309

 
—

Diluted weighted average shares outstanding
 
22,187

 
21,715

 
22,204

 
21,728

Earnings (loss) per share - basic
 
$
0.36

 
$
(0.57
)
 
$
0.55

 
$
(0.85
)
Earnings (loss) per share - diluted
 
$
0.35

 
$
(0.57
)
 
$
0.55

 
$
(0.85
)
The table below shows the number of shares that were excluded from the calculation of diluted loss per share because their inclusion would have been anti-dilutive to the calculation:
 
 
Three Months Ended June 30,
 
Six Months Ended June 30,
(share data in thousands)
 
2016
 
2015
 
2016
 
2015
Stock options
 
—

 
18

 
—

 
24

Restricted stock awards
 
—

 
161

 
—

 
181

Performance share units
 
—

 
200

 
—

 
195

Stock appreciation rights
 
—

 
2

 
—

 
6

Total shares excluded from diluted shares outstanding
 
—

 
381

 
—

 
406

Use of Estimates
The preparation of financial statements in conformity with U.S. GAAP requires management to makes estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes. There have been no changes in the Company’s critical accounting estimates from those that were disclosed in the Company’s Annual Report on Form 10-K for the year ended December 31, 2015. Actual results could differ from these estimates.
Reclassifications
Certain balances have been reclassified from the prior year to conform to the current year presentation.
New Accounting Guidance
In March 2016, the FASB issued ASU No. 2016-09, Compensation-Stock Compensation-Improvements to Employee Share-Based Payment Accounting (Topic 718), which involves several aspects of the accounting for share-based payment transactions, including the income tax consequences, classification of awards as either equity or liabilities, and classification on the statement of cash flows. Under the new standard, income tax benefits and deficiencies are to be recognized as income tax expense or benefit in the income statement and the tax effects of exercised or vested awards should be treated as discrete items in the reporting period in which they occur. An entity should also recognize excess tax benefits regardless of whether the benefit reduces taxes payable in the current period. Excess tax benefits should be classified along with other income tax cash flows as an operating activity. In regards to forfeitures, the entity may make an entity-wide accounting policy election to either estimate the number of awards that are expected to vest or account for forfeitures when they occur. This ASU is effective for fiscal years beginning after December 15, 2016 including interim periods within that reporting period, however early adoption is permitted. The Company adopted this standard effective as of January 1, 2016. There was no material impact to the Company’s financial statements or disclosures from the adoption of this standard.
In April 2016, the FASB issued ASU No. 2016-10, Revenue from Contracts with Customers (Topic 606): Identifying Performance Obligations and Licensing, which (1) clarifies the principle for determining whether a good or service is "separately identifiable" from other promises in the contract and, therefore, should be accounted for separately; (2) clarifies that entities are not required to identify promised goods or services that are immaterial in the context of the contract; and (3) allows

7


entities to elect to account for shipping and handling activities as a fulfillment cost rather than as an additional promised service. The new standard also provides guidance with respect to the classification of licensed intellectual property as either "functional" or "symbolic," which determines when revenues from licensed intellectual property are recognized. This ASU is effective for fiscal years, and interim reporting periods within those years, beginning after December 15, 2017. Early application is permitted for annual reporting periods beginning after December 15, 2016, including interim reporting periods within that reporting period. The Company is currently evaluating the provisions of this guidance and assessing its impact on the Company's financial statements and disclosures.

In May 2016, the FASB issued ASU No. 2016-11, "Revenue Recognition and Derivatives and Hedging: Rescission of SEC Guidance Because of Accounting Standards Updates 2014-09 and 2014-16 Pursuant to Staff Announcements at the March 3, 2016 Emerging Issues Task Force Meeting ("EITF")," which rescinds SEC paragraphs pursuant to SEC staff announcements. These rescissions include changes to topics pertaining to accounting for shipping and handling fees and costs and accounting for consideration given by a vendor to a customer. This ASU is effective for fiscal years, and interim reporting periods within those years, beginning after December 15, 2017. Early application is permitted for annual reporting periods beginning after December 15, 2016, including interim reporting periods within that reporting period. The Company is currently evaluating the provisions of this guidance and assessing its impact on the Company's financial statements and disclosures.

In May 2016, the FASB issued ASU No. 2016-12, Revenue from Contracts with Customers (Topic 606): Narrow-Scope Improvements and Practical Expedients, which clarifies certain core recognition principles including collectability, sales tax presentation, noncash consideration, contract modifications and completed contracts at transition and disclosures no longer required if the full retrospective transition method is adopted. This ASU is effective for fiscal years, and interim reporting periods within those years, beginning after December 15, 2017. Early application is permitted for annual reporting periods beginning after December 15, 2016, including interim reporting periods within that reporting period. The Company is currently evaluating the provisions of this guidance and assessing its impact on the Company's financial statements and disclosures.

Other than as disclosed above or in the 2015 Form 10-K, there are no other new accounting standards that would have a material effect on the Company’s financial statements and disclosures that have been issued but not yet adopted by the Company as of June 30, 2016, and through the filing date of this report.
Note 2 - Restructuring
The Company recorded restructuring charges during the three and six months ended June 30, 2016 and 2015 in connection with a reduction in force, the departure of certain executive officers and management's further alignment of the business with strategic objectives. These charges related to severance arrangements with departing employees and executives, as well as non-cash charges related to the acceleration of vesting of certain stock awards. The Company expects to incur additional charges during the remainder of 2016 associated with management's further alignment of the business with strategic objectives, which will impact the Emissions Control and All Other and Corporate business segments.

8


A summary of the net pretax charges, incurred by segment, for each period is as follows:
 
 
 
 
Pretax Charge
(in thousands, except employee data)
 
Approximate Number of Employees
 
Refined Coal
 
Emissions Control
 
All Other and Corporate
 
Total
Three Months Ended June 30, 2016
 
 
 
 
 
 
 
 
 
 
Restructuring charges
 
19
 
$
—

 
$
468

 
$
316

 
$
784

Changes in estimates
 
 
 
—

 
—

 
—

 
—

Total pretax charge, net of reversals
 
 
 
$
—

 
$
468

 
$
316

 
$
784

 
 
 
 
 
 
 
 
 
 
 
Six Months Ended June 30, 2016
 
 
 
 
 
 
 
 
 
 
Restructuring charges
 
22
 
$
—

 
$
468

 
$
599

 
$
1,067

Changes in estimates
 
 
 
—

 
—

 
—

 
—

Total pretax charge, net of reversals
 
 
 
$
—

 
$
468

 
$
599

 
$
1,067

 
 
 
 
 
 
 
 
 
 
 
Three Months Ended June 30, 2015
 
 
 
 
 
 
 
 
 
 
Restructuring charges
 
41
 
$
—

 
$
1,801

 
$
3,764

 
$
5,565

Changes in estimates
 
 
 
—

 
(2
)
 
—

 
(2
)
Total pretax charge, net of reversals
 
 
 
$
—

 
$
1,799

 
$
3,764

 
$
5,563

 
 
 
 
 
 
 
 
 
 
 
Six Months Ended June 30, 2015
 
 
 
 
 
 
 
 
 
 
Restructuring charges
 
45
 
$
—

 
$
1,801

 
$
4,242

 
$
6,043

Changes in estimates
 
 
 
—

 
(12
)
 
—

 
(12
)
Total pretax charge, net of reversals
 
 
 
$
—

 
$
1,789

 
$
4,242

 
$
6,031



9


The following table summarizes the Company’s change in restructuring accruals for the six months ended June 30, 2016:
(in thousands)
 
Employee Severance
 
Facility Closures
Remaining accrual as of December 31, 2015
 
$
2,581

 
$
777

Expense provision (1)
 
1,067

 
—

Cash payments and other (1)
 
(1,933
)
 
(320
)
Change in estimates
 
—

 
(210
)
Remaining accrual as of June 30, 2016
 
$
1,715

 
$
247


(1) Included within the Expense provision and Cash payments and other line items in the above table is equity based compensation of $0.2 million for the six months ended June 30, 2016, resulting from the accelerated vesting of modified equity-based compensation awards for certain terminated employees.

Restructuring accruals are included within the Accrued payroll and related liabilities line item in the Condensed Consolidated Balance Sheets. Restructuring expenses are included within the Payroll and benefits line item in the Condensed Consolidated Statements of Operations.
Note 3 - Acquisition

2015 Acquisition

In November 2014, the Company entered into an agreement with InSyst Ltd. and ClearView Monitoring Solutions Ltd. (collectively "ClearView"), both Israel based companies specializing in data analytics, to allow the Company the exclusive option to purchase certain assets of ClearView. The Company paid $0.2 million related to this option, which was included within the Prepaid expenses and other assets line item within the Condensed Consolidated Balance Sheets as of December 31, 2014. In January 2015, the Company notified ClearView that it had elected to exercise its exclusive option to purchase certain assets of ClearView.
In March 2015, the Company acquired certain assets of ClearView for total cash payments of $2.4 million, which is inclusive of VAT tax of $0.4 million. The acquisition was accounted for under the acquisition method of accounting, which requires the total purchase consideration to be allocated to the assets acquired and liabilities assumed based on estimates of fair value. Operating results related to the acquired assets were consolidated into the Company’s results of operations beginning March 6, 2015.
A summary of the purchase consideration and allocation of the purchase consideration is as follows:
 (in thousands)
 
 
Purchase consideration:
 
 
Cash paid
 
$
2,360

Fair value of liabilities assumed:
 
 
Accrued liabilities
 
10

Contingent consideration
 
451

Total fair value of liabilities assumed
 
461

 
 
 
Total purchase consideration
 
$
2,821

 
 
 
Allocation of purchase consideration
 
 
Receivables
 
$
360

Property and equipment and other
 
82

Intangibles - in process research and development
 
2,379

Total
 
$
2,821

The transaction called for a series of contingent payments based upon the achievement of sales and sales targets. These contingent payments are classified as purchase consideration. As part of the purchase price, the Company recorded a $0.5

10


million liability for the contingent consideration based upon the net present value of the Company's estimate of the future payments.
During August 2015, as part of a broader strategic restructuring of the Company's business to simplify its operating structure in a manner that creates increased customer focus, better supports sales and product delivery and also aligns the Company’s cost structure as the emissions control market shifts towards compliance solutions for the Federal Mercury and Air Toxics Standards ("MATS"), the Company’s management approved an action to wind down operations of ADA Analytics. As a result of these actions, the Company fully impaired the carrying value of the assets and reversed the liability for the contingent consideration, thereby recognizing net impairment expense in the amount of $1.9 million during the third quarter of 2015.
Note 4 - Equity Method Investments
Clean Coal Solutions, LLC
The Company's ownership interest in CCS was 42.5% as of June 30, 2016 and December 31, 2015. CCS supplies technology equipment and technical services to cyclone-fired, pulverized coal and other boiler users, but CCS's primary purpose is to put into operation facilities that produce RC that qualify for tax credits available under Section 45 of the IRC ("Section 45 tax credits"). CCS has been determined to be a variable interest entity ("VIE"); however, the Company does not have the power to direct the activities that most significantly impact the VIE’s economic performance and has therefore accounted for the investment under the equity method of accounting. The Company determined the partners of CCS with voting rights had identical voting interests, equity control interests and board control interests, and therefore, concluded that the power to direct the activities that most significantly impact the VIE’s economic performance was shared.
The following tables summarize the results of operations of CCS for the three and six months ended June 30, 2016 and 2015, respectively:
 
 
Three Months Ended June 30,
 
Six Months Ended June 30,
(in thousands)
 
2016
 
2015
 
2016
 
2015
Gross profit
 
$
21,154

 
$
24,905

 
$
47,680

 
$
55,834

Operating, selling, general and administrative expenses
 
4,956

 
7,147

 
10,468

 
12,503

Income from operations
 
16,198

 
17,758

 
37,212

 
43,331

Other expenses
 
(3,021
)
 
470

 
(4,036
)
 
329

Class B preferred return
 
(1,043
)
 
(1,632
)
 
(2,186
)
 
(3,362
)
Loss attributable to noncontrolling interest
 
3,951

 
1,782

 
5,907

 
3,113

Net income available to Class A members
 
$
16,085

 
$
18,378

 
$
36,897

 
$
43,411

ADES equity earnings
 
$
12,832

 
$
4,630


$
18,275


$
4,730

The difference between the Company's proportionate share of CCS's net income and the Company's earnings from its CCS equity method investment as reported on its Condensed Consolidated Statements of Operations relates to the Company receiving distributions in excess of the carrying value of the investment, and therefore recognizing such excess distributions as equity method earnings in the period the distributions occur, as discussed below.
As shown in the tables below, the Company’s carrying value in CCS had been reduced to zero throughout 2015, as cumulative cash distributions received from CCS had exceeded the Company's pro-rata share of cumulative earnings in CCS. The carrying value of the Company's investment in CCS shall remain zero as long as the cumulative amount of distributions received from CCS continues to exceed the Company's cumulative pro-rata share of CCS's income. For quarterly periods during which the ending balance of the Company's investment in CCS is zero, the Company only recognizes equity income from CCS to the extent that cash distributions are received from CCS during the period. For quarterly periods during which the ending balance of the Company's investment is greater than zero (e.g., when the cumulative earnings in CCS exceeds cumulative cash distributions received), the Company recognizes its pro-rata share of CCS's earnings (losses) for the period, less any amount necessary to recover the cumulative earnings short-fall balance as of the end of the immediately preceding quarter. During the three and six months ended June 30, 2016, the Company's cumulative amount of distributions received from CCS exceeded the Company's cumulative pro-rata share of CCS's income. As such, the Company recognized equity earnings from CCS in the amount of $12.8 million and $18.3 million, respectively. As of June 30, 2016, the Company's carrying value in CCS has been reduced to zero, as cumulative cash distributions received from CCS have exceeded the Company's pro-rata share of cumulative earnings in CCS. If CCS subsequently reports net income, the Company will not record its pro-rata share of such net income until the cumulative share of pro-rata income equals or exceeds the amount of its cumulative income recognized

11


due to the receipt of cash distributions. Until such time, the Company will only report income from CCS to the extent of cash distributions received during the period.
Thus, the amount of equity income or loss reported on the Company's income statement may differ from a mathematical calculation of net income or loss attributable to the equity interest based upon the factor of the equity interest and the net income or loss attributable to equity owners as shown on CCS’s income statement. Additionally, for periods during which the carrying value of the Company's investment in CCS is greater than zero, distributions from CCS are reported on our Condensed Consolidated Statements of Cash Flows as "Distributions from equity method investees, return on investment" within Operating cash flows. For periods during which the carrying value of the Company's investment in CCS is zero, such cash distributions are reported on our Condensed Consolidated Statements of Cash Flows as "Distributions from equity method investees in excess of investment basis" within Investing cash flows.
The following table presents the Company's investment balance, equity earnings and cash distributions in excess of the investment balance, on a quarterly basis, for the three and six months ended June 30, 2016 (in thousands):
Description
 
Date(s)
 
Investment balance
 
ADES equity earnings (loss)
 
Cash distributions
 
Memorandum Account: Cash distributions and equity loss in (excess) of investment balance
Beginning balance
 
12/31/15
 
$
—

 
$
—

 
$
—

 
$
(3,263
)
ADES proportionate share of income from CCS (1)
 
First Quarter
 
8,706

 
8,706

 
—

 
—

Recovery of prior cash distributions in excess of investment balance (prior to cash distributions)
 
First Quarter
 
(3,263
)
 
(3,263
)
 
—

 
3,263

Cash distributions from CCS
 
First Quarter
 
(3,400
)
 
—

 
3,400

 
—

Total investment balance, equity earnings (loss) and cash distributions
 
3/31/2016
 
2,043

 
$
5,443

 
$
3,400

 
—

ADES proportionate share of income from CCS (1)
 
Second Quarter
 
6,758

 
$
6,758

 
$
—

 
—

Cash distributions from CCS
 
Second Quarter
 
(14,875
)
 
—

 
14,875

 
—

Adjustment for current year cash distributions in excess of investment balance
 
Second Quarter
 
6,074

 
6,074

 
—

 
(6,074
)
Total investment balance, equity earnings (loss) and cash distributions
 
6/30/2016
 
$
—

 
$
12,832

 
$
14,875

 
$
(6,074
)
The following table presents the Company's investment balance, equity earnings and cash distributions in excess of the investment balance, on a quarterly basis, for the three and six months ended June 30, 2015 (in thousands):

12


Description
 
Date(s)
 
Investment balance
 
ADES equity earnings (loss)
 
Cash distributions
 
Memorandum Account: Cash distributions and equity loss in (excess) of investment balance
Beginning balance
 
12/31/2014
 
$
—

 
$
—

 
$
—

 
$
(29,877
)
ADES proportionate share of income from CCS (1)
 
First Quarter
 
9,827

 
9,827

 
—

 
—

Recovery of cumulative distributions and equity losses in excess of investment balance
 
First Quarter
 
(9,827
)
 
(9,827
)
 
—

 
9,827

Cash distributions from CCS
 
First Quarter
 
(100
)
 
—

 
100

 
—

Adjustment for current year cash distributions in excess of investment balance
 
First Quarter
 
100

 
100

 
—

 
(100
)
Total investment balance, equity earnings (loss) and cash distributions
 
3/31/2015
 
—

 
$
100

 
$
100

 
(20,150
)
ADES proportionate share of income from CCS (1)
 
Second Quarter
 
7,825

 
$
7,825

 
$
—

 
—

Recovery of cumulative distributions and equity losses in excess of investment balance
 
Second Quarter
 
(7,825
)
 
(7,825
)
 
—

 
7,825

Cash distributions from CCS
 
Second Quarter
 
(4,630
)
 
—

 
4,630

 
—

Adjustment for current year cash distributions in excess of investment balance
 
Second Quarter
 
4,630

 
4,630

 
—

 
(4,630
)
Total investment balance, equity earnings (loss) and cash distributions
 
6/30/2015
 
$
—

 
$
4,630

 
$
4,630

 
$
(16,955
)
(1) The amounts of the Company's 42.5% proportionate share of net income as shown in the table above differ from mathematical calculations of the Company’s 42.5% equity interest in CCS multiplied by the amounts of Net Income available to Class A members as shown in the table above of CCS results of operations due to adjustments related to the Redeemable Class B preferred return and the elimination of CCS earnings attributable to RCM6, of which the Company owned 24.95% during the periods presented through March 6, 2016. As noted below, the Company sold its interest in RCM6 on March 3, 2016.
Clean Coal Solutions Services, LLC
On January 20, 2010, the Company, together with NexGen Refined Coal, Inc. ("NexGen"), formed CCSS, a Colorado limited liability company, for the purpose of operating the RC facilities leased or sold to third parties. The Company has determined that CCSS is not a VIE and has evaluated the consolidation analysis under the Voting Interest Model. The Company has a 50% voting and economic interest in CCSS, which is equivalent to the voting and economic interest of NexGen. Therefore, as the Company does not own greater than 50% of the outstanding voting shares, either directly or indirectly, it has accounted for the investment under the equity method of accounting. The Company’s investment in CCSS as of June 30, 2016 and December 31, 2015 was $3.1 million and $4.0 million, respectively.
The following table summarizes the results of operations of CCSS:
 
 
Three Months Ended June 30,
 
Six Months Ended June 30,
(in thousands)
 
2016
 
2015
 
2016
 
2015
Gross loss
 
$
(14,473
)
 
$
(9,732
)
 
$
(27,098
)
 
$
(19,895
)
Operating, selling, general and administrative expenses
 
31,128

 
41,008

 
67,390

 
78,954

Loss from operations
 
(45,601
)
 
(50,740
)
 
(94,488
)
 
(98,849
)
Other expenses
 
(20
)
 
(70
)
 
(40
)
 
(75
)
Loss attributable to noncontrolling interest
 
47,465

 
53,110

 
97,754

 
103,268

Net income
 
$
1,844

 
$
2,300

 
$
3,226

 
$
4,344

ADES equity earnings
 
$
922

 
$
1,150


$
1,613


$
2,172

Included within the Consolidated Statement of Operations of CCSS for the three and six months ended June 30, 2016 and 2015, respectively, were losses related to VIE's of CCSS. These losses do not impact the Company's equity earnings from CCSS as 100% of those losses are removed from the net income of CCSS as they are losses attributable to a noncontrolling interest.


13


RCM6, LLC
On February 10, 2014, the Company purchased a 24.95% membership interest in RCM6, which owned a single RC facility that produced RC that qualified for Section 45 tax credits, from CCS through a combination of an up-front payment and note payable to CCS. Due to the payment terms of the note purchase agreement, the note payable was periodically negatively amortizing. The balance of the note payable as of December 31, 2015 was $14.2 million. In addition to the up-front and subsequent note payments, the Company was also subject to quarterly capital calls and variable payments based upon differences in originally forecasted RC production as of the purchase date and actual quarterly production. The following table presents the capital calls and variable payments made by the Company related to its investment in RCM6 during the three and six months ended June 30, 2016 and 2015, respectively:
 
 
Three Months Ended June 30,
 
Six Months Ended June 30,
(in thousands)
 
2016
 
2015
 
2016
 
2015
Capital calls and variable payments (1)
 
$
—

 
$
(238
)
 
$
223

 
$
230

(1) During the three months ended June 30, 2015, net capital calls and variable payments were negative due to a true-up calculation by CCS of the cumulative variable payments related to the RCM6 purchase by which the Company received a refund of $0.4 million.
RCM6 was determined to be a VIE, however, during the periods presented, the Company did not have the power to direct the activities that most significantly impacted the VIE's economic performance and has therefore accounted for the investment under the equity method of accounting.
As of December 31, 2015, the Company’s ownership in RCM6 was 24.95%. The carrying value of the Company’s investment in RCM6 as of December 31, 2015 was $13.3 million. On March 3, 2016, the Company sold its 24.95% membership interest in RCM6 for a cash payment of $1.8 million and the assumption, by the buyer, of the outstanding note payable made by the Company in connection with its purchase of RCM6 membership interests from CCS in February 2014. In doing so, the Company recognized a gain on the sale of $2.1 million, which is included within the Gain on sale of equity method investment line item in the Condensed Consolidated Statements of Operations. As a result of the sale of its ownership interest, the Company ceased to be a member of RCM6 and, as such, is no longer subject to any quarterly capital calls and variable payments to RCM6. In addition, the Company has no future obligations related to the previously recorded note payable. However, the Company will still receive its pro-rata share of income and cash distributions through its ownership in CCS based on the RCM6 RC facility lease payments made to CCS.
Prior to the sale of its ownership interest, the Company recognized equity losses related to its investment in RCM6 of $0.6 million for the three months ended March 31, 2016. The following table summarizes the results of operations of RCM6 for the period from January 1 to March 3, 2016, and the three and six months ended June 30, 2015:
 
 
Three Months Ended June 30,
 
January 1-March 3,
 
Six Months Ended June 30,
(in thousands)
 
2016

2015

2016

2015
Gross loss
 
$
—

 
$
(1,180
)
 
$
(555
)
 
$
(1,980
)
Operating expenses
 
—

 
516

 
360

 
977

Loss from operations
 
—

 
(1,696
)
 
(915
)
 
(2,957
)
Other expenses
 
—

 
(89
)
 
(52
)
 
(162
)
Net loss
 
$
—

 
$
(1,785
)
 
$
(967
)
 
$
(3,119
)
ADES equity losses
 
$
—

 
$
(920
)
 
$
(557
)
 
$
(1,728
)
The following table details the components of the Company's respective equity method investments included within the Earnings from equity method investments line item on the Condensed Consolidated Statements of Operations:
 
 
Three Months Ended June 30,
 
Six Months Ended June 30,
(in thousands)
 
2016
 
2015
 
2016
 
2015
Earnings from CCS
 
$
12,832


$
4,630


$
18,275


$
4,730

Earnings from CCSS
 
922


1,150


1,613


2,172

Loss from RCM6
 
—


(920
)

(557
)

(1,728
)
Earnings from equity method investments
 
$
13,754

 
$
4,860


$
19,331


$
5,174


14


The following table details the components of the cash distributions from the Company's respective equity method investments included within the Condensed Consolidated Statements of Cash Flows. Distributions from equity method investees are reported on our Condensed Consolidated Statements of Cash Flows as "return on investment" within Operating cash flows until such time as the carrying value in an equity method investee company is reduced to zero; thereafter, such distributions are reported as "distributions in excess of cumulative earnings" within Investing cash flows.
 
 
Six Months Ended June 30,
(in thousands)
 
2016
 
2015
Distributions from equity method investees, return on investment
 
 
 
 
CCS
 
$
3,400

 
$
—

CCSS
 
2,500

 
19

 
 
$
5,900

 
$
19

Distributions from equity method investees in excess of investment basis
 
 
 
 
CCS
 
$
14,875

 
$
4,730

 
 
$
14,875

 
$
4,730


15


Note 5 - Investments

The Company had investment securities related to certificates of deposit in the amount of $0.3 million as of December 31, 2015. No unrealized gains or losses were recorded as of December 31, 2015 related to these investment securities. The Company did not have any investment securities related to certificates of deposit as of June 30, 2016.
In November 2014, the Company acquired an 8% ownership interest in the common stock of Highview Enterprises Limited ("Highview"), a London, England based developmental stage company specializing in power storage, for $2.8 million in cash. The Company evaluated the investment and determined that it should account for the investment under the cost method. This investment is evaluated for impairment upon an indicator of impairment such as an event or change in circumstances that may have a significant adverse effect on the fair value of the investment. As of June 30, 2016 and December 31, 2015, no indicators of impairment had been identified with respect to the cost method investment in Highview. When there are no indicators of impairment present, the Company estimates the fair value for the investment only if it is practical to do so. As of June 30, 2016, the Company estimated that the fair value of the cost method investment based upon an equity raise completed by Highview during the second quarter of 2016 at a price of £4.60 per share. As £4.60 per share exceeds our cost per share of £4.25, there was no impairment as of June 30, 2016. As of December 31, 2015, the Company estimated that the fair value of the cost method investment approximated the November 2014 purchase price due to the proximity of the purchase date to December 31, 2015.

Note 6 - Borrowings

The following table summarizes the Company's borrowings and notes payable, all of which were with related parties:
 
 
As of
(in thousands)
 
June 30,
2016
 
December 31,
2015
Short-term borrowings
 
 
 
 
Credit Agreement, net of discount and deferred loan costs
 
$
—

 
$
12,676

Total short-term borrowings
 
$
—

 
$
12,676

Current portion of notes payable
 
 
 
 
RCM6 note payable, net of discount
 
$
—

 
$
1,207

DSI Business Owner note payable
 
—

 
630

Total current portion of short-term borrowings and notes payable
 
—

 
1,837

Long-term portion of notes payable
 
 
 
 
RCM6 note payable, net of discount
 
—

 
13,023

DSI Business Owner note payable
 
—

 
489

Total long-term portion of notes payable
 
—

 
13,512

Total notes payable
 
$
—

 
$
15,349

Credit Agreement
On October 22, 2015, the Company entered into a credit agreement for a $15.0 million short-term loan (the "Credit Agreement") with Franklin Mutual Quest Fund and MFP Investors LLC (the "Lenders"), and Wilmington Trust, National Association, as the administrative agent and collateral agent (the "Administrative Agent" ),which was subsequently amended in 2016 as discussed below. Under the original terms and conditions, the Credit Agreement was scheduled to mature on April 22, 2016, subject to a three month extension at the Company's option to the extent certain conditions were met. The Credit Agreement's annual interest rate was equal to 10.5% and was subject to various prepayment and other premiums if certain events, including a change in control, occurred. The Company received net proceeds of $13.5 million and recorded an initial debt discount and debt issuance costs totaling $1.5 million. The debt discounts and debt issuance costs were amortized to interest expense using the effective interest method over the life of the Credit Agreement. As of December 31, 2015, the unamortized debt discount and issuance costs were $0.6 million. The net proceeds were used to fund working capital needs and for general operating purposes of the Company and its subsidiaries.
On February 8, 2016, the Company entered into the first amendment to the Credit Agreement that extended the Company's filing date deadline related to its 2015 SEC filings to March 30, 2016. On March 30, 2016, the Company entered into the second amendment to the Credit Agreement ("Second Amendment"). The Second Amendment extended the maturity date to July 8, 2016, extended the Company's filing date deadline related to its 2015 SEC filings to April 20, 2016, increased the stated

16


interest rate from 10.5% to 15.0%, increased the minimum cash balance requirement from $3.0 million to $3.5 million and adjusted the amortization payment schedule. The Company incurred $0.6 million in fees related to the Second Amendment.
On June 30, 2016, the Company, the required Lenders under the Credit Agreement and the Administrative Agent agreed to terminate the Credit Agreement (the "Payoff Letter") prior to the maturity date of July 8, 2016, effective upon the Company’s prepayment of the total principal balance of the loans and advances made to or for the benefit of the Company, together with all accrued but unpaid interest, and the total amount of all fees, costs, expenses and other amounts owed by the Company thereunder, including a prepayment premium (the "Payoff Amount"). The Payoff Amount was paid on June 30, 2016 (the "Payoff Date") and equaled $9.9 million. The Payoff Letter included a waiver by the Lenders for a portion of the prepayment premium of 4% reflected in the Credit Agreement.
All obligations of the Company under the Credit Agreement were unconditionally guaranteed by each of the Company’s wholly-owned domestic subsidiaries (other than ADA Analytics, LLC) and were secured by perfected security interests in substantially all of the assets of the Company and the guarantors, subject to certain agreed upon exceptions.
The Lenders were beneficial owners of Common Stock in the Company. The Credit Agreement was approved by the Company's Board of Directors and by the Audit Committee as a related party transaction.
CCS - RCM6 Note Payable
The Company acquired membership interests in RCM6 from CCS in February 2014, through an up-front payment and a note payable (the "RCMC Note Payable") . Due to the payment terms of the note purchase agreement, the RCMC Note Payable periodically added interest to the outstanding principal balance. The stated rate associated with the RCMC Note Payable was 1.65% and the effective rate of the RCMC Note Payable at inception was 20%. Due to the difference between the stated rate and the effective rate, the RCMC Note Payable was carried at a discount of $7.6 million as of December 31, 2015. As discussed in Note 4, on March 3, 2016, the Company sold its 24.95% membership interest in RCM6 and, as a result, the Company has no future obligations related to the previously recorded RCMC Note Payable.
DSI Business Owner
As of December 31, 2014, the Company terminated the consulting portion of the agreements with the DSI Business Owner, as described in Note 9 of the Company's Annual Report on Form 10-K for the year ended December 31, 2014. However, according to the terms of the remaining agreements, the Company was required to make all remaining payments structured as a note payable through the third quarter of 2017. In February 2016, the Company entered into an agreement with the DSI Business Owner and settled the remaining amounts owed as of the date of the agreement of approximately $1.1 million for $0.3 million, which was paid during the first quarter of 2016. The difference between the remaining amounts owed and the settlement amount has been included within the Gain on settlement of note payable and licensed technology line item in the Condensed Consolidated Statements of Operations for the three and six months ended June 30, 2016.
Note 7 - Fair Value Measurements
    
Fair value of financial instruments
The carrying amounts of financial instruments, including cash and cash equivalents, accounts receivable, accounts payable, deposits and accrued expenses approximate fair value due to the short maturity of these instruments. Accordingly, these instruments are not presented in the table below. The following table provides the estimated fair values of the remaining financial instruments:

17


 
 
As of June 30, 2016
 
As of December 31, 2015
(in thousands)
 
Carrying Value
 
Fair Value
 
Carrying Value
 
Fair Value
Financial Instruments:
 
 
 
 
 
 
 
 
Investment securities:
 
 
 
 
 
 
 
 
Cost method investment (1)
 
$
2,776

 
$
2,964

 
$
2,776

 
$
2,776

Investment securities, restricted, long-term
 
$
—

 
$
—

 
$
336

 
$
336

Notes Payable:
 
 
 
 
 
 
 
 
Short-term borrowings, net of discount and deferred loan costs, related party
 
$
—

 
$
—

 
$
12,676

 
$
12,676

Current portion of notes payable, related party (2)
 
$
—

 
$
—

 
$
1,837

 
$
1,457

Long-term portion of notes payable, related party (2)
 
$
—

 
$
—

 
$
13,512

 
$
13,273

Highview technology license payable
 
$
238

 
$
238

 
$
519

 
$
519

Highview technology license payable, long-term
 
$
—

 
$
—

 
$
1,038

 
$
1,038

Stock appreciation rights, liability-classified equity award (3)
 
$
—

 
$
—

 
$
742

 
$
742


(1) Fair value is based on the investee's recently completed equity raise at £4.60 per share. Refer to Note 5 for further discussion of this investment. The fair value has been calculated using the historical spot rate as of the acquisition date.
(2) The fair value related to the DSI Business Owner note payable amounts as of December 31, 2015 was determined using the settlement agreement amount of $0.3 million, as described in Note 6.
(3) Based upon the approval of amendments to the 2007 Equity Incentive Plan by stockholders during the second quarter of 2016, SAR's that were previously reported as liability classified equity awards became option awards and were reclassified to equity awards as the settlement of the award was within the control of the Company.
Concentration of credit risk
The Company's certificates of deposits and virtually all of the Company's restricted and unrestricted cash accounts are at two financial institutions. If those institutions were to be unable to perform their obligations, the Company would be at risk regarding the amount of cash and investments in excess of the Federal Deposit Insurance Corporation limits ($250 thousand) that would be returned to the Company.
Assets and Liabilities Measured at Fair Value on a Recurring Basis
The estimated fair values of investment securities are described below. Refer to Note 5 of these Condensed Consolidated Financial Statements for additional information regarding the Company’s investment securities.
Fair value is defined as the price that would be received from the sale of an asset or paid to transfer a liability in an orderly transaction between market participants as of the measurement date. The Company uses the hierarchy prescribed in the accounting guidance for fair value measurements based upon the available inputs to the valuation and the degree to which they are observable or not observable in the market. The three levels in the hierarchy are as follows:
Level 1 Inputs - Quoted prices (unadjusted) for identical assets or liabilities in active markets that are accessible as of the measurement date.
Level 2 Inputs - Inputs other than quoted prices within Level 1 that are observable either directly or indirectly, including but not limited to quoted prices in markets that are not active, quoted prices in active markets for similar assets or liabilities and observable inputs other than quoted prices such as interest rates or yield curves.
Level 3 Inputs - Unobservable inputs reflecting the Company’s own assumptions about the assumptions that market participants would use in pricing the asset or liability, including assumptions about risk.
Financial instruments carried and measured at fair value on a recurring basis are presented in the table below according to the fair value hierarchy described above. There were no financial instruments carried and measured at fair value on a recurring basis as of June 30, 2016.

18


 
 
As of December 31, 2015
 
 
Fair Value Measurement Using
(in thousands)
 
Level 1
 
Level 2
 
Level 3
 
Assets at Fair Value
Assets:
 
 
 
 
 
 
 
 
Investment securities, restricted, long-term
 
$
—

 
$
336

 
$
—

 
$
336

Total assets at fair value
 
$
—

 
$
336

 
$
—

 
$
336

Liabilities:
 
 
 
 
 
 
 
 
Stock appreciation rights, liability-classified equity award
 
$
—

 
$
742

 
$
—

 
$
742

Total liabilities at fair value
 
$
—

 
$
742

 
$
—

 
$
742

The estimated fair value of investments securities consisting entirely of certificates of deposits was estimated to be equal to the deposit value of the investment due to the relative short term nature of the instrument.
Assets and Liabilities Measured at Fair Value on a Non-Recurring Basis
During December 2014 and March 2015, the Company loaned a total of $1.0 million to an independent technology development company exploring energy storage to provide financing to pursue emissions technology projects, bearing annual interest of 8%. Interest and principal were payable at maturity in March 2018. Subsequent to the second loan disbursement, the Company became aware that the independent technology development company exploring energy storage was not awarded contracts that would have utilized their emissions technology. The Company also became aware that without these contracts, the ability of the independent third party to repay these loans was in doubt. As a result, the Company has recorded an allowance against the entire principal balance of the notes receivable, reversed accrued interest and put the note on non-accrual status.
During the fourth quarter of 2015, the Company recorded impairments totaling approximately $0.3 million to reduce the carrying value of certain property and equipment that the Company intended to sell to its estimated sales value, less estimated costs to sell. The property and equipment were subsequently sold at auction. Proceeds from the sale of the impaired assets totaled approximately $0.6 million. No gain or loss was recognized on the sale of the property and equipment.
Also during the fourth quarter of 2015, the Company sold certain property and equipment having a net book value of approximately $0.1 million. Proceeds from the sale totaled approximately $0.3 million, which resulted in the recognition of a gain on the sale of approximately $0.2 million.
In June 2016, the Company sold certain inventory and property and equipment having a net book value of approximately $0.5 million. The Company recorded an impairment charge of approximately $0.5 million for the three and six months ended June 30, 2016.

The fair value measurements represent Level 3 measurements as they are based on significant inputs not observable in the market. Additionally, the Company previously recorded impairment charges related to a Note Receivable, as discussed in Note 11.

Note 8 - Commitments and Contingencies
Legal Proceedings

The Company is involved in certain legal actions, described below. The outcomes of these legal actions are not within the Company’s complete control and may not be finalized for prolonged periods of time. In the described actions, the claimants seek monetary damages and other penalties. In accordance with U.S. GAAP, the Company records a liability in the Condensed Consolidated Financial Statements for loss contingencies when a loss is known or considered probable and the amount can be reasonably estimated. If the reasonable estimate of a known or probable loss is a range, and no amount within the range is a better estimate than any other, the minimum amount of the range is accrued. If a loss is reasonably possible but not known or probable, and can be reasonably estimated, the estimated loss or range of loss is disclosed. When determining the estimated loss or range of loss, significant judgment is required to estimate the amount and timing of a loss to be recorded. Estimates of probable losses resulting from litigation and governmental proceedings involving the Company are inherently difficult to predict, particularly when the matters are in early procedural stages, with incomplete facts or legal discovery; involve unsubstantiated or indeterminate claims for damages, or, potentially involve penalties or fines. In the described actions, the Company has either engaged in settlement mediation with the claimants or engaged in communications with the applicable governmental agency, and has reached agreement in principle with regard to the amount of monetary damages required to settle each action such that the amount is probable and reasonably estimable. The Company cannot predict the timing of resolution or

19


the final outcome of any legal proceedings as described in the paragraphs below, nor can it provide any assurance that the ultimate resolution of any such matter will not have a material adverse effect on our consolidated financial position, results of operations or cash flows.
Securities class action lawsuit: United Food and Commercial Workers Union v. Advanced Emissions Solutions, Inc., No. 14-cv-01243-CMA-KMT (U.S. District Court, D. Colo.)

A class action lawsuit against ADES and certain of its current and former officers is pending in the federal court in Denver, Colorado ("U.S. District Court"). This lawsuit and a companion case were originally filed in May 2014. On February 19, 2015, the U.S. District Court consolidated these cases and appointed the United Foods and Commercial Workers Union and Participating Food Industry Employers Tri-State Pension Fund as lead plaintiff and approved its selection of the law firms. The consolidated case is now captioned United Food and Commercial Workers Union v. Advanced Emissions Solutions, Inc., No. 14-cv-01243-CMA-KMT (U.S. District Court, D. Colo.) (the “Denver Securities Litigation”).

The lead plaintiff filed "Lead Plaintiff’s Consolidated Class Action Complaint" on April 20, 2015 (the "Consolidated Complaint"). The Consolidated Complaint names as defendants the Company and certain current and former Company officers.
Plaintiffs allege that ADES and other defendants ("Defendants") misrepresented to the investing public the Company’s financial condition and its financial controls to artificially inflate and maintain the market price of ADES’s common stock. The Consolidated Complaint alleges two claims for relief for: 1) alleged violations of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, and 2) control person liability under Section 20(a) of the Exchange Act.

The Consolidated Complaint seeks unspecified monetary damages together with costs and attorneys’ fees incurred in prosecuting the class action, among other relief, and alleges a class period covering all purchasers or acquirers of the common stock of ADES or its predecessor-in-interest during the proposed class period from May 12, 2011 through January 29, 2015.
Defendants filed a motion to dismiss the Consolidated Complaint on June 19, 2015, contending the Consolidated Complaint: 1) fails to meet the strict pleading standards required for Section 10(b) claims; and 2) fails to establish the primary violation required for any claim of secondary (control person) liability. Plaintiffs filed a response in opposition to this motion on July 2, 2015 and Defendants filed their reply brief on July 16, 2015. On March 7, 2016, the parties filed a stipulated motion to stay the case while the parties mediated the matter. On March 8, 2016, the motion to stay was granted, and the Defendants’ motion to dismiss was denied without prejudice with the option to refile should mediation fail. The case was stayed until further order of the U.S. District Court.

Following the mediation, which occurred in May of 2016, the parties came to an agreement in principle to settle the Denver Securities Litigation, and on June 30, 2016, the parties entered into a Stipulation and Agreement of Settlement (the "Denver Settlement") to resolve the action in its entirety. Under the terms of the Denver Settlement, a payment of $4.0 million will be made in exchange for the release of claims against the defendants and other released parties by the lead plaintiff and all settlement class members, and for the dismissal of the action with prejudice. The Denver Settlement remains subject to the approval of the U.S. District Court. Prior to any final U.S. District Court approval of the Denver Settlement, potential settlement class members (i.e., all persons and entities who purchased or otherwise acquired our common stock during May 12, 2011 through January 29, 2015 ((both dates inclusive), with limited exclusions), will have an opportunity to exclude themselves from participating in the Denver Settlement or to raise objections with the U.S. District Court regarding the Denver Settlement or any part thereof. On June 30, 2016, the plaintiffs in the Denver Securities Litigation filed the Denver Settlement and related exhibits with the U.S. District Court and moved, among other things, for the U.S. District Court to preliminarily approve the Denver Settlement, to approve the contents and procedures for notice to potential settlement class members, to certify the Denver Securities Litigation as a class action for settlement purposes only, and to schedule a hearing for the U.S. District Court to consider final approval of the Denver Settlement.

The Denver Settlement contains no admission of liability, and all of the Defendants in the Denver Securities Litigation have expressly denied, and continue to deny, all allegations of wrongdoing or improper conduct. If the Denver Settlement is approved by the U.S. District Court, the Company's insurance carriers will fund the $4.0 million Denver Settlement. In the event the Denver Settlement is not approved by the U.S. District Court or otherwise does not become effective for any reason, the Denver Settlement will become null and void, all things of value will be returned to the party providing them, and the case will move forward. Under those circumstances, all of the Defendants intend to continue to defend themselves vigorously against the allegations in the Second Amended Complaint.

The Company recorded a liability as of June 30, 2016 in connection with the Denver Settlement for $4.0 million as the losses in connection with this matter are probable and reasonably estimable under U.S. GAAP. The liability was recorded in the Legal settlements and accruals line item of the Condensed Consolidated Balance Sheet. A related receivable was also recorded in connection with the Denver Settlement for $4.0 million as the Company's insurance carriers will fund the full settlement.

20


Stockholder derivative lawsuits: In Re Advanced Emissions Solutions, Inc. Shareholder Derivative Litigation, No. 2014CV-30709 (District Court, Douglas County, Colorado) (consolidated actions).

Consolidated stockholder derivative claims against certain of the Company’s current and former officers and directors, along with the Company as a "nominal defendant," are pending in the Colorado District Court for Douglas County, Colorado ("Douglas County District Court"), and are currently stayed.

In June and July 2014 stockholder derivative actions were filed in the Douglas County District Court and in the Colorado District Court for the City and County of Denver ("Denver District Court"). By agreement of the parties, the case in the Denver District Court was transferred to the Douglas County District Court and the cases were consolidated.

In separate complaints, the plaintiffs allege breach of fiduciary duties, waste of corporate assets, and unjust enrichment against the defendants for their alleged use of improper accounting techniques and for failing to maintain effective internal controls that, together, resulted in materially inaccurate financial statements from which incentive compensation was derived and paid. Plaintiffs demand, on behalf of the Company, unspecified monetary damages, "appropriate equitable relief," and the costs and disbursements of the action, including attorneys', accountants' and experts' fees, costs, expenses, and restitution, as well as certain corporate governance changes (collectively the "Derivative Claims").

On August 28, 2014, the Colorado state court approved a Stipulation and proposed Order Consolidating Actions, Appointing Co-Lead Plaintiffs and Co-Lead Counsel, and Staying Consolidated Action. Under that Order the consolidated derivative actions are stayed at least 30 days after a decision by the U.S. District Court on Defendants’ motion to dismiss the operative complaint in the securities class action described above. Any party has the right to move to lift the stay on 30-days’ written notice to the other parties.

The parties mediated the Derivative Claims in May 2016 and came to an agreement in principle to settle the Derivative Claims in July 2016. The parties are actively negotiating a Stipulation and Agreement of Settlement (the “Derivative Settlement”) to resolve the action in its entirety. Under the proposed Derivative Settlement, the Company expects to agree to make or maintain certain corporate governance changes and not to oppose a reasonable fee award in an amount not to exceed $0.6 million in exchange for the release of all the Derivative Claims against the defendants and for the dismissal of the action with prejudice. If finalized, the Derivative Settlement and fee award will be subject to the approval of the Douglas County District Court. The Company recorded a liability as of June 30, 2016 in connection with the Derivative Settlement for $0.6 million as the losses in connection with this matter are probable and reasonably estimable under U.S. GAAP. The liability was recorded in the Legal settlements and accruals line item of the Condensed Consolidated Balance Sheet. A related receivable was also recorded in connection with the Derivative Settlement for $0.6 million as the Company's insurance carriers will fund the fee award amount.
SEC Inquiry

On April 7, 2014, the staff of the SEC’s Division of Enforcement ("SEC Staff") informed the Company that it had initiated an inquiry to determine if violations of the federal securities laws have occurred (the "SEC Inquiry"), and in September 2014 the SEC issued a formal order of investigation. The SEC Inquiry generally pertains to the restatement of the Company's financial statements and internal controls processes, as described in Note 2 to the Consolidated Financial Statements of the Company included in the Annual Report on Form 10-K for the fiscal year ended December 31, 2014. The Company cooperated with the SEC by providing information and documents to the SEC on an ongoing basis. In July 2016, the SEC Staff communicated to the Company that it would recommend to the SEC that it authorize a settlement with the Company on terms that include payment of a civil monetary penalty of $0.5 million. The SEC must approve the SEC Staff recommendation and any final settlement or relief.

As a result of the communication from SEC Staff, the Company recorded a liability as of June 30, 2016 for the payment of monetary penalties in connection with the SEC Inquiry in the amount of $0.5 million as the losses in connection with this matter are both probable and reasonably estimable under U.S. GAAP. The recorded liability was based on an agreement in principle with SEC Staff subject to approval by the SEC. The liability was recorded in the Legal settlements and accruals line item on the Condensed Consolidated Balance Sheets. The expense recognized related to this accrual is included in the Other line item in the Condensed Consolidated Statements of Operations for the three and six months ended June 30, 2016. While the Company anticipates that the proposed settlement will likely be approved by the SEC, it is possible that the ultimate settlement terms, including the penalty amount, could change.

21


Settlement and royalty indemnity
In August 2008, Norit International N.V. f/k/a Norit N.V. ("Norit") filed a lawsuit against the Company asserting claims for misappropriation of trade secrets and other claims related to the Company's ADA Carbon Solutions, LLC joint venture ("Carbon Solutions"). In August 2011, the Company and Norit entered into a settlement agreement whereby the Company paid amounts related to the non-solicitation breach of contract claim, and ADA was also required to pay additional damages related to certain future revenues generated from the equity method investment through the second quarter of 2018 (the "Royalty Award"). Payments of amounts due under the Royalty Award for each quarter are payable three months after such quarter ends. In October 2011, an arbitration panel endorsed and confirmed the terms of the settlement agreement.
Additionally, during November 2011, the Company entered into an Indemnity Settlement Agreement whereby the Company agreed to settle certain indemnity obligations asserted against the Company related to the Norit litigation and relinquished all of its equity interest in Carbon Solutions to Carbon Solutions and amended the Intellectual Property License Agreement dated October 1, 2008 between the Company and Carbon Solutions. In the event that the Company declares or otherwise issues a dividend to any or all of its stockholders prior to January 1, 2018, other than repurchases of common stock under employee stock plans, the Company must increase its letter of credit amounts, which support the payments which must be paid to Norit, equal to 50% of the aggregate fair market value of such dividends.
As of June 30, 2016, and December 31, 2015, the Company recorded the components of the Royalty Award in Legal settlements and accruals in the Condensed Consolidated Balance Sheets of $6.3 million and $6.5 million, respectively and in Legal settlements and accruals, long-term of $11.6 million and $13.8 million, respectively. Future amounts to be paid related to the Royalty Award may differ from current estimates due to future adjusted sales of activated carbon from the Red River plant.
The following table summarizes the Company's legal settlements and accruals as described above, which are presented in the Condensed Consolidated Balance Sheets:
 
 
As of
(in thousands)
 
June 30,
2016
 
December 31,
2015
Settlement and Royalty Indemnification
 
$
6,345

 
$
6,502

Legal settlements
 
5,125

 
—

Legal settlements and accruals
 
11,470

 
6,502

Settlement and Royalty Indemnification, long-term
 
11,596

 
13,797

Legal settlements and accruals, long-term
 
11,596

 
13,797

Total legal settlements and accruals
 
$
23,066

 
$
20,299

CCS
The Company also has certain limited obligations contingent upon future events in connection with the activities of CCS. The Company, NexGen and two entities affiliated with NexGen have provided an affiliate of Goldman Sachs with limited guaranties (the "CCS Party Guaranties") related to certain losses it may suffer as a result of inaccuracies or breach of representations and covenants. The Company also is a party to a contribution agreement with NexGen under which any party called upon to pay on a CCS Party Guaranty is entitled to receive contributions from the other party equal to 50% of the amount paid. No liability or expense provision has been recorded by the Company related to this contingent obligation as the Company believes that it is not probable that a loss will occur with respect to CCS Party Guaranties.
Line of Credit
In September 2013, ADA, as borrower, and ADES, as guarantor, entered into a 2013 Loan and Security Agreement with a bank for an aggregate principal amount of $10 million that is secured by certain amounts due to the Company from certain CCS RC leases (the "Line of Credit"). During the second quarter of 2016, the Company entered into the Seventh Amendment and Eighth Waiver related to the Line of Credit. As amended, the Line of Credit is available until August 29, 2016.
Covenants in the Line of Credit include a borrowing base limitation that is based on a percentage of the net present value of ADA’s portion of payments due to CCS from the RC leases. The Line of Credit also contains other affirmative and negative covenants and customary indemnification obligations of ADA to the lender and provides for the issuance of letters of credit provided that the aggregate amount of the letters of credit plus all advances then outstanding does not exceed the calculated borrowing base. The Company guaranteed the obligations and agreements of ADA under the Line of Credit. Amounts outstanding under the Line of Credit bear interest payable monthly at a rate per annum equal to the higher of 5% or the "Prime Rate" (as defined in the agreement) plus 1%. There were no outstanding balances under this agreement at June 30, 2016 and

22


December 31, 2015, respectively, nor were any amounts drawn on the Line of Credit during the three and six months ended June 30, 2016.
As a result of certain historical covenant violations, the Company had no borrowing availability under this facility as of June 30, 2016 and December 31, 2015. The Company is currently in discussions with the lender regarding a possible renewal that would include the ability to utilize the Line of Credit.
Letters of Credit
The Company has letters of credit ("LOC") with two financial institutions related to equipment projects, the Royalty Award and certain other agreements. The following tables summarize the letters of credit outstanding, collateral, by type, and the related line items within the Condensed Consolidated Balance Sheets where the collateral related to the letters of credit is recorded:
 
 
As of June 30, 2016
(in thousands)
 
LOC Outstanding
 
Restricted Cash
 
Restricted cash, long-term
 
Investment securities, restricted, long-term
Contract performance - equipment systems
 
$
4,463

 
$
4,469

 
$
—

 
$
—

Royalty Award
 
6,700

 
—

 
6,700

 
—

Total LOC outstanding
 
$
11,163

 
$
4,469

 
$
6,700

 
$
—

 
 
As of December 31, 2015
(in thousands)
 
LOC Outstanding
 
Restricted Cash
 
Restricted cash, long-term
 
Investment securities, restricted, long-term
Contract performance - equipment systems
 
$
5,556

 
$
728

 
$
4,830

 
$
—

Royalty Award
 
6,150

 
—

 
6,150

 
—

Other
 
328

 
—

 
—

 
336

Total LOC outstanding
 
$
12,034

 
$
728

 
$
10,980

 
$
336

Restricted balances may exceed the letters of credit outstanding due to interest income earned on the restricted balances.
Performance Guarantee on Equipment Systems
In the normal course of business related to ACI and DSI systems, the Company may guarantee certain performance thresholds during a discrete performance testing period that do not extend beyond six months from the initial test date, the commencement of which is determined by the customer. Performance thresholds include such matters as the achievement of a certain level of mercury removal and other emissions based upon the injection of a specified quantity of a qualified activated carbon or other chemical at a specified rate given other plant operating conditions, and availability of equipment and electric power usage. In the event the equipment fails to perform as specified during the testing period, the Company may have an obligation to correct or replace the equipment. In the event the level of mercury removal is not achieved, the Company may have a “make right” obligation within the contract limits. During the third quarter of 2015, the Company began working to modify and correct two performance guarantee issues related to Emissions Control ("EC") systems that were installed during 2015. No revenue will be recognized on these two contracts until the performance guarantees are resolved and contract obligations are substantially complete. During the second quarter of 2016 significant progress was made on one performance guarantee issue but substantial completion has not yet been reached as June 30, 2016. Thus far, resolution of this performance guarantee did not have a material adverse effect on the Company's operating performance or liquidity. Additionally, resolution of the remaining performance guarantee is not expected to result in a material adverse effect on the Company's operating performance or liquidity in 2016 or beyond. Performance guarantee claims, if incurred, would be included within the Equipment sales cost of revenue line of the Condensed Consolidated Statements of Operations.

Note 9 - Stock-Based Compensation
The Company grants equity based awards to employees and non-employee directors. Equity based awards include RSA's, Stock Options, PSU's and Stock Appreciation Rights ("SAR's"). Stock-based compensation expense related to employees is included within the Payroll and benefits line item in the Condensed Consolidated Statements of Operations. Stock-based compensation expense related to non-employee directors is included within the General and administrative line item in the Condensed Consolidated Statements of Operations.

23


Total stock-based compensation expense for the three and six months ended June 30, 2016 and 2015 was as follows:
 
 
Three Months Ended June 30,
 
Six Months Ended June 30,
(in thousands)
 
2016
 
2015
 
2016
 
2015
Restricted stock award expense
 
$
584

 
$
1,409

 
$
982

 
$
1,939

Stock option expense
 
103

 
192

 
139

 
570

PSU expense
 
125

 
2,387

 
316

 
2,433

SAR expense
 
95

 
517

 
106

 
517

Total stock-based compensation expense
 
$
907

 
$
4,505

 
$
1,543

 
$
5,459

The amount of unrecognized compensation cost as of June 30, 2016, and the expected weighted average period over which the cost will be recognized is as follows:
 
 
As of June 30, 2016
(in thousands)
 
Unrecognized Compensation Cost
 
Expected Weighted Average Period of Recognition (in years)
Restricted stock award expense
 
$
1,609

 
0.81

Stock option expense
 
133

 
0.64

PSU expense
 
270

 
0.75

Total unrecognized stock-based compensation expense
 
$
2,012

 
0.73

Restricted Stock Awards
Restricted stock is typically granted with vesting terms of three or five years. The fair value of restricted stock awards is determined based on the closing price of the Company’s common stock on the authorization date of the grant multiplied by the number of shares subject to the stock award. Compensation expense for restricted stock awards is recognized over the entire vesting period on a straight-line basis. A summary of restricted stock award activity under the Company's various stock compensation plans for the six months ended June 30, 2016 is presented below:
 
 
Shares
 
Weighted
Average
Grant Date
Fair Value
Non-vested at January 1, 2016
 
134,708

 
$
8.49

Granted
 
255,285

 
7.38

Vested
 
(109,615
)
 
13.45

Forfeited
 
(6,873
)
 
26.49

Non-vested at June 30, 2016
 
273,505

 
8.37

During the six months ended June 30, 2016, the Company accelerated the terms of equity awards, including both RSA's and PSU's, granted to employees as part of a reduction in workforce. The Company recorded incremental expense of $0.1 million and $0.2 million for the three and six months ended June 30, 2016, respectively, and $3.0 million and $3.1 million for the three and six months ended June 30, 2015, respectively, in the Payroll and benefits line item in the Condensed Consolidated Statement of Operations.
Stock Options
Stock options generally vest over three years and have a contractual limit of five years from the date of grant to exercise. The fair value of stock options granted pursuant to one of the Company’s plans is determined on the date of grant using the Black-Scholes option pricing model and the related expense is recognized on a straight-line basis over the entire vesting period. The Company did not grant any stock options during the six months ended June 30, 2016.

24


A summary of option activity for the six months ended June 30, 2016 is presented below:
 
 
Number of
Options
Outstanding and
Exercisable
 
Weighted
Average
Exercise
Price
 
Aggregate Intrinsic Value
 
Weighted
Average
Remaining
Contractual
Term (in years)
Options outstanding, January 1, 2016
 
106,250

 
$
15.22

 
 
 
 
Options granted (1)
 
268,198

 
$
13.19

 
 
 
 
Options exercised
 
—

 
$
—

 
 
 
 
Options expired / forfeited
 
—

 
$
—

 
 
 
 
Options outstanding, June 30, 2016
 
374,448

 
$
13.77

 
$
—

 
3.85
Options exercisable as of June 30, 2016
 
157,780

 
$
12.87

 
$
—

 
3.73
(1)
Included in options granted are 243,750 awards granted that were initially granted on a contingent basis and became exercisable as a result of the automatic expiration of the same number of Stock Appreciation Rights, as a result of stockholder approval of Amendment No. 4 of the Company's Amended and Restated 2007 Equity Incentive Plan, as amended (the "2007 Plan"). See "Stock Appreciation Rights," below for a discussion of the provisions of the exchange and incremental expense recognized.
Stock Appreciation Rights
SAR's generally vest over three years and have a contractual limit of five years from the date of grant to exercise. The fair value of SAR's granted is determined on the date of grant using the Black-Scholes option pricing model and the related expense is recognized on a straight-line basis over the derived service period of the respective awards. The Company did not grant any SAR's during the six months ended June 30, 2016.
During the six months ended June 30, 2016, the Company's stockholders approved the 2007 Plan, which triggered an automatic expiration of the Stock Appreciation Rights and an equal number of stock options being exercisable and no longer granted on a contingent basis. Upon approval, all existing SAR's expired under this provision. The Company recorded incremental expense of $0.1 million to stock-based compensation related to the change in fair value of the SAR's prior to the reclassification date. Upon reclassification, the impact to Additional paid-in capital was $0.8 million. The Company had no SAR's outstanding at June 30, 2016.
Performance Share Units
Compensation expense is recognized for PSU awards on a straight-line basis over the applicable service period, which is generally three years, based on the estimated fair value at the date of grant using a Monte Carlo simulation model. There were no PSU's granted during the six months ended June 30, 2016.
A summary of PSU activity for the six months ended June 30, 2016 is presented below:
 
 
Units
 
Weighted
Average
Grant Date
Fair Value
Non-vested at January 1, 2016
 
169,334

 
$
26.38

Granted
 
—

 
—

Vested / Settled (1)
 
(119,818
)
 
26.87

Forfeited / Canceled
 
—

 
—

Non-vested at June 30, 2016
 
49,516

 
$
25.19

(1) The number of units shown in the table above are based on target performance. The final number of shares of common stock issued may vary depending on the achievement of market conditions established within the awards, which could result in the actual number of shares issued ranging from zero to a maximum of two times the number of units shown in the above table.

25


The following table shows the PSU's that were settled by issuing shares of the Company's common stock relative to a broad stock index and a peer group performance index.
 
 
Year of Grant
 
Net Number of Issued Shares upon Vesting
 
Shares Withheld to Settle Tax Withholding Obligations
 
TSR Multiple Range
 
Russell 3000 Multiple
 
 
 
 
 
Low
 
High
 
Low
 
High
Six Months Ended June 30, 2016
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
2013
 
28,566

 
1,572

 
0.63

 
1.00

 
—

 
—

 
 
2014
 
11,487

 
—

 
0.63

 
0.63

 
—

 
—

 
 
2015
 
13,529

 
—

 
0.50

 
0.50

 
—

 
—

Six Months Ended June 30, 2015
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
2013
 
8,768

 
3,954

 
1.75

 
1.75

 
2.00

 
2.00

 
 
2014
 
2,506

 
1,145

 
0.63

 
0.75

 
—

 
0.75

Note 10 - Income Taxes
For the three and six months ended June 30, 2016 and 2015, the Company's income tax expense and effective tax rates on forecasted pretax income (losses) were:
 
 
Three Months Ended June 30,
 
Six Months Ended June 30,
(in thousands, except for rate)
 
2016
 
2015
 
2016
 
2015
Income tax expense
 
$
99

 
$
63

 
$
152

 
$
107

Effective tax rate
 
1
%
 
(1
)%
 
1
%
 
(1
)%
The effective tax rates for the three and six months ended June 30, 2016 were different from the statutory rate primarily due to a release of the Company's valuation allowances against federal and state net operating losses and federal tax credits due to the utilization of a portion of the net operating losses and federal tax credits, which was partially offset by estimated state tax expense in for those periods in 2016.
The effective tax rates for the three and six months ended June 30, 2015 were different from the statutory rate primarily due to an increase in the Company's valuation allowances against federal and state net operating losses and federal tax credits, which was partially offset by estimated state tax expense in for those periods in 2016 and 2015.
Consistent with December 31, 2015, the Company determined that it is more likely than not that it would not be able to realize the value of its federal and state net operating loss carryforwards, tax credits and other deferred tax assets and has recorded a full valuation allowance against the deferred tax assets. A significant piece of objective negative evidence evaluated was the cumulative loss incurred over the three-year period ended June 30, 2016. As such, the Company has concluded that a full valuation allowance continues to be necessary related to the deferred tax assets as of June 30, 2016 that may not be realized.

26


Note 11 - Supplemental Financial Information
    
Supplemental Balance Sheet Information
The following table summarizes the components of Other current assets and Other long-term assets as presented on the Condensed Consolidated Balance Sheets:
 
 
As of
(in thousands)
June 30,
2016
 
December 31,
2015
Other current assets:
 
 
 
 
   Prepaid expenses
 
$
1,287

 
$
2,117

   Inventory
 
187

 
189

   Net investment in sales-type lease, current
 
307

 
—

 
 
$
1,781

 
$
2,306

Other long-term assets:
 
 
 
 
   Deposits
 
$
264

 
$
414

   Net investment in sales-type lease, long-term
 
2,494

 
—

   Intangibles
 
635

 
1,941

   Other long-term assets
 
321

 
341

 
 
$
3,714

 
$
2,696

As of June 30, 2016, the Company has a lease related to an equipment system that qualifies as a sales-type lease because the net present value of the future lease payments to be received exceeds the carrying value of the leased equipment.
The following table presents the Company's net investment in the sales-type lease as of June 30, 2016:
(in thousands)
 
 
Future lease payments
 
$
5,508

Less: Unguaranteed residual value of leased assets
 
—

Less: Unearned interest income
 
(2,707
)
Net investment in sales-type lease
 
$
2,801

The following table presents the future minimum lease payments to be received under the sales-type lease as of June 30, 2016 (information presented related to years ending December 31):
(in thousands)
 
Minimum Lease Payments
   2016 (remainder)
 
$
307

   2017
 
441

   2018
 
536

   2019
 
721

   2020
 
796

   Thereafter
 
—

   Total
 
$
2,801


27


The following table summarizes the components of Other current liabilities and Other long-term liabilities as presented on the Condensed Consolidated Balance Sheets:
 
 
As of
(in thousands)
 
June 30,
2016
 
December 31,
2015
Other current liabilities:
 
 
 
 
Accrued consultant incentives
 
$
—

 
$
369

Accrued interest
 
1,483

 
1,042

Accrued losses on equipment contracts
 
550

 
759

Taxes payable
 
583

 
521

Deferred revenue
 
305

 
682

Warranty liabilities
 
959

 
1,197

Other
 
3,132

 
2,825

 
 
$
7,012

 
$
7,395

Other long-term liabilities:
 
 
 
 
Deferred rent
 
$
605

 
$
767

Deferred revenue, related party
 
2,000

 
2,000

Other long-term liabilities
 
266

 
2,605

 
 
$
2,871

 
$
5,372

Below summarizes the components of Other current liabilities and Other long-term liabilities as presented above:
The changes in the carrying amount of the Company’s warranty obligations from December 31, 2015 through June 30, 2016, which do not include amounts for DSI systems as revenues are deferred until the end of the warranty period, are as follows: 
 
 
As of
(in thousands)
 
June 30,
2016
Beginning balance
 
$
1,197

Warranties accrued, net
 
173

Warranty claims
 
(411
)
Ending balance
 
$
959

Included within Other current liabilities as of June 30, 2016 and Other long-term liabilities as of December 31, 2015 is the Company's asset retirement obligation. Changes in the Company's asset retirement obligations were as follows:
 
 
As of
(in thousands)
 
June 30,
2016
 
December 31,
2015
Asset retirement obligation, beginning of period
 
$
1,248

 
$
1,188

Accretion
 
31

 
60

Asset retirement obligations, end of period
 
$
1,279

 
$
1,248


Long-term License Agreement
During 2014, the Company entered into an exclusive, ten-year agreement ("License Agreement") with Highview to utilize certain licensed technology. Pursuant to the License Agreement, the Company recorded a long-term licensed technology asset and related obligation. As of December 31, 2015, the Company's obligation under the long-term licensing agreement was approximately $1.6 million.
On June 15, 2016, the Company entered into an agreement with Highview to terminate the License Agreement in exchange for a one-time payment by the Company of £0.2 million (approximately $0.2 million). Per the agreement, payment of the termination fee, if any, will only be settled by relinquishing shares of Highview currently owned by the Company equal to £0.2 million. As a result of terminating the License Agreement, the Company wrote off the licensed technology asset, reduced the corresponding long-term liability as of June 30, 2016 to the amount of the one-time payment, and recognized a gain of

28


approximately $0.2 million. The gain on the settlement of the Highview license technology obligation is included in the Other income line on the Company's Condensed Consolidated Statement of Operations for the three and six months ended June 30, 2016.

The following table presents the Company's account balances associated with related parties, exclusive of amounts owed to employees in the normal course of business, which are included within the Accounts payable line on the Company's Condensed Consolidated Balance Sheets:
 
 
As of
(in thousands)
 
June 30, 2016
 
December 31, 2015
Payable to related party
 
$
35

 
$
270


Supplemental Condensed Consolidated Statements of Operations Information
The following table details the components of Interest expense in the Condensed Consolidated Statements of Operations:
 
 
Three Months Ended June 30,
 
Six Months Ended June 30,
(in thousands)
 
2016
 
2015
 
2016
 
2015
453A interest
 
$
354

 
$
1,116

 
$
1,145


$
2,272

Interest on RCM6 note payable, related party
 
—

 
609

 
263


1,214

Credit agreement interest
 
1,215

 
—

 
2,112

 
—

Other
 
4

 
69

 
17

 
83

Total interest expense
 
$
1,573

 
$
1,794

 
$
3,537

 
$
3,569


Note 12 - Business Segment Information
Operating segments are defined as components of an enterprise about which separate financial information is available that is evaluated regularly by a company's chief operating decision maker ("CODM"), or a decision making group, in deciding how to allocate resources and in assessing financial performance. As of June 30, 2016, the Company's CODM was the Company's CEO. The Company's operating and reportable segments are organized by products and services provided. Segments have been reorganized from prior periods due to changes within the Company's management structure and the manner in which the Company is operating the business. All prior periods have been conformed to the current year presentation.
During the fourth quarter of 2015, the Company realigned is operating segments into two reportable segments: (1) Refined Coal; and (2) Emissions Control ("EC"). Following the realignment, the Company retroactively adjusted all segment related disclosures included within the notes to the Condensed Consolidated Financial Statements.
The business segment measurements provided to and evaluated by the CODM are computed in accordance with the principles listed below:
•
The accounting policies of the operating segments are the same as those described in the summary of significant accounting policies except as described below.
•
Segment revenue includes the Company's equity method earnings and losses from the Company's equity method investments. Segment revenue also includes the Company's royalty earnings from CCS and income related to a sales-type lease.
•
Segment operating income (loss) includes the Company's equity method earnings and losses from the Company's equity method investments, royalty earnings from CCS (including depreciation and amortization expense) and gains related to sales of equity method investments. However, segment operating income (loss) excludes Payroll and benefits, Rent and occupancy, Legal and professional fees, and General and administrative ("Corporate general and administrative expenses") unless otherwise specifically included as the Company does not allocate those amounts between segments.
•
All items not included in operating income are excluded from the segments reporting.
As of June 30, 2016 and December 31, 2015, substantially all of the Company's material assets are located in the U.S. and all significant customers are either U.S. companies or the U.S. Government. The following table presents the Company's operating segment results for the three and six months ended June 30, 2016 and 2015:

29


 
 
Three Months Ended June 30,
 
Six Months Ended June 30,
(in thousands)
 
2016
 
2015
 
2016
 
2015
Revenues:
 
 
 
 
 
 
 
 
Refined Coal:
 
 
 
 
 
 
 
 
Earnings in equity method investments
 
$
13,754

 
$
4,860

 
$
19,331

 
$
5,174

Consulting services
 
—

 
34

 
—

 
55

Royalties
 
669

 
2,299

 
1,859

 
4,493

 
 
14,423

 
7,193

 
21,190

 
9,722

Emissions Control:
 
 
 
 
 
 
 
 
Equipment sales
 
8,213


14,235


29,919


35,351

Chemicals
 
613


344


1,047


617

Consulting services
 
125


282


320


629

 
 
8,951

 
14,861

 
31,286

 
36,597

Total segment reporting revenues
 
23,374

 
22,054

 
52,476

 
46,319

Adjustments to reconcile to reported revenues:
 
 
 
 
 
 
 
 
Refined Coal:
 
 
 
 
 
 
 
 
Earnings in equity method investments
 
(13,754
)
 
(4,860
)
 
(19,331
)
 
(5,174
)
Royalties
 
(669
)
 
(2,299
)
 
(1,859
)
 
(4,493
)
 
 
(14,423
)
 
(7,159
)
 
(21,190
)
 
(9,667
)
Total reported revenues
 
$
8,951

 
$
14,895

 
$
31,286

 
$
36,652

 
 
 
 
 
 
 
 
 
Segment operating income (loss):
 
 
 
 
 
 
 
 
Refined Coal (1)
 
$
14,199

 
$
5,175


$
22,061


$
5,835

Emissions Control
 
2,118

 
(5,458
)
 
6,700

 
(4,909
)
Total segment operating income (loss)
 
$
16,317

 
$
(283
)
 
$
28,761

 
$
926


(1) Included within the RC segment operating income for the six months ended June 30, 2016 is the $2.1 million gain on sale of RCM6.
A reconciliation of reportable segment amounts to the Company's consolidated balances is as follows: 
 
 
Three Months Ended June 30,
 
Six Months Ended June 30,
(in thousands)
 
2016
 
2015
 
2016
 
2015
Segment income (loss)
 
 
 
 
 
 
 
 
Total segment income (loss)
 
$
16,317

 
$
(283
)
 
$
28,761

 
$
926

Adjustments to reconcile to net income (loss) attributable to ADES
 
 
 
 
 
 
 
 
Corporate payroll and benefits
 
(2,866
)
 
(6,641
)
 
(5,912
)
 
(9,511
)
Corporate rent and occupancy
 
(272
)
 
(163
)
 
(501
)
 
(301
)
Corporate legal and professional fees
 
(1,982
)
 
(4,056
)
 
(4,909
)
 
(7,364
)
Corporate general and administrative
 
(1,373
)
 
(1,085
)
 
(2,146
)
 
(1,991
)
Corporate depreciation and amortization
 
(128
)
 
(156
)
 
(258
)
 
(306
)
Corporate interest (expense) income, net
 
(1,214
)
 
6

 
(2,121
)
 
18

Other (expense) income, net
 
(523
)
 
(6
)
 
(526
)
 
57

Income tax expense
 
(99
)
 
(63
)
 
(152
)
 
(107
)
Net income (loss)
 
$
7,860

 
$
(12,447
)
 
$
12,236

 
$
(18,579
)

30


Corporate general and administrative expenses include certain costs that benefit the business as a whole but are not directly related to one of our segments. Such costs include but are not limited to accounting and human resources staff, information systems costs, legal fees, facility costs, audit fees and corporate governance expenses. 
Segment assets were as follows as of the dates presented:
 
 
As of
(in thousands)
 
June 30,
2016
 
December 31,
2015
Refined Coal
 
$
3,910

 
$
19,507

Emissions Control
 
23,711

 
31,467

All Other and Corporate
 
8,987

 
9,801

Consolidated
 
$
36,608

 
$
60,775


Note 13 - Subsequent Events
Unless disclosed elsewhere within the notes to the Condensed Consolidated Financial Statements, the following are the matters that occurred subsequent to the balance sheet date.
In July 2016, $2.4 million of Restricted cash was released to the Company as it met all performance testing requirements on certain equipment projects during the second quarter of 2016. Upon release, the cash will be included in the Cash and cash equivalents line item on the Condensed Consolidated Balance Sheets.
In July 2016, the Company initiated a workforce reduction plan affecting approximately 38% of the Company’s employees. In connection with these actions, the Company currently expects to record aggregate charges with respect to severance payments, benefits continuation and vesting of certain equity awards that are estimated to be approximately $0.7 million - $0.9 million and are expected to be recorded during the third quarter of 2016. Cash expenditures related to this workforce reduction are expected to be approximately $0.5 million - $0.7 million.





31


Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations
The following discussion and analysis of the financial condition and results of our operations should be read together with the unaudited Condensed Consolidated Financial Statements and notes of Advanced Emissions Solutions, Inc. ("ADES" or the "Company") included elsewhere in Item 1 of Part I of this Quarterly Report on Form 10-Q and with the audited consolidated financial statements and the related notes of ADES, included in our most recent Annual Report on Form 10-K for the year ended December 31, 2015.
Overview
ADES serves as the holding entity for a family of companies that provide emissions solutions to customers in the coal-fired power generation and industrial boiler industries. Through its subsidiaries and joint ventures, the Company is a leader in emissions control technologies and associated equipment, chemicals, and services. Our proprietary environmental technologies enable our customers to reduce emissions of mercury and other pollutants, maximize utilization levels and improve operating efficiencies to meet the challenges of existing and pending emission control regulations.
Our approach to technology development, implementation and commercialization involves taking technology to full-scale testing as quickly as we can and enhancing the technology under actual operating conditions.
Our major activities include:
•
Through CCS, an unconsolidated entity, the reduction of mercury and nitrogen oxide ("NOX") emissions at select coal-fired power generators, via the production of refined coal ("RC"). The primary economic benefit of this activity is derived from the tax credits generated by the production of RC, which are either retained for our future use or transferred to a third party tax equity investor(s) via the sale or lease of such RC facilities. See the separately filed financial statements of CCS and the other related RC entities within the Company’s Annual Report on Form 10-K for the year ended December 31, 2015;
•
Development and sale of technology to reduce emissions and improve operations of coal-fired boilers used for power generation and industrial processes; and
•
Development and sale of equipment, consulting services, specialty chemicals and other products designed to reduce emissions of mercury, acid gases, metals and other pollutants and the providing of technology services in support of our customers' emissions compliance strategies.
Results of Operations
For the three and six months ended June 30, 2016, we recognized net income of $7.9 million and $12.2 million, respectively, compared to a net loss of $12.4 million and $18.6 million for the three and six months ended June 30, 2015, respectively.

Generally, this improved performance during the three and six months ended June 30, 2016 as compared to 2015 can be attributed to a combination of factors, including:
•
Improved margin performance in the EC business, despite a reduction in sales in both the three and six month periods ended June 30, 2016 as compared to the comparable periods of 2015;
•
Improved performance in our RC business segment, principally related to substantially higher dividend distributions and equity earnings from our CCS and CCSS joint ventures;
•
Across the board reductions in all categories of expenses in 2016 as compared to 2015, driven by restructuring activities and by a reduction in resources to complete the re-audit and restatement of prior financial statements (the "Restatement"), with such activities being substantially completed by April 2016.

The following sections provide additional information regarding these comparative periods. For comparability purposes, the following tables set forth our results of operations for the periods presented in our Condensed Consolidated Financial Statements included in Item 1 of this Quarterly Report. The period-to-period comparison of financial results may not be indicative of financial results to be achieved in future periods.


32


Comparison of the Three Months Ended June 30, 2016 and 2015
Total Revenue and Cost of Revenue
A summary of the components of our revenue and costs of revenue for the three months ended June 30, 2016 and 2015 is as follows:
 
 
Three Months Ended June 30,
 
Change
(in thousands, except percentages)
 
2016
 
2015
 
($)
 
(%)
Revenues:
 
 
 
 
 
 
 
 
Equipment sales
 
$
8,213

 
$
14,236

 
$
(6,023
)
 
(42
)%
Chemicals
 
613

 
343

 
270

 
79
 %
Consulting services and other
 
125

 
316

 
(191
)
 
(60
)%
Total revenues
 
$
8,951

 
$
14,895

 
$
(5,944
)
 
(40
)%
Operating expenses:
 
 
 
 
 
 
 
 
Equipment sales cost of revenue, exclusive of depreciation and amortization
 
$
5,437


$
13,698

 
$
(8,261
)
 
(60
)%
Chemicals cost of revenue, exclusive of depreciation and amortization
 
$
255


$
41

 
$
214

 
522
 %
Consulting services cost of revenue, exclusive of depreciation and amortization
 
$
77


$
264

 
$
(187
)
 
(71
)%

Equipment sales and Equipment sales cost of revenue, exclusive of items shown separately below
During the three months ended June 30, 2016 and 2015, we entered into one and one long term (6 months or longer) fixed price contracts to supply Activated Carbon Injection ("ACI") systems with aggregate contract values, net of change orders during the period, of $1.1 million and $0.9 million, respectively. The total value per contract may change due to the relative sizes of ACI systems and the contracts related thereto. During the three months ended June 30, 2016 and 2015, we completed 3 and 10 ACI systems, recognizing revenues of $4.8 million and $14.0 million and costs of revenue of $4.0 million and $11.8 million, respectively. We recognized $0.4 million and zero in loss provisions, included within costs of revenue, for contracts related to ACI systems during the three months ended June 30, 2016 and 2015, respectively.
During the three months ended June 30, 2016 and 2015, we did not enter into any long term (6 months or longer) fixed price contracts to supply Dry Sorbent Injection ("DSI") systems. During the three months ended June 30, 2016, change orders impacted prior period contracts, which had a negative aggregate contract value of $1.0 million. During the three months ended June 30, 2015, the aggregate value of contracts, net of change orders, was $0.4 million. Total value per contract may change due to the relative sizes of DSI systems and the contracts related thereto. During the three months ended June 30, 2016 and 2015, we completed one and zero DSI systems, resulting in no material revenue in either period. During the three months ended June 30, 2016 and 2015, the Company recognized costs of revenue of $0.2 million and $1.8 million, respectively. Certain of the DSI system long-term fixed price contracts were expected to be completed with losses. During the three months ended June 30, 2016, the Company released $0.3 million related to loss provisions recognized in cost of revenue due to a change in estimate for DSI system contracts. During the three months ended June 30, 2015, $1.8 million in loss provisions was included in cost of revenue related to DSI system contracts. Due to potential cost overruns related to certain DSI projects, we expect that the future relationship between revenues and costs may be dissimilar from prior results.
Additionally, in June 2016, the Company commenced a lease agreement related to ACI and DSI systems, which resulted in the Company recognizing revenue of $3.4 million and cost of revenue of $1.2 million during the three months ended June 30, 2016 related to the Company's net investment in the sales-type lease.
The remaining changes were due to other equipment sales.
Demand for ACI and DSI system contracts have historically been driven by coal fired power plant utilities that need to comply with Federal Mercury and Air Toxics Standards ("MATS"), and Maximum Achievable Control Technology Standards ("MACT") standards. As the deadline for these standards has passed, we expect a continued significant decline in the number of long term fixed price contracts entered into going forward. However, the Company believes there will continue to be a market related to the upgrade and replacement of ACI and DSI systems as well as other equipment solutions to achieve compliance with regulatory standards.
Chemicals and Chemicals cost of revenue
During the three months ended June 30, 2016 and 2015, revenues increased quarter over quarter due to an increase in pounds sold related to sales of our M-45TM and M-45-PCTM technologies. Due to coal-fired power plant requirements to be in

33


compliance with applicable regulations in 2015 and beyond, we believe this will lead to an increase in the market for these products in the future.
Consulting services and Consulting services cost of revenue
The Company also provides consulting services related to emissions regulations. During the three months ended June 30, 2016 and 2015, revenues decreased period over period due to a decrease in the number of consulting service engagements performed and a decrease in average contract revenue, which will fluctuate due to customer mix and specific consulting engagements. The decrease in the number of consulting services engagements was in part due to the Company no longer performing consulting services related to a certain customer, within the legacy Emissions Control - Manufacturing segment.
Additional information related to revenue concentrations and contributions by class and reportable segment can be found within the segment discussion below and in Note 12 to the Company's Condensed Consolidated Financial Statements.
Other Operating Expenses
A summary of the components of our operating expenses, exclusive of costs of revenue (presented above), for the three months ended June 30, 2016 and 2015 is as follows:
 
 
Three Months Ended June 30,
 
Change
(in thousands, except percentages)
 
2016
 
2015
 
($)
 
(%)
Operating expenses:
 
 
 
 
 
 
 
 
Payroll and benefits
 
$
3,956


$
9,746

 
$
(5,790
)
 
(59
)%
Rent and occupancy
 
632

 
601

 
31

 
5
 %
Legal and professional fees
 
1,982


4,387

 
(2,405
)
 
(55
)%
General and administrative
 
1,346

 
1,503

 
(157
)
 
(10
)%
Research and development, net
 
(345
)

1,860

 
(2,205
)
 
(119
)%
Depreciation and amortization
 
223

 
573

 
(350
)
 
(61
)%
 
 
$
7,794

 
$
18,670

 
$
(10,876
)
 
(58
)%

Payroll and benefits
Payroll and benefits expenses decreased during the three months ended June 30, 2016 compared to the same period in 2015 primarily due to a decrease in restructuring expenses, including the modification and acceleration of equity awards in connection with certain executive officers and employees impacted by management's alignment of the business with strategic objectives. During the three months ended June 30, 2016 and June 30, 2015, the Company recorded restructuring charges of $0.8 million and $5.6 million, respectively, including the modification and acceleration of equity awards of $0.1 million and $3.0 million, respectively. Additionally, the Company had a decrease in headcount of approximately 72% quarter over quarter in connection with employees impacted by management's alignment of the business with strategic objectives.

Rent and occupancy
Rent and occupancy expense increased during the three months ended June 30, 2016 compared to the same period in 2015 primarily due to an increase in insurance expense and property taxes. This increase was offset by a decrease in rent expense primarily related to the shutdown of our BCSI office and fabrication facilities in the fourth quarter of 2015. During the first quarter of 2016, the Company entered into an agreement to terminate various lease agreements covering approximately 207 thousand square feet of manufacturing, warehouse and office space located in Pennsylvania. As consideration for terminating the leases, the Company agreed to pay the lessor termination fees of $0.3 million in April 2016 and the same amount in April 2017. The Company recorded a gain of $0.2 million related to the difference between the amount accrued as of the cease use date of December 31, 2015 and the settlement amount during the first quarter of 2016.

Legal and professional fees
Legal and professional fees expenses decreased during the three months ended June 30, 2016 compared to the same period in 2015 as a result of a reduction in the professional resources deployed to address the Restatement of our consolidated financial statements, including the an inquiry to determine if violations of the federal securities laws have occurred (the "SEC Inquiry"). Expenses related to the Restatement during the three months ended June 30, 2016 and 2015 were $0.3 million and $2.7 million respectively. The Restatement was substantially completed as of April 2016, and we expect that the SEC Inquiry will also be resolved by the end of 2016.
General and administrative
General and administrative expense decreased during the three months ended June 30, 2016 compared to the same period in 2015 due to a decrease in general operating expenses, including travel, professional dues and recruiting. This decrease is offset

34


by impairment charges recognized on property and equipment and inventory of $0.5 million, as projected future cash flows from operations related to the property and equipment and inventory did not support the carrying value recorded by the Company.
Research and development, net
Research and development expense decreased during the three months ended June 30, 2016 compared to the same period in 2015 due to a decrease in research and development activities as the Company has concluded all material R&D activities. Additionally, the Company reduced R&D expense due to final billings to the Department of Energy ("DOE") for one R&D contract.
Depreciation and amortization
Depreciation and amortization expense decreased during the three months ended June 30, 2016 compared to the same period in 2015 by approximately $0.3 million due to the shutdown of our BCSI office and fabrication facility in the fourth quarter of 2015 and by approximately $0.1 million due to the termination of the Highview technology license. See further discussion of the termination of the Highview technology license in Note 7.

Other Income (Expense), net
A summary of the components of our other income (expense), net for the three months ended June 30, 2016 and 2015 is as follows:
 
 
Three Months Ended June 30,
 
Change
(in thousands, except percentages)
 
2016
 
2015
 
($)
 
(%)
Other income (expense):
 
 
 
 
 
 
 
 
Earnings from equity method investments
 
$
13,754

 
$
4,860

 
$
8,894

 
183
 %
Royalties, related party
 
669

 
2,299

 
(1,630
)
 
(71
)%
Interest income
 
95

 
6

 
89

 
*

Interest expense
 
(1,573
)
 
(1,794
)
 
221

 
(12
)%
Gain on settlement of note payable and licensed technology
 
151

 
—

 
151

 
*

Other
 
(525
)
 
23

 
(548
)
 
*

Total other income
 
$
12,571

 
$
5,394

 
$
7,177

 
133
 %

* Calculation not meaningful

Earnings from equity method investments
The following table details the components of the Company's respective equity method investments included within the Earnings from equity method investments line item on the Condensed Consolidated Statements of Operations:
 
 
Three Months Ended June 30,
(in thousands)
 
2016
 
2015
Earnings from CCS
 
$
12,832

 
$
4,630

Earnings from CCSS
 
922

 
1,150

Loss from RCM6
 
—

 
(920
)
Earnings from equity method investments
 
$
13,754

 
$
4,860


Earnings in equity method investments, and changes related thereto, are impacted by our equity method investees: CCS, CCSS and RCM6 (through the date of the sale of our interest, March 3, 2016). Earnings in equity method investments increased due to an increase in cash distributions in excess of our investment balance from CCS.

During the three months ended June 30, 2016, we recognized $12.8 million in equity income from CCS compared to our proportionate share of CCS's net income of $6.8 million for the period. During the three months ended June 30, 2015, we recognized $4.6 million in equity income from CCS compared to our proportionate share of CCS's net income of $7.8 million for the period. The difference between our pro-rata share of CCS's net income and our earnings from our CCS equity method investment as reported on our Condensed Consolidated Statements of Operations relates to the Company previously receiving distributions in excess of the carrying value of the investment, and therefore recognizing such excess distributions as equity method earnings in the period the distributions occur, as discussed in more detail below.

35



The carrying value of our investment in CCS was reduced to zero as of June 30, 2016, as cumulative cash distributions received from CCS exceeded our pro-rata share of cumulative earnings in CCS. Our carrying value of the Company's investment in CCS will remain zero as long as the cumulative amount of distributions received from CCS continues to exceed our cumulative pro-rata share of CCS's income. For quarterly periods during which the ending balance of our investment in CCS is zero, we only recognize equity income from CCS to the extent that cash distributions are received from CCS during the period. For quarterly periods during which the ending balance of our investment is greater than zero (e.g., when the cumulative earnings in CCS exceeds cumulative cash distributions received), we recognize our pro-rata share of CCS's earnings (losses) for the period, less any amount necessary to recover the cumulative earnings short-fall balance as of the end of the immediately preceding quarter. See additional information related to the Company's investment balance, equity earnings and cash distributions in Note 4 of the Condensed Consolidated Financial Statements.

As a result of cash flows from invested RC facilities, CCS cash distributions to the Company during the three months ended June 30, 2016 of $6.1 million exceeded the Company's pro-rata share of CCS net income, which resulted in the Company having a cumulative amount of cash distributions that exceeded our cumulative pro-rata share of CCS's income as of June 30, 2016.

As of June 30, 2016 and 2015, CCS had 13 and 12 invested RC facilities, respectively, that were generating rental income respectively. The number of retained RC facilities that were generating Internal Revenue Code Section 45 tax credits ("PTCs") and other tax benefits as of as of June 30, 2016 and 2015, were zero and five, respectively. The reduction in operated retained RC facilities was due to suspending operations on retained facilities in order to reduce operating expenses.

Equity earnings from our interest in CCSS decreased by $0.2 million during the three months ended June 30, 2016 compared to the three months ended June 30, 2015, primarily due to a decrease in the number of RC facilities being operated by CCSS. The weighted-average number of RC facilities for which CCSS had operating and maintenance agreements in place, based upon the number of months each facility was operated during the respective periods, decreased period over period. As of June 30, 2016 and 2015, CCSS had operating and maintenance agreements in place with 13 and 17 operating RC facilities, respectively. CCSS derives earnings both from fixed-fee arrangements as well as fees that are based on actual RC production, depending upon the specific RC facility operating and maintenance agreement. The reduction in operated facilities during the three months ended June 30, 2016, was due to suspending operations on retained facilities to reduce operating expenses.

During February 2014, we purchased a membership interest in RCM6 and recognized equity method losses resulting from the operation of the RC facility owned by RCM6 in all subsequent reporting periods; although, RCM6 generated tax credits and tax benefits available to us. Equity losses from our interest in RCM6 decreased during the three months ended June 30, 2016 compared to the three months ended June 30, 2015, due to our sale of our 24.95% membership interest in RCM6 on March 3, 2016 for a cash payment of $1.8 million and assumption of the outstanding note payable made by the Company in connection with its purchase of RCM6 membership interests from CCS in February 2014. As a result of the sale, the Company is no longer a member of RCM6 and is no longer subject to any quarterly capital calls and variable payments to RCM6.

Although all of our deferred tax assets have a full valuation allowance recorded against them as of June 30, 2016 and 2015, respectively, we earned, through our ownership in CCS, the following tax credits which may be available for future benefit related to the operation of retained RC facilities that were not invested:
 
 
Three Months Ended June 30,
(in thousands)
 
2016
 
2015
Section 45 tax credits earned
 
$
116

 
$
9,113


The decrease in tax credits earned during the three months ended June 30, 2016 compared to the three months ended June 30, 2015 was due to suspending operations on retained facilities, as described above. Additional information related to our equity method investees is included in Note 4 of the Condensed Consolidated Financial Statements.

Royalties, related party
During the three months ended June 30, 2016 and 2015, there were 2.9 million tons and 4.9 million tons, respectively, of RC produced using M-45TM and M-45-PCTM technologies, which CCS licenses from us. The decrease was due to a decrease in the number of RC facilities producing RC with our technologies, specifically the suspension of operations at retained facilities. Additionally, as the royalties are earned on a percentage of the per-ton, pre-tax margin of RC produced with the M-45 License that produces a valid and verifiable Section 45 Tax Credit, net of certain allocable operating expenses, the increase in operating expenses of CCS due to payments made to secure the location for an RC facility, while waiting to receive a tax equity investor,

36


also decreased the royalty we earned. We anticipate royalty income for the remainder of 2016 to approximate the income of the three months ended June 30, 2016 based on similar production results and number of retained facilities, rather than the earnings amounts from the comparable period in 2015 due to the suspension of operations related to retained RC facilities.

Interest expense
During the three months ended June 30, 2016 and 2015, interest expense decreased due to a decrease in interest expense related to Internal Revenue Code section 453A ("453A"), which requires taxpayers using the installment method to pay an interest charge on the portion of the tax liability that was deferred under the installment method, and the elimination of the RCM6 note payables. These decreases were $0.8 million and $0.6 million, respectively. These decreases were offset by an increase in interest expense related to the credit agreement for a $15.0 million short-term loan (the "Credit Agreement").

Gain on settlement of licensed technology obligation
On June 15, 2016, the Company entered into an agreement with Highview to terminate the License Agreement in exchange for a one-time payment by the Company of £0.2 million (approximately $0.2 million). Per the agreement, this payment will only be made upon the sale of the Company's shares of Highview to satisfy the liability. As a result of terminating the License Agreement, the Company wrote off the licensed technology asset, reduced the corresponding long-term liability as of June 30, 2016 to the amount of the one-time payment, and recognized a gain of approximately $0.2 million,

Other
The Company recorded an expense as of June 30, 2016 for the expected payment of monetary penalties in connection with the SEC Inquiry in the amount of $0.5 million. For additional detail, see Note 8 of the Condensed Consolidated Financial Statements.

Income tax expense
We did not record any federal income tax expense (benefit) during the three months ended June 30, 2016 and 2015 as a result of recording full valuation allowances against all of our net deferred tax assets in all jurisdictions. However, we recorded nominal state income tax expense for the three months ended June 30, 2016 and 2015 of $0.1 million and $0.1 million, respectively.

Comparison of the Six Months Ended June 30, 2016 and 2015

Total Revenue and Cost of Revenue
A summary of the components of our revenue and costs of revenue for the six months ended June 30, 2016 and 2015 is as follows:
 
 
Six Months Ended June 30,
 
Change
(in thousands, except per share data and percentages)
 
2016
 
2015
 
($)
 
(%)
Revenues:
 
 
 
 
 
 
 
 
Equipment sales
 
$
29,919

 
$
35,351

 
$
(5,432
)
 
(15
)%
Chemicals
 
1,047

 
617

 
430

 
70
 %
Consulting services and other
 
320

 
684

 
(364
)
 
(53
)%
Total revenues
 
$
31,286

 
$
36,652

 
$
(5,366
)
 
(15
)%
Operating expenses:
 
 
 
 
 
 
 
 
Equipment sales cost of revenue, exclusive of depreciation and amortization
 
$
22,470

 
$
28,749

 
$
(6,279
)
 
(22
)%
Chemicals cost of revenue, exclusive of depreciation and amortization
 
$
396

 
$
278

 
$
118

 
42
 %
Consulting services cost of revenue, exclusive of depreciation and amortization
 
$
212

 
$
690

 
$
(478
)
 
(69
)%

Equipment sales and Equipment sales cost of revenue, exclusive of items shown separately below
During the six months ended June 30, 2016 and 2015, we entered into five and two long term (6 months or longer) fixed price contracts to supply ACI systems, having aggregate contract values, net of changes orders, during the period, of $2.0 million and $4.2 million, respectively. Total value per contract may change due to the relative sizes of ACI systems and the contracts related thereto. During the six months ended June 30, 2016 and 2015, we completed 13 and 21 ACI systems, recognizing revenues of $19.4 million and $35.0 million and costs of revenue of $14.1 million and $26.5 million, respectively. We recognized $0.5

37


million and zero in loss provisions, included within cost of revenue, related to ACI systems contracts during the six months ended June 30, 2016 and 2015, respectively.

During the six months ended June 30, 2016 and 2015, we entered into zero and one long term (6 months or longer) fixed price contracts to supply DSI systems and other material handling equipment. During the six months ended June 30, 2016, change orders impacted prior period contracts, which had a negative aggregate contract value of $2.2 million. During the six months ended June 30, 2015, the aggregate contract values, net of change orders were $1.9 million. Total value per contract may change due to the relative sizes of DSI systems and the contracts related thereto. During the six months ended June 30, 2016 and 2015, we completed six and zero DSI systems, recognizing revenues of $6.8 million and zero and costs of revenue of $7.0 million and $2.0 million, respectively. Due to potential cost overruns related to certain DSI projects, we expect that the future relationship between revenues and costs may be dissimilar from prior results. Certain of the DSI long-term fixed price contracts were expected to be completed with losses. As a result, cost of revenue included $0.1 million and $2.0 million in loss provisions recognized during the six months ended June 30, 2016 and 2015, respectively, related to DSI contracts.

Additionally, in June 2016, the Company commenced lease agreements related to ACI and DSI systems, which resulted in the Company recognizing revenue of $3.4 million and cost of revenue of $1.2 million during the six months ended June 30, 2016 related to the Company's net investment in the sales-type lease.
The remaining changes were due to other equipment sales.
Demand for ACI and DSI system contracts have historically been driven by coal fired power plant utilities that need to comply with MATS and MACT standards. As the deadline for these standards has passed, we expect a continued significant decline in the number of long term fixed price contracts entered into going forward. However, the Company believes there will continue to be a market related to the upgrade and replacement of ACI and DSI systems as well as other equipment solutions to achieve compliance with regulatory standards.

Chemicals and Chemicals cost of revenue
During the six months ended June 30, 2016 and 2015, revenues increased year over year due to an increase in pounds sold related to sales of our M-45TM and M-45-PCTM technologies and one customer we provided chemical demonstrations to regarding the effectiveness in reducing emissions. Due to coal-fired power plant requirements to be in compliance with applicable regulations in 2015 and beyond, we anticipate that this will lead to an increase in the market for these products in the future.

Consulting services and Consulting services cost of revenue
During the six months ended June 30, 2016 and 2015, revenues decreased period over period due to a decrease in the number of consulting service engagements performed and a decrease in average contract revenue, which will fluctuate due to customer mix and specific consulting engagements and specific consulting engagements. The decrease in the number of consulting services engagements was due in part to the Company no longer performing consulting services related to a certain customer within the legacy Emissions Control - Manufacturing segment.

Additional information related to revenue concentrations and contributions by class and reportable segment can be found within the segment discussion below and in Note 12 to the Company's Condensed Consolidated Financial Statements.

Other Operating Expenses
A summary of the components of our other operating expenses, exclusive of costs of revenue (presented above), for the six months ended June 30, 2016 and 2015 is as follows:
 
 
Six Months Ended June 30,
 
Change
(in thousands, except percentages)
 
2016
 
2015
 
($)
 
(%)
Operating expenses:
 
 
 
 
 
 
 
 
Payroll and benefits
 
$
7,759

 
$
14,657

 
$
(6,898
)
 
(47
)%
Rent and occupancy
 
1,026

 
1,232

 
(206
)
 
(17
)%
Legal and professional fees
 
4,965

 
8,122

 
(3,157
)
 
(39
)%
General and administrative
 
2,092

 
3,385

 
(1,293
)
 
(38
)%
Research and development, net
 
(143
)
 
3,110

 
(3,253
)
 
(105
)%
Depreciation and amortization
 
454

 
1,104

 
(650
)
 
(59
)%
 
 
$
16,153

 
$
31,610

 
$
(15,457
)
 
(49
)%

38



Payroll and benefits
Payroll and benefits expenses decreased during the six months ended June 30, 2016 compared to the same period in 2015 primarily due to a decrease in restructuring expenses, including the modification and acceleration of equity awards, in connection with certain executive officers and employees impacted by management's alignment of the business with strategic objectives. During the six months ended June 30, 2016 and June 30, 2015, the Company recorded restructuring charges of $1.1 million and $6.0 million, respectively, including the modification and acceleration of equity awards of $0.2 million and $3.0 million, respectively. Additionally, the Company had a decrease in headcount of approximately 35% during the six months ended June 30, 2016 compared to the same period in 2015 in connection with employees impacted by management's alignment of the business with strategic objectives.

Rent and occupancy
Rent and occupancy expenses decreased during the six months ended June 30, 2016 compared to the same period in 2015 primarily due to the shutdown of our BCSI office and fabrication facilities in the fourth quarter of 2015. During the first quarter of 2016, the Company entered into an agreement to terminate various lease agreements covering approximately 207 thousand square feet of manufacturing, warehouse and office space located in Pennsylvania. As consideration for terminating the leases, the Company agreed to pay the lessor termination fees of $0.3 million in April 2016 and the same amount in April 2017. The Company recorded a gain of $0.2 million related to the difference between the amount accrued as of the cease use date of December 31, 2015 and the settlement amount during the first quarter of 2016.

Legal and professional fees
Legal and professional fees expenses decreased during the six months ended June 30, 2016 compared to the same period in 2015 as a result of a reduction in the professional resources deployed to address the Restatement of our consolidated financial statements, including the SEC Inquiry. Expenses related to the Restatement during the six months ended June 30, 2016 and 2015 were $1.7 million and $5.3 million respectively. These decreases were offset by expenses related to general business activities.

General and administrative
General and administrative expense decreased during the six months ended June 30, 2016 compared to the same period in 2015 due to a $0.5 million allowance recorded during 2015 against the entire principal balance of a note receivable. Additionally, there was a decrease in expenses of $0.5 million due to the shutdown of our BCSI office and fabrication facilities in the fourth quarter of 2015. Other decreases were due to decreases in general operating expenses, including travel, professional dues and recruiting. These decreases were partially offset by impairment charges recognized on property and equipment and inventory of $0.5 million, as projected future cash flows from operations related to such property and equipment and inventory did not support the carrying value recorded by the Company.

Research and development, net
Research and development expense decreased during the six months ended June 30, 2016 compared to the same period in 2015 due to a decrease in research and development activities as the Company has concluded all material R&D activities. Additionally, the Company reduced R&D expense due to final billings to the DOE for one R&D contract.

Depreciation and amortization
Depreciation and amortization expense decreased during the six months ended June 30, 2016 compared to the same period in 2015 by approximately $0.6 million due to the shutdown of our BCSI office and fabrication facility in the fourth quarter of 2015 and by approximately $0.1 million due to the termination of the Highview technology license . See further discussion of the termination of the Highview technology license in Note 7.


39


Other Income (Expense), net
A summary of the components of our other income (expense), net for the six months ended June 30, 2016 and 2015 is as follows:
 
 
Six Months Ended June 30,
 
Change
(in thousands, except percentages)
 
2016
 
2015
 
($)
 
(%)
Other income (expense):
 
 
 
 
 
 
 
 
Earnings from equity method investments
 
$
19,331

 
$
5,174

 
$
14,157

 
274
 %
Royalties, related party
 
1,859

 
4,493

 
(2,634
)
 
(59
)%
Interest income
 
118

 
18

 
100

 
556
 %
Interest expense
 
(3,537
)
 
(3,569
)
 
32

 
(1
)%
Gain on sale of equity method investment
 
2,078

 
—

 
2,078

 
*

Gain on settlement of note payable and licensed technology
 
1,019

 
—

 
1,019

 
*

Other
 
(535
)
 
87

 
(622
)
 
(715
)%
Total other income
 
$
20,333

 
$
6,203

 
$
14,130

 
228
 %
* Calculation not meaningful

Earnings in equity method investments
The following table details the components of the Company's respective equity method investments included within the Earnings from equity method investments line item on the Condensed Consolidated Statements of Operations:
 
 
Six Months Ended June 30,
(in thousands)
 
2016
 
2015
Earnings from CCS
 
$
18,275

 
$
4,730

Earnings from CCSS
 
1,613

 
2,172

Loss from RCM6
 
(557
)
 
(1,728
)
Earnings from equity method investments
 
$
19,331

 
$
5,174


Earnings in equity method investments, and changes related thereto, are impacted by our equity method investees: CCS, CCSS and RCM6 (through the date of the sale of our interest in RCM6 on March 3, 2016). Earnings in equity method investments increased primarily as a result of an increase in cash distributions. See discussion below regarding the accounting of earnings from CCS.

During the six months ended June 30, 2016, we recognized $18.3 million in equity income from CCS compared to our proportionate share of CCS's net income of $15.5 million for the period. During the six months ended June 30, 2015, we recognized $4.7 million in equity income from CCS compared to our proportionate share of CCS's net income of $17.7 million for the period. The difference between our pro-rata share of CCS's net income and our earnings from our CCS equity method investment as reported on our Condensed Consolidated Statements of Operations relates to the Company receiving distributions in excess of the carrying value of the investment, and therefore recognizing such excess distributions as equity method earnings in the period the distributions occur, as discussed in more detail below.
The carrying value of our investment in CCS has been reduced to zero throughout 2016, as cumulative cash distributions received from CCS exceeded our pro-rata share of cumulative earnings in CCS. Our carrying value of the Company's investment in CCS will remain zero as long as the cumulative amount of distributions received from CCS continues to exceed our cumulative pro-rata share of CCS's income. For quarterly periods during which the ending balance of our investment in CCS is zero, we only recognize equity income from CCS to the extent that cash distributions are received from CCS during the period. For quarterly periods during which the ending balance of our investment is greater than zero (e.g., when the cumulative earnings in CCS exceeds cumulative cash distributions received), we recognize our pro-rata share of CCS's earnings (losses) for the period, less any amount necessary to recover the cumulative earnings short-fall balance as of the end of the immediately preceding quarter. See additional information related to the Company's investment balance, equity earnings and cash distributions in Note 4 of the Condensed Consolidated Financial Statements.
As a result of cash flows from invested RC facilities, CCS distributions to the Company during the six months ended June 30, 2016 were $18.3 million, which exceeded the Company's pro-rata share of CCS's net income, resulting in the Company having a cumulative amount of cash distributions, which exceeded our cumulative pro-rata share of CCS's income as of June 30, 2016.

40


Equity earnings from our interest in CCSS decreased by $0.6 million during the six months ended June 30, 2016 compared to the six months ended June 30, 2015, primarily due to a decrease in the number of RC facilities being operated by CCSS. The weighted-average number of RC facilities for which CCSS had operating and maintenance agreements in place, based upon the number of months each facility was operated during the respective years, decreased year over year. As of June 30, 2016 and 2015, CCSS had operating and maintenance agreements in place with 13 and 17 operating RC facilities, respectively. CCSS derives earnings both from fixed-fee arrangements as well as fees that are based on actual RC production, depending upon the specific RC facility operating and maintenance agreement. The reduction in operated facilities during the six months ended June 30, 2016 was due to suspending operations on retained facilities to reduce operating expenses.
During February 2014, we purchased a membership interest in RCM6 and recognized equity method losses resulting from the operation of the RC facility owned by RCM6 in all subsequent reporting periods; although, RCM6 generated tax credits and tax benefits available to us. Equity losses from our interest in RCM6 decreased during the six months ended June 30, 2016 compared to the six months ended June 30, 2015 due to our sale of our 24.95% membership interest in RCM6 on March 3, 2016 for a cash payment of $1.8 million and assumption by the buyer of the outstanding note payable made by the Company in connection with its purchase of RCM6 membership interests from CCS in February 2014. As a result of the sale, the Company is no longer a member of RCM6 and is no longer subject to any quarterly capital calls and variable payments to RCM6.
Although all of our deferred tax assets have full valuation allowances recorded against them as of June 30, 2016 and 2015, respectively, we earned the following tax credits which may be available for future benefit related to the operation of retained RC facilities that were not invested:
 
 
Six Months Ended June 30,
(in thousands)
 
2016
 
2015
Section 45 tax credits earned
 
$
2,827

 
$
17,389


The decrease in tax credits earned during the six months ended June 30, 2016 compared to the six months ended June 30, 2015 was due to the suspension of retained facilities, as described above. Additional information related to our equity method investees is included in Note 4 of the Condensed Consolidated Financial Statements.
Royalties, related party
During the six months ended June 30, 2016 and 2015, there were 6.3 million tons and 9.1 million tons of RC produced using M-45TM and M-45-PCTM technologies, which CCS licenses from us. The decrease was due to a decrease in the number of RC facilities producing RC with our technologies, specifically the suspension of retained operations at facilities during the first quarter of 2016 to reduce operating expenses. Additionally, as the royalties are earned on a percentage of the per-ton, pre-tax margin of RC produced with the M-45 License that produces a valid and verifiable Section 45 Tax Credit, net of certain allocable operating expenses, the increase in operating expenses of CCS, due to payments made to secure the location for an RC facility, while waiting to receive a tax equity investor, also decreased the royalty we earned. We anticipate royalty income for the remainder of 2016 to approximate the income of the three months ended June 30, 2016, discussed above, based on similar production results and number of retained facilities, rather than the earnings amounts from the comparable period in 2015 due to the suspension of operations related to retained RC facilities.

Interest expense
During the six months ended June 30, 2016 and 2015, interest expense decreased due to interest related to IRS section 453A, which requires taxpayers using the installment method to pay an interest charge on the portion of the tax liability that was deferred under the installment method, and the elimination of the RCM6 and the DSI Business Owner note payables. These decreases were $1.1 million and $1.0 million, respectively. These decreases were offset by interest expense of $2.1 million related to the Credit Agreement, which was entered into during the fourth quarter of 2015.
Gain on sale of equity method investment
On March 3, 2016, we sold our 24.95% membership interest in RCM6 for a cash payment of $1.8 million and the assumption, by the buyer, of the note payable, which the Company entered into in connection with its purchase of RCM6 membership interests from CCS in February 2014. The outstanding balance on the note payable at the time of the sale was $13.2 million. In doing so, we recognized a gain on the sale of $2.1 million, included within the Gain on sale of equity method investment line item in the Condensed Consolidated Statements of Operations.
Gain on settlement of note payable
As of December 31, 2014, we terminated the consulting portion of our agreements with the DSI Business Owner. Originally, the Company was required to make all remaining payments, structured as a note payable, through the third quarter of 2017. In February 2016, we entered into an agreement with the DSI Business Owner to settle the remaining amounts owed of approximately $1.1 million for a one-time payment of $0.3 million. The one-time payment was made during the first quarter of

41


2016, and we recognized a gain of approximately $0.9 million, which is included in the Gain on settlement of note payable an license technology line item in the Condensed Consolidated Statements of Operation for the three and six months ended June 30, 2016.
Gain on settlement of licensed technology obligation
On June 15, 2016, we entered into an agreement with Highview to terminate the License Agreement in exchange for a one-time payment by the Company of £0.2 million (approximately $0.2 million). Per the agreement, this payment will only be made upon the sale of the Company's shares in Highview to satisfy the liability. As a result of terminating the License Agreement, the Company has removed the licensed technology asset from its books, reduced the corresponding long-term liability as of June 30, 2016 to the amount of the one-time payment, and recognized a gain of approximately $0.2 million, which is included in the Gain on settlement of note payable and licensed technology line item in the Condensed Consolidated Statements of Operations for the three and six months ended June 30, 2016.
Other
As a result of the communication from SEC Staff, the Company recorded an expense as of June 30, 2016 for the expected payment of monetary penalties in connection with the SEC Inquiry in the amount of $0.5 million. For additional detail, see Note 8 of the Condensed Consolidated Financial Statements.
Income tax expense
We did not recognize any federal income tax expense (benefit) during the six months ended June 30, 2016 and 2015 as a result of recording full valuation allowances against all of our net deferred tax assets. However, we did recognize state income tax expense for the six months ended June 30, 2016 and 2015 of $0.2 million and $0.1 million, respectively.


42


Business Segments
As discussed in Note 12 of the Condensed Consolidated Financial Statements, during the fourth quarter of 2015, the Company realigned its operating segments into two reportable segments: (1) Refined Coal ("RC"); and (2) Emissions Control ("EC"). Following the realignment, the Company retroactively adjusted all segment related disclosures included within the notes to the Condensed Consolidated Financial Statements as well as within this Item. The business segment measurements are computed in accordance with the principles listed below:
•
The accounting policies of the operating segments are the same as those described in the summary of significant accounting policies except as described below.
•
Segment revenue includes the Company's equity method earnings and losses from the Company's equity method investments. Segment revenue also includes the Company's royalty earnings from CCS and income related to a sales-type leases.
•
Segment operating income (loss) includes the Company's equity method earnings and losses from the Company's equity method investments, royalty earnings from CCS and gains related to sales of equity method investments. However, segment operating income (loss) excludes Payroll and benefits, Rent and occupancy, Legal and professional fees, and General and administrative ("Corporate general and administrative expenses") unless otherwise specifically included as the Company does not allocate those amounts between segments.
•
Items not included in operating income are excluded from segment reporting except for 453A and RCM6 interest expense, which are directly attributable to our RC segment.
The principal products and services of our segments are:
1.
RC - Our RC segment derives its earnings from equity method investments as well as royalty payment streams and other revenues related to enhanced combustion of and reduced emissions of both NOX and mercury from the burning of coals. The Company's equity method investments related to the RC segment include CCS, CCSS and RCM6 (until March 3, 2016). Segment revenues include the Company's equity method earnings and losses from the Company's equity method investments and royalty earnings from CCS. These earnings are included within the Earnings from equity method investments and Royalties, related party line items in the Condensed Consolidated Statements of Operations. Key drivers to RC segment performance are operating and retained tonnage, royalty-bearing tonnage, and the number of operating and retained RC facilities. These key drivers impact the Company's earnings and cash distributions from equity method investments.
2.
EC - Our EC segment includes revenues and related expenses from the sale of ACI and DSI equipment systems, consulting services and chemical and other sales related to the reduction of emissions in the coal-fired electric generation process and the electric utility industry. The fabrication of ACI systems is largely dependent upon third party manufacturers. We historically have fabricated DSI systems through our subsidiary BCSI, however, we closed the fabrication facility during the fourth quarter of 2015 and future fabrication will occur through the use of third party manufacturers. These amounts are included within the respective revenue and cost of sales line items in the Condensed Consolidated Statements of Operations.
Management uses segment operating income (loss) to measure profitability and performance at the segment level. Management believes segment operating income (loss) provides investors with a useful measure of our operating performance and underlying trends of the businesses. Segment operating income (loss) may not be indicative of our overall consolidated performance and therefore, should be read in conjunction with our consolidated results of operations.

43


The following table presents the Company's operating segment results for the three and six months ended June 30, 2016 and 2015:
 
 
Three Months Ended June 30,
 
Six Months Ended June 30,
(in thousands)
 
2016
 
2015
 
2016
 
2015
Revenues:
 
 
 
 
 
 
 
 
Refined Coal:
 
 
 
 
 
 
 
 
Earnings in equity method investments
 
$
13,754

 
$
4,860

 
$
19,331

 
$
5,174

Consulting services
 
—


34


—


55

Royalties
 
669


2,299


1,859


4,493

 
 
14,423

 
7,193

 
21,190

 
9,722

Emissions Control:
 
 
 
 
 
 
 
 
Equipment sales
 
8,213

 
14,235

 
29,919

 
35,351

Chemicals
 
613

 
344

 
1,047

 
617

Consulting services
 
125

 
282

 
320

 
629

 
 
8,951

 
14,861

 
31,286

 
36,597

Total segment reporting revenues
 
23,374

 
22,054

 
52,476

 
46,319

Adjustments to reconcile to reported revenues:
 
 
 
 
 
 
 
 
Refined Coal:
 
 
 
 
 
 
 
 
Earnings in equity method investments
 
(13,754
)
 
(4,860
)
 
(19,331
)
 
(5,174
)
Royalties
 
(669
)
 
(2,299
)
 
(1,859
)
 
(4,493
)
 
 
(14,423
)
 
(7,159
)
 
(21,190
)
 
(9,667
)
Total reported revenues
 
$
8,951

 
$
14,895

 
$
31,286

 
$
36,652

 
 
 
 
 
 
 
 
 
Segment operating income (loss):
 
 
 
 
 
 
 
 
Refined Coal (1)
 
$
14,199

 
$
5,175

 
$
22,061

 
$
5,835

Emissions Control
 
2,118

 
(5,458
)
 
6,700

 
(4,909
)
Total segment operating income (loss)
 
$
16,317

 
$
(283
)
 
$
28,761

 
$
926

(1) Included within the RC segment operating income for the six months ended June 30, 2016 is the $2.1 million gain on sale of RCM6.


44


RC
The following table details the segment revenues of the Company's respective equity method investments:
 
 
Three Months Ended June 30,
 
Six Months Ended June 30,
(in thousands)
 
2016
 
2015
 
2016
 
2015
Earnings from CCS
 
$
12,832

 
$
4,630

 
$
18,275

 
$
4,730

Earnings from CCSS
 
922

 
1,150

 
1,613

 
2,172

Loss from RCM6
 
—

 
(920
)
 
(557
)
 
(1,728
)
Earnings from equity method investments
 
$
13,754

 
$
4,860

 
$
19,331

 
$
5,174


For the three months ended June 30, 2016 and 2015
RC earnings increased primarily due to increased equity earnings in CCS during the three months ended June 30, 2016 compared to 2015, as presented above. For the three months ended June 30, 2016, CCS consolidated earnings decreased $2.3 million due to a decrease in lease revenues, which was offset by a reduction in cost of sales related to chemicals and royalties as well as a decrease in operating expenses related to the suspension of operations of all retained RC facilities in 2016.

As discussed above and in Note 4 of our Condensed Consolidated Financial Statements, our earnings in CCS may not equal our pro-rata share due to the accounting related to our equity method investment. As such, our earnings in CCS increased by $8.2 million due to $14.9 million of cash distributions received, which were in excess of our pro-rata share of cumulative earnings in CCS.

RC earnings were also impacted by a decrease in earnings from CCSS primarily due to a decrease in the number of RC facilities being operated by CCSS as discussed in the consolidated results above.

RC earnings were negatively impacted by a decrease in royalties related to CCS's use of our M-45TM and M-45-PCTM technologies ("M-45 License"). During the three months ended June 30, 2016 and 2015, there was 2.9 million tons and 4.9 million tons, respectively, of RC produced using the M-45 License. The decrease was due to a decrease in the per facility tonnage and a decrease in the number of RC facilities producing RC with our technologies, as well as an increase in CCS operating expenses, as discussed in the consolidated results above.

RC earnings were positively impacted due to lower operating losses associated with our RCM6 equity method investment, which was sold during the first quarter of 2016.

RC segment operating income increased during the three months ended June 30, 2016 compared to 2015. In addition to the impacts of RC earnings discussed above, RC segment operating income was positively impacted by a decrease in 453A interest expense. 453A interest expense decreased due to a decrease in the tax liability that is expected to be deferred as of December 31, 2016.

For the six months ended June 30, 2016 and 2015
RC earnings increased primarily due to increased equity earnings in CCS during the six months ended June 30, 2016 compared to 2015, as presented above. For the six months ended June 30, 2016, CCS consolidated earnings decreased $6.5 million due to a decrease in lease revenues, which was offset by a reduction in cost of sales related to chemicals and royalties as well as a decrease in operating expenses related to the suspension of operations of all retained RC facilities in 2016.

As discussed above and in Note 4 of our Condensed Consolidated Financial Statements, our earnings in CCS may not equal our pro-rata share due to the accounting related to our equity method investment. As such, our earnings in CCS increased by $13.5 million due to $18.3 million of cash distributions received, which were in excess of our pro-rata share of cumulative earnings in CCS.

RC earnings were also impacted by a decrease in earnings from CCSS primarily due to a decrease in the number of RC facilities being operated by CCSS as discussed in the consolidated results above.

RC earnings were negatively impacted by a decrease in royalties related to CCS's use of our M-45 License. During the six months ended June 30, 2016 and 2015, there were 6.3 million tons and 9.1 million tons, respectively, of RC produced using the M-45 License. The decrease was due to a decrease in the per facility tonnage and a decrease in the number of RC facilities producing RC with our technologies, as well as an increase in CCS operating expenses, as discussed in the consolidated results above.

45



RC earnings were positively impacted due to lower operating losses associated with our RCM6 equity method investment, which was sold during the first quarter of 2016.

RC segment operating income increased during the six months ended June 30, 2016 compared to 2015. In addition to the impacts of RC earnings discussed above, RC segment operating income was positively impacted by a decrease in 453A interest expense. 453A interest expense decreased due to a decrease in the tax liability that is expected to be deferred as of December 31, 2016.
Additional discussion of our equity method investments is included above within our consolidated results and in Note 4 of the Condensed Consolidated Financial Statements.
EC
Discussion of revenues derived from our EC segment and costs related thereto are included above within our consolidated results.
EC segment operating income increased during the three months ended June 30, 2016 compared to 2015 due to the earnings discussed within the consolidated results and decreases in operating expenses. Specifically, Payroll and benefits and Research and development expense, net decreased quarter over quarter by $0.8 million and $2.2 million, respectively. These decreases were due to decreased headcount largely due to management restructuring and the closure of the Company's fabrication facility and limited research and development expenses in connection with our changing strategic objectives.
EC segment operating income increased during the six months ended June 30, 2016 compared to 2015 due to the earnings discussed within the consolidated results and decreases in operating expenses. Specifically, Payroll and benefits and Research and development expense, net decreased period over period by $2.0 million and $3.3 million, respectively. Additionally, impacting the period over period change was an increase due to the settlement of the remaining amounts owed to the former DSI Business Owner, resulting in a reduction of segment expenses of $0.9 million during 2016. Offsetting these items was the allowance related to a note receivable of $0.5 million in 2015.
Liquidity and Capital Resources
Overview of Factors Affecting Our Liquidity
During the six months ended June 30, 2016, our cash and cash equivalents balance continued to decline, primarily due to debt service payments on our Credit Agreement and notes payable, fees incurred to extend the maturity of our Credit Agreement, the payoff of our Credit Agreement on June 30, 2016 and delivering on our existing contracts and customer commitments. In addition, we continued to incur professional fees related to our Restatement activities and to become current with our 2015 regulatory filings.

However, during the six months ended June 30, 2016, our working capital position improved by $14.2 million, primarily due to distributions from CCS and CCSS, reduction in operated retained RC facilities, proceeds received from the sale of our interest in RCM6 and the elimination of the related note payable, as well as the favorable settlement of our note payable to the former DSI Business Owner. We expect that the pressure on our working capital will continue for the foreseeable future as we continue to restructure our operations and seek to expand our revenue generating activities.
Our principal sources of liquidity include:
•
cash on hand;
•
cash provided by our operations;
•
distributions from CCS and CCSS; and
•
royalty payments from CCS.

Since April 2014, we have been unable to borrow from our bank line of credit ("Line of Credit") as a result of not being in compliance with certain covenants related to our loan agreement. No borrowings were outstanding as of June 30, 2016 or December 31, 2015. Prior to June 2014, the Line of Credit was used primarily to provide collateral support for certain letters of credit that had been issued to customers related to certain contractual performance and payment guarantees, typically provided in lieu of surety bonds. Upon notification of such covenant non-compliance, we were required to secure such letters of credit with cash collateral. Additionally, we are required to provide collateral to other financial institutions that have issued letters of credit providing security for continuing royalty indemnification obligations related to the settlement of certain litigation. The collateral amounts are disclosed on our Condensed Consolidated Balance Sheets as Restricted cash, Restricted cash, long-term and Investment securities, restricted, long-term. As of June 30, 2016 and December 31, 2015, these collateral amounts totaled $11.2 million and $12.0 million, respectively.

46


Our Line of Credit was renewed and extended through August 29, 2016. We had no borrowing capacity as of June 30, 2016 and no amounts were drawn on the Line of Credit during the six months ended June 30, 2016 and 2015, respectively. Additionally, no amounts were drawn on the Line of Credit through the date of this filing. We are working to renegotiate the terms of the Line of Credit to enable us to have borrowing capacity to provide short-term liquidity for operating purposes.
On March 3, 2016, the Company sold its entire ownership interest in RCM6. The Company received a cash payment of $1.8 million related to the sale and has no future obligations related to previously recorded notes payable.
Subsequent to June 30, 2016, $2.4 million of Restricted cash was released to the Company as we met all performance testing requirements on certain equipment projects during the second quarter of 2016. Upon release, the cash will be included in the Cash and cash equivalents line item on the Condensed Consolidated Balance Sheets.

Our principal uses of liquidity include during the six months ended June 30, 2016:

•
payoff of the Credit Agreement;
•
interest expense on the Company’s Credit Agreement, notes payable, and 453A interest;
•
completion of the Restatement activities related to prior year financial statements;
•
delivering on our existing contracts and customer commitments;
•
corporate restructuring and realignment of its businesses; and
•
royalty indemnification payments.

On June 30, 2016, the Company, the required lenders under the Credit Agreement and the Administrative Agent agreed to terminate the Credit Agreement (the "Payoff Letter"), prior to the maturity date of July 8, 2016, effective upon the Company’s prepayment of the total principal balance of the loans and advances made to or for the benefit of the Company, together with all accrued but unpaid interest, and the total amount of all fees, costs, expenses and other amounts owed by the Company thereunder, including a prepayment premium (the "Payoff Amount"). The Payoff Amount was paid on June 30, 2016 (the "Payoff Date") and equaled $9.9 million. The Payoff Letter includes a waiver by the lenders for a portion of the prepayment premium of 4% reflected in the Credit Agreement. Upon termination of the Credit Agreement, all obligations of the parties to the Credit Agreement were automatically and irrevocably satisfied and discharged in full, except for indemnity obligations that survive termination and outstanding fees and expenses of the required lenders in connection with the termination of the Credit Agreement. The Payoff Letter grants the Company the authority to prepare and file the certain UCC termination statements and such other releases, discharges and related filings as may be necessary to terminate any security interests created under the Credit Agreement.
In February 2016, the Company entered into an agreement with the DSI Business Owner to settle the remaining amounts owed as of the date of the agreement of approximately $1.1 million for $0.3 million, which was paid in the first quarter of 2016.
Our ability to generate sufficient cash flow required to meet ongoing operational needs and to meet our obligations depends upon several factors, including executing on our contracts and initiatives, discussed above, receiving royalty payments from CCS and distributions from CCS and CCSS, and our ability to maintain and grow our share of the market and increase operational efficiencies for emissions control equipment, chemicals and services. Increased distributions from CCS will likely be dependent upon the securing of additional tax equity investors for those CCS facilities that are currently not operating. If we are unable to generate sufficient cash flow, we may be unable to meet our operational needs. We are working to renegotiate the terms of the Line of Credit to enable us to have borrowing capacity to provide short-term liquidity for operating purposes. If negotiations are unsuccessful, the Company intends to take other measures to preserve or create liquidity.
The following table summarizes the cash flows of CCS, the entity from which cash distributions to the Company are most significant, for the six months ended June 30, 2016 and 2015, respectively, which directly impact potential distributions to the Company:
 
 
Six Months Ended June 30,
(in thousands)
 
2016
 
2015
CCS cash and cash equivalents, beginning of year
 
$
6,182

 
$
3,870

Cash provided by (used in):
 
 
 
 
Operating activities
 
36,634

 
21,333

Investing activities
 
(2,474
)
 
(9,146
)
Financing activities
 
(35,916
)
 
(7,746
)
Net change in cash and cash equivalents
 
(1,756
)
 
4,441

CCS cash and cash equivalents, end of period
 
$
4,426

 
$
8,311


47


Sources and Uses of Cash
Six Months Ended June 30, 2016 vs. Six Months Ended June 30, 2015
Cash and cash equivalents decreased from $9.3 million as of December 31, 2015 to $2.2 million as of June 30, 2016. The following table summarizes our cash flows for the six months ended June 30, 2016 and 2015, respectively:
 
 
Six Months Ended June 30,
 
 
(in thousands)
 
2016
 
2015
 
Change
Cash provided by (used in):
 
 
 
 
 
 
Operating activities
 
$
(7,984
)
 
$
(13,788
)
 
$
5,804

Investing activities
 
16,100

 
296

 
15,804

Financing activities
 
(15,160
)

(1,276
)
 
(13,884
)
Net change in cash and cash equivalents
 
$
(7,044
)

$
(14,768
)
 
$
7,724

Cash flow from operating activities
Cash flows used in operating activities reflect operating losses as well as the timing of our working capital requirements, in addition to other items discussed herein.
Our cash spend for legal and professional fees for the six months ended June 30, 2016 decreased from that of the comparable prior year period primarily due to a reduction in the professional resources deployed to address the Restatement, causing a decrease in cash outflows of $1.8 million.
Deferred revenue and project costs resulted in a change in a source of operating cash flows on a net basis of $3.3 million period over period due to billings and productions of ACI and DSI equipment systems. However, due to the completed contract revenue recognition method, these billings and related costs have not yet been recognized within revenues and cost of revenue, respectively.
We are required to provide collateral for certain letters of credit for ACI and DSI equipment, as discussed in Note 8 of our Condensed Consolidated Financial Statements. Cash is pledged as security for letters of credit in the same amount as the assets related to ACI and DSI equipment contracts as well as the Royalty Award discussed in Note 8. Restricted cash was provided during the six months ended June 30, 2016 due to completion of ACI and DSI equipment contracts; whereas during the six months ended June 30, 2015 restricted cash was a use of cash in order to collateralize certain ACI and DSI equipment contracts.
Our operating cash flow may also be significantly impacted by distributions from our equity method investees, which are classified as either a return on investment within operating cash flows or a return in excess of investment basis within investing cash flows. During the six months ended June 30, 2016, we received $13.5 million more in total cash distributions from equity method investees than we did during the six months ended June 30, 2015 due to the suspension of operations of retained facilities by CCS and an increase in invested facilities.

Cash flow from investing activities
Maturity of investments in securities, restricted and restricted cash
We are required to provide collateral for certain letters of credit for future payments related to royalty indemnification obligations and other payments as discussed in Note 8 of our Condensed Consolidated Financial Statements. Cash is pledged as security for letters of credit in the same amount as the assets. The restricted cash changed during the six months ended June 30, 2016 due to a contractual requirement related to the royalty indemnification obligation and performance against equipment contracts.
Acquisition and disposal of property and equipment, net
Acquisitions of property and equipment were $0.1 million and $0.4 million during the six months ended June 30, 2016 and June 30, 2015, respectively.
Advance on note receivable
In December 2014, we loaned $0.5 million to an independent third party to provide financing for the pursuit of emissions technology projects, bearing annual interest of 8%. Interest and principal were payable at maturity of the agreement in June 2015. In March 2015, we loaned an additional $0.5 million to the third party, continuing to bear annual interest at 8%. All interest and principal payments were then deferred until March 2018. Subsequent to the second loan disbursement, it was determined that the independent third party was not awarded contracts that would have utilized their emissions technology. Without these contracts, we concluded that the ability of the independent third party to repay these loans was in doubt. We have recorded an allowance against the entire principal balance of the note receivable outstanding, reversed accrued interest and put the two respective portions of the note on non-accrual status as of December 31, 2015 and June 30, 2015, respectively.

48


Acquisition of a business
During March 2015, we acquired Clearview, which operated as ADA Analytics, for $2.4 million, as described in Note 3 of the Condensed Consolidated Financial Statements, $2.1 million of which was paid in 2015. The Company acquired the in-process research and development in order to potentially commercialize and expand its analytics services available to customers. However, in August 2015, as part of a broader strategic restructuring of our business to simplify our operating structure in a manner that creates increased customer focus, better supports sales and product delivery and also aligns the Company’s cost structure as the emissions control market shifts towards compliance solutions for the MATS, the Company’s management approved an action to wind down operations of ADA Analytics.
Equity method investment
On February 10, 2014, we purchased a 24.95% membership interest in RCM6, which owned a single RC facility that produced RC that qualified for Section 45 tax credits. As part of the purchase, we were subject to quarterly capital calls and variable payments based upon differences in originally forecasted RC production as of the purchase date and actual quarterly production. During the six months ended June 30, 2016 and 2015, we funded capital calls and made variable payments of $0.2 million and $0.2 million, respectively.
Proceeds from sale of equity method investment
As discussed in Note 4 of our Condensed Consolidated Financial Statements, we sold our investment in RCM6 in March 2016. Proceeds from the sale included $1.8 million in cash and the assumption, by the buyer, of all unpaid amounts outstanding under the original note payable.
As discussed within the Results of Operations and the operating cash flow activities above, our investing cash flow may also be significantly impacted by the classification of cash distributions from equity method investees as either a return on investment within operating cash flows or a return in excess of investment basis within investing cash flows.

Cash flow from financing activities
Short-term borrowings
On June 30, 2016, the Company, the required lenders under the Credit Agreement and the Administrative Agent agreed to terminate the Credit Agreement, and on June 30, 2016, the Company paid the Payoff Amount of $9.9 million. Additionally, during the six months ended June 30, 2016, we paid $0.6 million in debt issuance costs related to the Second Amendment.
Notes payable activity
During the six months ended June 30, 2016 and 2015 we used $1.2 million and $1.0 million cash, respectively, for repayments of principal on the RCM6 and the DSI Business Owner notes payable, as described in Note 6 of our Condensed Consolidated Financial Statements.

49


Equity award activity
During the six months ended June 30, 2016 and 2015 we used $0.1 million and $0.3 million, respectively, for the repurchase of shares to satisfy minimum tax withholdings upon the vesting of equity based awards.
Significant non-cash transactions
 
 
Six Months Ended June 30,
(in thousands)
 
2016
 
2015
Restricted stock award reclassification (liability to equity)
 
$
899

 
$
—

Settlement of RCM6 note payable
 
$
13,234

 
$
—

Non-cash reduction of equity method investment
 
$
11,156

 
$
—

Contractual Obligations
Our contractual obligations as of June 30, 2016 are as follows:
 
 
Payment Due by Period
(in thousands)
 
Total
 
Less than 1 year
 
1-3 years
 
4-5 years
 
After 5 years
Capital lease obligations
 
$
—

 
$
—

 
$
—

 
$
—

 
$
—

Operating leases
 
3,987

 
1,330

 
2,657

 
—

 
—

Purchase obligations (a)
 
—

 
—

 
—

 
—

 
—

Legal settlements and accruals (b)
 
23,066

 
11,470

 
11,596

 
—

 
—

Other long-term liabilities (c)
 
151

 
151

 
—

 
—

 
—

 
 
$
27,204

 
$
12,951

 
$
14,253

 
$
—

 
$
—

(a) Purchase obligations do not include commitments pursuant to subcontracts and/or other purchase orders related to equipment contracts since such amounts are expected to be funded under contract billings.
(b) Future cash payments related to our Royalty Award may differ from the payment amounts included within the above schedule due to actual revenues generated by our former equity method investment and changes in estimates related to future revenues. Additionally, future cash payments related to the SEC Inquiry and private litigation may differ from currently accrued amounts. If such differences were to occur, these changes would also impact our results of operations and financial condition.
(c) Obligations related to Other long-term liabilities relate to amounts owed upon the termination of the Highview License Agreement, discussed in Note 11 of the Condensed Consolidated Financial Statements. On June 15, 2016, we entered into an agreement with Highview to terminate the License Agreement in exchange for a one-time payment by the Company of £0.2 million (approximately $0.2 million). Per the agreement, this payment will only be made upon the sale of the Company's Highview shares to satisfy the liability.
We have not included obligations related to 453A interest payments due to uncertainty of amounts payable in future periods relating to matters impacting future obligations such as the balance deferred under the installment method at each future balance sheet date and changes in interest rates. However, based upon the number of RC facilities as of June 30, 2016, the estimated ending liability deferred on installment sales as of December 31, 2016 and interest rates in effect as of the date of this Form 10-Q filing, we estimate paying approximately $3.2 million in 453A interest during the year ending December 31, 2016. If no future RC facilities obtain investors, the deferred gain balance would decrease and interest payments, assuming no changes in the applicable interest rate, would also decrease throughout the periods in the table above.
Off-Balance Sheet Arrangements
During the six months ended June 30, 2016, we did not engage in any off-balance sheet arrangements except those discussed in "Management's Discussion and Analysis of Financial Condition and Results of Operations" in the Company's Annual Report on Form 10-K for the year ended December 31, 2015, which included operating leases, letters of credit and future 453A interest obligations.

50


Critical Accounting Policies and Estimates
Our significant accounting policies and estimates have not changed from those reported in Item 7 "Management's Discussion and Analysis of Financial Condition and Results of Operations" in the Annual Report on Form 10-K for the fiscal year ended December 31, 2015.
New Accounting Guidance
Refer to Note 1 of our Condensed Consolidated Financial Statements, included in Item 1 of this Quarterly Report for new accounting guidance issued during the six months ended June 30, 2016 and subsequent thereto through the date of this filing.
Forward-Looking Statements Found in this Report
This Quarterly Report contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, or the Exchange Act, that involve risks and uncertainties. In particular such forward-looking statements are found in this Part I and under the heading "Management’s Discussion and Analysis of Financial Condition and Results of Operation" in Part II, Item 7 below. Words or phrases such as "anticipates," "believes," "expects," "intends," "plans," "estimates," "predicts," the negative expressions of such words, or similar expressions are used in this Report to identify forward-looking statements, and such forward-looking statements include, but are not limited to, statements or expectations regarding:

(a)
expected growth in and potential size of our target markets;
(b)
expected supply and demand for our products and services;
(c)
the effectiveness of our technologies and the benefits they provide;
(d)
CCS’s ability to profitably sell and/or lease additional RC facilities or recognize the tax benefits from their operations;
(e)
probability of any loss occurring with respect to CCS Party Guarantees;
(f)
the timing of awards of, and work and related testing under, our contracts and agreements and their value;
(g)
timing and amounts of, or changes in, future revenues, backlog, funding for our business and projects, margins, expenses, earnings, tax rate, cash flow, royalty payments, working capital, liquidity and other financial and accounting measures;
(h)
ability to refinance the loan under the Credit Agreement or obtain alternative financing;
(i)
the outcome of current and pending legal proceedings;
Our expectations are based on certain assumptions, including without limitation, that:

(a)
coal will continue to be a major source of fuel for electrical generation in the United States;
(b)
the IRS will allow the production of RC to qualify for IRC Section 45 tax credits;
(c)
contracts we have with the DOE will continue to be funded at expected levels;
(d)
we will continue as a key supplier of equipment, chemicals and services to the coal-fired power generation industry as it seeks to implement reduction of mercury emissions;
(e)
current environmental laws and regulations requiring reduction of mercury from coal-fired boiler flue gases will not be materially weakened or repealed by courts or legislation in the future;
(f)
we will be able to meet any performance guaranties we make and continue to meet our other obligations under contracts;
(g)
we will be able to obtain adequate capital and personnel resources to meet our operating needs and to fund anticipated growth and our indemnity obligations;
(h)
we will be able to establish and retain key business relationships with other companies;
(i)
orders we anticipate receiving will in fact be received;
(j)
governmental audits of our costs incurred under DOE contracts will not result in material adjustments to amounts we have previously received under those contracts;
(k)
we will be able to formulate new chemicals and blends that will be useful to, and accepted by, the coal-fired boiler power generation business;
(l)
we will be able to effectively compete against others;
(m)
we will be able to meet any technical requirements of projects we undertake;
(n)
CCS will be able to sell or lease the remaining RC facilities to third party investors; and
(o)
we will be able to utilize our portion of the Section 45 tax credits generated by operation of RC facilities for the benefit of the members of CCS.

The forward-looking statements included in this Quarterly Report involve risks and uncertainties. Actual events or results could differ materially from those discussed in the forward-looking statements as a result of various factors including, but not limited to, timing of new and pending regulations and any legal challenges to or extensions of compliance dates of them; the

51


government’s failure to promulgate regulations or appropriate funds that benefit our business; changes in laws and regulations, accounting rules, prices, economic conditions and market demand; impact of competition; availability, cost of and demand for alternative energy sources and other technologies; technical, start up and operational difficulties; failure of the RC facilities to produce coal that qualifies for tax credits; termination of, or amendments to, the contracts for RC facilities; decreases in the production of RC; inability to commercialize our technologies on favorable terms; our inability to ramp up our operations to effectively address recent and expected growth in our business; loss of key personnel; potential claims from any terminated employees, customers or vendors; failure to satisfy performance guarantees; availability of materials and equipment for our businesses; intellectual property infringement claims from third parties; pending litigation; elevated spending on non-recurring cash expenses, which may last longer than expected or reductions in operating costs may be less than expected; identification of additional material weaknesses or significant deficiencies; as well as other factors relating to our business, as described in our filings with the SEC, with particular emphasis on the risk factor disclosures contained in those filings and in Item 1A of this Quarterly Report. Readers are cautioned not to place undue reliance on the forward-looking statements made in this Quarterly Report and to consult filings we have made and will make with the SEC for additional discussion concerning risks and uncertainties that may apply to our business and the ownership of our securities. The forward-looking statements contained in this Quarterly Report are presented as of the date hereof, and we disclaim any duty to update such statements unless required by law to do so.


52



Item 3. Quantitative and Qualitative Disclosures about Market Risk
Interest Rate Risk
The Company is most significantly exposed to interest rate risk related to its obligations to pay 453A interest to the IRS. Additionally, the Company is currently exposed to interest rate risk related to cash equivalents and restricted cash subject to variable interest rates. There have been no material changes from those reported in the Company's Annual Report on Form 10-K for the year ended December 31, 2015.
Foreign Currency Risk
There have been no material changes from those reported in the Company's Annual Report on Form 10-K for the year ended December 31, 2015.
Commodity Price Risk
There have been no material changes from those reported in the Company's Annual Report on Form 10-K for the year ended December 31, 2015.
Item 4. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
The Company has evaluated, under the supervision of the Company’s Chief Executive Officer and Principal Financial Officer, the effectiveness of disclosure controls and procedures as of June 30, 2016. This is done in order to ensure that information the Company is required to disclose in reports that are filed or submitted under the Securities Exchange Act of 1934 is recorded, processed, summarized and reported within the time periods specified in SEC rules and forms.
Based on this evaluation, the Chief Executive Officer and Principal Financial Officer concluded that the Company’s disclosure controls and procedures were not effective as of June 30, 2016, due to the material weaknesses described in “Item 9A. Controls and Procedures” of the Company’s Annual Report on Form 10-K for the year ended December 31, 2015.
Notwithstanding the material weaknesses, management has concluded that the Condensed Consolidated Financial Statements included in this Quarterly Report on Form 10-Q present fairly, in all material respects, the Company’s financial position, results of operations and cash flows for the periods presented in conformity with accounting principles generally accepted in the United States.
Changes in Internal Control Over Financial Reporting
Under the applicable SEC rules (Exchange Act Rules 13a-15(f)) and 15d-15(f), management is required to evaluate any changes in internal control over financial reporting that occurred during each fiscal quarter that materially affected, or are reasonably likely to materially affect, our internal control over financial reporting. As discussed in Item 9A of the Company’s Annual Report on Form 10-K for the year ended December 31, 2015, we have undertaken a broad range of remedial procedures to address material weaknesses in our internal control over financial reporting. These remedial procedures continued throughout the three and six months ended June 30, 2016 and will continue throughout the remainder of 2016. While we continue to implement remediation efforts and design enhancements to our internal control procedures, we believe there were significant changes in internal controls implemented during the three and six months ended June 30, 2016, but the controls were not in place for a sufficient period of time to conclude on the effectiveness of the controls, therefore, further changes may be required.


53


PART II. OTHER INFORMATION
Item 1. Legal Proceedings
From time to time, the Company is involved in litigation, claims and other proceedings related to the conduct of our business. Litigation and other disputes are inherently unpredictable and subject to substantial uncertainties and unfavorable resolutions could occur. None of these matters, either individually or in the aggregate, currently is material to the Company except those matters reported in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2015 (the "Annual Report") and Note 8 in the Condensed Consolidated Financial Statements under Part I, Item 1 of this Quarterly Report on Form 10-Q.

Item 1A. Risk Factors
Except as noted below, there are no material updates to our risk factors as disclosed in our Annual Report on Form 10-K for the year ended December 31, 2015.
The review of potential strategic alternatives by our Board of Directors may result in significant transaction expenses or an adverse impact on our business.
On April 19, 2016, the Company announced that its Board of Directors had initiated a process to explore and evaluate a wide range of strategic alternatives to further enhance stockholder value. The pursuit of potential strategic alternatives could result in the diversion of management’s attention from our existing business; the failure to achieve financial or operating objectives; the incurrence of significant transaction expenses; the failure to retain key personnel, customers, or contracts; and volatility in the Company’s stock price. There can be no assurance that the review process will result in a sale transaction or other strategic alternative of any kind or that the process will not have an adverse impact on our business.

We do not intend to discuss or disclose developments with respect to the process unless we determine further disclosure is appropriate or required. As a consequence, perceived uncertainties related to the future of the Company may result in the loss of potential business opportunities and may make it more difficult for us to attract and retain qualified personnel and business partners.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
None.
Item 3. Defaults Upon Senior Securities
None.
Item 4. Mine Safety Disclosures
Not applicable.
Item 5. Other Information
None.

54


Item 6. Exhibits
 
 
Exhibit No.
 
Description
 
Form
 
File No.
 
Incorporated by Reference
Exhibit
 
Filing Date
10.1
 
Payoff Letter among Advanced Emissions Solutions, Inc., the creditors under the Credit Agreement and the Administrative Agent.
 
8-K
 
000-54992
 
10.1
 
July 6, 2016
10.2
 
Stipulation and Agreement of Settlement dated as of June 30, 2016*
 

 

 

 

10.3
 
Seventh Amendment and Eighth Waiver Regarding 2013 Loan and Security Agreement*
 

 

 

 

31.1
 
Certification of Chief Executive Officer and Principal Financial Officer of Advanced Emissions Solutions, Inc. Pursuant to 17 CFR 240.13a-14(a) or 17 CFR 240.15d-14(a)*
 
 
 
 
 
 
 
 
32.1
 
Certification of Chief Executive Officer and Principal Financial Officer of Advanced Emissions Solutions, Inc. Pursuant to 18 U.S.C Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002*
 
 
 
 
 
 
 
 
101. INS
 
XBRL Instance Document
 
 
 
 
 
 
 
 
101.SCH
 
XBRL Schema Document
 
 
 
 
 
 
 
 
101.CAL
 
XBRL Calculation Linkbase Document
 
 
 
 
 
 
 
 
101.LAB
 
XBRL Label Linkbase Document
 
 
 
 
 
 
 
 
101.PRE
 
XBRL Presentation Linkbase Document
 
 
 
 
 
 
 
 
101.DEF
 
Taxonomy Extension Definition Linkbase Document
 
 
 
 
 
 
 
 

Notes:
*
– Filed herewith.




55


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.
 
Advanced Emissions Solutions, Inc.
 
(Registrant)
 
 
 
 
 
 
August 9, 2016
By:
/s/ L. Heath Sampson
 
 
L. Heath Sampson
 
 
President, Chief Executive Officer and Treasurer
 
 
(Principal Executive and Financial Officer)
 
 
 
 
 
 
August 9, 2016
By:
/s/ Greg P. Marken
 
 
Greg P. Marken
 
 
Chief Accounting Officer and Secretary
 
 
(Principal Accounting Officer)

 
 


56
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 14-cv-01243-CMA-KMT (Consolidated for all purposes with Civil Action No. 14-cv-01402-CMA-KMT) UNITED FOOD AND COMMERCIAL WORKERS UNION AND PARTICIPATING FOOD INDUSTRY EMPLOYERS TRI-STATE PENSION FUND, Individually and on behalf of all others similarly situated, Plaintiff, v. ADVANCED EMISSIONS SOLUTIONS, INC., et al., Defendants. ______________________________________________________________________ STIPULATION AND AGREEMENT OF SETTLEMENT ______________________________________________________________________

 
2 This Stipulation and Agreement of Settlement (“Settlement”) is made and entered into by and among (i) Lead Plaintiff, on behalf of itself and each of the Class Members, by and through Lead Counsel; and (ii) Defendants, by and through their counsel. This Settlement is intended by the Settling Parties to fully, finally and forever compromise, resolve, discharge and settle the Released Claims and result in the complete dismissal of this Action with prejudice, upon and subject to the approval of the Court and the terms and conditions herein, without any admission or concession as to the merits of any of the Settling Parties’ claims or defenses.1 WHEREAS: A. All terms with initial capitalization shall have the meanings ascribed to them in Paragraph 1 below or as otherwise defined herein. B. On May 1, 2014, plaintiff Karen Barnwell filed a class action complaint, Civil Action No. 14-cv-01243 (Dkt. 1), against Advanced Emissions Solutions, Inc. (“ADES” or the “Company”), and five of its current or former officers, Michael D. Durham, Mark H. McKinnies, C. Jean Bustard, Sharon M. Sjostrom, and Christine B. Amrhein (the “Individual Defendants”), in the United States District Court for the District of Colorado (the “Court” or “District Court”), on behalf of a putative class comprising purchasers of the Company’s common stock between March 14, 2013 and March 12, 2014, asserting claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C. §§ 78j(b) and 78t(a), and Rule 10b-5 1 The terms Lead Plaintiff, Class Members, Lead Counsel, Defendants, Settling Parties, Released Claims, and Action are defined herein.

 
3 promulgated thereunder by the Securities and Exchange Commission (“SEC”), 17 C.F.R. § 240.10b-5. The case was assigned to the Honorable Christine M. Arguello. C. On May 19, 2014, plaintiff Evan Pawloski filed a substantially similar class action complaint, Civil Action No. 14-cv-01402 (Dkt. 1) in the same Court against ADES, and two of its current or former officers, Michael D. Durham and Mark H. McKinnies, with a proposed class period of March 14, 2013 to April 23, 2014. This case was also assigned to the Honorable Christine M. Arguello. D. On February 19, 2015, the Court consolidated the two actions, appointed United Food and Commercial Workers Union and Participating Food Industry Employers Tri-State Pension Fund (“UFCW Tri-State”) as Lead Plaintiff, and approved Lead Plaintiff’s selection of Shepherd Finkelman, Miller, & Shah, LLP as Lead Counsel and the Edgar Law Firm, LLC, as Liaison Counsel in the consolidated action (the “Action”) (Dkt. 29). E. On April 20, 2015, Lead Plaintiff filed a Consolidated Amended Class Action Complaint (“First Amended Complaint”) (Dkt. 35). The First Amended Complaint alleged: (1) that ADES and Individual Defendants Durham and McKinnies made material misrepresentations and omissions in violation of Section 10(b) and Rule 10b-5 of the Exchange Act; and (2) that Individual Defendants Durham, McKinnies, Bustard, Sjostrom, Amrhein, as well as an additional defendant, L. Heath Sampson, are liable for ADES’s primary violations of the Exchange Act as alleged “control persons” of the Company within the meaning of Section 20(a) of the Exchange Act. F. On June 19, 2015, Defendants filed a Motion to Dismiss the First Amended Complaint Under Federal Rule of Civil Procedure 12(b)(6). (Dkt. 36.) The

 
4 Lead Plaintiff filed a Response to the Motion to Dismiss on July 2, 2015 (Dkt. 40), and the Defendants filed a Reply in support of the Motion to Dismiss on July 16, 2015 (Dkt. 42). G. On March 7, 2016, before an order was entered on the Motion to Dismiss, the parties filed a Stipulated Motion to Stay Under D.C.COLO.LCivR 16.6 to allow them time to mediate the dispute. (Dkt. 54). On March 8, 2016, the District Court granted the parties’ Stipulated Motion to Stay (Dkt. 55). H. On May 16, 2016, the Lead Plaintiff filed a Second Amended Consolidated Class Action Complaint (“Second Amended Complaint”). The Second Amended Complaint continued to name ADES, Durham, McKinnies, Bustard, Sjostrom, Amrhein, and Sampson as Defendants, in the District Court, on behalf of a putative class comprised of purchasers of the Company’s common stock between May 12, 2011 and January 29, 2015. The Second Amended Complaint continues to assert claims under Sections 10(b) and 20(a) of the Exchange Act, and Rule 10b-5 promulgated thereunder. I. On May 24, 2016, counsel for the Lead Plaintiff, Defendants, and Defendants’ insurers participated in a mediation under the auspices of Jed Melnick of JAMS. Pursuant to Mr. Melnick’s instructions, the parties submitted detailed mediation statements in advance of the mediation session. As a result of the arm’s-length negotiations at that mediation, the parties (including Defendants’ insurers) agreed in principle to settle the Action for $3,950,000, subject to the approval of the Court. J. Lead Counsel and Lead Plaintiff have concluded, after due investigation and after carefully considering the relevant circumstances, including, without limitation, the claims asserted in the Action, the legal and factual defenses thereto, and the

 
5 applicable law, that (i) it is in the best interests of the Class (defined below) to enter into this Settlement in order to avoid the uncertainties of litigation and to ensure that the benefits reflected herein are obtained for the Class and (ii) the Settlement set forth herein is fair, reasonable and adequate and in the best interests of the Class Members. K. Defendants believe that they are not liable for the claims asserted against them in the Action and that they have good and meritorious defenses thereto. They have nevertheless agreed to enter into this Settlement to avoid further expense, inconvenience, and the distraction of burdensome and protracted litigation, and thereby to put to rest this controversy and avoid the risks inherent in litigation. NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and among the Settling Parties, through their respective counsel of record, that, subject to the approval of the District Court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, the Private Securities Litigation Reform Act, 15 U.S.C. § 78u-4 and other conditions set forth herein, in consideration of the benefits flowing to the Settling Parties hereto, that the Action and all Released Claims as against the Released Parties shall be fully, finally and forever compromised, settled, released, discharged and dismissed with prejudice, upon and subject to the following terms and conditions: I. DEFINITIONS 1. As used in this Settlement, the following terms shall have the meanings specified below. In the event of any inconsistency between any definition set forth below and any definition set forth in any document attached as an exhibit to this Settlement, the definition set forth below shall control.

 
6 a) “Action” means the action pending in this Court under the caption United Food and Commercial Workers Union and Participating Food Industry Employers Tri- State Pension Fund v. Advanced Emissions Solutions, Inc., et al., Case No. 14-cv- 01402-CMA-KMT (D. Colo.), including, without limitation, all cases consolidated under that caption. b) “Authorized Claimant(s)” means a Class Member that timely submits a valid Proof of Claim Form to the Claims Administrator in accordance with the requirements established by the Court, and that is approved by the Claims Administrator for payment from the Net Settlement Fund. c) “Claim(s)” means a claim submitted by a Class Member to the Claims Administrator for payment pursuant to the Plan of Allocation. d) “Claims Administrator” means Strategic Claims Services. e) “Class” means, for purposes of this Settlement, and to be certified pursuant to Fed. R. Civ. P. 23, for purposes of effectuating this Settlement only, all persons and entities who purchased or otherwise acquired the common stock of Advanced Emissions Solutions, Inc. (ticker symbol: ADES) between May 12, 2011 and January 29, 2015, both dates inclusive. Excluded from the Class are: i) Defendants, directors, officers and other employees of ADES, their families and affiliates, any entities in which any of the Defendants have a controlling interest, the legal representatives, heirs, successors, predecessors-in-interest, affiliates or assigns of any of the Defendants, and the Judge(s) to whom this case is assigned; and ii) any putative members of the Class who timely and validly exclude themselves from the Class in

 
7 accordance with the requirements set forth in the Mailed Notice and Rule 23 of the Federal Rules of Civil Procedure. f) “Class Distribution Order” means an order entered by the Court authorizing and directing that the Net Settlement Fund be distributed, in whole or in part, to eligible Class Members. g) “Class Member(s)” means a person or entity that is a member of the Class. h) “Class Period” means the period from May 12, 2011 and January 29, 2015, both dates inclusive. i) “Defendants” means Advanced Emissions Solutions, Inc., Michael D. Durham, Mark H. McKinnies, C. Jean Bustard, Sharon M. Sjostrom, Christine B. Amrhein and L. Heath Sampson (each is a “Defendant” and collectively referred to as the “Defendants”). j) “Defendants’ Counsel” means the law firms of Gibson, Dunn & Crutcher LLP; Fortis Law Partners LLP (counsel for ADES, Michael D. Durham, C. Jean Bustard, Sharon M. Sjostrom, Christine B. Amrhein and L. Heath Sampson), and Morrison & Foerster LLP (counsel for Mark H. McKinnies). k) “Effective Date” means the first day on which the Settlement shall become effective as set forth in ¶ 43 below. Lead Counsel shall advise Defendants’ Counsel and the Claims Administrator promptly after it has determined that it believes the Effective Date has occurred.

 
8 l) “Escrow Account” means an escrow account established, maintained, and controlled by the Escrow Agent, subject to Lead Counsel’s supervisory authority, into which Defendants shall deposit or cause to be deposited the Settlement Amount. m) “Escrow Agent” means the Claims Administrator. n) “Final” means, with respect to any order of the Court, including, without limitation, the Judgment, that such order represents a final and binding determination of all issues within its scope and is not subject to further review on appeal or otherwise. Without limitation, an order becomes “Final” when (i) no appeal has been filed and the prescribed time for commencing any appeal has expired; or (ii) an appeal has been filed and either (a) the appeal has been dismissed and the prescribed time, if any, for commencing any further appeal has expired, or (b) the order has been affirmed in all material respects and the prescribed time, if any, for commencing any further appeal has expired. For purposes of this paragraph, an “appeal” includes appeals as of right, discretionary appeals, interlocutory appeals, proceedings involving writs of certiorari or mandamus, and any other proceedings of like kind. However, any appeal or proceeding seeking subsequent judicial review pertaining solely to the Class Distribution Order, the Plan of Allocation, or to the Court’s award of Lead Counsel’s fees and/or expenses shall not in any way delay or affect the time set forth above for the Judgment to become Final. o) “Final Approval Hearing” means the hearing set by the Court under Rule 23(e) of the Federal Rules of Civil Procedure to consider final approval of the Settlement, Lead Counsel’s request for an award of attorneys’ fees, and reimbursement of Litigation Expenses.

 
9 p) “Judgment” means the order of final judgment to be entered by the Court which, subject to the approval of the Court, shall be substantially in the form attached hereto as Exhibit B. q) “Lead Counsel” means the law firm of Shepherd, Finkelman, Miller, & Shah, LLP. r) “Lead Plaintiff” means United Food and Commercial Workers Union and Participating Food Industry Employers Tri-State Pension Fund (“UFCW Tri-State”). s) “Litigation Expenses” means the reasonable costs and expenses incurred by Lead Counsel in connection with commencing and prosecuting the Action, for which Lead Counsel intends to apply to the Court for reimbursement from the Settlement Fund. Litigation Expenses may also include reimbursement of the reasonable costs and expenses (including lost wages) of Lead Plaintiff in accordance with 15 U.S.C. § 78u- 4(a)(4). t) “Net Settlement Fund” means the Settlement Fund less: (i) any Taxes and Tax Expenses; (ii) any Notice and Administration Costs; and (iii) any attorneys’ fees and Litigation Expenses awarded by the District Court. u) “Notice” means the Notice of Pendency of Class Action and Proposed Settlement (substantially in the form attached hereto as Exhibit A-1), which is to be sent to members of the Class. v) “Notice and Administration Costs” means the costs, fees and expenses that are reasonably incurred by the Claims Administrator in connection with (i) providing notice to the Class; and (ii) administering the claims process, including, without limitation, the actual costs of publication, printing and mailing the Notice,

 
10 reimbursements to nominee owners for forwarding the Notice to their beneficial owners, the administrative expenses actually incurred and fees reasonably charged by the Claims Administrator in connection with identifying Class Members and providing notice and processing the submitted Claims, and the reasonable fees, if any, of the Escrow Agent. Prior to the Effective Date, the Escrow Agent, without further approval of Defendants or the Court, may pay from the Settlement Fund up to $100,000.00 in Notice and Administration Costs actually and reasonably incurred and associated with the administration of the Settlement. Prior to the Effective Date, payment of any Notice and Administration Costs exceeding $100,000.00 shall require notice to and agreement from Defendants, through Defendants’ Counsel. Subsequent to the Effective Date, without further approval by Defendants or the Court, the Settlement Fund may be used by Lead Counsel to pay reasonable and necessary Notice and Administration Costs in excess of $100,000.00. In the event that the Settlement is terminated pursuant to the terms of this Settlement, all Notice and Administration Costs properly paid or incurred, including any related fees, shall not be returned or repaid to Defendants. w) “Plan of Allocation” means the proposed plan of allocation of the Net Settlement Fund set forth in ¶ 22 below and in the Notice, or such other plan of allocation that the Court approves. The Plan of Allocation is not part of the Settlement, and Defendants and any Released Party shall have no responsibility for the Plan of Allocation or its implementation, and no liability with respect thereto. x) “Preliminary Approval Order” means the order to be entered by the Court preliminarily approving the Settlement, and directing that Notice be provided to the

 
11 Class, which, subject to the approval of the Court, shall be substantially in the form attached hereto as Exhibit A. y) “Proof of Claim Form” means the form provided to Class Members by the Claims Administrator for purposes of submitting a Claim, substantially in the form attached hereto as Exhibit A-3. z) “Released Claims” means any and all actions, causes of action, claims (including “Unknown Claims,” defined below), duties, debts, demands, rights, disputes, suits, matters, damages, losses, obligations, proceedings, issues, judgments, and liabilities of every nature and description whatsoever (and including, but not limited to, any claims for damages, whether compensatory, consequential, special, punitive, exemplary or otherwise, and any fees, costs, expenses, or charges), whether known or unknown, suspected or unsuspected, fixed or contingent, foreseen or unforeseen, liquidated or unliquidated, accrued and unaccrued, matured or unmatured, at law or in equity, whether class, derivative, or individual in nature, whether or not concealed or hidden, which now exist, or heretofore have existed, or can, shall or may exist, whether arising under federal, state, common, statutory, administrative or foreign law, regulation, or at equity, that (a) Lead Plaintiff or any Class Member has asserted in this Action, or could have asserted in this Action or in any other proceeding or forum that arise out of, relate to or are based upon, the allegations, claims, transactions, facts, matters, occurrences, events, failures, representations, statements, or omissions alleged, involved, set forth, or referred to in either the First Amended Complaint or the Second Amended Complaint; (b) would have been barred by res judicata, claim preclusion, issue preclusion, or collateral estoppel had the Action been fully litigated to a final

 
12 judgment; and (c) were, could have been, or in the future could be, asserted in any forum or proceeding or otherwise by any Class Member that relate to the purchase, sale, acquisition or holding of ADES common stock during the Class Period. Released Claims do not, however, include claims to enforce this Settlement. aa) “Released Party” and “Released Parties” means each of the Defendants and his, her or its respective past, present or future directors, officers, employees, parents, partners, members, principals, agents, owners, fiduciaries, shareholders, related or affiliated entities, subsidiaries, divisions, accountants, auditors, attorneys, associates, consultants, advisors, insurers, co-insurers, reinsurers, trustees, estates, beneficiaries, administrators, foundations, underwriters, banks or bankers, personal or legal representatives, divisions, joint ventures, spouses, domestic partners, family members, heirs, executors, or any other person or entity acting or purporting to act for or on behalf of any of the Defendants, and each of their respective predecessors, successors and assigns, and any trusts for which any of them are trustees, settlors, or beneficiaries. bb) “Settled Defendants’ Claims” means any and all claims, rights or causes of action or liabilities whatsoever, whether based on federal, state, local, statutory, or common law, or any other law, rule, or regulation, including both known claims and Unknown Claims, that have been or could have been asserted in the Action or any forum by Defendants, a Released Party or the Released Parties, against Lead Plaintiff, any of the Class Members, or their attorneys, which arise out of or relate in any way to the institution, prosecution, or settlement of the Action. Settled Defendants’ Claims do not, however, include claims to effectuate or to enforce this Settlement.

 
13 cc) “Settlement” means this Stipulation and Agreement of Settlement and the settlement contained herein. dd) “Settlement Amount” means Three Million, Nine Hundred-Fifty Thousand Dollars ($3,950,000). ee) “Settlement Fund” means the Settlement Amount plus any interest earned thereon after it is deposited into the Escrow Account. ff) “Settling Parties” means Defendants and Lead Plaintiff, on behalf of themselves and the Class. gg) “Summary Notice” means the Summary Notice of Pendency of Class Action and Proposed Settlement, which shall be substantially in the form attached hereto as Exhibit A-2, to be published as set forth in the Preliminary Approval Order. hh) “Taxes” means any taxes due and payable with respect to the income earned by the Settlement Fund, including any interest or penalties thereon. ii) “Tax Expenses” means any reasonable expenses and costs incurred in connection with the payment of Taxes or the preparation of tax returns, including, without limitation, reasonable expenses of tax attorneys and/or accountants and/or other advisors and reasonable expenses relating to the filing of or failure to file all necessary or advisable tax returns. jj) “Unknown Claims” means any and all Released Claims, of every nature and description, that Lead Plaintiff and/or any Class Member does not know or suspect to exist in his, her or its favor at the time of the release of a Released Party or the Released Parties, which, if known by him, her or it, might have affected his, her or its settlement with and release of a Released Party or the Released Parties, or might have

 
14 affected his, her or its decision not to object to this Settlement or not to exclude himself, herself or itself from the Class or to release the Released Claims. With respect to any Settled Defendants’ Claims, “Unknown Claims” means any and all Settled Defendants’ Claims, of every nature and description, which Defendants and the other Released Party or Released Parties do not know or suspect to exist in their favor at the time of the release of Lead Plaintiff, the Class Members, and their attorneys, which, if known by them, might have affected their decisions with respect to the release of Settled Defendants’ Claims or the Settlement. II. SETTLEMENT CONSIDERATION 2. ADES, on behalf of all Defendants, shall cause to be deposited Three Million, Nine Hundred-Fifty Thousand Dollars ($3,950,000) into the Escrow Account by wire transfer or delivery of a check by no later than thirty (30) calendar days after the later of: (i) entry of a Preliminary Approval Order by the Court, or (ii) receipt by Defendants’ Counsel from Lead Counsel of all necessary payment details to accomplish payment of the Settlement Amount by wire transfer or check, including payee name, payee mailing address, bank account number, name of bank, and bank address, a Sort Code or ABA Routing Number, the currency of the account receiving the funds, wire transfer instructions, the Tax Identification Number and an executed Form W-9. The Settlement Amount shall constitute the full and sole monetary contribution made by or on behalf of a Released Party or the Released Parties in connection with the resolution of the Action and the Settlement. If the Settlement Amount, or any portion thereof, is not deposited into the Escrow Account by the date provided for in this paragraph, the Settling Parties agree that Defendants will not be obligated to pay the Settlement

 
15 Amount or any portion thereof and Lead Plaintiff’s, Lead Counsel’s, and any other parties’ remedy against Defendants shall be to terminate the Settlement, in which case ¶ 44 below shall govern. III. CAFA NOTICE 3. Pursuant to the Class Action Fairness Act, 28 U.S.C. § 1715, no later than ten (10) days after the Settlement is filed with the Court, Defendants will serve proper notice of the proposed Settlement upon the appropriate representatives and, within three (3) business days thereafter, will provide written notification to Lead Counsel that they have done so. Defendants shall be responsible for all costs and expenses related to such notification. IV. RELEASES 4. Upon the Effective Date, Lead Plaintiff and each of the Class Members (on behalf of themselves and each of their respective present and former directors, officers, employees, parents, subsidiaries, related or affiliated entities, shareholders, members, divisions, partners, joint ventures, family members, spouses, domestic partners, heirs, principals, agents, owners, fiduciaries, personal or legal representatives, attorneys, auditors, accountants, advisors, banks or bankers, insurers, reinsurers, trustees, trusts, estates, executors, administrators, predecessors, successors, assigns, and any other person or entity who has the right, ability, standing, or capacity to assert, prosecute, or maintain on behalf of any Class Member any of the Released Claims (or to obtain the proceeds of any recovery therefrom)), regardless of whether that Class Member actually submits a Proof of Claim Form, seeks or obtains a distribution from the Net Settlement Fund, is entitled to receive a distribution under the Plan of Allocation

 
16 approved by the Court, or has objected to the Settlement, the Plan of Allocation, or Lead Counsel’s application for attorneys’ fees and Litigation Expenses, shall be deemed to have and by operation of the Judgment shall have fully, finally and forever waived, released, relinquished, discharged and dismissed each and every Released Claim against each and every Released Party. 5. With respect to any and all Released Claims, the Settling Parties stipulate and agree that, upon the Effective Date, Lead Plaintiff expressly waives, and each Class Member shall be deemed to have waived, and by operation of the Judgment shall have expressly waived, to the fullest extent permitted by law, the provisions, rights and benefits of California Civil Code § 1542, and of any U.S. federal or state law, or principle of common law or the law of any foreign jurisdiction, that is similar, comparable, or equivalent to Section 1542 of the California Civil Code, which provides, in relevant part: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. Lead Plaintiff and other Class Members, or certain of them, may hereafter discover facts in addition to or different from those which he, she or it now knows or believes to be true with respect to the subject matter of the Released Claims, but Lead Plaintiff and the Class Members, and each of them, upon the Effective Date, by operation of the Judgment, shall have, fully, finally, and forever settled and released any and all Released Claims, known or unknown, suspected or unsuspected, contingent or non- contingent, whether or not concealed or hidden, that now exist or heretofore have existed, upon any theory of law or equity now existing or coming into existence in the future, including, but not limited to, claims relating to conduct that is negligent, reckless,

 
17 intentional, with or without malice, or a breach of any duty, law or rule, without regard to the subsequent discovery or existence of such different or additional facts. Lead Plaintiff acknowledges, and Class Members by law and operation of the Judgment shall be deemed to have acknowledged, that the inclusion of “Unknown Claims” in the definition of Released Claims was separately bargained for and was a material element of the Settlement. 6. Upon the Effective Date, Lead Plaintiff and each of the Class Members (on behalf of themselves and each of their respective present and former directors, officers, employees, parents, subsidiaries, related or affiliated entities, shareholders, members, divisions, partners, joint ventures, family members, spouses, domestic partners, heirs, principals, agents, owners, fiduciaries, personal or legal representatives, attorneys, auditors, accountants, advisors, banks or bankers, insurers, reinsurers, trustees, trusts, estates, executors, administrators, predecessors, successors, assigns, and any other person or entity who has the right, ability, standing, or capacity to assert, prosecute or maintain, on behalf of any Class Member, any of the Released Claims (or to obtain the proceeds of any recovery therefrom)), regardless of whether that Class Member actually submits a Proof of Claim Form, seeks or obtains a distribution from the Net Settlement Fund, is entitled to receive a distribution under the Plan of Allocation approved by the Court, or has objected to the Settlement, the Plan of Allocation, or Lead Counsel’s application for attorneys’ fees and Litigation Expenses, and in accordance with the terms of the proposed Judgment attached hereto as Exhibit B, shall have covenanted not to sue the Released Parties with respect to any Released Claims and are forever barred and enjoined from commencing, instituting, participating in,

 
18 maintaining, or continuing to prosecute any action or proceeding in any court of law or equity, arbitration tribunal, administrative forum, or other forum of any kind, asserting any Released Claim (including, without limitation, Unknown Claims), as well as any claims arising out of, relating to, or in connection with, the defense, settlement, or resolution of this Action against any Released Party. 7. Upon the Effective Date, each of the Released Parties, on behalf of themselves and each of their past or present subsidiaries, affiliates, parents, assigns, successors and predecessors, estates, heirs, executors, administrators, and the respective officers, directors, shareholders, agents, legal representatives, spouses and any persons or entities they represent, shall, with respect to each and every one of Settled Defendants’ Claims, release and forever discharge each and every one of the Settled Defendants’ Claims, and shall forever be enjoined from instituting, commencing, or prosecuting the Settled Defendants’ Claims. V. BAR ORDER 8. The proposed Judgment shall include, and the Settling Parties agree to the entry by the Court of an order providing for the bar order in ¶ 9 (the “Bar Order”), subject to the terms in ¶ 11 herein. 9. The Bar Order shall provide that, upon the Effective Date, except as provided in ¶ 11 below, any and all persons and entities are permanently barred and enjoined, to the fullest extent permitted by law, from commencing, prosecuting, or asserting any and all claims for contribution or indemnity (or any other claim when the alleged injury to that person or entity is their actual or threatened liability to the Class or a Class Member in the Action) based upon, relating to, arising out of, or in connection

 
19 with the Released Claims, against each and every one of the Released Parties, whether arising under state, federal, common, statutory, administrative or foreign law, regulation, or at equity, as claims, cross-claims, counterclaims, or third-party claims, in this Action or a separate action, in this Court or in any other court, arbitration proceeding, administrative proceeding, or other forum; and, except as provided in ¶ 11 below, the Released Parties are permanently barred and enjoined, to the fullest extent permitted by law, from commencing, prosecuting, or asserting any and all claims for contribution or indemnity (or any other claim when the alleged injury to the Released Party is their actual or threatened liability to the Class or a Class Member in the Action) based upon, relating to, or arising out of the Released Claims, against any person or entity, other than a person or entity whose liability to the Class has been extinguished pursuant to the Settlement and the Judgment, whether arising under state, federal, common, statutory, administrative, or foreign law, regulation, or at equity, as claims, cross-claims, counterclaims, or third-party claims, in this Action or a separate action, in this Court or in any other court, arbitration proceeding, administrative proceeding, or other forum. Nothing herein shall bar, release, or alter, in any way, any obligations, rights or claims among or between the Released Parties. 10. The Judgment shall also contain a provision, substantially in the form set forth in Exhibit “B” hereto, requiring that any final verdict or judgment that may be obtained by or on behalf of the Class or a Class Member against any person or entity subject to the Bar Order as defined herein be reduced by the greater of: (i) an amount that corresponds to the percentage of responsibility of any of the Defendants for common damages; or (ii) the Settlement Amount.

 
20 11. Notwithstanding the Bar Order in ¶ 9 above, nothing in this Settlement shall bar any action by any of the Settling Parties to enforce or effectuate the terms of this Settlement, the Preliminary Approval Order, or the Judgment. VI. USE AND TAX TREATMENT OF SETTLEMENT FUND 12. The Settlement Fund shall be held and invested in the Escrow Account as provided in ¶ 13 hereof. If the Settlement becomes Final, any interest earned on the Settlement Fund shall be for the benefit of the Class. If the Settlement does not become Final and the Settlement is terminated for any reason, within ten (10) days of termination, the Settlement Fund shall be returned pursuant to written instructions from Defendants’ Counsel, together with any interest earned on the Settlement Fund, less any Notice and Administration Costs actually incurred. 13. The Escrow Agent shall invest any funds in excess of the $100,000.00 preliminarily allocated to Notice and Administration Costs, in United States Agency or Treasury Securities having maturities of one hundred and eighty (180) days or less, money market mutual funds comprised of investments secured by the full faith and credit of the United States government, or an interest-bearing account insured by the Federal Deposit Insurance Corporation (“FDIC”), and shall collect or reinvest all interest accrued thereon. Any funds held in escrow in an amount equal to or less than $100,000.00 may be held in an interest-bearing bank account insured by the FDIC. The Released Parties and Defendants’ Counsel shall have no responsibility for, interest in, or liability with respect to the investment decisions of the Escrow Agent. The Settlement Fund and the Escrow Agent shall bear all risks related to investment of the Settlement Amount.

 
21 14. The Escrow Agent shall not disburse the Settlement Fund except as provided in this Settlement. 15. Subject to the terms and conditions of this Settlement, the Settlement Fund shall be used to pay: (i) Taxes and Tax Expenses; (ii) Notice and Administration Costs; and (iii) any attorneys’ fees and Litigation Expenses awarded by the Court. In no event shall the Released Parties bear any responsibility for any fees, costs or expenses beyond payment of the Settlement Amount. 16. After (i) the Judgment becomes Final, and (ii) entry by the Court of a Class Distribution Order approving distribution of the Net Settlement Fund to the Class, the Claims Administrator shall distribute the Net Settlement Fund to Authorized Claimants in accordance with the terms of such Class Distribution Order; provided, however, that any amounts in the Escrow Account necessary for payment of Taxes and Tax Expenses and/or Notice and Administration Costs shall remain in the Escrow Account for such purpose. 17. Except as provided herein, the Net Settlement Fund shall remain in the Escrow Account prior to the distribution. All funds held in the Escrow Account shall be deemed to be in the custody of the Court and shall remain subject to the jurisdiction of the Court until such time as the funds are distributed or returned pursuant to the terms of this Settlement. 18. The Settling Parties agree that the Settlement Fund is intended to be a “qualified settlement fund” within the meaning of Treasury Regulation § 1.468B-1 and that the Claims Administrator, as “administrator” of the Settlement Fund within the meaning of Treasury Regulation § 1.468B-2(k)(3), shall be solely responsible for filing or

 
22 causing to be filed all informational and other tax returns as may be necessary or appropriate (including, without limitation, the returns described in Treasury Regulation § 1.468B-2(k)) for the Settlement Fund. Such returns shall be consistent with this paragraph and in all events shall reflect that all Taxes on the income earned on the Settlement Fund shall be paid out of the Settlement Fund as provided by ¶ 19 herein. The Claims Administrator shall also be solely responsible for causing payment to be made from the Settlement Fund of any Taxes and Tax Expenses owed with respect to the Settlement Fund, and is authorized to withdraw, without prior order of the Court, from the Settlement Fund such amounts as are necessary to pay Taxes and Tax Expenses. Defendants will provide to the Claims Administrator the statement described in Treasury Regulation § 1.468B-3(e). However, neither the Released Parties nor Defendants’ Counsel shall have any liability or responsibility for the filing of any tax returns or other documents with the Internal Revenue Service or any other state or local taxing authority. The Claims Administrator, as “administrator” of the Settlement Fund within the meaning of Treasury Regulation § 1.468B-2(k)(3), shall timely make such elections as are necessary or advisable to carry out this paragraph, including, as necessary, making a “relation-back election,” as described in Treasury Regulation § 1.468B-1(j), to cause the qualified settlement fund to come into existence at the earliest allowable date, and shall take or cause to be taken all actions as may be necessary or appropriate in connection therewith. 19. All Taxes (including any interest or penalties) and Tax Expenses shall be considered to be a cost of administration of the Settlement and shall be paid out of the Settlement Fund. The Released Parties shall not have any responsibility for, and no

 
23 liability with respect to, payment of any such Taxes or Tax Expenses, and shall have no responsibility for, and no liability with respect to, the acts or omissions of the Claims Administrator, Lead Counsel or their agents, with regard to Taxes and Tax Expenses. The Settling Parties agree to cooperate with each other, and their tax attorneys and accountants, to the extent reasonably necessary to carry out the terms of this Settlement with regard to Taxes and Tax Expenses. 20. If all conditions of the Settlement are satisfied and the Judgment is entered and becomes Final, no portion of the Settlement Fund will be returned to Defendants, irrespective of the number of Claims filed, the collective amount of losses of Authorized Claimants, the percentage of recovery of losses, or the amounts to be paid to Authorized Claimants from the Net Settlement Fund. If any portion of the Net Settlement Fund remains following distribution pursuant to ¶ 29 and is of such an amount that in the discretion of the Claims Administrator it is not cost effective or efficient to redistribute to the Class, then such remaining funds, after payment of any further Notice and Administration Costs and Taxes and Tax Expenses, shall be donated to a non-sectarian charitable organization(s) certified as tax-exempt under United States Internal Revenue Code Section 501(c)(3), to be designated by Lead Counsel. VII. CLASS CERTIFICATION 21. Solely for purposes of the Settlement, the Settling Parties stipulate and agree to: (a) certification of the Action as a class action pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure on behalf of the Class; (b) appointment of Lead Plaintiff as Class representative; and (c) appointment of Lead Counsel as Class counsel pursuant to Rule 23(g) of the Federal Rules of Civil Procedure.

 
24 VIII. PLAN OF ALLOCATION 22. The Net Settlement Fund shall be distributed to Authorized Claimants in accordance with a Plan of Allocation prepared by Lead Counsel, in conjunction with Lead Plaintiff’s damages expert and set forth in Exhibit A-1. The Released Parties and Defendants’ Counsel have had no role in the preparation of the Plan of Allocation. 23. The finality of the Settlement shall not be conditioned on any ruling by the District Court concerning the Plan of Allocation or any award of attorneys’ fees or reimbursement of Litigation Expenses. Any order or proceeding relating to a request for approval of the Plan of Allocation, or any appeal from any order relating thereto or reversal or modification thereof, shall not operate to terminate the Settlement or affect or delay the Effective Date or the effectiveness or finality of the Judgment and the release of the Released Claims. There shall be no distribution of any of the Settlement Fund to any Class Member until the Plan of Allocation is finally approved and such order of approval is affirmed on appeal and/or is no longer subject to review by appeal or certiorari, and the time for any petition for rehearing, appeal, or review, by certiorari or otherwise, has expired. Again, and for the avoidance of doubt, the Released Parties and Defendants’ Counsel shall have no responsibility for, and no liability with respect to, the investment or distribution of the Settlement Fund. 24. The allocation of the Net Settlement Fund among Authorized Claimants is a matter separate and apart from the proposed Settlement between Defendants and Lead Plaintiff, and any decision by the Court concerning the Plan of Allocation shall not affect the validity or finality of the proposed Settlement. The Plan of Allocation is not a necessary term of this Settlement, and it is not a condition of this Settlement that any

 
25 particular plan of allocation be approved by the Court. None of the Settling Parties may cancel or terminate the Settlement based on this Court’s or any appellate court’s ruling with respect to the Plan of Allocation or any plan of allocation in this Action. The Released Parties shall have no responsibility for, and no liability with respect to, the allocation of the Net Settlement Fund, nor shall they object to the Plan of Allocation proposed by Lead Plaintiff. IX. ATTORNEYS’ FEES AND LITIGATION EXPENSES 25. Lead Counsel may apply to the Court for an award from the Settlement Fund of attorneys’ fees not to exceed one-third of the Settlement Fund. Litigation Expenses may include reimbursement of the expenses of Lead Plaintiff’s counsel up to $150,000.00 and Lead Plaintiff’s expenses up to $5,000.00 in accordance with 15 U.S.C. § 78u-4(a)(4). Attorneys’ fees and Litigation Expenses are not the subject of any agreement between the Settling Parties other than what is set forth in this Settlement. 26. The Released Parties will take no position on Lead Counsel’s request for attorneys’ fees or Litigation Expenses, and shall have no responsibility for, and no liability with respect to, the attorneys’ fees or Litigation Expenses that the Court may award. 27. The procedure for and amounts of any award of attorneys’ fees and Litigation Expenses, and the allowance or disallowance by the Court thereof, shall not be a condition of the Settlement. Lead Counsel shall request that its application for an award of attorneys’ fees and Litigation Expenses be considered by the Court separately from the Court’s consideration of the fairness and adequacy of the Settlement. Any order or proceedings relating to such request, or any appeal from any order relating

 
26 thereto or reversal or modification thereof, shall not operate to terminate the Settlement or affect the release of the Released Claims. The finality of the Settlement shall not be conditioned on any ruling by the Court concerning Lead Counsel’s application for attorneys’ fees and Litigation Expenses. 28. Within ten (10) days after both the Judgment and an order by the Court approving Lead Counsel’s attorneys’ fees and Litigation Expenses (the “Fee and Expense Order”) become Final, any awarded attorneys’ fees and Litigation Expenses shall be paid to Lead Counsel from the Escrow Account. Notwithstanding the foregoing, such attorneys’ fees and Litigation Expenses awarded by the Court may be paid immediately following entry of the Judgment and the Fee and Expense Order notwithstanding the existence of or pendency of any appeal or collateral attack on the Settlement or any part thereof or the Fee and Expense Order. In the event that the Effective Date does not occur, or the Judgment or the Fee and Expense Order is reversed or modified by a Final, non-appealable order, or the Settlement is terminated or canceled for any reason, and in the event that attorneys’ fees and Litigation Expenses have been paid out of the Escrow Account to any extent, then Lead Counsel shall be obligated and do hereby agree, within ten (10) days from receiving notice from Defendants’ Counsel or from the Court, to refund to the Escrow Account such attorneys’ fees and Litigation Expenses that have been paid, plus interest thereon at the same rate as would have been earned had those sums remained in the Escrow Account. Lead Counsel is responsible for refunding 100% of the sums to be refunded regardless of whether the sums were distributed to Plaintiff (as Lead Plaintiff’s expenses) as provided in Paragraph 25, or to other counsel.

 
27 X. ADMINISTRATION OF THE SETTLEMENT 29. The Claims Administrator, subject to the supervision of Lead Counsel and the jurisdiction of the Court, shall administer and calculate the Claims submitted by Class Members, oversee distribution of the Net Settlement Fund to Authorized Claimants, and perform all claims administration procedures necessary or appropriate in connection therewith. The Claims Administrator shall receive and administer Claims in accordance with the Plan of Allocation approved by the Court. The proposed Plan of Allocation is set forth in the Notice attached hereto as Exhibit A-1. 30. The Released Parties shall have no liability, obligation or responsibility whatsoever to any person, including, but not limited to, Class Members, the Escrow Agent, Lead Counsel, Lead Plaintiff, or the Claims Administrator, in connection with the Plan of Allocation, the administration of the Settlement, the investment of the Settlement Fund, the processing of claims, or the disbursement of the Settlement Fund or the Net Settlement Fund. The Settlement Fund shall indemnify and hold all Released Parties harmless for any Taxes and related expenses on the Settlement Fund of any kind whatsoever (including, without limitation, taxes payable by reason of any such indemnification), as well as for any claims related to the Plan of Allocation, the administration of the Settlement, the investment of the Settlement Fund, the processing of claims, or the disbursement of the Settlement Fund or the Net Settlement Fund. Defendants shall notify the Escrow Agent promptly if Defendants receive any notice of any claim so indemnified. 31. Within ten (10) business days of the Court’s Preliminary Approval Order, Defendants will use reasonable efforts to cause ADES’s transfer agent to provide the

 
28 Claims Administrator, in a computer-readable format, the last known names and addresses of all of ADES’s shareholders of record during the Class Period. 32. Lead Counsel shall cause the Claims Administrator to mail the Notice to those Class Members who may be identified through the records maintained by or on behalf of ADES, and to publish the Summary Notice, pursuant to the terms of the Preliminary Approval Order entered by the Court. 33. Any Class Member who does not timely submit a valid Proof of Claim Form by the deadline set by the Court will not be entitled to receive any distribution from the Net Settlement Fund but will, nevertheless, be bound by all of the terms of the Settlement, including the terms of the Judgment to be entered in the Action and the releases provided for therein, and will be permanently barred and enjoined from bringing any action, claim or other proceeding of any kind against any Released Party concerning any Released Claim. 34. By submitting a Claim, a Class Member shall be deemed to have submitted to the jurisdiction of the Court with respect to the Claim, including, but not limited to, the releases and Bar Order provided for in the Judgment, and the Claim will be subject to investigation and discovery under the Federal Rules of Civil Procedure, provided that such investigation and discovery shall be limited to their status as a Class Member and the validity and amount of their Claim. No discovery shall be allowed on the merits of this Action or this Settlement in connection with the processing of Proof of Claim Forms, nor shall any discovery be taken of the Released Parties in connection with such matters.

 
29 35. Lead Counsel will apply to the Court, with reasonable notice to Defendants, for a Class Distribution Order, inter alia: (i) approving the Claims Administrator’s administrative determinations concerning the acceptance and rejection of the Claims submitted; (ii) approving payment of any outstanding Notice and Administration Costs from the Escrow Account; and (iii) if the Effective Date has occurred, directing payment of the Net Settlement Fund to Authorized Claimants. 36. Payment pursuant to the Class Distribution Order shall be final and conclusive against any and all Class Members. All Class Members who did not submit a Claim or whose Claim was not approved by the Court shall be barred from participating in distributions from the Net Settlement Fund, but shall be bound by all of the terms of this Settlement, including the terms of the Judgment and the releases provided for therein, and will be permanently barred and enjoined from bringing any action, claim or proceeding of any kind against any Released Party concerning any Released Claim. 37. All proceedings with respect to the administration, processing and determination of Claims and the determination of all controversies relating thereto, including disputed questions of law and fact with respect to the validity of Claims, shall be subject to the jurisdiction of the Court. XI. OBJECTIONS AND REQUESTS FOR EXCLUSION 38. Any member of the Class may appear at the Final Approval Hearing and show cause why the proposed Settlement should or should not be approved as fair, reasonable, adequate and in the best interests of the Class, or why the Judgment should or should not be entered thereon, and/or to present opposition to the Plan of Allocation or to the application of Lead Counsel for attorneys’ fees and reimbursement

 
30 of Litigation Expenses. However, no Class Member or any other person or entity shall be heard or entitled to contest the approval of the terms and conditions of the Settlement, or, if approved, the Judgment to be entered thereon approving the same, or the terms of the Plan of Allocation or the application by Lead Counsel for an award of attorneys’ fees and reimbursement of Litigation Expenses, unless that Class Member (i) has served written objections, by hand or first-class mail, including the basis therefor, as well as copies of any papers and/or briefs in support of his, her or its position upon Lead Counsel and Defendants’ Counsel for receipt no later than twenty-one (21) days prior to the Final Approval Hearing; and (ii) filed said objections, papers and briefs with the Clerk of the United States District Court for the District of Colorado by no later than twenty-one (21) days prior to the Final Approval Hearing. Any objection must include: (a) the full name, address, and telephone number of the objecting Class Member; (b) a list and documentation of all of the Class Member’s transactions in ADES’s common stock during the Class Period, such as brokerage confirmation receipts or other competent documentary evidence of such transactions, including the amount and date of each purchase (or acquisition) or sale and the price or other consideration paid and/or received (including all income received thereon); (c) a written statement of all grounds for the objection accompanied by any legal support for the objection; (d) copies of any papers, briefs or other documents upon which the objection is based; (e) a list of all persons who will be called to testify in support of the objection; (f) a statement of whether the objector intends to appear at the Final Approval Hearing; (g) a list of other cases in which the objector or the objector’s counsel have appeared either as settlement objectors or as counsel for objectors in the preceding five years; and (h) the

 
31 objector’s signature, even if represented by counsel. If the objector intends to appear at the Final Approval Hearing through counsel, the objection must also state the identity of all attorneys who will appear on the objector’s behalf at the Final Approval Hearing. Any Class Member who does not make his, her or its objection in the manner provided for herein shall be deemed to have waived such objection and shall forever be foreclosed from making any objection to the fairness or adequacy of the Settlement, to the Judgment, to the Plan of Allocation or to the application by Lead Counsel for an award of attorneys’ fees and reimbursement of Litigation Expenses. The Notice shall also state the manner in which a notice of objection should be prepared, filed and delivered. By objecting to the Settlement, the Judgment, the Plan of Allocation and/or the application by Lead Counsel for an award of attorneys’ fees and reimbursement of Litigation Expenses, or otherwise requesting to be heard at the Final Approval Hearing, an objector shall be deemed to have submitted to the jurisdiction of the Court with respect to the person’s or entity’s objection or request to be heard and the subject matter of the Settlement, including, but not limited to, enforcement of the terms of the Settlement (including, but not limited to, the release of the Released Claims provided for in the Settlement and the Judgment). 39. A person or entity requesting exclusion from the Class must timely provide the following information to the Claims Administrator: (i) name; (ii) address; (iii) telephone number; (iv) number of shares of ADES common stock purchased (or otherwise acquired) or sold during the Class Period; (v) prices or other consideration paid or received for such ADES common stock; (vi) the date of each purchase (or acquisition) or sale transaction; and (vii) a statement that the person or entity wishes to

 
32 be excluded from the Class. Unless otherwise ordered by the Court, any Class Member who does not timely submit a written request for exclusion as provided by this Paragraph shall be bound by the Settlement. Lead Plaintiff shall request that any requests for exclusion must be received by the Claims Administrator no later than twenty-one (21) days prior to the Final Approval Hearing. 40. The Claims Administrator shall scan and electronically send copies of all requests for exclusion in PDF format (or such other format as shall be agreed upon) to Defendants’ Counsel and to Lead Counsel expeditiously (and not more than two (2) days) after the Claims Administrator receives such a request. Lead Counsel shall provide Defendants’ Counsel, within two (2) days after the expiration of the request for exclusion deadline, copies of all requests for exclusion of any Class Members who will be identified to the Court as having validly and timely requested exclusion from the Class. Lead Counsel will submit to the Court a final list of all persons or entities who have requested exclusion from the Class, and shall certify that copies of all requests for exclusion received by the Claims Administrator have been provided to Defendants’ Counsel, at least two (2) days before the Final Approval Hearing. XII. PRELIMINARY APPROVAL OF THE SETTLEMENT 41. Promptly after execution of this Settlement, Lead Plaintiff, by and through Lead Counsel, with Defendants’ Counsel’s consent, shall submit the Settlement together with its exhibits, to the Court and shall move for entry of the Preliminary Approval Order, among other things, preliminarily (a) approving the Settlement, (b) approving the contents and method of distribution of the Notice and Summary Notice, (c) approving the contents of the Proof of Claim Form, and (d) setting a date for the

 
33 Final Approval Hearing. To permit compliance with the settlement notice requirements of the Class Action Fairness Act, the Final Approval Hearing shall take place no earlier than one hundred (100) days after the Court enters the Preliminary Approval Order. XIII. JUDGMENT APPROVING THE SETTLEMENT 42. Lead Plaintiff, by and through Lead Counsel, with Defendants’ Counsel’s consent, shall request that the Court, if it approves the Settlement following the Final Approval Hearing, enter the Judgment. The Settlement is expressly conditioned upon, among other things, the entry of a Judgment substantially in the form attached hereto as Exhibit B and in all respects consistent with this Settlement. XIV. EFFECTIVE DATE OF THE SETTLEMENT, AND TERMINATION 43. The Effective Date of the Settlement shall be the first date by which all of the following have occurred: a) The Court has entered the Preliminary Approval Order; b) ADES has caused the Settlement Amount to be deposited into the Escrow Account; c) Defendants have not exercised their option to terminate the Settlement pursuant to ¶ 45 herein; d) The Court has approved the Settlement following notice to the Class and the Final Approval Hearing in accordance with Rule 23 of the Federal Rules of Civil Procedure, and has entered the Judgment; and e) The Judgment has become Final, as defined in ¶ I 1(n) herein. 44. Defendants and Lead Plaintiff each shall have the right to terminate the Settlement by providing written notice of their election to do so to the other within twenty

 
34 (20) days of the date on which: (a) the Court refuses to approve this Settlement, or the terms contained herein, in any material respect; (b) the Court declines to enter the Preliminary Approval Order in any material respect; (c) the Court refuses to grant final approval of this Settlement, or any material part of it; (d) the Court declines to enter the Judgment in any material respect; (e) any appellate court refuses to approve the Judgment in any material respect in such a way that the Court cannot, on remand from such an appeal, enter the Judgment; (f) the Effective Date of the Settlement does not occur; or (g) the payment of the Settlement Amount is not satisfied in accordance with the terms herein. In addition, Defendants may also terminate the Settlement in accordance with ¶ 45. The foregoing list is not intended to limit or impair the Settling Parties’ rights under the law of contracts of the State of Colorado with respect to any breach of this Settlement (except as provided in ¶ 2 hereof). In the event the Settlement is terminated, the provisions of this Paragraph and of ¶¶ 12, 13, 14, 15, 17, 19, 28, 30, 46, 47, 51, 53, 54, 60, 63, 64, 65, 66, and 67 shall survive termination. If the Settlement does not become Final or is terminated for any reason, within ten (10) days of termination, the Settlement Fund shall be returned to Defendants pursuant to written instructions from Defendants’ Counsel, together with any interest earned on the Settlement Fund, less any Notice and Administration Costs actually and reasonably incurred. 45. Defendants shall have the option to terminate the Settlement in the event that the aggregate number of total shares of ADES common stock purchased or acquired during the Class Period by persons or entities who would otherwise be entitled to participate in the Settlement as Class Members, but who timely and validly request

 
35 exclusion in accordance with the terms of this Settlement, equals or exceeds the threshold (the “Opt-Out Threshold”) as calculated pursuant to a separate agreement (the “Supplemental Agreement”) executed between Lead Counsel and Defendants’ Counsel, which is incorporated by reference into this Settlement. The Opt-Out Threshold may be disclosed in camera to the Court for purposes of approval of the Settlement, as may be required by the Court, but such disclosure shall be carried out to the fullest extent possible in accordance with the practices of the Court so as to maintain the confidentiality of the Opt-Out Threshold. 46. Except as otherwise provided herein, in the event the Settlement is terminated, the Settling Parties reserve their rights to proceed in all respects as if this Settlement had not been entered into and without any prejudice in any way from the negotiation, fact or terms of this Settlement. If the Settlement is terminated, the Settling Parties shall be restored to their respective positions in the Action as of March 8, 2016, the date the Court entered its Order granting the parties’ Stipulated Motion to Stay this proceeding pending settlement discussions. Any order certifying a class in this Action for purposes of this Settlement prior to termination shall be null and void and a class shall not be considered certified for purposes of further litigation. The Settling Parties will, in good faith, propose a new case schedule for the completion of briefing on any motion to dismiss the Second Amended Complaint, class certification briefing, discovery and other pretrial proceedings and for the trial of this Action. XV. NO ADMISSION OF WRONGDOING 47. Whether or not the Settlement is approved by the Court, and whether or not the Settlement is consummated, the fact and terms of this Settlement, including its

 
36 exhibits, all negotiations, discussions, drafts and proceedings in connection with the Settlement, and any act performed or document signed in connection with the Settlement: a) shall not be offered or received against the Released Parties, Lead Plaintiff or the other Class Members as evidence of, or be deemed to be evidence of, any presumption, concession or admission by any of the Released Parties or by Lead Plaintiff or the other Class Members with respect to the truth of any fact alleged by Lead Plaintiff or the validity, or lack thereof, of any claim that has been or could have been asserted in the Action or in any litigation, or the deficiency of any defense that has been or could have been asserted in the Action or in any litigation, or of any liability, negligence, fault or wrongdoing of the Released Parties; b) shall not be offered or received against the Released Parties as evidence of a presumption, concession or admission of any fault, misrepresentation or omission with respect to any statement or written document approved or made by any Released Party, or against Lead Plaintiff or any of the other Class Members as evidence of any infirmity in the claims of Lead Plaintiff and the other Class Members; c) shall not be offered or received against the Released Parties, Lead Plaintiff or the other Class Members as evidence of a presumption, concession or admission with respect to any liability, negligence, fault or wrongdoing, or in any way referred to for any other reason as against any of the Released Parties, Lead Plaintiff or the other Class Members, in any

 
37 arbitration proceeding or other civil, criminal or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of this Settlement; provided, however, that if this Settlement is approved by the Court, the Released Parties may refer to the Settlement and the Judgment in any action that may be brought against them to effectuate the liability protection granted them hereunder, including, without limitation, to support a defense or claim based on principles of res judicata, collateral estoppel, release, good faith settlement, judgment bar or reduction, or any other theory of claim preclusion or issue preclusion or similar defense or claim under U.S. federal or state law or foreign law; d) shall not be construed against the Released Parties, Defendants’ Counsel, Lead Counsel or Lead Plaintiff or the other Class Members as an admission or concession that the consideration to be paid hereunder represents the amount which could be or would have been recovered after trial or that any damages potentially recoverable in the Action would have exceeded or would have been less than the Settlement Amount; and e) shall not be construed as or received in evidence as an admission, concession or presumption against Lead Plaintiff or the other Class Members, or any of them, that any of their claims are without merit; and f) shall not be construed as or received in evidence as an admission, concession or presumption against the Released Parties that class

 
38 certification is appropriate in this Action, except for purposes of this Settlement. 48. Defendants have denied, and continue to deny, each and every claim and contention alleged in the Action and affirm that they have acted properly and lawfully at all times. Further, Defendants have denied expressly, and continue to deny, all allegations of wrongdoing, fault, liability, or damage against them arising out of any of the conduct, statements, acts or omissions alleged, or that could have been alleged, in the Action and deny that they ever engaged in or committed any fraud, wrongdoing, improper conduct, violation of law, or breach of duty whatsoever. Defendants also have denied, and continue to deny, inter alia, that there were any materially false or misleading statements or material omissions in any of Defendants’ public statements, including their filings with the SEC, and that Lead Plaintiff or any Class Member has suffered damage or harm of any kind. Had the terms of this Settlement not been reached, Defendants would have continued to contest vigorously Lead Plaintiff’s allegations, and Defendants maintain that they had and have meritorious defenses to all claims alleged in the Action. XVI. MISCELLANEOUS PROVISIONS 49. All of the exhibits attached hereto are hereby incorporated by reference as though fully set forth herein. 50. The Settling Parties intend this Settlement to be a final and complete resolution of all disputes asserted or that could be asserted by Lead Plaintiff or any other Class Members in the Action or with respect to all Released Claims. Except in the event of termination of this Settlement, Lead Plaintiff and Defendants agree not to

 
39 assert, under Rule 11 of the Federal Rules of Civil Procedure or any similar law, rule or regulation, that the Action was brought or defended in bad faith or without a reasonable basis. The Settling Parties agree that the Settlement Amount and the other terms of the Settlement were negotiated at arm’s length and in good faith by the Settling Parties and reflect a settlement that was reached voluntarily based upon adequate information and after consultation with their respective experienced legal counsel. 51. While maintaining their positions that the claims and defenses asserted in the Action are meritorious, Lead Plaintiff and Lead Counsel, on the one hand, and Defendants and Defendants’ Counsel, on the other, shall not make any public statements or statements to the media (whether or not for attribution) that disparage the other’s business, conduct, or reputation or that of their counsel based on the subject matter of the Action. 52. This Settlement may not be modified or amended, nor may any of its provisions be waived, except by a writing signed by all Settling Parties or their successors-in-interest. After prior notice to the Court, but without further order of the Court, the Settling Parties may agree to reasonable extensions of time to carry out any provisions of this Settlement. 53. The headings herein are used for the purpose of convenience only and are not meant to have legal effect. 54. Neither the Settlement, nor any act performed or document executed pursuant to or in furtherance of the Settlement: (a) is or may be deemed to be or may be used as an admission of, or evidence of, the truth or validity of any Released Claim, any allegations or claims made in the Action, or of any purported wrongdoing or liability

 
40 of any of the Released Parties; or (b) is or may be deemed to be or may be used as an admission of, or evidence of, any liability, negligence, fault, omission, or wrongdoing as against any of the Released Parties in any civil, criminal or administrative proceeding in any court, any arbitration proceeding or any administrative agency or other tribunal, other than in such proceedings as may be necessary to consummate or enforce the Settlement or the Judgment. 55. The waiver by one party of any breach of this Settlement by any other party shall not be deemed a waiver of any other prior or subsequent breach of this Settlement. The provisions of this Settlement may not be waived except by a writing signed by the affected party, or counsel for that party. 56. This Settlement, including its exhibits and the Supplemental Agreement, which are material parts thereof, constitute the entire agreement among the Settling Parties, and no representations, warranties or inducements have been made to any party concerning this Settlement, its exhibits, or the Supplemental Agreement, other than the representations, warranties and covenants contained and memorialized in such documents. It is understood by the Settling Parties that, except for the matters expressly represented herein, the facts or law with respect to which this Settlement is entered into may turn out to be other than, or different from, the facts now known to each party or believed by such party to be true; each party therefore expressly assumes the risk of the facts or law turning out to be so different, and agrees that this Settlement shall be in all respects effective and not subject to termination by reason of any such different facts or law.

 
41 57. This Settlement may be executed in one or more counterparts, including by signature transmitted via facsimile, or by a .pdf/.tif image of the signature transmitted via e-mail. All executed counterparts and each of them shall be deemed to be one and the same instrument. 58. Lead Plaintiff agrees that it will use its best efforts to obtain all necessary approvals of the Court required by this Settlement, and Defendants agree to provide such support as may be reasonably requested by Lead Plaintiff or Lead Counsel. 59. Each signatory to this Settlement represents that he or she has authority to sign this Settlement on behalf of Lead Plaintiff or Defendants, as the case may be, and that they have the authority to take appropriate action required or permitted to be taken, pursuant to this Settlement, to effectuate its terms. Lead Plaintiff and Lead Counsel also represent and warrant that none of Lead Plaintiff’s claims or causes of action referred to herein, or that could have been alleged in the Action, have been assigned, encumbered, hypothecated, conveyed, transferred, or in any manner granted or given, in whole or in part, to any other person or entity. 60. This Settlement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto, including all Released Parties, and any corporation, partnership, or other entity into or with which any party hereto may merge, consolidate or reorganize. 61. Any notice required by this Settlement shall be submitted by overnight mail and e-mail to each of the signatories below. 62. The administration, consummation and enforcement of the Settlement shall be under the authority of the Court and the Settling Parties intend that the Court

 
42 retain jurisdiction for the purpose of, inter alia, entering orders, providing for awards of attorneys’ fees and Litigation Expenses, and enforcing the terms of the Settlement. 63. The construction, interpretation, operation, effect and validity of this Settlement, and all documents necessary to effectuate it, shall be governed by the internal laws of the State of Colorado without regard to that State’s choice-of-law principles, except to the extent that federal law requires that federal law governs. 64. To the extent there are disputes regarding the interpretation of any term of this Settlement, the Settling Parties will attempt to resolve any such dispute in good faith, including, if necessary, through further mediation discussions with Jed Melnick. If the Settling Parties fail to resolve the dispute, or in the event of a breach of the terms of the Settlement, any non-breaching Settling Party shall be entitled to bring an action seeking to enforce those provisions, and the exclusive forum for any such action shall be this Court. The prevailing Settling Party in any such action to enforce these provisions of the Settlement shall be entitled to recover their reasonable attorneys’ fees and expenses incurred in connection with remedying the breach. 65. This Settlement shall not be construed more strictly against one Settling Party than another merely by virtue of the fact that it, or any part of it, may have been prepared by counsel for one of the Settling Parties, it being recognized that it is the result of arm’s-length negotiations among the Settling Parties and all Settling Parties have contributed substantially and materially to the preparation of this Settlement. 66. Nothing in this Settlement, or the negotiations or proceedings relating to the Settlement, is intended to or shall be deemed to constitute a waiver of any applicable privilege or immunity, including, without limitation, the attorney-client

 
43 privilege, the joint defense privilege, the accountants’ privilege, or work product immunity; further, all information and documents transmitted between Lead Plaintiff’s Counsel and Defendants’ Counsel in connection with this Settlement shall be kept confidential and shall be inadmissible in any proceeding in any U.S. federal or state court or other tribunal or otherwise, in accordance with Rule 408 of the Federal Rules of Evidence as if such Rule applied in all respects in any such proceeding or forum. 67. Except where specifically noted, all time periods set forth in this Settlement will be computed in calendar days and pursuant to the terms of Rule 6(a) of the Federal Rules of Civil Procedure.

 
44 IN WITNESS WHEREOF, the Settling Parties hereto have caused this Settlement to be executed, by their duly authorized attorneys, as of June 30, 2016. SHEPHERD, FINKELMAN, MILLER & SHAH, LLP s/ James E. Miller James E. Miller Laurie Rubinow 65 Main Street Chester, CT 06412 Telephone: (860) 526-1100 Facsimile: (866) 300-7367 Email: [email protected] Email: [email protected] Nathan Zipperian 1625 N. Commerce Pkwy., Suite 320 Ft. Lauderdale, FL 33326 Telephone: (954) 515-0123 Facsimile: (866) 300-7367 Email: [email protected] Valerie L. Chang Chiharu Sekino 401 West A Street, Suite 2350 San Diego, CA 92101 Telephone: (619) 235-2416 Facsimile: (866) 300-7367 Email: [email protected] Email: [email protected] EDGAR LAW FIRM, LLC David W. Edgar (Bar No. 41956) The Spectrum Building 1580 Lincoln Street, Ste. 1100 Denver, CO 80203 Tel: (720) 529-0505 Facsimile: (303) 486-0001 Email: [email protected] Attorneys for Lead Plaintiff, The United Food and Commercial Workers Union GIBSON, DUNN & CRUTCHER LLP s/ Gregory J. Kerwin Gregory J. Kerwin Allison K. Kostecka 1801 California Street, Suite 4200 Denver, CO 80202 Telephone: (303) 298-5700 Facsimile: (303) 313-2829 Email: [email protected] Email: [email protected] FORTIS LAW PARTNERS LLC Stephen M. DeHoff Jeffrey M. Brenman 1900 Wazee Street, Suite 300 Denver, CO 80202 Telephone: (720) 904-6009 Facsimile: (303) 675-5200 Email: [email protected] Email: [email protected] Attorneys for Defendants Advanced Emissions Solutions, Inc., Michael D. Durham, C. Jean Bustard, Sharon M. Sjostrom, Christine B. Amrhein, and L. Heath Sampson

 
45 and Participating Food Industry Employers Tri-State Pension Fund MORRISON & FOERSTER LLP s/ Steven M. Kaufmann Steven M. Kaufmann Nicole K. Serfoss 370 Seventeenth Street, Suite 4200 Denver, CO 80202 Telephone: (303) 592-2246 Facsimile: (303) 592-1520 Email: [email protected] Email: [email protected] Attorneys for Defendant Mark H. McKinnies

 
46 CERTIFICATE OF SERVICE I hereby certify that on [date], a true and correct copy of the foregoing STIPULATION AND AGREEMENT OF SETTLEMENT was served via the ECF/PACER system on counsel of record. s/

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
FOURTH AMENDMENT AND JrIF'l'H WAIVER REGARDING 2013 LOAN AND SECURITY AGREEMENT THIS FOURTH AMENDMENT AND FIFTH WAIVER REGARDING 2013 LOAN AND SECURITY AGREEMENT ("Fourth Amendment") is made as of the ~th day of December 2014 (the "Effective Date") by and among ADA-ES, INC., a Colorado corporation ("BoJTOwer''), ADVANCED EMISSIONS SOLUTIONS, INC., a Delaware corporation ("ADES"), and COBIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK ("Lender''). RECITALS A. Borrower, ADES and Lender are parties to that certain 2013 Loan and Security Agreement dated as of September 19, 2013, as am.ended by the First Amendment and Waiver Regarding 2013 Loan and Security Agreement dated as of December 2, 2013, as further am.ended by a Waiver Letter dated February 7, 2014, as further am.ended by the Second Amendment Regarding 2013 Loan and Security Agreement dated as of April 3, 2014, as further am.ended by the Third Waiver Regarding 2013 Loan and Security Agreement dated as of June 30, 2014, as further amended by the Third Amendment and Fourth Waiver regarding 2013 Loan and Security Agreement dated as of September 20, 2014 (as am.ended, supplemented, modified and restated from time to time, the "Loan Agreement''). B. In accordance with the provisions of the Loan Agreement, Lender has agreed to am.end, or waive, for the benefit of Borrower, certain terms and conditions contained in the Loan Agreement, as specifically provided herein. C. ADES wishes to provide its consent to the amendments and waivers set forth herein. D. Other than as defined in this Fourth Amendment, all capitalized terms used in this Agreement without definition shall have the meanings given to such terms in the Loan Agreement. NOW THEREFORE, in consideration of the premises and covenants made by Borrower and contained in this Fourth Amendment and the consent provided given by ADES herein, Lender grants the waivers and agrees to the amendments forth below: 1. Amendment to Definitions. The definition of "Secured Line Termination Date" is am.ended and restated, effective as of the Effective Date, to read, in its entirety, as follows: "Secured Line Termination Date" means May 31, 2015, or such earlier date as may occur pursuant to Section 8.2 hereo£ 2. Waiveni. Lender waives compliance by Borrower with the provisions of Sections 6.11, 6.12 and 6.13 of the Loan Agreement. 3. No Default. Borrower and ADES hereby certify to Lender that, after giving effect to the amendments and waivers provided herein, Borrower is in full compliance with the

 
provisions of the Loan Agreement, and that no Event ofDefilult will occur as a result of the effects of this Fourth Amendment. 4. Release of Claims. Borrower and ADES hereby release and forever discharge Lender, its affiliates, directors, officers, agents, employees, and attorneys ("Lender Parties") of and from any and all liability, suits, damages, claims, counterclaims, demands, reckonings and causes of action, setoffs and defenses, whether known or Wlknown, whether arising in law or equity, which any of Borrower or ADES have, now have or may have in the future against Lender Parties by reason of any acts, omissions, causes or things arising out of or in any way related to this Fourth Amendment or the Loan Agreement existing or accrued as of the date of this Fourth Amendment. This release shall survive the termination of this Fourth Amendment. Borrower acknowledges that the foregoing release is a material inducement to Lender's decision to extend to Borrower the financial accommodations hereunder and has been relied upon by Lender in agreement to enter into this Fourth Amendment. 5. Certification. Borrower will execute and deliver to Lender a Certificate in the fonn of Exhibit A attached hereto. 6. ~- Borrower will pay Lender a fee of Forty Four Thousand Six Hundred Fifty and no/I 00 Dollars ($44,650.00) for this Fourth Amendment. 7. Costs. Borrower will pay Lender's attorneys' fees for preparation of this Fourth Amendment. 8. Miscellaneous. (a) The paragraph headings used herein are intended for reference purposes only and shall not be considered in the interpretation of the terms and conditions hereof. (b) The terms and conditions of this Fourth Amendment shall be binding upon and shall inure to the benefit of the parties hereto, their successors and permitted assigns. (c) This Fourth Amendment may be executed in any number of counterparts, and by Lender, ADES and Borrower on separate counterparts, each of which, when so executed and delivered, shall be an original, but all of which shall together constitute one and the same Agreement. (d) Except as expressly modified by this Fourth Amendment, the Loan Agreement shall remain in full force and effect and shall be enforceable in accordance with its terms. (e) This Fourth Amendment and the Loan Agreement constitute the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersede all prior negotiations, understandings, and agreements between such parties with respect to such subject matter. 2

 
(f) This Fourth Amendment, and the transactions evidenced hereby, shall be governed by, and construed under; the internal laws of the State of Colorado, without regard to principles of conflicts of law, as the same may from time to time be in effect, including, without limitation, the Unifonn Commercial Code as in effect in the State of Colorado. IN WITNESS WHEREOF, the parties hereto have executed and delivered this Fourth Amendment as of the date first above set forth. ADA-ES, INC., ~~ Nam. <;i Title: Gf(2 ADVANCED EMISSIONS SOLUTIONS, INC., a 4iC Name: ,,.../ '2h Title: C-Fo COBIZ B~ a Colorado corporation d/b/a COWRADO BU SINE K 3

 
Exhibit A Form of BORROWER CERTmCATION With Respect to FOURm AMENDMENT AND FIFTH WAIVER REGARDING 2013 LOAN AND SECURITY AGREEMENT The underSigned, as a duly authorized officer of ADA-ES, INC., a Colorado corporation, in conjunction with the Fourth Amendment and Fifth Waiver Regarding 2013 Loan and Security Agreement by and among ADA-ES, INC. ("Borrower"), ADVANCED EMISSIONS SOLUTIONS, INC. and COBIZ Banlc, a Colorado corporation, d/b/a Colorado Business Baulc ("Fourth Amendment"), hereby certifies to COBIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK that no "Principal" of Borrower has been convicted of, or pied no contest to, a felony under state or federal law (excluding crimes related to traffic or motor vehicle offenses) or to any other crime that requires identification in any registry and/or notification program maintained by any federal or state jurisdiction. For the purpose of this Certification, "Principal" is deemed to include: (a) each Officer of ADA-ES, INC.; (b) each director of ADA-ES, INC.; (c) the five (5) most highly compensated executives and officers of ADA-ES, INC.; and (d) each natural person who is a direct or indirect holder of more than twenty percent (20%) or more of the ownership stock or stock equivalent of ADA-ES, INC. The undersigned Borrower acknowledge that CoBiz Bank, a Colorado corporation, d/b/a Colorado Business Baulc is relying upon the truth of the statements set forth in this Borrower Certification to enter into the Fourth Amendment with Borrower. Dated this .lli_ day of December 2014. 4

 
TmRD AMENDMENT AND FOURTH WAIVER REGARDING 2013 LOAN AND SECURITY AGREEMENT TIDS TIURD AMENDMENT AND FOURTH WAIVER REGARDING 2013 LOAN AND SECURITY AGREEMENT ("Third Amendment") is made as of the 20th day of September 2014 (the "Effective Date") by and among ADA·ES, INC., a Colorado corporation ("Borrower"), ADVANCED EMISSIONS SOLUTIONS, INC., a Delaware corporation ("ADES"), and COBIZ BANK., a Colorado corporation, d/b/a COLORADO BUSINESS BANK ("Lender"). RECITALS A. Borrower, ADES and Lender are parties to that certain 2013 Loan and Security Agreement dated as of September 19, 2013, as amended by the First Amendment and Waiver Regarding 2013 Loan and Security Agreement dated as of December 2, 2013, as further amended by a Waiver Letter dated February 7, 2014, as further amended by the Second Amendment Regarding 2013 Loan and Security Agreement dated as of April 3, 2014, as further amended by the Third Waiver Regarding 2013 Loan and Seci.irity Agreement dated as of June 30, 2014 (as amended, supplemented, modified and restated from time to time, the "Loan Agreement"). B. In accordance with the provisions of the Loan Agreement, Lender has agreed to amend, or waive, for the benefit of Borrower, certain terms and conditions contained in the Loan Agreement, as specifically provided herein. c. herein. ADES wishes to provide its consent to the amendments and waivers set forth D. Other than as defined in this Third Amendment, all capitalized terms used in this Agreement without definition shall have the meanings given to such terms in the Loan Agreement. NOW THEREFORE, in consideration of the premises and covenants made by Borrower and contained in this Third Amendment and the consent provided given by ADES herein, Lender grants the waivers and agrees to the amendments forth below: 1. Amendment to Definjtions. The definition of "Secured Line Termination Date" is amended and restated, effective as of the Effective Date, to read, in its entirety, as follows: "Secured Line Termination Date" means December 19, 2014, or such earlier date as may occur pursuant to Section 8.2 hereof. 2. Waivers. Lender waives compliance by Borrower with the provisions of Sections 6.11, 6.12 and 6.13 of the Loan Agreement. 3. No Default. Borrower and ADES hereby certify to Lender that, after giving effect to the amendments and waiver provided herein, Borrower is in full compliance with the provisions of the Loan Agreement, and that no Event of Default will occur as a result of the effects of this Third Amendment.

 
4. Release ofCJolm§. Borrower and ADES hereby release and forever discharge Lender, its affiliates, directors, officers, agents, employees, and attorneys ("Lender Parties") of and from any and all liability, suits, damages, claims, counterclaims, demands, reckonings and causes of action, setoffs and defenses, whether known or wtknown, whether arising in law or equity, which any of Borrower or ADES have, now have or may have in the future against Lender Parties by reason of any acts, omissions, causes or things arising out of or in any way related to this Third Amendment or the Loan Agreement existing or accrued as of the date of this Third Amendment. This release shall survive the termination of this Third Amendment. Borrower acknowledges that the foregoing release is a material inducement to Lender's decision to extend to Borrower the financial accommodations hereunder and has been relied upon by Lender in agreement to enter into this Third Amendment. S. Certification. Borrower will execute and deliver to Lender a Certificate in the form of Exhibit A attached hereto. 6. Fee. Borrower will pay Lender a fee of Twenty Five Thousand and no/100 Dollars ($25,000.00) for this Third Amendment. 7. ~- Borrower will pay Lender's attorneys' fees for preparation of this Third Amendment. 8. Miscellaneous. (a) The paragraph headings used herein are intended for reference purposes only and shall not be considered in the interpretation of the terms and conditions hereof. (b) The terms and conditions of this Third Amendment shall be binding upon and shall inure to the benefit of the parties hereto, their successors and permitted assigns. (c) This Third Amendment may be executed in any number of counterparts, and by Lender, ADES and Borrower on separate counterparts, each of which, when so executed and delivered, shall be an original, but all of which shall together constitute one and the same Agreement. (d) Except as expressly modified by this Third Amendment, the Loan Agreement shall remain in full force and effect and shall be enforceable in accordance with its terms. (e) This Third Amendment and the Loan Agreement constitute the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersede all prior negotiations, understandings, and agreements between such parties with respect to such subject matter. (f) This Third Amendment, and the transactions evidenced hereby, shall be governed by, and construed under; the internal laws of the State of 2

 
Colorado, without regard to principles of conflicts of law, as the same may from time to time be in effect, including, without limitation, the Uniform Commercial Code as in effect in the State of Colorado. IN WI1NESS WHEREOF, the parties hereto have executed and delivered this Third Amendment as of the date first above set forth. ADA-ES, INC., ~~ Nam . '¥2c;'4'? Title: C.£0 By:--'=,.><..:,-.--,,.---,.~----­ Name:-k.1;;.t;1~f:...h.__...4!L!~~!!.L---Title:_.....,µ;,_,.,_ _______ _ COBIZ BANK, a Colorado corporation d/b/a COLORADO BUS ANK · r Vice President 3

 
Exhibit A Form of BORROWER CERTIFICATION With Respect to THIRD AMENDMENT AND FOURTH WAIVER REGARDING 2013 LOAN AND SECURITY AGREEMENT The undersigned, as a duly authoriz.ed officer of ADA-ES, INC., a Colorado corporation, in conjunction with the Third Amendment and Fourth Waiver Regarding 2013 Loan and Security Agreement by and among ADA-ES, INC. ("Borrower"), ADVANCED EMISSIONS SOLUTIONS, INC. and COBIZ Bank, a Colorado corporation, d/b/a Colorado Business Banlc ("Third Amendmenf'), hereby certifies to COBIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK that no "Principal" of Borrower has been convicted of, or pied no contest to, a felony under state or federal law (excluding crimes related to traffic or motor vehicle offenses) or to any other crime that requires identification in any registry and/or notification program maintained by any federal or state jurisdiction. For the purpose of this Certification, "Principal" is deemed to include: (a) each Officer of ADA-ES, INC.; (b) each director of ADA-ES, INC.; (c) the five (5) most highly compensated executives and officers of ADA-ES, INC.; and (d) each natural person who is a direct or indirect holder of more than twenty percent (20%) or more of the ownership stock or stock equivalent of ADA-ES, INC. The undersigned Borrower acknowledge that CoBiz Bank, a Colorado corporation, d/b/a Colorado Business Banlc is relying upon the truth of the statements set forth in this Borrower Certification to enter into the Third Amendment with Borrower. Dated this rfil_ day of September 2014. 4

 
THIRD WAIVER REGARDING 2013 LOAN AND SECURITY AGREEMENT THIS THIRD WANER REGARDING 2013 LOAN AND SECURITY AGREEMENT ("Third Waiver") is made as of the 30th day of June, 2014 (the "Effective Date") by and among ADA-ES, INC., a Colorado corporation ("Borrower"), ADVANCED EMISSIONS SOLUTIONS, INC., a Delaware corporation ("ADES"), and COBIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK ("Lender"). RECITALS A. Borrower and Lender are parties to that certain 2013 Loan and Security Agreement dated as of September 19, 2013, as amended by the First Amendment and Waiver Regarding 2013 Loan and Security Agreement dated as of December 2, 2013, as further amended by a Waiver Letter dated February 7, 2014, a Second Amendment Regarding 2103 Loan and Security Agreement dated as of April 3, 2014 and a Third Waiver Regarding 2013 Loan and Security Agreement dated as of June 30, 2014 (as amended, supplemented, modified and restated from time to time, the "Loan Agreement"). B. Pursuant to a Form 8-K filed with the Securities and Exchange Commission ("SEC"), ADES has notified Lender that the ADES financial statements for the quarters ended March 31, 2013, June 30, 2013 and September 30, 2013 are not correct and will need to be restated. C. Further, ADES has notified Lender that the financial statements for the year ended December 31, 2013 will not be available until sometime in the fall of2014. D. Further, the ADES quarterly financial statements for the quarters ending March 31, 2014, June 30, 2014 and September 30, 2014 will not be delivered in compliance with the tenns of the Loan Agreement. E. In accordance with the provisions of the Loan Agreement, Lender has agreed to waive, for the benefit of Borrower, certain terms and conditions contained in the Loan Agreement, as specifically provided herein. F. ADES wishes to provide its consent to the waivers set forth herein. G. Other than as defined in this Third Waiver, all capitalized terms used in this Agreement without definition shall have the meanings given to such terms in the Loan Agreement. NOW THEREFORE, in consideration of the premises and covenants made by Borrower and contained in this Third Waiver and the consent provided given by ADES herein, Lender grants the waivers and agrees to the amendments forth below: 1. Waiver Concerning Financial Statements and Delivery of Interim Financial Statements. With respect to the delivery of annual and quarterly financial statements required by Section 6.11 of the Loan Agreement, Lender agrees that, until such time as ADES has filed with DEN-42558·6

 
the SEC its Form lOK for the period ended December 31, 2013 (the "Form lOK") and its Forms lOQ for the quarters ending March 31, 2014, June 30, 2014 and September 30, 2014 (the "Forms lOQ") the requirements of Section 6.11, shall be waived. Until the Form IOK'and the Forms 1 OQ are filed, Borrower shall deliver to Lender quarterly and annual financial statements of Borrower internally prepared by Borrower, representing in all material respects Borrower's financial position, respectively, as of such date, which statements shall consist of a balance sheet . and related statements of income, retained earnings, and cash flow covering the appropriate period of Borrower's operations, all in such detail as Lender may reasonably request, and which shall be certified by the president or chief financial officer of Borrower in the form of Exhibit A attached to this Third Waiver. · 2. Waiver Concerning Previously Delivered Financial Statements With respect to the delivery of quarterly financial statements delivered pursuant to Section 5.4 of the Loan Agreement, Lender agrees that, at such time as: (a) ADES has filed with the SEC its restated Forms 1 OQ for the quarters ending March 31, 2013, June 30, 2013 and September 30, 2013, or their equivalent which may be contained in the Form 1 OK; and (b) Borrower has delivered copies of such restated Forms 1 OQ for the quarters ending March 31, 2013, June 30, 2013 and September 30, 2013, or their equivalent which may be contained in the Form 1 OK, to Lender, the representations of Borrower contained in Section 5.4 are waived. 3. Compliance Certificates and Calculation of Performance Ratios. With respect to the delivery of compliance certificates required by Section 6.11 and the calculation of the performance ratios set forth in Sections 6.12 and 6.13, Lender agrees that Borrower may use the Borrower prepared interim financial statements to complete such certificates and calculate such ratios. 4. Delivery of Restated Financial Statements. Upon the filing of the Form !OK and the Forms 1 OQ, Borrower will deliver to Lender restated or completed quarterly and annual financial statements prepared in accordance with generally accepted accounting principles. 5. No Restatement of Compliance Certificates or Recalculation of Performance Ratios. With respect to the delivery of compliance certificates required by Section 6.11 and the calculation of the performance ratios set forth in Sections 6.12 and 6.13, Lender agrees that Borrower is not required to redeliver compliance certificates or recalculate performance ratios using the restated or completed quarterly and annual financial statement prepared in accordance with the terms of the resolution of the issues with Borrower's auditing firm. 6. SEC Documents. Borrower will deliver copies to Lender of any and all reports that Borrower and/or ADES files with the SEC pursuant to the Securities Act of 1934. Such deliver will occur promptly up on the filing of such documents with the SEC. 7. Maintenance of Cash Collateral. Concurrently with the execution of this Amendment by Borrower and ADES, and for so long as ADES is not compliant with the requirements of Section 6.11, Borrower will maintain on deposit with Lender cash collateral in an amount which is not less than the Secured Line Balance. If Borrower wishes to request additional Advances, Borrower must deposit with Lender additional cash collateral in an amount which is not less than the amount of the requested Advance, or such other amount as is necessary 2

 
to bring the total amount on deposit to an amount not less than the cu1rnnt Secured Line Balance plus the additional requested Advance. Borrower may select the type of deposit account in which the cash collateral will be held. Borrower shall execute and deliver to Lender a pledge agreement granting to Lender a first priority security interest in the cash collateral account, a copy of which is attached hereto as Exhibit B. The cash collateral shall be held by Lender until the first to occur of: (a) the Loan Agreement is terminated according to its terms and all obligations of Borrower thereunder shall have been fully complied with; or (b) Borrower is in full compliance with the requirements of Section 6.11, at which time the cash collateral will be released to Borrower and the pledge agreement will be teiminated. 8. Section 8.5. A new Section 8.5 is hereby added to the Loan Agreetnent, which reads, in its entirety, as follows: If an Event of Default shall have occurred and be continuing, Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits which were provided to Lender as cash collateral (general or special, time or detnand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by Lender for the credit or the account of Borrower or against any and all of the obligations of Borrower now or hereafter existing under this Agreement or any other Loan Document to Lender irrespective of whether Lender shall have made any detnand under this Agreemettt or any other Loan Document and although such obligations of Borrower may be contingent or unmatured or are owed to Lender. Lender agrees to notify Borrower promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application. 9. Release of Claims. Borrower and ADES hereby release and forever discharge Lender, its affiliates, directors, officers, agents, employees, and attorneys ("Lender Parties") of and from any and all liability, suits, damages, claims, counterclaims, detnands, reckonings and causes of action, setoffs and defenses, whether known or unknown, whether arising in law or equity, which any of Borrower or ADES have, now have or may have in the future against Lender Parties by reason of any acts, omissions, causes or things arising out of or in any way related to this Third Waiver or the Loan Agreeinent existing or accrued as of the date of this Third Waiver. This release shall survive the termination of this Third Waiver. Borrower acknowledges that the foregoing release is a material inducement to Lender's decision to extend to Borrower the financial accommodations hereunder and has been relied upon by Lender in agreement to enter into this Third Waiver. I 0. Certification. Borrower will execute and deliver to Lender a Certificate in the form of Exhibit C attached hereto. 11. Costs. Borrower will pay Lender's attorneys' fees for preparation of this Third Waiver. 12. Miscellaneous. 3

 
(a) The paragraph headings used herein are intended for reference purposes only and shall not be considered in the interpretation of the terms and conditions hereof. (b) The terms and conditions of this Third Waiver shall be binding upon and shall inure to the benefit of the parties hereto, their successors and permitted assigns. ( c) This Third Waiver may be executed in any number of counterparts, and by Lender, ADES and Borrower on separate counterparts, each of which, when so executed and delivered, shall be an original, but all of which shall together constitute one and the same Agreement. (d) Except as expressly modified by this Third Waiver, the Loan Agreement shall remain in full force and effect and shall be enforceable in accordance with its terms. (e) This Third Waiver and the Loan Agreement constitute the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersede all prior negotiations, understandings, and agreements between such parties with respect to such subject matter. (f) This Third Waiver, and the transactions evidenced hereby, shall be governed by, and construed under; the internal laws of the State of Colorado, without regard to principles of conflicts oflaw, as the same may from time to time be in effect, including, without limitation, the Uniform Commercial Code as in effect in the State of Colorado. IN WITNESS WHEREOF, the parties hereto have executed and delivered this Third Waiver as of the date first above set forth. (Signatures on following page) 4

 
B y:_,_-'-----":::_;;,'17--'f::-'l-¥"'7D,---;;;;,...._-r-,.-- N ame:_-L.!..L;:!-i:;:....:I-!....:_'-'--'.!.L.:"-'t-'-'/l.!.JI'/"-' ~"""--­ Ti tie: __ __,"-'--'""-------- COBIZ BANK, a Colorado corporation d/b/a COLORADO BUSINESS NK 5

 
Exhibit A FORM OF INTERIM FINANCIAL STATEMENT CERTIFICATION The undersigned, the of ADA-ES, INC., a Colorado corporation ("Borrower"), hereby certifies to COBIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK ("Lender"), pursuant to the Third Waiver to 2013 Loan and Security Agreement by and among Borrower, ADV AN CED EMISSIONS SOLUTIONS, INC. and Lender ("Third Waiver"), that attached hereto is a copy of Borrower's internally prepared financial statements as of and for the __ month period ending ____ _ 20_, which financial statements consistently present in all material respects Borrower's financial position and results of operations for the applicable periods and consist of a balance sheet and related statements of income and cash flow covering the periods from the end of the immediately preceding fiscal year to the end of such quarter, and such quarter alone (if applicable), it being understood that all internally prepared financial statements are subject to year-end adjustments and are not required to have footnote disclosures. The undersigned has reviewed the Loan Agreement and the affairs of Borrower and that, to the best of his or her knowledge and belief, and excepting matters which have been waived by Lender, he or she is unaware of the occurrence of an event which constitutes an Event of Default hereunder or which would constitute such an Event of Default with the giving of notice or the lapse of time or both, and if so, stating the facts with respect thereto. ADA-ES, INC., a Colorado corporation By: Name: ------------- Title: ------------- 6

 
ExhibitB FORM OF PLEDGE AGREEMENT PLEDGE AGREEMENT (ADA-ES Third Waiver) THIS PLEDGE AGREEMENT ("Pledge Agreement") is made as of the 30th day of June, 2014 (the "Effective Date") by and among ADA-ES, INC., a Colorado corporation ("Borrower"), ADVANCED EMISSIONS SOLUTIONS, INC., a Delaware corporation ("ADES"), and CO BIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK ("Lender"). RECITALS A. Borrower and Lender are parties to that certain 2013 Loan and Security Agreement dated as of September 19, 2013, as amended by the First Amendment and Waiver Regarding 2013 Loan and Security Agreement dated as of December 2, 2013, as further amended by a Waiver Letter dated February 7, 2014, a Second Amendment Regarding 2103 Loan and Security Agreement dated as of April 3, 2014 and a Third Waiver Regarding 2013 Loan and Security Agreement dated as of June 30, 2014 (as amended, supplemented, modified and restated from time to time, the "Loan Agreement"). B. Pursuant to the Third Waiver Regarding 2013 Loan and Security Agreement dated as of June 30, 2014, Borrower has agreed to provide Lender with cash collateral and execute this Pledge Agreement. NOW THEREFORE, in consideration of the premises and covenants made by Borrower and contained in the Third Waiver, Borrower, ADES and Lender agree as follows: AGREEMENTS 1. Defined Terms. Capitalized terms not otherwise defined herein shall have the meanings assigned in the Loan Agreement. 2. Pledge. BmTOwer hereby pledge, assign, hypothecate and grant to Lender as a first lien on, and security interest in, all of Borrower' right, title and interest in and to Account No. 3479315 in the name of Borrower (the "Account"), all interest accruing thereon and all proceeds thereof, including all sums deposited in the Account, and in any other depository or investment account or accounts that contain the proceeds of the Account (the "Collateral"), as security for the prompt and complete payment and performance when due of all of the Obligations. 3. Lender's Rights and Obligations Regarding Accounts. Upon the occurrence of an Event of Default, any amounts held in the Account shall be held and used in accordance with the terms of the Loan Agreement and further, Lender is and shall be entitled to all of the rights, powers and remedies concerning the Collateral afforded a secured patty by the Uniform 7

 
Commercial Code of Colorado, to the extent such law is applicable, and all other remedies available under applicable law, including the right of setoff against the Collateral. 4. Representations, Warranties and Covenants of Borrower. Borrower represents and warrants that: (a) no person or persons other than Borrower will have any right, title or interest in and to the Account; (b) Borrower has, full corporate power, authority and legal right to deliver and pledge all of its right, title and interest in and to the Account pursuant to this Pledge Agreement; and (c) Borrower has not previously pledged any right, title or interest of Borrower in or to the Account, or the proceeds thereof, to any other person or entity. Borrower covenants and agrees that it will defend Lender's right, title and security interest in and to the Collateral against the claims and demands of all persons whomsoever. 5. Further Assurances. Borrower agrees that, at any time and from time to time upon the written request of Lender, Borrower will execute and deliver such further documents and do such further acts and things as Lender may reasonably request in order to effect the purposes of this Pledge Agreement. 6. Severability. Any provision of this Pledge Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 7. No Waiver; Cumulative Remedies. Lender shall not, by any act, delay, omission or otherwise be deemed to have waived any of its rights or remedies hereunder and no waiver shall be valid unless in writing, signed by Lender, and then only to the extent therein set forth. A waiver by Lender of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which Lender would otherwise have on any further occasion. No failure to exercise nor any delay in exercising on the part of Lender, any right, power or privilege hereunder, shall operate as a waiver thereof, or shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided are cumulative and may be exercised singly or concurrently, and are not exclusive of any rights or remedies provided by law. 8. Expenses Secured. Borrower agrees to pay on demand all reasonable costs and expenses, if any (including reasonable counsel, consultant and appraiser fees and expenses), in connection with the exercise and enforcement (whether through negotiations, legal proceedings or otherwise) of Lender's rights and remedies provided by this Pledge Agreement, the Loan Agreement or any other loan document, or which by law shall be payable by Borrower, expressly including all such costs and expenses incurred by Lender in connection with or during the pendency of any bankruptcy or insolvency proceedings involving Borrower. All such expenses shall be part of the Obligations, and shall be secured by the Accounts. 9. Release. This Pledge Agreement, and Lender's interest in and to any of the Accounts, shall terminate and expire at the first to occur of: (a) the Loan Agreement is 8

 
terminated according to its terms and all obligations of Borrower thereunder shall have been fully complied with; or (b) Borrower is in full compliance with the requirements of Section 6.11 of the Loan Agreement, at which time the cash collateral will be released to Borrower. Upon such termination of this Pledge Agreement, Lender agrees to take any and all actions as Borrower may reasonably request to evidence such termination. 10. Consent of ADES. ADES consents to the pledge contained herein. 11. Binding Effect. This Pledge Agreement and all obligations of Borrower hereunder shall be binding upon the successors and assigns of Borrower, and shall, together with the rights and remedies of Lender hereunder, inure to the benefit of Lender and its successors and assigns. 12. Miscellaneous. (a) The paragraph headings used herein are intended for reference purposes only and shall not be considered in the interpretation of the terms and conditions hereof. (b) The terms and conditions of this Pledge Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their successors and permitted assigns. ( c) This Pledge Agreement may be executed in any number of counterparts, and by Lender, ADES and Borrower on separate counterparts, each of which, when so executed and delivered, shall be an original, but all of which shall together constitute one and the same Agreement. ( d) This Pledge Agreement is a Loan Document as defined in the Loan Agreement. ( e) This Pledge Agreement and the Loan Agreement constitute the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersede all prior negotiations, understandings, and agreements between such parties with respect to such subject matter. (f) This Pledge Agreement, and the transactions evidenced hereby, shall be governed by, and construed under; the internal laws of the State of Colorado, without regard to principles of conflicts of law, as the same may from time to time be in effect, including, without limitation, the Uniform Commercial Code as in effect in the State of Colorado. (Signatures on follow page) 9

 
By:-/-L.!..~~~S--,,,::;::::::=;;:______ N ame: _ _!_!_-'.::;,;...t,;;.a-LL!.::d:""'-~-'>.)--~ Title: __ --""-'--'---------- COBIZ BANK, a Colorado corporation d/b/a COLORADO BUSINESS BANK By: _____________ _ Douglas L. Pogge, Senior Vice President 10

 
ExhlbitC Form of BORROWER CERTIFICATION With Respect to THIRD WAIVER REGARDING 2013 LOAN AND SECURITY AGREEMENT In conjunction with the Third Waiver Regarding 2013 Loan and Security Agreement by and among ADA-ES, INC., ADV AN CED EMISSIONS SOLUTIONS, INC. and COBIZ Bank, a Colorado corporation, d/b/a COLORADO BUSINESS BANK ("Third Waiver"), the undersigned, as a duly authorized officer of ADA-ES, INC., a Colorado corporation ("Borrower"), hereby certifies to CO BIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK ("Lender") that no "Principal" of Borrower has been convicted of, or pied no contest to, a felony under state or federal law (excluding crimes related to traffic or motor vehicle offenses) or to any other crime that requires identification in any registry and/or notification program maintained by any federal or state jurisdiction. For the purpose of this Certification, "Principal" is deemed to include: (a) each Officer of Borrower; (b) each director of Borrower; (c) the five (5) most highly compensated executives and officers of Borrower; and (d) each natural person who is a direct or indirect holder of more than twenty percent (20%) or more of the ownership stock or stock equivalent of Borrower. The undersigned acknowledges Lender is relying upon the truth of the statements set forth in this Borrower Certification to enter into the Third Waiver with Borrower. Dated this 30th day of June 2014. I 1

 
PLEDGE AGREEMENT (ADA-ES Third Waiver) THIS PLEDGE AGREEMENT ("Pledge Agreement") is made as of the 30th day of June, 2014 (the "Effective Date") by and among ADA-ES, INC., a Colorado corporation ("Borrower"), ADV AN CED EMISSIONS SOLUTIONS, INC., a Delaware corporation ("ADES"), and COBIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK ("Lender"). RECITALS A. Borrower and Lender are parties to that certain 2013 Loan and Security Agreement dated as of September 19, 2013, as amended by the First Amendment and Waiver Regarding 2013 Loan and Security Agreement dated as of December 2, 2013, as further amended by a Waiver Letter dated February 7, 2014, a Second Amendment Regarding 2103 Loan and Security Agreement dated as of April 3, 2014 and a Third Waiver Regarding 2013 Loan and Security Agreement dated as of June 30, 2014 (as amended, supplemented, modified and restated from time to time, the "Loan Agreement"). B. Pursuant to the Third Waiver Regarding 2013 Loan and S.ecurity Agreement dated as of June 30, 2014, Borrower has agreed to provide Lender with cash collateral and execute this Pledge Agreement. NOW THEREFORE, in consideration of the premises and covenants made by Borrower and contained in the Third Waiver, Borrower, ADES and Lender agree as follows: AGREEMENTS I. Defined Terms. Capitalized terms not otherwise defined herein shall have the meanings assigned in the Loan Agreement. 2. Pledge. Borrower hereby pledge, assign, hypothecate and grant to Lender as a first lien on, and security interest in, all of Borrower' right, title and interest in and to Account No. 3479315 in the name of Borrower (the "Account"), all interest accruing thereon and all proceeds thereof, including all sums deposited in the Account, and in any other depository or investment account or accounts that contain the proceeds of the Account (the "Collateral"), as security for the prompt and complete payment and performance when due of all of the Obligations. 3. Lender's Rights and Obligations Regarding Accounts. Upon the occurrence of an Event of Default, any amounts held in the Account shall be held and used in accordance with the terms of the Loan Agreement and further, Lender is and shall be entitled to all of the rights, powers and remedies concerning the Collateral afforded a secured party by the Uniform Commercial Code of Colorado, to the extent such law is applicable, and all other remedies available under applicable law, including the right of setoff against the Collateral. DEN-42558-6

 
4. Representations. Warranties and Covenants of Borrower. Borrower represents and warrants that: (a) no person or persons other than Borrower will have any right, title or interest in and to the Account; (b) Borrower has, full corporate power, authority and legal right to deliver and pledge all of its right, title and interest in and to the Account pursuant to this Pledge Agreement; and ( c) Borrower has not previously pledged any right, title or interest of Borrower in or to the Account, or the proceeds thereof, to any other person or entity. Borrower covenants and agrees that it will defend Lender's right, title and security interest in and to the Collateral against the claims and demands of all persons whomsoever. 5. Further Assurances. Borrower agrees that, at any time and from time to time upon the written request of Lender, Borrower will execute and deliver such further documents and do such further acts and things as Lender may reasonably request in order to effect the purposes of this Pledge Agreement. 6. Severability. Any provision of this Pledge Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 7. No Waiver; Cumulative Remedies. Lender shall not, by any act, delay, omission or otherwise be deemed to have waived any of its rights or remedies hereunder and no waiver shall be valid unless in writing, signed by Lender, and then only to the extent therein set forth. A waiver by Lender of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which Lender would otherwise have on any further occasion. No failure to exercise nor any delay in exercising on the part of Lender, any right, power or privilege hereunder, shall operate as a waiver thereof, or shall any single or partial exercise of any right, p,ower or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided are cumulative and may be exercised singly or concurrently, and are not exclusive of any rights or remedies provided by law. 8. Expenses Secured. Borrower agrees to pay on demand all reasonable costs and expenses, if any (including reasonable counsel, consultant and appraiser fees and expenses), in connection with the exercise and enforcement (whether through negotiations, legal proceedings or otherwise) of Lender's rights and remedies provided by this Pledge Agreement, the Loan Agreement or any other loan document, or which by law shall be payable by Borrower, expressly including all such costs and expenses incurred by Lender in connection with or during the pendency of any bankruptcy or insolvency proceedings involving Borrower. All such expenses shall be part of the Obligations, and shall be secured by the Accounts. 9. . Release. This Pledge Agreement, and Lender's interest in and to any of the Accounts, shall terminate and expire at the fast to occur of: (a) the Loan Agreement is terminated according to its terms and all obligations of Borrower thereunder shall have been fully complied with; or (b) Borrower is in full compliance with the requirements of Section 6.11 of the Loan Agreement, at which time the cash collateral will be released to Borrower. Upon 2

 
such termination of this Pledge Agreement, Lender agrees to take any and all actions as Borrower may reasonably request to evidence such termination. 10. Consent of ADES. ADES consents to the pledge contained herein. 11. Binding Effect. This Pledge Agreement and all obligations of Borrower hereunder shall be binding upon the successors and assigns of Borrower, and shall, together with the rights and remedies of Lender hereunder, inure to the benefit of Lender and its successors and assigns. 12. Miscellaneous. (a) The paragraph headings used herein are intended for reference purposes only and shall not be considered in the interpretation of the terms and conditions hereof. (b) The te1ms and conditions of this Pledge Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their successors and permitted assigns. ( c) This Pledge Agreement may be executed in any number of counterparts, and by Lender, ADES and Borrower on separate counterparts, each of which, when so executed and delivered, shall be an original, but all of which shall together constitute one and the same Agreement. (d) This Pledge Agreement is a Loan Document as defined in the Loan Agreement. ( e) This Pledge Agreement and the Loan Agreement constitute the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersede all prior negotiations, understandings, and agreements between such parties with respect to such subject matter. (f) This Pledge Agreement, and the transactions evidenced hereby, shall be governed by, and construed under; the internal laws of the State of Colorado, without regard to principles of conflicts of law, as the same may from time to time be in effect, including, without limitation, the Uniform Commercial Code as in effect in the State of Colorado. (Signatures on follow page) 3

 
C., a COBIZ BA a Colorado corporation d/b/a COLORADO BUSINES BA'.NK 4

 
BORROWER CERTIFICATION With Respect to THIRD WAIVER REGARDING 2013 LOAN AND SECURITY AGREEMENT In coajunction with the Third Waiver Regarding 2013 Loan and Security Agreement by and among ADA-ES, INC., ADVANCED EMISSIONS SOLUTIONS, INC. and COBIZ Bank, a Colorado corporation, d/b/a COLORADO BUSINESS BANK ("Third Waiver"), the undersigned, as a duly authorized officer of ADA-ES, INC., a Colorado corporation ("Borrower"), hereby certifies to COBIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK ("Lender") that no "Principal" of Borrower has been convicted of, or pied no contest to, a felony under state or federal law (excluding crimes related to traffic or motor vehicle offenses) or to any other crime that requires identification in any registry and/or notification program maintained by any federal or state jurisdiction. For the purpose of this Certification, "Principal" is deemed to include: (a) each Officer of Borrower; (b) each director of Borrower; ( c) the five (5) most highly compensated executives and officers of Borrower; and ( d) each natural person who is a direct or indirect holder of more than twenty percent (20%) or more of the ownership stock or stock equivalent of Borrower. The undersigned acknowledges Lender is relying upon the truth of the statements set forth in this Borrower Certification to enter into the Third Waiver with Borrower. Dated this 30th day of June 2014. DEN-42558-0

 
~ Colorado Business Bank CoBrz Financial April 22, 2014 Mark H McKinnies SVP & CFO ADA-ES, Inc. 9135 South Ridgeline BLVD Suite200 Highlands Ranch, CO 80129 Dear Mark, 82117th St. Denver, CO 80202 cobizbank.com Colorado Business Bank (referred to herein as the "Bank") and ADA-ES (the "Borrowers") entered into a credit agreement (the "Agreement") dated September 19, 2013 ("Agreement") pursuant to which the Bank extended to the Borrower a $10,000,000 revolving line of credit (the "Loan"). We are hereby notifying you that following review ofthe Agreement, you failed to meet Section 6.ll(a) Financial Information, Annual Financial Statements: As soon as available and in any event within seventy (70) days after the end of Borrower's fiscal year or thirty (30} days after ADES has made its filings with the Securities and Exchange Commission .... The Bank agrees to waive declaring a default based on this violation of the Agreement and Borrower and Bank agree that this covenant will be amended to deliver yearend financial reporting (12-31-13) to Bank no later than May 31, 2014. The Borrower should not construe the Bank's deferral as establishing any course of dealing or a waive of any of the Bank's rights under the Agreement, promissory notes or other loan documents. If you h v any questions, please contact me (303) 383-1288. /

 
SECOND AMENDMENT REGARDING 2013 LOAN AND SECURITY AGREEMENT THIS SECOND AMENDMENT REGARDING 2013 LOAN AND SECURITY AGREEMENT ("Second Amendment") is made as of the 3rd day of April 2014 (the "Effective Date") by and among ADA-ES, INC., a Colorado corporation ("Borrower"), ADV AN CED EMISSIONS SOLUTIONS, INC., a Delaware corporation ("ADES"), and COBIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK ("Lender"). RECITALS A. Bon·ower, ADES and Lender are parties to that certain 2013 Loan and Security Agreement dated as of September 19, 2013, as amended by the First Agreement and Waiver Regarding 2013 Loan and Security Agreement dated as of December 2, 2013 (as amended, supplemented, modified and restated from time to time, the "Loan Agreement"). B. In accordance with the provisions of the Loan Agreement, Lender has agreed to amend, for the benefit of Borrower, certain terms and conditions contained in the Loan Agreement, as specifically provided herein. C. ADES wishes to provide its consent to the amendments set forth herein. D. Other than as defined in this Second Amendment, all capitalized terms used in this Agreement without definition shall have the meanings given to such terms in the Loan Agreement. NOW THEREFORE, in consideration of the premises and covenants made by Borrower and contained in this Second Amendment and the consent provided given by ADES herein, Lender grants the waivers and agrees to the amendments forth below: 1. Amendment to Section 6.1 l(a). Section 6.1 l(a) is amended and restated, effective as of the Effective Date, to read, in its entirety, as follows: Annual Financial Statements. As soon as available and in any event not later than April 30, 2014, financial statements of Borrower as of the end of such fiscal year, fairly presenting in all material respects Borrower's financial position, respectively, as of such date, which statements shall consist of a balance sheet and related statements of income, retained earnings, and cash flow covering the period of Borrower's immediately preceding fiscal year, all in such detail as Lender may reasonably request, and which financial statements shall be prepared by Borrower and shall be certified to be correct by the president or chief financial officer of Borrower in the form of Exhibit E attached hereto. 2. No Default. Borrower and ADES hereby certify to Lender that, after giving effect to the amendments and waiver provided herein, Borrower is in full compliance with the provisions of the Loan Agreement, and that no Event of Default will occur as a result of the effects of this Second Amendment. 3. Release of Claims. Borrower and ADES hereby release and forever discharge Lender, its affiliates, directors, officers, agents, employees, and attorneys ("Lender Parties") of

 
and from any and all liability, suits, damages, claims, counterclaims, demands, reckonings and causes of action, setoffs and defenses, whether known or unknown, whether arising in law or equity, which any of Borrower or ADES have, now have or may have in the future against Lender Parties by reason of any acts, omissions, causes or things arising out of or in any way related to this Second Amendment or the Loan Agreement existing or accrued as of the date of this Second Amendment. This release shall survive the termination of this Second Amendment. Borrower acknowledges that the foregoing release is a material inducement to Lender's decision to extend to Borrower the financial accommodations hereunder and has been relied upon by Lender in agreement to enter into this Second Amendment. 4. Certification. Borrower will execute and deliver to Lender a Certificate in the form of Exhibit A attached hereto. 5. Costs. Borrower will pay Lender's attorneys' fees for preparation of this Second Amendment. 6. Miscellaneous. (a) The paragraph headings used herein are intended for reference purposes only and shall not be considered in the interpretation of the terms and conditions hereof. (b) The terms and conditions of this Second Amendment shall be binding upon and shall inure to the benefit of the parties hereto, their successors and permitted assigns. ( c) This Second Amendment may be executed in any number of counterparts, and by Lender, ADES and Borrower on separate counterparts, each of which, when so executed and delivered, shall be an original, but all of which shall together constitute one and the same Agreement. ( d) Except as expressly modified by this Second Amendment, the Loan Agreement shall remain in full force and effect and shall be enforceable in accordance with its terms. (e) This Second Amendment and the Loan Agreement constitute the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersede all prior negotiations, understandings, and agreements between such parties with respect to such subject matter. (f) This Second Amendment, and the transactions evidenced hereby, shall be governed by, and construed under; the internal laws of the State of Colorado, without regard to principles of conflicts of law, as the same may from time to time be in effect, including, without limitation, the Unifotm Commercial Code as in effect in the State of Colorado.

 
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Second Amendment as of the date first above set forth. aC By:--'--'5-~;.-,;w;;,,...,'-'--r-c;;--­ N am e :--1-'-L-"""-'=-<-'-'--L.:..J'-'-'-""-'-'-'-''-'-'"""--- Ti tie : __ _,_C'-+~ 'f'P~-------- CO BIZ BANK, a Colorado corporation d/b/a COLORADO BUSINESS BANK By: _____________ _ Douglas L. Pogge, Senior Vice President

 
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Second Amendment as of the date first above set forth. a Colorado corporation d/b/a COLORADO AK

 
Exhibit A Form of BORROWER CERTIFICATION With Respect to SECOND AMENDMENT REGARDING 2013 LOAN AND SECURITY AGREEMENT The undersigned, as a duly authorized officer of ADA-ES, INC., a Colorado corporation, in conjunction with the Second Amendment Regarding 2013 Loan and Security Agreement by and among ADA-ES, INC. ("Borrower"), ADVANCED EMISSIONS SOLUTIONS, INC. and COBIZ Bank, a Colorado corporation, d/b/a Colorado Business Bank ("Second Amendment"), hereby certifies to COBIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK that no "Principal" of Borrower has been convicted of, or pied no contest to, a felony under state or federal law (excluding crimes related to traffic or motor vehicle offenses) or to any other crime that requires identification in any registry and/or notification program maintained by any federal or state jurisdiction. For the purpose of this Certification, "Principal" is deemed to include: (a) each Officer of ADA-ES, INC.; (b) each director of ADA-ES, INC.; (c) the five (5) most highly compensated executives and officers of ADA-ES, INC.; and (d) each natural person who is a direct or indirect holder of more than twenty percent (20%) or more of the ownership stock or stock equivalent of ADA-ES, INC. The undersigned Borrower acknowledge that CoBiz Bank, a Colorado corporation, d/b/a Colorado Business Bank is relying upon the trnth of the statements set forth in this Borrower Ce1tification to enter into.the Second Amendment with Borrower. Dated this_ day of April 2014. ADA-ES, INC., a Colorado corporation By: ~~~~~~~~~~~~~- Name: ~~~~~~~~~~~~­ Title: ~~~~~~~~~~~~~-

 
BORROWER CERTIFICATION With Respect to SECOND AMENDMENT REGARDING 2013 LOAN AND SECURITY AGREEMENT The undersigned, as a duly authorized officer of ADA-ES, INC., a Colorado corporation, in conjunction with the Se5ond Amendment Regarding 2013 Loan and Security Agreement by and among ADA-ES, INC. ("Borrower"), ADVANCED EMISSIONS SOLUTIONS, INC. and COBIZ Bank, a Colorado corporation, d/b/a Colorado Business Bank ("Second Amendment"), hereby certifies to COBIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK that no "Principal" of Borrower has been convicted of, or pied no contest to, a felony under state or federal law (excluding crimes related to traffic or motor vehicle offenses) or to any other crime that requires identification in any registry and/or notification program maintained by any federal or state jurisdiction. For the purpose of this Certification, "Principal" is deemed to include: (a) each Officer of ADA-ES, INC.; (b) each director of ADA-ES, INC.; (c) the five (5) most highly compensated executives and officers of ADA-ES, INC.; and (d) each natural person who is a direct or indirect holder of more than twenty percent (20%) or more of the ownership stock or stock equivalent of ADA-ES, INC. The undersigned Borrower acknowledge that CoBiz Bank, a Colorado corporation, d/b/a Colorado Business Bank is relying upon the truth of the statements set fo1th in this Borrower Certification to enter into the Second Amendment with Borrower. ),./,, Dated this3o day of June 2014. on DEC-1774671-1

 
~ Colorado Business Bank CoBrz Financial February 7, 2014 ADA-ES, INC. Office of CFO 9135 South Ridgeline Blvd, Suite 200 Highlands Ranch, CO 80129 ADV AN CED EMISSIONS SOLUTIONS, INC. Office of CFO 9135 South Ridgeline Blvd, Suite 200 Highlands Ranch, CO 80129 Fortis Law Partners, LLC 1900 Wazee Street, Suite 300 Denver, Colorado 80202 821 17th St. Denver, CO 80202 cobizbank.com Re: Member Agreement re Guaranty of Clean Coal Solutions LLC draft dated January 25, 2014 Dear Ladies and Gentlemen: Co biz Bank, a Colorado corporation d/b/a Colorado Business Bank (the "Bank"), is willing to waive, upon the terms and conditions contained herein, any violation of the 2013 Revolving Loan and Security Agreement between ADA-ES, INC., Advanced Emissions Solutions, Inc. and the Bank (as amended from time to time, the "Credit Agreement") which is created by the transaction contemplated by the draft of the agreement referenced above ("Transaction") upon the following terms and conditions: l. ADA-ES, Inc. and Advanced Emissions Solutions, Inc. agree to amend the documents between themselves and the Bank to accommodate the Transaction; and 2. All documentation is completed and executed within 30 days. DEC-1774055-1 COBIZ BANK, a ColoradQ corporation d/b/a COLORADO BUSINESS BANK I B I -.. ""' - <__ y: \.... ~ ,.. . ., Douglas L. Pogge, Senior V'ice President

 
Agreed and Accepted: DEC-1774055-1 ADA-ES, INC., a Colorado corporation By: /fb Dld< Name: 1l71c·t-tlfit:/ J) . Ul/1' /1d-'YV1 Title: (' e l ADV AN CED EMISSIONS SOLUTIONS, INC., a Delaware corporation By: JJ::h.c- .Z> ~ Naml/G(!1ti e· I D. ,~ &~ Title: C 13--u

 
FIRST AMENDMENT AND WAIVER REGARDING 2013 LOAN AND SECURITY AGREEMENT THIS FIRST AMENDMENT AND WAIVER REGARDING 2013 LOAN AND SECURITY AGREEMENT (“First Amendment”) is made as of the 2nd day of December, 2013 (the "Effective Date") by and among ADA-ES, INC., a Colorado corporation (“Borrower”), ADVANCED EMISSIONS SOLUTIONS, INC., a Delaware corporation (“ADES”), and COBIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK (“Lender”). RECITALS A. Borrower and Lender are parties to that certain 2013 Loan and Security Agreement dated as of September 19, 2013 (as amended, supplemented, modified and restated from time to time, the “Loan Agreement”). B. In accordance with the provisions of the Loan Agreement, on November 7, 2013, Lender granted Borrower a waiver as to Borrower’s compliance with the minimum tangible net worth requirement contained in the Loan Agreement. B. In accordance with the provisions of the Loan Agreement, Lender has agreed to amend or waive, for the benefit of Borrower, certain terms and conditions contained in the Loan Agreement, as specifically provided herein. C. ADES wishes to provide its consent to the amendments and waiver set forth herein. D. Other than as defined in this First Amendment, all capitalized terms used in this Agreement without definition shall have the meanings given to such terms in the Loan Agreement. NOW THEREFORE, in consideration of the premises and covenants made by Borrower and contained in this First Amendment and the consent provided given by ADES herein, Lender grants the waivers and agrees to the amendments forth below: 1. Waiver for RCM6 Transaction. With respect to the transaction (“RCM6 Transaction”) described in the letter dated December 2, 2013 from Mark H. McKinnies, Senior Vice President and CFO of Borrower, to Doug Pogge, Senior Vice President of Lender,(a copy of which letter is attached hereto as Exhibit A), Lender waives the violations of Sections 7.3(b) and Section 7.3(d) of the Loan Agreement which would occur upon completion of the RCM6 Transaction and subsequent capital contributions contemplated thereby. 2. Amendment to Tangible Equity Covenant. Section 6.13 is amended and restated, effective for the fiscal quarter ending December 31, 2013 and all subsequent quarters, to read, in its entirety, as follows: DEC-1769079-1

 
Tangible Equity Covenant. ADES shall maintain a minimum tangible equity, calculated as set forth on Exhibit F attached hereto, of not less than Twenty Five Million and no/100 Dollars ($25,000,000.00), measured quarterly as of the end of each calendar quarter. 3. Amendment to Exhibit F. Exhibit F to the Loan Agreement is amended and restated, effective for the fiscal quarter ending December 31, 2013 and all subsequent quarters, to read, in its entirety, as attached hereto as Exhibit B. 4. Definition of “Borrowing Base”. The definition of Borrowing Base is amended and restated, effective immediately, to read, in its entirety, as follows: “Borrowing Base” means, as of any date, ninety percent (90%) of the net present value, applying a ten percent (10%) discount rate, of the fixed payments due to Borrower by CCS as the result of the AECI Leases. 5. Amendment to Exhibit C. Exhibit C to the Loan Agreement is amended and restated, effective immediately, to read, in its entirety, as attached hereto as Exhibit C. 6. No Default. Borrower and ADES hereby certify to Lender that, after giving effect to the amendments and waiver provided herein, Borrower is in full compliance with the provisions of the Loan Agreement, and that no Event of Default will occur as a result of the effects of this First Amendment. 7. Release of Claims. Borrower and ADES hereby release and forever discharge Lender, its affiliates, directors, officers, agents, employees, and attorneys ("Lender Parties") of and from any and all liability, suits, damages, claims, counterclaims, demands, reckonings and causes of action, setoffs and defenses, whether known or unknown, whether arising in law or equity, which any of Borrower or ADES have, now have or may have in the future against Lender Parties by reason of any acts, omissions, causes or things arising out of or in any way related to this First Amendment or the Loan Agreement existing or accrued as of the date of this First Amendment. This release shall survive the termination of this First Amendment. Borrower acknowledges that the foregoing release is a material inducement to Lender's decision to extend to Borrower the financial accommodations hereunder and has been relied upon by Lender in agreement to enter into this First Amendment. 8. Certification. Borrower will execute and deliver to Lender a Certificate in the form of Exhibit D attached hereto. 9. Costs. Borrower will pay Lender's attorneys' fees for preparation of this First Amendment. 10. Miscellaneous. (a) The paragraph headings used herein are intended for reference purposes only and shall not be considered in the interpretation of the terms and conditions hereof. 2

 
(b) The terms and conditions of this First Amendment shall be binding upon and shall inure to the benefit of the parties hereto, their successors and permitted assigns. (c) This First Amendment may be executed in any number of counterparts, and by Lender, ADES and Borrower on separate counterparts, each of which, when so executed and delivered, shall be an original, but all of which shall together constitute one and the same Agreement. (d) Except as expressly modified by this First Amendment, the Loan Agreement shall remain in full force and effect and shall be enforceable in accordance with its terms. (e) This First Amendment and the Loan Agreement constitute the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersede all prior negotiations, understandings, and agreements between such parties with respect to such subject matter. (f) This First Amendment, and the transactions evidenced hereby, shall be governed by, and construed under; the internal laws of the State of Colorado, without regard to principles of conflicts of law, as the same may from time to time be in effect, including, without limitation, the Uniform Commercial Code as in effect in the State of Colorado. IN WITNESS WHEREOF, the parties hereto have executed and delivered this First Amendment as of the date first above set forth. (Signatures on follow page) 3

 
ADA-ES, INC., a Colorado corporation By: Name: Title: ADVANCED EMISSIONS SOLUTIONS, INC., a Delaware corporation By: Name: Title: COBIZ BANK, a Colorado corporation d/b/a COLORADO BUSINESS BANK By: Douglas L. Pogge, Senior Vice President 4

 
Exhibit A Letter of December 2, 2013 5

 
Exhibit B Form of EXHIBIT F FORM OF COMPLIANCE CERTIFICATE ADA-ES, INC., a Colorado corporation (“Borrower”), and ADVANCED EMISSIONS SOLUTIONS, INC., a Delaware corporation (“ADES”), hereby certify to COBIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK (“Lender”) pursuant to the 2013 Loan and Security Agreement by and among Borrower, ADES and Lender (as amended, modified, supplemented and restated from time to time, the “Loan Agreement”), that: A. General. 1. Capitalized terms not defined herein shall have the meanings set forth in the Loan Agreement. 2. Borrower has materially complied with all the terms, covenants and conditions to be performed or observed by Borrower contained in the Loan Agreement and the Loan Documents. 3. Neither on the date hereof nor, if applicable, after giving effect to any Advance made under the Loan Agreement on the date hereof, does there exist an Event of Default. B. Financial Covenants (All numbers must be taken from the most recent 10 K or 10-Q filed by ADES with the Securities and Exchange Commission.) 1. Calculation of Liquidity Covenant: A. Cash and Marketable Securities held by ADES B. Amount of Cash and Marketable Securities pledged by ADES to parties other than Lender C. Amount of Letters of Credit issued by parties other than Lender which are not secured by the Cash and Marketable Securities covered in B. D. Total of B and C E. A less D F. Six Million and No/100 Dollars ($6,000,000.00) G. Eighty Percent (80%) of the amount outstanding under the Secured Line H. The greater of F or G I. Amount by which E exceeds (is less than) H 2. Calculation of Tangible Equity Covenant A. Shareholders’ Equity B. Temporary Equity 6

 
C. ADES’s forty two and one half percent (42.5%) interest in Clean Coal Solutions, LLC current revenues and long term deferred revenues D. A plus B plus C E. Good Will and Intangibles F. D minus E G. Twenty Five Million and No/100 Dollars ($25,000,000.00) H. Amount by which F exceeds (is less than) G IN WITNESS WHEREOF, Borrower and ADES have executed and delivered this Compliance Certificate in the name of and on behalf of Borrower on ______________ _____, 20___. ADES, INC., a Delaware corporation By: Name: Title: ADVANCED EMISSIONS SOLUTIONS, INC., a Colorado corporation By: Name: Title: 7

 
Exhibit C Form of EXHIBIT C FORM OF BORROWING BASE CERTIFICATE As of the period ending ________________ ____, 20____ This Certificate is made and dated as of ______________ ____, 20___ and is submitted by ADA-ES, INC., a Colorado corporation, in accordance with the 2013 Loan and Security Agreement by and among ADA-ES, INC., ADVANCED EMISSIONS SOLUTIONS, INC., and COBIZ Bank, a Colorado corporation, d/b/a Colorado Business Bank (as amended, modified, supplemented and restated from time to time, the “Loan Agreement”). Capitalized terms used but not defined herein shall have the respective meanings therefor set forth in the Loan Agreement. The undersigned hereby certifies to Lender that the undersigned is familiar with the following financial information, which has been taken from Borrower’s books and records, which are complete and accurate, and the following calculations on the Borrowing Base and the remaining amount under the Borrowing Base are true and correct. BORROWING BASE (All numbers must be taken from the most recent 10-K or 10-Q filed by ADES with the Securities and Exchange Commission.) A. Fixed payments due to Borrower on the AECI Leases B. Balance in A discounted to present value using a discount factor of ten percent (10%) C. Ninety percent (90%) of B D. Current Secured Line Balance E. Excess/(Deficit) Borrowing Base (C minus D) F. One Hundred Fifty Percent (150%) of E G. Current Value of Collateral in which Lender has a first priority security interest ADA-ES, INC., a Colorado corporation By: Name: Title: 8

 
Exhibit D Form of BORROWER CERTIFICATION With Respect to FIRST AMENDMENT AND WAIVER REGARDING 2013 LOAN AND SECURITY AGREEMENT The undersigned, as a duly authorized officer of ADA-ES, INC., a Colorado corporation, in conjunction with the First Amendment and Waiver Regarding 2013 Loan and Security Agreement by and among ADA-ES, INC. (“Borrower”), ADVANCED EMISSIONS SOLUTIONS, INC. and COBIZ Bank, a Colorado corporation, d/b/a Colorado Business Bank (“First Amendment”), hereby certifies to COBIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK that no “Principal” of Borrower has been convicted of, or pled no contest to, a felony under state or federal law (excluding crimes related to traffic or motor vehicle offenses) or to any other crime that requires identification in any registry and/or notification program maintained by any federal or state jurisdiction. For the purpose of this Certification, “Principal” is deemed to include: (a) each Officer of ADA-ES, INC.; (b) each director of ADA-ES, INC.; (c) the five (5) most highly compensated executives and officers of ADA-ES, INC.; and (d) each natural person who is a direct or indirect holder of more than twenty percent (20%) or more of the ownership stock or stock equivalent of ADA-ES, INC. The undersigned Borrower acknowledge that CoBiz Bank, a Colorado corporation, d/b/a Colorado Business Bank is relying upon the truth of the statements set forth in this Borrower Certification to enter into the First Amendment with Borrower. Dated this 2nd day of December 2013. ADA-ES, INC., a Colorado corporation By: Name: Title: 9

 
ADA-ES, INC., a Colorado corporation By: ____________ _ Name: -------------Title: ____________ _ ADV AN CED EMISSIONS SOLUTIONS, INC., a Delaware corporation By: ____________ _ Name: ____________ _ Title: ____________ _ COBIUl'l:AN!K, a Colorado corporation d/b/a COLORADO BUS K 4

 
AD B Y=------.-=----,--.:_+-,......-"'1--r=::;_--.----- N am e : _ ____:.:>::::..!_~__L_!____,_--=--==-:..>._!'....:.-L-<->--...:::....__ Title: __ ___.,;._....;___;__--=----==-------~ C., a COBIZ BANK, a Colorado corporation d/b/a COLORADO BUSINESS BANK By: _______ ______ _ Douglas L. Pogge, Senior Vice President 4

 
2013 LOAN AND SECURITY AGREEMENT BETWEEN AND AMONG ADA-ES, INC., AS BORROWER, ADV AN CED EMISSIONS SOLUTIONS, INC., AS GUARANTOR, AND CO BIZ BANK, A COLORADO CORPORATION, D/B/A COLORADO BUSINESS BANK, AS LENDER DEC-1770697-10

 
TABLE OF CONTENTS ARTICLE I DEFINITIONS ........................................................................................................... 1 1.1 Defined Terms ........................................................................................................ 1 1.2 Accounting Terms ................................................................................................... 6 1.3 Computation of Time Periods ................................................................................. 6 ARTICLE II TERMS OF BORROWING SECURED LINE ......................................................... 6 2.1 Secured Line ........................................................................................................... 6 2.2 Limits on Commitment ........................................................................................... 6 2.3 Promissory Note ...................................................................................................... 6 2.4 Repayment of Principal ........................................................................................... 6 2.5 Interest; Interest Elections ....................................................................................... 6 2.6 Requests for Advances ............................................................................................ 7 2. 7 Collateral ................................................................................................................. 7 2.8 Security Interest ...................................................................................................... 7 2.9 Further Assurances .................................................................................................. 7 2.10 Lien Perfection ........................................................................................................ 8 2.11 Letter of Credit Facility .......................................................................................... 8 2.12 Application of Payments ....................................................................................... 10 2.13 Borrowing Base Deficiencies ............................................................................... 10 ARTICLE III FEES AND PAYMENT CONVENTIONS ........................................................... 10 3 .1 Default Interest. ..................................................................................................... 10 3.2 Promise to Pay Fees .............................................................................................. 10 3.3 Computation oflnterest and Fees ......................................................................... 11 ARTICLE IV CONDITIONS PRECEDENT ............................................................................... 11 4.1 Conditions Precedent to Advances ....................................................................... 11 4.2 Conditions Precedent to All Advances ................................................................. 12 ARTICLE V REPRESENTATIONS AND WARRANTIES ....................................................... 12 5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 5.9 5.10 5.11 5.12 5.13 DEC-1770697-10 Existence ............................................................................................................... 12 Capacity ................................................................................................................ 13 Place of Business .................................................................................................. 13 Financial Condition ............................................................................................... 13 Taxes ..................................................................................................................... 13 Litigation ............................................................................................................... 14 Validity of Loan Documents ................................................................................. 14 No Consent or Filing ............................................................................................. 14 No Violations ........................................................................................................ 14 Contingent Liabilities ............................................................................................ 14 Compliance With Laws ......................................................................................... 14 Licenses, Permits, Etc ........................................................................................... 15 Accurate Information ............................................................................................ 15 1

 
AR TIC LE VI AFFIRMATIVE COVENANTS ........................................................................... 15 6.1 Taxes ..................................................................................................................... 15 6.2 Litigation ............................................................................................................... 15 6.3 Good Standing; Business ...................................................................................... 15 6.4 Compliance with Environmental Laws ................................................................. 16 6.5 Notice of Noncompliance ..................................................................................... 16 6.6 Insurance ............................................................................................................... 16 6.7 Insurance Reports .................................................................................................. 16 6.8 Compliance With Laws and Contractual Obligations .......................................... 17 6.9 Maintenance of Property ....................................................................................... 17 6.10 Licenses, Permits, Etc ........................................................................................... 17 6.11 Financial Information ............................................................................................ 17 6.12 Liquidity Covenant ............................................................................................... 18 6.13 Tangible Equity Covenant .................................................................................... 18 6.14 First Lien on Collateral ......................................................................................... 18 ARTICLE VII NEGATIVE COVENANTS ................................................................................. 19 7 .1 Borrowed Money .................................................................................................. 19 7 .2 Security Interest and Other Encumbrances ........................................................... 19 7 .3 Mergers, Consolidations, Sales or Acquisitions ................................................... 19 7.4 Investments and Advances .................................................................................... 19 7.5 Guaranties Other than Permitted Guaranties ........................................................ 20 7.6 Change of Name or Domicile ............................................................................... 20 7. 7 Disposition of Collateral ....................................................................................... 20 7.8 No Violations ........................................................................................................ 20 7.9 Capitalization ........................................................................................................ 20 ARTICLE VIII DEFAULT AND REMEDIES ............................................................................ 20 8 .1 Default ................................................................................................................... 21 8.2 Remedies ............................................................................................................... 22 8.3 Possession of Collateral; Standard of Care ........................................................... 22 8.4 Lender Appointed Attorney-in-Fact ..................................................................... 22 ARTICLE IX INDEMNIFICATION ........................................................................................... 23 9 .1 Indemnification by Borrower ................................................................................ 23 9 .2 Indemnification Procedure .................................................................................... 23 9.3 Limitation on Indemnification .............................................................................. 24 9.4 Survival ................................................................................................................. 24 ARTICLE X MISCELLANEOUS ............................................................................................... 24 10.1 Expenses ............................................................................................................... 24 10.2 Lender's Consents, Waivers and Amendments .................................................... 24 10.3 Performance Of Borrower's Duties ...................................................................... 24 10.4 Waiver By Borrower ............................................................................................. 24 10.5 Seto ff. .................................................................................................................... 25 10.6 Assignment ........................................................................................................... 25 10.7 Successors and Assigns ......................................................................................... 25 DEC-1770697-10 11

 
10.8 Modification, Waiver ............................................................................................ 25 10.9 Counterparts .......................................................................................................... 25 10.10 Termination ....................................................................................................... 25 10.11 Further Assurances ............................................................................................ 26 10.12 Headings ........................................................................................................... 26 10.13 Cumulative Security Interest, Etc ..................................................................... 26 10.14 Lender's Duties ................................................................................................. 26 10.15 Notices Generally .............................................................................................. 26 10.16 Severability ....................................................................................................... 26 10.17 Inconsistent Provisions ..................................................................................... 27 10.18 Entire Agreement .............................................................................................. 27 10.19 Consent To Jurisdiction .................................................................................... 27 10.20 Jury Trial Waiver .............................................................................................. 27 10.21 No Oral Agreements ......................................................................................... 27 10.22 Release of Claims ............................................................................................. 27 10.23 Applicable Law ................................................................................................. 28 EXHIBIT A FORM OF PROMISSORY NOTE .......................................................................... 29 EXHIBIT B FORM OF PROPOSED BORROWING REQUEST .............................................. 31 EXHIBIT C FORM OF BORROWING BASE CERTIFICATE ................................................. 33 EXHIBIT D FORM OF BORROWER CERTIFICATE .............................................................. 34 EXHIBIT E FORM OF FINANCIAL STATEMENT CERTIFICATION .................................. 35 EXHIBIT F FORM OF COMPLIANCE CERTIFICATE ........................................................... 36 EXHIBIT G FORM OF GUARANTY ......................................................................................... 38 DEC-1770697-10 111

 
2013 LOAN AND SECURITY AGREEMENT This 2013 LOAN AND SECURITY AGREEMENT (as it may be amended, modified, supplemented and restated from time to time, this "Agreement") is made and dated as of September 19, 2013, by and among ADA-ES, INC., a Colorado corporation ("Borrower"), ADV AN CED EMISSIONS SOLUTIONS, INC., a Delaware corporation ("ADES"), and COBIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK ("Lender"). RECITALS A. Borrower and Lender wish to enter into this Agreement whereby Lender will make available to Borrower a secured line of credit in the amount of the Maximum Secured Line upon and subject to the terms and conditions set forth in this Agreement. B. ADES is a publicly traded corporation and owns one hundred percent (100%) of the stock of Borrower. NOW, THEREFORE, in consideration of the premises and of the mutual covenants contained in this Agreement, the parties hereto agree as follows: ARTICLE I DEFINITIONS 1.1 Defined Terms. As used in this Agreement and in the recitals hereto, the following terms shall have the following respective meanings (such terms to be equally applicable to both the singular and plural forms of the terms defined): "Accounts" means all income, revenues, rents, issues and profits, and rights to payment of money to the extent paid, distributed or owed to or acquired by Borrower in accordance with the CCS membership and operating agreements related to: (a) the tax credit income received by CCS for the AECI Leases; (b) the rent payments made by Goldman Sach's Affiliate, GS RC Investments LLC ("GS RC") to AEC-NM, LLC and AEC-TH, LLC pursuant to the AECI Leases; and (c) the guaranty dated March 8, 2013 from The Goldman Sachs Group, Inc. to each of AEC-NM, LLC and AEC-TH, LLC (the "GS Guaranty"), whether now existing or hereafter arising. "Advances" means advances of funds from Lender to Borrower pursuant to the terms of this Agreement. "ADES" is defined in the preface hereof. "ADES Guaranty" means the guaranty of Borrower's obligations hereunder provided by ADES in the form of Exhibit G attached hereto. DEC-1770697-10 1

 
"AEC-NM, LLC" means the Colorado limited liability company wholly owned by CCS. AEC-NM, LLC owns and leases the equipment comprising the refined coal production facility operating at the New Madrid Power Plant owned by Associated Electric Cooperative, Inc. "AEC-TH, LLC" means the Colorado limited liability company wholly owned by CCS. AEC-TH, LLC owns and leases the equipment comprising the refined coal production facility operating at the Thomas Hill Power Plant owned by Associated Electric Cooperative, Inc. "AECI Leases" means the rights and responsibilities of the parties to the NM Lease, the NM Exchange Agreement, the TH Lease and the TH Exchange Agreement as set forth therein including the obligations of the parties to pay costs and the right to receive tax credit revenue and rental payments in accordance with those Agreements. "Affiliate" means with respect to Borrower, CCS (including CCS subsidiaries) and CCSS, BCSI, LLC, and any Person controlling Borrower, controlled by Borrower or under common control with Borrower. "Borrower" is defined in the initial paragraph hereof. "Agreement" is defined in the Preface hereof. "Authorized Signer" means, with respect to Borrower, one of Michael D. Durham, Mark McKinnies, C. Jean Bustard, and Jonathan Lagarenne and such other Persons each of whom shall be designated from time to time in a writing delivered to Lender by any Authorized Signer; and with respect to Lender, any vice president or any assistant vice president of Lender. "Base Rate" means the Prime Rate plus one percent ( 1 % ), but never less than five (5.00%). "BCSI, LLC" is a one hundred percent (100%) owned subsidiary of ADES. "Borrowing Base" means, as of any date, the sum of: (a) ninety percent (90%) of the net present value, applying a ten percent ( 10%) discount rate, of the fixed payments due to Borrower by CCS as the result of the AECI Leases; and (b) eighty percent (80%) of the net present value, applying a ten percent (10%) discount rate, of the contingent payments due to Borrower by CCS as the result of the AECI Leases with the expected amount calculated as shown on the Borrower Base Certificate last delivered to Lender by Borrower. "Borrowing Base Certificate" means a certificate or certificates showing the calculation of the Borrowing Base executed by an Authorized Signer in the form attached hereto as Exhibit C, or such other form or forms as may be mutually agreed upon by Lender and Borrower from time to time. DEC-1770697-10 2

 
"Borrowing Base Deficiency" means, as of any date, the amount, if any, by which the Borrowing Base as of such date is less than the Secured Line Balance as of such date. "Borrower" is defined in the Preface hereof. "Business Day" means a day, other than a Saturday, Sunday or other day, on which banks are open for business in New York, New York. "CCS" is defined as Clean Coal Solutions, LLC, a Colorado limited liability company, of which Borrower owns forty two and one half percent (42.5%) of the membership interests. "CCSS" is defined as Clean Coal Solutions Services, LLC, a Colorado limited liability company, of which Borrower owns fifty percent (50%) of the membership interests. "Claim" is defined in Section 9.2 hereof. "Collateral" is defined in Section 2.8 hereof. "Default Rate" means a rate of interest per annum that shall be for ten (10) percentage points above the Base Rate then in effect. "Event of Default" means any one or more of the events described in Section 8.1 hereof. "GAAP" means those financial accounting principles generally accepted in the United States of America. "GS RC" is defined in the definition of "Accounts". "GS Guaranty" is defined in the definition of "Accounts". "Indebtedness" means all outstanding amounts evidenced by the Promissory Note, secured by the Security Interests described in Section 2.8 hereof, together with all other amounts due, or which may become due, including but not limited to interest, under this Agreement or any of the Loan Documents. "Indemnified Liabilities" is defined in Paragraph 9 .1 hereof. "Indemnified Parties" is defined in Section 9.1 hereof. "Interest Payment Date" shall mean the first (1st) day of each month, or the first Business Day immediately thereafter, beginning on October 20, 2013. "Lender" is defined in the Preface hereof. "Lender Parties" is defined in Section 10.22 hereof. "Loan Documents" means this Agreement, the Promissory Note, and all other agreements and documents, now or hereafter required to be executed by Borrower or ADES in favor of Lender and related to the Secured Line. DEC-1770697-10 3

 
"Material Adverse Effect" means any event that has materially adversely affected: (a) the financial condition or business operations of Borrower; (b) the validity or enforceability of any material portion of the Collateral or Loan Documents; or (c) the ability of Borrower to perform its material obligations under this Agreement. "Maximum Secured Line" is defined in Section 2.1 hereof. "NM Lease" means the Amended and Restated Equipment Lease (New Madrid) between GS RC and AEC-NM, LLC dated March 8, 2013. "NM Exchange Agreement" means the Exchange Agreement dated as of November 21, 2011, as amended on March 8, 2013, between CCS, AEC-NM, LLC and GS RC. "Obligations" means all Advances, debts, liabilities, obligations, covenants and duties owing, arising, due or payable from Borrower to Lender of any kind or nature, present or future, whether or not evidenced by any note, guaranty or other instrument, that arise under this Agreement or any of the other Loan Documents, whether direct or indirect (including those acquired by assignment), absolute or contingent, primary or secondary, due or to become due, now existing or hereafter arising and however evidenced or acquired. The term includes, without limitation, all principal, interest, any other sums chargeable to Borrower under any of the Loan Documents, and all costs and expenses of any kind and nature incurred by Lender in the administration or enforcement of this Agreement or any of the other Loan Documents, including, without limitation, all attorneys' fees, consultants' fees, appraisal fees and costs, receivers' fees, and all costs and expenses incurred by Lender in protecting its interest in any Collateral. "Permitted Guaranties" means: (a) Borrower's Limited Guaranty dated November 21, 2011 with regard to the obligations of AEC-NM, LLC; (b) Borrower's Limited Guaranty dated December 15, 2011 with regard to the obligations of AEC-TH, LLC; (each of (a) and (b) is a continuing Borrower obligation in support of the AECI Leases), and include any amendments, extensions or replacements thereto ,provided that Borrower has furnished Lender with a copy of each such amendment, extension or replacements; (c) Each of Borrower's Guaranty Agreements dated August 30, 2012 with regard to Borrower Affiliate, BCSI, LLC's, obligations under the each of the Goodwill Promissory Note and the Non-Compete Promissory Note both dated August 30, 2012 and payable to William R. Caputo, including any amendments, extensions or replacements thereto, provided that Borrower furnishes Lender with a copy of each amendment, extension or replacement thereto; and DEC-1770697-10 4

 
( d) any other agreements of Borrower to guarantee the obligations of a Borrower Affiliate in the ordinary course of that Borrower Affiliate's business provided that Borrower has furnished Lender with a copy of each such agreement and any amendments, extensions or replacements thereto. "Person" means any natural person, corporation, partnership, corporation, joint venture, firm, association, trust, unincorporated organization, government or governmental agency or political subdivision or any other entity, whether acting in an individual, fiduciary or other capacity. "Potential Default" means any one or more of the events described in Section 8.1 hereof which but for the giving of notice or passage of time or both would be an Event of Default. "Prime Rate" means the rate of interest per annum which is most recently announced by the Wall Street Journal as the "prime lending rate,'' which may be a rate at, above or below the rate or rates at which Lender lends to other Persons and is not necessarily the lowest rate charged by Lender on commercial loans. For purposes of determining any interest rate hereunder or under the Promissory Note which is based on the Prime Rate, such interest rate shall change as, when and on the calendar day on which the Prime Rate changes. "Promissory Note" is defined in Section 2.3 hereof. "Secured Line" is defined in Section 2.1 hereof. "Secured Line Balance" means, as of any date, the outstanding principal balance of the Secured Line as of such date. "Secured Line Termination Date" means September 20, 2014, or such earlier date as may occur pursuant to Section 8.2 hereof. "Security Interests" is defined in Section 2.8 hereof. "Settlement Agreements" is defined in Section 5.6 hereof. "TH Lease" means the Amended and Restated Equipment Lease (Thomas Hill) between GS RC and AEC-TH, LLC dated March 8, 2013. "TH Exchange Agreement" means the Exchange Agreement dated as of December 15, 2011 and amended on March 8, 2013 between CCS, AEC-NM, LLC and GS RC. "Trigger Date" means that date which is ten (10) Business Days after the date Borrower submits a Borrowing Base Certificate to Lender which indicates that there is a Borrowing Base Deficiency. "UCC" means the Uniform Commercial Code as adopted in the State of Colorado from time to time. DEC-1770697-10 5

 
1.2 Accounting Terms. All accounting terms not specifically defined herein shall be construed in accordance with GAAP. 1.3 Computation of Time Periods. Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to later specified date the word "from" means "from and including" and the words "to" and "until" mean "to but excluding." ARTICLE II TERMS OF BORROWING SECURED LINE 2.1 Secured Line. (a) Subject to the following terms, conditions and limitations, Lender agrees to make available to Borrower a line of credit (the "Secured Line") in the maximum aggregate principal amount of Ten Million and Noll 00 Dollars ($10,000.000.00) (the "Maximum Secured Line"). (b) The aggregate outstanding principal balances of all Advances hereunder may not exceed the Maximum Secured Line. ( c) Amounts borrowed under the Secured Line may be repaid prior to the Secured Line Termination Date without penalty. ( d) Borrower shall be permitted to reborrow hereunder. 2.2 Limits on Commitment. Lender's commitment to make Advances hereunder is subject to the conditions in Article IV below and the following limitations: (a) Lender's commitment to lend hereunder shall terminate on the Secured Line Termination Date; and (b) Lender shall not be obligated to make any Advance if an Event of Default or a Potential Default has occurred and has not been cured by Borrower or waived by Lender. 2.3 Promissory Note. Borrower's indebtedness to Lender for amounts borrowed under the Secured Line and for interest accrued thereon shall be evidenced by and be payable according to the terms of Borrower's promissory note to Lender, in the form attached hereto as Exhibit A, in the principal amount of the Maximum Secured Line (the "Promissory Note") and any extensions or renewals thereof. 2.4 Repayment of Principal. Borrower agrees to repay all Advances made hereunder in accordance with the terms hereof. The Secured Line Balance will be due and payable in full on the Secured Line Termination Date, subject to acceleration in accordance with Section 8.2(b ). 2.5 Interest; Interest Elections. Interest will accrue on the daily outstanding Secured Line Balance at a rate per annum equal at all times to the Base Rate in effect from time to time, which will change when and as the Base Rate changes. Borrower agree to pay interest: DEC-1770697-10 6

 
(a) on that portion of the Secured Line Balance accruing at the Base Rate in arrears monthly and from time to time on each Interest Payment Date (and with respect to the Interest Payment Date which is October 20, 2013, all interest accrued from the date of the first Advance through that Interest Payment Date); (b) on the Secured Line Termination Date; and (c) on demand after such Secured Line Termination Date. 2.6 Requests for Advances. Borrower shall request an Advance hereunder not later than 12:00 p.m. Denver, Colorado time on the date (which shall be a Business Day) such Advance is to be made. Each such request shall be effective upon receipt by Lender, shall be in writing in the form attached as Exhibit B hereto as a Borrowing Notice (which shall include a Borrowing Base Certificate), and shall be given by: (a) an Authorized Signer; or (b) a Person whom Lender reasonably believes to be an Authorized Signer or a designated agent. Each such notice of borrowing shall be irrevocable and shall be deemed a representation by Borrower that all conditions precedent to such borrowing have been satisfied. 2.7 Collateral. The repayment of all of Borrower's indebtedness to Lender under the Secured Line shall be secured by first priority security interests (the "Security Interests") in all of Borrower's rights in or to the Collateral. 2.8 Security Interest. As security for the payment of the Obligations, now existing or in the future incurred, and including any extensions or renewals or changes in form of the Secured Line, and all costs and expenses of collection, including, without limitation, attorneys' fees, Borrower hereby grants to Lender a Security Interest in and a lien upon the assets of Borrower listed below in, to, or under which Borrower now has or hereafter acquires any right, title or interest, whether present, future, or contingent (collectively, the "Collateral"),as follows:: (a) All of Borrower's Accounts; (b) All contracts, agreements, leases, and other documents associated with the AECI Leases to the extent they evidence the Accounts ; ( c) The GS Guaranty to the extent it relates to the Accounts; and ( d) All proceeds, products, replacements, or substitutions of any of the foregoing, in any form, including all proceeds received, due or to become due from any sale, exchange or other disposition thereof, whether such proceeds are cash or non-cash in nature, and whether represented by checks, drafts, promissory note or other instruments for the payment of money. Borrower shall report on the amount of Collateral on each Borrowing Base Certificate. 2.9 Further Assurances. At Lender's request, Borrower shall also promptly execute or cause to be executed and shall deliver to Lender any additional documents, instruments and agreements deemed necessary by Lender to give effect to or carry out the terms or intent of Section 2.8 hereof or any other provision of the Loan Documents. Without limiting the DEC-1770697-10 7

 
foregoing, Borrower shall execute, for the benefit of Lender, such security agreements as Lender may require with respect to the security interest granted in Section 2.8 hereof. 2.10 Lien Perfection. Borrower acknowledge that Lender shall file and/or record such UCC financing statements and other documents Lender requires in order to perfect Lender's lien upon any of the Collateral and shall take such other action as may be required to perfect or to continue the perfection of Lender's lien upon the Collateral. Borrower authorizes Lender to file any such financing statements. Borrower agrees to take whatever actions are requested by Lender to perfect and continue Lender's security interest in the Collateral. Upon request of Lender, Borrower will deliver to Lender any and all of the documents evidencing or constituting the Collateral, and Borrower will note Lender's interest upon any and all chattel paper and instruments not delivered to Lender for possession by Lender. When the Indebtedness has been paid in full after the Agreement has been terminated, Lender shall release all liens upon the Collateral and shall file and/or record such documents as are required to evidence such release in a timely manner and provide Borrower with evidence of such release. 2.11 Letter of Credit Facility. (a) Subject to the terms and conditions of this Agreement and the other Loan Documents, the Secured Line may be utilized, upon request of Borrower, in addition to the Advances, for the issuance of Letters of Credit by Lender provided, however, that in no event shall: (i) the aggregate amount of the Letters of Credit, plus the aggregate principal amount of all Advances then outstanding, exceed at any time the Borrower Base; (ii) the expiration date of any Letter of Credit extend beyond the Maturity Date; (iii) Lender be obligated to issue any Letter of Credit at any time while there then exists and is continuing any Default or Event of Default; nor (iv) any Letter of Credit be issued in a currency other than United States Dollars nor at a tenor other than sight. (b) Whenever Borrower requires the issuance of a Letter of Credit Borrower shall give Lender at least three (3) Business Days' written notice. The Letter of Credit request shall be accompanied by documentation describing in reasonable detail the proposed terms, conditions and format of the Letter of Credit to be issued, and the Letter of Credit request shall be accompanied by Lender's form of application. If there is any conflict between the terms and provisions of the Agreement and the terms and conditions of any application, the terms and conditions of this Agreement shall govern and control. ( c) The fee for Letters of Credit issued by Lender in the ordinary course of Borrower's business shall be two percent (2.00%) of the face amount of each Letter of Credit per year. If a Letter of Credit is issued by another bank, at Lender's arrangement, DEC-1770697-10 8

 
the fee for any such third party bank Letters of Credit shall be two and one half percent (2.50%) of the face amount of each Letter of Credit per year. ( d) On each date during the period commencing with the issuance by Lender of a Letter of Credit and until that Letter of Credit shall have expired or been terminated, the Loan shall be deemed to be utilized for all purposes hereof in an amount equal to the principal face amount of the Letter of Credit (after reductions for any payments or reimbursements made by Borrower to Lender under the Letter of Credit following any drawings by any beneficiary under the Letter of Credit), it being understood that no such drawings under the Letter of Credit shall have the effect of increasing the principal amount advanced on the Loan beyond the principal face amount of the Letter of Credit. ( e) In the event Lender has determined to honor a drawing under a Letter of Credit, Lender shall promptly notify Borrower of the amount paid by Lender and the date on which such payment is to be made to such beneficiary. Borrower hereby unconditionally agrees to pay and reimburse Lender for the amount of payment under the Letter of Credit, together with interest thereon at a rate per annum equal to the Base Rate in effect from time to time, anything in this Agreement or the other Loan Documents to the contrary notwithstanding, from the date payment was made to such beneficiary to the date on which payment is due to Lender, such payment to be made to Lender no later than the first Business Day after the date on which Borrower receives such notice from Lender. Any payment due from Borrower with respect to the Letter of Credit not paid on the required date shall thereafter bear interest at the Default Rate. (f) Notwithstanding the foregoing, Lender shall not be under any obligation to issue any Letter of Credit if at the time of such issuance, any order, judgment or decree of any governmental authority or agency or arbitrator shall purport by its terms to enjoin a restraining Lender from issuing a Letter of Credit or any statute, law, rule, regulation or other legal requirement applicable to Lender or any request or directive (whether or not having the force of law) from any such governmental authority or agency shall prohibit the issuance ofletters of credit generally or the Letter of Credit in particular or shall impose upon Lender with respect to the Letter of Credit any restriction or reserve or capital requirement (for which Lender is not otherwise compensated) not in effect on the date of closing of the Loan. (g) The obligations of Borrower under this Agreement and any other Loan Documents to reimburse Lender for drawing under a Letter of Credit, and to repay any drawing under a Letter of Credit shall be unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Loan Agreement and each other Loan Document and regardless of any and all circumstances, including the following: (i) any lack of validity or enforceability of this Agreement or any other Loan Document; (ii) the existence of any claims, setoff, defense or other right that Borrower may have at any time against any beneficiary or transferee of any Letter of Credit (or any person for whom any such beneficiary or such transferee may be acting), Lender or any other person, whether in connection with this Loan Agreement, the transactions contemplated hereby, or by the Loan Documents or any unrelated transaction; (iii) any draft, demand, certificate or other document presented under any Letter of Credit proving to be forged, fraudulent, invalid DEC-1770697-10 9

 
or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make the drawing under any Letter of Credit; or any defense based upon the failure of any drawing under a Letter of Credit to confonn to the terms of the Letter of Credit or any non-application or misapplication by the beneficiary of the proceeds of such drawing; or (iv) any other circumstance happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge from, Borrower. To the extent that any provision of any Letter of Credit is inconsistent with the provisions of this Section, the provisions of this Section shall govern and control. (h) If any Letter of Credit is issued with an expiration date which is later than the Secured Line Termination Date, then this Agreement will remain in full force and effect as to all amounts outstanding hereunder including the amount of any outstanding Letter of Credit until the Indebtedness has been paid in full. 2.12 Application of Payments. Payments made by Borrower shall be applied in the following priority and amounts: (a) to Lender, for payment of fees and expenses then due and owing under this Agreement; (b) to Lender for payment of interest accrued under this Agreement; ( c) to Lender, an amount necessary to repay the outstanding Advances, until all outstanding Advances are reduced to zero ($0.00); and ( d) any remaining funds to Borrower, which funds shall be automatically released from, and free from, the liens created hereunder or under any Loan Document and as to which Lender shall have no claim. 2.13 Borrowing Base Deficiencies. Whenever a Borrowing Base Deficiency exists, Borrower shall repay such amount as shall be sufficient to eliminate such Borrowing Base Deficiency and in any event such delivery or repayment shall be made within ten (10) Business Days after any Trigger Date that evidences a Borrowing Base Deficiency. ARTICLE III FEES AND PAYMENT CONVENTIONS 3 .1 Default Interest. Notwithstanding the rates of interest specified herein and the payment dates specified herein, effective immediately upon the occurrence and during the continuance of any Event of Default and upon receipt of notice from Lender thereof, the principal balance of all outstanding Advances hereunder shall bear interest payable upon demand at the Default Rate. 3.2 Promise to Pay Fees. Borrower shall pay Lender, on or before execution of this Agreement a loan origination fee of One Hundred Thousand and no/100 Dollars ($100,000.00). DEC-1770697-10 10

 
3.3 Computation oflnterest and Fees. Interest and fees shall be computed on the basis of the actual number of days elapsed in the period during which interest or fees accrue and a year of three hundred sixty (360) days. Notwithstanding any of the terms and conditions contained in this Paragraph, interest in respect of the Secured Line Balance shall not exceed the maximum rate permitted by applicable law. ARTICLE IV CONDITIONS PRECEDENT 4.1 Conditions Precedent to Advances. The obligation of Lender to make the Advances is subject to the condition precedent that Lender shall have received on or before the day of the first Advance the following in form and substance reasonably satisfactory to Lender: (a) the Promissory Note and such Loan Documents as may be specified by Lender, each duly executed by Borrower or ADES, as applicable, including, UCC-1 financing statements, naming Borrower as the debtor, suitable for filing in Colorado, and such other similar instruments or documents as in the reasonable opinion of Lender may be necessary under applicable law to perfect Lender's lien on the Collateral, pledged hereunder; (b) copies of the articles of incorporation, bylaws and any shareholder agreements of Borrower and ADES, each certified by an Authorized Signer to be a true and correct copy thereof, including all amendments thereto, if any; (c) certified copies of the resolutions of Borrower and ADES approving this Agreement, the Promissory Note and the Loan Documents and the transactions contemplated thereby, and all other necessary action and governmental approvals, if any, with respect to this Agreement, the Promissory Note and the Loan Documents shall have been taken, each certified by an Authorized Signer to be a true and correct copy thereof; ( d) a certificate of an Authorized Signer certifying the names and true signatures of the Persons authorized on Borrower's and ADES' behalf to sign this Agreement, the Promissory Note and the Loan Documents; ( e) a certificate of the Secretary of State of the State of Colorado certifying that Borrower is a corporation duly organized and in good standing under the laws of Colorado; (f) a certificate of the Secretary of State of the State of Delaware certifying that ADES is a corporation duly organized and in good standing under the laws of Delaware; (g) a Borrowing Base Certificate in the form of Exhibit C attached hereto; and (h) Borrower shall execute and deliver to Lender the Certificate in the form of Exhibit D attached hereto. DEC-1770697-10 11

 
(i) ADES shall execute and deliver to Lender the ADES Guaranty in the form of Exhibit G attached hereto. 4.2 Conditions Precedent to All Advances. The obligation of Lender to make each Advance shall be subject to the further conditions precedent that on the date of such Advance: (a) Lender shall have received a Borrowing Notice; (b) Lender shall have received a Borrowing Base Certificate, if no Borrowing Base Certificate has been delivered to the Lender in the preceding thirty (30) days; ( c) the following statements shall be true: (i) the representations and warranties contained in Article V hereof are correct in all material respects on and as of the date of such Advance as though made on and as of such date (unless any such representation or warranty relates to a different date); (ii) there has been no material adverse change in any Borrower's financial condition since the date of the most recent statements delivered to Lender pursuant to Paragraph 6.11 hereof; (iii) no event has occurred and is continuing, or would result from such Advance, which constitutes an Event of Default or Potential Default. (iv) Borrower has provided Lender with a certificate of an Authorized Signer stating the foregoing; ( d) Lender shall have received such other approvals, opinions or documents as Lender may reasonably request; and ( e) Lender's legal counsel is reasonably satisfied as to all legal matters incident to the making of such Advance. ARTICLE V REPRESENTATIONS AND WARRANTIES To induce Lender to enter into this Agreement, make available the Secured Line and make Advances to Borrower from time to time as herein provided, Borrower represents and warrants as follows: 5.1 Existence. Borrower is duly organized and existing and in good standing under the laws of the jurisdiction of its incorporation or formation and is duly licensed or qualified to do business and in good standing in every state in which the nature of its business or ownership of its property requires such licensing or qualification where failure to do so would have a Material Adverse Effect. Borrower is organized in Colorado and its organizational identification number is 19971016855. ADES is duly organized and existing and in good standing under the laws of the jurisdiction of its incorporation or formation and is duly licensed or qualified to do DEC-1770697-10 12

 
business and in good standing in every state in which the nature of its business or ownership of its property requires such licensing or qualification where failure to do so would have a Material Adverse Effect. ADES is organized in Delaware and its organizational identification number is 4926747. 5.2 Capacity. The execution, delivery, and performance of the Loan Documents to which Borrower is a party are within Borrower's corporate or other organizational powers, have been duly authorized by all necessary and appropriate corporate or other organizational action, and are not in contravention of any law or the terms of Borrower's articles of incorporation, bylaws or other organizational documents or any amendment thereto, or of any material indenture, agreement, undertaking, or other document to which Borrower is a party or by which Borrower's material property is bound or affected. The execution, delivery, and performance of the Loan Documents to which ADES is a party are within ADES 's corporate or other organizational powers, have been duly authorized by all necessary and appropriate corporate or other organizational action, and are not in contravention of any law or the terms of ADES's articles of incorporation, bylaws or other organizational documents or any amendment thereto, or of any material indenture, agreement, undertaking, or other document to which ADES is a party or by which ADES's material property is bound or affected. 5.3 Place of Business. (a) Borrower is engaged in business operations which are in whole, or in part, carried on at the address specified on the signature pages to this Agreement; (b) if Borrower has more than one place of business, its chief executive office is at the address specified as such on the signature pages to this Agreement; and (c) Borrower's records concerning the Collateral are kept at the address or addresses specified on the signature pages to this Agreement except that Borrower may keep non-current records concerning the Collateral in off-site storage. 5.4 Financial Condition. All financial statements concerning Borrower or ADES, which have been or will hereafter be furnished to Lender, have been or will be prepared in conformity with GAAP consistently applied (except as disclosed therein) and do or will present fairly in all material respects the financial condition of the entities (in the case of ADES, the consolidated entities) covered thereby as of the dates thereof and the results of their operations for the periods then ended, it being understood that all interim financial statements are subject to year-end adjustments and are not required to have footnote disclosures. 5.5 Taxes. All federal and other tax returns required to be filed by Borrower have been filed, are true, complete and correct, and all taxes required by such returns to be paid have been paid when due (except with respect to such taxes where the validity is being contested in good faith, and by appropriate proceedings diligently conducted, and adequate reserves for the payment thereof have been established). Neither Borrower nor ADES have received any notice from the Internal Revenue Service or any other taxing authority proposing additional taxes. Neither Borrower nor ADES are the subject of any review or audit by the Internal Revenue Service or any governmental investigation concerning the violation or possible violation of any DEC-1770697-10 13

 
law, except to the extent that such review or audit could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. 5.6 Litigation. Other than the arbitration award issued on April 8, 2011 in favor of Norit Americas, Inc. and Norit International, N.V., and the related subsequent confidential settlement agreement dated August 29, 2011 and indemnity settlement agreement dated November 28, 2011, the material terms of which have been disclosed to Lender ("Settlement Agreements"), there are no actions, suits, proceedings, or investigations pending or, to the knowledge of Borrower or ADES, threatened against Borrower which, if adversely determined, would, in any case or in the aggregate, have a Material Adverse Effect. 5.7 Validity of Loan Documents. The Loan Documents constitute the legal, valid, and binding obligations of Borrower and ADES enforceable in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy and insolvency laws, laws affecting creditors' rights generally or general principles of equity. 5.8 No Consent or Filing. No consent, license, approval, or authorization of, or registration, declaration, or filing with, any court, governmental body or authority, or other Person or entity, where the absence of which would have a Material Adverse Effect, is required in connection with the valid execution, delivery, or performance of the Loan Documents or for the conduct of Borrower's business as now conducted, other than filings and recordings to perfect security interests in or liens on the Collateral in connection with the Loan Documents. 5.9 No Violations. Borrower is not in violation of any term of its organizational documents or of any material mortgage, borrowing agreement, or other instrument or agreement pertaining to indebtedness for borrowed money. Borrower is not in violation of any term of any other indenture, instrument, or agreement to which it is a party or by which it or its property may be bound, resulting in, or which would have a Material Adverse Effect. Borrower is not in violation of any order, writ, judgment, injunction, or decree of any court of competent jurisdiction or of any statute, rule, or regulation of any governmental authority that would have a Material Adverse Effect. The execution and delivery of the Loan Documents and the performance of all of the same will not result in the creation of any mortgage, lien, security interest, charge, or encumbrance upon the Accounts of Borrower except in favor of Lender. To Borrower's knowledge, there exists no other fact or circumstance (whether or not disclosed in the Loan Documents) related to Borrower or Borrower's business, other than any adverse change in financial, banking or economic conditions generally, which would have a Material Adverse Effect. 5 .10 Contingent Liabilities. There are no suretyship agreements, guaranties, or other contingent liabilities of Borrower which are not: (a) disclosed by the financial statements described in Paragraph 6.11 hereof; or (b) Permitted Guaranties. 5.11 Compliance With Laws. Borrower is in compliance with all applicable laws, rules, regulations, and other legal requirements with respect to its business except where the failure to comply would not, individually or in the aggregate, have a Material Adverse Effect. DEC-1770697-10 14

 
5.12 Licenses, Pennits, Etc. Each franchise, grant, approval, authorization, license, permit, easement, consent, certificate, and order of and registration, declaration, and filing with, any court, governmental body or authority, or other Person or entity required for or in connection with the conduct of Borrower's business as now conducted is in full force and effect, except where the failure to comply would not have a Material Adverse Effect. 5.13 Accurate Information. All information (other than projections) heretofore, herein or hereafter supplied to Lender by or on behalf of Borrower with respect to the Collateral is and will be, when taken as a whole, accurate and complete in all material respects. ARTICLE VI AFFIRMATIVE COVENANTS So long as any part of the Indebtedness remains unpaid, or this Agreement remains in effect, Borrower shall comply with the covenants contained elsewhere in this Agreement, and with the covenants listed below: 6.1 Taxes. Borrower shall promptly pay and discharge all of its taxes, assessments, and other governmental charges prior to the date on which penalties are attached thereto, establish adequate reserves for the payment of such taxes, assessments, and other governmental charges, make all required withholding and other tax deposits, and, upon reasonable request, provide Lender with receipts or other proof that such taxes, assessments, and other governmental charges have been paid in a timely fashion; provided, however, that nothing contained herein shall require the payment of any tax, assessment, or other governmental charge so long as its validity is being contested in good faith, and by appropriate proceedings diligently conducted, and adequate reserves for the payment thereof have been established. 6.2 Litigation. Borrower shall: (a) Promptly notify Lender in writing of any litigation, proceeding, or counterclaim against Borrower if: (i) the outcome of such litigation, proceeding, counterclaim, or investigation will materially and adversely affect the finances or operations of Borrower or title to, or the value of, any Collateral; or (ii) such litigation, proceeding, counterclaim, or investigation questions the validity of any Loan Document. (b) Furnish to Lender such information regarding any such litigation, proceeding, counterclaim, or investigation as Lender shall reasonably request. 6.3 Good Standing; Business. Borrower shall: (a) Take all necessary steps to preserve Borrower's existence and its right to conduct business in all states in which the nature of its business or ownership of its property requires such qualification except where failure to do so would not have a Material Adverse Effect. DEC-1770697-10 15

 
(b) Engage in only the same industry as such business is conducted by Borrower on the date of this Agreement, and other business reasonably related thereto. 6.4 Compliance with Environmental Laws. Borrower shall: (a) Comply with all environmental laws in all material respects. (b) Not suffer, cause, or permit the disposal of hazardous substances at any property owned, leased, or operated by it, unless such action would not have a Material Adverse Effect. (c) Promptly, upon Borrower's receipt of knowledge thereof, notify Lender in the event of the disposal of any hazardous substance at any property owned, leased, or operated by Borrower, or in the event of any release, or threatened release, of a hazardous substance, from any such property, unless such action would not have a Material Adverse Effect. ( d) Provide, at Lender's reasonable request and at Borrower's expense, updated environmental questionnaires and/or environmental reports concerning any property owned, leased, or operated by Borrower. (e) Deliver promptly to Lender: (i) copies of any documents received from the United States Environmental Protection Agency or any state, county, or municipal environmental or health agency concerning Borrower's operations; and (ii) copies of any documents submitted by Borrower to the United States Environmental Protection Agency or any state, county, or municipal environmental or health agency concerning its operations. 6.5 Notice of Noncompliance. Borrower shall notify Lender in writing of any action or failure to act by Borrower that to Borrower's knowledge, would have to be disclosed as a matter of noncompliance by Borrower on the next Compliance Certificate. 6.6 Insurance. Maintain fire and other risk insurance, public liability insurance, and such other insurance as Lender may require with respect to Borrower's properties and operations, in form, amounts, and coverages and with insurance companies acceptable to Lender. Borrower, upon request of Lender, will deliver to Lender from time to time the policies or certificates of insurance in form satisfactory to Lender, including stipulations that coverages will not be cancelled or diminished without at least ten (10) days prior written notice to Lender. Each insurance policy also shall include an endorsement providing that written notice requirements in favor of Lender will not be impaired in any way by any act, omission or default of Borrower or any other person. 6.7 Insurance Reports. Furnish to Lender, upon request of Lender, reports on each existing insurance policy showing such information as Lender may reasonably request, including, without limitation, the following: (a) the name of the insurer; (b) the risks insured; ( c) DEC-1770697-10 16

 
the amount of the policy; (d) the properties insured; (e) the then current property values on the basis of which insurance has been obtained, and the manner of determining those values; and (f) the expiration date of the policy. 6.8 Compliance With Laws and Contractual Obligations. Borrower shall comply with all applicable laws, rules, regulations, and other legal requirements with respect to its business and the use, maintenance, and operation of the real and personal property owned or leased by it in the conduct of its business, except where failure to do so would not have a Material Adverse Effect. Borrower shall comply with the obligations, covenants and conditions contained in all of its contractual obligations, except where failure to do so would not have a Material Adverse Effect. 6.9 Maintenance of Property. Borrower shall maintain its property, including, without limitation, the Collateral, in good condition, working order and repair (normal wear and tear excepted) and shall prevent the Collateral, or any part thereof, from being or becoming an accession to other goods not constituting Collateral. 6.10 Licenses, Permits, Etc. Borrower will maintain in full force and effect each franchise, grant, approval, authorization, license, permit, easement, consent, certificate, and order of and registration, declaration, and filing with, any court, governmental body or authority, or other Person or entity required for or in connection with the conduct of Borrower's business as now conducted. 6.11 Financial Information. Borrower shall furnish, or cause to be furnished, to Lender: (a) Annual Financial Statements. As soon as available and in any event within seventy (70) days after the end of Borrower's fiscal year or thirty (30) days after ADES has made is filings with the Securities and Exchange Commission, financial statements of Borrower as of the end of such fiscal year, fairly presenting in all material respects Borrower's financial position, respectively, as of such date, which statements shall consist of a balance sheet and related statements of income, retained earnings, and cash flow covering the period of Borrower's immediately preceding fiscal year, all in such detail as Lender may reasonably request, and which financial statements shall be prepared by Borrower and shall be certified to be correct by the president or chief financial officer of Borrower in the form of Exhibit E attached hereto. (b) Compliance Certificates. As soon as available and in any event within forty ( 40) days after the end of each calendar quarter, a compliance certificate executed by the president or chief financial officer of Borrower in the form of Exhibit F attached hereto and made a part hereof. (c) Quarterly Financial Statements. As soon as available and in any event within forty ( 40) days after the end of each calendar quarter, financial statements of Borrower as of the end of such quarter, fairly presenting in all material respects Borrower's position and results of operations, respectively, as of such date, which statements shall consist of a balance sheet and related statements of income, retained DEC-1770697-10 17

 
earnings, and cash flow covering the period of Borrower's immediately preceding fiscal year, all in such detail as Lender may reasonably request, and which financial statements shall be prepared by Borrower and shall be certified to be correct by the president or chief financial officer of Borrower in the form of Exhibit E attached hereto. ( d) Borrowing Base. As soon as available and in any event within forty ( 40) days after the end of each calendar quarter, provided that the balance outstanding hereunder is greater than zero dollars ($0.00), a Borrowing Base Certificate executed by the president or chief financial officer of Borrower in the form attached hereto as Exhibit C and made a part hereof. ( e) Form 10-K and 10-Q Filings. As soon as available and in any event within thirty (30) days after ADES has made such filings with the Securities and Exchange Commission, ADES will provide Lender with copies of its Form 10-K and 10- Q Filings. (f) Other Information. Such additional information as Lender may from time to time reasonably request regarding the financial and business affairs of Borrower. (g) Financial Condition. All financial statements concerning Borrower, which have been or will hereafter be furnished to Lender have been or shall be prepared in accordance with GAAP consistently applied (except as disclosed therein) and do or will present fairly in all material respects the financial condition of the entities covered thereby as at the dates thereof and the results of their operations for the periods then ended. All interim financial statements prepared and provided by Borrower will present fairly in all material respects the financial condition of the entities covered thereby, subject to GAAP and year-end adjustments and footnote disclosures to be included in the audited financial statements. 6.12 Liquidity Covenant. ADES shall maintain a minimum liquidity, calculated as set forth on Exhibit F attached hereto, of the greater of: (a) Six Million and No/100 Dollars ($6,000,000.00); or (b) eighty percent (80%) of the amount outstanding under the Secured Line, measured quarterly at the end of each calendar quarter. 6.13 Tangible Equity Covenant. ADES shall maintain a minimum tangible equity, calculated as set forth on Exhibit F attached hereto, of not less than Thirteen Million Five Hundred Thousand and no/100 Dollars ($13,500,000.00), measured quarterly as of the end of each calendar quarter. 6.14 First Lien on Collateral. Borrower shall maintain sufficient Collateral encumbered with a first priority security interest in favor of Lender so that the amount of the Collateral is never less than Fifteen Million and No/100 Dollars ($15,000,000). Notwithstanding the forgoing, after the Secured Line Termination Date, so long as there are amounts outstanding hereunder, Borrower shall maintain sufficient Collateral encumbered with a first priority security interest in favor of Lender so that the amount of the Collateral is never less than one hundred fifty percent (150%) of the amounts then outstanding hereunder. Borrower shall report on the amount of Collateral on each Borrowing Base Certificate. DEC-1770697-10 18

 
ARTICLE VII NEGATIVE COVENANTS So long as any part of the Indebtedness remains unpaid or this Agreement remains in effect, without the prior written consent of Lender, Borrower shall not: 7.1 Borrowed Money. Create, incur, assume, or suffer to exist any liability for borrowed money (including capital leases), in excess of Two Million Five Hundred Thousand and No/100 Dollars ($2,500,000.00). For the avoidance of doubt, Borrower's continuing payments, security and other obligations currently existing with regard to the Settlement Agreements shall not be considered to be borrowed money. 7.2 Security Interest and Other Encumbrances. Create, incur, assume, or suffer to exist any mortgage, security interest, lien, or other encumbrance upon the Collateral which would be prior to or interfere with the security interest in favor of Lender. 7 .3 Mergers, Consolidations, Sales or Acquisitions. (a) Merge or consolidate with or into any corporation or other entity; (b) enter into any joint venture or partnership with any Person, firm, or corporation whereby Borrower has agreed to contribute assets, equity or other value to such entity or venture which have an aggregate value in excess of Two Million Five Hundred Thousand and no/100 Dollars ($2,500,000.00); (c) sell or otherwise transfer property or assets to any other Person, firm, or corporation that is not a Borrower Affiliate in aggregate amount in excess of Two Million Five Hundred Thousand and no/100 Dollars ($2,500,000.00) except for: (i) the sale of inventory in the ordinary course of its business and in accordance with the terms of this Agreement; or (ii) any sale of property or assets of Borrower to any Person, so long as, in either case, no Borrowing Base Deficiency exists after giving effect to such sale or transfer, or except as otherwise allowed pursuant to Section 7.9 herein; or ( d) consummate any purchases or other acquisitions of the capital stock or equity interests in, or all or substantially all of the property or assets or business of any other Person, firm, or corporation, except in the ordinary course of business or when such Person, firm or corporation will become a Borrower Affiliate, where such property or assets have a value in excess of Two Million Five Hundred Thousand and no/100 Dollars ($2,500,000.00); provided that such action does not have a Material Adverse Effect. 7.4 Investments and Advances. Make any investment in, or advances to, any other Person, firm, or corporation, other than a Borrower Affiliate, in an amount in excess of Two Million Five Hundred Thousand and no/100 Dollars ($2,500,000.00) except: DEC-1770697-10 19

 
(a) advance payments or deposits against purchases made in the ordinary course of Borrower's regular business; (b) direct obligations of the United States of America; (c) money market mutual funds that invest in direct obligations of the United States of America; or ( d) certificates of deposit with any United States bank. 7 .5 Guaranties Other than Permitted Guaranties. Other than Permitted Guaranties, become a guarantor, a surety, or otherwise liable for the debts or other obligations of any other Person, firm, or corporation, whether by guaranty or suretyship agreement, agreement to purchase indebtedness, agreement for furnishing funds through the purchase of goods, supplies, or services (or by way of stock purchase, capital contribution, advance, or loan) for the purpose of paying or discharging indebtedness, or otherwise, except as an endorser of instruments for the payment of money deposited to its bank account for collection in the ordinary course of business. 7.6 Change of Name or Domicile. Change the name or state of formation of Borrower without giving at least thirty (30) days, prior written notice of the proposed new name or the proposed state of incorporation to Lender, together with delivery to Lender ofUCC Financing Statements reflecting Borrower's new name or state of incorporation, all in form and substance satisfactory to Lender. 7.7 Disposition of Collateral. Sell, assign, or otherwise transfer, dispose of, or encumber Collateral constituting the Borrowing Base, or grant a security interest therein that would result in a Borrowing Base Deficiency, except: (a) to Lender; and (b) in accordance with Paragraph 2.8 and Paragraph 7.3(c) or any other provision of this Agreement. 7 .8 No Violations. Borrower will not violate any term of its organization documents or of any mortgage, borrowing agreement or other instrument or agreement pertaining to indebtedness for borrowed money resulting in, or which might reasonably be expected have, a Material Adverse Effect. Borrower will not violate any term of any other indenture, instrument, or agreement to which it is a party or by which it or its property may be bound, resulting in, or which might reasonably be expected have, a Material Adverse Effect. Borrower will not violate any order, writ, judgment, injunction, or decree of any court of competent jurisdiction or any statute, rule, or regulation of any governmental authority. 7.9 Capitalization. Borrower will not authorize or issue any equity interests of any class or type except those that are already authorized or outstanding. DEC-1770697-10 ARTICLE VIII DEFAULT AND REMEDIES 20

 
8.1 Default. If any of the following events shall occur, it shall be an event of default ("Event of Default"): (a) Non-Payment. Borrower fails to pay any principal (other than the ten (10) Business Days allowed in connection with a Borrowing Base Deficiency pursuant to Section 2.12 hereof) of the Promissory Note on the date when due, or Borrower fails to pay any interest on the Promissory Note or any other sums payable by Borrower to Lender pursuant to this Agreement within three (3) days after any such principal, interest or other sum is due; (b) Representations. Any representation or warranty made by Borrower herein or in connection herewith proves to have been incorrect in any material respect when made; (c) Breach of Covenants. Borrower fails to observe or comply with any of the covenants in Article VI and VII hereof and such failure has not been cured within ten (10) days after Lender has notified Borrower of such failure; (d) Breach of Material Terms. Borrower fails to perform or observe any other material term, covenant or agreement contained in this Agreement or in any Loan Document and such failure has not been cured within thirty (30) days after Lender has notified Borrower of such failure; (e) Insolvency. Borrower shall become insolvent or shall apply for, shall consent to, or shall acquiesce in the appointment of a custodian, trustee or receiver thereof or for a substantial part of the property thereof, or, in the absence of such application, consent or acquiescence, a custodian, trustee or receiver shall be appointed for that Borrower or for a substantial part of its property, and shall not have been dismissed within sixty (60) days therefore, or a Borrower shall make an assignment for the benefit of creditors; (f) Bankruptcy. Borrower shall be voluntarily or involuntarily dissolved or shall be the subject of any bankruptcy, reorganization or other proceedings under any bankruptcy or insolvency law, or any dissolution or liquidation proceeding shall be instituted by or against that Borrower and, if instituted against Borrower, shall be consented to or acquiesced in by Borrower, shall not have been dismissed within sixty (60) days therefore or any order for relief shall have been entered against Borrower; (g) Judgments. There shall be entered against Borrower one or more judgments or decrees in an aggregate amount at any one time outstanding in excess of Two Million and no/100 Dollars ($2,000,000.00) excluding the Settlement Agreements and those judgments or decrees that shall have been vacated, discharged, stayed or bonded pending appeal within thirty (30) days from the entry thereof or within any additional period prescribed by statute after the entry thereof or with respect to which (and to the extent that) the Person against which any such judgment or decree shall have been entered is fully insured (excluding reasonable deductibles); DEC-1770697-10 21

 
(h) Default on Other Obligations. Borrower fails to perform or observe any term, covenant or agreement contained in any agreement or document to which such party and Lender are parties and such failure has not been cured within the applicable time periods contained in such agreement or document; 8.2 Remedies. Upon the occurrence and during the continuation of any Event of Default (unless such Event of Default has been waived or cured (with the consent of Lender)), but only after the expiration of any applicable cure period, Lender shall have the right, upon notice to Borrower: (a) Further Advances. To terminate its commitment to make Advances and/or terminate this Agreement; (b) Acceleration. To declare the Secured Line Balance and all interest accrued thereon and all other amounts payable under this Agreement to be immediately due and payable, whereupon all such indebtedness of Borrower to Lender shall become and be immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by Borrower; and (c) Other Rights. To exercise any other rights or remedies available to it whether under the Loan Documents or at law or in equity. 8 .3 Possession of Collateral; Standard of Care. Lender shall exercise reasonable care in the custody and preservation of the Collateral. As between Borrower and Lender, Lender shall be deemed to have exercised reasonable care in the custody and preservation of any of the Collateral in its possession if it takes such action for that purpose as Borrower requests in writing, but failure of Lender to comply with any such request shall not itself be deemed a failure to exercise reasonable care, and no failure of Lender to preserve or protect any rights with respect to such Collateral not so requested by Borrower shall be deemed a failure to exercise reasonable care in the custody or preservation of such Collateral. Lender shall also be deemed to have exercised reasonable care in the safekeeping of any Collateral in its possession if such Collateral is accorded treatment substantially equal to the safekeeping which Lender accords to its own property of like kind. 8.4 Lender Appointed Attorney-in-Fact. Borrower hereby irrevocably constitute and appoint Lender and any officer or agent thereof, with full power of substitution, as its true and lawful attorney in fact with full irrevocable power and authority in the place and stead of Borrower and in the name of Borrower or in their own name, from time to time in Lender's discretion: (a) for the purpose of carrying out the terms of this Agreement, to take any and all reasonable and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement; and (b) to take any actions and to execute any instruments which Lender may deem reasonable to obtain, adjust, make claims under, or otherwise deal with insurance required pursuant to Section 6.6 hereof and to receive, endorse, and collect any drafts or other instruments delivered in connection therewith; provided, however, that Lender DEC-1770697-10 22

 
agrees that it will not take any action pursuant to this power of attorney unless Borrower fails to take any action requested by Lender promptly upon receipt by Borrower of such request. Notwithstanding the foregoing, Lender will not use this power of attorney to renegotiate the term of any agreement between either of Borrower or ADES and any third party. ARTICLE IX INDEMNIFICATION 9 .1 Indemnification by Borrower. Borrower shall indemnify and hold harmless Lender, and each of Lender's assignees, each of Lender Affiliates and each of their respective directors, officers, shareholders and employees (each an "Indemnified Party") from and against any and all liabilities, damages, penalties, expenditures, losses, or charges, which are incurred by, or awarded or assessed against, any Indemnified Party arising out of, or resulting from: (a) any fraud by Borrower, including the misappropriation of any material portion of the Collateral or any of the proceeds thereof (other than an unintentional misappropriation of Collateral so long as such unintentional misappropriation is cured within three (3) Business Days of Borrower's knowledge of such misappropriation); (b) any representation or warranty of Borrower contained in Article V hereof which shall have been false or incorrect in any material respect on and as of the date made (all of the foregoing, collectively, the "Indemnified Liabilities"); provided, however, that, in each of (a) or (b) above, no Indemnified Party shall have the right to be indemnified for its own fraud, bad faith, gross negligence or willfully improper action or inaction. 9.2 Indemnification Procedure. Any claim for indemnification under this Article IX must be asserted by Lender by giving written notice to Borrower of the matter with respect to which Lender seeks to be indemnified (a "Claim") within a reasonable time after Lender has knowledge of facts forming a sufficient basis for said Claim, stating the nature of said Claim and, if known, the estimated amount of the loss, cost or expense. Lender and each Indemnified Party will give Borrower sole authority and control of the defense and settlement of the Claim and, at Borrower's request and expense, cooperate with Borrower in the defense and settlement of the Claim. Once Borrower has assumed the defense or settlement of a Claim, if Lender or any Indemnified Party wishes to obtain or maintain its own counsel or other professional assistance it shall do so at its own expense. Notwithstanding anything to the contrary contained in this section, Borrower will not have any obligation to indemnify or hold Lender or any Indemnified Party harmless for Lender's or such Indemnified Party's own grossly negligent or willfully improper actions or inactions. Borrower shall carry out its indemnification obligation through counsel selected by Borrower which counsel shall be acceptable to Lender, in Lender's reasonable judgment. Borrower will not make any settlement or other resolution of a Claim or enter into any obligation which would be binding upon Lender without Lender's consent, exercised in Lender's reasonable judgment. DEC-1770697-10 23

 
9.3 Limitation on Indemnification. Notwithstanding anything to the contrary contained in this section, Borrower will not have any obligation to indemnify or hold Lender or any Indemnified Party harmless for incidental, consequential, punitive or exemplary damages, including without limitation, lost profits or revenue not directly related to this Agreement. 9 .4 Survival. The provisions of this Article IX shall survive the repayment of the Indebtedness. ARTICLEX MISCELLANEOUS 10.1 Expenses. Borrower agrees to pay on demand all reasonable costs and expenses of Lender in connection with the preparation, execution, delivery, administration, modification, and amendment of this Agreement, the other Loan Documents, and the other documents to be delivered hereunder, including, without limitation, the reasonable fees and expenses of counsel for Lender (including the cost of internal counsel) with respect thereto and with respect to advising Lender as to its rights and responsibilities under the Loan Documents. Borrower further agrees to pay on demand all reasonable costs and expenses of Lender (including, without limitation, reasonable attorneys' fees and expenses and the cost of internal counsel), in connection with the enforcement (whether through negotiations, legal proceedings, or otherwise) of the Loan Documents and the other documents to be delivered hereunder, if Lender is the prevailing party. Lender agrees to provide Borrower with periodic notifications of the amounts which Lender is requiring Borrower to repay to Lender pursuant to this Section 10.1. 10.2 Lender's Consents, Waivers and Amendments. Lender shall have the authority to grant any consents or waivers or approve any amendments to the Loan Documents, including, but not limited to; (a) increases in the aggregate Maximum Secured Line; (b) reductions of principal, interest or fees payable by Borrower hereunder; ( c) extensions of scheduled maturities or times for payments; and ( d) the release of any Collateral. 10.3 Performance Of Borrower's Duties. Upon Borrower's failure to perform any of its duties or obligations under this Agreement or any of the other Loan Documents, but only if such failure constitutes an Event of Default, Lender may, but shall not be obligated to, perform or otherwise satisfy any or all such duties or obligations. 10.4 Waiver By Borrower. Lender shall have no obligation to take, and Borrower shall have the sole responsibility for taking, any and all steps to preserve rights against any and all of Borrower's Account debtors and against any and all prior parties to any note, chattel paper, draft, trade acceptance, or other instrument for the payment of money covered by Lender's Security Interest in the Collateral whether or not in Lender's possession. Lender shall not be responsible to Borrower for loss or damage resulting from Lender's failure to enforce any receivables or to collect any moneys due, or to become due, thereunder or other proceeds constituting Collateral DEC-1770697-10 24

 
hereunder. Borrower waives protest of any note, check, draft, trade acceptance, or other instrument for the payment of money constituting Collateral at any time held by Lender on which Borrower is in any way liable and waives notice of any other action taken by Lender, except as required by law or under any of the Loan Documents. 10.5 Setoff. Without limiting any other right of Lender, whenever Lender has the right to declare any Indebtedness to be immediately due and payable (whether or not it has so declared), Lender, at its sole election, may set off against the Indebtedness any and all monies then due and owing to Borrower by Lender in any capacity, and Lender shall be deemed to have exercised such right of setoff immediately at the time of such election even though any charge therefor is made or entered on Lender's records subsequent thereto. 10.6 Assignment. The rights and benefits of Lender hereunder shall inure to any party acquiring any interest in the Indebtedness or any part thereof, provided such assignee agrees in writing to be bound by the terms hereof. Borrower shall have the right to consent to such assignment unless an Event of Default has occurred and is continuing. 10. 7 Successors and Assigns. Lender and Borrower, as used herein, shall include the successors or assigns of those parties, except that Borrower shall have no right to assign its rights hereunder or any interest herein without the written consent of Lender. 10.8 Modification, Waiver. No modification or amendment of any provision of this Agreement shall be made, except by a written agreement signed by Borrower and Lender. Lender shall not be deemed to have waived any rights under this Agreement unless such waiver is given in writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of any provision of this Agreement shall not prejudice or constitute a waiver of Lender's rights otherwise to demand strict compliance with that provision or any other provision of this Agreement. No prior waiver by Lender, or any course of dealing between Lender and Borrower shall constitute a waiver of any of Lender's rights or of any obligations of Borrower as to any future transactions. Whenever the consent of Lender is required under this Agreement, the granting of such consent by Lender in any instance shall not constitute continuing consent in subsequent instances where such consent is required, and in all cases such consent may be granted or withheld in the sole discretion of Lender. 10.9 Counterparts. This Agreement may be executed in any number of counterparts, and by Lender and Borrower on separate counterparts, each of which, when so executed and delivered, shall be an original, but all of which shall together constitute one and the same Agreement. 10.10 Termination. This Agreement is, and is intended to be, a continuing Agreement and shall remain in full force and effect until the full and final payment of all of the Indebtedness; provided, however, that Borrower, subject to the provisions hereof which expressly survive termination, may terminate this Agreement at any time by giving Lender at least five (5) Business Days prior notice of termination in writing whereupon all outstanding Indebtedness shall be due and payable in full without presentation, demand, or further notice of any kind, whether or not all or any part of such Indebtedness is otherwise due and payable DEC-1770697-10 25

 
pursuant to the agreement or instrument evidencing same. Notwithstanding the foregoing or anything in this Agreement or elsewhere to the contrary, Lender's Security Interest in the Collateral, Lender's rights and remedies under the Loan Documents and Borrower's obligations and liability under the Loan Documents, shall survive any termination of this Agreement and shall remain in full force and effect until all of the Indebtedness outstanding, or contracted or committed for (whether or not outstanding), and any extensions or renewals thereof (whether made before or after receipt of such notice), together with interest accruing thereon, shall be finally and irrevocably paid in full. 10.11 Further Assurances. From time to time, each party shall take such action and execute and deliver to the other party such additional documents, instruments, certificates, and agreements as such other party may reasonably request to effectuate the purposes of the Loan Documents. 10.12 Headings. Article and Section headings used in this Agreement are for convenience only and shall not affect the construction of this Agreement. 10.13 Cumulative Security Interest, Etc. The execution and delivery of this Agreement shall in no manner impair or affect any other security (by endorsement or otherwise) for payment or performance of the Indebtedness, and no security taken hereafter as security for payment or performance of the Indebtedness shall impair in any manner or affect this Agreement, or Lender's Security Interest in the Collateral granted hereby, all such present and future additional security to be considered as cumulative security. 10.14 Lender's Duties. Without limiting any other provision of this Agreement: (a) the powers conferred on Lender hereunder are solely to protect its interests and shall not impose any duty to exercise any such powers; and (b) except as may be required by applicable law, Lender shall not have any duty as to any Collateral or as to the taking of any necessary steps to preserve rights against any parties or any other rights pertaining to any Collateral. 10.15 Notices Generally. All notices and other communications hereunder, unless otherwise expressly provided, shall be in writing and made by telecopy, overnight air courier, or certified or registered mail, return receipt requested, and shall be deemed to be received by the party to whom sent one (1) Business Day after sending, if sent by telecopy or overnight air courier; and three (3) Business Days after mailing, if sent by certified or registered mail. All such notices and other communications to a party hereto shall be addressed to such party at the address set forth on the signature pages hereof or to such other address as such party may designate for itself in a notice to the other party given in accordance with this Section 10.15. 10.16 Severability. The provisions of this Agreement are independent of, and separable from, each other, and no such provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other such provision may be invalid or unenforceable in whole or in part. If any provision of this Agreement is prohibited or unenforceable in any jurisdiction, such provision shall be ineffective in such jurisdiction only to the extent of such prohibition or unenforceability, and such prohibition or unenforceability shall not invalidate the DEC-I 770697-10 26

 
balance of such provision to the extent it is not prohibited or unenforceable nor render prohibited or unenforceable such provision in any other jurisdiction. 10.17 Inconsistent Provisions. The terms of this Agreement and the other Loan Documents shall be cumulative except to the extent that they are specifically inconsistent with each other, in which case the terms of this Agreement shall prevail. 10.18 Entire Agreement. This Agreement, the Exhibits and Schedules attached hereto and incorporated herein by this reference, and the other Loan Documents constitute the entire agreement and understanding between the parties hereto with respect to the transactions contemplated hereby and supersede all prior negotiations, understandings, and agreements between such parties with respect to such transactions, including, without limitation, those expressed in any commitment letter delivered by Lender to Borrower. 10.19 Consent To Jurisdiction. Borrower and Lender agree that any action or proceeding to enforce, or arising out of, the Loan Documents may be commenced in any state or federal court of competent jurisdiction in the State of Colorado, and Borrower and Lender waive personal service of process and agree that a summons and complaint commencing an action or proceeding in any such court shall be properly served and shall confer personal jurisdiction if served by registered or certified mail to Borrower or Lender, as appropriate, or as otherwise provided by the laws of the State or the United States. 10.20 Jury Trial Waiver. BORROWER AND LENDER HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY BORROWER OR LENDER MAY HA VE IN ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS RELATED THERETO. BORROWER REPRESENTS AND WARRANTS THAT NO REPRESENTATIVE OR AGENT OF LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LENDER WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS RIGHT TO JURY TRIAL WAIVER. BORROWER ACKNOWLEDGES THAT LENDER HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS SECTION 10.20. 10.21 No Oral Agreements. Oral agreements or commitments to loan money, extend credit or to forbear from enforcing repayment of a debt, including promises to extend or renew such debt, are not enforceable. To protect Borrower and Lender from misunderstanding or disappointment, any agreements covering such matters are contained in the Loan Documents, which are the complete and exclusive statement of the agreement between the parties, except as the parties may later agree in writing 10.22 Release of Claims. Borrower hereby releases and forever discharges Lender, its Affiliates, directors, officers, agents, employees, and attorneys ("Lender Parties") of and from any and all liability, suits, damages, claims, counterclaims, demands, reckonings and causes of action, setoffs and defenses, whether known or unknown, whether arising in law or equity, which Borrower had, now has or may have in the future against Lender Parties by reason of any acts, omissions, causes or things arising out of or in any way related to this Agreement or the other DEC-1770697-10 27

 
Loan Documents existing or accrued as of the date of this Agreement excluding however, from this release, any claims that arise out of Lender's negligence or willful malfeasance. This release shall survive the termination of this Agreement. Borrower acknowledges that the foregoing release is a material inducement to Lender's decision to extend to Borrower the financial accommodations hereunder and has been relied upon by Lender in agreement to enter into this Agreement. 10.23 Applicable Law. This Agreement, and the transactions evidenced hereby, shall be governed by, and construed under, the internal laws of the State of Colorado, without regard to principles of conflicts of law, as the same may from time to time be in effect, including, without limitation, the UCC. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. By:___,~--___,~_,,_-+--="~----- Name: Mark McKi Title: CFO & SVP By:--1.---~'-¥------4\-.,__-+-~::::..__ ___ _ Name: Mark McKi Title: CFO & SVP DEC-1770697-10 Address for Notices: Office of CFO 9135 South Ridgeline Blvd, Suite 200 Highlands Ranch, CO 80129 and Fortis Law Partners, LLC 1900 Wazee Street, Suite 300 Denver, Colorado 80202 Address for Notices: Attn: Douglas L. Pogge 821 1 ih Street Denver, CO 80202 28

 
EXHIBIT A FORM OF PROMISSORY NOTE $10,000,000.00 September 19, 2013 Denver, Colorado FOR VALUE RECEIVED, the undersigned, ADA-ES, INC., a Colorado corporation, promises to pay to COBIZ BANK, a Colorado corporation, d/b/a/ COLORADO BUSINESS BANK (herein, together with its successors and assigns who become holders of this Note, called the "Lender") at the offices of Lender at 821 1 ih Street, Denver, Colorado 80202, or at such other place as maybe designated in writing by Lender from time to time, the principal sum of Ten Million and No/100 Dollars ($10,000,000.00), or such lesser amount which shall from time to time be owing hereunder on account of Advances made by Lender to or for the benefit or account of Borrower in accordance with the terms of the 2013 Loan and Security Agreement by and among Borrower and Lender (as amended, modified, supplements and restated from time to time, the "Loan Agreement") together with interest on the unpaid principal balances outstanding at the rate specified in the Loan Agreement. Principal and interest due under this Note shall be payable at the time or times provided in the Loan Agreement. In no contingency or event whatsoever, whether by reason of advancement of the proceeds hereof or otherwise, shall the amount paid or agreed to be paid by Borrower to Lender for the use, forbearance or detention of money advanced hereunder exceed the highest lawful rate permissible under any law which a court of competent jurisdiction may deem applicable hereto. If any Event of Default shall have occurred and be continuing, Borrower promises to pay the Default Rate, on the outstanding unpaid principal and interest balance hereof at the times and in the amount and manner provided for more particularly in the Loan Agreement. Principal, interest, fees, charges, expenses and other costs owing hereunder are payable in lawful money of the United States of America such that Lender has received immediately available funds for the credit of Borrower on the date that such payment or payments is or are due. This Note is secured by the Collateral listed in the Loan Agreement and other security instruments described in the Loan Agreement. Upon the occurrence of any Event of Default under the Loan Agreement, or under any of the other Loan Documents, which is not cured within any applicable cure period contained in the Loan Agreement, Lender may, at Lender's option, exercise its remedies as provided in the Loan Agreement; provided, however, that the principal, interest, fees, expenses, charges and other costs owing on this Note shall be and become automatically due and payable ifthe Loan Agreement, or any of the other Loan Documents, provide for the automatic acceleration of the payment of the principal, interest, fees, charges, expenses and other costs owing on this Note upon the occurrence of an Event of Default. No waiver of any breach, Event of Default, default or failure of condition under the tenns of this Note, the Loan Agreement, or the other Loan Documents shall be implied from any DEC-1770697-10 29

 
failure of Lender to take, or any delay by Lender in taking, action with respect to any such breach of or Event of Default, default or failure of condition or from any previous waiver of any similar or unrelated breach of or Event of Default, default or failure of condition. A waiver of any term of this Note, the Loan Agreement or the other Loan Documents must be made in writing and shall be limited to the express written terms of such waiver. All obligations of Borrower and all rights, powers and remedies of Lender expressed herein shall be in addition to and not in limitation of those provided by law or in any written agreement or instrument (other than this Note) relating to any of the Indebtedness of Borrower to Lender or the security therefore. Borrower waives presentment; demand; notice of dishonor; notice of protest and nonpayment; notice of default interest and late charges; notice of intent to accelerate; notice of acceleration; and diligence in taking any action to collect any sums owing under this Note or in proceeding against any of the rights and interests in and to properties securing payment of this Note. Time is of the essence with respect to every provision hereof. This Note is issued pursuant to the Loan Agreement and is subject to the terms and conditions specified therein, which terms and conditions are incorporated herein by this reference. Capitalized terms not otherwise defined in this Note shall have the meanings assigned to them under the Loan Agreement. This Note shall be construed and enforced in accordance with the laws of the State of Colorado, without regard to principles of conflicts oflaw, except to the extent that Federal laws preempt the laws of the State of Colorado. IN WITNESS WHEREOF, the undersigned has executed this instrument as of the date first above written. ADA-ES, INC., a Colorado corporation By: ________________ _ Name: _________________ _ Title: ------------------ DEC-1770697-10 30

 
EXHIBITB FORM OF PROPOSED BORROWING REQUEST Colorado Business Bank 821 1 J1h Street Denver, Colorado 80202 Attention: Douglas L. Pogge Re: Advance Request [Date] Reference is made to that certain 2013 Loan and Security Agreement by and among ADA-ES, INC., ADVANCED EMISSIONS SOLUTIONS, INC. and COBIZ Banlc, a Colorado corporation d/b/a Colorado Business Banlc (as amended, modified, supplemented and restated from time to time, the "Loan Agreement"). Capitalized terms used herein but not otherwise defined herein shall have the meaning assigned to such terms in the Loan Agreement. Borrower requests an Advance in the amount of and no/100 Dollars ($ ____ ~ The undersigned, for himself and Borrower hereby certifies: (a) the representations and warranties contained in Article V of the Credit Agreement are correct in all material respects on and as of the date hereof as though made on the date hereof (unless any such representation or warranty relates to a different date); (b) there has been no material adverse change in any Borrower's financial condition since the date of the most recent statements delivered to Lender pursuant to Paragraph 6.11 of the Loan Agreement; ( c) no event has occurred and is continuing, or would result from the requested Advance, which constitutes an Event of Default or Potential Default. The undersigned is an Authorized Signer. DEC-1770697-10 Very truly yours, ADA-ES, INC. [Authorized Signer] 31

 
Agreed and accepted this __ day of _____ 20 COBIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK By:~~~~~~~~~~~~~~- Douglas L. Pogge, Senior Vice President DEC-1770697-10 32

 
EXHIBIT C FORM OF BORROWING BASE CERTIFICATE As of the period ending _________ , 20 This Certificate is made and dated as of __ , 20_ and is submitted by ADA-ES, INC., a Colorado corporation, in accordance with the 2013 Loan and Security Agreement by and among ADA-ES, INC., ADVANCED EMISSIONS SOLUTIONS, INC., and COBIZ Bank, a Colorado corporation, d/b/a Colorado Business Bank (as amended, modified, supplemented and restated from time to time, the "Loan Agreement"). Capitalized terms used but not defined herein shall have the respective meanings therefor set forth in the Loan Agreement. The undersigned hereby certifies to Lender that the undersigned is familiar with the following financial information, which has been taken from Borrower's books and records, which are complete and accurate, and the following calculations on the Borrowing Base and the remaining amount under the Borrowing Base are true and correct. A. B. C. D. E. F. G. H. I. J. K. BORROWING BASE (All numbers must be taken from the most recent 10-K or 10-Q filed by ADES with the Securities and Exchange Commission.) Fixed payments due to Borrower on the AECI Leases Balance in A discounted to present value using a discount factor of 10% 90%ofB Contingent payments due to Borrower on the AECI Leases Balance in H discounted to present value using a discount factor of 10% 80% ofE Total ofC and F Current Secured Line Balance Excess/(Deficit) Borrowing Base (G minus H) One Hundred Fifty Percent (150%) ofH Current Value of Collateral in which Lender has a first priority security interest ADA-ES, INC., a Colorado corporation By: Name: Title: DEC-1770697-10 33

 
EXHIBITD FORM OF BORROWER CERTIFICATE ADA-ES, INC. WITH RESPECT TO THE 2013 LOAN AND SECURITY AGREEMENT The undersigned, as a duly authorized officer of ADA-ES, INC., a Colorado corporation, in conjunction with the 2013 Loan and Security Agreement by and among ADA-ES, INC. ("Borrower"), ADV AN CED EMISSIONS SOLUTIONS, INC. and CO BIZ Bank, a Colorado corporation, d/b/a Colorado Business Bank (as amended, modified, supplements and restated from time to time, the "Loan Agreement"), hereby certifies to COBIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK that no "Principal" of Borrower has been convicted of, or pled no contest to, a felony under state or federal law (excluding crimes related to traffic or motor vehicle offenses) or to any other crime that requires identification in any registry and/or notification program maintained by any federal or state jurisdiction. For the purpose of this Certification, "Principal" is deemed to include: (a) each Officer of ADA-ES, INC.; (b) each director of ADA-ES, INC.; (c) the five (5) most highly compensated executives and officers of ADA-ES, INC.; and (d) each natural person who is a direct or indirect holder of more than twenty percent (20%) or more of the ownership stock or stock equivalent of ADA-ES, INC. The undersigned Borrower acknowledge that CoBiz Bank, a Colorado corporation, d/b/a Colorado Business Bank is relying upon the truth of the statements set forth in this Borrower Certification to make a loan to Borrower. Dated this 19th day of September 2013. DEC-1770697-10 ADA-ES, INC., a Colorado corporation By: ~~~~~~~~~~~~ Name: Title: 34

 
EXHIBITE FORM OF FINANCIAL STATEMENT CERTIFICATION The undersigned, the of ADA-ES, INC., a Colorado corporation, hereby certifies to COBIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK, pursuant to 2013 Loan and Security Agreement by and among ADA-ES, INC., ADVANCED EMISSIONS SOLUTIONS, INC. and COBIZ Bank, a Colorado corporation, d/b/a Colorado Business Bank (as amended, modified, supplements and restated from time to time, the "Loan Agreement"), that attached hereto is a true and correct copy of ADA-ES, INC. 's financial statements as of and for the __ month period ending ________ , 20_, which financial statements fairly present in all material respects ADA-ES, INC. 's financial position and results of operations for the applicable periods and consist of a balance sheet and related statements of income and cash flow covering the periods from the end of the immediately preceding fiscal year to the end of such quarter, and such quarter alone (if applicable). Such financial statements have been prepared in accordance with GAAP, consistently applied (except as disclosed therein), it being understood that all interim financial statements are subject to year-end adjustments and are not required to have footnote disclosures. The undersigned has reviewed the Loan Agreement and the affairs of such Borrower and that, to the best of his or her knowledge and belief, he or she is unaware of the occurrence of an event which constitutes an Event of Default hereunder or which would constitute such an Event of Default with the giving of notice or the lapse of time or both, and if so, stating the facts with respect thereto. ADA-ES, INC., a Colorado corporation By: Name: Title: DEC-1770697-10 35

 
EXHIBIT F FORM OF COMPLIANCE CERTIFICATE ADA-ES, INC., a Colorado corporation ("Borrower"), and ADVANCED EMISSIONS SOLUTIONS, INC., a Delaware corporation ("ADES"), hereby certify to CO BIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK ("Lender") pursuant to the 2013 Loan and Security Agreement by and among Borrower, ADES and Lender (as amended, modified, supplemented and restated from time to time, the "Loan Agreement"), that: A. General. 1. Capitalized terms not defined herein shall have the meanings set forth in the Loan Agreement. 2. Borrower has materially complied with all the terms, covenants and conditions to be performed or observed by Borrower contained in the Loan Agreement and the Loan Documents. 3. Neither on the date hereof nor, if applicable, after giving effect to any Advance made under the Loan Agreement on the date hereof, does there exist an Event of Default. B. Financial Covenants (All numbers must be taken from the most recent 10 Kor 10-Q filed by ADES with the Securities and Exchange Commission.) 1. Calculation of Liquidity Covenant: A. Cash and Marketable Securities held by ADES B. Amount of Cash and Marketable Securities pledged by ADES to parties other than Lender c. Amount of Letters of Credit issued by parties other than Lender which are not secured by the Cash and Marketable Securities covered in B. D. Total of Band C E. A less D F. $6,000,000.00 G. Eighty Percent (80%) of the amount outstanding under the Secured Line H. The greater of F or G I. Amount by which E exceeds (is less than) H 2. Calculation of Tangible Equity Covenant ~· Total Equity Goodwill A less B DEC-1770697-10 36

 
D. $13,500,000.00 E. Amount by which C exceeds (is less than) D IN WITNESS WHEREOF, Borrower and ADES have executed and delivered this Compliance Certificate in the name of and on behalf of Borrower on __ , 20 ADES, INC., a Delaware corporation By: Name: ~~~~~~~~~~~~~ Title: ADV AN CED EMISSIONS SOLUTIONS, INC., a Colorado corporation By: Name: ~~~~~~~~~~~~~ Title: DEC-1770697-10 37

 
EXHIBIT G FORM OF GUARANTY This GUARANTY AGREEMENT (this "Guaranty") is made as of the 20th day of September 2013, by ADVANCED EMISSIONS SOLUTIONS, INC., a Delaware corporation ("ADES"), with an address at 9135 South Ridgeline Blvd, Suite 200, Highlands Ranch, Colorado 80129, in favor of COBIZ BANK, a Colorado corporation d/b/a COLORADO BUSINESS BANK (together with its successors and assigns "Lender"), with an address at Attn: Douglas L. Pogge, 821 17th Street, Denver, Colorado 80202. 1. Guaranty of Payment. (a) ADES hereby unconditionally guarantees the full and prompt payment to Lender when due, whether by acceleration or otherwise, of any and all Indebtedness (as hereinafter defined) of ADA-ES, INC. ("Borrower") to Lender under the 2013 Loan and Security Agreement, dated as of September 19, 2013, by and among Lender, ADES and Borrower (as amended, modified, restated or supplemented from time to time, the "2013 Term Loan Agreement"). (b) As used in this Guaranty, "Indebtedness" shall mean any and all indebtedness and other liabilities of Borrower to Lender as a result of the 2013 Term Loan Agreement, of every kind and character and all extensions and renewals thereof, including, without limitation, all unpaid accrued interest thereon and all costs and expenses payable as hereinafter provided: (i) whether now existing or hereafter incurred; (ii) whether direct, indirect, primary, absolute, secondary, contingent, secured, unsecured, matured or unmatured, by guarantee or otherwise; (iii) whether such indebtedness is from time to time reduced and thereafter increased, or entirely extinguished and thereafter reincurred; (iv) whether such indebtedness was originally contracted with Lender or with another or others; (v) whether or not such indebtedness is evidenced by a negotiable or non-negotiable instrument or any other writing; and (vi) whether such indebtedness is contracted by a Borrower alone or jointly or severally with another or others. (c) ADES acknowledges that valuable consideration supports this Guaranty, including, without limitation, any commitment to lend, extension of credit or other financial accommodation, whether heretofore or hereafter made by Lender to Borrower; any extension or renewal of any Indebtedness, any forbearance with respect to any Indebtedness or otherwise; any DEC-1770697-10 38

 
cancellation of any existing guaranty; any purchase of Borrower's assets by Lender; or any other valuable consideration. 2. Lender's Costs and Expenses. ADES agrees to pay on demand all costs and expenses of every kind incurred by Lender: (a) In enforcing this Guaranty; (b) In collecting any Indebtedness from Borrower or ADES; ( c) In realizing upon or protecting any collateral for this Guaranty or for payment of any Indebtedness; and (d) For any other purpose related to the Indebtedness or this Guaranty. "Costs and expenses" as used in the preceding sentence shall include, without limitation, the actual attorneys' fees incurred by Lender in retaining counsel for advice, suit, appeal, any insolvency or other proceedings under the Federal Bankruptcy Code or otherwise, or for any purpose specified in the preceding sentence. 3. Representations and Warranties of ADES. ADES affirms and certifies: (a) that there are no defenses, offsets or counterclaims with respect to the Guaranty as of the date hereof; (b) that there was adequate consideration to the ADES for the granting of the Guaranty; ( c) expressly acknowledges its liability to Lender under the Guaranty; and ( d) agrees that the Guaranty is in full force and effect, enforceable against the ADES in accordance with its terms. 4. Nature of Guaranty: Continuing, Absolute and Unconditional. (a) This Guaranty is and is intended to be a continuing guaranty of payment of the Indebtedness (irrespective of the aggregate amount thereof and whether or not the Indebtedness from time to time exceeds the amount of this Guaranty, if limited), independent of, in addition and without modification to, and does not impair or in any way affect, any other guaranty, endorsement, or other agreement in connection with the Indebtedness, or in connection with any other indebtedness or liability to Lender, or collateral held by Lender therefor or with respect thereto, whether or not furnished by ADES. This Guaranty and ADES's obligations hereunder shall not be modified, terminated, impaired or in any way affected by the execution, delivery or performance by ADES, Borrower or any other person of any other guaranty, endorsement or other agreement or the delivery of collateral therefor. Until such time as the Indebtedness has been finally and irrevocably paid in full, ADES waives any claim, remedy or other right which ADES might now have or hereafter acquire against Borrower or any other person that is primarily or contingently liable for the Indebtedness including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification, or any right DEC-1770697-10 39

 
to participate in any claim or remedy of Lender against Borrower or any collateral therefor which Lender now has or hereafter acquires, whether or not such claim, remedy or right arises in equity, or under contract, statute, or common law. (b) This Guaranty is absolute and unconditional and shall not be changed or affected by any representation, oral agreement, act or thing whatsoever, except as herein provided. This Guaranty is intended by ADES to be the final, complete and exclusive expression of the agreement between ADES and Lender. ADES expressly disclaims any reliance on any course of dealing or usage of trade or oral representation of Lender including, without limitation, representations to make loans to Borrower or enter into any other agreement with Borrower or ADES. No modification or amendment of any provision of this Guaranty and no waiver of any right by Lender shall be effective unless in writing and signed by a duly authorized officer of Lender. 5. Certain Rights and Obligations. (a) ADES authorizes Lender, without notice, demand or additional reservation of rights against ADES and without affecting ADES's obligations hereunder, from time to time; (i) to renew, refinance, modify, subordinate, extend, increase, accelerate, or otherwise change the time for payment of, the terms of or the interest on the Indebtedness or any part thereof; (ii) to accept from any person or entity and hold collateral for the payment of the Indebtedness or any part thereof, and to exchange, enforce or refrain from enforcing, or release such collateral or any part thereof; (iii) to accept and hold any endorsement or guaranty of payment of the Indebtedness or any part thereof or any negotiable instrument or other writing intended by any party to create an accord and satisfaction with respect to the Indebtedness or any part thereof, and to discharge, terminate, release, substitute, replace or modify any such obligation of any such endorser or ADES, or any person or entity who has given any security interest in any collateral as security for the payment of the Indebtedness or any part thereof, or any other person or entity in any way obligated to pay the Indebtedness or any part thereof, and to enforce or refrain from enforcing, or compromise or modify, the terms of any obligation of any such endorser, guarantor, person or entity; (iv) to dispose of any and all collateral securing the Indebtedness in any manner as Lender, in its sole discretion, may deem appropriate, and to direct the order or manner of such disposition and the enforcement of any and all endorsements and guaranties relating to the Indebtedness or any part thereof as Lender, in its sole discretion, may determine; and (v) to determine the manner, amount and time of application of payments and credits, if any, to be made on all or any part of any component or components of the Indebtedness (whether principal, interest, costs and expenses, or otherwise), including, without limitation, if this Guaranty is limited in amount, to make any such application to Indebtedness, if any, in excess of the amount of this Guaranty. DEC-1770697-10 40

 
(b) If any default shall be made in the payment of any Indebtedness, ADES hereby agrees to pay the same in full: (i) without deduction by reason of any setoff, defense or counterclaim of Borrower; (ii) without requiring protest, presentment or notice of non-payment or notice of default to ADES, to Borrower or to any other person; (iii) without demand for payment or proof of such demand; (iv) without requiring Lender to resort first to Borrower (this being a guaranty of payment and not of collection) or to any other guaranty or any collateral which Lender may hold; (v) without requiring notice of acceptance hereof or assent hereto by Lender; and (vi) without requiring notice that any Indebtedness has been incurred or of the reliance by Lender upon this Guaranty; all of which ADES hereby waives. (c) ADES's obligation hereunder shall not be affected by any of the following, all of which ADES hereby waives: (i) any failure to perfect or continue the perfection of any security interest in or other lien on any collateral securing payment of any Indebtedness or ADES's obligation hereunder; (ii) the invalidity, unenforceability, propriety of manner of enforcement of, or loss or change in priority of any such security interest or other lien; (iii) any taking, holding, continuation, collection, modification, leasing, impairment, surrender or abandonment of, or any failure to protect, preserve or insure, any such collateral; (iv) any delay in the exercise or waiver of, any failure to exercise, or any forbearance in the exercise of, any right or remedy of Lender or any person against ADES, Borrower or any person or relating to the Indebtedness or any part thereof or the collateral therefor; (v) failure of ADES to receive notice of any intended disposition of such collateral; (vi) any defense arising by reason of the cessation from any cause whatsoever of liability of Borrower including, without limitation, any failure, delay, waiver, forbearance, negligence or omission by Lender in enforcing its claims against Borrower or any collateral therefor, including, without limitation, any failure to make, prove, or vote any claim relating to the Indebtedness or any collateral therefor in any case or proceeding pursuant to the DEC-1770697-10 41

 
Federal Bankruptcy Code or any similar law, or any satisfaction of the Indebtedness or any part thereof by reason of the failure of Lender to recover against any collateral therefor or the failure of Lender to obtain a judgment for any deficiency; (vii) any release, settlement, composition, adjustment, compromise, replacement, cancellation, discharge, assignment, sale, exchange, conversion, participation or other transfer or disposition of any obligation of Borrower or of any collateral therefor; (viii) the invalidity or unenforceability of any of the Indebtedness; (ix) the creation of any security interest, lien or other encumbrance in favor of any person other than Lender; (x) any refusal or failure of Lender or any other person prior to the date hereof or hereafter to grant any additional loan or other credit accommodation to any Borrower or Lender's or any other party's receipt of notice of such refusal or failure; (xi) any refusal or failure of Lender or any other person to provide to ADES any information relating to Borrower, any other guarantor, endorser, or any person or entity who has given any collateral as security for the payment of the Indebtedness or any information relating to that Borrower's or such guarantor's, endorser's, person's or entity's financial condition, business or assets, or if such information is provided, to provide such information completely and accurately; (xii) any change m the ownership or membership of ADES or any Borrower; (xiii) the expiration of the period of any statute of limitations with respect to any lawsuit or other legal proceeding against Borrower or any person in any way related to the Indebtedness or a part thereof or any collateral therefor; or (xiv) any other thing or circumstance which might otherwise constitute a defense to ADES's obligation hereunder. 6. Guaranty of Performance. ADES also guarantees the full, prompt and unconditional performance of all obligations and agreements of every kind owed or hereafter to be owed by Borrower to Lender with respect to the Indebtedness. Every provision for the benefit of Lender contained in this Guaranty shall apply to the guaranty of performance given in this paragraph. 7. Termination. This Guaranty shall remain in full force and effect as to ADES until the Indebtedness of Borrower to Lender has been paid in full. ADES agrees that, to the extent that Borrower makes a payment or payments to Lender on the Indebtedness, or Lender receives any proceeds of collateral to be applied to the Indebtedness, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or otherwise are required to be repaid to that Borrower, its estate, trustee, receiver or any other party, including, without limitation, under any bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such repayment, the obligation or part thereof which has DEC-1770697-10 42

 
been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction was invalidated, declared to be fraudulent or preferential, set aside or otherwise are required to be repaid to that Borrower, its estate, trustee, receiver or any other party. As of the date any payment or proceeds of collateral are returned, the statute of limitations shall start anew with respect to any action or proceeding by Lender against ADES under this Guaranty. ADES shall defend and indemnify Lender of and from any claim or loss under this paragraph including actual attorneys' and paralegals, fees and expenses in the defense of any such action or suit. 8. Miscellaneous. (a) As used m this Guaranty, the terms "Borrower" and "ADES" shall include: (i) any successor individual or individuals, association, partnership, limited liability company or corporation to which all or a substantial part of the business or assets of Borrower or ADES shall have been transferred including, without limitation, a debtor in possession under the Federal Bankruptcy Code; (ii) in the case of a partnership or limited liability company Borrower or ADES, any new partnership or limited liability company which shall have been created by reason of the admission of any new partner(s) or member(s) therein or by reason of the dissolution of the existing partnership or limited liability company by voluntary agreement or the death, resignation or other withdrawal of any partner or member; and (iii) in the case of a corporate Borrower or ADES, any other corporation into or with which ADES or Borrower (if Borrower is a corporation) shall have been merged, consolidated, reorganized, or absorbed. (b) Without limiting any other right of Lender, whenever Lender has the right to declare any Indebtedness to be immediately due and payable (whether or not it has so declared), Lender at its sole election may set off against the Indebtedness any and all moneys then owed to ADES by Lender in any capacity, whether or not the Indebtedness or the obligation to pay such moneys owed by Lender is then due, and Lender shall be deemed to have exercised such right of setoff immediately at the time of such election even though any charge therefor is made or entered on Lender's records subsequent thereto. (c) ADES's obligation hereunder is to pay the Indebtedness in full when due according to its terms, and shall not be affected by any extension of time for payment by any Borrower, any bar to the enforceability of the Indebtedness, or any limitation on the right to attorneys' fees, resulting from any proceeding under the Federal Bankruptcy Code or any similar law. ADES's obligation under this Guaranty shall also include payment of interest accrued on the Indebtedness before or after a filing of a petition under any bankruptcy laws and interest on, and principal of, loans made to the debtor in possession after the filing of such a petition by or against Borrower. ( d) No course of dealing or usage of trade, and no oral or written representations or agreement, between any Borrower or ADES and Lender, whether or not relied DEC-1770697-10 43

 
on or acted upon, and no act, delay or omission by Lender in exercising any right or remedy hereunder or with respect to any Indebtedness shall operate as a waiver thereof or of any other right or remedy, and no single or partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right or remedy. The giving of notice or a demand by Lender at any time shall not operate as a waiver in the future of Lender's right to exercise any right or remedy without notice or demand. Lender may remedy any default by any Borrower under any agreement with that Borrower or with respect to any Indebtedness in any reasonable manner without waiving the default remedied and without waiving any other prior or subsequent default by any Borrower. After any Borrower's failure to pay the Indebtedness in full, or any part thereof, Lender may exercise against ADES each right and remedy of a creditor against a principal debtor upon a past due liquidated obligation. All rights and remedies of Lender hereunder are cumulative. (e) Lender and ADES as used herein shall include the heirs, executors or administrators, or successors or assigns, of those parties. The rights and benefits of Lender hereunder shall, if Lender so directs, inure to any party acquiring any interest in the Indebtedness or any part thereof. If any right of Lender hereunder is construed to be a power of attorney, such power of attorney shall not be affected by the subsequent disability or incompetence of any Borrower or ADES. (f) Lender's rights and remedies under this Guaranty are assignable and any participation may be granted by Lender herein in connection with the assignment or granting of participation by Lender in the Indebtedness or any part thereof. ADES shall have the right to consent to such assignment or participation unless an Event of Default (as defined in the Term Loan Agreement) has occurred and is continuing. (g) Captions of the sections of this Guaranty are solely for the convenience of Lender and ADES, and are not an aid in the interpretation of this Guaranty. (h) ADES AGREES THAT ANY ACTION OR PROCEEDING TO ENFORCE OR ARISING OUT OF THIS GUARANTY MAY BE COMMENCED IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF COLORADO, AND ADES WAIVES PERSONAL SERVICE OF PROCESS AND AGREES THAT A SUMMONS AND COMPLAINT COMMENCING AN ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE PROPERLY SERVED AND SHALL CONFER PERSONAL JURISDICTION IF SERVED BY REGISTERED MAIL TO ADES AT THE ADDRESS SPECIFIED ABOVE, OR AS OTHERWISE PROVIDED BY THE LAWS OF THE STATE OF COLORADO OR THE UNITED STATES. (i) If any provision of this Guaranty is unenforceable in whole or in part for any reason, it shall be deemed modified to the extent necessary to make it or the applicable provision enforceable, or if for any reason such provision is not deemed modified, the remaining provisions shall continue to be effective. (j) Any payment or other act which results in the extension or renewal of the statute of limitations in connection with any action or proceeding against any Borrower relating to the Indebtedness, shall extend or renew the statute of limitations in connection with any action DEC-1770697-10 44

 
or other proceeding against the ADES in connection with this Guaranty whether or not ADES had notice of, or consented to, such payment or act. (k) Any demand for payment against ADES made by Lender under this Guaranty shall be in writing and delivered in person or by first class mail, postage prepaid, at the ADES's address first written above and shall be deemed received: (i) upon delivery, if delivered in person, and (ii) two (2) days after deposited in the mail or delivered to the post office, if mailed. (1) ADES AND LENDER HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY ADES AND LENDER MAY HA VE IN ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THIS GUARANTY OR THE TRANSACTIONS RELATED HERETO. ADES REPRESENTS AND WARRANTS THAT NO REPRESENTATIVE OR AGENT OF LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LENDER WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS JURY TRIAL WAIVER. ADES ACKNOWLEDGES THAT LENDER HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS SECTION. (m) This Guaranty and the transactions evidenced hereby shall be construed under the laws of the State of Colorado without regard to principles of conflicts oflaw. IN WITNESS WHEREOF, the undersigned has caused this Guaranty Agreement to be duly executed and delivered as of the date first set forth above. DEC-1770697-10 ADES: ADV AN CED EMISSIONS SOLUTIONS, INC., a Delaware corporation By:~~~~~~~~~~~~~~~ Name: ~~~~~~~~~~~~~~~ Title: ~~~~~~~~~~~~~~~- 45

 
PROMISSORY NOTE $10,000,000.00 September 19, 2013 Denver, Colorado FOR VALUE RECEIVED, the undersigned, ADA-ES, INC., a Colorado corporation, promises to pay to CO BIZ BANK, a Colorado corporation, d/b/a/ COLORADO BUSINESS BANK (herein, together with its successors and assigns who become holders of this Note, called the "Lender") at the offices of Lender at 821 1 ih Street, Denver, Colorado 80202, or at such other place as may be designated in writing by Lender from time to time, the principal sum of Ten Million and No/100 Dollars ($10,000,000.00), or such lesser amount which shall from time to time be owing hereunder on account of Advances made by Lender to or for the benefit or account of Borrower in accordance with the terms of the 2013 Loan and Security Agreement by and among Borrower and Lender (as amended, modified, supplements and restated from time to time, the "Loan Agreement") together with interest on the unpaid principal balances outstanding at the rate specified in the Loan Agreement. Principal and interest due under this Note shall be payable at the time or times provided in the Loan Agreement. In no contingency or event whatsoever, whether by reason of advancement of the proceeds hereof or otherwise, shall the amount paid or agreed to be paid by Borrower to Lender for the use, forbearance or detention of money advanced hereunder exceed the highest lawful rate permissible under any law which a court of competent jurisdiction may deem applicable hereto. If any Event of Default shall have occurred and be continuing, Borrower promises to pay the Default Rate, on the outstanding unpaid principal and interest balance hereof at the times and in the amount and manner provided for more particularly in the Loan Agreement. Principal, interest, fees, charges, expenses and other costs owing hereunder are payable in lawful money of the United States of America such that Lender has received immediately available funds for the credit of Borrower on the date that such payment or payments is or are due. This Note is secured by the Collateral listed in the Loan Agreement and other security instruments described in the Loan Agreement. Upon the occurrence of any Event of Default under the Loan Agreement, or under any of the other Loan Documents, which is not cured within any applicable cure period contained in the Loan Agreement, Lender may, at Lender' s option, exercise its remedies as provided in the Loan Agreement; provided, however, that the principal, interest, fees, expenses, charges and other costs owing on this Note shall be and become automatically due and payable ifthe Loan Agreement, or any of the other Loan Documents, provide for the automatic acceleration of the payment of the principal, interest, fees, charges, expenses and other costs owing on this Note upon the occurrence of an Event of Default.

 
No waiver of any breach, Event of Default, default or failure of condition under the terms of this Note, the Loan Agreement, or the other Loan Documents shall be implied from any failure of Lender to take, or any delay by Lender in taking, action with respect to any such breach of or Event of Default, default or failure of condition or from any previous waiver of any similar or unrelated breach of or Event of Default, default or failure of condition. A waiver of any term of this Note, the Loan Agreement or the other Loan Documents must be made in writing and shall be limited to the express written terms of such waiver. All obligations of Borrower and all rights, powers and remedies of Lender expressed herein shall be in addition to and not in limitation of those provided by law or in any written agreement or instrument (other than this Note) relating to any of the Indebtedness of Borrower to Lender or the security therefore. Borrower waives presentment; demand; notice of dishonor; notice of protest and nonpayment; notice of default interest and late charges; notice of intent to accelerate; notice of acceleration; and diligence in taking any action to collect any sums owing under this Note or in proceeding against any of the rights and interests in and to properties securing payment of this Note. Time is of the essence with respect to every provision hereof. This Note is issued pursuant to the Loan Agreement and is subject to the terms and conditions specified therein, which terms and conditions are incorporated herein by this reference. Capitalized terms not otherwise defined in this Note shall have the meanings assigned to them under the Loan Agreement. This Note shall be construed and enforced in accordance with the laws of the State of Colorado, without regard to principles of conflicts oflaw, except to the extent that Federal laws preempt the laws of the State of Colorado. IN WITNESS WHEREOF, the undersigned has executed this instrument as of the date first above written.

 
GUARANTY This GUARANTY AGREEMENT (this "Guaranty") is made as of the 19th day of September 2013, by ADVANCED EMISSIONS SOLUTIONS, INC., a Delaware corporation ("ADES"), with an address at 9135 South Ridgeline Blvd, Suite 200, Highlands Ranch, Colorado 80129, in favor of COBIZ BANK, a Colorado corporation d/b/a COLORADO BUSINESS BANK (together with its successors and assigns "Lender"), with an address at Attn: Douglas L. Pogge, 821 17th Street, Denver, Colorado 80202. 1. Guaranty of Payment. (a) ADES hereby unconditionally guarantees the full and prompt payment to Lender when due, whether by acceleration or otherwise, of any and all Indebtedness (as hereinafter defined) of ADA-ES, INC. ("Borrower") to Lender under the 2013 Loan and Security Agreement, dated as of September 20, 2013, by and among Lender, ADES and Borrower (as amended, modified, restated or supplemented from time to time, the "2013 Term Loan Agreement"). (b) As used in this Guaranty, "Indebtedness" shall mean any and all indebtedness and other liabilities of Borrower to Lender as a result of the 2013 Term Loan Agreement, of every kind and character and all extensions and renewals thereof, including, without limitation, all unpaid accrued interest thereon and all costs and expenses payable as hereinafter provided: (i) whether now existing or hereafter incurred; (ii) whether direct, indirect, primary, absolute, secondary, contingent, secured, unsecured, matured or unmatured, by guarantee or otherwise; (iii) whether such indebtedness is from time to time reduced and thereafter increased, or entirely extinguished and thereafter reincurred; (iv) whether such indebtedness was originally contracted with Lender or with another or others; (v) whether or not such indebtedness is evidenced by a negotiable or non-negotiable instrument or any other writing; and (vi) whether such indebtedness is contracted by a Borrower alone or jointly or severally with another or others. (c) ADES acknowledges that valuable consideration supports this Guaranty, including, without limitation, any commitment to lend, extension of credit or other financial accommodation, whether heretofore or hereafter made by Lender to Borrower; any extension or renewal of any Indebtedness, any forbearance with respect to any Indebtedness or otherwise; any cancellation of any existing guaranty; any purchase of Borrower' s assets by Lender; or any other valuable consideration. 1

 
2. Lender's Costs and Expenses. ADES agrees to pay on demand all costs and expenses of every kind incurred by Lender: (a) In enforcing this Guaranty; (b) In collecting any Indebtedness from Borrower or ADES; ( c) In realizing upon or protecting any collateral for this Guaranty or for payment of any Indebtedness; and (d) For any other purpose related to the Indebtedness or this Guaranty. "Costs and expenses" as used in the preceding sentence shall include, without limitation, the actual attorneys' fees incurred by Lender in retaining counsel for advice, suit, appeal, any insolvency or other proceedings under the Federal Bankruptcy Code or otherwise, or for any purpose specified in the preceding sentence. 3. Representations and Warranties of ADES. ADES affirms and certifies: (a) that there are no defenses, offsets or counterclaims with respect to the Guaranty as of the date hereof; (b) that there was adequate consideration to the AD ES for the granting of the Guaranty; (c) expressly acknowledges its liability to Lender under the Guaranty; and ( d) agrees that the Guaranty is in full force and effect, enforceable against the ADES in accordance with its terms. 4. Nature of Guaranty: Continuing, Absolute and Unconditional. (a) This Guaranty is and is intended to be a continuing guaranty of payment of the Indebtedness (irrespective of the aggregate amount thereof and whether or not the Indebtedness from time to time exceeds the amount of this Guaranty, if limited), independent of, in addition and without modification to, and does not impair or in any way affect, any other guaranty, endorsement, or other agreement in connection with the Indebtedness, or in connection with any other indebtedness or liability to Lender, or collateral held by Lender therefor or with respect thereto, whether or not furnished by ADES. This Guaranty and ADES's obligations hereunder shall not be modified, terminated, impaired or in any way affected by the execution, delivery or performance by ADES, Borrower or any other person of any other guaranty, endorsement or other agreement or the delivery of collateral therefor. Until such time as the Indebtedness has been finally and irrevocably paid in full, ADES waives any claim, remedy or other right which ADES might now have or hereafter acquire against Borrower or any other person that is primarily or contingently liable for the Indebtedness including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification, or any right to participate in any claim or remedy of Lender against Borrower or any collateral therefor which Lender now has or hereafter acquires, whether or not such claim, remedy or right arises in equity, or under contract, statute, or common law. 2

 
(b) This Guaranty is absolute and unconditional and shall not be changed or affected by any representation, oral agreement, act or thing whatsoever, except as herein provided. This Guaranty is intended by ADES to be the final, complete and exclusive expression of the agreement between ADES and Lender. ADES expressly disclaims any reliance on any course of dealing or usage of trade or oral representation of Lender including, without limitation, representations to make loans to Borrower or enter into any other agreement with Borrower or ADES. No modification or amendment of any provision of this Guaranty and no waiver of any right by Lender shall be effective unless in writing and signed by a duly authorized officer of Lender. 5. Certain Rights and Obligations. (a) ADES authorizes Lender, without notice, demand or additional reservation of rights against ADES and without affecting ADES's obligations hereunder, from time to time; (i) to renew, refinance, modify, subordinate, extend, increase, accelerate, or otherwise change the time for payment of, the terms of or the interest on the Indebtedness or any part thereof; (ii) to accept from any person or entity and hold collateral for the payment of the Indebtedness or any part thereof, and to exchange, enforce or refrain from enforcing, or release such collateral or any part thereof; (iii) to accept and hold any endorsement or guaranty of payment of the Indebtedness or any part thereof or any negotiable instrument or other writing intended by any party to create an accord and satisfaction with respect to the Indebtedness or any part thereof, and to discharge, terminate, release, substitute, replace or modify any such obligation of any such endorser or ADES, or any person or entity who has given any security interest in any collateral as security for the payment of the Indebtedness or any part thereof, or any other person or entity in any way obligated to pay the Indebtedness or any part thereof, and to enforce or refrain from enforcing, or compromise or modify, the terms of any obligation of any such endorser, guarantor, person or entity; (iv) to dispose of any and all collateral securing the Indebtedness in any manner as Lender, in its sole discretion, may deem appropriate, and to direct the order or manner of such disposition and the enforcement of any and all endorsements and guaranties relating to the Indebtedness or any part thereof as Lender, in its sole discretion, may determine; and (v) to determine the manner, amount and time of application of payments and credits, if any, to be made on all or any part of any component or components of the Indebtedness (whether principal, interest, costs and expenses, or otherwise), including, without limitation, if this Guaranty is limited in amount, to make any such application to Indebtedness, if any, in excess of the amount of this Guaranty. (b) If any default shall be made in the payment of any Indebtedness, ADES hereby agrees to pay the same in full : 3

 
(i) without deduction by reason of any setoff, defense or counterclaim of Borrower; (ii) without requiring protest, presentment or notice of non-payment or notice of default to ADES, to Borrower or to any other person; (iii) without demand for payment or proof of such demand; (iv) without requiring Lender to resort first to Borrower (this being a guaranty of payment and not of collection) or to any other guaranty or any collateral which Lender may hold; (v) without requiring notice of acceptance hereof or assent hereto by Lender; and (vi) without requiring notice that any Indebtedness has been incurred or of the reliance by Lender upon this Guaranty; all of which ADES hereby waives. (c) ADES's obligation hereunder shall not be affected by any of the following, all of which ADES hereby waives: (i) any failure to perfect or continue the perfection of any security interest in or other lien on any collateral securing payment of any Indebtedness or ADES's obligation hereunder; (ii) the invalidity, unenforceability, propriety of manner of enforcement of, or loss or change in priority of any such security interest or other lien; (iii) any taking, holding, continuation, collection, modification, leasing, impairment, surrender or abandonment of, or any failure to protect, preserve or insure, any such collateral; (iv) any delay in the exercise or waiver of, any failure to exercise, or any forbearance in the exercise of, any right or remedy of Lender or any person against ADES, Borrower or any person or relating to the Indebtedness or any part thereof or the collateral therefor; (v) failure of ADES to receive notice of any intended disposition of such collateral; (vi) any defense arising by reason of the cessation from any cause whatsoever of liability of Borrower including, without limitation, any failure, delay, waiver, forbearance, negligence or omission by Lender in enforcing its claims against Borrower or any collateral therefor, including, without limitation, any failure to make, prove, or vote any claim relating to the Indebtedness or any collateral therefor in any case or proceeding pursuant to the Federal Bankruptcy Code or any similar law, or any satisfaction of the Indebtedness or any part thereof by reason of the failure of Lender to recover against any collateral therefor or the failure of Lender to obtain a judgment for any deficiency; 4

 
(vii) any release, settlement, composition, adjustment, compromise, replacement, cancellation, discharge, assignment, sale, exchange, conversion, participation or other transfer or disposition of any obligation of Borrower or of any collateral therefor; (viii) the invalidity or unenforceability of any of the Indebtedness; (ix) the creation of any security interest, lien or other encumbrance in favor of any person other than Lender; (x) any refusal or failure of Lender or any other person prior to the date hereof or hereafter to grant any additional loan or other credit accommodation to any Borrower or Lender's or any other party's receipt of notice of such refusal or failure; (xi) any refusal or failure of Lender or any other person to provide to ADES any information relating to Borrower, any other guarantor, endorser, or any person or entity who has given any collateral ·as security for the payment of the Indebtedness or any information relating to that Borrower's or such guarantor's, endorser's, person's or entity's financial condition, business or assets, or if such information is provided, to provide such information completely and accurately; (xii) any change in the ownership or membership of ADES or any Borrower; (xiii) the expiration of the period of any statute of limitations with respect to any lawsuit or other legal proceeding against Borrower or any person in any way related to the Indebtedness or a part thereof or any collateral therefor; or (xiv) any other thing or circumstance which might otherwise constitute a defense to ADES's obligation hereunder. 6. Guaranty of Performance. ADES also guarantees the full, prompt and unconditional performance of all obligations and agreements of every kind owed or hereafter to be owed by Borrower to Lender with respect to the Indebtedness. Every provision for the benefit of Lender contained in this Guaranty shall apply to the guaranty of performance given in this paragraph. 7. Termination. This Guaranty shall remain in full force and effect as to ADES until the Indebtedness of Borrower to Lender has been paid in full. ADES agrees that, to the extent that Borrower makes a payment or payments to Lender on the Indebtedness, or Lender receives any proceeds of collateral to be applied to the Indebtedness, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or otherwise are required to be repaid to that Borrower, its estate, trustee, receiver or any other party, including, without limitation, under any bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such repayment, the obligation or part thereof which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction was invalidated, declared to be fraudulent or preferential, set aside or otherwise are required to be repaid to that Borrower, its estate, trustee, receiver or any other party. As of the date any payment or proceeds of collateral 5

 
are returned, the statute of limitations shall start anew with respect to any action or proceeding by Lender against ADES under this Guaranty. ADES shall defend and indemnify Lender of and from any claim or loss under this paragraph including actual attorneys' and paralegals, fees and expenses in the defense of any such action or suit. 8. Miscellaneous. (a) As used m this Guaranty, the terms "Borrower" and "ADES" shall include: (i) any successor individual or individuals, association, partnership, limited liability company or corporation to which all or a substantial part of the business or assets of Borrower or ADES shall have been transferred including, without limitation, a debtor in possession under the Federal Bankruptcy Code; (ii) in the case of a partnership or limited liability company Borrower or ADES, any new partnership or limited liability company which shall have been created by reason of the admission of any new partner(s) or member(s) therein or by reason of the dissolution of the existing partnership or limited liability company by voluntary agreement or the death, resignation or other withdrawal of any partner or member; and (iii) in the case of a corporate Borrower or ADES, any other corporation into or with which ADES or Borrower (if Borrower is a corporation) shall have been merged, consolidated, reorganized, or absorbed. (b) Without limiting any other right of Lender, whenever Lender has the right to declare any Indebtedness to be immediately due and payable (whether or not it has so declared), Lender at its sole election may set off against the Indebtedness any and all moneys then owed to ADES by Lender in any capacity, whether or not the Indebtedness or the obligation to pay such moneys owed by Lender is then due, and Lender shall be deemed to have exercised such right of setoff immediately at the time of such election even though any charge therefor is made or entered on Lender' s records subsequent thereto. (c) ADES's obligation hereunder is to pay the Indebtedness in full when due according to its terms, and shall not be affected by any extension of time for payment by any Borrower, any bar to the enforceability of the Indebtedness, or any limitation on the right to attorneys' fees, resulting from any proceeding under the Federal Bankruptcy Code or any similar law. ADES's obligation under this Guaranty shall also include payment of interest accrued on the Indebtedness before or after a filing of a petition under any bankruptcy laws and interest on, and principal of, loans made to the debtor in possession after the filing of such a petition by or against Borrower. (d) No course of dealing or usage of trade, and no oral or written representations or agreement, between any Borrower or ADES and Lender, whether or not relied on or acted upon, and no act, delay or omission by Lender in exercising any right or remedy hereunder or with respect to any Indebtedness shall operate as a waiver thereof or of any other right or remedy, and no single or partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right or remedy. The giving of notice or a demand 6

 
by Lender at any time shall not operate as a waiver in the future of Lender' s right to exercise any right or remedy without notice or demand. Lender may remedy any default by any Borrower under any agreement with that Borrower or with respect to any Indebtedness in any reasonable manner without waiving the default remedied and without waiving any other prior or subsequent default by any Borrower. After any Borrower's failure to pay the Indebtedness in full , or any part thereof, Lender may exercise against ADES each right and remedy of a creditor against a principal debtor upon a past due liquidated obligation. All rights and remedies of Lender hereunder are cumulative. (e) Lender and ADES as used herein shall include the heirs, executors or administrators, or successors or assigns, of those parties. The rights and benefits of Lender hereunder shall, if Lender so directs, inure to any party acquiring any interest in the Indebtedness or any part thereof. If any right of Lender hereunder is construed to be a power of attorney, such power of attorney shall not be affected by the subsequent disability or incompetence of any Borrower or ADES. (f) Lender's rights and remedies under this Guaranty are assignable and any participation may be granted by Lender herein in connection with the assignment or granting of participation by Lender in the Indebtedness or any part thereof. ADES shall have the right to consent to such assignment or participation unless an Event of Default (as defined in the Term Loan Agreement) has occurred and is continuing. (g) Captions of the sections of this Guaranty are solely for the convenience of Lender and ADES, and are not an aid in the interpretation of this Guaranty. (h) ADES AGREES THAT ANY ACTION OR PROCEEDING TO ENFORCE OR ARISING OUT OF THIS GUARANTY MAY BE COMMENCED IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF COLORADO, AND ADES WAIVES PERSONAL SERVICE OF PROCESS AND AGREES THAT A SUMMONS AND COMPLAINT COMMENCING AN ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE PROPERLY SERVED AND SHALL CONFER PERSONAL JURISDICTION IF SERVED BY REGISTERED MAIL TO ADES AT THE ADDRESS SPECIFIED ABOVE, OR AS OTHERWISE PROVIDED BY THE LAWS OF THE STATE OF COLORADO OR THE UNITED STATES. (i) If any provision of this Guaranty is unenforceable in whole or in part for any reason, it shall be deemed modified to the extent necessary to make it or the applicable provision enforceable, or if for any reason such provision is not deemed modified, the remaining provisions shall continue to be effective. U) Any payment or other act which results in the extension or renewal of the statute of limitations in connection with any action or proceeding against any Borrower relating to the Indebtedness, shall extend or renew the statute of limitations in connection with any action or other proceeding against the ADES in connection with this Guaranty whether or not ADES had notice of, or consented to, such payment or act. 7

 
(k) Any demand for payment against ADES made by Lender under this Guaranty shall be in writing and delivered in person or by first class mail, postage prepaid, at the ADES's address first written above and shall be deemed received: (i) upon delivery, if delivered in person, and (ii) two (2) days after deposited in the mail or delivered to the post office, if mailed. (1) ADES AND LENDER HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY ADES AND LENDER MAY HA VE IN ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THIS GUARANTY OR THE TRANSACTIONS RELATED HERETO. ADES REPRESENTS AND WARRANTS THAT NO REPRESENTATIVE OR AGENT OF LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LENDER WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS JURY TRIAL WAIVER. ADES ACKNOWLEDGES THAT LENDER HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS SECTION. (m) This Guaranty and the transactions evidenced hereby shall be construed under the laws of the State of Colorado without regard to principles of conflicts of law. IN WITNESS WHEREOF, the undersigned has caused this Guaranty Agreement to be duly executed and delivered as of the date first set forth above. ADES: 8

 
Advanced Emissions Solutions, Inc. NASDAQ: ADES BORROWING BASE CERTIFICATE As of the period ending June 30, 2013 This Certificate is made and dated as of September 19, 2013 and is submitted by AD A ES, INC., a Colorado corporation, in accordance with the 2013 Loan and Security Agreement by and among ADA-ES, INC., ADV AN CED EMISSIONS SOLUTIONS, INC., and COBIZ Bank, a Colorado corporation, d/b/a Colorado Business Bank (as amended, modified, supplemented and restated from time to time, the "Loan Agreement"). Capitalized terms used but not defined herein shall have the respective meanings therefor set forth in the Loan Agreement. The undersigned hereby certifies to Lender that the undersigned is familiar with the following financial information, which has been taken from Borrower's books and records, which are complete and accurate, and the following calculations on the Borrowing Base and the remaining amount under the Borrowing Base are true and correct. BORROWING BASE (All numbers must be taken from the most recent 10-K or 10-Q filed by ADES with the Securities and Exchange Commission.) A. Fixed payments due to Borrower on the AECI Leases $82,922,476 B. Balance in A discounted to present value using a discount factor of 10% $57,292,173 C. 90% ofB $5 1,562,956 D. Contingent payments due to Borrower on the AECI Leases $ -0- E. Balance in H discounted to present value using a discount factor of 10% $ -0- F. 80% ofE $ -0- G. Total ofC and F $51,562,956 H. Current Secured Line Balance $ -0- I. Excess/(Deficit) Borrowing Base (G minus H) $51,562,956 J. One Hundred Fifty Percent (150%) ofH $ -0- K. Current Value of Collateral in which Lender has a first priority security interes AD By: Name: Mark H McKinmes Title: Senior Vice President & CFO ' CLEAN COAL . SOLUTIONS ~1.1 BCSl(9 Advancing Cleaner Energy Keeping Industry Moving

 
Advanced Emissions Solutions, Inc. NASDAQ: ADES BORROWER CERTIFICATE ADA-ES, INC. WITH RESPECT TO THE 2013 LOAN AND SECURITY AGREEMENT The undersigned, as a duly authorized officer of ADA-ES, INC., a Colorado corporation, in conjunction with the 2013 Loan and Security Agreement by and among ADA-ES, INC. ("Borrower"), ADV AN CED EMISSIONS SOLUTIONS, INC. and COBIZ Bank, a Colorado corporation, d/b/a Colorado Business Bank (as amended, modified, supplements and restated from time to time, the "Loan Agreement"), hereby certifies to COBIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK that no " Principal" of Borrower has been convicted of, or pied no contest to, a felony under state or federal law (excluding crimes related to traffic or motor vehicle offenses) or to any other crime that requires identification in any registry and/or no6fication program maintained by any federal or state jurisdiction. For the purpose of this Certification, "Principal" is deemed to include: (a) each Officer of ADA-ES, INC. ; (b) each director of ADA-ES, INC.; (c) the five (5) most highly compensated executives and officers of ADA-ES, INC.; and (d) each natural person who is a direct or indirect holder of more than twenty percent (20%) or more of the ownership stock or stock equivalent of ADA-ES, INC. The undersigned Borrower acknowledge that CoBiz Bank, a Colorado corporation, d/b/a Colorado Business Bank is relying upon the truth of the statements set forth in this Borrower Certification to make a loan to Borrower. Dated this 19th the day of September 2013. AD By: ~------.,.--:-'-_____,,__-r-'"--=-f:----;-:::~~~~­ Name: Title: ' CLEAN COAL . SOLUTIONS BCSI~ Advancing Cleaner Energy Keeping Industry Moving

 
Advanced Emissions Solutions, Inc. NASDAQ: ADES FINANCIAL STATEMENTS CERTIFICATION The undersigned, the Senior Vice President and Chief Financial Officer of ADA ES, INC., a Colorado corporation, hereby certifies to COBIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK, pursuant to 2013 Loan and Security Agreement by and among ADA-ES, INC., ADVANCED EMISSIONS SOLUTIONS, INC. and COBIZ Bank, a Colorado corporation, d/b/a Colorado Business Bank (as amended, modified, supplements and restated from time to time, the "Loan Agreement"), that attached hereto is a true and correct copy of ADA-ES, INC. 's financial statements as of and for the 6 month period ending June 30, 2013, which financial statements fairly present in all material respects ADA-ES, INC. ' s financial position and results of operations for the applicable periods and consist of a balance sheet and related statements of income and cash flow covering the periods from the end of the immediately preceding fiscal year to the end of such quarter, and such quarter alone (if applicable). Such financial statements have been prepared in accordance with GAAP, consistently applied (except as disclosed therein), it being understood that all interim financial statements are subject to year-end adjustments and are not required to have footnote disclosures. The undersigned has reviewed the Loan Agreement and the affairs of such Borrower and that, to the best of his or her knowledge and belief, he or she is unaware of the occurrence of an event which constitutes an Event of Default hereunder or which would constitute such an Event of Default with the giving of notice or the lapse of time or both, and if so, stating the facts with respect thereto. A 10n ' CLEAN COAL . SOLU T ION S BCSI~ Advancing Cleaner Energy Keeping Industry Moving

 
Advanced Emissions Solutions, Inc. NASDAQ: ADES COMPLIANCE CERTIFICATE ADA-ES, INC., a Colorado corporation ("Borrower"), and ADVANCED EMISSIONS SOLUTIONS, INC., a Delaware corporation ("ADES"), hereby certify to COBIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK ("Lender") pursuant to the 2013 Loan and Security Agreement by and among Borrower, ADES and Lender (as amended, modified, supplemented and restated from time to time, the "Loan Agreement"), that: A. General. 1. Capitalized tenns not defined herein shall have the meanings set forth in the Loan Agreement. 2. Borrower has materially complied with all the terms, covenants and conditions to be performed or observed by Borrower contained in the Loan Agreement and the Loan Documents. 3. Neither on the date hereof nor, if applicable, after giving effect to any Advance made under the Loan Agreement on the date hereof, does there exist an Event of Default. B. Financial Covenants As of June 30, 2013 1 C 1 I . a cu ahon o 1qm ity ovenant: A. Cash and Marketable Securities held by ADES $12,289,000 B. Amount of Cash and Marketable Secmities pledged by ADES to parties $3,647,905 other than Lender C. Amount of Letters of Credit issued by parties other than Lender which $ -0- are not secured by the Cash and Marketable Securities covered in B. D. Total of Band C $3,647,905 E. A less D $8,641,095 F. $6,000,000.00 $6,000,000 G. Eighty Percent (80%) of the amount outstanding under the Secured $ -0- Line H. The greater of F or G $6,000,000 I. Amount by which E exceeds (is less than) H $2,641,095 2. A. Total Equity $17,718,000 1CLEAN COAL SOL UT IONS BCSl(9 Advancing Cleaner Energy Keeping Indus r) Moving

 
Advanced Emissions Solutions, Inc. NASDAQ: ADES B. Goodwill and Other Intangibles $3,869,000 C. A less B $13,849,000 D. $13,500,000.00 $13,500,000 E. Amount by which C exceeds (is less than) D $349,000 IN WITNESS WHEREOF, Borrower and ADES have executed and delivered this Compliance Certificate in the name of and on behalf of Borrower on September 19, 2013. ADA- ADVA ., a Delaware corporation By: Name: Mark H. McKinnies Title: Senior Vice President and Chief Financial Officer Advancing Cleaner Energy 1 C L E A N C 0 A L SOLUTIONS BCSl?9 Keeping lndust y Moving

 
ADA-ES, INC. OFFICER'S CERTIFICATE This Officer's Certificate is provided pursuant to that certain 2013 Loan and Security Agreement (the "Agreement") by and among ADA-ES, INC., a Colorado corporation ("Corporation"), ADVANCED EMISSIONS SOLUTIONS, INC., a Delaware corporation and sole shareholder of the Corporation ("ADES") and CO BIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK. I, Mark H. McKinnies, Secretary of the Corporation, hereby certify on behalf of the Corporation that: 1. Attached hereto as Exhibit A is a true, correct and complete copy of the resolutions adopted by written consent of the Board of Directors of the Corporation on August 6, 2013 approving and authorizing entry into the Agreement and each of the transactions contemplated thereby. 2. Attached hereto as Exhibit B is a true, correct and complete copy of the Corporation's Amended and Restated Articles of Incorporation, and the same has not been rescinded, revoked, modified or otherwise affected and remain in full force and effect. 3. Attached hereto as Exhibit C is a true, correct and complete copy of the Corporation's Third Amended and Restated Bylaws, and the same has not been rescinded, revoked, modified or otherwise affected and remain in full force and effect. 4. Each of Michael D. Durham, President and Chief Executive Officer, Mark H. McKinnies, Senior Vice President, Chief Financial Officer and Secretary, C. Jean Bustard, Chief Operating Officer, and Jonathan Lagarenne, Executive Vice President, are authorized to execute and deliver on behalf of the Corporation the Agreement and any and all other documents such person deems necessary, advisable or appropriate to carry out the transactions contemplated by the Agreement and authorized to request loan advances or letters of credit pursuant to the Agreement. [Remainder of page intentionally left blank]

 
By: Name: Mark H. McK1 ie Title: Senior Vice President, Chief Executive Officer and Secretary 2 Officer's Certificate

 
ADVANCED EMISSIONS SOLUTIONS, INC. OFFICER'S CERTIFICATE This Officer's Certificate is provided pursuant to that certain 2013 Loan and Security Agreement (the "Agreement") by and among ADVANCED EMISSIONS SOLUTIONS, INC., a Delaware corporation ("Corporation"), ADA-ES, INC., a Colorado corporation and wholly owned subsidiary of the Corporation ("Borrower") and COBIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK ("Lender"). I, Mark H. McKinnies, Secretary of the Corporation, hereby certify on behalf of the Corporation that: 1. Attached hereto as Exhibit A is a true, correct and complete copy of the resolutions adopted by the Board of Directors of the Corporation on August 6, 2013 approving and authorizing entry into the Agreement and each of the transactions contemplated thereby. 2. Attached hereto as Exhibit B is a true, correct and complete copy of the resolutions adopted by written consent of the Board of Directors of the Corporation on September 19, 2013 approving and authorizing the execution of the Guaranty Agreement on behalf of the Corporation for the benefit of Lender as contemplated by the Agreement ("Guaranty"). 2. Attached hereto as Exhibit C is a true, correct and complete copy of the Corporation's Second Amended and Restated Certificate of Incorporation, and the same has not been rescinded, revoked, modified or otherwise affected and remain in full force and effect. 3. Attached hereto as Exhibit D is a true, correct and complete copy of the Corporation's Bylaws, and the same has not been rescinded, revoked, modified or otherwise affected and remain in full force and effect. 4. Each of Michael D. Durham, President and Chief Executive Officer, Mark H. McKinnies, Senior Vice President, Chief Financial Officer and Secretary, C. Jean Bustard, Chief Operating Officer, and Jonathan Lagarenne, Executive Vice President, are authorized to execute and deliver on behalf of the Corporation the Agreement, the Guaranty and any and all other documents such person deems necessary, advisable or appropriate to carry out the transactions contemplated by the Agreement and authorized to request loan advances or letters of credit pursuant to the Agreement. [Remainder of page intentionally left blank]

 
IN WITNESS WHEREOF, I have executed this Officer' s Certificate as of S~ ......... -=- 19, 2013. 2 By: Name: Mark H. McKi 1es Title: Senior Vice President, Chief Executive Officer and Secretary Officer's Certificate

 


Exhibit 31.1
Pursuant to Rules 13a-14(a) and 15d-14(a) of the Securities Exchange Act of 1934, as Amended
I, L. Heath Sampson, certify that:
1. I have reviewed this Quarterly Report on Form 10-Q of Advanced Emissions Solutions, 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 officer 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 officer 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: August 9, 2016

 
/s/ L. Heath Sampson
 
L. Heath Sampson
 
President, Chief Executive Officer and Treasurer
 
(Principal Executive and Financial Officer)
 





Exhibit 32.1
Certification
Pursuant to
18 U.S.C. Section 1350,
as Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Quarterly Report on Form 10-Q of Advanced Emissions Solutions, Inc. (the “Company”) for the quarterly period ended June 30, 2016, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), L. Heath Sampson, as the Principal Executive and Financial Officer of the Company, hereby certifies, pursuant to and solely for the purpose of 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, to the best of his knowledge and belief, that:
(1) the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

/s/ L. Heath Sampson
 
L. Heath Sampson
 
President, Chief Executive Officer and Treasurer
 
(Principal Executive and Financial Officer)
 
 
 
August 9, 2016
 




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